Parlex, Inc
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Filed by the Registrant þ
Filed by a Party other than the
Registrant o
Check the appropriate box:
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þ Preliminary
Proxy Statement |
o Confidential,
For Use of the Commission Only (as permitted by
Rule 14a-6(e)(2)) |
o Definitive Proxy
Statement |
o Definitive
Additional Materials |
o Soliciting
Material Pursuant to § 240.14a-12 |
PARLEX CORPORATION
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement, if Other Than the
Registrant)
Payment of filing fee (Check the appropriate box):
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No fee required. |
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Fee computed on table below per Exchange Act
Rules 14a-6(i)(1) and 0-11. |
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(1) |
Title of each class of securities to which transaction applies: |
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Common Stock, $0.10 par value
per share, of Parlex Corporation (Parlex common
stock)
Series A Convertible Preferred Stock, par value
$1.00 per share, of Parlex Corporation (Parlex
preferred stock)
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(2) |
Aggregate number of securities to which transaction applies: |
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6,488,425 shares of Parlex
common stock
665,525 options to purchase shares of Parlex common stock
40,625 shares of Parlex convertible preferred stock.
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(3) |
Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on
which the filing fee is calculated and state how it was
determined): |
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$6.75 per share of Parlex
common stock outstanding
$6.75 minus the weighted average exercise price of outstanding
options to purchase Parlex common stock with an exercise price
less than $6.75 per share of $5.99 times the number of such
outstanding options
$80.00 per share of Parlex preferred stock.
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(4) |
Proposed maximum aggregate value of transaction:
$47,155,314.15 |
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(5) |
Total fee paid:
$5,550.18 |
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Fee paid previously with preliminary materials: |
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Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for
which the offsetting fee was paid previously. Identify the
previous filing by registration statement number, or the Form or
Schedule and the date of its filing. |
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(1) |
Amount previously paid: |
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(2) |
Form, Schedule or Registration Statement No.: |
PARLEX CORPORATION
One Parlex Place
Methuen, Massachusetts 01844
To the Shareholders of Parlex Corporation:
You are cordially invited to attend a special meeting of
shareholders of Parlex Corporation (Parlex or the
Company) to be held on
[ ],
2005 at
[ ]
[a.m.], local time, at Parlexs headquarters located at One
Parlex Place, Methuen, Massachusetts 01844 (the Special
Meeting).
On August 18, 2005, Parlex entered into an Agreement and
Plan of Merger (as amended, the Merger Agreement)
among Parlex, Johnson Electric Holdings Limited (JE
Holdings), J.E.C. Electronics Sub One, Inc.
(Parent), and J.E.C. Electronics Sub Two, Inc.
(Purchaser) pursuant to which Purchaser will be
merged with and into Parlex (the Merger), and Parlex will be the
surviving corporation in the Merger. If the Merger is completed,
you will be entitled to receive $6.75 in cash, without interest,
for each share of Parlex common stock you own, less any required
withholding taxes (the Common Share Merger
Consideration) and $80.00 in cash, plus any accrued and
unpaid dividends as of the date of the Merger, without interest
or additional dividends thereon, for each share of Parlex
preferred stock you own, less any required withholding taxes
(the Preferred Share Merger Consideration). At the
Special Meeting, you will be asked to adopt and approve the
Merger Agreement, attached to this Proxy Statement as
Annex A, and the transactions contemplated thereby.
The board of directors has unanimously approved and adopted the
Merger Agreement and the transactions contemplated thereby,
including the Merger, and has determined that the Merger
Agreement and such transactions are fair to, and in the best
interests of, the holders of common stock of Parlex. The
board of directors recommends that Parlex shareholders vote
FOR the approval of the Merger Agreement.
The accompanying Proxy Statement provides you with detailed
information about the Merger Agreement and the proposed Merger.
We urge you to read the entire Proxy Statement carefully. The
affirmative vote of at least two-thirds of the shares of Parlex
common stock outstanding on the record date is required to
approve the Merger Agreement. A failure to vote will have the
same effect as a vote against the Merger.
REGARDLESS OF THE NUMBER OF SHARES OF PARLEX COMMON STOCK YOU
OWN, YOUR VOTE IS VERY IMPORTANT. WHETHER OR NOT YOU PLAN TO
ATTEND THE SPECIAL MEETING, PLEASE COMPLETE, SIGN AND RETURN THE
ENCLOSED PROXY CARD OR SUBMIT YOUR PROXY BY TELEPHONE OR OVER
THE INTERNET FOLLOWING THE INSTRUCTIONS ON THE PROXY CARD. YOUR
COOPERATION IN VOTING YOUR SHARES WILL BE GREATLY
APPRECIATED.
Voting by proxy will not prevent you from voting your shares in
person if you subsequently choose to attend the annual meeting.
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Herbert W. Pollack |
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Chairman of the Board of Directors |
Methuen, Massachusetts
[ ],
2005
PARLEX CORPORATION
One Parlex Place
Methuen, Massachusetts 01844
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To Be Held On
[ ],
2005
To the Stockholders of Parlex Corporation:
Notice is hereby given that a Special Meeting of Stockholders of
Parlex Corporation (Parlex or the
Company) will be held on
[ ],
2005 at
[ ]
[a.m.], local time, at Parlexs principal offices, One
Parlex Place, Methuen, Massachusetts 01844 (the Special
Meeting), to consider and act upon the following proposals:
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1. To approve the Agreement and Plan of Merger (the
Merger Agreement), dated as of August 18, 2005,
as amended, among Johnson Electric Holdings Limited (JE
Holdings), J.E.C. Electronics Sub One, Inc.
(Parent), J.E.C. Electronics Sub Two, Inc.
(Purchaser), and Parlex, pursuant to which Purchaser
will be merged with and into Parlex (the Merger),
and Parlex will be the surviving corporation in the Merger, and
upon completion of the Merger, each issued and outstanding share
of Parlex common stock, par value $0.10 per share (other
than any shares of common stock owned by Parlex, JE Holdings,
Parent or Purchaser or any direct or indirect wholly-owned
subsidiary of Parlex or JE Holdings immediately prior to the
completion of the Merger), will be automatically converted into
the right to receive $6.75 in cash, without interest, less any
required withholding taxes (Common Share Merger
Consideration), and each issued and outstanding share of
Series A Convertible Preferred Stock, par value
$1.00 per share, will be converted into the right to
receive $80.00 in cash (which is the liquidation value of each
share of preferred stock), plus any accrued and unpaid dividends
thereon as of the date of the Merger, without interest or
additional dividends thereon, less any required withholding
taxes (the Preferred Share Merger Consideration). A
copy of the Merger Agreement is attached as Annex A to the
accompanying Proxy Statement; |
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2. To grant the persons named as proxies discretionary
authority to vote to adjourn the Special Meeting, if necessary,
to satisfy the conditions to complete the Merger as set forth in
the Merger Agreement, including for the purpose of soliciting
proxies to vote in favor of approving the Merger
Agreement; and |
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3. To consider and act upon such other matters as may
properly come before the meeting. |
Any action on the items of business described above may be
considered at the meeting at the time and on the date specified
above or at any time and date to which the meeting may be
properly adjourned or postponed.
The board of directors of Parlex unanimously recommends that you
vote to approve the Merger Agreement. These items of business to
be submitted to a vote of the stockholders at the Special
Meeting is more fully described in the attached Proxy Statement,
which we urge you to read carefully. The board of directors of
Parlex also recommends that you expressly grant the authority to
vote your shares to adjourn the Special Meeting, if necessary,
to permit further solicitation of proxies if there are not
sufficient votes at the time of the Special Meeting to approve
the Merger Agreement. We are not aware of any other business
scheduled to come before the Special Meeting.
Stockholders of record on
[ ]
are entitled to notice of and to vote at the Special Meeting and
on any adjournment or postponement of the meeting. All
stockholders are cordially invited to attend the Special Meeting
in person. Approval of the Merger Agreement will require the
affirmative vote of the holders of at least two-thirds of the
outstanding shares of Parlex common stock.
Parlex has concluded that you are not entitled to appraisal
rights under the Massachusetts Business Corporation Act (the
MBCA).
You should not send any certificates representing shares of
Parlex common stock with your proxy card. Upon closing of the
Merger, you will be sent instructions regarding the procedure to
exchange your stock certificates for the applicable Common or
Preferred Share Merger Consideration.
Even if you plan to attend the Special Meeting in person, we
request that you complete, sign, date and return the enclosed
proxy card, as instructed in these materials, to ensure that
your shares will be represented at the Special Meeting if you
are unable to attend. If you are a record holder and you sign,
date and mail your proxy card without indicating how you wish to
vote, your shares will be voted in favor of approval of the
Merger Agreement and the meeting adjournment proposal. If you
fail to return your proxy card or to vote by telephone or on the
internet, your shares will not be counted for purposes of
determining whether a quorum is present at the Special Meeting
and will have the same effect as a vote against approval of the
Merger Agreement. If you do attend the Special Meeting and wish
to vote in person, you may withdraw your proxy and vote in
person. If your shares are held in the name of your broker, bank
or other nominee, you must obtain a proxy, executed in your
favor, from the holder of record to be able to vote at the
Special Meeting.
In addition to voting in person at the Special Meeting and by
mail by signing, dating and mailing your proxy card to the
address listed on the proxy card, you may vote on the internet
by completing the electronic voting instruction form found at
www. .com
or by telephone using a touch-tone telephone and calling
1-800- - .
No person has been authorized to give any information or to make
any representations other than those set forth in the Proxy
Statement in connection with the solicitation of proxies made
hereby, and, if given or made, such information must not be
relied upon as having been authorized by Parlex or any other
person.
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By Order of the Board of Directors, |
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HERBERT W. POLLACK |
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Chairman |
Methuen, Massachusetts
[ ],
2005
WHETHER OR NOT YOU EXPECT TO BE AT THE MEETING, PLEASE MARK,
SIGN, DATE AND RETURN THE ENCLOSED PROXY IN THE POSTAGE PRE-PAID
ENVELOPE PARLEX HAS PROVIDED.
TABLE OF CONTENTS
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Annex A Agreement and Plan
of Merger, dated as of August 18, 2005, as amended as of
August 24, 2005, among Parlex Corporation, Johnson Electric
Holdings Limited, J.E.C. Electronics Sub One, Inc., and J.E.C.
Electronics Sub Two, Inc.
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A-1 |
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B-1 |
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C-1 |
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SUMMARY TERM SHEET RELATING TO THE SPECIAL MEETING AND THE
MERGER
This summary term sheet highlights selected information
contained in this Proxy Statement related to the Special Meeting
and the Merger and may not contain all of the information that
is important to you. To understand the Special Meeting and the
Merger fully and for a more complete description of the terms of
the Merger Agreement, you should carefully read this entire
document, including the annexes, and the other documents to
which Parlex refers you.
The Parties Involved in the Merger (See page 14)
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Parlex Corporation |
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One Parlex Place |
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Methuen, Massachusetts 01844 |
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(978) 685-4341 |
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www.parlex.com |
Parlex Corporation is a world leader in the design and
manufacture of flexible, interconnect products. Parlex
Corporation is referred to herein, together with its
subsidiaries, as Parlex, the Company,
we, our and us unless
specified otherwise. Parlex produces custom flexible,
interconnect products utilizing proprietary processes and
patented technologies, which are designed to satisfy the unique
requirements of a wide range of customers. Parlexs
revenues have been derived principally from providing products,
including flexible circuits, laminated cable, polymer thick film
circuit, flexible interconnect hybrid circuits, and flexible
interconnect assemblies, to the automotive, telecommunications,
computer, military, medical, home appliance, electronic
identification and diversified electronics markets. Its
manufacturing facilities are located in the United States,
China, Mexico and the United Kingdom. Parlexs common stock
is listed on the Nasdaq National Market under the symbol
PRLX. Parlex is incorporated under the laws of The
Commonwealth of Massachusetts. Information contained on
Parlexs website does not constitute a part of this Proxy
Statement.
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Johnson Electric Holdings Limited |
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Johnson Building |
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6-22 Dai Shun Street |
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Tai Po Industrial Estate, Tai Po |
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New Territories, Hong Kong |
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(852) 2663 6688 |
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www.johnsonelectric.com |
Johnson Electric Holdings Limited is the world leader in
manufacturing micro-motors for automotive and commercial
markets. Johnson Electric Holdings Limited is referred to
herein, together with its subsidiaries, as JE
Holdings. Established in 1959, JE Holdings has shipped
over five billion micro-motors to more than thirty countries in
over one hundred different micro-motor applications and has the
capacity to produce over three million motors a day (one billion
annually). JE Holdings is headquartered in Hong Kong and employs
over 33,000 people in 15 countries worldwide. JE Holdings is
divided into three business groups, the Commercial Motors Group,
the Automotive Motors Group and the Components &
Services Group. JE Holdings has been listed on the Hong Kong
Stock Exchange since 1984, and is a constituent stock of the
Hang Seng Index. It is also a constituent stock of the Morgan
Stanley Capital International Index and has a sponsored American
Depositary Receipt Program in the United States through JPMorgan
Chase Bank. The American Depositary Receipts trade on the
over-the-counter market under the symbol JELCY.
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J.E.C. Electronics Sub One, Inc. |
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c/o Johnson Electric Capital Limited |
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Johnson Building, 6-22 Dai Shun Street |
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Tai Po Industrial Estate, New Territories |
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Hong Kong |
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(852) 2663 6688 |
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www.johnsonelectric.com |
J.E.C. Electronics Sub One, Inc. is an indirect wholly-owned
subsidiary of JE Holdings and has not engaged in any business
activity other than in connection with the Merger. J.E.C.
Electronics Sub One, Inc. is referred to herein as
Parent.
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J.E.C. Electronics Sub Two, Inc. |
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c/o Johnson Electric Capital Limited |
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Johnson Building, 6-22 Dai Shun Street |
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Tai Po Industrial Estate, New Territories |
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Hong Kong |
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(852) 2663 6688 |
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www.johnsonelectric.com |
J.E.C. Electronics Sub Two, Inc. is wholly owned by Parent and
has not engaged in any business activity other than in
connection with the Merger. J.E.C. Electronics Sub Two, Inc. is
referred to herein as Purchaser.
The Merger (See page 20)
Pursuant to the Merger Agreement, Purchaser will merge with and
into Parlex, and Parlex will be the surviving corporation (the
Merger). After the Merger, JE Holdings will own,
directly or indirectly, all of Parlexs outstanding common
stock. As a result of the Merger, Parlex will cease to be an
independent, publicly traded company and will become a
wholly-owned subsidiary of JE Holdings. Parlex stockholders will
receive cash in the Merger in exchange for their Parlex common
stock and preferred stock. A copy of the Merger Agreement is
attached as Annex A to this Proxy Statement. Parlex
encourages you to read the Merger Agreement carefully and fully
as it is the definitive agreement that governs the Merger.
Merger Consideration (See page 41)
If the Merger is completed, holders of common stock will receive
$6.75 in cash, without interest and subject to any applicable
withholding taxes (the Common Share Merger
Consideration), in exchange for each share of Parlex
common stock owned by such stockholder. After the Merger is
completed, each holder of common stock will have the right to
receive the Common Share Merger Consideration, but will no
longer have any rights as a Parlex stockholder.
If the Merger is completed, holders of preferred stock will
receive $80.00 in cash, which is the liquidation value of each
share of preferred stock, plus any accrued and unpaid dividends
as of the date of the Merger, without interest or additional
dividends thereon, less any required withholding taxes (the
Preferred Share Merger Consideration), in exchange
for each share of Parlex preferred stock. After the Merger is
completed, each holder of preferred stock will have the right to
receive the Preferred Share Merger Consideration, but will no
longer have any rights as a Parlex stockholder.
Treatment of Stock Options, Convertible Notes and Warrants
(See page 34)
At the Effective Time, all outstanding options to purchase
Parlex common stock, whether vested or unvested, will be
cancelled and the holders will receive an amount equal to the
product of (i) the excess, if any, of $6.75 over the per
share exercise price and (ii) the total number of shares of
Parlex common stock subject to such options. The table on
page 34 sets forth the number of shares of Parlex common
stock subject to options that are held by Parlexs
executive officers and directors and the estimated cash
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payments such persons will receive in the Merger in exchange for
such options. The Merger will constitute a change in control for
purposes of Parlexs 7% Convertible Subordinated Notes
due July 28, 2007 (the Parlex convertible
subordinated notes) and, accordingly, holders of the
Parlex convertible subordinated notes will have the option to
require that Parlex redeem their Parlex convertible subordinated
notes, in whole but not in part, for an amount equal to 120% of
the outstanding principal plus any accrued and unpaid interest
as of the date of the Merger. Pursuant to the Merger Agreement,
Parlex has agreed to use its reasonable best efforts to
negotiate settlements with individual warrant holders, on terms
that are specified or approved by JE Holdings or Parent,
pursuant to which each outstanding warrant will be canceled
immediately before the Merger becomes effective.
Market Price (See page 53)
Parlexs common stock is listed on the Nasdaq National
Market under the ticker symbol PRLX. On
June 28, 2005, the day before Parlexs board of
directors met to initially consider JE Holdings offer of
$6.75 per share, Parlexs common stock closed at $5.48
per share. On August 17, 2005, the last full trading day
prior to the public announcement of the proposed Merger, Parlex
common stock closed at $6.45 per share. On
[ ],
2005, the last trading day prior to the date of this Proxy
Statement, Parlex common stock closed at
$[ ]
per share. Parlexs stock price can fluctuate broadly even
over short periods of time. It is impossible to predict the
actual price of Parlexs stock immediately prior to the
Effective Time.
Reasons for the Proposed Merger (See page 24)
In the course of reaching its decision to adopt the Merger
Agreement and to recommend that Parlex stockholders approve the
Merger Agreement, Parlexs board of directors considered a
number of factors in its deliberations. Those factors are
described below under The Merger Reasons for
the Merger.
Opinion of Parlexs Financial Advisor (See
page 26)
In connection with the Merger, Needham & Company, LLC
(Needham & Company) delivered an oral and
written opinion to the board of directors of Parlex as to the
fairness, from a financial point of view, to the holders of
Parlex common stock of the Common Share Merger Consideration to
be received by such holders in the Merger. The full text of
Needham & Companys written opinion, dated
August 16, 2005, is attached to this Proxy Statement as
Annex B. We encourage you to read this opinion carefully in
its entirety for a description of the procedures followed,
assumptions made, matters considered and limitations on the
review undertaken. Needham & Companys opinion was
provided to the Parlex board of directors in connection with its
evaluation of the Common Share Merger Consideration, does not
address any other aspect of the proposed Merger or the sale of
the multilayer division and does not constitute a recommendation
to any stockholder as to how such stockholder should vote or act
with respect to any matters relating to the Merger.
Pursuant to the terms of Parlexs engagement letter with
Needham & Company, Parlex has agreed to pay
Needham & Company a customary fee. Part of the fee is
contingent and payable only if the Merger is completed.
Recommendation of the Parlex Board of Directors (See
page 25)
The Parlex board of directors unanimously recommends that Parlex
stockholders vote FOR the approval of the Merger
Agreement.
Vote Required (See page 17)
The approval of the Merger Agreement requires the affirmative
vote of the holders of at least two-thirds of the outstanding
shares of Parlex common stock on the Record Date
(Stockholder Approval). Approval of the Merger
Agreement does not require the vote of the holders of Parlex
preferred stock. The Merger is not contingent upon the approval
at the Special Meeting of any other proposal, if any, presented
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to Parlex stockholders. The proposal to grant the persons named
as proxies the discretionary authority to vote to adjourn the
Special Meeting, if necessary, requires the approval of the
holders of a majority of the shares of Parlex common stock
present, in person or by proxy, and entitled to vote at the
Special Meeting.
Proxies, Voting and Revocation (See page 16)
Shares of Parlex common stock represented at the Special Meeting
by properly executed proxies received prior to or at the Special
Meeting, and not revoked, will be voted at the Special Meeting,
and at any adjournments or postponements of that meeting, in
accordance with the instructions on the proxies. If a proxy is
duly executed and submitted without instructions, the shares of
Parlex common stock represented by that proxy will be voted FOR
the approval of the Merger Agreement and, if necessary, FOR the
approval of one or more adjournments of the Special Meeting to
solicit additional proxies.
A stockholder giving a proxy has the power to revoke it at any
time prior to its exercise by:
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Delivering a written notice of revocation bearing a later date
than the proxy to the clerk of Parlex, Edward D. Kutchin (the
Clerk), at or before the taking of the vote at the
Special Meeting; |
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Delivering a duly executed proxy relating to the same shares and
bearing a later date to the Clerk of Parlex before the taking of
the vote at the Special Meeting; |
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Voting by telephone after previously voting or submitting a
proxy card; |
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Voting on the internet after previously voting or submitting a
proxy card; or |
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Attending the Special Meeting and voting such shares in person.
Stockholders should note, however, that merely attending the
Special Meeting in person without casting a vote at the meeting
would not alone constitute a revocation of a proxy. |
If a stockholder holds shares in street name and has
instructed its broker to vote such shares, the stockholder must
follow the directions provided by its broker to change these
instructions.
Interests of Certain Persons in the Merger (See
page 33)
In considering the recommendation of Parlexs board of
directors in favor of the Merger, you should be aware that there
are provisions of the Merger Agreement and other existing
agreements that will result in certain benefits to Parlexs
directors and executive officers that are not available to
stockholders generally. Parlexs board of directors was
aware of, and considered the interests of, its directors and
executive officers and the potential conflicts arising from such
interests in its deliberations of the merits of the Merger and
in adopting and approving the Merger Agreement and the Merger.
Other than the provisions of the Merger Agreement described
below, the arrangements described below were in existence before
the discussions about the Merger began. Stockholders should take
these benefits into account in deciding whether to vote for
approval of the Merger Agreement.
Stock Options. At the effective time of the Merger
(the Effective Time), all outstanding options to
purchase Parlex common stock, whether vested or unvested, will
be cancelled and the holders will receive an amount equal to the
product of (i) the excess, if any, of the Common Share
Merger Consideration over the per share exercise price and
(ii) the total number of shares of Parlex common stock
subject to such options. The table on page 34 sets forth
the number of shares of Parlex common stock subject to options
that are held by Parlexs executive officers and directors
and the estimated cash payment such persons will receive in the
Merger in exchange for such options.
Convertible Subordinated Notes. Each holder of
Parlex convertible subordinated notes will be entitled to
require that Parlex redeem such holders convertible
subordinated notes, in whole but not in part, for an amount
equal to 120% of the outstanding principal plus any accrued and
unpaid interest as of the date of the Merger. Any Parlex
convertible subordinated notes that are not redeemed by holders
prior to the Merger will remain outstanding after the Merger.
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Warrants. In accordance with the Merger Agreement,
Parlex is using its reasonable best efforts to negotiate
settlements with individual holders of Parlex warrants, on terms
that are specified or approved by JE Holdings, pursuant to which
each outstanding warrant will be canceled immediately before the
Merger becomes effective.
Change of Control Agreements. Each of our
executive officers has an employment or severance agreement with
Parlex that contains change of control provisions that will be
triggered by the Merger. These change of control agreements are
described below beginning on page 34.
Deferred Compensation Agreements. Parlex has one
deferred compensation arrangement that will be impacted by the
Merger. Herbert W. Pollack, the Chairman of Parlexs board
of directors, has a deferred compensation arrangement with
Parlex. The total balance payable to Mr. Pollack under such
arrangement as of
[ ],
2005 was
$[ ].
The balance, plus accrued interest, will be paid to
Mr. Pollack pursuant to monthly payments through May, 2009.
Pursuant to his current employment agreement, however,
Mr. Pollack may, at his sole discretion, elect to receive a
lump sum distribution of the full balance of the deferred
compensation, including interest, upon consummation of the
Merger.
Employee Related Provisions of Merger Agreement.
After the closing of the Merger, JE Holdings has agreed to
continue to provide continuing employees of Parlex with
(i) employee plans and programs which provide benefits that
are substantially similar in the aggregate to those provided to
similarly situated employees of JE Holdings, (ii) credit
for accrual of seniority with respect to termination and
severance benefits, eligibility to participate, vesting and
benefit accrual (other than with respect to any defined benefit
pension plan) under any employee benefit plans for service
accrued prior to the closing of the Merger, (iii) waivers
(other than waivers of any pre-existing condition that excluded
a continuing employee or dependent from a plan maintained by
Parlex prior to the Merger) for such employees and their covered
dependents with respect to all pre-existing condition exclusions
and actively-at-work requirements under plans of JE Holdings in
which continuing employees may participate after the Merger and
(iv) credit for any covered expenses incurred at or before
the closing of the Merger by a continuing employee or such
employees covered dependents for purposes of satisfying
applicable deductible and similar provisions under JE
Holdings plans after the Merger to the same extent as such
expenses are taken into account for the benefit of similarly
situated employees of JE Holdings.
Indemnification of Directors and Executive Officers and
Insurance. The Merger Agreement provides that Parlex, as
the surviving corporation in the Merger, will indemnify each
present and former director and officer of Parlex and its
subsidiaries against claims, costs, and fees arising out of the
actions taken by them at or prior to the Effective Time
(including the transactions under the Merger Agreement) for six
years from the Effective Time. The Merger Agreement further
provides that the surviving corporation will maintain liability
insurance covering those persons currently covered by
Parlexs directors and officers liability insurance policy
for six years from the Effective Time on terms not materially
less favorable than those in effect on the effective date of the
Merger Agreement, but at a cost no greater than 200% per
year of the annual premium currently paid by Parlex.
Appraisal Rights (See page 37)
Parlex has concluded that holders of Parlex common stock and
preferred stock are not entitled to appraisal rights in
connection with the Merger pursuant to Section 13.02(a)(1)
of the MBCA. Any Parlex stockholder who believes that appraisal
rights are available should do the following:
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|
Deliver to Parlex written notice of such stockholders
intent to demand payment for his or her shares of stock before
the vote on the proposal to approve the Merger Agreement is
taken; |
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|
NOT vote in favor of the proposal to approve the Merger
Agreement, if he or she holds shares of Parlex common
stock; and |
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Comply with other procedures as are required by Part 13 of
the MBCA. |
5
A copy of the relevant sections of Part 13 of the MBCA,
including Section 13.02(a)(1), is attached to this Proxy
Statement as Annex C for the information and convenience of
Parlexs stockholders.
U.S. Federal Income Tax Treatment (See page 38)
The Merger will be taxable for U.S. federal income tax
purposes. Generally, this means that you will recognize taxable
gain or loss equal to the difference between the cash you
receive in the Merger and your adjusted tax basis in your
shares. Tax matters can be complicated and the tax consequences
of the Merger to you will depend on the facts of your own
situation. You should consult your own tax advisor to fully
understand the tax consequences of the Merger to you.
Conditions to Closing (See page 48)
The obligations of JE Holdings, Parent, Purchaser and Parlex to
complete the Merger are subject to the satisfaction or waiver of
certain specified conditions.
No-Shop Provisions (See page 46)
Parlex has agreed not to solicit, initiate or knowingly
encourage a business combination or other similar transaction
with another party while the Merger is pending, and not to enter
into discussions or negotiations with another party regarding a
business combination or similar transaction while the Merger is
pending, except under certain specified circumstances in
connection with an unsolicited bona fide acquisition proposal
from a third party that is reasonably likely to lead to a
superior proposal to the Merger as set forth in the Merger
Agreement.
Termination (See page 49)
JE Holdings and Parlex may terminate the Merger Agreement and
abandon the Merger under certain specified circumstances. Parlex
may not terminate the Merger Agreement in favor of a superior
proposal to the Merger once the Merger has received Stockholder
Approval.
Termination Fees (See page 50)
The Merger Agreement contains certain termination rights and
provides that, upon the termination of the Merger Agreement
under specified circumstances, Parlex may be required to pay
JE Holdings a termination fee equal to $2,000,000.
Additionally, if JE Holdings or Parlex terminates the Merger
Agreement because of a failure to obtain Stockholder Approval,
Parlex will be required to pay JE Holdings up to $400,000
for documented and out-of-pocket fees and expenses incurred by
JE Holdings in connection with the Merger. Further, if
Parlex, within 12 months after such termination, enters
into an agreement for or consummates an Acquisition Proposal
which was disclosed prior to the stockholders meeting at which
Stockholder Approval for the Merger is not obtained, Parlex must
pay JE Holdings the termination fee of $2,000,000, minus the
$400,000 for expenses, to the extent the $400,000 expense amount
has previously been paid to JE Holdings.
Governmental Regulatory Filings Required in Connection with
the Merger (See page 39)
The Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended (the HSR Act), does not require Parlex or
JE Holdings to notify or furnish information to the Antitrust
Division of the United States Department of Justice or the
Federal Trade Commission or impose a waiting period prior to
closing the Merger. The Merger also does not give rise to any
filings required by the European Commission or antitrust filings
or approvals in any other jurisdiction. Under the Listing Rules
of the Stock Exchange of Hong Kong Ltd. (HKSE),
JE Holdings is required to disclose the Merger as a
disclosable transaction by notifying the HKSE,
submitting a draft announcement to the HKSE as soon as possible
following the signing of the Merger Agreement, issuing the
announcement by publication as a newspaper advertisement in one
English and one Chinese newspaper, once the draft has received
clearance by the HKSE, and
6
sending its shareholders a circular containing further
information regarding the Merger as soon as practicable
following publication of the newspaper announcement.
The Special Meeting of Parlex Stockholders (See
page 16)
The Special Meeting will be held to consider and vote upon the
proposal to approve the Merger Agreement and the proposal to
grant the persons named as proxies discretionary authority to
adjourn the Special Meeting, if necessary, and to satisfy the
conditions to complete the Merger, including for the purpose of
soliciting proxies to vote in favor of approval of the Merger
Agreement, at Parlexs principal offices, One Parlex Place,
Methuen, Massachusetts 01844, at
[ ]
[a.m.], local time, on
[ ],
[ ,
2005].
You are entitled to vote at the Special Meeting if you owned
shares of Parlex common stock on
[ ],
the record date of share ownership for the Special Meeting (the
Record Date). You will have one vote at the Special
Meeting for each share of Parlex common stock you owned on the
Record Date. There are
[ ] shares
of Parlex common stock entitled to be voted at the Special
Meeting. You will not have any vote at the Special Meeting for
your shares of Parlex preferred stock.
To vote, you can (1) complete, sign, date and return the
enclosed proxy card, (2) vote by telephone or on the
internet or (3) attend the Special Meeting and vote in
person. If your shares are held in street name by
your broker, bank or other nominee, you should instruct your
broker to vote your shares by following the instructions
provided by your broker. Your broker will not vote your shares
without instruction from you. Remember, if you fail to instruct
your broker to vote your shares, it has the same effect as a
vote against the approval of the Merger Agreement
and against the approval of the meeting adjournment
proposal.
Exchange of Certificates (See page 41)
Promptly after the Effective Time, Parlex stockholders will be
mailed a letter of transmittal and instructions specifying the
procedures to be followed to surrender your shares of Parlex
common stock in exchange for Common Share Merger Consideration
and your shares of Parlex preferred stock in exchange for
Preferred Share Merger Consideration. Parlex stockholders should
not submit their stock certificates for exchange until they
receive the letter of transmittal and instructions. After Parlex
stockholders surrender their stock certificates along with the
properly executed letter of transmittal, they will receive the
applicable Share Merger Consideration.
Deregistration (See page 38)
If the Merger is completed, Parlex common stock will be delisted
from the Nasdaq National Market and will be deregistered under
the Securities Exchange Act of 1934.
7
QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING AND THE
MERGER
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Q: |
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When and where will the Special Meeting be held? (See
page 16) |
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A: |
|
The Special Meeting will be held on
[ ]
at
[ a.m.],
local time, at Parlexs principal offices, One Parlex
Place, Methuen, Massachusetts 01844. |
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Q: |
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What do I need to do now? (See page 16) |
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A: |
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Parlex urges you to carefully read and consider the information
contained in this Proxy Statement. In addition, you should
complete, sign and date the attached proxy card and return it to
Parlex Corporation, Proxy Services,
c/o [ ]
in the enclosed postage-prepaid return envelope as soon as
possible or vote on the internet or by telephone as instructed
below so that your shares of Parlex common stock may be
represented at the Special Meeting. |
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Q: |
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On what am I being asked to vote? (See page 16) |
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A: |
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You are being asked to consider and vote upon proposals: |
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to approve the Merger Agreement; and |
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to adjourn the Special Meeting, if necessary or
appropriate, to permit further solicitation of proxies if there
are not sufficient votes at the time of the Special Meeting to
approve the Merger Agreement (we refer to this proposal in the
Proxy Statement as the meeting adjournment proposal). |
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Q: |
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How do I vote? (See page 16) |
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A: |
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You may vote in one of four ways. First, you may vote by mail by
signing, dating and mailing your proxy card to the address
listed on the proxy card. Second, you may vote in person at the
Special Meeting. Third, you may vote on the internet by
completing the electronic voting instruction form found at
[www.proxyvote.com]. You will need your proxy card in hand when
voting on the internet. Fourth and finally, you may vote by
telephone by using a touch-tone telephone and calling
1-800- - . |
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Q: |
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What happens if I do not return a proxy card? (See
page 17) |
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A: |
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The failure to return your proxy card or to vote by telephone or
on the internet, an abstention from voting or a broker non-vote
will all have the same effect as a vote against the proposal to
approve the Merger Agreement and against the meeting adjournment
proposal. |
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Q: |
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May I vote in person? (See page 16) |
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A: |
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Yes. You may vote in person at the meeting, rather than signing
and returning your proxy card, if you own shares in your own
name. However, Parlex encourages you to return your signed proxy
card to ensure that your shares are voted. You may also vote in
person at the Special Meeting if your shares are held in
street name through a broker or bank provided that
you bring a legal proxy from your broker or bank and present it
at the Special Meeting. You may also be asked to present photo
identification for admittance. |
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Q: |
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May I change my vote after I have voted by proxy? (See
page 17) |
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A: |
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Yes. A stockholder giving a proxy has the power to revoke it at
any time prior to its exercise by: |
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Delivering a written notice of revocation bearing a
later date than the proxy to the Clerk of Parlex, at or before
the taking of the vote at the Special Meeting; |
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Delivering a duly executed proxy relating to the
same shares and bearing a later date to the Clerk of Parlex
before the taking of the vote at the Special Meeting; |
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Voting by telephone after previously voting or
submitting a proxy card; |
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Voting on the internet after previously voting or
submitting a proxy card; or |
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Attending the Special Meeting and voting such shares
in person. Stockholders should note, however, that merely
attending the Special Meeting in person without casting a vote
at the meeting would not alone constitute a revocation of a
proxy. |
8
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If you hold your shares in street name and have
instructed your broker to vote your shares, you must follow the
directions provided by your broker to change these instructions. |
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Q: |
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If my shares are held in street name by my
broker, will my broker vote my shares for me? (See
page 17) |
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A: |
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Your broker will not vote your shares without instructions from
you. You should instruct your broker to vote your shares,
following the procedure provided by your broker. Without
instructions, your shares will not be voted, which will have the
same effect as voting against approval of the Merger Agreement
and against the merger adjournment proposal. |
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Q: |
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Who may vote? (See page 16) |
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A: |
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Those persons named on our records as owners of Parlex common
stock at the close of business on
[ ],
are entitled to one vote per share.
[ ]
is considered the Record Date. |
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Q: |
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What vote of the stockholders is required to approve the
Merger Agreement? (See page 17) |
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A: |
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To approve the Merger Agreement, stockholders of record as of
the Record Date holding at least two-thirds of the outstanding
shares of Parlex common stock must vote FOR the approval of
the Merger Agreement. There are
[ ] shares
of Parlex common stock entitled to be voted at the Special
Meeting. |
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Q: |
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What vote of the stockholders is required to approve the
meeting adjournment process? (See page 17) |
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A: |
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Approval of the meeting adjournment proposal, if necessary or
appropriate, requires the affirmative vote of stockholders
holding a majority of the shares of Parlex common stock present
and entitled to vote at the Special Meeting. |
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Q: |
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Does Parlexs board of directors recommend approval of
the Merger Agreement? (See page 17) |
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A: |
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Yes. Parlexs board of directors unanimously recommends
that its stockholders approve the Merger Agreement.
Parlexs board of directors considered many factors in
deciding to recommend the approval of the Merger Agreement.
These factors are described below in this Proxy Statement. |
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Q: |
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Is the Merger contingent upon approval at the Special Meeting
of any of the proposals to be voted upon at the Special Meeting
other than the proposal to approve the Merger Agreement? |
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A: |
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No. |
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Q: |
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What will happen to Parlex as a result of the Merger? |
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A: |
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If the Merger is completed, Parlex will become an indirect
wholly-owned subsidiary of JE Holdings. |
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Q: |
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What will happen to my shares of Parlex common stock after
the Merger? (See page 41) |
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A: |
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Upon completion of the Merger, each outstanding share of Parlex
common stock will automatically be canceled and will be
converted into the right to receive $6.75 in cash, without
interest, less any applicable withholding taxes. |
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Q: |
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What will happen to my shares of Parlex preferred stock after
the Merger? (See page 41) |
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A: |
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Upon completion of the Merger, each outstanding share of
Series A Convertible Preferred Stock will be converted into
the right to receive $80.00 in cash (which is the liquidation
value of each share of preferred stock), plus any accrued and
unpaid dividends as of the date of the Merger, without interest
or additional dividends thereon, less any required withholding
taxes. |
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Q: |
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Will I own any shares of Parlex stock after the Merger or
will I receive any shares or American Depositary Receipts of JE
Holdings stock as a result of the Merger? (See page 41) |
9
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A: |
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No. You will be paid cash for your shares of Parlex stock.
Parlex stockholders will not have the option to receive JE
Holdings stock or American Depositary Receipts in exchange for
their shares instead of cash. |
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Q: |
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What happens to Parlex stock options in the Merger? (See
page 42) |
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A: |
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Holders of Parlex stock options will be entitled to receive a
cash payment equal to the excess, if any, of $6.75 over the
exercise price of such stock option multiplied by the number of
shares of Parlex common stock subject to such stock option,
without interest and subject to any applicable withholding
taxes, whether or not such stock options are then vested or
exercisable. JE Holdings will not assume any stock options in
the Merger. |
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Q: |
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What happens to Parlex convertible subordinated notes in the
Merger? (See page 34) |
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A: |
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Each Holder of Parlex convertible subordinated notes will be
entitled to require that Parlex redeem its convertible
subordinated notes, in whole but not in part, for an amount
equal to 120% of the outstanding principal plus any accrued and
unpaid interest as of the date of the Merger. Any convertible
subordinated notes that are not redeemed by its holders prior to
the Merger will remain outstanding after the Merger. |
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Q: |
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What happens to warrants to purchase Parlex common stock in
the Merger? (See page 34) |
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A: |
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In accordance with the terms of the Merger Agreement, Parlex is
using its reasonable best efforts to negotiate settlements with
individual holders of Parlex warrants, on terms that are
specified or approved by JE Holdings, pursuant to which each
outstanding warrant will be canceled immediately before the
Merger becomes effective. |
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Q: |
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What happens if I sell my shares of Parlex common stock or
preferred stock before the Special Meeting? |
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A: |
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The record date for the Special Meeting is earlier than the
expected completion date of the Merger. If you held your shares
of Parlex common stock on the record date but have transferred
those shares after the record date and before the Merger, you
may retain your right to vote at the Special Meeting but not the
right to receive the Common Share Merger Consideration. This
right to receive the Common Share Merger Consideration will pass
to the person to whom you transferred your shares of Parlex
common stock. Similarly, if you held your shares of Parlex
preferred stock on the record date but have transferred those
shares after the record date and before the Merger, the right to
receive the Preferred Share Merger Consideration will pass to
the person to whom you transferred your shares of Parlex
preferred stock. |
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Q: |
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Will the Merger be taxable to me? |
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A: |
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Generally, yes. For U.S. federal income tax purposes,
generally you will recognize a taxable gain or loss as a result
of the Merger measured by the difference, if any, between Common
Share Merger Consideration or Preferred Share Merger
Consideration and your adjusted tax basis for your common or
preferred shares. This gain or loss will be long-term capital
gain or loss if you have held your Parlex shares for more than
one year prior to the Effective Time. You should read The
Merger U.S. Federal Income Tax Treatment
beginning on page 38 for a more complete discussion of the
federal income tax consequences of the Merger. |
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Q: |
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Am I entitled to dissenters or appraisal rights? (See
page 37) |
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A: |
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Parlex has concluded that you are not entitled to appraisal
rights in connection with the Merger pursuant to
Section 13.02(a)(1) of the MBCA. If you believe you are
entitled to appraisal rights, you should do the following: |
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Deliver to Parlex written notice of your intent to
demand payment for your shares of Parlex common stock or
preferred stock before the vote on the proposal to approve the
Merger Agreement is taken; |
10
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NOT vote in favor of the proposal to approve the
Merger Agreement, if you hold shares of Parlex common
stock; and |
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Comply with other procedures as are required by
Part 13 of the MBCA. |
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A copy of the relevant sections of Part 13 of the MBCA,
including Section 13.02(a)(1), is attached to this Proxy
Statement as Annex C for your information and convenience. |
|
Q: |
|
Should I send in my stock certificates now? (See
page 41) |
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A: |
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No. After the Merger is completed, you will receive written
instructions for exchanging your shares of Parlex stock for the
applicable Merger Consideration. |
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Q: |
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When do you expect the Merger to be completed? |
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A: |
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Parlex is working toward completing the Merger as quickly as
possible. In addition to obtaining Stockholder Approval, Parlex
must obtain applicable regulatory approvals and satisfy all
other closing conditions. However, Parlex cannot assure you that
all conditions to the Merger will be satisfied or, if satisfied,
the date by which they will be satisfied. It is currently
expected that the Merger will close in November or December of
2005. |
|
Q: |
|
When will I receive the cash consideration for my shares of
Parlex stock? (See page 41) |
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A: |
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After the Merger is completed, you will receive written
instructions, including a letter of transmittal, that explain
how to exchange your shares for the cash consideration paid in
the Merger. When you properly return and complete the required
documentation described in the written instructions, you will
promptly receive from the paying agent a payment of the cash
consideration for your shares. |
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Q: |
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What are the consequences of the Merger to Parlexs
executive officers and board of directors: |
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A: |
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Like all other stockholders, upon completion of the Merger,
Parlexs executive officers and members of its board of
directors will be entitled to receive $6.75 in cash, without
interest, for each of their shares of Parlex common stock. As
with options to acquire shares of Parlex common stock held by
other option holders, options to acquire shares of Parlex common
stock held by its executive officers and directors and
outstanding immediately prior to the Effective Time will become
fully vested and exercisable (whether or not then vested or
subject to any performance condition that has not been
satisfied). Any unexercised options will be canceled as of the
Effective Time. The holders of such options will be entitled to
receive a cash payment equal to $6.75 times the number of shares
of common stock subject to the options, less the aggregate
exercise price of the options and less applicable taxes required
to be withheld. |
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In addition, as discussed in more detail under The
Merger Interests of Certain Persons in the
Merger beginning on page 34, change of control
provisions in the employment agreements with certain of
Parlexs executive officers will become effective at the
time of the Merger. |
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In addition, the Merger Agreement provides for indemnification
arrangements for each of our current and former directors and
officers that will continue for six years following the
Effective Time as well as insurance coverage covering his or her
service to the Company as a director or officer. |
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Q: |
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Whom should I contact if I have additional questions? |
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A: |
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For more information, you should contact Jonathan R.
Kosheff, Parlex Corporation, One Parlex Place, Methuen,
Massachusetts 01844, (978) 685-4341 or Michael Palamone,
Georgeson Shareholder Services, 219 Murray Hill Parkway,
East Rutherford, New Jersey 07073, (201) 896-5641. |
11
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
The statements, analyses and other information contained, or
incorporated by reference, in this Proxy Statement relating to
the proposed Merger, the sale of the multilayer division, the
future development of JE Holdings and Parlexs
businesses, and the contingencies and uncertainties to which JE
Holdings and Parlex may be subject, as well as other statements
including anticipate, believe,
plan, estimate, expect,
intend, will, should,
may and other similar expressions are
forward-looking statements under the Private
Securities Litigation Reform Act of 1995. Such statements are
made based upon managements current expectations and
beliefs concerning future events and their potential effects on
Parlex and other future events, and constitute forward-looking
statements made pursuant to the safe harbor provisions of the
Private Securities Litigation Reform Act of 1995. These
statements involve risks and uncertainties that could cause
actual results to differ materially, including risks relating to
receiving the approval of two-thirds of Parlexs
outstanding shares of common stock, receiving required
regulatory approvals, satisfying other conditions to the closing
of the Merger and other matters.
Actual results could differ materially from those projected in
the forward-looking statements as a result of certain risk
factors, including, but not limited to: (i) further adverse
changes in general economic conditions; (ii) further delays
or reductions in the spending of the industry sectors Parlex
serves; (iii) Parlexs ability to effectively manage
operating costs and increase operating efficiencies;
(iv) further declines in revenues; (v) insufficient,
excess or obsolete inventory; (vi) the burden on
Parlexs business of complying with the restrictive
covenants in its senior credit agreement and to meet its
substantial debt service obligations; (vii) competitive
factors, including, but not limited to, pricing pressures, in
the flexible interconnect markets; (viii) component quality
and availability; (ix) rapid technological and market
change and the transition to new products; (x) the relative
and varying rates of product price and component cost declines;
(xi) the effects of war or acts of terrorism, including the
effect on the economy generally, on particular industry
segments, on transportation and communication systems and on our
ability to manage logistics in such an environment, including
receipt of components and distribution of products;
(xii) the ability to attract and retain highly qualified
employees; (xiii) the uneven pattern of quarterly sales;
(xiv) fluctuating currency exchange rates; (xv) risks
associated with strategic investments and acquisitions;
(xvi) Parlexs ability to execute on its plans;
(xvii) the effect of the proposed merger and the sale of
the multilayer division; (xviii) the effect of regulatory
conditions, if any, imposed by regulatory agencies;
(xix) diversion of management time on merger and other
transaction related issues; (xx) other one-time events and
other important factors disclosed previously and from time to
time in its filings with the U.S. Securities and Exchange
Commission.
In addition, set forth below are various risks relating to the
proposed Merger. The following is not intended to be an
exhaustive list of risks relating to the Merger and should be
read in conjunction with the other information in this Proxy
Statement.
Failure to complete the Merger could negatively impact the
market price of Parlex common stock.
If the Merger is not completed for any reason, Parlex will be
subject to a number of material risks, including:
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The market price of Parlexs common stock may decline to
the extent that the current market price of its shares reflects
a market assumption that the Merger will be completed; |
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Costs relating to the Merger, such as legal, accounting and
financial advisory fees, and, in specified circumstances,
termination and expense reimbursement fees, must be paid even if
the Merger is not completed and will be expensed in the fiscal
period in which terminations occurs; and |
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The diversion of managements attention from the day-to-day
business of Parlex and the potential disruption to its employees
and its relationships with suppliers during the period before
the completion of the Merger, may make it difficult for Parlex
to regain its financial and market positions if the Merger does
not occur. |
12
If the Merger is not approved by Parlexs shareholders at
the Special Meeting, Parlex, JE Holdings, Parent and Purchaser
will not be permitted under Massachusetts law to complete the
Merger and each of Parlex, JE Holdings, Purchaser and Parent
will have the right to terminate the Merger Agreement. Following
such termination, depending on the circumstances, Parlex might
be required to reimburse certain expenses of JE Holdings. See
Terms of the Merger Agreement Expenses.
Further, if the Merger is terminated and Parlexs board of
directors seeks another merger or business combination,
stockholders cannot be certain that Parlex will be able to find
a party willing to pay an equivalent or better price than the
price to be paid in the proposed Merger.
Until the Merger is completed or the Merger Agreement is
terminated, Parlex may not be able to enter into a merger or
business combination with another party at a favorable price
because of restrictions in the Merger Agreement.
Unless or until the Merger Agreement is terminated, subject to
specified exceptions, Parlex is restricted from entering into or
soliciting, initiating, proposing, encouraging or facilitating
any inquiries or proposals that may lead to a proposal or offer
for an alternative transaction with any person or entity other
than JE Holdings. As a result of these restrictions, Parlex may
not be able to enter into an alternative transaction at a more
favorable price, if at all, without incurring potentially
significant liability to JE Holdings. See Terms of
the Merger Agreement No-Shop Provisions and
Termination Fees.
Uncertainties associated with the Merger may cause Parlex to
lose key personnel.
Our current and prospective employees may be uncertain about
their future roles and relationship with Parlex following the
completion of the Merger. This uncertainty may adversely affect
Parlexs ability to attract and retain key management and
marketing and technical personnel.
Parlex does not undertake, and specifically disclaims, any
obligation to update or revise any forward-looking information,
whether as a result of new information, future developments or
otherwise.
13
PARTIES INVOLVED IN THE MERGER
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Parlex Corporation |
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One Parlex Place |
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Methuen, Massachusetts 01844 |
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(978) 685-4341 |
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www.parlex.com |
Parlex Corporation is a world leader in the design and
manufacture of flexible, interconnect products. Parlex
Corporation is referred to herein, together with its
subsidiaries, as Parlex, the Company,
we, our and us unless
specified otherwise. Parlex produces custom flexible,
interconnect products utilizing proprietary processes and
patented technologies, which are designed to satisfy the unique
requirements of a wide range of customers. Parlexs
revenues are derived principally from providing products,
including flexible circuits, laminated cable, polymer thick film
circuit, flexible interconnect hybrid circuits, and flexible
interconnect assemblies, to the automotive, telecommunications,
computer, medical, home appliance, electronic identification and
diversified electronics markets and, until recently, the
military market. Its manufacturing facilities are located in the
United States, China, Mexico and the United Kingdom.
Parlexs common stock is listed on the Nasdaq National
Market under the symbol PRLX. Parlex is incorporated
under the laws of The Commonwealth of Massachusetts. Information
contained on Parlexs website does not constitute a part of
this Proxy Statement.
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Johnson Electric Holdings Limited |
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Johnson Building |
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6-22 Dai Shun Street |
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Tai Po Industrial Estate, Tai Po |
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New Territories, Hong Kong |
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(852) 2663 6688 |
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www.johnsonelectric.com |
Johnson Electric Holdings Limited is the world leader in
manufacturing micro-motors for automotive and commercial
markets. Johnson Electric Holdings Limited is referred to
herein, together with its subsidiaries, as JE
Holdings. Established in 1959, JE Holdings has shipped
over five billion micro-motors to more than thirty countries in
over one hundred different micro-motor applications and has the
capacity to produce over three million motors a day (one billion
annually). JE Holdings is headquartered in Hong Kong and employs
over 33,000 people in 15 countries worldwide. JE Holdings is
divided into three business groups, the Commercial Motors Group,
the Automotive Motors Group and the Components &
Services Group. JE Holdings has been listed on the Hong Kong
Stock Exchange since 1984, and is a constituent stock of the
Hang Seng Index. It is also a constituent stock of the Morgan
Stanley Capital International Index and has a sponsored American
Depositary Receipt Program in the United States through JPMorgan
Chase Bank. The American Depositary Receipts trade on the
over-the-counter market under the symbol JELCY.
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J.E.C. Electronics Sub One, Inc. |
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c/o Johnson Electric Capital Limited |
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Johnson Building, 6-22 Dai Shun Street |
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Tai Po Industrial Estate, New Territories |
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Hong Kong |
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(852) 2663 6688 |
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www.johnsonelectric.com |
J.E.C. Electronics Sub One, Inc. is an indirect wholly-owned
subsidiary of JE Holdings and has not engaged in any business
activity other than in connection with the Merger. J.E.C.
Electronics Sub One, Inc. is referred to herein as
Parent.
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J.E.C. Electronics Sub Two, Inc. |
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c/o Johnson Electric Capital Limited |
14
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Johnson Building, 6-22 Dai Shun Street |
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Tai Po Industrial Estate, New Territories |
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Hong Kong |
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(852) 2663 6688 |
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www.johnsonelectric.com |
J.E.C. Electronics Sub Two, Inc. is wholly-owned by Parent and
has not engaged in any business activity other than in
connection with the Merger. J.E.C. Electronics Sub Two, Inc. is
referred to herein as Purchaser.
15
THE SPECIAL MEETING
General
The enclosed proxy is solicited on behalf of our board of
directors for use at a special meeting of shareholders to be
held on
[ ],
2005 at
[ ] a.m.,
local time, (the Special Meeting), or at any
adjournments or postponements of the Special Meeting. The
Special Meeting will be held at Parlexs headquarters
located at One Parlex Place, Methuen, Massachusetts 01844.
Parlex intends to mail this Proxy Statement and the accompanying
proxy card on or about
[ ],
2005 to all stockholders entitled to vote at the Special Meeting.
At the special meeting, stockholders will be asked to consider
and vote upon proposals to:
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approve the Merger Agreement; and |
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adjourn the Special Meeting, if necessary or appropriate, to
permit further solicitation of proxies if there are not
sufficient votes at the time of the special meeting to approve
the merger agreement (we refer to this proposal in this proxy
statement as the meeting adjournment proposal). |
The proxy statement, dated
[ ],
2005, is first being mailed to shareholders on or about
[ ],
2005.
Who May Vote at the Special Meeting
Only holders of record of Parlex common stock as of the close of
business on
[ ]
(the Record Date) are entitled to notice of and to
vote at the Special Meeting and on any adjournments thereof. As
of the close of business on the Record Date, the outstanding
stock of Parlex entitled to vote consisted of
[ ] shares
of common stock. The holders of the outstanding shares of Parlex
common stock are entitled to one vote per share with respect to
each matter submitted to stockholders at the Special Meeting.
The holders of the outstanding shares of Parlex preferred stock
are not entitled to vote with respect to the matters submitted
to stockholders at the Special Meeting.
How to Vote
Holders of Parlex common stock may vote in person or by proxy.
Execution of a proxy will not affect a stockholders right
to attend the meeting and vote in person. All shares represented
by valid proxies received by the Clerk of Parlex prior to the
meeting will be voted as specified in the proxy. If no
specification is made and if discretionary authority is
conferred by the stockholder, the shares will be voted
FOR each of the proposals. Shares of Parlex common
stock represented at the Special Meeting but not voted,
including shares of Parlex common stock for which proxies have
been received but for which stockholders have abstained, will be
treated as present at the Special Meeting for purposes of
determining the presence or absence of a quorum for the
transaction of all business.
Holders of Parlex common stock are requested to complete, date
and sign the enclosed proxy card and promptly return it in the
accompanying postage-paid envelope. Parlex stockholders may vote
in person at the Special Meeting by delivering the completed
proxy card at the meeting or by using written ballots that will
be available to any Parlex stockholder who desires to vote in
person at the Special Meeting. Parlex stockholders may also vote
on the internet by completing the electronic voting instruction
form found at [www.proxyvote.com] or by telephone using a
touch-tone telephone and calling
1-800- - .
Parlex stockholders who are beneficial owners of shares held in
street name by a broker, trustee, bank or other
nominee holder on behalf of such stockholder may vote in person
at the meeting by obtaining a proxy from the nominee holding the
Parlex shares. In addition, such Parlex stockholders may vote by
proxy by completing and signing a voting instruction card
provided to them by the nominee holding the Parlex shares.
16
How to Change Your Vote
A holder of Parlex common stock giving a proxy has the power to
revoke it at any time prior to its exercise by:
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Delivering a written notice of revocation bearing a later date
than the proxy to the Clerk of Parlex at or before the taking of
the vote at the Special Meeting; |
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Delivering a duly executed proxy relating to the same shares and
bearing a later date to the Clerk of Parlex before the taking of
the vote at the Special Meeting; |
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Voting by telephone after previously voting or submitting a
proxy card; |
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Voting on the internet after previously voting or submitting a
proxy card; or |
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Attending the Special Meeting and voting such shares in person.
Stockholders should note, however, that merely attending the
Special Meeting in person without casting a vote at the meeting
will not alone constitute a revocation of a proxy. |
If a stockholder holds shares in street name and has
instructed its broker to vote such shares, the stockholder must
follow the directions provided by its broker to change these
instructions.
Quorum and Vote Required
The presence, in person or by properly executed proxy, of the
holders of at least a majority of the issued and outstanding
shares of Parlex common stock entitled to vote at the Special
Meeting will constitute a quorum. If a quorum is not present, it
is expected that the meeting will be adjourned or postponed to
enable Parlex to solicit additional proxies. If a new record
date is set for the adjourned meeting, then a new quorum will
have to be established. Approval of the Merger Agreement
requires the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Parlex common stock on
the Record Date. Approval of the Merger Agreement does not
require the vote of the holders of Parlex preferred stock. The
proposal to grant the persons named as proxies the discretionary
authority to vote to adjourn the Special Meeting, if necessary,
and to satisfy the conditions to completing the Merger,
including for the purpose of soliciting proxies to vote in favor
of approval of the Merger Agreement, requires the approval of
the holders of a majority of the shares of Parlex common stock
present, in person or by proxy, and entitled to vote at the
Special Meeting.
Votes cast by proxy or in person at the Special Meeting will be
tabulated by the election inspectors appointed for the meeting
and will determine whether or not a quorum is present.
The proposals to be considered at the Special Meeting are of
great importance to Parlex. Accordingly, you are urged to read
and carefully consider the information presented in this Proxy
Statement and to complete, date, sign and promptly return the
enclosed proxy in the enclosed postage-paid envelope.
The Parlex board of directors recommends that you vote
FOR the approval of the Merger Agreement and
the meeting adjournment proposal.
Abstentions and Broker Non-Votes
Only shares affirmatively voted for the approval of the Merger
Agreement, including properly executed proxies that do not
contain voting instructions, will be counted as voting for that
proposal. If you abstain from voting, it will have the same
effect as a vote against the approval of the Merger Agreement
and as a vote against the proposal to grant authority to vote to
adjourn the Special Meeting. Brokers who hold shares in
street name for customers do not have the authority
to vote on the approval of the Merger Agreement or the meeting
adjournment proposal unless they have received instructions from
beneficial owners. As a result, absent
17
specific instructions from the beneficial owner of such shares,
brokers are not empowered to vote those shares, referred to
generally as broker non-votes. Broker non-votes will
be treated as shares that are present and entitled to vote at
the Special Meeting for purposes of determining whether a quorum
exists and will have the same effect as votes
against the approval of the Merger Agreement and the
adjournment of the Special Meeting.
Other Meeting Matters and Adjournment or Postponement
The Parlex board of directors does not know of any matters other
than those described in the notice of the Special Meeting that
are to come before the Special Meeting. If any other matters are
properly brought before the Special Meeting, including, among
other things, a motion to adjourn or postpone the Special
Meeting to another time and/or place for the purpose of
soliciting additional proxies in favor of the proposal to
approve the Merger Agreement or to permit the dissemination of
information regarding material developments relating to the
proposal to approve the Merger Agreement or otherwise germane to
the Special Meeting, one or more persons named in the Parlex
form of proxy will vote the shares represented by such proxy
upon such matter as determined in their discretion. If it is
necessary to adjourn the Special Meeting, no notice of the time
and place of the adjourned meeting is required to be given to
Parlex stockholders other than the announcement of such time and
place at the Special Meeting. At any subsequent reconvening of
the Special Meeting, all proxies will be voted in the same
manner as such proxies would have been voted at the original
convening of the meeting (except for any proxies which
theretofore have been effectively revoked or withdrawn). The
affirmative vote of a majority of the shares of common stock
entitled to vote present, in person or by proxy, and voting at
the Special Meeting is required to approve such adjournment.
Solicitation of Proxies
The cost of soliciting proxies will be borne by Parlex. In
addition to soliciting stockholders by mail, certain of
Parlexs directors, officers and employees, without
additional remuneration, may solicit proxies in person or by
telephone or other means of electronic communication. Parlex
will not pay these individuals for their solicitation activity
but will reimburse them for their reasonable out-of-pocket
expenses. Brokers and other custodians, nominees and fiduciaries
will be requested to forward proxy-soliciting material to the
owners of stock held in their names, and Parlex will reimburse
such brokers and other custodians, nominees and fiduciaries for
their reasonable out-of-pocket costs. Solicitation by directors,
officers and employees of Parlex may also be made of some
stockholders in person or by mail, telephone or other means of
electronic communication following the original solicitation.
Parlex has retained an independent proxy solicitation firm,
Georgeson Shareholder Services (Georgeson), to
assist in soliciting proxies. Parlex has agreed to pay
[ ]
fees for proxy solicitation services in the amount of
$[ ]
in fixed fees plus additional fees based on the number of
soliciting calls made to Parlex stockholders and the number of
votes received as a result of such calls, plus its expenses
incurred in performing such services.
Appraisal Rights
Parlex has concluded that holders of Parlex common stock and
preferred stock are not entitled to appraisal rights in
connection with the Merger pursuant to Section 13.02(a)(1)
of the MBCA. Any Parlex stockholder that believes it is entitled
to appraisal rights should do the following:
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Deliver to Parlex written notice of such stockholders
intent to demand payment for his or her shares of Parlex stock
before the vote on the proposal to approve the Merger Agreement
is taken; |
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NOT vote in favor of the proposal to approve the Merger
Agreement, if such stockholder holds shares of Parlex common
stock; and |
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Comply with other procedures as are required by Part 13 of
the MBCA. |
18
A copy of the relevant sections of Part 13 of the MBCA,
including Section 13.02(a)(1), is attached to this Proxy
Statement as Annex C for the information and convenience of
Parlexs stockholders.
Delivery of this Proxy Statement to Multiple Stockholders
with the Same Address
The SEC has adopted rules that permit companies and
intermediaries (for example, brokers) to satisfy the delivery
requirements for proxy statements with respect to two or more
stockholders sharing the same address if Parlex believes the
stockholders are members of the same family by delivering a
single proxy statement addressed to those stockholders. Each
stockholder will continue to receive a separate proxy card or
voting instruction card. This process, which is commonly
referred to as householding, potentially means extra
convenience for stockholders and cost savings for companies by
reducing the volume of duplicate information.
A number of brokers with account holders who are Parlex
stockholders will be householding Parlexs
proxy materials. A single proxy statement will be delivered to
multiple stockholders sharing an address unless contrary
instructions have been received from the affected stockholders.
Once you have received notice from your broker or Parlex that
they will be householding communications to your
address, householding will continue until you are
notified otherwise or until you revoke your consent. If your
household received a single proxy statement, but you would
prefer to receive your own copy, please notify your broker and
direct your written request to Parlex Corporation, Attention:
Office of Investor Relations, One Parlex Place, Methuen, MA
01844, or contact Parlexs Office of Investor Relations at
(978) 685-4341. If your household received multiple proxy
statements, but you would like to receive one set of
Parlexs proxy materials in the future:
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If your Parlex shares are registered in your own name, please
contact Parlexs transfer agent,
[ ],
by phone at
[ ],
or by mail to
[ ]; or |
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If a broker or other nominee holds your Parlex shares, please
contact your broker and Parlex Corporation, Office of Investor
Relations, and inform them of your request. Be sure to include
your name, the name of your brokerage firm and your account
number. |
19
THE MERGER
This section describes material aspects of the Merger, including
the Merger Agreement. Although Parlex believes that the
description covers the material terms of the Merger and the
Merger Agreement, this summary may not contain all of the
information that is important to you. You should carefully read
this entire document and the other documents referred to in this
Proxy Statement for a more complete understanding of the Merger
and the Merger Agreement.
Parlex stockholders are being asked to consider and act upon a
proposal to approve the Merger Agreement. The Merger Agreement
provides for the acquisition of all the outstanding shares of
common stock of Parlex for $6.75 in cash, per share of common
stock, without interest, less any required withholding taxes
(the Common Share Merger Consideration) and all of
the outstanding shares of preferred stock for $80.00 in cash,
per share of preferred stock (which is the liquidation value of
each share of preferred stock), plus any accrued and unpaid
dividends as of the date of the Merger, without interest or
additional dividends thereon, less any required withholding
taxes (the Preferred Share Merger Consideration).
The Merger will not be completed unless the Merger Agreement is
approved.
Background of the Proposed Merger
In fiscal 2001, the collapse of the telecom infrastructure
market significantly affected Parlexs business and
prospects. This market represented over 30% of Parlexs
revenues and 70% of the revenues of its multilayer operation.
Our business then entered a sustained period of losses as its
multilayer division was saddled with significant infrastructure
costs and greatly reduced sales. Additionally, Parlexs
North American business was further affected adversely by
increased competition from lower-cost Asian manufacturing.
At a meeting of Parlexs board of directors on
February 24, 2004, management presented a recovery plan for
the multilayer operations and a liquidity plan. It was
anticipated that recovery for the multilayer business would take
several years and that limited liquidity options would constrain
growth in its other operations. Management suggested that more
aggressive strategic alternatives should be explored, including
the potential sale of the business in part or in its entirety.
Management recommended to the board of directors that Parlex
engage investment banking services to assist in the evaluation
of alternatives.
Over the next several months, management met with a number of
investment banking firms and, on May 6, 2004, the board of
directors approved managements recommendation to engage
Needham & Company. The board of directors further
endorsed the recommendation that Needham & Company
advise Parlex on the sale of the entire company, the sale of one
or more business lines or assets and the sale of a minority
interest in Parlexs China operation.
During the period from May 2004 through December 2004,
Parlexs management, with the assistance of
Needham & Company, developed criteria for identifying
public and private companies for a potential strategic
transaction. Management also solicited individual board members
for recommendations on potential merger partners. Throughout
this period, Parlex approached and had meetings with domestic
and international companies and financial sponsors which might
have an interest in a business combination.
Through December 2004, management or Needham & Company
contacted 39 companies about the potential for engaging in
strategic discussions. Management also contacted
57 companies about the sale of selected assets of Parlex.
Parlex held management meetings with 12 companies and 3
entities performed due diligence on its business. On
August 31, 2004, Parlex received a preliminary, non-binding
indication of interest from a public company for an acquisition
of the entire company at a price of $6.10 per share of
common stock. Over the next several months, negotiations took
place between representatives of Parlex and the interested
company over the terms of the indication of interest. On
November 5, 2004, the interested company increased its
offer to $7.00 per share of common stock. On
December 10, 2004, as a result of further negotiations,
Parlex and the interested company agreed upon, but did not sign,
a final form of a letter expressing the interested
companys non-binding indication of interest at a price of
20
$7.50 per share of common stock. The letter granted the
interested company an exclusivity period of approximately
45 days.
On December 13, 2004, Parlex received a non-binding
proposal from JE Holdings to acquire Parlex for an indicative
price of between $8.05 and $8.50 per share of common stock.
This proposal was the first time that JE Holdings had presented
anything in writing concerning a business combination, and
JE Holdings had not performed as extensive a due diligence
investigation as had the interested company. Management
instructed Needham & Company to inquire further into
the substance of the JE Holdings, proposal to determine
whether it was reasonably likely to result in a proposal that
was superior to that made by the interested company.
On December 13, 2004, the Parlex board of directors
received from management and Needham & Company a
detailed update on Parlexs sale discussions. Management
presented more detailed reviews of the proposals of the
interested company and JE Holdings. The interested company had
engaged a financial advisor to assist it in the transaction and
had conducted more extensive due diligence than had JE Holdings.
Needham & Company was not able to determine whether JE
Holdings had engaged financial advisors to assist in the
preparation of its proposal. The board also believed that it
needed a better assessment of JE Holdings level of
interest in acquiring Parlex, and therefore the board instructed
Needham & Company to obtain additional clarification
from JE Holdings management and agreed to reconvene the
following day.
Needham & Company contacted JE Holdings
management and on December 14, 2004, Needham &
Company reported to the board of directors on the limited due
diligence JE Holdings had undertaken. As a result of the
numerous contingencies underlying JE Holdings proposal,
and concerns that JE Holdings offer would likely be
significantly altered following additional due diligence,
management recommended that Parlex pursue a transaction based on
the offer provided by the other company. After being advised by
counsel of their fiduciary duties to shareholders under
applicable law, the board of directors voted to enter into a
non-binding letter of intent regarding the sale of all of
Parlexs outstanding shares to the interested company at a
price of $7.50 per share.
Following the December 14, 2004 board meeting, Parlex
entered into an exclusivity arrangement with the interested
company to engage in due diligence and begin negotiation of a
definitive agreement. On February 1, 2005, the exclusivity
period was extended 15 days. On February 16, 2005,
discussions were terminated, in part due to management changes
at the interested company.
On February 16, 2005, Peter J. Murphy, President and Chief
Executive Officer of Parlex, contacted Paul Tong, Chief
Operating Officer of JE Holdings, to resume discussions
regarding a potential business combination between JE Holdings
and Parlex. At that time, they agreed to a meeting to discuss a
possible transaction.
On February 18, 2005, Mr. Murphy contacted Amphenol
Corporation to discuss the sale of the multilayer division of
Parlex. On March 13, 2005, Mr. Murphy and Jonathan
R. Kosheff, Chief Financial Officer, Principal Accounting
Officer and Treasurer, met with Martin H. Loeffler, Chairman,
President and Chief Executive Officer, Gary Anderson, Senior
Vice President, and Mick Hayden, General Manager of Circuit
Operations of Amphenol Corporation, to discuss the potential
sale of the multilayer division.
On March 7, 2005, representatives from Morgan
Joseph & Co., Inc., financial advisor to JE Holdings,
and Morrison & Foerster LLP, legal advisors to JE
Holdings, commenced their financial, legal and business due
diligence review of Parlex and its businesses.
On March 21 and 22, 2005, Patrick Wang, Chairman and Chief
Executive Officer of JE Holdings, Christopher Hasson, Chief
Executive Officer, and Hui Huang, Executive Director of Johnson
Electric Capital Limited, JE Holdings direct investment
arm, and other JE Holdings representatives, visited
Parlexs facilities in China. Mr. Murphy met there
with JE Holdings to discuss opportunities for a potential merger
between the companies.
21
On March 24, 2005, representatives from Morgan Joseph
visited Parlexs corporate headquarters in Methuen,
Massachusetts to continue financial, legal and business due
diligence review of Parlex and meet with Mr. Kosheff.
On April 6, 2005, JE Holdings submitted a non-binding
proposal to acquire selected assets of Parlex, indicating that
it was willing to pay up to $60 million for such assets
(including the assumption of liabilities). Mr. Murphy
responded in a letter dated April 13, 2005, indicating that
the Parlex board of directors required that JE Holdings make a
proposal to acquire the entire company. In response to that
letter, JE Holdings submitted a non-binding proposal on
April 19, 2005 in which it proposed to acquire the entire
company at a price of up to $6.80 in cash, per share of common
stock. Following further negotiations and discussions between
the parties, on April 25, 2005, JE Holdings submitted a
non-binding proposal expressing its interest in proceeding with
an acquisition of Parlex for up to $7.00 in cash per share of
common stock. The proposed acquisition included several
conditions that would need to occur prior to the closing of the
transaction, including: (i) the divestiture of the
Multilayer Business, (ii) proceeds from the divestiture of
the multilayer division exceeding the amount required to retire
the indebtedness (including relevant lease obligations)
associated with the Methuen, Massachusetts facility, as well as
any one-time charges or other liabilities associated with
closing the facility and (iii) the face value of
Parlexs total funded indebtedness outstanding as of the
closing of the acquisition not to exceed $18.7 million,
including the liquidation preference of the Parlex preferred
stock and the amount due (including the liquidation premium) on
the Parlex convertible subordinated notes. The proposal was
subject to completion of JE Holdings due diligence and
included a 60-day exclusivity period in which to negotiate a
definitive agreement and complete due diligence.
Following receipt of the proposal, Parlexs management met
with its legal and financial advisors to review and discuss the
nonbinding proposal, including the closing conditions. On
April 26, 2005, the Parlex board of directors received from
management and Needham & Company a detailed explanation
of the discussions held to date with JE Holdings. After being
advised by legal counsel of their fiduciary duties under
applicable law, at the meeting, the board accepted JE
Holdings proposal to enter into a 60-day exclusivity
period to negotiate a definitive agreement and complete due
diligence.
Over the next month, representatives of JE Holdings and Parlex
met at the Parlex facilities located in Methuen, Massachusetts;
Cranston, Rhode Island; San Jose, California; the Isle of
Wight, United Kingdom; and China.
On April 12 and 13, 2005, Mr. Murphy and
Mr. Kosheff visited Mr. Anderson and Mr. Hayden
at the Amphenol facility in Sidney, New York. Additional
meetings were held between April 15, 2005 and June 30,
2005.
On June 21, 2005, Mr. Hasson, Ms. Huang, and
representatives from Morgan Joseph met with Mr. Herbert
Pollack, the Chairman of Parlexs board of directors, as
well as Mr. Murphy, Mr. Kosheff and representatives
from Needham & Company to discuss the terms outlined in
the nonbinding proposal dated April 25, 2005. JE Holdings
proposed to revise its offer to $6.00 per share primarily
due to concerns regarding (i) the financial performance of
certain Parlex operations, (ii) international tax issues,
and (iii) additional accounting studies required to
structure the transaction. After subsequent negotiations between
Mr. Murphy and Mr. Hasson, JE Holdings agreed to
revise the proposal to $6.75 per share.
On June 24, 2005, JE Holdings submitted to Parlex a revised
written, nonbinding indication of interest expressing JE
Holdings interest in proceeding with an acquisition of
Parlex at $6.75 in cash per share. The letter contained similar
closing conditions to JE Holdings previous proposal and
contained a request for a 30-day extension of the exclusivity
period.
On June 29, 2005, the Parlex board of directors received a
detailed explanation of the proposed multilayer division
transaction with Amphenol Corporation. During the meeting, the
board of directors also agreed to negotiate the sale of Parlex
to JE Holdings at the revised purchase price of $6.75 per
share and accepted an extension of the exclusivity period with
JE Holdings through July 25, 2005.
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Parlex received a Letter of Intent from Amphenol, dated
June 30, 2005, to purchase selected assets of the
multilayer division, including the book of business, production
equipment and inventory. The transaction was valued at a range
of $4 to $6 million.
Between June 24, 2005 and August 17, 2005, Parlex and
JE Holdings continued the due diligence process and began
drafting a definitive merger agreement reflecting the revised
proposal. Counsel for JE Holdings submitted an initial
draft of the definitive merger agreement on July 14, 2005.
During this period, the parties held a series of negotiating
sessions by telephone and in person. During these negotiations,
participants discussed items including, but not limited to, tax
and environmental issues, the closing conditions, as well as
related business issues.
Between August 1 and August 16, 2005, Mr. Murphy,
Mr. Kosheff, Mr. Hasson, and the legal and financial
advisors to Parlex and JE Holdings continued negotiations and
finalized the merger agreement.
On August 16, 2005, Parlex management reached an agreement
with Amphenol Corporation with respect to the sale of
Parlexs multilayer division.
On August 16, 2005, the Parlex board of directors held a
special telephonic meeting. Prior to the meeting, the directors
were provided with the draft merger agreement, dated
August 15, 2005, between JE Holdings and Parlex; the
Needham & Company fairness opinion presentation; the
Asset Purchase Agreement for Amphenol Corporations
purchase of the Parlex multilayer division; and other materials
relevant to the proposed combination. At the meeting:
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Management of Parlex described the events that had occurred
since the most recent board of directors meeting. |
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Management of Parlex reviewed the asset purchase agreement with
Amphenol Corporation and the potential divestiture of the
multilayer division. |
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|
Management of Parlex described the strategic rationale for the
merger, including a review of Parlexs previous discussions
about potential strategic partners, including the other company
that had made a proposal, and the advantages and potential risks
of a business combination with JE Holdings. |
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Management of Parlex summarized the history of the negotiations
and described the financial terms of the acquisition and the
analysis on which those terms were based. They also discussed
other principal business terms of the proposed transaction. |
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|
Legal counsel to Parlex reviewed legal matters, including the
structure of the proposed transaction, terms of the merger
agreement and the fiduciary duties the directors had to
shareholders under applicable law. |
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Needham & Company opined that the consideration to be
received by the common stockholders of Parlex was fair to the
common stockholders from a financial point of view and provided
the board with the analyses underlying its opinion and, on
August 16, 2005, provided the board of directors with a
written fairness opinion to such effect. |
Following the discussion, the Parlex board of directors
unanimously approved the Merger Agreement and resolved to
recommend that Parlexs common stockholders vote in favor
of the approval of the Merger Agreement.
On August 17, 2005, JE Holdings and Parlex issued press
releases announcing the execution of the Merger Agreement.
On August 24, 2005, Parlex, JE Holdings, Parent and
Purchaser amended the Merger Agreement to specify that the
Termination Date is January 15, 2006.
23
Reasons for the Merger
The Parlex board of directors has unanimously determined, as of
the date of the Merger Agreement, that the Merger Agreement and
the Merger, taken together, are fair to, and in the best
interests of, the stockholders of Parlex. The Parlex board of
directors unanimously recommends that holders of Parlex common
stock vote FOR the proposal to approve the Merger
Agreement and the transactions contemplated thereby (including
the Merger).
In evaluating, adopting and approving the Merger Agreement and
the Merger and recommending that the holders of Parlex common
stock vote to approve the Merger Agreement and the transactions
contemplated thereby (including the Merger), the Parlex board of
directors retained Needham & Company as financial
advisor, consulted with Ropes & Gray LLP, and
considered a number of factors, including the following:
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The business, financial, market and execution risks associated
with remaining independent and successfully implementing
Parlexs business strategies; |
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The difficult liquidity position in which Parlex has operated
over the last several years and the need for seeking additional
capital; |
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The merger consideration is all cash, which provides certainty
of value to Parlex stockholders; |
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The likelihood that the Merger will be consummated, in light of
the experience, reputation and financial capability of JE
Holdings and the absence of any financing condition to JE
Holdings obligation to complete the Merger; |
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The financial analysis of Needham & Company presented
to the Parlex board of directors on August 16, 2005, and
the opinion of Needham & Company delivered to the
Parlex board of directors that, as of August 16, 2005, and
based upon and subject to the various factors, assumptions,
limitations and qualifications set forth in the opinion, the
$6.75 in cash, per share of Parlex common stock to be received
by holders of shares of Parlex common stock pursuant to the
Merger Agreement was fair, from a financial point of view, to
those holders (the full text of the opinion setting forth the
assumptions made, procedures followed, matters considered and
limitations on the review undertaken in connection with the
opinion, is attached as Annex B to this Proxy Statement); |
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Parlex had undertaken an extensive sale process, which is
described above under The Merger Background of
the Proposed Merger on page 20, and was not able to
enter into a definitive agreement with any other company to
acquire Parlex; |
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The premium that the merger consideration of $6.75 per
share represented in comparison to the closing price per share
of the Parlex common stock on June 28, 2005 (the day before
the Parlex board of directors first met to consider JE
Holdings offer of $6.75 per share) ($5.48), on
August 15, 2005 (the last trading day prior to the date the
Parlex board of directors acted on the matter) ($6.48), and the
average share price of the Parlex common stock for the previous
four weeks ($5.98), previous three months ($5.91), previous six
months ($6.09), and previous twelve months ($6.13); |
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The other terms and conditions of the Merger Agreement,
including: |
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The scope of the representations, warranties and covenants being
made by Parlex; |
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The conditions to the consummation of the Merger, including the
requirement that the Merger Agreement be approved by Parlex
stockholders; |
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The ability of the Parlex board of directors, in the exercise of
its fiduciary duties in accordance with the Merger Agreement, to
provide information to, engage in negotiations with, change its
recommendation to stockholders to approve the Merger Agreement,
and potentially enter into a transaction with another party in
connection with any an unsolicited, bona fide alternative |
24
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acquisition proposal that the Parlex board of directors
determines in good faith is reasonably likely to lead to a
superior proposal, subject to specified conditions, including
the condition that, if the Parlex board of directors accepts or
recommends such a superior proposal, Parlex must pay a
$2,000,000 termination fee to JE Holdings; and |
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The Parlex board of directors also considered a number of
potentially countervailing factors in its deliberations
concerning the Merger, including the following: |
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That Parlex will no longer exist as an independent company and
its stockholders will no longer participate in Parlexs
growth or benefit from any future increases in the value of
Parlex or from any synergies that may be created by the Merger; |
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That, under the terms of the Merger Agreement, Parlex cannot
solicit other acquisition proposals and must pay or cause to be
paid to JE Holdings a termination fee of $2,000,000 in cash if
the Merger Agreement is terminated under certain circumstances
specified in the Merger Agreement, including if the Parlex board
of directors exercises its right to terminate the Merger
Agreement and enter into an alternative superior transaction,
which may deter others from proposing an alternative transaction
that may be more advantageous to Parlex stockholders; |
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The ability to consummate the Merger, including the conditions
to the Merger requiring receipt of certain regulatory approvals; |
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That gains from this all-cash transaction will be taxable to
Parlex stockholders for U.S. federal income tax purposes; |
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That if the Merger does not close, Parlexs officers and
other employees will have expended extensive efforts attempting
to complete the transaction and will have experienced
significant distractions from their work during the pendency of
the transaction and Parlex will have incurred substantial
transaction costs in connection with the transaction and such
costs will negatively impact Parlexs operating
results; and |
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That if the holders of at least two-thirds of the outstanding
shares of Parlex common stock do not approve the Merger
(Stockholder Approval), the Merger Agreement may be
terminated and Parlex will be required to pay up to $400,000 to
JE Holdings in connection with such termination for expenses
incurred by JE Holdings in connection with the Merger. |
The Parlex board of directors considered all of the above in
light of Parlexs historical and projected business,
operations, assets, financial condition, operating results and
cash flows and prospects.
The Parlex board of directors also considered the interests of
its directors and executive officers in the transactions
contemplated by the Merger Agreement, which are described below
under The Merger Interests of Certain Persons
in the Merger.
The Parlex board of directors concluded that, on balance, the
potential benefits to Parlex and its stockholders of the
transactions contemplated by the Merger Agreement outweighed the
potential disadvantages and risks associated with those
transactions. The foregoing discussion of the information and
factors considered by the Parlex board of directors is not
intended to be exhaustive. In view of the variety of factors
considered in connection with its evaluations, the Parlex board
of directors did not find it practicable to, and did not
quantify or otherwise assign relative weight to, the specific
factors considered in reaching its determination. Instead, the
Parlex board of directors conducted an overall analysis of the
factors described above, including summaries of discussions of
Parlexs management with Parlexs legal, financial,
accounting, tax and other advisors. In considering the factors
described above, each individual director may have weighed more
heavily some factors over others.
Recommendation of the Parlex Board of Directors
The Parlex board of directors unanimously recommends that you
vote FOR the proposal to approve the Merger
Agreement.
25
Opinion of Parlexs Financial Advisor
Parlex retained Needham & Company to furnish financial
advisory services with respect to potential strategic
alternatives for Parlex and, if requested by the board of
directors of Parlex, to render an opinion to the board of
directors of Parlex as to the fairness, from a financial point
of view, to the stockholders of Parlex of any transaction that
Parlex entered into.
On August 16, 2005, Needham & Company delivered
its oral opinion (and subsequently delivered its written opinion
of that date) to the board of directors of Parlex, to the effect
that, as of that date and based upon and subject to the
assumptions and other matters described in the opinion, the
consideration of $6.75 per share in cash, to be paid to the
common stockholders of Parlex in connection with the Merger in
accordance with the terms of the draft definitive merger
agreement dated August 15, 2005 (the August
Definitive Agreement) was fair to the holders of Parlex
common stock from a financial point of view.
The amount and form of consideration to be paid in the Merger
was determined through arms-length negotiations between
Parlex and JE Holdings and not by Needham & Company.
Needham & Company was not asked to consider, and the
Needham & Company opinion does not address, the
underlying business decision of Parlex to engage in the Merger,
the relative merits of the Merger as compared to other business
strategies that might exist for Parlex, or the effect of any
other transaction in which Parlex might engage.
Needham & Company expressed no opinion or
recommendation as to whether or not stockholders of Parlex
should vote in favor of the Merger. In addition,
Needham & Company was not asked to consider, and
Needham & Company expressed no opinion as to fairness,
from a financial point of view, to Parlex of the consideration
to be paid by Amphenol in the sale of Parlexs multilayer
division (the Multilayer Business) contemplated in
the August 12, 2005 draft of the Amphenol Asset Purchase
Agreement (the Amphenol Asset Purchase Agreement),
although the opinion assumes that the sale of the Multilayer
Business would be consummated upon the terms and conditions of
the Amphenol Asset Purchase Agreement.
The complete text of the written opinion of Needham &
Company, dated August 16, 2005, which sets forth the
assumptions made, matters considered, limitations on and scope
of the review undertaken by Needham & Company, is
attached to this Proxy Statement as Annex B and is
incorporated herein by reference. The summary of the
Needham & Company opinion set forth in this proxy
statement is qualified in its entirety by reference to the
Needham & Company opinion. Parlex stockholders are
urged to read the Needham & Company opinion carefully
and in its entirety for a description of the procedures
followed, the factors considered and the assumptions made by
Needham & Company. The Needham & Company
opinion is addressed to the board of directors of Parlex, is
directed only to the financial terms of the August Definitive
Agreement and does not constitute a recommendation to any Parlex
stockholder as to how that stockholder should vote on, or take
any other action relating to, the Merger.
In arriving at its opinion, Needham & Company
considered and reviewed such financial and other matters as it
deemed relevant, including, among other things:
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(1) the August Definitive Agreement; |
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(2) a draft dated August 12, 2005 of the Amphenol
Asset Purchase Agreement; |
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(3) certain publicly available information concerning
Parlex and certain other relevant financial and operating data
of Parlex furnished to us by Parlex; |
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(4) certain materials prepared by Parlex concerning the
business and prospects of Parlex; |
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(5) certain financial forecasts with respect to Parlex
prepared by the management of Parlex; |
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(6) the projected net proceeds from the sale of the
Multilayer Business prepared by the management of Parlex; |
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(7) certain publicly available financial data of companies
whose securities are traded in the public markets and that
Needham & Company deemed relevant to similar data for
Parlex; |
26
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(8) the historical stock prices and trading volumes of
Parlex common stock; and |
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(9) the financial terms of certain other business
combinations that Needham & Company deemed generally
relevant. |
In addition, Needham & Company held discussions with
members of management of Parlex concerning the business and
prospects of Parlex and participated in discussions and
negotiations among representatives of Parlex and JE Holdings and
their financial and legal advisors. Needham & Company
also performed and/or considered such other studies, analyses,
inquiries and investigations as it deemed appropriate.
In connection with its review and arriving at its opinion,
Needham & Company, with Parlexs consent, assumed
and relied upon the accuracy and completeness of all financial
and other information provided to it by Parlex for purposes of
its opinion and neither attempted to verify independently nor
assumed responsibility for verifying such information. In
addition, Needham & Company assumed that (i) the
Merger would be consummated upon the terms and subject to the
conditions set forth in the August Definitive Agreement and
(ii) Amphenols acquisition of the Multilayer Business
would be consummated upon the terms and subject to the
conditions set forth in the Amphenol Asset Purchase Agreement.
With respect to the financial forecasts for Parlex and the
projected net proceeds from the sale of the Multilayer Business
provided to Needham & Company by Parlexs
management, Needham & Company assumed, with
Parlexs consent and based upon discussions with
Parlexs management, that such forecasts and projections
have been reasonably prepared on bases reflecting the best
currently available estimates and judgments of such management,
at the time of preparation, of the future operating and
financial performance of Parlex and the projected proceeds from
the sale of the Multilayer Business. Needham & Company
expressed no opinion with respect to any of such forecasts,
projections or estimates or the assumptions on which they were
based.
Needham & Company further relied upon the assurance of
the management of Parlex that they were unaware of any facts
that would make the information provided to Needham &
Company incomplete or misleading in any respect.
With respect to all legal and financial reporting matters
relating to Parlex, the Merger and the August Definitive
Agreement, Needham & Company relied on the fact that
Parlex has consulted with its legal counsel and independent
accountants on these matters. Needham & Company did not
assume any responsibility for or make or obtain any independent
evaluation, appraisal or physical inspection of the assets or
liabilities of Parlex or JE Holdings, nor was Needham &
Company furnished with these materials. Needham &
Companys services to Parlex in connection with the Merger
were comprised of rendering an opinion from a financial point of
view of the consideration to be paid by JE Holdings to the
holders of Parlex common stock in connection with the Merger.
Needham & Companys opinion was necessarily based
upon economic, monetary and market conditions and other
circumstances as they existed and could be evaluated by
Needham & Company on the date of its opinion. It should
be understood that, although subsequent circumstances and events
may affect its opinion, Needham & Company does not have
any obligation to update, revise or reaffirm its opinion and
Needham & Company expressly disclaims any
responsibility to do so.
In rendering its opinion, Needham & Company assumed, in
all respects material to its analysis, that the representations
and warranties of each party contained in the August Definitive
Agreement are true and correct, that each party will perform all
of the covenants and agreements required to be performed by it
under the August Definitive Agreement and that all conditions to
the consummation of the Merger will be satisfied without any
material waiver thereof. Needham & Company assumed that
the Merger would be consummated upon the terms and conditions of
the August Definitive Agreement. Needham & Company also
assumed that all governmental, regulatory and other consents and
approvals contemplated by the August Definitive Agreement would
be obtained and that, in the course of obtaining any of those
consents, no restrictions would be imposed or waivers made that
would have an adverse effect on the contemplated benefits of the
Merger.
27
The following is a summary of the principal financial analyses
Needham & Company performed to arrive at its opinion.
Some of the summaries of financial analyses set forth below
include information presented in tabular format. In order to
fully understand the financial analyses, the tables must be read
together with the text of each summary. The tables alone do not
constitute a complete description of the financial analyses.
Considering the data set forth in the tables without considering
the full narrative description of the financial analyses,
including the methodologies and assumptions underlying the
analyses, could create a misleading or incomplete view of the
financial analyses. Needham & Company performed certain
procedures, including each of the financial analyses described
below, and reviewed with the management of Parlex the
assumptions on which such analyses were based and other factors,
including the historical and projected financial results of
Parlex. No limitations were imposed by the Parlex board of
directors with respect to the investigations made or procedures
followed by Needham & Company in rendering its opinion.
Stock Trading History
To provide contextual data and comparative market data,
Needham & Company reviewed the historical market prices
of Parlex common stock at various points over the last twelve
months ended August 15, 2005. Needham & Company
noted that, over the past twelve-month period, the high and low
closing prices of Parlex common stock were $8.40 and $4.75,
respectively.
Historical Stock Trading Analysis
Needham & Company analyzed the prices of Parlex common
stock at various points over the last twelve months ended
August 15, 2005. The table below lists the stock prices at
those points and the premium or discount implied by the offer
price of $6.75.
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Premium/(Discount) | |
Point |
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Price ($) | |
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Implied by Offer Price (%) | |
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August 15, 2005
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6.48 |
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4.2 |
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One Week Prior
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5.94 |
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13.6 |
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One Month Prior
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5.97 |
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13.1 |
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Three Months Prior
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5.98 |
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12.9 |
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Nine Months Prior
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5.81 |
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16.2 |
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One Year Prior
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5.59 |
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20.8 |
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52-Week High
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8.40 |
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(19.6 |
) |
52-Week Low
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4.75 |
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42.1 |
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Selected Merger Transactions Analysis
Needham & Company reviewed and analyzed public and
acquisition multiples of selected printed circuit board
(PCB) manufacturing and flexible circuit
manufacturing acquisition transactions. The transaction
Needham & Company reviewed were (listed as acquirer/
target):
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Merix Corp./ Data Circuit Systems, Inc. |
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Sanmina-SCI Corporation/ Pentex-Schweizer Circuits Limited |
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LaBarge, Inc./ Pinnacle Electronics LLC |
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Celestica Inc./ Primetech Electronics Inc. |
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Plexus Corp./ e2E Corporation |
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ACT Manufacturing, Inc./ GSS Array Technology Public Company
Limited |
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Innovex, Inc./ ADFlex Solutions, Inc. |
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Dii Group, Inc./ Micro Electronica Ltd. |
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Saturn Electronics & Engineering, Inc./ Smartflex
Systems, Inc. |
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Sanmina Corp./ Altron Inc. |
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Tyco International Ltd./ Sigma Circuits Inc. |
28
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Viasystems Group, Inc./ Zincocelere SpA. |
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Benchmark Electronics Inc./ Lockheed Martin Corp.s
Commercial Electronics Unit |
The following table sets forth information concerning
(i) the enterprise value (market capitalization plus net
debt) as a multiple of the target companys revenue as
reported during the last twelve months (LTM) prior
to announcing the transaction, where available, (ii) the
enterprise value as a multiple of the target companys
earnings before interest, taxes, depreciation and amortization
(EBITDA) as reported during the last twelve months
prior to announcing the transaction, where available and
(iii) the implied premium of the value to common
stockholders of the target company in the transaction over the
last reported price of the target companys common stock,
one-day, five-days and thirty-days prior to the announcement of
the transaction.
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Enterprise | |
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Value/LTM | |
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Premium | |
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Revenue | |
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EBITDA | |
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1-Day | |
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5-Day | |
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30-Day | |
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Mean
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0.9 |
x |
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14.8 |
x |
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35 |
% |
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53% |
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78% |
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Median
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1.0 |
x |
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7.5 |
x |
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14 |
% |
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17% |
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28% |
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High
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1.6 |
x |
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43.0 |
x |
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109 |
% |
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205% |
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273% |
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Low
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0.3 |
x |
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5.8 |
x |
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(11 |
)% |
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3% |
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4% |
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Although the premiums paid in the selected transactions were
used for comparison purposes, none of those transactions is
directly comparable to the Merger, and none of the companies in
those transactions is directly comparable to Parlex or JE
Holdings. Accordingly, an analysis of the results of such a
comparison is not purely mathematical, but instead involves
complex considerations and judgments concerning differences in
historical, financial and operating characteristics of the
companies involved and other factors that could affect the
acquisition value of such companies or Parlex to which they are
being compared.
Selected Comparable Public Companies Analysis
Using publicly available information, Needham & Company
compared selected financial and other data of Parlex, pro forma
for the sale of the Multilayer Business, to corresponding data
for selected publicly traded companies with operations in each
of three related functional areas, defined as Contract
Manufacturers, PCB Manufacturing and Flexible Circuit
Manufacturing, that for purposes of this analysis, may in the
aggregate, be considered reasonably comparable to the operations
of Parlex. Needham & Company compared Parlex with the
companies listed below.
Company Name:
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Flextronics International, Ltd. |
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Jabil Circuit, Inc. |
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Solectron Corporation |
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Sanmina-SCI Corporation |
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Benchmark Electronics, Inc. |
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Plexus Corp. |
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Pemstar, Inc. |
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TTM Technologies, Inc. |
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DDi Corp. |
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Merix Corporation |
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Multi-Fineline Electronics, Inc. |
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Innovex, Inc. |
For each of these comparable companies, Needham &
Company calculated equity value and enterprise value, based on
closing stock prices on August 15, 2005. The following
table sets forth information concerning (i) the enterprise
value as a multiple of LTM revenue, (ii) the enterprise
value as a multiple of projected Calendar Year 2005 revenue,
based on consensus Wall Street research estimates,
29
(iii) the enterprise value as a multiple of LTM EBITDA and
(iv) the enterprise value as a multiple of projected
Calendar Year 2005 EBITDA, based on the consensus of Wall Street
research estimates.
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Enterprise Value/ | |
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Revenue | |
|
EBITDA | |
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| |
|
| |
|
|
LTM | |
|
CY05 | |
|
LTM | |
|
CY05 | |
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Mean
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|
0.4 |
x |
|
|
0.4 |
x |
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|
9.5 |
x |
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|
8.4x |
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Median
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0.5 |
x |
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|
0.4 |
x |
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|
8.8 |
x |
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|
8.2x |
|
High
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|
0.8 |
x |
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|
0.7 |
x |
|
|
12.3 |
x |
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|
10.6x |
|
Low
|
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|
0.2 |
x |
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|
0.2 |
x |
|
|
7.2 |
x |
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5.9x |
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|
Enterprise Value/ | |
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|
| |
|
|
Revenue | |
|
EBITDA | |
|
|
| |
|
| |
|
|
LTM | |
|
CY05 | |
|
LTM | |
|
CY05 | |
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| |
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| |
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| |
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| |
Mean
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|
0.6 |
x |
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|
0.6 |
x |
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|
16.1 |
x |
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|
5.4x |
|
Median
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|
|
0.6 |
x |
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|
0.6 |
x |
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|
5.2 |
x |
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|
3.7x |
|
High
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|
0.9 |
x |
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|
0.9 |
x |
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|
38.2 |
x |
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|
9.2x |
|
Low
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|
0.4 |
x |
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|
0.3 |
x |
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|
4.9 |
x |
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|
3.3x |
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|
Flexible Circuit Manufacturing |
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|
Enterprise Value/ | |
|
|
| |
|
|
Revenue | |
|
EBITDA | |
|
|
| |
|
| |
|
|
LTM | |
|
CY05 | |
|
LTM | |
|
CY05 | |
|
|
| |
|
| |
|
| |
|
| |
Mean
|
|
|
1.2 |
x |
|
|
1.0 |
x |
|
|
31.4 |
x |
|
|
9.5x |
|
High
|
|
|
1.8 |
x |
|
|
1.6 |
x |
|
|
53.0 |
x |
|
|
9.5x |
|
Low
|
|
|
0.6 |
x |
|
|
0.5 |
x |
|
|
9.7 |
x |
|
|
9.5x |
|
Although the financial metrics of the comparable companies were
used for comparison purposes, none of them is directly
comparable to Parlex. Accordingly, an analysis of the results of
such a comparison is not purely mathematical, but instead
involves complex considerations and judgments concerning
differences in historical financial and operating
characteristics of the companies involved and other factors that
could affect the trading value of such companies.
The summary set forth above does not purport to be a complete
description of the analyses performed by Needham &
Company in connection with the rendering of its opinion. The
preparation of a fairness opinion involves various
determinations as to the most appropriate and relevant
quantitative and qualitative methods of financial analyses and
the application of those methods to the particular
circumstances; and, therefore, such an opinion is not readily
susceptible to partial analysis or summary description.
Needham & Company did not attribute any particular
weight to any analysis or factor considered by it, but rather
made qualitative judgments as to the significance and relevance
of each analysis and factor. Accordingly, Needham &
Company believes, and has advised the board of directors of
Parlex, that its analyses must be considered as a whole and that
selecting portions of its analyses or the factors it considered,
without considering all analyses and factors, could create a
misleading or incomplete view of the process underlying its
opinion. In its analyses, Needham & Company made
numerous assumptions with respect to industry performance,
general business and economic conditions and other matters, many
of which are beyond the control of Parlex and JE Holdings. These
analyses performed by Needham & Company are not
necessarily indicative of actual values or predictive of future
results or values, which may be significantly more or less
favorable. Additionally, analyses relating to the values of
businesses or assets do not purport to be appraisals or
necessarily reflect the prices at which businesses or assets may
actually
30
be sold. Accordingly, these analyses and estimates are
inherently subject to substantial uncertainty, being based upon
numerous factors or events beyond the control of Parlex or JE
Holdings or their respective advisors. None of Parlex, JE
Holdings, Needham & Company or any other person assumes
responsibility if future results are materially different from
those projected. Needham & Companys opinion and
its related analyses were only one of many factors considered by
the board of directors of Parlex in its evaluation of the Merger
as described in the August Definitive Agreement and should not
be viewed as determinative of the views of the board of
directors with respect to the fairness of the total
consideration to Parlex stockholders.
Needham & Company owns 12,500 shares of preferred
stock of Parlex and warrants to purchase 62,500 shares
of common stock at an exercise price of $8.00 per share.
Entities affiliated with Needham & Company own an
additional 385,000 shares of common stock of Parlex. In the
ordinary course of its business, Needham & Company and
its affiliates trade the equity securities of Parlex for their
own accounts and for the accounts of their customers and,
accordingly, may at any time hold a long or short position in
such securities. Needham & Company and its affiliates
in the ordinary course of business have from time to time
provided, and in the future may continue to provide, commercial
and investment banking services to Parlex, including serving as
a financial advisor on potential acquisitions and as an
underwriter on equity offerings, and have received, and may in
the future receive, fees for the rendering of such services.
If the Merger as described in the August Definitive Agreement is
completed during the period Needham & Company is
retained by Parlex, or within twelve months thereafter, Parlex
will pay Needham & Company a total of $1,069,999 for
its services as the financial advisor of Parlex. If the Merger
is not completed during that period, Parlex will pay Needham
$250,000 for rendering its opinion as to fairness, from a
financial point of view, of the consideration to be paid by JE
Holdings to the holders of common stock of Parlex in connection
with the Merger. Parlex will also reimburse Needham &
Company for its reasonable out-of-pocket expenses. Additionally,
Parlex agrees to indemnify Needham & Company against
certain liabilities arising out of its role as financial advisor
and out of the rendering of the Needham & Company
opinion, including liabilities under the federal securities
laws. The terms of the fee arrangement with Needham &
Company, which are customary in transactions of this nature,
were negotiated on an arms-length basis between Parlex and
Needham & Company, and the board of directors of Parlex
was aware of the arrangement, including the fact that a
significant portion of the fee payable to Needham &
Company is contingent upon the completion of the Merger.
Needham & Company was selected by the board of
directors of Parlex to render an opinion to the board of
directors of Parlex because Needham & Company is an
internationally recognized investment banking firm and because,
as part of its investment banking business, Needham &
Company is continually engaged in the valuation of businesses
and their securities in connection with mergers and
acquisitions, negotiated underwritings, secondary distributions
of listed and unlisted securities, private placements and
valuations for corporate and other purposes.
Although Parlex does not publicly provide financial projections
or guidance regarding the future performance of Parlex as to
future sales, earnings or other results beyond one year, during
the course of discussions with JE Holdings, the management of
Parlex discussed its views on the financial projections and the
future financial performance of Parlex with JE Holdings. The
table below is a summary of the projections provided to JE
Holdings. The summary of the projections set forth below is
included to give our shareholders access to information that was
not publicly available and that was significant to and relied
upon by JE Holdings in considering its acquisition of Parlex.
The projections were not prepared with a view toward public
disclosure or in compliance with published guidelines of the
SEC, the guidelines established by the American Institute of
Certified Public Accountants for preparation and presentation of
prospective financial information or generally accepted
accounting principles. Neither Parlexs independent
auditors, nor any other independent accountants, have
31
compiled, examined, or performed any procedures with respect to
the financial information contained in this section, nor have
they expressed any opinion or any other form of assurance on
such information or its achievability, and assume no
responsibility for, and disclaim any association with, the
prospective financial information.
The projections included below are forward-looking statements
that are subject to risks and uncertainties that could cause
actual results to differ materially from those shown below and
should be read with caution. See Cautionary Statement
Concerning Forward-Looking Statements beginning on
page 12. They are subjective in many respects and thus
susceptible to interpretations and periodic revisions based on
actual experience and developments occurring since the date each
set of projections was prepared. Although presented with
numerical specificity, the projections were not prepared in the
ordinary course and are based upon a variety of estimates and
hypothetical assumptions. Some or all of the assumptions may not
be realized, and they are inherently subject to significant
business, economic and competitive uncertainties and
contingencies, all of which are difficult to predict and many of
which are beyond Parlexs control, and such uncertainties
and contingencies can generally be expected to increase with the
passage of time from the dates of the projections. Accordingly,
the assumptions made in preparing the projections might not
prove accurate, and actual results might differ materially. In
addition, the projections do not take into account any of the
transactions contemplated by the Merger Agreement, including the
Merger and related financing, which might also cause actual
results to differ materially.
For these reasons, as well as the bases and assumptions on which
the projections were compiled, the inclusion of the projections
in this proxy statement should not be regarded as an indication
that the projections will be an accurate prediction of future
events, and they should not be relied upon as such. Neither
Parlex nor our board of directors assumes any responsibility for
the reasonableness, completeness, accuracy or reliability of the
projections. No one has made, or makes, any representation
regarding the information contained in the projections and,
except as may be required by applicable securities laws, there
is no intention to update or otherwise revise the projections to
reflect circumstances existing after the date when made or to
reflect the occurrences of future events even if any or all of
the assumptions are shown to be in error. Because the
prospective financial information provided in this proxy
statement is in summary format, you are cautioned not to rely on
this information in making a decision whether to vote in favor
of the merger agreement.
The following tables are summaries of the projections included
in materials provided to JE Holdings in connection with its
consideration of the Merger.
Parlex Consolidated Including Multilayer Operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FY03 | |
|
FY04 | |
|
FY05 | |
|
FY06 | |
|
|
Actuals | |
|
Actuals | |
|
Forecast | |
|
Prelim.Plan | |
|
|
| |
|
| |
|
| |
|
| |
Revenue
|
|
$ |
82,821 |
|
|
$ |
95,539 |
|
|
$ |
122,028 |
|
|
$ |
155,712 |
|
|
|
|
|
|
|
|
15 |
% |
|
|
28 |
% |
|
|
28 |
% |
Cost of Goods Sold
|
|
$ |
80,803 |
|
|
$ |
85,217 |
|
|
$ |
106,609 |
|
|
$ |
128,969 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross Margin
|
|
$ |
2,018 |
|
|
$ |
10,322 |
|
|
$ |
15,419 |
|
|
$ |
26,743 |
|
|
|
Gross Margin %
|
|
|
2.4 |
% |
|
|
10.8 |
% |
|
|
12.6 |
% |
|
|
17.2 |
% |
S,G&A
|
|
$ |
14,484 |
|
|
$ |
15,820 |
|
|
$ |
18,038 |
|
|
$ |
19,129 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating Income
|
|
$ |
(12,466 |
) |
|
$ |
(5,498 |
) |
|
$ |
(2,619 |
) |
|
$ |
7,614 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(15 |
)% |
|
|
(6 |
)% |
|
|
(2 |
)% |
|
|
5 |
% |
|
Interest/Other Expense
|
|
$ |
945 |
|
|
$ |
2,567 |
|
|
$ |
3,071 |
|
|
$ |
3,200 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income/Loss From Operations before Taxes & Minority
Interest
|
|
$ |
(13,411 |
) |
|
$ |
(8,065 |
) |
|
$ |
(5,690 |
) |
|
$ |
4,414 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(16 |
)% |
|
|
(8 |
)% |
|
|
(5 |
)% |
|
|
3 |
% |
32
Parlex Consolidated Excluding Multilayer Operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FY03 | |
|
FY04 | |
|
FY05 | |
|
FY06 | |
|
|
Actuals | |
|
Actuals | |
|
Forecast | |
|
Prelim.Plan | |
|
|
| |
|
| |
|
| |
|
| |
Revenue
|
|
$ |
63,837 |
|
|
$ |
82,325 |
|
|
$ |
103,861 |
|
|
$ |
134,209 |
|
|
|
|
|
|
|
|
29 |
% |
|
|
26 |
% |
|
|
29 |
% |
Cost of Goods Sold
|
|
$ |
54,621 |
|
|
$ |
66,399 |
|
|
$ |
84,855 |
|
|
$ |
106,922 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross Margin
|
|
$ |
9,216 |
|
|
$ |
15,926 |
|
|
$ |
19,006 |
|
|
$ |
27,287 |
|
|
|
Gross Margin %
|
|
|
14.4 |
% |
|
|
19.3 |
% |
|
|
18.3 |
% |
|
|
20.3 |
% |
S,G&A
|
|
$ |
12,117 |
|
|
$ |
13,645 |
|
|
$ |
15,784 |
|
|
$ |
16,708 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating Income
|
|
$ |
(2,901 |
) |
|
$ |
2,281 |
|
|
$ |
3,222 |
|
|
$ |
10,579 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5 |
)% |
|
|
3 |
% |
|
|
3 |
% |
|
|
8 |
% |
|
Interest Expense
|
|
$ |
945 |
|
|
$ |
2,567 |
|
|
$ |
3,071 |
|
|
$ |
3,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pre-tax Income/(loss) excluding Multilayer Operations
|
|
$ |
(3,846 |
) |
|
$ |
(286 |
) |
|
$ |
151 |
|
|
$ |
7,579 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(6 |
)% |
|
|
0 |
% |
|
|
0 |
% |
|
|
6 |
% |
|
|
|
Interests of Certain Persons in the Merger |
In considering the recommendation of Parlexs board of
directors in favor of the Merger, you should be aware that there
are provisions of the Merger Agreement and other existing
agreements that will result in certain benefits to Parlexs
directors and executive officers that are not available to
stockholders generally. Parlexs board of directors was
aware of, and considered the interests of, its directors and
executive officers and the potential conflicts arising from such
interests in its deliberations of the merits of the Merger and
in adopting and approving the Merger Agreement and the Merger.
Other than the provisions of the Merger Agreement described
below, the arrangements described below were in existence before
the discussions about the Merger began. Stockholders should take
these benefits into account when deciding whether to vote for
approval of the Merger Agreement.
33
Stock Options. Upon the completion of the Merger,
all outstanding options to purchase shares of Parlex common
stock, whether vested or unvested, exercisable or not
exercisable, will be cancelled and the holders thereof will
receive an amount equal to the product of (i) the excess of
$6.75 over the exercise price per share, if any, and
(ii) the total number of shares subject to such Parlex
stock option. The following table sets forth, as of
September 9, 2005, the number of shares of Parlex common
stock subject to options that are held by Parlexs
executive officers and directors and the estimated cash payment
such persons will receive in the Merger in exchange for the
options.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted | |
|
|
|
|
|
|
Average Exercise | |
|
Realizable Value of | |
|
|
Shares Subject to | |
|
of Price per | |
|
All Options at the | |
|
|
Outstanding | |
|
Share of All | |
|
Closing of the | |
Name |
|
Options(1) | |
|
Options ($) | |
|
Merger ($) | |
|
|
| |
|
| |
|
| |
Sheldon Buckler
|
|
|
28,500 |
|
|
|
11.11 |
|
|
|
1,275 |
|
Richard W. Hale
|
|
|
28,500 |
|
|
|
11.11 |
|
|
|
1,275 |
|
Jonathan R. Kosheff
|
|
|
55,000 |
|
|
|
9.11 |
|
|
|
11,250 |
|
Thibaud LeSeguillon
|
|
|
30,500 |
|
|
|
9.53 |
|
|
|
3,750 |
|
Peter J. Murphy
|
|
|
147,000 |
|
|
|
13.33 |
|
|
|
18,750 |
|
David Price
|
|
|
18,500 |
|
|
|
9.41 |
|
|
|
3,750 |
|
Lester Pollack
|
|
|
28,500 |
|
|
|
9.04 |
|
|
|
9,375 |
|
Russell D. Wright
|
|
|
10,500 |
|
|
|
9.35 |
|
|
|
1,155 |
|
Eric F. Zanin
|
|
|
30,000 |
|
|
|
10.98 |
|
|
|
3,750 |
|
|
|
(1) |
Shares subject to outstanding options assumes, for purposes of
this table, that the vesting of all options held by
Parlexs executive officers and directors accelerates in
connection with the Merger. |
Stock Ownership. Many of Parlexs officers
and directors also beneficially own shares of Parlex common
stock. For a further description of these stock holdings, see
Security Ownership of Certain Beneficial Owners and
Management beginning on page 51.
Convertible Subordinated Notes. Each holder of
Parlex convertible subordinated notes will be entitled to
require that Parlex redeem such holders convertible
subordinated notes, in whole but not in part, for an amount
equal to 120% of the outstanding principal plus any accrued and
unpaid interest as of the date of the Merger. Any Parlex
convertible subordinated notes that are not redeemed by holders
prior to the Merger will remain outstanding after the Merger.
Warrants. In accordance with the Merger Agreement,
Parlex is using its reasonable best efforts to negotiate
settlements with individual holders of Parlex warrants, on terms
that are specified or approved by JE Holdings, pursuant to which
each outstanding warrant will be canceled immediately before the
Merger becomes effective.
Change of Control Agreements. Each of our
executive officers has an employment or severance agreement with
Parlex. For purposes of the following descriptions of the
various agreements, please note that the consummation of the
Merger will trigger the change of control provisions
discussed below.
Herbert Pollack, Chairman. Parlex and Mr. Pollack
are parties to an employment agreement, dated October 1,
2003, that will expire by its terms on September 30, 2006.
Pursuant to this agreement, in the event of a change of control,
Mr. Pollack may elect, in his sole discretion, to receive
from Parlex an amount equal to the aggregate amount accrued to
Mr. Pollacks deferred compensation account, including
interest, held by Parlex for Mr. Pollack since May 1982,
and all compensation to be paid to Mr. Pollack under the
agreement through September 30, 2006. As of
[ ],
200[ ], Mr. Pollacks
benefit payment under the terms of the change of control
provision would be
$[ ].
The payment is to be made within 30 days of receipt of
written notice from Mr. Pollack exercising his rights.
Mr. Pollack also owns 425,359 shares of Parlex common
stock and his wife, Sandra Pollack owns 158,045 shares of
Parlex common stock.
34
Peter J. Murphy, President and Chief Executive Officer.
The Company and Mr. Murphy are parties to an employment
agreement, dated September 1, 2002, that has been amended
twice to date. As amended, the employment agreement will expire
by its terms on August 31, 2006. The agreement provides for
compensation and benefits and acceleration of unvested stock
options in the event of a change of control. With respect to
cash severance payments, the agreement provides that if
Mr. Murphy is terminated without Cause (as defined in the
agreement) within 60 days prior to, or seven months after,
the effective date of a change of control, he will be entitled
to an amount equal to 24 months of base salary at the rate
in effect immediately before his termination date. Assuming
Mr. Murphys rate of compensation at such point was
identical to his current compensation, he would be entitled to a
payment of $550,080. He will also receive professional
outplacement services in an amount not to exceed $50,000 and
payment of health care benefits in effect on his termination
date for a period of 24 months. In addition, all unvested
stock options will immediately become fully vested and
exercisable for a period of 90 days from the date of his
termination. Under the agreement, Mr. Murphy also has the
option, commencing at any time following six months after the
effective date of a change of control, but prior to the end of
the term of the agreement, to terminate the agreement. In the
event Mr. Murphy exercises such option, he will be entitled
to receive compensation, for a period of 12 months from the
date he terminates the agreement, at the monthly rate of
compensation in effect immediately before this termination date,
as well as the payment of health care benefits. Assuming
Mr. Murphys rate of compensation at such point was
identical to his current compensation, he would be entitled to a
payment of $275,040. All of Mr. Murphys unvested
options will also become immediately vested, and he may exercise
such options for a period up to 90 days following his
election to terminate the agreement. Mr. Murphy also owns
44,750 shares of Parlex common stock and options that are
presently exercisable to purchase 119,750 shares of
Parlex common stock at a weighted average exercise price of
$13.33.
Jonathan R. Kosheff, Chief Financial Officer. Parlex and
Mr. Kosheff are parties to an employment agreement, dated
September 1, 2002, that has been amended twice to date. As
amended, the employment arrangement will expire by its terms on
August 31, 2006. The agreement is identical in all
substantive respects with Mr. Murphys, described
above, except as follows. In the event of
Mr. Kosheffs termination without Cause (as defined in
the agreement), he will be entitled to an amount equal to
18 months of compensation at the rate of compensation in
effect immediately before his termination date. Assuming
Mr. Kosheffs rate of compensation at such point was
identical to his current compensation, he would be entitled to a
payment of $315,000. He will also receive professional
outplacement services in an amount not to exceed $25,000 and
payment of health care benefits in effect on his termination
date for a period of 18 months. Assuming Mr. Kosheff
elected to terminate his employment at any time following six
months after the effective date of the change of control, and
assuming a rate of compensation at such point identical to his
current compensation, he would be entitled to a payment of
$210,000. Mr. Kosheff also owns options that are presently
exercisable to purchase 30,000 shares of Parlex common
stock at a weighted average exercise price of $9.11.
Thibaud LeSeguillon, Vice President Laminated
Cable and Multilayer Business. Parlex entered into a change
of control agreement with Mr. LeSeguillon on July 21,
2004. The agreement provides for compensation and benefits and
acceleration of unvested stock options upon a change of control.
With respect to cash severance payments, the agreement provides
that if Mr. LeSeguillon is terminated without Cause (as
defined in the agreement) within 60 days prior to, or seven
months after, the effective date of a change of control, he will
be entitled to an amount equal to 12 months of compensation
at a rate equal to the greater of his monthly base compensation
at (a) the effective date of the agreement or (b) the
termination date, subject to certain adjustments. Assuming
Mr. LeSeguillons rate of compensation at such point
was identical to his current compensation, he would be entitled
to a payment of $140,016. He shall also receive payment of
health care benefits in effect on his termination date for a
period of 12 months. In addition, all unvested stock
options will immediately become fully vested and exercisable for
a period of 90 days from the date of his termination. Under
the agreement, Mr. LeSeguillon also has the option,
beginning six months and ending seven months after the effective
date of a change of control, to terminate the agreement for
good reason, as defined therein. In the event
Mr. LeSeguillon exercises such option, he will be entitled
to receive compensation, for a period of 6 months, at a
rate of compensation equal to
35
the greater of his monthly base compensation at (a) the
effective date of the agreement or (b) the termination
date, subject to certain adjustments. All of
Mr. LeSeguillons unvested options will also become
immediately vested, and he may exercise such options for a
period up to 90 days following his election to terminate
the agreement. Assuming Mr. LeSeguillions current
rate of compensation is in effect, in the event that the
agreement is terminated by Mr. LeSeguillon with good
reason, the aggregate cash benefits payable to
Mr. LeSeguillon would be approximately $70,008. Mr.
LeSeguillon also owns options that are presently exercisable to
purchase 21,500 shares of Parlex common stock at a
weighted average exercise price of $9.53.
David Price, Vice President and General Manager, Parlex
Polymer Flexible Circuits/Surface Mount Assembly Operations.
Parlex entered into a change of control agreement with
Mr. Price on July 21, 2004. The agreement provides for
compensation and benefits and acceleration of unvested stock
options upon a change of control. With respect to cash severance
payments, the agreement provides that if Mr. Price is
terminated without Cause (as defined in the agreement) within
60 days prior to, or seven months after, the effective date
of a change of control, he shall be entitled to an amount equal
to 9 months of compensation at a rate equal to the greater
of his monthly base compensation at (a) the effective date
of the agreement or (b) the termination date, subject to
certain adjustments. Assuming Mr. Prices rate of
compensation at such point was identical to his current
compensation, he would be entitled to a payment of $93,600. He
shall also receive payment of health care benefits in effect on
his termination date for a period of 9 months. In addition,
all unvested stock options shall immediately become fully vested
and exercisable for a period of 90 days from the date of
his termination. Under the agreement, Mr. Price also has
the option, beginning six months and ending seven months after
the effective date of a change of control, to terminate the
agreement for good reason, as defined therein. In
that event Mr. Price exercises such option, he shall be
entitled to receive compensation, for a period of 6 months,
at a rate of compensation equal to the greater of his monthly
base compensation at (a) the effective date of the
agreement or (b) the termination date, subject to certain
adjustments. All of Mr. Prices unvested options shall
also become immediately vested, and he may exercise such options
for a period up to 90 days following his election to
terminate the agreement. Assuming Mr. Prices current
rate of compensation is in effect, in the event that the
agreement is terminated by Mr. Price with good reason, the
aggregate cash benefits payable to Mr. Price would be
approximately $62,400. Mr. Price also owns options that are
presently exercisable to purchase 18,500 shares of Parlex
common stock at a weighted average exercise price of $9.41.
Eric F. Zanin, Vice President Sales and
Marketing. Parlex entered into a change of control agreement
with Mr. Zanin on July 21, 2004. Mr. Zanins
change of control agreement is identical in all substantive
respects with Mr. LeSeguillons agreement, described
above. Assuming Mr. Zanins current rate of
compensation is in effect, in the event that immediately after
the completion of the Merger Mr. Zanins employment
was involuntarily terminated by Parlex without Cause (as defined
in the agreement) he would be entitled to a payment of $120,000.
Assuming Mr. Zanins current rate of compensation is
in effect, in the event that the agreement is terminated by
Mr. Zanin with good reason, the aggregate cash benefits
payable to Mr. Zanin would be approximately $60,000.
Mr. Zanin also owns 150 shares of Parlex common stock
and options that are presently exercisable to
purchase 21,000 shares of Parlex common stock at a
weighted average exercise price of $10.98.
Lynn Davis, Director. Mr. Davis is a general partner
of Tate Capital Partners Fund, LLC, a private investment firm
(Tate). Tate holds a convertible subordinated note,
due July 28, 2007, issued by Parlex in the amount of
$400,000, as well as a common stock purchase warrant granting
Tate the right to purchase up to 20,000 shares of Parlex
common stock at a price per share of $8.00. Tates
convertible subordinated note is convertible immediately, in
whole or in part, by Tate into an aggregate of
50,000 shares of Parlex common stock at a price per share
of $8.00. Tates convertible subordinated note also
provides that in the event of a change of control, Tate may
require Parlex to redeem the note at a price equal to 120% of
the face value thereof, or $480,000, plus all accrued and unpaid
interest thereon. In addition, Tate owns 6,748 shares of
Parlex common stock that it received as interest payments on the
note.
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Deferred Compensation Agreements. Parlex has
deferred compensation arrangements with two individuals. One of
these arrangements will be impacted by the Merger. Herbert W.
Pollack, the Chairman of Parlexs board of directors has a
deferred compensation arrangement with Parlex. The total balance
payable to Mr. Pollack under such arrangement as of
July 31, 2005 was $613,355.16. The balance, plus accrued
interest, will be paid to Mr. Pollack pursuant to monthly
payments through May 2009. Pursuant to his most recent
employment agreement, however, Mr. Pollack may, at his sole
discretion, elect to receive a lump sum distribution of the full
balance of the deferred compensation, including interest, upon
consummation of the Merger.
Employee Related Provisions of Merger Agreement.
In the Merger Agreement, JE Holdings and Parlex have agreed
that, following the Merger, JE Holdings will:
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provide to the continuing employees of Parlex, with employee
plans and programs which provide benefits that are substantially
similar in the aggregate to those provided to similarly situated
employees of JE Holdings; |
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provide continuing employees of Parlex with credit for purposes
of accrual of seniority with respect to termination or severance
benefits and eligibility to participate and vesting and benefit
accrual (other than with respect to any defined benefit pension
plan) under any employee benefit plans or arrangements
established or maintained by Parlex after the Merger for service
accrued prior to the closing of the Merger; and |
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cause all pre-existing condition exclusion and actively-at-work
requirements with respect to plans of JE Holdings in which
continuing employees of Parlex may participate after the Merger
to be waived for continuing employees and their covered
dependents (other than waivers of any pre-existing condition
that excluded a continuing employee or dependent from a plan
maintained by Parlex prior to the Merger) and provide that any
covered expenses incurred at or before the closing of the Merger
by a continuing employee or such employees covered
dependents will be taken into account for purposes of satisfying
applicable deductible, coinsurance and maximum out-of-pocket
provisions under the relevant JE Holdings plan after the Merger
to the same extent as such expenses are taken into account for
the benefit of similarly situated employees of JE Holdings. |
Indemnification of Directors and Executive Officers and
Insurance. The Merger Agreement provides that Parlex, as
the surviving corporation in the Merger, will indemnify each
present and former director and officer of Parlex and its
subsidiaries against claims, costs and fees arising out of the
actions taken by them at or prior to the Effective Time
(including the transactions under this Merger Agreement) for six
years. The Merger Agreement further provides that the surviving
corporation will maintain liability insurance covering those
persons currently covered by Parlexs directors and
officers liability insurance policy for six years on terms not
materially less favorable than those in effect on the effective
date of the Merger Agreement, but at a cost no greater than
200% per year of the annual premium currently paid by
Parlex.
Effective July 1, 2004, the Massachusetts legislature
adopted the MBCA which repealed and replaced the Massachusetts
Business Corporation Law, including the provisions related to
appraisal rights.
Section 13.02(a)(1) of the MBCA generally provides that
stockholders of Massachusetts corporations are entitled to
appraisal rights in the event of a merger. An exemption set
forth in Section 13.02(a)(1)(A) of the MBCA provides that
stockholders are not entitled to appraisal rights in
transactions similar to the Merger where cash is the sole
consideration received by the stockholders. However, in the
event that certain persons or entities are determined to have a
direct or indirect material financial interest in the Merger for
purposes of the MBCA, this exemption would be inapplicable with
respect to the Merger. Accordingly, if such a determination were
made, Parlex stockholders would be entitled to appraisal rights
under Massachusetts law.
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Parlex has concluded that holders of Parlex common stock and
preferred stock are not entitled to appraisal rights in
connection with the Merger. Any stockholder who believes it is
entitled to appraisal rights and wishes to preserve that right
should carefully review the following discussion and
Sections 13.01 through 13.31 of Part 13 of the MBCA,
attached as Annex C to this Proxy Statement. Failure to
strictly comply with the procedures specified in Part 13 of
the MBCA would result in the loss of appraisal rights.
Notice of Intent and Demand for Payment. Any
holder of Parlex stock wishing to seek appraisal under
Part 13 of the MBCA must satisfy each of the following
conditions:
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Before the vote to approve the Merger Agreement is taken, a
Parlex stockholder wishing to seek appraisal rights must deliver
to Parlex written notice of such stockholders intent to
demand payment for his or her shares if the Merger is completed.
The written notice should be delivered to Jonathan R.
Kosheff, Parlex Corporation, One Parlex Place, Methuen,
Massachusetts 01844. Parlex recommends that such stockholder
send its notice by registered or certified mail, return receipt
requested; and |
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A Parlex stockholder who holds shares of Parlex common stock
wishing to seek appraisal rights must NOT vote in favor of the
proposals to approve the Merger Agreement. If a stockholder
returns a signed proxy but does not specify a vote against the
proposal to approve the Merger Agreement or a direction to
abstain, the proxy will be voted FOR the Merger Agreement, which
will have the effect of waiving that stockholders
appraisal rights. |
Generally, a stockholder may assert appraisal rights only if the
stockholder seeks to assert them with respect to all of the
holders shares of stock. Stockholders of record for more
than one beneficial stockholder may assert appraisal rights with
respect to fewer than all the shares registered in such
stockholders name as holder of record, provided that such
stockholder notifies Parlex in writing of the name and address
of each beneficial stockholder on whose behalf such stockholder
is asserting appraisal rights. For a beneficial stockholder to
assert appraisal rights, such beneficial stockholder must submit
to Parlex such record stockholders written consent to the
assertion of such rights not fewer than 40 nor more than
60 days after Parlex sends out written notice to the
stockholder of appraisal rights, as described below.
Stockholders who hold their shares in brokerage accounts or
other nominee forms and who wish to exercise appraisal rights
are urged to consult with their brokers to determine the
appropriate procedures for the making of a demand for appraisal
by the nominee.
Any stockholder wishing to seek appraisal rights is urged to
consult legal counsel before attempting to seek appraisal rights.
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Delisting and Deregistration of Parlex Common Stock |
If the Merger is completed, Parlex common stock will be delisted
from the Nasdaq National Market and will be deregistered under
the Securities Exchange Act of 1934.
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U.S. Federal Income Tax Treatment |
The following is a discussion of the material federal income tax
consequences of the Merger to holders of Parlex common stock and
of the simultaneous redemption of the preferred shares to the
holders of Parlex preferred stock. The discussion is based upon
the Internal Revenue Code, Treasury Regulations, IRS rulings and
judicial and administrative decisions in effect as of the date
of this Proxy Statement, all of which are subject to change
(possibly with retroactive effect) or to different
interpretations. The following discussion is limited to the
material federal income tax aspects of the Merger to a
stockholder of Parlex who is a citizen or resident of the United
States and who, on the date on which the Merger is completed,
holds shares of Parlex stock as a capital asset. The following
discussion does not address taxpayers subject to special
treatment under federal income tax laws, such as insurance
companies, financial institutions, dealers in securities,
tax-exempt organizations, S corporations and taxpayers
subject to the alternative minimum tax. In addition, the
following discussion may not apply to stockholders who acquired
their
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shares of Parlex common stock upon the exercise of employee
stock options or otherwise as compensation for services or who
hold their shares as part of a hedge, straddle or conversion
transaction.
The following discussion does not address potential foreign,
state, local and other tax consequences of the Merger and
redemption. All stockholders are urged to consult their own tax
advisors regarding the federal income tax consequences, as well
as the foreign, state and local tax consequences, of the
disposition of their shares in connection with the Merger.
For federal income tax purposes, the redemption of preferred
shares will be treated as a taxable sale or exchange of the
preferred shares for cash by each Parlex preferred stockholder
and the Merger will be treated as a taxable sale or exchange of
Parlex common stock for cash by each Parlex common stockholder.
Accordingly, the federal income tax consequences to the Parlex
common and preferred stockholders receiving cash will generally
be as follows:
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Each common stockholder will recognize a capital gain or loss
upon the disposition of the stockholders shares of Parlex
common stock pursuant to the Merger and each preferred
stockholder will recognize a capital gain or loss upon the
disposition of the stockholders shares of Parlex preferred
stock pursuant to the redemption; |
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The capital gain or loss, if any, will be long-term capital gain
or loss with respect to shares of Parlex stock that have a
holding period for tax purposes in excess of twelve months at
the time such Parlex common stock is disposed of; and |
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The amount of capital gain or loss recognized by each
stockholder will be measured by the difference between the
amount of cash received by the stockholder in connection with
the Merger or the redemption and the stockholders adjusted
tax basis in the shares of Parlex stock at the effective time of
the Merger and the redemption. |
Cash payments made pursuant to the Merger and redemption will be
reported to Parlex stockholders and the Internal Revenue Service
to the extent required by the Internal Revenue Code and
applicable regulations. These amounts will ordinarily not be
subject to withholding of U.S. federal income tax. However,
backup withholding of the tax at applicable rates may apply to a
stockholder who fails to supply Parlex or the paying agent
selected by JE Holdings with the stockholders taxpayer
identification number or has received notice from the Internal
Revenue Service of a failure to report all interest and
dividends required to be shown on the stockholders federal
income tax returns, or in certain other cases. Accordingly, each
Parlex stockholder will be asked to provide a correct taxpayer
identification number on a Substitute Form W-9 which is to
be included in the appropriate letter of transmittal for the
shares of Parlex stock. Certain Parlex stockholders will be
asked to provide additional tax information in the appropriate
letter of transmittal for the shares of Parlex stock.
THE FOREGOING DISCUSSION OF CERTAIN MATERIAL UNITED STATES
FEDERAL INCOME TAX CONSEQUENCES IS INCLUDED FOR GENERAL
INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO BE, AND
SHOULD NOT BE CONSTRUED AS, LEGAL OR TAX ADVICE TO ANY HOLDER OF
SHARES OF PARLEX STOCK. PARLEX URGES YOU TO CONSULT YOUR OWN TAX
ADVISOR TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO YOU
(INCLUDING THE APPLICATION AND EFFECT OF ANY STATE, LOCAL OR
FOREIGN INCOME AND OTHER TAX LAWS) OF THE RECEIPT OF CASH IN
EXCHANGE FOR SHARES OF PARLEX STOCK PURSUANT TO THE MERGER OR
THE REDEMPTION.
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Governmental Regulatory Filings Required in Connection with
the Merger |
Requirements under the Merger Agreement. Parlex
and JE Holdings have agreed to use their commercially reasonable
efforts to obtain all required regulatory approvals. Parlex and
JE Holdings have agreed that commercially reasonable
efforts of JE Holdings will not require JE Holdings to
agree to any prohibition, limitation, or other requirement which
would prohibit or materially limit the ownership or operation by
Parlex or JE Holdings of all or any portion of the business or
assets of Parlex or JE Holdings,
39
or compel JE Holdings to dispose of or hold separate all or any
portion of the business or assets of Parlex or JE Holdings.
United States. The HSR Act does not require Parlex
or JE Holdings notify or furnish information to the Antitrust
Division of the United States Department of Justice or the
Federal Trade Commission or impose a waiting period prior to
closing the Merger.
Other Jurisdictions. There are no other regulatory
approvals required or advisable in connection with the
consummation of the Merger. Under the Listing Rules of the Stock
Exchange of Hong Kong Ltd. (HKSE), JE Holdings is
required to disclose the Merger as a disclosable
transaction by notifying the HKSE, submitting a draft
announcement to the HKSE as soon as possible following the
signing of the Merger Agreement, issuing the announcement by
publication as a newspaper advertisement in one English and one
Chinese newspaper, once the draft has received clearance by the
HKSE, and sending to its shareholders a circular containing
further information regarding the Merger as soon as practicable
following publication of the newspaper announcement.
Other. Other than those described above and
(i) the requirement that Parlex file this Proxy Statement
with the SEC and (ii) certain other filings required to be
made under the Exchange Act, Parlex is not aware of any federal
or state regulatory requirements or approvals that must be
complied with or obtained in connection with the Merger.
None.
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Anti-Takeover Considerations |
Parlex is subject to the provisions of Chapter 110C of the
Massachusetts General Laws, entitled Regulation of
Take-Over Bids in the Acquisition of Corporations. Under
Chapter 110C, no offeror may make a take-over
bid for the stock of a target company without
publicly announcing the terms of the bid, filing certain
information with the Secretary of the Commonwealth of
Massachusetts and the target company and paying a fee to the
Secretary of the Commonwealth. The Secretary of the Commonwealth
may hold a hearing to determine if adequate disclosure has been
made and if the take-over bid is fair. A target
company is defined as any Massachusetts corporation, or
any corporation with its principal place of business in
Massachusetts, whose securities are or are to be the subject of
a take-over bid. Parlex qualifies as a target
company. A take-over bid is defined as any
acquisition or offer to acquire stock of a target company where,
after such acquisition, the offeror and its affiliates will be
the beneficial owner directly or indirectly of more than 10% of
a class of the target companys stock. However, a
take-over bid does not include any bid to which the
target companys board of directors consents, if the board
of directors has recommended the acceptance of the bid and the
terms thereof to the stockholders. For purposes of
Chapter 110C, the Parlex board of directors specifically
approved and consented to the Merger and recommended the
acceptance of the terms thereof to Parlex stockholders.
Therefore, the Merger is not a take-over bid under
Chapter 110C.
Parlex is further subject to the provisions of Chapter 110F
of the Massachusetts General Laws, the so-called Business
Combination Statute. Under Chapter 110F, a
Massachusetts corporation with over 200 stockholders, such as
Parlex, may not engage in a business combination
with an interested stockholder for a period of three
years after the date of the transaction in which the person
becomes an interested stockholder, unless (i) the
interested stockholder obtains the approval of the board of
directors prior to becoming an interested stockholder,
(ii) the interested stockholder acquires 90% of the
outstanding voting stock of Parlex (excluding shares held by
certain affiliates of Parlex) at the time it becomes an
interested stockholder or (iii) the business combination is
approved by both the board of directors and at a meeting of the
stockholders by the holders of at least two-thirds of the
outstanding voting stock of Parlex (excluding shares held by the
interested stockholder). An interested stockholder
is a person who, together with affiliates and associates, owns
(or at any time within the prior three years did own) 5% or more
of the outstanding voting stock of Parlex. A business
combination includes a merger, a
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stock or asset sale and any other transactions resulting in a
financial benefit to the interested stockholder. The Parlex
board of directors approved the Merger, exempting the Merger
from the provisions of Chapter 110F.
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Past Contacts, Transactions or Negotiations |
Other than as set forth herein and in relation to the Merger,
Parlex and JE Holdings have not entered into any negotiations,
transactions or material contracts with each other during the
past two years.
TERMS OF THE MERGER AGREEMENT
The following is a summary of the material terms of the Merger
Agreement. This summary does not purport to describe all the
terms of the Merger Agreement and is qualified by reference to
the complete Merger Agreement that is attached as Annex A
to this Proxy Statement. We urge you to read the Merger
Agreement carefully in its entirety because it, and not this
Proxy Statement, is the legal document that governs the Merger.
The text of the Merger Agreement has been included to provide
you with information regarding its terms. The terms of the
Merger Agreement (such as the representations and warranties)
are intended to govern the contractual rights and relationships,
and allocate risks, between the parties in relation to the
merger. The Merger Agreement contains representations and
warranties Parlex, JE Holdings, Parent and Purchaser made to
each other as of specific dates. The representations and
warranties were negotiated between the parties with the
principal purpose of setting forth their respective rights with
respect to their obligations to complete the Merger and may be
subject to important limitations and qualifications as set forth
therein, including contractual standard of materiality different
from that generally applicable under federal securities laws.
Merger Consideration
Upon completion of the Merger, each outstanding share of Parlex
common stock (other than any shares of common stock owned by
Parlex, JE Holdings, Parent or Purchaser or any direct or
indirect wholly-owned subsidiary of Parlex or JE Holdings
immediately prior to the completion of the Merger and other than
shares of common stock held by stockholders who have perfected
their rights to dissent from the Merger under the MBCA) will be
automatically converted into the right to receive $6.75 in cash,
without interest, less any required withholding taxes
(Common Share Merger Consideration), and each
outstanding share of Series A Convertible Preferred Stock,
par value $1.00 per share, will be converted into the right
to receive $80.00 (which is the liquidation value of each share
of preferred stock) plus any accrued and unpaid dividends, in
cash, without interest or additional dividends thereon, less any
required withholding taxes (the Preferred Share Merger
Consideration, and, together with the Common Share Merger
Consideration, the Merger Consideration). The price
of $6.75 in cash, per share of common stock was determined
through arms-length negotiations between Parlex and JE
Holdings. The price of $80.00 in cash, per share of preferred
stock is the liquidation value established by the terms of the
preferred stock. Upon completion of the Merger, no currently
outstanding shares of Parlex common or preferred stock will
remain outstanding and all shares will automatically be canceled
and will cease to exist.
Conversion of Shares; Procedures for Exchange of
Certificates
Your right to receive Merger Consideration will arise
automatically upon completion of the Merger. Prior to the
Effective Time, JE Holdings will enter into an agreement with a
bank or trust company selected by JE Holdings and reasonably
acceptable to Parlex to act as the paying agent under the Merger
Agreement. JE Holdings will deposit with the paying agent cash
amounts sufficient to enable the exchange agent to pay the
aggregate Merger Consideration to the holders of shares of
Parlex common stock.
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Promptly, but in no event more than five business days, after
the Effective Time, the exchange agent will mail to each record
holder of common or preferred shares, a letter of transmittal
and instructions for use in surrendering certificates in
exchange for the Merger Consideration. No stockholder should
surrender any certificates until the stockholder receives the
letter of transmittal and other materials for such surrender.
Upon surrender of a stock certificate for cancellation to the
exchange agent, together with a letter of transmittal, duly
executed, the holder of such certificate will be entitled to
receive the Merger Consideration into which the number of shares
of common or preferred stock previously represented by such
stock certificate(s) will have been converted pursuant to the
Merger Agreement, without any interest thereon. The certificates
so surrendered will be canceled.
In the event of a transfer of ownership of shares of common or
preferred stock which is not registered in Parlexs
transfer records, payment may be made with respect to such
shares to the transferee if the stock certificate representing
such shares is presented to the paying agent, accompanied by all
documents reasonably required by the paying agent to evidence
such transfer and to evidence that any applicable stock transfer
taxes relating to such transfer have been paid.
If your stock certificate has been lost, stolen or destroyed,
the paying agent will deliver to you the applicable Merger
Consideration for the shares represented by that certificate if
you comply with the replacement requirements established by the
paying agent, including, if necessary, by posting a bond in
customary amount as indemnity against any claim that may be made
against the paying agent or JE Holdings with respect to the
certificate.
Stockholders should not send their certificates now and should
send them only pursuant to instructions set forth in the letter
of transmittal to be mailed to stockholders promptly after the
Effective Time. In all cases, the Merger Consideration will be
provided only in accordance with the procedures set forth in
this Proxy Statement and such letter of transmittal.
Nine months after the Effective Time, the paying agent will
deliver to JE Holdings any funds made available to the paying
agent which have not been disbursed to holders of Parlex stock
certificates.
The cash paid to you upon conversion of your shares of Parlex
stock will be issued in full satisfaction of all rights relating
to the shares of Parlex stock.
Effect on Parlex Stock Options
At the Effective Time, each outstanding option to purchase
Parlex common stock, whether vested or unvested, exercisable or
not exercisable, will be cancelled and the holder will receive
an amount in cash equal to the excess, if any, of (i) the
Common Share Merger Consideration over (ii) the per share
exercise price of such option, multiplied by the number of
shares of Parlex common stock subject to such option, less
applicable withholdings and without interest.
Effective Time of the Merger
The Merger will become effective upon the filing of articles of
merger with the Secretary of State of The Commonwealth of
Massachusetts. If the Merger Agreement is approved by Parlex
stockholders, the articles of merger will be filed no later than
three business days after all of the other conditions to the
Merger set forth in the Merger Agreement have been satisfied or
waived by JE Holdings or Parlex, as applicable. These conditions
are described below under Merger Agreement
Conditions to Closing. Subject to the terms and conditions
of the Merger Agreement and in accordance with Massachusetts
law, at the Effective Time, Purchaser, a wholly-owned subsidiary
of Parent and a party to the Merger Agreement, will merge with
and into Parlex. Parlex will survive the Merger as a
wholly-owned Massachusetts subsidiary of Parent, which is an
indirect wholly-owned subsidiary of JE Holdings.
Representations and Warranties
The Merger Agreement contains representations and warranties of
each party to the agreement. These representations and
warranties will expire upon completion of the Merger.
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The Merger Agreement contains customary representations and
warranties of Parlex as to, among other things:
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the organization and qualifications to do business of Parlex and
its subsidiaries; |
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the articles of organization and by-laws of Parlex and certain
of its subsidiaries |
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Parlexs capitalization; |
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Parlexs authority relative to the Merger Agreement; |
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the approval of Parlexs board of directors and certain
Massachusetts anti-takeover laws; |
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the vote of Parlex stockholders required to approve the Merger; |
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no conflict, required filings and consent; |
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permits and compliance; |
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Parlexs SEC filings and financial statements; |
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absence of undisclosed liabilities; |
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absence of certain changes or events; |
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absence of litigation; |
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employee benefit plans; |
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labor and employment matters; |
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property and leases; |
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intellectual property; |
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taxes; |
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environmental matters; |
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material contracts; |
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records; |
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insurance; |
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brokers; |
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customers and suppliers; |
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certain business practices; |
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export controls; |
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anti-boycott laws; |
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affiliate transactions; and |
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the opinion of Parlexs financial advisor. |
Parlexs representations and warranties are generally
qualified by information in SEC reports filed since
June 30, 2003 and prior to the date of the Merger
Agreement; additionally, some representations and warranties are
qualified by a Material Adverse Effect limitation.
Material Adverse Effect is defined as follows:
Material Adverse Effect means any event,
circumstance, change or effect that is materially adverse to the
business, condition (financial or otherwise) or results of
operations of the Parlex and its subsidiaries, taken as a whole;
provided, however, that a Material Adverse Effect
will not include events, circumstances, changes and effects
(a) that are generally applicable to (i) the business
segments in which Parlex
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conducts its business or (ii) either the United States
economy or global economy as a whole; provided that
Parlex and its subsidiaries are not disproportionately affected
thereby; (b) to the extent that they are caused by any
change in applicable accounting requirements or principles, or
applicable laws, rules or regulations, which occurs or becomes
effective after the date hereof; or (c) to the extent
attributable to the announcement of pending transactions
contemplated by the Merger Agreement or compliance with the
terms of the Merger Agreement that impacts Parlex or any of its
subsidiaries.
In addition, the Merger Agreement contains representations and
warranties by JE Holdings, Parent and Purchaser as to, among
other things, JE Holdings having the necessary corporate power
and authority, and it having, as of the date of the Merger
Agreement and the closing of the Merger, sufficient funds to
complete the transactions contemplated by the Merger Agreement.
The representations and warranties in the Merger Agreement are
complicated and not easily summarized. You are urged to read
carefully and in their entirety the sections of the Merger
Agreement entitled Representations and Warranties of the
Company and Representations and Warranties of
JE Holdings, Parent and Purchaser in Annex A to
this Proxy Statement.
Covenants of the Parties
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Conduct of Parlexs Business |
In the Merger Agreement, Parlex agreed that, until the Effective
Time, unless Parent otherwise consents in writing, it will
conduct business only in the ordinary course consistent with
past practice, use its commercially reasonable efforts to
preserve substantially intact its business organization, keep
available the services of its current officers and key employees
and consultants and preserve its current relationships with
customers, suppliers and other persons with which it has
significant business relations.
Specifically, Parlex has agreed that, subject to specified
exceptions expressly contemplated and agreed to in the Merger
Agreement or schedules thereto, neither Parlex nor any of its
subsidiaries may, without the prior written consent of Parent:
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amend or otherwise change its articles of organization or
by-laws or equivalent organizational documents; |
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except for certain permitted issuances, issue or encumber any
shares of capital stock, options, warrants, convertible
securities or other rights to acquire any shares of capital
stock, or any other ownership interest of Parlex or any of its
subsidiaries; |
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declare or pay any dividend or distribution, except for regular
quarterly dividends on the preferred stock declared and paid at
times consistent with past practice in an aggregate amount not
in excess of $1.65 per share; |
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reclassify, combine, split, subdivide or redeem, or purchase or
otherwise acquire any shares of its capital stock; |
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(i) acquire any business, division of a business or any
material amount of assets, other than pending acquisitions or
minority investments that were publicly announced prior to the
date of the Merger Agreement; (ii) incur any indebtedness,
assume or become responsible for the obligations of any person,
or make any loans or advances, except in the ordinary course of
business and consistent with past practice; (iii) transfer,
lease, license, sell, or encumber any of its material assets
(other than sales of obsolete assets and inventory in the
ordinary course of business consistent with past practice); or
(iv) authorize, pay, discharge or satisfy any claims or
obligations in excess of a specified amount, other than in the
ordinary course of business consistent with past practice, or as
reflected or reserved against in Parlexs balance sheet as
of June 30, 2004; |
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(i) increase the compensation payable or the benefits
provided to its directors, officers or employees, except for
increases in the ordinary course of business and consistent with
past practice in salaries or wages of its employees, who are not
directors or executive officers of Parlex; (ii) grant |
44
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any severance or termination pay to, or enter into any
employment or severance agreement with, any director, executive
officer or other employee of Parlex; or (iii) enter into or
amend any collective bargaining, bonus, profit-sharing, thrift,
compensation, stock option, restricted stock, pension,
retirement, deferred compensation, employment, termination,
severance or other plan, agreement, trust, fund, policy or
arrangement for the benefit of any director, officer or employee; |
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take any action, other than commercially reasonable and usual
actions in the ordinary course of business and consistent with
past practice, with respect to accounting policies or procedures; |
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make any material tax election or settle or compromise any
material income tax liability, except in the ordinary course of
business or in a manner consistent with past practice; or change
any of the accounting methods used by Parlex materially
affecting its assets, liabilities or business, except for such
changes required by GAAP; |
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enter into, amend, or terminate any material contract, or amend,
waive, or terminate its rights thereunder, other than in the
ordinary course of business and consistent with past practice,
including any new or materially amended joint venture or supply
agreement with Infineon Technologies AG or its affiliates
(collectively, Infineon); |
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permit any material insurance policy naming Parlex as a
beneficiary or a loss payee to be cancelled or terminated
without notice to Parent; |
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create any material subsidiaries or adopt a plan of liquidation,
dissolution, restructuring, recapitalization or other
reorganization (other than the Merger); |
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commence or settle any material litigation, suit, claim, action,
proceeding or investigation; or |
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announce an intention, enter into any formal or informal
agreement or otherwise make a commitment, to do any of the
foregoing. |
The covenants in the Merger Agreement relating to the conduct of
Parlexs business are complicated and not easily
summarized. You are urged to read carefully and in its entirety
the section of the Merger Agreement entitled Conduct of
Business of the Company in Annex A to this Proxy
Statement.
JE Holdings and Parlex have agreed that, following the Merger,
JE Holdings will:
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provide the continuing employees of Parlex with employee plans
and programs which provide benefits that are substantially
similar in the aggregate to those provided to similarly situated
employees of JE Holdings; |
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provide continuing employees of Parlex with credit for purposes
of accrual of seniority with respect to termination or severance
benefits and eligibility to participate and vesting and benefit
accrual (other than with respect to any defined benefit pension
plan) under any employee benefit plans or arrangements
established or maintained by Parlex after the Merger for service
accrued prior to the closing of the Merger; and |
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cause all pre-existing condition exclusions and actively-at-work
requirements with respect to plans of JE Holdings in which
continuing employees of Parlex may participate after the Merger
to be waived for continuing employees and their covered
dependents (other than waivers of any pre-existing condition
that excluded a continuing employee or dependent from a plan
maintained by Parlex prior to the Merger) and provide that any
covered expenses incurred at or before the closing of the Merger
by a continuing employee or such employees covered
dependents will be taken into account for purposes of satisfying
applicable deductible, coinsurance and maximum out-of-pocket
provisions under the relevant JE Holdings plan after the Merger
to the same extent as such expenses are taken into account for
the benefit of similarly situated employees of JE Holdings. |
45
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Regulatory Considerations |
Parlex and JE Holdings have agreed to use their commercially
reasonable efforts to obtain all required regulatory approvals.
Parlex and JE Holdings have agreed that commercially
reasonable efforts of JE Holdings will not require JE
Holdings to agree to any prohibition, limitation, or other
requirement which would prohibit or materially limit the
ownership or operation by Parlex or JE Holdings of all or any
portion of the business or assets of Parlex or JE Holdings or
compel JE Holdings to dispose of or hold separate all or any
portion of the business or assets of Parlex or JE Holdings.
The Merger Agreement contains a number of other covenants,
including covenants relating to:
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preparation of this Proxy Statement and holding of the Special
Meeting; |
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access to information and confidentiality; |
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indemnification and insurance; |
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notification of breaches of representations and warranties,
breaches of covenants and certain other matters; |
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antitrust and other regulatory filings in all jurisdictions
where such a filing is required; |
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public announcements; |
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takeover statute approvals; |
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developments with respect to Parlexs joint venture or
supply agreement with Infineon; |
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cancellation of outstanding warrants to purchase Parlexs
common stock; and |
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continuation by Parlex of environmental remediation activities
at its Methuen site. |
No-Shop Provisions
Parlex has agreed, prior to the Merger becoming effective, to
certain limitations on its ability to take action with respect
to other potential acquisition transactions. Parlex has agreed
not to (i) solicit, initiate or knowingly encourage the
submission of, any Acquisition Proposal (defined below),
including a Superior Proposal (defined below); or
(ii) participate in any discussions or negotiations
regarding, or furnish to any person, any non-public information
with respect to any Acquisition Proposal.
Under the Merger Agreement, an Acquisition Proposal
means any:
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bona fide written proposal or offer from any person relating to
any direct or indirect acquisition of: |
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all or a substantial part of the assets of Parlex and its
subsidiaries taken on a consolidated basis, or |
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over 30% of any class of equity securities of Parlex (including
the issuance of any convertible stock and debt and considered on
an as-converted basis) entitled to vote in the election of
directors; |
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any tender offer or exchange offer that, if consummated, would
result in any person beneficially owning 30% or more of any
class of equity securities of Parlex; or |
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any merger, consolidation, business combination, sale of all or
a substantial part of the assets, recapitalization, liquidation,
dissolution or similar transaction involving Parlex, other than
the transactions contemplated by the Merger Agreement. |
Offers for the sale of the Multilayer Division or Parlexs
laminated cable division will not be considered Acquisition
Proposals.
46
A Superior Proposal means any bona fide written
proposal that:
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is not solicited, initiated or knowingly encouraged in violation
of the no-shop provisions of the Merger Agreement, |
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is made by a third person to acquire, directly or indirectly,
for consideration consisting of cash and/or securities, 50% or
more of the outstanding equity securities of Parlex entitled to
vote generally in the election of directors or a substantial
portion of the assets of Parlex and its subsidiaries on a
consolidated basis, and |
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the Parlex board of directors reasonably determines (after
consultation with its financial advisor and outside counsel)
that: |
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the proposed transaction would be more favorable from a
financial point of view to its stockholders than the Merger and
the transactions contemplated by the Merger Agreement, taking
into account at the time of determination any changes to the
terms of the Merger Agreement that as of that time had been
proposed by JE Holdings and |
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the person or entity making such Superior Proposal is capable of
consummating such Acquisition Proposal (based upon, among other
things, the availability of financing and the degree of
certainty of obtaining financing, the expectation of obtaining
required regulatory approvals and the identity and background of
such person). |
However, Parlex may participate in any discussions and
negotiations regarding, and furnish any person with non-public
information with respect to, any Acquisition Proposal if:
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its board of directors determines in good faith, after having
received advice from outside legal counsel, that such action is
consistent with the boards fiduciary duties under
applicable law; |
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the board determines in good faith that the Acquisition Proposal
is reasonably likely to lead to a Superior Proposal; and |
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after giving prior written notice to JE Holdings and entering
into a customary confidentiality agreement. |
Parlex has agreed to promptly advise JE Holdings orally and in
writing of:
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any Acquisition Proposal or any request for information with
respect to any Acquisition Proposal, the material terms and
conditions of such Acquisition Proposal or request and the
identity of the person making such Acquisition Proposal or
request; |
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any material changes in any such Acquisition Proposal or
request; and |
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any non-public information concerning the operations of Parlex
that is provided to such person or its representatives, which
was not previously provided to JE Holdings. |
Parlex has also agreed, except as consistent with the
Boards fiduciary duties under applicable law, after having
received advice from outside legal counsel, not to release any
third party from, or waive any provision of, any confidentiality
or standstill agreement to which Parlex is a party, except as
may be necessary to submit an Acquisition Proposal.
Parlex has further agreed not to withdraw or modify, or propose
to withdraw or modify, in a manner adverse to JE Holdings,
Parent or Purchaser, the approval or recommendation by the
Parlex board of directors of the Merger Agreement, the Merger or
the transactions contemplated by the Merger Agreement. However,
if, prior to receipt of Stockholder Approval, the board
determines in good faith:
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after having received advice from outside counsel, that such
action is consistent with the fiduciary duties of the board
under applicable law; and |
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that an Acquisition Proposal constitutes a Superior Proposal,
the board may withdraw or modify its approval or recommendation
of the Merger. |
47
As described more fully under Merger Agreement
Termination Fees below, if Parlex terminates the Merger
Agreement to take a Superior Proposal, Parlex must pay a
termination fee of $2,000,000 to JE Holdings concurrently
with such termination.
Please note that Parlex may not terminate the Merger Agreement
in favor of a Superior Proposal to the Merger once the Merger
has received Stockholder Approval.
Conditions to Closing
The parties obligations to complete the Merger are subject
to the following conditions:
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Stockholder Approval. The Merger must have been
approved by the holders of at least two-thirds of the
outstanding shares of Parlex common stock. |
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Regulatory. Any waiting period (or extension
thereof) applicable to the consummation of the Merger under the
HSR Act and the Exon-Florio provision pursuant to
Section 5021 of the Omnibus Trade and Competitiveness Act
of 1988 (amending Section 721 of the Defense Production Act
of 1950) and any other jurisdiction where a merger filing was
necessary shall have expired or been terminated. |
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Governmental Actions; Illegality. No governmental
authority will have enacted, issued, promulgated, enforced or
entered any applicable law (whether temporary, preliminary or
permanent) which is then in effect and has the effect of making
the Merger illegal or otherwise preventing or prohibiting
consummation of the Merger (including, without limitation, any
preliminary or permanent injunction which would prevent the
consummation of the Merger). |
The obligations of JE Holdings, Parent and Purchaser to complete
the Merger are subject to the following conditions:
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Representations and Warranties. The
representations and warranties of Parlex must be true and
correct both when made and at and as of the effective time, as
if made at and as of such time (except to the extent expressly
made as of an earlier date, in which case as of such date),
except where the failure of such representations and warranties
to be so true and correct (without giving effect to any
limitation as to materiality or Material
Adverse Effect set forth therein) does not have, and would
not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. |
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Performance. Parlex must have performed in all
material respects all obligations required to be performed by it
under the Merger Agreement at or prior to the effective time. |
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Material Adverse Effect. Since the date of the
Merger Agreement, there must not have occurred any change,
event, circumstance or development that has had, or is
reasonably likely to have, a Material Adverse Effect. |
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Certification. JE Holdings must have received a
certificate of an executive officer of Parlex, certifying that
the conditions regarding Parlexs representations and
warranties, performance and the absence of a Material Adverse
Effect have been satisfied. |
The obligations of Parlex to complete the Merger are subject to
the following conditions:
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Representations and Warranties. The
representations and warranties of JE Holdings, Parent and
Purchaser must be true and correct in all material respects both
when made and at and as of the effective time, as if made at and
as of such time (except to the extent expressly made as of an
earlier date, in which case as of such date). |
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Performance. JE Holdings, Parent and Purchaser
must have performed in all material respects all obligations
required to be performed by them under the Merger Agreement at
or prior to the effective time. |
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Certification. Parlex must have received a
certificate of an executive officer of JE Holdings, certifying
that the conditions regarding JE Holdings representations
and warranties and performance have been satisfied. |
Termination
The Merger Agreement may be terminated at any time prior to the
closing of the Merger (notwithstanding approval of the Merger by
stockholders of Parlex):
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1. By mutual written consent of JE Holdings, Parent,
Purchaser and Parlex; |
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2. By JE Holdings, Parent, Purchaser or Parlex if |
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the Merger has not closed on or before January 15, 2006
(the Termination Date), provided that this right to
terminate is not available to any party whose failure to fulfill
any obligation under the Merger Agreement resulted in the
failure of the Merger to close on or before the Termination
Date; or |
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any governmental authority has enacted, issued, promulgated,
enforced or entered any injunction, order, decree or ruling
(whether temporary, preliminary or permanent) which has become
final and nonappealable and has the effect of making
consummation of the Merger illegal or otherwise preventing or
prohibiting consummation of the Merger; |
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if there has been a breach of any representation, warranty,
covenant or agreement on the part of JE Holdings, Parent or
Purchaser contained in the Merger Agreement, such that |
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the conditions regarding JE Holdings representations and
warranties and performance would not be capable of being
satisfied, and |
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such breach is not capable of being cured or, if reasonably
capable of being cured, shall not have been cured prior to the
earlier of |
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ten business days following notice of such breach and |
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the Termination Date; |
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however, Parlex shall not have the right to terminate the Merger
Agreement if it is then in material breach of any of its
representations, warranties, covenants or agreements contained
in the Merger Agreement; or |
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prior to obtaining the requisite stockholder approval of the
Merger, in accordance with, and subject to the terms and
conditions of, the provisions that allow the board to withdraw
or modify its approval or recommendation of the Merger. |
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if there has been a breach of any representation, warranty,
covenant or agreement on the part of Parlex contained in the
Merger Agreement, such that |
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the conditions regarding Parlexs representations and
warranties, performance and the absence of a Material Adverse
Effect would not be capable of being satisfied, and |
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such breach is not capable of being cured or, if reasonably
capable of being cured, has not been cured prior to the earlier
of: |
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ten business days following notice of such breach and |
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the Termination Date; |
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however, JE Holdings will not have the right to terminate the
Merger Agreement if JE Holdings, Parent or Purchaser is then in
material breach of any of its representations, warranties,
covenants or agreements contained in the Merger
Agreement; or |
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if the board of directors of Parlex |
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has withdrawn, modified or changed in a manner adverse to JE
Holdings, Parent or Purchaser its approval or recommendation of
the transactions contemplated by the Merger Agreement, or has
resolved to effect any of the foregoing or |
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has recommended to the stockholders of Parlex an Acquisition
Proposal other than such transactions, or has resolved to effect
any of the foregoing; or |
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5. By any party to the Merger Agreement if, after vote is
taken at the Stockholders Meeting, the Merger does not receive
Stockholder Approval. |
Termination Fees
Parlex has agreed to pay JE Holdings a termination fee equal to
$2,000,000 (the Termination Fee) under the following
circumstances:
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If Parlex terminates the Merger Agreement prior to obtaining
Stockholder Approval upon the Parlex board of directors
withdrawing or modifying its approval or recommendation of the
Merger; or |
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If JE Holdings terminates the Merger Agreement because the
Parlex board of directors |
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has withdrawn, modified or changed in a manner adverse to JE
Holdings, Parent or Purchaser its approval or recommendation of
the transactions contemplated by the Merger Agreement, or shall
have resolved to effect any of the foregoing, or |
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has recommended to the Parlex stockholders an Acquisition
Proposal other than transactions contemplated by the Merger
Agreement, or shall have resolved to effect any of the
foregoing; or |
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If JE Holdings, Parent, Purchaser or Parlex terminates the
Merger Agreement following a vote thereon at the Special Meeting
or any postponement or adjournment thereof in which the Merger
does not receive Stockholder Approval, and prior to the Special
Meeting Parlex publicly disclosed an Acquisition Proposal, in
the event that Parlex consummates a transaction in respect of
the Acquisition Proposal. |
For purposes of the above Termination Fee provisions,
Acquisition Proposal is defined to be a proposal to acquire 50%
or more of Parlex and its subsidiaries on a consolidated basis.
Expenses
If JE Holdings, Parent, Purchaser or Parlex terminates the
Merger Agreement as a result of failure to obtain Stockholder
Approval at the Special Meeting or any postponement or
adjournment thereof, Parlex will pay JE Holdings up to $400,000
for documented and out-of-pocket fees and expenses incurred by
JE Holdings in connection with the Merger.
50
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the
beneficial ownership of the Companys common stock as of
[September ], 2005, by:
(i) each person who is known by the Company to beneficially
own more than 5% of the outstanding common stock; (ii) each
of the Companys directors; (iii) the Companys
Chief Executive Officer and each of the Companys other
four most highly compensated executive officers as of
June 30, 2005; and (iv) all directors and executive
officers of the Company as a group.
Unless otherwise indicated in the footnotes, the address for
each executive officer and director is c/o Parlex
Corporation, One Parlex Place, Methuen, MA 01844.
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Shares of | |
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% of Outstanding | |
|
|
Common Stock | |
|
Common Stock | |
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Beneficially | |
|
Beneficially | |
Stockholder |
|
Owned(1) | |
|
Owned | |
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| |
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| |
Beneficial owners of 5% or more:
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Van Den Berg Management, Inc.(2)
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1,007,000 |
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15.52 |
% |
Dubuque Bank and Trust Company(3)
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605,993 |
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9.34 |
% |
Needham & Company, LLC(4)
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572,500 |
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8.82 |
% |
Dimensional Fund Advisors Inc.(5)
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546,500 |
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8.42 |
% |
Laurence W. Lytton(6)
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366,182 |
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5.64 |
% |
Executive officers and directors:
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Herbert W. Pollack(7)(8)(9)
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583,404 |
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8.99 |
% |
Peter J. Murphy(7)(8)(10)
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164,500 |
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2.49 |
% |
Lynn J. Davis(7)(11)
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76,748 |
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1.17 |
% |
Lester Pollack(7)(12)
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64,620 |
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* |
|
Jonathan R. Kosheff(8)(13)
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30,000 |
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* |
|
Sheldon Buckler(7)(14)
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24,000 |
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* |
|
Richard W. Hale(7)(15)
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22,500 |
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* |
|
Eric F. Zanin(8)(16)
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21,150 |
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* |
|
Thibaud LeSeguillon(8)(17)
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21,500 |
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* |
|
Russell D. Wright(7)(18)
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5,500 |
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* |
|
All directors and officers as a group (ten persons)(19)
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1,025,272 |
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|
15.03 |
% |
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(*) |
Less than one percent. |
|
|
(1) |
For purposes of this table, the number of shares beneficially
owned by each director, director nominee, executive officer and
stockholder is determined under rules promulgated by the
Securities and Exchange Commission, and the information is not
necessarily indicative of beneficial ownership for any other
purpose. Under such rules, beneficial ownership includes any
shares as to which the individual has sole or shared voting
power or investment power and also any shares which the
individual has the right to acquire within 60 days after
[September ], 2005, without
regard to the Merger, through the exercise of any stock option,
conversion option or similar right (Presently Exercisable
Options). The inclusion herein of such shares, however,
does not constitute an admission that the named stockholder is a
direct or indirect beneficial owner of such shares. Unless
otherwise indicated, each person or entity named in the table
has sole voting power and investment power (or shares such power
with his or her spouse) with respect to all shares of common
stock listed as owned by such person or entity. |
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(2) |
The shares shown as owned by Van Den Berg Management, Inc. are
as reported by Van Den Berg Management, Inc. in a Statement on
Schedule 13F with respect to its holdings of common stock as |
51
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of June 30, 2005. The address for Van Den Berg Management,
Inc. is 805 Las Cimas Parkway, Suite 430, Austin, TX 78746. |
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(3) |
The shares shown as owned by Dubuque Bank & Trust
Company are as reported by Dubuque Bank & Trust Company
in a Statement on Schedule 13F with respect to its holdings
of common stock as of June 30, 2005. The address for
Dubuque Bank & Trust Company is 1398 Central Avenue,
Dubuque, IA 52001. |
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(4) |
The shares shown as owned by Needham & Company
represent the aggregate number of shares of Parlex common stock
owned by Needham & Company and various of its
affiliates, assuming the conversion or exercise of all
securities held by such entities. Specifically,
Needham & Company directly owns an aggregate
187,500 shares, consisting of 125,000 shares
receivable upon conversion of shares of Parlexs preferred
stock owned by it, and 62,500 shares underlying a warrant
held by it. Needham & Company is also the parent
company of Needham Investment Management, L.L.C.
(NIM), which has shared power to direct the vote and
disposition of 200,000 shares held by a series of Needham
Funds, Inc. (NFI). Needham & Company is
also a limited partner of Needham Management Partners, L.P.
(NMP), which is the general partner of, and deemed
to have investment discretion over, four limited partnerships
owning an aggregate 185,000 shares. Needham &
Company disclaims beneficial ownership of the shares owned by
NFI and NMP, and those managed by NIM. George A. Needham may be
deemed to beneficially own and have shared power to direct the
vote and disposition of (i) the Presently Exercisable
Options owned by Needham & Company by virtue of his
position as Chairman of The Needham Group, Inc., the corporate
parent of Needham & Company, (ii) the shares held
by NFI by virtue of his position as President and Chief
Executive Officer of NFI, and (iii) the shares owned by NMP
by virtue of his position as a General Partner of NMP.
Mr. Needham disclaims beneficial ownership of the shares
owned by Needham & Company, NFI and NMP. James K.
Kloppenburg may be deemed to beneficially own and have shared
power to direct the vote and disposition of (i) the shares
held by NFI by virtue of his position as a portfolio manager of
NIM, which serves as the investment advisor to NFI, and
(ii) the shares held by NMP by virtue of his position as a
General Partner of NMP. Mr. Kloppenburg may, therefore, be
deemed to beneficially own an aggregate 385,000, or 5.93%, of
the Companys outstanding shares. Mr. Kloppenburg
disclaims beneficial ownership of the shares managed by NIM and
the shares owned by NMP. The shares shown as managed by NIM and
owned by NMP are as reported on a Schedule 13F filed by
each such entity with respect to its beneficial ownership of
common stock as of June 30, 2005. The address for
Needham & Company, LLC is 445 Park Avenue, New
York, New York 10022. |
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(5) |
The shares shown as owned by Dimensional Fund Advisors Inc.
are as reported by Dimensional Fund Advisors Inc. in a
Statement on Schedule 13F with respect to its holdings of
common stock as of June 30, 2005. The address for
Dimensional Fund Advisors Inc. is 1299 Ocean Avenue, Santa
Monica, CA 90401. |
|
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(6) |
The shares shown as owned by Laurence W. Lytton are as reported
on a Schedule 13G filed by the stockholder, dated
February 9, 2005. The address for Mr. Lytton is 28
Sherwood Place, Scarsdale, NY 10583. |
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(7) |
Denotes a director of the Company. |
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(8) |
Denotes an executive officer of the Company. |
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(9) |
The shares shown as owned by Herbert W. Pollack include
158,045 shares, of which he disclaims beneficial ownership,
which are owned directly by his wife, Sandra Pollack. |
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(10) |
The shares shown as owned by Mr. Murphy include
119,750 shares which he has the right to acquire pursuant
to Presently Exercisable Options under the Companys 1989
Employees Stock Option Plan (the 1989 Option
Plan) and 2001 Employees Stock Option Plan (the
2001 Option Plan). |
|
(11) |
The shares shown as owned by Mr. Davis include
50,000 shares that Tate Capital Partners Fund, of which
Mr. Davis is a principal, may receive upon conversion of a
convertible note, and 20,000 shares |
52
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|
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underlying a warrant held by Tate Capital Partners Fund. In
addition, Tate Capital Partners Fund has received
6,748 shares of common stock as interest payments upon the
note outstanding. Mr. Davis disclaims beneficial ownership
of shares owned by the Tate Capital Partners Fund in excess of
his proportionate interest in the fund. Mr. Davis
address is Tate Capital Partners Fund, LLC, 3600 Minnesota
Drive, Suite 525, Minneapolis, MN 55435. |
|
(12) |
The shares shown as owned by Lester Pollack include
19,500 shares which he has the right to acquire pursuant to
Presently Exercisable Options under the Companys
1989 Director Plan and the Companys
1996 Director Plan. Mr. Pollacks address is
c/o Centre Partners Management LLC, 30 Rockefeller
Plaza, New York, NY 10020. |
|
(13) |
The shares shown as owned by Mr. Kosheff include
30,000 shares which he has the right to acquire pursuant to
Presently Exercisable Options under the Companys 2001
Option Plan. |
|
(14) |
The shares shown as owned by Dr. Buckler include
22,500 shares which he has the right to acquire pursuant to
Presently Exercisable Options under the Companys
1989 Director Plan and the Companys
1996 Director Plan. |
|
(15) |
The shares shown as owned by Mr. Hale include
22,500 shares which he has the right to acquire pursuant to
Presently Exercisable Options under the Companys
1989 Director Plan and the Companys
1996 Director Plan. Mr. Hales address is
c/o VXI Corporation, One Front Street, Rollinsford, NH
03869. |
|
(16) |
The shares shown as owned by Mr. Zanin include
21,000 shares which he has the right to acquire pursuant to
Presently Exercisable Options under the Companys 1989
Option Plan and 2001 Option Plan. |
|
(17) |
The shares shown as owned by Mr. LeSeguillon include
21,500 shares which he has the right to acquire pursuant to
Presently Exercisable Options under the Companys 1989
Option Plan and 2001 Option Plan. |
|
(18) |
The shares shown as owned by Mr. Wright include
1,000 shares owned by a family trust of which
Mr. Wright and his wife serve as co-trustees, and
4,500 shares which he has the right to acquire pursuant to
Presently Exercisable Options under the Companys
1989 Director Plan. Mr. Wright disclaims beneficial
ownership of the shares owned by the trust. |
|
(19) |
The number of shares shown as beneficially owned by officers and
directors include 331,250 shares which they have the right
to acquire pursuant to Presently Exercisable Options. |
MARKET FOR COMMON STOCK; DIVIDEND POLICY
Parlex common stock is traded on the Nasdaq National Market
under the ticker symbol PRLX. This table shows, for
the periods indicated, the high and low closing price per share
for Parlex common stock as reported by the Nasdaq National
Market.
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Parlex Common Stock |
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High | |
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Low | |
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Year ending June 30, 2006
|
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First Quarter (through
[ /05])
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$ |
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$ |
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Year ended June 30, 2005
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First Quarter (quarter ended 9/30/04)
|
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$ |
|
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$ |
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Second Quarter (quarter ended 12/31/04)
|
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$ |
|
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$ |
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Third Quarter (quarter ended 3/31/05)
|
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$ |
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$ |
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Fourth Quarter (quarter ended 6/30/05)
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$ |
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$ |
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Year ended June 30, 2004
|
|
|
|
|
|
|
|
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First Quarter (quarter ended 9/30/03)
|
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$ |
8.63 |
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$ |
6.79 |
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Second Quarter (quarter ended 12/31/03)
|
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$ |
8.92 |
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$ |
7.60 |
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Third Quarter (quarter ended 3/31/04)
|
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$ |
9.01 |
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$ |
5.81 |
|
Fourth Quarter (quarter ended 6/30/04)
|
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$ |
7.12 |
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$ |
5.98 |
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53
The high and low trading price per share for Parlex common stock
as reported by the Nasdaq National Market on
[ ],
the last trading day prior to the date of this Proxy Statement
were
$[ ]
and
$[ ],
respectively.
On [September , 2005], Parlex
common stock was held of record by
[ ]
stockholders.
Parlex has never declared or paid any cash dividends on its
common stock and presently intends to retain future earnings, if
any, for its business. Parlexs senior credit agreement
prohibits the payment or declaration of cash dividends on Parlex
common stock and preferred stock without the lenders prior
written consent. Dividends on Parlexs preferred stock
accrue cumulatively on a daily basis during each fiscal quarter
at an annual rate of $6.60 per share of preferred stock and
are paid in cash on the first day of each fiscal quarter, in
arrears, with the consent of Parlexs lender.
OTHER MATTERS
As of this time, the Parlex board of directors knows of no other
matters to be brought before the meeting. However, if other
matters properly come before the meeting or any adjournment
thereof, and if discretionary authority to vote with respect
thereto has been conferred by the enclosed proxy, the persons
named in the proxy will vote the proxy in accordance with their
best judgment as to such matters. Discretionary authority, if
conferred by the enclosed proxy, will include authority to vote
on matters concerning which Parlex did not receive timely notice
to the regulations adopted by the Securities and Exchange
Commission before mailing this proxy statement pursuant. For a
further description of these matters, see Merger
Agreement Stockholder Proposals.
Adjournments
The Special Meeting may be adjourned without notice, by an
announcement made at the Special Meeting or by approval of the
holders of a majority of the shares of Parlex common stock
present, in person or by proxy, who are entitled to vote at the
Special Meeting. Parlex is soliciting proxies to grant the
authority to vote in favor of adjournment of the Special
Meeting. In particular, authority is expected to be exercised if
the purpose of the adjournment is to provide additional time to
solicit votes in favor of approval of the Merger Agreement.
Parlexs board of directors recommends that you vote
FOR the proposal to grant the authority to vote
your shares to adjourn the meeting.
Stockholder Proposals
Parlexs 2004 Annual Meeting of Stockholders was held on
November 23, 2004. The 2005 Annual Meeting of Stockholders
will only be held if the Merger is not completed. Stockholders
who, in accordance with the SECs Rule 14a-8, wished
to present proposals for inclusion in the proxy materials to be
distributed by us in connection with our 2005 Annual Meeting of
Stockholders must have submitted their proposals to our Clerk on
or before June 25, 2005, except that if the date of the
2005 Annual Meeting of Stockholders is eventually held more than
30 calendar days before or after November 23, 2005, Parlex
must receive such proposal within a reasonable time before the
Parlex board of directors makes its proxy solicitation.
Under federal proxy rules, if a shareholder wishes to present
such a proposal, but fails to notify Parlex 45 days before
Parlex mails its proxy materials, the proxies solicited for the
annual meeting will include discretionary authority to vote on
the shareholders proposal in the event it is properly
brought before the meeting.
EXPENSES AND SOLICITATION
The cost of solicitation of proxies will be borne by Parlex. In
addition to soliciting stockholders by mail, certain of
Parlexs directors, officers and employees, without
additional remuneration, may solicit proxies in person or by
telephone or other means of electronic communication. Parlex
will not pay these
54
individuals for their solicitation activity but will reimburse
them for their reasonable out-of-pocket expenses. Brokers and
other custodians, nominees and fiduciaries will be asked to
forward proxy-soliciting material to the owners of stock held in
their names, and Parlex will reimburse such brokers and other
custodians, nominees and fiduciaries for their reasonable
out-of-pocket costs. Solicitation by directors, officers and
employees of Parlex may also be made of some stockholders in
person or by mail, telephone or other means of electronic
communication following the original solicitation. Parlex has
retained an independent proxy solicitation firm, Georgeson, to
assist in soliciting proxies. Parlex has agreed to pay
[ ]
fees for proxy solicitation services in the amount of
$[ ]
in fixed fees plus additional fees based on the number of
soliciting calls made to Parlex stockholders and the number of
votes received as a result of such calls, plus its expenses
incurred in performing such services.
WHERE STOCKHOLDERS CAN FIND MORE INFORMATION
Parlex Corporation files annual, quarterly and current reports,
proxy statements and other information with the SEC. These
reports, proxy statements and other information contain
additional information about Parlex and will be made available
for inspection and copying at Parlexs executive offices
during regular business hours by any shareholder or a
representative of a shareholder as so designated in writing. The
shareholders may read and copy any document that Parlex files
with the SEC at the SECs public reference room at
Judiciary Plaza Building, 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549. You should call the
SEC at 1-800-SEC-0330 for further information on the operation
of the public reference room. Parlexs SEC filings made
electronically through the SECs EDGAR system are also
available to the public at the SECs web site located at
http://www.sec.gov.
A list of shareholders will be available for inspection by
shareholders of record at Parlexs executive offices One
Parlex Place, Methuen, Massachusetts 10844 during regular
business hours beginning two business days after notice of the
special meeting is given and continuing to the date of the
Special Meeting or any adjournment thereof. The opinion of
Needham & Company that, as of August 16, 2005, the
consideration to be received by holders of shares of Parlex
common stock pursuant to the Merger Agreement was fair, from a
financial point of view, to such holders, a copy of which is
attached to this proxy statement as Annex B, will also be
available for inspection and copying at the same address, upon
written request by, and at the expense of, the interested
shareholder.
All information contained in this Proxy Statement relating to
Parlex has been supplied by Parlex and all information contained
herein relating to JE Holdings, Parent and Purchaser has been
supplied by JE Holdings.
You should rely only on the information contained in this Proxy
Statement. We have not authorized anyone to provide you with
information that is different from what is contained in this
Proxy Statement. This Proxy Statement is dated
[ ].
You should not assume that the information contained in this
Proxy Statement is accurate as of any date other than that date.
Neither the mailing of this Proxy Statement to stockholders nor
the issuance of cash in the Merger creates any implication to
the contrary.
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By Order of the Board of Directors |
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Edward D. Kutchin |
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Clerk |
[September ], 2005
55
ANNEX A
The Merger Agreement has been included to provide you with
information regarding its terms. It is not intended to provide
any other factual information about Parlex, JE Holdings, Parent
or Purchaser. Such information can be found elsewhere in this
Proxy Statement and in the public filings Parlex makes with the
Securities and Exchange Commission, which are available without
charge at www.sec.gov.
The Merger Agreement contains representations and
warranties Parlex, JE Holdings, Parent or Purchaser made to each
other. The assertions embodied in those representations and
warranties are qualified by information in confidential
disclosure schedules that Parlex, JE Holdings, Parent or
Purchaser have exchanged in connection with signing the Merger
Agreement. While none of Parlex, JE Holdings, Parent or
Purchaser believe that the disclosure schedules contain
information that the securities laws require to be publicly
disclosed, the disclosure schedules do contain information that
modifies, qualifies and creates exceptions to the
representations and warranties set forth in the attached merger
agreement. Accordingly, you should not rely on the
representations and warranties as characterizations of the
actual state of facts, since they are modified by the underlying
disclosure schedules. These disclosure schedules contain
information that has been included in Parlexs prior public
disclosures, as well as potential additional non-public
information. Moreover, information concerning the subject matter
of the representations and warranties may have changed since the
date of the Merger Agreement, which subsequent information may
or may not be fully reflected in Parlexs public
disclosures.
AGREEMENT AND PLAN OF MERGER
by and among
JOHNSON ELECTRIC HOLDINGS LIMITED,
J.E.C. ELECTRONICS SUB ONE, INC.,
J.E.C. ELECTRONICS SUB TWO, INC.
and
PARLEX CORPORATION
Dated as of
August 18, 2005
As Amended
As of August 24, 2005
A-1
Table of Contents
A-2
A-3
A-4
AGREEMENT AND PLAN OF MERGER, dated as of August 18,
2005 (this Agreement), among JOHNSON ELECTRIC
HOLDINGS LIMITED, a Bermuda corporation (JE
Holdings), J.E.C. ELECTRONICS SUB ONE, INC., a
Massachusetts corporation and an indirect wholly-owned
Subsidiary of JE Holdings (Parent), J.E.C.
ELECTRONICS SUB TWO, INC., a Massachusetts corporation and a
wholly owned Subsidiary of Parent
(Purchaser), and PARLEX CORPORATION, a
Massachusetts corporation (the Company).
Certain terms used herein as defined terms are defined in
Annex A hereof.
W I T N E S S
E T H:
WHEREAS, the Boards of Directors of JE Holdings, Parent,
Purchaser and the Company have each determined that it is in the
best interests of their respective stockholders for JE Holdings,
indirectly, through Parent and Purchaser, to acquire the Company
upon the terms and subject to the conditions set forth herein;
WHEREAS, the Company is willing to enter this Agreement with
Parent and Purchaser only if JE Holdings is also a party
hereto, and as an inducement to the Company to enter into this
Agreement, JE Holdings has agreed to be a party hereto;
WHEREAS, the respective Boards of Directors of JE Holdings,
Parent, Purchaser and the Company have each approved the merger
(the Merger) of Purchaser with and into the
Company in accordance with the Massachusetts Business
Corporation Act, as amended (the MBCA), on
the terms and subject to the conditions set forth in this
Agreement, whereby each issued and outstanding share of common
stock, par value $0.10 per share, of the Company (the
Company Common Stock) (shares of Company
Common Stock being hereafter collectively referred to as
Shares) not owned directly or indirectly by
JE Holdings, Parent, Purchaser or the Company shall be
converted into the right to receive $6.75 in cash;
WHEREAS, JE Holdings, Parent, Purchaser and the Company desire
to make certain representations, warranties, covenants and
agreements in connection with the Merger and to prescribe
various conditions to the Merger; and
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be
legally bound hereby, JE Holdings, Parent, Purchaser and the
Company hereby agree as follows:
Article I.
The Merger
1.1. The Merger. Upon the
terms and subject to the conditions set forth in
Article VII, and in accordance with the MBCA, at the
Effective Time (as hereinafter defined) Purchaser shall be
merged with and into the Company. As a result of the Merger, the
separate corporate existence of Purchaser shall cease and the
Company shall continue as the surviving corporation of the
Merger (the Surviving Corporation) and shall
continue to be governed by the laws of The Commonwealth of
Massachusetts. Notwithstanding anything to the contrary
contained in this Section 1.1, Parent may elect instead, at
any time after Stockholder Approval (as hereinafter defined) is
granted, to merge the Company into Purchaser or any other direct
or indirect wholly owned Subsidiary of JE Holdings;
provided, however, that the Company shall not be
deemed to have breached any of its representations, warranties
or covenants by reason of such election. In such event, the
parties agree to execute an appropriate amendment to this
Agreement in order to reflect the foregoing and to provide, as
the case may be, that Purchaser or such other wholly owned
Subsidiary of JE Holdings shall be the Surviving Corporation and
that JE Holdings, Parent, Purchaser and the Company shall make
commercially reasonable efforts to comply with notice provisions
and other terms of the outstanding Convertible Notes, Preferred
Shares and Warrants.
1.2. Effective Time;
Closing. No later than three Business Days after the
satisfaction or waiver of the conditions set forth in
Article VII, the parties hereto shall cause the Merger to
be consummated by
A-5
filing articles of merger with the Secretary of State of The
Commonwealth of Massachusetts, in such forms as are required by,
and executed in accordance with, the relevant provisions of the
MBCA (the date and time of such filing being the
Effective Time and such articles, the
Articles of Merger). On the date of such
filing, a closing shall be held at the offices of
Ropes & Gray LLP, One International Place, Boston,
Massachusetts 02110, or such other place as the parties shall
agree, for the purpose of confirming the satisfaction or waiver,
as the case may be, of the conditions set forth in
Article VII.
1.3. Effect of the Merger.
At the Effective Time, the effect of the Merger shall be as
provided in Section 11.07 of the MBCA. Without limiting the
generality of the foregoing, and subject thereto, at the
Effective Time, all the property, rights, privileges, powers and
franchises of the Company and Purchaser shall vest in the
Surviving Corporation, and all debts, liabilities, obligations,
restrictions, disabilities and duties of the Company and
Purchaser shall become the debts, liabilities, obligations,
restrictions, disabilities and duties of the Surviving
Corporation.
1.4. Articles of Organization;
By-laws. (a) At the Effective Time, subject to
Section 6.6(a), the articles of organization of the
Company, as in effect immediately prior to the Effective Time,
shall be the articles of organization of the Surviving
Corporation until thereafter amended as provided by law and such
articles of organization.
(b) Unless otherwise determined by Parent prior to the
Effective Time, and subject to Section 6.6(a), the by-laws
of the Company, as in effect immediately prior to the Effective
Time, shall be the by-laws of the Surviving Corporation until
thereafter amended as provided by law, the articles of
organization of the Surviving Corporation and such by-laws.
1.5. Directors and Officers.
The directors of Purchaser immediately prior to the Effective
Time shall be the initial directors of the Surviving
Corporation, each to hold office in accordance with the articles
of organization and by-laws of the Surviving Corporation, and
the officers of the Company immediately prior to the Effective
Time shall be the initial officers of the Surviving Corporation,
in each case until their respective successors are duly elected
or appointed and qualified or until their earlier death,
resignation or approval. The Company shall take all commercially
reasonable action to cause Purchasers appointees to be
duly elected as directors and officers of each Subsidiary of the
Surviving Corporation, effective as of the Effective Time.
1.6. Section 338(g)
Election. At the election of Parent, in its sole and
absolute discretion, Parent may make the election provided under
Section 338(g) of the Internal Revenue Code, as amended
(the Code) (including under any comparable
statutes in any other jurisdiction) with respect to the Company
and all Subsidiaries of the Company.
Article II.
Conversion of Securities.
2.1. Conversion of
Securities. At the Effective Time, by virtue of the Merger
and without any action on the part of Purchaser, the Company or
the holders of any of the following securities:
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(a) Each share of common stock, par value $0.10 per
share, of Purchaser issued and outstanding immediately prior to
the Effective Time shall be converted into and exchanged for one
validly issued, fully paid and nonassessable shares of common
stock, par value $0.10 per share, of the Surviving
Corporation; |
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(b) Each Share and Preferred Share held in the treasury of
the Company and each Share and Preferred Share owned by JE
Holdings, Purchaser, Parent or any direct or indirect wholly
owned Subsidiary of JE Holdings or of the Company immediately
prior to the Effective Time shall be canceled without any
conversion thereof and no payment or distribution shall be made
with respect thereto; |
A-6
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(c) Each Share issued and outstanding immediately prior to
the Effective Time (other than Shares to be cancelled in
accordance with Section 2.1(b) and other than Dissenting
Shares (as hereinafter defined)) shall be converted into the
right to receive $6.75, payable to the holder thereof in cash,
without interest (the Common Share Merger
Consideration), less any required withholding taxes; |
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(d) Each Preferred Share issued and outstanding immediately
prior to the Effective Time (other than Preferred Shares to be
cancelled in accordance with Section 2.1(b) and other than
Dissenting Shares) shall be converted into the right to receive
the Liquidation Value thereof, payable to the holder thereof in
cash, without interest or additional dividends thereon (the
Preferred Share Merger Consideration and
together with the Common Share Merger Consideration, the
Merger Consideration), less any required
withholding taxes. Prior to the Effective Time, the Company
shall be responsible for delivering to the Paying Agent (as
hereinafter defined) a list of holders of Preferred Shares and
such information as is in the Companys possession and
necessary to ensure proper withholding; and |
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(e) From and after the Effective Time, all such Shares and
Preferred Shares shall no longer be outstanding and shall
automatically be cancelled and retired and shall cease to exist,
and each holder of a certificate representing any such Shares or
Preferred Shares, as applicable, shall cease to have any rights
with respect thereto, except the right to receive the applicable
Merger Consideration therefor upon the surrender of such
certificate in accordance with Section 2.4, without
interest thereon. |
2.2. Employee Stock Options.
(a) The Company shall take all reasonable action to, as of
the Effective Time (i) terminate the stock option plans
listed in Section 3.3 of the Disclosure Schedule, (as
hereinafter defined) each as amended through the date of this
Agreement (the Company Stock Option Plans);
and (ii) cancel, at the Effective Time, each outstanding
option to purchase Shares granted under the Company Stock Option
Plans (each, a Company Stock Option) that is
outstanding and unexercised as of such time. Subject to the
foregoing, each holder of a Company Stock Option that is
outstanding and unexercised at the Effective Time, whether or
not then exercisable or vested, shall be entitled to receive
from the Paying Agent (as hereinafter defined) on behalf of the
Surviving Corporation, immediately after the Effective Time, in
exchange for the cancellation of such Company Stock Option, an
amount in cash equal to the excess, if any, of (i) the
Common Share Merger Consideration over (ii) the per share
exercise price of such Company Stock Option, multiplied by the
number of Shares subject to such Company Stock Option as of the
Effective Time (the Option Consideration).
Any such payment shall be subject to all applicable federal,
state and local tax withholding requirements. Prior to the
Effective Time, the Company shall be responsible for delivering
to the Paying Agent (i) a list of holders of Company Stock
Options, (ii) calculations showing the respective amount of
Option Consideration for each Company Stock Option, and
(iii) such information as is requested by Paying Agent and
in the Companys possession and necessary to ensure proper
withholding.
(b) The Company shall take all action reasonably necessary
to approve the disposition of the Company Stock Options in
connection with the transactions contemplated by this Agreement
(collectively, the Transactions) so as to
exempt such dispositions under Rule 16b-3 of the Exchange
Act.
2.3. Dissenting Shares.
(a) Notwithstanding any provision of this Agreement to the
contrary, Shares that are outstanding immediately prior to the
Effective Time and which are held by stockholders who have not
voted in favor of the Merger or consented thereto in writing and
who have demanded properly, and perfected their rights to be
paid the fair value of such Shares in accordance with
Section 13.02 of the MBCA (collectively, the
Dissenting Shares) shall not be converted
into or represent the right to receive the Merger Consideration.
Such stockholders shall be entitled to only such rights as are
granted by Section 13.02 of the MBCA, except that all
Dissenting Shares held by stockholders who have failed to
perfect, or who effectively shall have withdrawn or lost their
rights under such Section 13.02 of the MBCA shall thereupon
be deemed to have been converted into and to have become
exchangeable for, as of the Effective Time, the right to receive
the Merger Consideration, without
A-7
any interest thereon, upon surrender, in the manner provided in
Section 2.4, of the certificate or certificates that
formerly evidenced such Shares.
(b) The Company shall give Parent (i) prompt notice of
intent to demand the fair value of any Shares that is
communicated in writing to the Company, written withdrawals of
such demands, and any other instruments served pursuant to
Section 13.02 of the MBCA and received by the Company; and
(ii) the opportunity to direct all negotiations and
proceedings with respect to the exercise of dissenters
rights under Section 13.02 of the MBCA. The Company shall
not, except with the prior written consent of Parent, make any
payment with respect to any such exercise of dissenters
rights or offer to settle or settle any such demands.
2.4. Surrender of Shares; Stock
Transfer Books; Payment for Options. (a) Prior to the
Effective Time, Purchaser shall designate a bank or trust
company in the United States and reasonably acceptable to the
Company to act as agent (the Paying Agent)
for the holders of Shares, Preferred Shares and Company Stock
Options, as the case may be, to receive the funds to which
holders of Shares, Preferred Shares and Company Stock Options
shall become entitled pursuant to Sections 2.1(c), 2.1(d)
and 2.2(a). Prior to the Effective Time, JE Holdings, Parent or
Purchaser shall deposit, or cause to be deposited, with the
Paying Agent the aggregate Merger Consideration and Option
Consideration. If, for any reason, such funds are inadequate to
pay the amounts to which holders of Shares, Preferred Shares and
Company Stock Options shall be entitled under
Sections 2.1(c), 2.1(d) and 2.2(a), JE Holdings shall take
all steps necessary to enable or cause the Surviving Corporation
promptly to deposit in trust additional cash with the Paying
Agent sufficient to make all payments required under
Sections 2.1(c), 2.1(d) and 2.2(a), and, as of the
Effective Time, JE Holdings and the Surviving Corporation shall
become liable for payment thereof. The funds so deposited with
the Paying Agent shall not be used for any purpose except as
expressly provided in this Agreement. Such funds shall be
invested by the Paying Agent as directed by JE Holdings or
Parent.
(b) Promptly, but in no event more than five Business Days
after the Effective Time, the Surviving Corporation shall cause
to be mailed to each person who was, at the Effective Time, a
holder of record of Shares or Preferred Shares entitled to
receive Merger Consideration pursuant to Sections 2.1(c) or
2.1(d) a form of letter of transmittal (which shall be in a form
reasonably acceptable to the Company and shall specify that
delivery shall be effected, and risk of loss and title to the
certificates evidencing such Shares or Preferred Shares (the
Certificates) shall pass, only upon proper
delivery of the Certificates to the Paying Agent and compliance
with the standard procedures of the Paying Agent) and
instructions for use in effecting the surrender of the
Certificates pursuant to such letter of transmittal. Upon
surrender to the Paying Agent of a Certificate, together with
such letter of transmittal, duly completed and validly executed
in accordance with the instructions thereto, and such other
documents as may be required pursuant to such instructions, the
holder of such Certificate shall be entitled to receive in
exchange therefor the Merger Consideration for each Share or
Preferred Share formerly evidenced by such Certificate, and such
Certificate shall then be canceled. No interest shall accrue or
be paid on the Merger Consideration payable upon the surrender
of any Certificate for the benefit of the holder of such
Certificate. If payment of the Merger Consideration is to be
made to a person other than the person in whose name the
surrendered Certificate is registered on the stock transfer
books of the Company, it shall be a condition of payment that
the Certificate so surrendered shall be endorsed properly or
otherwise be in proper form for transfer and that the person
requesting such payment shall have paid all transfer and other
taxes required by reason of the payment of the Merger
Consideration to a person other than the registered holder of
the Certificate surrendered or shall have established to the
satisfaction of the Surviving Corporation that such taxes either
have been paid or are not applicable.
(c) If any Certificate shall have been lost, stolen or
destroyed, upon making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or
destroyed, the Paying Agent shall issue in exchange for such
lost, stolen or destroyed Certificate the Merger Consideration
deliverable in respect thereof determined in accordance with
this Article II; provided, however, that
Parent or the Paying Agent may require the delivery of a
reasonable indemnity or bond against any claim that may be made
against the Surviving Corporation with respect to such
Certificate or ownership thereof.
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(d) Promptly after the Effective Time, the Surviving
Corporation shall cause the Paying Agent to pay to each person
who was, at the Effective Time, a holder of record of Company
Stock Options, the Option Consideration to which such person is
entitled pursuant to Section 2.2(a).
(e) At any time following the ninth month after the
Effective Time, the Surviving Corporation shall be entitled to
require the Paying Agent to deliver to it any funds which had
been made available to the Paying Agent and not disbursed to
holders of Shares, Preferred Shares or Company Stock Options
(including, without limitation, all interest and other income
received by the Paying Agent in respect of all funds made
available to it) and, thereafter, such holders shall be entitled
to look to the Surviving Corporation (subject to abandoned
property, escheat and other similar laws) only as general
creditors thereof with respect to any Merger Consideration or
Option Consideration that may be payable upon due surrender of
the Certificates held by them. Notwithstanding the foregoing,
neither the Surviving Corporation nor the Paying Agent shall be
liable to any holder of a Share, Preferred Share or Company
Stock Option for any Merger Consideration or Option
Consideration delivered in respect of such Share, Preferred
Share or Company Stock Option to a public official pursuant to
any abandoned property, escheat or other similar law.
(f) At the close of business on the day of the Effective
Time, the stock transfer books of the Company shall be closed
and thereafter there shall be no further registration of
transfers of Shares or Preferred Shares on the records of the
Company. From and after the Effective Time, the holders of
Shares, Preferred Shares and Company Stock Options outstanding
immediately prior to the Effective Time shall cease to have any
rights with respect to such Shares, Preferred Shares and Company
Stock Options except as otherwise provided herein or by
Applicable Law.
Article III.
Representations and
Warranties of the Company
Except as set forth in the corresponding sections or subsections
of the written Company Disclosure Schedule (the
Disclosure Schedule) or, except as
specifically set forth in Section 3.7, as disclosed in an
SEC Report (as defined in Section 3.9) filed prior to the
date hereof, the Company makes the representations and
warranties to JE Holdings, Parent and Purchaser that are set
forth below. Each exception set forth in the Disclosure Schedule
is identified by reference to, or has been grouped under a
heading referring to, a specific individual section or
subsection of this Agreement; provided, however,
that any information disclosed therein under any section number
shall be deemed to be disclosed and incorporated in any other
section of the Disclosure Schedule where such disclosure would
be appropriate and readily apparent. The Disclosure Schedule and
the information and disclosures contained therein are intended
only to qualify and limit the representations, warranties and
covenants of the Company contained in this Agreement.
3.1. Organization and
Qualification; Subsidiaries. (a) Each of the Company
and each Subsidiary of the Company is an entity duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has the requisite
corporate power and authority to own, lease and operate its
properties and to carry on its business as it is now being
conducted, except where the failure to be so organized, existing
and in good standing or to have such power and authority would
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The Company and each Subsidiary
is duly qualified or licensed as a foreign corporation to do
business, and is in good standing, in each jurisdiction where
the character of the properties owned, leased or operated by it
or the nature of its business makes such qualification or
licensing necessary, except where the failure to be so duly
qualified or licensed and in good standing would not reasonably
be expected to have a Material Adverse Effect.
(b) Section 3.1(b) of the Disclosure Schedule, sets
forth the name, jurisdiction of incorporation and authorized and
outstanding capital stock of each Subsidiary of the Company.
Except as disclosed in Section 3.1(b) of the Disclosure
Schedule, the Company does not directly or indirectly own any
equity or
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similar interest in, or any interest convertible into or
exchangeable or exercisable for any equity or similar interest
in, any corporation, partnership, joint venture or other
business association or entity.
3.2. Articles of Organization
and By-laws. The Company has heretofore made available to
Parent a complete and correct copy of the articles of
organization and the by-laws or equivalent organizational
documents, each as amended to date, of the Company and each
Subsidiary. Such articles of organization, by-laws or equivalent
organizational documents are in full force and effect. The
Company is not in violation of any of the provisions of its
articles of organization, by-laws or equivalent organizational
documents. Other than PIC, each of the Companys
Subsidiaries is in compliance with its articles of organization,
by-laws or equivalent organizational documents, except as would
not have a Material Adverse Effect.
3.3. Capitalization. The
authorized capital stock of the Company consists of
30,000,000 Shares, $0.10 par value per share, and
1,000,000 Preferred Shares, par value $1.00 per share. As
of the date hereof, (a) 6,488,425 Shares are issued
and outstanding, all of which are validly issued, fully paid and
nonassessable; (b) 665,525 Shares are issuable upon
exercise of outstanding stock options;
(c) 406,250 Shares are issuable upon conversion of
outstanding Preferred Shares; (d) 484,625 Shares are
issuable upon exercise of outstanding Warrants; and
(e) 750,000 Shares are issuable upon conversion of
outstanding 7% Convertible Subordinated Notes due
July 28, 2007 (the Convertible Notes).
As of the date hereof, except as set forth in Section 3.3
of the Disclosure Schedule, there are no options, warrants or
other rights, agreements, arrangements or commitments of any
character relating to the issued or unissued capital stock of
the Company or any Subsidiary or obligating the Company or any
Subsidiary to issue or sell any shares of capital stock of, or
other equity interests in, the Company or any Subsidiary. All
Shares subject to issuance as aforesaid, upon issuance on the
terms and conditions specified in the instruments pursuant to
which they are issuable, will be duly authorized, validly
issued, fully paid and nonassessable. Except as set forth in
Section 3.3 of the Disclosure Schedule, there are no
outstanding contractual obligations of the Company or any
Subsidiary to issue, repurchase, redeem or otherwise acquire any
Shares or any capital stock of any Subsidiary or to provide
funds to, or make any investment (in the form of a loan, capital
contribution or otherwise) in, any Subsidiary or any other
person. Each outstanding share of capital stock of each
Subsidiary is duly authorized, validly issued, fully paid and
nonassessable, and, except as set forth in Section 3.3 of
the Disclosure Schedule, each such share is owned by the Company
or another Subsidiary free and clear of all security interests,
liens, claims, pledges, options, rights of first refusal,
agreements, limitations on the Companys or any
Subsidiarys voting rights, charges and other encumbrances
of any nature whatsoever.
3.4. Authority Relative to This
Agreement. The Company has all necessary corporate power and
authority to execute and deliver this Agreement, to perform its
obligations hereunder and, subject, in the case of the Merger,
to obtaining Stockholder Approval (as defined in
Section 3.6 below), to consummate the Transactions. The
execution and delivery of this Agreement by the Company and the
performance by the Company of its obligations hereunder have
been duly and validly authorized by all necessary corporate
action, and no other corporate proceedings on the part of the
Company are necessary to authorize the execution and delivery of
this Agreement or to consummate the Transactions (other than,
with respect to the Merger, obtaining Stockholder Approval, if
and to the extent required by Applicable Law, and the filing and
recordation of appropriate merger documents as required by the
MBCA). This Agreement has been duly executed and delivered by
the Company and, assuming the due authorization, execution and
delivery by JE Holdings, Parent and Purchaser, constitutes a
legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except that
(i) such enforcement may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws, now or hereafter in effect, affecting
creditors rights generally; and (ii) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may
be brought.
3.5. Board Approvals and
Takeover Laws. The Company Board of Directors (the
Board), at a meeting duly called and held,
has unanimously (i) determined, as of the date of this
Agreement, that this Agreement and the Merger, taken together,
are fair to and in the best interests of the stockholders of the
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Company; (ii) duly and validly approved, as of the date of
this Agreement, and taken all corporate action required to be
taken by the Board to authorize the Transactions; and
(iii) resolved to recommend, as of the date of this
Agreement, that the stockholders of the Company accept, approve
and adopt this Agreement and the Merger, and none of the
aforesaid actions by the Board has been amended, rescinded or
modified except as permitted by the terms of this Agreement.
Assuming the accuracy of the representations and warranties
contained in Section 4.8, the actions taken by the Board
are sufficient to render inapplicable to JE Holdings, Parent,
Purchaser and the Merger, the provisions of Chapters 110C
and 110F of the Massachusetts Corporation-Related Laws, as
amended (the MCRL). To the Companys
knowledge, no other state takeover statute, or other state law
that purports to limit or restrict business combinations or the
ability to acquire or vote shares, is applicable to the
Transactions.
3.6. Required Vote. The
affirmative vote of the stockholders of two-thirds of the
outstanding Shares, voting as a single class, is the only vote
of the stockholders of any class or series of the Companys
capital stock necessary to approve the Merger (the
Stockholder Approval).
3.7. No Conflict; Required
Filings and Consents. (a) The execution and delivery of
this Agreement by the Company do not, and the performance of its
obligations under this Agreement shall not, (i) conflict
with or violate the articles of organization or by-laws or
equivalent organizational documents of the Company or any
Subsidiary; (ii) assuming that all consents, approvals,
authorizations and other actions described in
Section 3.7(b) have been obtained and all filings and
obligations described in Section 3.7(b) have been made and,
subject, in the case of the Merger, to obtaining Stockholder
Approval, conflict with or violate any Applicable Law or by
which any property or asset of the Company or any Subsidiary is
bound or affected; or (iii) subject to obtaining the
consents listed in Section 3.7 of the Disclosure Schedule,
which list does not incorporate information from or consents
listed in the SEC Reports, result in any breach of or constitute
a default (or an event which, with notice or lapse of time or
both, would become a default) under, or give to others any right
of termination, amendment, acceleration or cancellation of, or
result in the creation of a lien or other encumbrance on any
property or asset of the Company or any Subsidiary pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation,
except, with respect to clauses (ii) and (iii), for any
such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or materially delay
consummation of the Merger and would not reasonably be expected
to have a Material Adverse Effect.
(b) The execution and delivery of this Agreement by the
Company do not, and the performance of this Agreement by the
Company shall not, require any consent, approval, authorization
or permit of, or filing with or notification to, any
Governmental Authority except (i) for applicable
requirements, if any, of the Exchange Act, state securities or
blue sky laws (Blue Sky Laws),
state takeover laws, the pre-merger notification requirements of
the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended (the HSR Act), the Exon-Florio
provision pursuant to Section 5021 of the Omnibus Trade and
Competitiveness Act of 1988 (amending Section 721 of the
Defense Production Act of 1950) (the Exon-Florio
Provision) and the requirements in the countries where
a merger filing will be necessary and filing and recordation of
appropriate merger documents as required by the MCBA (the
Company Required Approvals); and
(ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or
notifications, would not prevent or materially delay
consummation of the Merger and would not reasonably be expected
to have a Material Adverse Effect. Section 3.7(b) of the
Disclosure Schedule contains a complete list of Company Required
Approvals and the countries where a merger filing is necessary,
except for countries where the failure to file would not
reasonably be expected to have a Material Adverse Effect, and
does not incorporate information from, or consents listed in,
the SEC Reports.
3.8. Permits; Compliance.
(a) Except with respect to Environmental Permits (as
defined and addressed in Section 3.18) , each of the
Company and the Subsidiaries is in possession of all franchises,
grants, authorizations, licenses, permits, easements, variances,
exceptions, consents, certificates, approvals and orders of any
Governmental
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Authority necessary for each of the Company or the Subsidiaries
to own, lease and operate its properties or to carry on its
business as it is now being conducted (the
Permits) except where the failure to have, or
the suspension or cancellation of, any of the Permits would not
prevent or materially delay consummation of the Merger and would
not reasonably be expected to have a Material Adverse Effect. As
of the date hereof, no suspension or cancellation of any of the
Permits is pending or, to the knowledge of the Company,
threatened, except where the failure to have, or the suspension
or cancellation of, any of the Permits would not prevent or
materially delay consummation of the Merger and would not
reasonably be expected to have a Material Adverse Effect.
(b) After giving effect to the Transactions, to the
knowledge of the Company, all such licenses, permits, franchises
and other governmental authorizations will continue to be valid
and in full force and effect, except as set forth in
Section 3.8(b) of the Disclosure Schedule or as would not
reasonably be expected to have a Material Adverse Effect. The
Company and its Subsidiaries are in compliance in all material
respects with Applicable Laws by which the property and assets
of the Company and its Subsidiaries are bound or affected.
Neither the Company nor any Subsidiary nor any property or asset
of the Company or any Subsidiary is subject to any continuing
order of, consent decree, settlement agreement or similar
written agreement with or, to the knowledge of the Company,
continuing investigation by, any Governmental Authority, or any
order, writ, judgment, injunction, decree, determination or
award of any Governmental Authority that would, as of the date
hereof, prevent or materially delay consummation of the Merger
or would reasonably be expected to have a Material Adverse
Effect.
3.9. SEC Filings; Financial
Statements. (a) The Company and its Subsidiaries have
timely filed (or obtained an extension of the time for filing)
each form, report, schedule, registration statement,
registration exemption, if applicable, definitive proxy
statement and other document (together with all amendments
thereof and supplements thereto) required to be filed by the
Company or any of its Subsidiaries pursuant to the Securities
Act or the Exchange Act with the Securities and Exchange
Commission (the SEC) since June 30, 2003
(as such documents have since the time of their filing been
amended or supplemented, the SEC Reports).
Those SEC Reports that were not amended or supplemented complied
and all SEC Reports that amended and supplemented previous
filings complied, as of their respective dates, as to form in
all material respects with the requirements of the Securities
Act or the Exchange Act, as the case may be, the Sarbanes-Oxley
Act of 2002 (SOX) and the rules and
regulations of the SEC promulgated thereunder applicable to such
SEC Reports, in each case to the extent in effect on the date of
filing. Each of the SEC Reports did not, when filed, contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading, except to the extent
corrected by a subsequently filed SEC Report filed with the SEC
prior to the date of this Agreement.
(b) Each of the principal executive officer of the Company
and the principal financial officer of the Company (or each
former principal executive officer of the Company and each
former principal financial officer of the Company, as
applicable) has made all certifications required by
Rule 13a-14 or 15d-14 under the Exchange Act or
Sections 302 and 906 of SOX and the rules and regulations
of the SEC promulgated thereunder with respect to the SEC
Reports, and to the knowledge of the Company, the statements
contained in such certifications are true and correct. For
purposes of the preceding sentence and Section 3.9(f)
hereof, principal executive officer and
principal financial officer shall have the meanings
given to such terms in SOX. Neither the Company nor any of its
Subsidiaries has outstanding, or has arranged any outstanding,
extensions of credit to directors or executive
officers within the meaning of Section 402 of SOX.
(c) The audited consolidated financial statements and
unaudited interim consolidated financial statements (including,
in each case, the notes, if any, thereto) included in the SEC
Reports (the Financial Statements) complied
as to form in all material respects with the published rules and
regulations of the SEC with respect thereto, were prepared in
accordance with U.S. generally accepted accounting
principles (GAAP) applied on a consistent
basis during the periods involved (except as may be indicated
therein or in the notes thereto and except with respect to
unaudited statements as permitted
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by Form 10-Q or 8-K or the applicable rules of the
SEC) and fairly present in all material respects (subject, in
the case of the unaudited interim financial statements, to
normal, year-end audit adjustments that were not or are not
expected to be, individually or in the aggregate, materially
adverse to the consolidated financial position of the Company)
the consolidated financial position of the Company and its
consolidated Subsidiaries as of the respective dates thereof and
the consolidated results of their operations and cash flows for
the respective periods then ended. The Companys foreign
Subsidiaries maintain their books pursuant to local accounting
rules and adjust their books to conform to GAAP for
consolidation purposes. Therefore, the books and records of the
Company and its Subsidiaries have been, and are being,
maintained in accordance with GAAP.
(d) Neither the Company nor any of its Subsidiaries is a
party to, or has any commitment to become a party to, any joint
venture, off-balance sheet, partnership or any similar contract
or arrangement (including any contract or arrangement relating
to any transaction or relationship between or among the Company
and any of its Subsidiaries, on the one hand, and any Affiliate,
including any structured finance, special purpose or limited
purpose entity or Person, on the other hand or any
off-balance sheet arrangements (as defined in
Item 303(a) of Regulation S-K of the SEC), where the
result, purpose or intended effect of such contract or
arrangement is to avoid disclosure of any material transaction
involving, or material liabilities of, the Company or any of its
Subsidiaries in the Companys or such Subsidiarys
published financial statements or other SEC Reports.
(e) The Company has established and maintains a system of
internal accounting controls designed to provide reasonable
assurance that (i) transactions are executed in accordance
with managements general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and
to maintain asset accountability; (iii) access to assets is
permitted only in accordance with managements general or
specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with
respect to any differences.
(f) The Company has established and maintains
disclosure controls and procedures (as defined in
Rules 13a-15(e) and 15d-15(e) of the Exchange Act) designed
to enable the principal executive officer and principal
financial officer of the Company to engage in the review and
evaluation process mandated by the Exchange Act and the rules
promulgated thereunder. The Companys disclosure
controls and procedures are reasonably designed to ensure
that all information (both financial and non-financial) required
to be disclosed by the Company in the reports that it files or
submits under the Exchange Act is recorded, processed,
summarized and reported within the time periods specified in the
rules and forms of the Company, and that all such information is
accumulated and communicated to the Companys management as
appropriate to allow timely decisions regarding required
disclosure and to make the certifications of the principal
executive officer and principal financial officer of the Company
required under the Exchange Act with respect to such reports.
(g) Except as set forth in Section 3.9(g) of the
Disclosure Schedule, since June 30, 2003, the Company has
not received any oral or written notification of a
(x) reportable condition or
(y) material weakness in the Companys
internal controls. For purposes of this Agreement, the terms
reportable condition and material
weakness shall have the meanings assigned to them in the
Statements of Auditing Standards 60, as in effect on the date
hereof.
(h) None of the Companys Subsidiaries are, or has at
any time since June 30, 2003, been, subject to the
reporting requirements of Sections 13(a) and 15(d) of the
Exchange Act.
3.10. Absence of Undisclosed
Liabilities. Except for matters reflected or reserved
against in the balance sheet (or notes thereto) as of
June 30, 2004 (the 2004 Balance Sheet)
included in the Financial Statements or as set forth in
Section 3.10 of the Disclosure Schedule, as of the date of
this Agreement, neither the Company nor any of its Subsidiaries
has any liabilities (whether absolute, accrued, contingent,
fixed or otherwise, or whether due or to become due) of any
nature that would be required by GAAP to be reflected on a
consolidated balance sheet of the Company and its consolidated
Subsidiaries (including the notes thereto), except liabilities
or obligations (i) that were incurred in the ordinary course
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of business consistent with past practice since June 30,
2004; or (ii) that, individually or in the aggregate, have
not had and would not reasonably be expected to have a Material
Adverse Effect on the Company.
3.11. Absence of Certain Changes
or Events. Since June 30, 2004, except as contemplated
by this Agreement or set forth in Section 3.11 of the
Disclosure Schedule, the Company and the Subsidiaries have
conducted their businesses only in the ordinary course and in a
manner consistent with past practice and, since June 30,
2004, there has not been (i) any change in the business,
operations, properties, condition (financial or otherwise),
assets or liabilities (including, without limitation, contingent
liabilities) of the Company or any Subsidiary (assessed on a
consolidated basis) having, individually or in the aggregate, a
Material Adverse Effect; (ii) any damage, destruction or
loss (whether or not covered by insurance) with respect to any
property or asset of the Company or any Subsidiary and having,
individually or in the aggregate, a Material Adverse Effect;
(iii) any change by the Company in its accounting methods,
principles or practices; (iv) any revaluation by the
Company of any asset (including, without limitation, any writing
down of the value of inventory or writing off of notes or
accounts receivable), other than in the ordinary course of
business consistent with past practice; (v) any entry by
the Company or any Subsidiary into any commitment or transaction
material to the Company and the Subsidiaries taken as a whole;
(vi) any declaration, setting aside or payment of any
dividend or distribution in respect of any capital stock of the
Company or any redemption, purchase or other acquisition of any
of its securities other than regular quarterly dividends on the
Preferred Shares not in excess of $1.65 per share; or
(vii) any increase in or establishment of any bonus,
insurance, severance, deferred compensation, pension,
retirement, profit sharing, stock option (including, without
limitation, the granting of stock options, stock appreciation
rights, performance awards, or restricted stock awards), stock
purchase or other employee benefit plan, or any other increase
in the compensation payable or to become payable to any officers
or key employees of the Company or any Subsidiary, except in the
ordinary course of business consistent with past practice.
3.12. Absence of Litigation.
Except as disclosed in the SEC Reports filed prior to the date
of this Agreement or in Section 3.12 of the Disclosure
Schedule, there is no litigation, suit, claim, action,
proceeding or investigation (an Action)
pending or, to the knowledge of the Company, threatened against
the Company or any Subsidiary, or any property or asset of the
Company or any Subsidiary, before any Governmental Authority
that (a) would reasonably be expected to have a Material
Adverse Effect or (b) as of the date hereof, seeks to
materially delay or prevent the consummation of any Transaction.
3.13. Employee Benefit
Plans. (a) Section 3.13(a) of the Disclosure
Schedule lists (i) all material employee benefit plans (as
defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (ERISA) and
all material bonus, stock option, stock purchase, restricted
stock, incentive, deferred compensation, retiree medical or life
insurance, supplemental retirement, severance or other material
benefit plans, programs or arrangements, and all material
employment, termination, severance or other contracts or
agreements to which the Company or any Subsidiary is a party,
with respect to which the Company or any Subsidiary has any
obligation or which are maintained, contributed to or sponsored
by the Company or any Subsidiary for the benefit of any current
or former employee, officer or director of the Company or any
Subsidiary; (ii) each material employee benefit plan for
which the Company or any Subsidiary is reasonably expected to
incur liability under Section 4069 of ERISA in the event
such plan has been or were to be terminated; (iii) any
material plan in respect of which the Company or any Subsidiary
could reasonably be expected to incur liability under
Section 4212(c) of ERISA; and (iv) any material
contracts or legally enforceable arrangements between the
Company or any Subsidiary and any employee of the Company or any
Subsidiary, including, without limitation, any contracts or
arrangements relating to a sale of the Company or any Subsidiary
(collectively, with the exception of any plans, programs or
arrangements not subject to United States law, the
Plans). The Company has made available to
Purchaser a true and complete copy of each Plan and has made
available to Purchaser a true and complete copy of each material
document, if any, prepared in connection with each such Plan,
including, without limitation, as applicable (i) a copy of
each trust or other funding arrangement; (ii) each most
recent summary plan description and summary of material
modifications; (iii) the most recently filed Internal
Revenue Service (IRS) Form 5500;
(iv) the most recently
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received IRS determination letter for each such Plan, and
(v) the most recently prepared actuarial report and
financial statement in connection with each such Plan.
(b) Except as set forth in Section 3.13(b) of the
Disclosure Schedule, none of the Plans is a multiemployer plan
(within the meaning of Section 3(37) or 4001(a)(3) of
ERISA) (a Multiemployer Plan) or a single
employer pension plan (within the meaning of
Section 4001(a)(15) of ERISA) for which the Company or any
Subsidiary could incur liability under Section 4063 or 4064
of ERISA (a Multiple Employer Plan). Except
as set forth in Section 3.13(b) of the Disclosure Schedule,
none of the Plans (i) provides for the payment of
separation, severance, termination or similar-type benefits to
any person by itself or solely or partially as a result of any
transaction contemplated by this Agreement; or
(ii) obligates the Company or any Subsidiary to make any
payment or provide any benefit as a result of a change in
control, within the meaning of such term under
Section 280G of the Code. Except as set forth in
Section 3.13(b) of the Disclosure Schedule, none of the
Plans provides for or promises retiree medical, disability or
life insurance benefits to any current or former employee,
officer or director of the Company or any Subsidiary, other than
continuation coverage mandated by Sections 601 through 608
of ERISA and Section 4980B(f) of the Code.
(c) Each Plan is currently in material compliance with, and
has, for the period with respect to which the applicable statute
of limitation has not expired, been administered and operated in
all material respects in accordance with, its terms and the
requirements of all Applicable Laws, including, without
limitation, ERISA and the Code. The Company and the Subsidiaries
have performed all obligations required to be performed by them
under and are not in any default under or in violation of, and
the Company has no knowledge of any default or violation by any
party to, any Plan, except as would not have a Material Adverse
Effect. No Action is pending or, to the knowledge of the
Company, threatened with respect to any Plan (other than claims
for benefits in the ordinary course) and, to the knowledge of
the Company, no fact or event exists that could give rise to any
such Action.
(d) Each Plan that is intended to be qualified under
Section 401(a) of the Code or Section 401(k) of the
Code has timely received a favorable determination letter or
opinion letter, as applicable, from the IRS regarding such
qualified status, which covers all of the provisions applicable
to the Plan for which determination or opinion letters, as
applicable, are currently available and each trust established
in connection with any Plan which is intended to be exempt from
federal income taxation under Section 501(a) of the Code
has received a determination letter from the IRS that it is so
exempt, and, to the knowledge of the Company, no fact or event
has occurred since the date of such determination letter or
letters from the IRS that could reasonably be expected to
adversely affect the qualified status of any such Plan or the
exempt status of any such trust.
(e) There has not been any prohibited transaction (within
the meaning of Section 406 of ERISA or Section 4975 of
the Code) that would give rise to a material liability with
respect to any Plan. Neither the Company nor any ERISA Affiliate
has incurred any liability under, arising out of or by operation
of Title IV of ERISA (other than liability for premiums to
the Pension Benefit Guaranty Corporation arising in the ordinary
course), including, without limitation, any liability in
connection with (i) the termination or reorganization of
any employee benefit plan subject to Title IV of ERISA, or
(ii) the withdrawal from any Multiemployer Plan or Multiple
Employer Plan and, to the knowledge of the Company, no fact or
event exists which could give rise to any such liability.
(f) Except as set forth in Section 3.13(f), all
material contributions, premiums or payments required to be made
with respect to any Plan have been made in full on or before
their due dates. No deduction for such contributions has been
challenged or disallowed by any Governmental Authority and, to
the knowledge of the Company, no fact or event exists which
could give rise to any such challenge or disallowance. All
contributions, premiums and payments accrued under each Plan,
determined in accordance with prior funding and accrual
practices, as adjusted to include proportional accruals for the
period ending at the Effective Time, will be discharged and paid
on or prior to the Effective Time except to the extent reflected
as a liability on the Company Financial Statements. All
long-term disability benefits
A-15
made available to employees of the Company are fully insured
under insurance policies and such insurance policies are in full
force and effect.
(g) There has been no material failure of a Plan that is a
group health plan (as defined in Section 5000(b)(1) of the
Code) to meet the requirements of Code Section 4980B(f)
with respect to a qualified beneficiary (as defined in
Section 4980B(g)). To the knowledge of the Company, the
Company has not made contributions to a nonconforming group
health plan (as defined in Section 5000(c) of the Code) and
no ERISA Affiliate of the Company has incurred a tax under
Section 5000(a) which is or could reasonably be expected to
become a material liability of the Company.
(h) Section 3.13(h) of the Disclosure Schedule sets
forth each plan, program or arrangement that would be a Plan
except that it is subject to the laws of a jurisdiction other
than the United States (a Non-U.S. Benefit
Plan). With respect to each Non-U.S. Benefit Plan:
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(i) all employer and employee contributions to each
Non-U.S. Benefit Plan required by law or by the terms of
such Non-U.S. Benefit Plan have been timely made (except
for any instances of noncompliance that would not have a
Material Adverse Effect), or, if applicable, accrued in
accordance with normal accounting practices, and a pro
rata contribution for the period prior to and including
the date of this Agreement has been made or accrued; |
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(ii) with respect to any Non-U.S. Benefit Plans that
are not government-mandated plans or programs, the fair market
value of the assets the liability of each insurer, or the book
reserve established for any such Non-U.S. Benefit Plan,
together with any accrued contributions, is sufficient to
procure or provide for the benefits determined on an ongoing
basis accrued to the date of this Agreement with respect to all
current and former participants under such Non-U.S. Benefit
Plan according to the actuarial assumptions and valuations most
recently used to determine employer contributions to such
Non-U.S. Benefit Plan, and no Transaction shall cause such
assets or insurance obligations to be less than such benefit
obligations; and |
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(iii) each Non-U.S. Benefit Plan required to be
registered has been registered and has been maintained in good
standing with applicable regulatory authorities and is approved
by any applicable taxation authorities to the extent such
approval is available. Each Non-U.S. Benefit Plan is now
and always has been operated in material compliance with all
applicable non-United States laws and regulations. |
3.14. Labor and Employment
Matters. (a) Except as set forth in
Section 3.14(a) of the Disclosure Schedule, (i) to the
knowledge of the Company, there is no pending or threatened
litigation between the Company or any Subsidiary and any of
their respective employees or independent contractors;
(ii) neither the Company nor any Subsidiary is a party to
any collective bargaining agreement, work council agreement,
work force agreement or any other labor union contract
applicable to persons employed by the Company or any Subsidiary,
nor, to the knowledge of the Company, are there any activities
or proceedings of any labor union to organize any such
employees; (iii) to the knowledge of the Company, neither
the Company nor any Subsidiary has breached or otherwise failed
to comply with any provision of any agreement or contract
relating to employees or contractors, and there are no
grievances outstanding against the Company or any Subsidiary
under any collective bargaining agreement, union contract, work
counsel agreement or work force agreement or contract;
(iv) to the knowledge of the Company, there are no unfair
labor practice complaints pending against the Company or any
Subsidiary before the National Labor Relations Board or any
other court or tribunal; and (v) there is no strike,
slowdown, work stoppage or lockout or, to the knowledge of the
Company, threat thereof, by or with respect to any employees of
the Company or any Subsidiary. The consent of any labor union is
not required to consummate the Transactions. There is no
obligation to inform, consult or obtain consent, whether in
advance or otherwise, of any works council, employee
representatives or other representative bodies in order to
consummate the Transactions.
(b) To the knowledge of the Company, the Company and its
Subsidiaries are, and have been, in material compliance with all
Applicable Laws relating to the employment of labor, including
those related
A-16
to wages, hours, collective bargaining, notice of termination,
workers compensation, state disability law, and the payment and
withholding of taxes and other sums as required by the
appropriate Governmental Authority and have withheld and paid to
the appropriate Governmental Authority or are holding for
payment not yet due to such Governmental Authority all amounts
required to be withheld from employees of the Company or any
Subsidiary and are not liable for any arrears of wages, taxes,
penalties or other sums for failure to comply with any of the
foregoing, except as set forth in Section 3.14(b) of the
Disclosure Schedule and where noncompliance, failure to withhold
such amounts, and the incurrence of such liability would not
reasonably be expected to be material. To the knowledge of the
Company, the Company and its Subsidiaries have appropriately
classified independent contractors and employees and within the
three (3) years preceding the date hereof, they have had no
claims asserted in any forum for any misclassification of
workers, failure to withhold taxes, failure to provide benefits
or other perquisites of employment to independent contractors.
To the knowledge of the Company, the Company and its
Subsidiaries have paid in full to all employees, or adequately
accrued for in accordance with GAAP consistently, applied all
wages, salaries, commissions, bonuses, benefits and other
compensation due to or on behalf of such employees or
contractors, and there is no administrative claim, court
complaint, or other legal proceeding pending before any
Governmental Authority nor, to the knowledge of the Company, is
there any threatened administrative claim, court complaint or
other legal proceeding regarding the payment of wages, salary,
overtime pay or other payment for services rendered with respect
to any persons currently or formerly employed or engaged by the
Company or any Subsidiary other than claims listed in
Section 3.14(b) of the Disclosure Schedule. Neither the
Company nor any Subsidiary is a party to, or is otherwise bound
by, any consent decree with, or citation by, any Governmental
Authority relating to employees, independent contractors or
employment practices, other than those listed in
Section 3.14(b) of the Disclosure Schedule. There is no
administrative charge, court complaint, or other legal
proceeding pending nor, to the knowledge of the Company, is
there any threatened administrative charge, court complaint or
other legal proceeding regarding a violation of occupational
safety or health standards by the Company or any Subsidiary,
other than those listed in Section 3.14(b) of the
Disclosure Schedule. There is no administrative charge, court
complaint, or other legal proceeding pending nor, to the
knowledge of the Company, is there any threatened administrative
charge, court complaint or other legal proceeding regarding
discrimination in the employment or employment practices, for
any reason, including, without limitation, age, gender, race,
religion or other legally protected category, which has been
asserted or is now pending or, to the knowledge of the Company,
threatened before the United States Equal Employment Opportunity
Commission, or any other Governmental Authority in any
jurisdiction in which the Company or any Subsidiary have
employed or employ any person, other than charges listed in
Section 3.14(b) of the Disclosure Schedule. No inquiry or
investigation affecting any Company or any Subsidiary has been
made or, to the knowledge of the Company, threatened by the
Commission for Racial Equality, the Equal Employment Opportunity
Commission or any similar body other than inquiries or
investigations listed in Section 3.14(b) of the Disclosure
Schedule.
(c) Except as disclosed in Section 3.14(c) of the
Disclosure Schedule, (i) all existing contracts of
employment to which the Company or, to the knowledge of the
Company, any Subsidiary is a party are terminable by the Company
or any Subsidiary on three months notice or less without
compensation (other than in accordance with applicable
legislation); (ii) neither the Company nor any Subsidiary
has an established pattern or practice with respect to the
payment of standard severance or separation pay to similarly
situated employees following the termination of employment of
any employee for any reason (i.e. for cause, not for cause or
voluntary termination); (iii) neither the Company nor, to
the knowledge of the Company, any Subsidiary has any outstanding
liability to pay compensation for loss of employment to any
present or former employee or to make any payment for breach of
any agreement listed in Section 3.13(a) of the Disclosure
Schedule; (iv) there is no term of employment
1/3whether
contractual or otherwise, of any employee of the Company or, to
the knowledge of the Company, any Subsidiary which shall entitle
that employee to treat the consummation of the Transactions as
amounting to a breach of his contract of employment or otherwise
entitling him to any payment or benefit whatsoever or entitling
him to treat himself as redundant or otherwise dismissed or
released from any obligation.
A-17
(d) Within the six (6) years preceding the date
hereof, the Company and its Subsidiaries have complied with all
notice obligations under the WARN Act and any state equivalent.
3.15. Property and Leases.
(a) The Company and the Subsidiaries have sufficient title
to all their properties and assets to conduct their respective
businesses as currently conducted, with only such exceptions as
would not reasonably be expected to have a Material Adverse
Effect.
(b) Except as disclosed in Section 3.15(b) of the
Disclosure Schedule, the Company does not own any real property.
(c) Section 3.15(c) of the Disclosure Schedule
contains an accurate and complete list of all leases of real
property leased for the use or benefit of the Company or any
Subsidiary to which the Company or any Subsidiary is a party
(the Leases). All amendments and
modifications to the Leases are in full force and effect and
described in Section 3.15(c) of the Disclosure Schedule,
and there exists no default under any Lease by the Company or
any Subsidiary, nor any event which, with notice or lapse of
time or both, would constitute a default thereunder by the
Company or any Subsidiary, except as would not reasonably be
expected to have a Material Adverse Effect.
(d) The Company has made available to Purchaser a true,
correct and complete copy of each Lease, including all
amendments, supplements or other modifications thereto, and
(i) each Lease is legal, valid, binding and enforceable
against the Company and the Subsidiaries party thereto in
accordance with the terms thereof, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws relating to creditors rights and to
general principles of equity; (ii) neither the Company and
the Subsidiaries, nor, to the Companys knowledge, any
other party to any Lease, has waived any material term or
condition thereof, and all material covenants to be performed by
the Company and the Subsidiaries prior to the date hereof or, to
the Companys knowledge, by any other party to any Lease,
have been performed in all material respects; (iii) none of
the Company and the Subsidiaries or, to the Companys
knowledge, any other party to any Lease, is in material breach
or default under any lease, and no event or circumstance exists
or has occurred which, with the delivery of notice, the passage
of time or both, would constitute a material breach or default
by the Company or any Subsidiary or, to the Companys
knowledge, by any other party thereto, permit the termination,
modification or acceleration of rent under any Lease; and
(iv) the Company and the Subsidiaries have not subleased,
or collaterally assigned or granted any security interest in any
Lease or any interest therein.
3.16. Intellectual Property.
(a) Section 3.16 of the Disclosure Schedule contains a
list of all Intellectual Property material to the conduct of the
businesses of the Company and the Subsidiaries as currently
conducted or as contemplated to be conducted and either owned by
or registered in the name of the Company or any of the
Subsidiaries or owned by others and licensed to the Company or
any of the Subsidiaries, specifying as to each, as applicable:
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(i) the nature of such Intellectual Property; |
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(ii) the owner of such Intellectual Property; |
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(iii) in the case of Intellectual Property owned by or
registered in the name of the Company or any of the Subsidiaries
(collectively, the Company Owned Intellectual
Property), the jurisdictions by or in which such
Intellectual Property has been issued or registered or in which
an application for such issuance or registration has been filed,
including the respective registration or application numbers and
dates of issuance, registration and filing, as
applicable; and |
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(iv) contracts, licenses, sublicenses, agreements and other
arrangements as to which the Company or any of the Subsidiaries
is a party and pursuant to which any person (including the
Company or any of the Subsidiaries) is authorized to use such
Intellectual Property (collectively, the IP
Contracts), including the identity of all parties
thereto, a description of the nature and subject matter thereof,
the applicable royalties and the terms thereof. |
(b) Except as would not reasonably be expected to have a
Material Adverse Effect, the conduct of the businesses of the
Company and the Subsidiaries as currently conducted or as
contemplated to be
A-18
conducted does not (i) infringe upon or misappropriate the
Intellectual Property rights or rights of publicity or privacy
of, or libel or defame, any third party or constitute unfair
competition or trade practices with respect to Company Owned
Intellectual Property in the jurisdictions in which the Company
and its Subsidiaries do business (nor does the Company have any
knowledge of any basis therefore); and (ii) to the
knowledge of the Company, infringe upon or misappropriate the
Intellectual Property rights or rights of publicity or privacy
of, or libel or defame, any third party or constitute unfair
competition or trade practices with respect to all other
Intellectual Property used by the Company or any of the
Subsidiaries in the jurisdictions in which they do business (nor
does the Company have any knowledge of any basis therefore).
(c) Except as set forth in Section 3.16(c) of the
Disclosure Schedule, each item of Intellectual Property
currently used by each of the Company and the Subsidiaries and
material to the conduct of its business as currently conducted
or as contemplated to be conducted is either
(i) exclusively owned by it and was created solely by its
employees acting within the scope of their employment or by
third parties, all of which employees and third parties have
validly assigned all of their rights, including Intellectual
Property rights therein in writing, to it; or (ii) duly and
validly licensed to it for use in the manner currently used by
it or as contemplated to be used by it.
(d) Except as set forth in Section 3.16(d) of the
Disclosure Schedule, each item of Company Owned Intellectual
Property (i) is subsisting and in full force and effect;
(ii) has not been abandoned or passed into the public
domain; (iii) is free and clear of any lien, security
interest or other encumbrance; (iv) to the knowledge of the
Company, has not been, and is not currently, infringed upon or
misappropriated by any third parties; (v) is not subject to
any outstanding judgment, order, decree, stipulation or
injunction; and (vi) is not the subject of any charge,
complaint, action, suit, proceeding, hearing, investigation,
claim or demand, pending or threatened, which challenges the
legality, validity, enforceability, use or ownership thereof.
(e) The Company has delivered to Parent copies of all
United States, non-United States and international:
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(i) patents and patent applications of the Company and each
of the Subsidiaries; and |
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(ii) registrations of the Company and each of the
Subsidiaries of, and applications to register, other
Intellectual Property rights, including, without limitation,
trademarks, service marks, trade dress, logos, trade names,
corporate names, Internet domain names and addresses,
copyrightable works, copyrights and mask works (collectively,
under both clauses (i) and (ii), Registered
Intellectual Property). |
Except as would not reasonably be expected to have a Material
Adverse Effect, all necessary registration, maintenance and
renewal fees in connection with each item of Registered
Intellectual Property have been paid and all necessary documents
and certificates in connection with such Registered Intellectual
Property have been filed with the relevant patent, copyright,
trademark or other Governmental Authority or domain name
registrar(s) in the United States or non-United States
jurisdictions, as the case may be (including, without
limitation, the United States Patent and Trademark Office, the
United States Copyright Office or their respective counterparts
in any relevant non-United States jurisdiction), for the
purposes of maintaining such Registered Intellectual Property.
(f) The Company has no knowledge of any facts,
circumstances or information that (i) would render any
Registered Intellectual Property invalid or unenforceable;
(ii) would adversely affect any pending application for any
Registered Intellectual Property; or (iii) would adversely
affect or impede the ability of any of the Company or the
Subsidiaries to use any Intellectual Property in the manner
currently used by it in the conduct of its business or as
contemplated to be used.
(g) All officers, management employees, and technical and
professional employees, and consultants of the Company and the
Subsidiaries are party to written obligations with the Company
and the Subsidiaries, as applicable, which documents such
individuals obligations to maintain in confidence all
confidential or proprietary information acquired by them in the
course of their employment or services to
A-19
the Company or a Subsidiary, as applicable, and to assign to the
Company and the Subsidiaries all inventions made by them within
the scope of their employment during such employment and for a
reasonable period thereafter.
3.17. Taxes. (a)
(i) All material Tax Returns that are required to be filed
by or with respect to Taxes of the Company and each Subsidiary
have been filed or caused to be filed or will be filed in a
timely manner (with applicable extension periods), and such Tax
Returns are true, accurate and complete in all material
respects; (ii) all Taxes shown to be due on such Tax
Returns have been timely paid in full or will be timely paid in
full by the due date thereof; (iii) any deficiencies
resulting from examinations of such Tax Returns have either been
paid or are being contested in good faith; and (iv) no
waivers of statutes of limitation have been given by or
requested with respect to any Taxes of the Company or any
Subsidiary; and (v) each of the Company and its
Subsidiaries has withheld and paid over all material Taxes
required to have been withheld and paid over, and complied with
all material information reporting and backup withholding
requirements, including maintenance of required records with
respect thereto, in connection with amounts paid or owing to any
employee, creditor, independent contractor, or other third party.
(b) Except as set forth in Section 3.17 of the
Disclosure Schedule, neither the Company nor any Subsidiary has
received written notice of any claim made by a Government
Authority in a jurisdiction in which the Company or any
Subsidiary does not file Tax Returns, that the Company or a
Subsidiary may be required to file Tax Returns or to pay Taxes
by that jurisdiction.
(c) Except as set forth in Section 3.17 of the
Disclosure Schedule, no federal, state, local or foreign audits,
examinations or other administrative proceedings have been
commenced or are pending with regard to any Tax Returns with
respect to Taxes of the Company or any Subsidiary.
(d) Except as set forth in Section 3.17 of the
Disclosure Schedule, there is no material tax lien (other than
for current taxes not yet due and payable) against the assets of
the Company or any Subsidiary.
(e) None of the assets of the Company or any Subsidiary is
(i) tax exempt use property within the meaning
of Section 168(h) of the Code; or (ii) subject to any
lease made pursuant to former Section 168(f)(8) of the Code.
(f) Neither the Company nor any Subsidiary has made an
election under Section 341(f) of the Code.
(g) The accruals and reserves for taxes reflected in the
2004 Balance Sheet are adequate to cover all taxes accruable
through the date of the 2004 Balance Sheet (including interest
and penalties, if any, thereon) in accordance with generally
accepted accounting principles.
(h) The Company and each of the Subsidiaries is a
United States Person within the meaning of
Section 7701(a)(30) of the Code.
(i) The Company has not been the distributing
corporation (within the meaning of Section 355(c)(2)
of the Code) with respect to a transaction described in
Section 355 of the Code within the 3-year period ending as
of the date of this Agreement.
(j) Neither the Company nor any Subsidiary is a party to
any compensatory agreements with respect to the performance of
services which payment thereunder would result in a
nondeductible expense to the Group pursuant to
Sections 162(m).
(k) Neither the Company nor any Subsidiary has agreed, nor
is it required to make, any adjustment under Code
Section 481(a) by reason of a change in accounting method
or otherwise.
(l) Neither the Company nor any Subsidiary is a party to
any joint venture, partnership or other agreement, contract or
arrangement (either in writing or verbally, formally or
informally) which could be treated as a partnership for federal
income tax purposes, except any joint venture, partnership or
other
A-20
agreement, contract or arrangement (either in writing or
verbally, formally or informally) that elects to be treated as a
partnership for federal income tax purposes at the request of
Parent or Purchaser.
(m) Neither the Company nor any Subsidiary has participated
in a listed transaction within the meaning of
Treasury Regulations Section 1.6011-4.
(n) The Company and its Subsidiaries have made available
(or will make available prior to closing) information to Parent,
Purchaser and their representatives for the purposes of
determining (i) the basis of the Company or its Subsidiary
in its assets; (ii) the basis of the stockholders of
Companys Subsidiary in its stock (or the amount of any
excess loss account); (iii) the amount of any net operating
loss, net capital loss, unused investment or other credit,
unused foreign tax, or excess charitable contribution allocable
to the Company or its Subsidiary; and (iv) any Code
Section 382 limitation applicable to the Company or its
Subsidiary.
3.18. Environmental Matters.
Except as described in Section 3.18 of the Disclosure
Schedule and except as would not reasonably be expected to
result in a Material Adverse Effect, (a) the Company and
its Subsidiaries have at all times been and are in full
compliance with all applicable Environmental Laws; (b) none
of the properties currently or formerly owned, leased or
operated by the Company or its Subsidiaries (including, without
limitation, soils and surface and ground waters) are
contaminated with any Hazardous Substance to an extent that
would require the Company or its Subsidiaries to make any
report, filing or application, or take responsive action or that
could cause liability for the Company or its Subsidiaries, under
Environmental Laws; (c) none of the Company and its
Subsidiaries have received any written notice of liability for
any contamination by Hazardous Substances at any site containing
Hazardous Substances generated, transported, stored, treated or
disposed by the Company or its Subsidiaries; (d) none of
the Company and its Subsidiaries are actually or allegedly
liable for any damages, remediation, or penalties, or subject to
any claim by any person or Governmental Authority for any
injunctive or monetary relief (including, without limitation,
pending or threatened liens) arising out of or relating to any
failure to comply with any Environmental Law or exposure of any
person to Hazardous Substances; (e) the Company and its
Subsidiaries are in compliance with all permits, licenses and
other authorizations required under any Environmental Law
(Environmental Permits), and, to the
knowledge of the Company and its Subsidiaries, all past
non-compliance with Environmental Laws or Environmental Permits
has been resolved without any pending, ongoing or future
obligation, costs or liability; (f) the Company and its
Subsidiaries have made available to Purchaser complete and
correct copies of all studies, reports, surveys, assessments,
audits, correspondence, investigations, analysis, tests, and
other documents (whether in hard copy or electronic form) in the
Companys or Subsidiaries possession regarding the
presence or alleged presence of Hazardous Substances at, on, or
affecting any property currently or formerly owned or operated
by the Company and its Subsidiaries and (g) neither the
execution of this Agreement nor the consummation of the
Transactions will require any investigation, remediation or
other action with respect to Hazardous Substances.
3.19. Material Contracts.
There are no contracts or agreements that are material contracts
(as defined in Item 601(b)(10) of Regulation S-K) to
which the Company or any Subsidiary is a party or by which
Company or any Subsidiary is bound (the Material
Contracts) other than (a) those Material
Contracts identified on the exhibit indices of SEC Reports and
(b) those Material Contracts entered into by the Company or
a Subsidiary in compliance with Section 5.1. In addition,
(i) each Material Contract is valid, subsisting, in full
force and effect and is enforceable against Company or the
applicable Subsidiary, and, to the knowledge of the Company, the
other parties thereto in accordance with its terms;
(ii) none the Company and its Subsidiaries, nor to the
knowledge of Company, any other party, is in breach of or in
default under any provision of any Material Contract, except for
breaches or defaults which have not had and would not reasonably
be expected to have, individually or in the aggregate, a
Material Adverse Effect; (iii) the Company and the
Subsidiaries are not in receipt of any written claim of default
under any such agreement; and (iv) neither the execution of
this Agreement nor the consummation of any Transaction shall
have, individually or in the aggregate, a Material Adverse
Effect with respect to any Material Contract. To the knowledge
of the Company, no condition or circumstance exists which would
reasonably be expected to constitute a default of a provision
under any Material Contracts, except for defaults which
A-21
have not had, and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
Unredacted copies of any Material Contracts filed with the SEC
pursuant to a confidential treatment request have been made
available to Parent.
3.20. Records. The corporate
record books of the Company and each Subsidiary, other than PIC,
contain accurate records of all material meetings and accurately
reflect all other material actions taken by the respective
boards and the committees thereof. Complete and accurate copies
of all such record books have been made available by the Company
to Parent.
3.21. Insurance.
(a) Section 3.21 of the Disclosure Schedule sets
forth, as of the date hereof, all material policies of insurance
maintained by or for the benefit of the Company and the
Subsidiaries, including any dealing with or regarding the
ownership, use, or operation of any of their respective assets
and properties and that (i) have been issued to the Company
or any Subsidiary or (ii) that are held by any Affiliate of
the Company or any Subsidiary for the benefit of the Company and
the Subsidiaries (collectively, the Insurance
Policies).
(b) As of the date hereof, the Insurance Policies are
reasonably believed by the Company to be (i) underwritten
by entities of recognized financial responsibility and solvency,
and (ii) sufficient to protect against such losses and
risks and in such amounts as are customary in the businesses in
which the Company and Subsidiaries are engaged.
(c) With respect to each Insurance Policy:
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(i) assuming that the entity underwriting such Policy is
duly organized and has the requisite power and authority (both
corporate and regulatory) to underwrite such a Policy, the
Policy is legal, valid, binding and enforceable in accordance
with its terms and, except for policies that have expired under
their terms in the ordinary course, is in full force and effect; |
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(ii) none of the Company and its Subsidiaries is in
material breach or default (including any such breach or default
with respect to the payment of premiums or the giving of
notice), and, to the knowledge of the Company, no event has
occurred which, with notice or the lapse of time, would
constitute a breach or default, or permit termination or
modification, under the Policy; and |
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(iii) to the knowledge of the Company, no insurer on the
Policy has been declared insolvent or placed in receivership,
conservatorship or liquidation. |
3.22. Brokers. No broker,
finder or investment banker (other than Needham &
Company) (the Companys Financial
Advisor) is entitled to any brokerage, finders
or other fee or commission in connection with the Transactions
based upon arrangements made by or on behalf of the Company or
any Subsidiary. The Company has heretofore furnished to Parent a
complete and correct copy of all agreements between the Company
and the Companys Financial Advisor pursuant to which such
firm would be entitled to any payment relating to the
Transactions. The fees and expenses of Needham &
Company will be paid or caused to be paid by the Company.
3.23. Customers and
Suppliers. There has not been any change in the business
relationship of the Company or any Subsidiary with any customer
who accounted for more than ten percent (10%) of the
Companys sales (on a consolidated basis) during the period
from January 1, 2004 to the date hereof, or any supplier
from whom the Company and the Subsidiaries purchased more than
five percent (5%) of the goods or services (on a consolidated
basis) which it purchased during the same period except for such
change as would not reasonably be expected to have a Material
Adverse Effect.
3.24. Certain Business
Practices. To the knowledge of the Company, none of the
Company or any director, officer, employee or agent of the
Company or any Subsidiary acting on behalf of the Company or any
Subsidiary has (a) used any funds for unlawful
contributions, gifts, entertainment or other unlawful payments
relating to political activity; (b) made any unlawful
payment to any foreign or domestic government official or
employee or to any foreign or domestic political party or
campaign or violated any provision of the Foreign Corrupt
Practices Act of 1977, as amended; (c) consummated any
transaction,
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made any payment, entered into any agreement or arrangement or
taken any other action in violation of Section 1128B(b) of
the Social Security Act, as amended; or (d) made any other
unlawful payment.
3.25. Export Controls. The
Company is and, for the past five (5) years, has been in
compliance with all Applicable Laws relating to export control
and trade embargoes except to the extent that noncompliance with
such Applicable Laws would not reasonably be expected to have a
Material Adverse Effect.
3.26. Antiboycott Laws. The
Company has not violated the antiboycott prohibitions contained
in 50 U.S.C. § 2401 et seq. or taken any action
that would reasonably be expected to result in a penalty under
Section 999 of the Code except to the extent that such
violation or action would not reasonably be expected to have a
Material Adverse Effect.
3.27. Affiliate
Transactions. Except as set forth in Section 3.27 of
the Disclosure Schedule, there are no existing contracts,
transactions, indebtedness or other arrangements, or any related
series thereof, between the Company or any of the Subsidiaries,
on the one hand, and any of the directors, officers or other
Affiliates of the Company and the Subsidiaries, on the other
hand, that would be required to be disclosed under Item 404
of Regulation S-K.
3.28. Opinion of Financial
Advisor. The Company has received the oral opinion of the
Companys Financial Advisor, as of August 16, 2005, to
the effect that, as of such date, the consideration to be
received in the Merger by the Companys common stockholders
is fair to the Companys stockholders from a financial
point of view, and a copy of such opinion in written form shall
be delivered to Parent and Purchaser as soon as reasonably
practicable after the date hereof. The Company has been
authorized by the Companys Financial Advisor to permit the
inclusion of such opinion in its entirety in the Proxy Statement.
Article IV.
Representations and
Warranties of JE Holdings, Parent and Purchaser
JE Holdings, Parent and Purchaser hereby, jointly and severally,
represent and warrant to the Company that:
4.1. Corporate Organization.
JE Holdings is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation. Parent and Purchaser are newly-formed
corporations duly organized, validly existing and in good
standing under the laws of the jurisdiction of their
incorporation and have engaged in no business other than in
connection with the Transactions. Each of JE Holdings, Parent
and Purchaser has the requisite corporate power and authority
and all necessary approvals from Governmental Authorities to
own, lease and operate its properties and to carry on its
business as it is now being conducted, except where the failure
to be so organized, existing or in good standing or to have such
power, authority and approvals would not, individually or in the
aggregate, have a material adverse effect on the business or
operations of JE Holdings, Parent and Purchaser and their
respective Subsidiaries taken as a whole.
4.2. Authority Relative to This
Agreement. Each of JE Holdings, Parent and Purchaser has all
necessary corporate power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and
consummate the Transactions. The execution and delivery of this
Agreement by JE Holdings, Parent and Purchaser and the
performance by JE Holdings, Parent and Purchaser of their
obligations hereunder have been duly and validly authorized by
all necessary corporate action, and no other corporate
proceedings on the part of JE Holdings, Parent or Purchaser are
necessary to authorize the execution and delivery of this
Agreement or to consummate the Transactions (other than, with
respect to the Merger, the filing and recordation of appropriate
merger documents as required by the MBCA). This Agreement has
been duly and validly executed and delivered by JE Holdings,
Parent and Purchaser and, assuming due authorization, execution
and delivery by the Company, constitutes a legal, valid and
binding
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obligation of each of JE Holdings, Parent and Purchaser
enforceable against each of JE Holdings, Parent and Purchaser in
accordance with its terms.
4.3. Board Approvals and
Takeover Laws. The Board of Directors of JE Holdings (the
JE Board), at a meeting duly called and
held, has (i) duly and validly approved, as of the date of
this Agreement, and taken all corporate action required to be
taken by the JE Board to authorize the consummation of the
Transactions; and (ii) determined, as of the date of this
Agreement, that no vote of the stockholders of JE Holdings is
required in order for JE Holdings to accept, approve and adopt
this Agreement and the Merger, and none of the aforesaid actions
by the JE Board has been amended, rescinded or modified except
as permitted by the terms of this Agreement.
4.4. No Conflict; Required
Filings and Consents. (a) The execution and delivery of
this Agreement by JE Holdings, Parent and Purchaser do not, and
the performance of their obligations under this Agreement shall
not, (i) conflict with or violate the articles of
organization or by-laws or similar documents of JE Holdings,
Parent or Purchaser; (ii) assuming that all consents,
approvals, authorizations and other actions described in
Section 4.4(b) have been obtained and all filings and
obligations described in Section 4.4(b) have been made and,
subject, in the case of the Merger, to obtaining Stockholder
Approval, conflict with or violate any Applicable Law or by
which any property or asset of either of them is bound or
affected; or (iii) result in any breach of, or constitute a
default (or an event which, with notice or lapse of time or
both, would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation
of, or result in the creation of a lien or other encumbrance on
any property or asset of JE Holdings, Parent or Purchaser
pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument
or obligation to which JE Holdings, Parent or Purchaser is
a party or by which JE Holdings, Parent or Purchaser or any
property or asset of either of them is bound or affected,
except, with respect to clauses (ii) and (iii), for any
such conflicts, violations, breaches, defaults or other
occurrences which would not prevent or materially delay
consummation of the Transactions or otherwise prevent or
materially delay JE Holdings, Parent or Purchaser from
performing any of their material obligations under this
Agreement.
(b) The execution and delivery of this Agreement by JE
Holdings, Parent and Purchaser do not, and the performance of
this Agreement by JE Holdings, Parent and Purchaser shall not,
require any consent, approval, authorization or permit of, or
filing with, or notification to, any Governmental Authority,
except (i) for applicable requirements, if any, of the
Exchange Act, Blue Sky Laws, state takeover laws, the
HSR Act and the requirements in the countries where a
merger filing will be necessary or advisable, the Exon-Florio
Provision and the filing and recordation of appropriate merger
documents as required by the MBCA; (ii) where the failure
to obtain such consents, approvals, authorizations or permits,
or to make such filings or notifications, would not prevent or
materially delay consummation of the Transactions, or otherwise
prevent or materially delay JE Holdings, Parent or Purchaser
from performing their material obligations under this Agreement;
and (iii) where, pursuant to the Listing Rules of the Hong
Kong Stock Exchange, JE Holdings at the time of signing of this
Agreement makes a notice filing with the Hong Kong Stock
Exchange, discloses the Mergers principal terms in a
newspaper announcement following the signing, and following the
signing will distribute a circular to shareholders in
substantially the same form as the newspaper announcement. JE
Holdings shall provide the Company and its counsel the
opportunity to review the notice filing, newspaper announcement
and circular, including all amendments and supplements thereto,
prior to their being filed with the Hong Kong Stock Exchange or
published, as the case may be, and shall give the Company and
its counsel the opportunity to review all responses to requests
for additional information and replies to comments prior to
their being filed with, or sent to, the Hong Kong Stock Exchange.
4.5. Financing. JE Holdings,
Parent and Purchaser have, and will have available to them at
and after the Effective Time, sufficient funds to consummate the
Transactions, including without limitation payment in full of
amounts due for the Merger Consideration, Option Consideration
and Warrant Consideration and all fees and expenses incurred in
connection with the Transactions.
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4.6. Brokers. No broker,
finder or investment banker (other than Morgan Joseph &
Co. Inc.) is entitled to any brokerage, finders or other
fee or commission in connection with the Transactions based upon
arrangements made by or on behalf of JE Holdings, Parent or
Purchaser. The fees and expenses of Morgan Joseph & Co.
Inc. will be paid or caused to be paid by JE Holdings, Parent or
Purchaser.
4.7. Absence of Litigation.
There is no litigation, suit, claim, action, proceeding or
investigation pending or, to the knowledge of JE Holdings,
Parent or Purchaser, threatened against JE Holdings, Parent or
Purchaser, or any property or asset of JE Holdings, Parent,
Purchaser or any Subsidiary, before any Governmental Authority
that seeks to materially delay or prevent the consummation of
any Transaction. None of JE Holdings, Parent, Purchaser or any
Subsidiary nor any property or asset of JE Holdings, Parent,
Purchaser or any Subsidiary is subject to any continuing order
of, consent decree, settlement agreement or similar written
agreement with or, to the knowledge of JE Holdings, Parent or
Purchaser, continuing investigation by, any Governmental
Authority, or any order, writ, judgment, injunction, decree,
determination or award of any Governmental Authority that would
prevent or materially delay consummation of the Transactions.
4.8. Ownership of Shares; MCRL
Chapter 110F. None of JE Holdings, Parent or Purchaser
owns any Shares or Preferred Shares. During the three years
prior to the execution of this Agreement, none of JE Holdings,
Parent, Purchaser or any of their respective Affiliates or
associates has been, with respect to the Company, an
interested stockholder within the meaning of and as
defined in the MCRL Chapter 110F.
Article V.
Conduct of Business
Pending the Merger
5.1. Conduct of Business by the
Company Pending the Merger. The Company covenants and agrees
that, between the date of this Agreement and the Effective Time,
except as contemplated by this Agreement and as set forth in
Section 5.1 of the Disclosure Schedule or unless Parent
shall otherwise agree in writing, the businesses of the Company
and the Subsidiaries shall be conducted only in, and the Company
and the Subsidiaries shall not take any action except in, the
ordinary course of business and in a manner consistent with past
practice; and the Company shall use commercially reasonable
efforts to preserve substantially intact the business
organization of the Company and the Subsidiaries, to keep
available the services of the current officers and key employees
and consultants of the Company and the Subsidiaries and to
preserve the current relationships of the Company and the
Subsidiaries with customers, suppliers and other persons with
which the Company or any Subsidiary has significant business
relations. Except as expressly contemplated by this Agreement
and Section 5.1 of the Disclosure Schedule, neither the
Company nor any Subsidiary shall, between the date of this
Agreement and the Effective Time, directly or indirectly, do, or
propose to do, any of the following without the prior written
consent of Parent:
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(a) amend or otherwise change its articles of organization
or by-laws or equivalent organizational documents; |
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(b) issue, sell, pledge, dispose of, grant, encumber, or
authorize the issuance, sale, pledge, disposition, grant or
encumbrance of any shares of any class of capital stock of the
Company or any Subsidiary, or any options, warrants, convertible
securities or other rights of any kind to acquire any shares of
such capital stock, or any other ownership interest (including,
without limitation, any phantom interest), of the Company or any
Subsidiary (except for the issuance of a maximum of
2,306,400 Shares issuable pursuant to the Company Stock
Option Plans, Preferred Shares, Convertible Notes and Warrants
outstanding on the date hereof); |
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(c) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise,
with respect to any of its capital stock, except for regular
quarterly dividends on the Preferred Shares declared and paid at
times consistent with past practice in an aggregate amount not
in excess of $1.65 per Share; |
A-25
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(d) reclassify, combine, split, subdivide or redeem, or
purchase or otherwise acquire, directly or indirectly, any of
its capital stock; |
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(e) (i) acquire (including, without limitation, by
merger, consolidation or acquisition of stock or assets or any
other business combination) any corporation, partnership, other
business organization or any division thereof or any material
amount of assets, other than pending acquisitions or minority
investments, in each case publicly announced prior to the date
hereof; (ii) incur any indebtedness for borrowed money or
issue any debt securities or assume, guarantee or endorse, or
otherwise become responsible for, the obligations of any person,
or make any loans or advances, except in the ordinary course of
business and consistent with past practice; (iii) transfer,
lease, license, sell, mortgage, pledge, dispose of, or encumber
any of its material assets (other than sales of obsolete assets
and inventory in the ordinary course of business consistent with
past practice); (iv) authorize, pay, discharge or satisfy
any claims, liabilities, commitments or obligations (whether
absolute, accrued, contingent or otherwise) in excess of
$250,000, other than the payment, discharge or satisfaction of
any such claims, liabilities, commitments or obligations, in the
ordinary course of business consistent with past practice, or
reflected or reserved against in, or contemplated by, the 2004
Balance Sheet; |
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(f) increase the compensation payable or to become payable
or the benefits provided to its directors, officers or
employees, except for increases in the ordinary course of
business and consistent with past practice in salaries or wages
of employees of the Company or any Subsidiary who are not
directors or executive officers of the Company, or grant any
severance or termination pay to, or enter into any employment or
severance agreement with, any director, executive officer or
other employee of the Company or of any Subsidiary, or
establish, adopt, enter into or amend any collective bargaining,
bonus, profit-sharing, thrift, compensation, stock option,
restricted stock, pension, retirement, deferred compensation,
employment, termination, severance or other plan, agreement,
trust, fund, policy or arrangement for the benefit of any
director, officer or employee; |
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(g) take any action, other than commercially reasonable and
usual actions in the ordinary course of business and consistent
with past practice, with respect to accounting policies or
procedures (including, without limitation, procedures with
respect to the payment of accounts payable and collection of
accounts receivable); |
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(h) make any material tax election or settle or compromise
any material United States federal, state, local or other
non-United States income tax liability, except in the ordinary
course of business or in a manner consistent with past practice;
or change any of the accounting methods used by the Company
materially affecting the Companys assets, liabilities or
business, except for such changes required by GAAP; |
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(i) enter into, amend, modify or consent to the termination
of any Material Contract, or amend, waive, modify or consent to
the termination of the Companys or any Subsidiarys
rights thereunder, other than in the ordinary course of business
and consistent with past practice, including any new or
materially amended joint venture or supply agreement with
Infineon Technologies AG or any Affiliate thereof
(Infineon); |
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(j) permit any material insurance policy naming the Company
as a beneficiary or a loss payee to be cancelled or terminated
without notice to Parent; |
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(k) create any material Subsidiaries or adopt a plan of
complete or partial liquidation, dissolution, restructuring,
recapitalization or other reorganization of the Company or any
Company Subsidiary (other than the Merger); |
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(l) commence or settle any material Action; or |
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(m) announce an intention, enter into any formal or
informal agreement or otherwise make a commitment, to do any of
the foregoing. |
5.2. Consultation. In
connection with the continuing operation of the business of the
Company and its Subsidiaries between the date of this Agreement
and the Effective Time, the Company shall use
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commercially reasonable efforts to consult in good faith on a
regular basis with the representatives of Parent to report
material operational developments and the general status of
ongoing operations pursuant to procedures reasonably requested
in writing by Parent or its representatives; provided,
that the consultation required by this Section 5.2 shall be
conducted in a manner so as not to disrupt in any material
respect the business of the Company and its Subsidiaries. JE
Holdings, Parent and Purchaser acknowledge that none of JE
Holdings, Parent or Purchaser shall have any approval rights
under this Section 5.2. The Company acknowledges that any
such consultation shall not constitute a waiver by
JE Holdings, Parent or Purchaser of any rights it may have
under this Agreement and that none of JE Holdings, Parent
or Purchaser shall have any liability or responsibility for any
actions of the Company and any of its Subsidiaries or any of
their respective directors or officers with respect to matters
that are the subject of such consultations.
Article VI.
Additional Agreements
6.1. Proxy Statement.
(a) Subject to the terms of this Agreement and to its
fiduciary duties under Applicable Law as advised by independent
counsel, as promptly as practicable following the date of this
Agreement, the Company shall, with the assistance and approval
of JE Holdings, prepare and file the Proxy Statement with the
SEC under the Exchange Act (such proxy statement, as amended and
supplemented, the Proxy Statement), and shall
use its commercially reasonable efforts to have the Proxy
Statement cleared by the SEC. JE Holdings, Parent, Purchaser and
the Company shall cooperate with each other in the preparation
of the Proxy Statement, and the Company shall notify Parent of
the receipt of any comments of the SEC with respect to the Proxy
Statement and of any requests by the SEC for any amendment or
supplement thereto or for additional information and shall
provide to Parent promptly copies of all correspondence between
the Company or any representative of the Company and the SEC.
The Company shall provide Parent and its counsel the opportunity
to review the Proxy Statement, including all amendments and
supplements thereto, prior to it being filed with the SEC and
shall give Parent and its counsel the opportunity to review all
responses to requests for additional information and replies to
comments prior to their being filed with, or sent to, the SEC.
Subject to the terms of this Agreement and to its fiduciary
duties under Applicable Law as advised by independent counsel,
each of the Company, JE Holdings, Parent and Purchaser agrees to
use its commercially reasonable efforts, after consultation with
the other parties hereto, to respond promptly to all such
comments of and requests by the SEC and to cause the Proxy
Statement and all required amendments and supplements thereto to
be mailed to the holders of Shares entitled to vote at the
Stockholders Meeting at the earliest practicable time.
(b) None of the information supplied or to be supplied by
the Company, JE Holdings, Parent or Purchaser for inclusion or
incorporation by reference in the Proxy Statement will, at the
date of mailing to stockholders and at the time of the
Stockholders Meeting, contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading. The Proxy Statement will comply as to form in all
material respects with the requirements of the Exchange Act.
6.2. Stockholders
Meeting. Subject to the terms of this Agreement and to its
fiduciary duties under Applicable Law as advised by independent
counsel, as promptly as practicable following the date that the
Company has received confirmation that the staff of the SEC has
no comments or no further comments on the Proxy Statement, the
Company, acting through its Board, and in accordance with
Applicable Law and the Companys articles of organization
and by-laws, shall (i) duly call, give notice of, convene
and hold an annual or special meeting of its stockholders for
the purpose of considering and taking action on this Agreement
and the Transactions (the Stockholders
Meeting); (ii) include in the Proxy Statement,
and not subsequently withdraw or modify in any manner adverse to
JE Holdings, Parent or Purchaser the recommendation of the Board
that the stockholders of the Company approve and adopt this
Agreement and the Transactions; and (iii) use its best
efforts to obtain such approval and adoption.
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At the Stockholders Meeting, JE Holdings, Parent and
Purchaser shall cause all Shares then owned by them and their
Subsidiaries to be voted in favor of the approval and adoption
of this Agreement and the Transactions.
6.3. Access to Information;
Confidentiality. (a) From the date hereof until the
Effective Time, to the extent permitted by Applicable Law, the
Company shall, and shall cause the Subsidiaries and the
officers, directors, employees, auditors and agents of the
Company and the Subsidiaries to, afford the officers, employees
and agents of JE Holdings, Parent and Purchaser reasonable
access at reasonable times to the officers, employees, agents,
properties, offices, plants and other facilities, books and
records of the Company and each Subsidiary, and shall furnish JE
Holdings, Parent and Purchaser with such financial, operating
and other data and information (Confidential
Information) as JE Holdings, Parent or Purchaser,
through their officers, employees or agents, may reasonably
request.
(b) From and after the date hereof, JE Holdings, Parent and
Purchaser shall, and shall cause their respective Affiliates and
their respective officers, directors, employees, agents and
representatives to comply with the provisions of the
Nondisclosure Agreement in their treatment of Confidential
Information.
(c) No investigation pursuant to this Section 6.3
shall affect any representation or warranty in this Agreement of
any party hereto or any condition to the obligations of the
parties hereto.
6.4. No Solicitation of
Transactions.
(a) Neither the Company nor any Subsidiary shall, directly
or indirectly, through any officer, director, agent or
otherwise, (i) solicit, initiate or knowingly encourage the
submission of, any Acquisition Proposal, including a Superior
Proposal; or (ii) participate in any discussions or
negotiations regarding, or furnish to any person, any non-public
information with respect to any Acquisition Proposal, except
that the Company may take any action referred to in this
clause (ii) if (I) the Board determines in good faith,
after having received advice from outside legal counsel, that
such action is consistent with the fiduciary duties of the Board
under Applicable Law, (II) the Board determines in good
faith that the Acquisition Proposal is reasonably likely to lead
to a Superior Proposal, and (III) after giving prior
written notice to JE Holdings and entering into a customary
confidentiality agreement. For purposes of this Agreement, a
Superior Proposal means any bona fide written
proposal, not solicited, initiated or knowingly encouraged in
violation of this Section 6.4, made by a third person to
acquire, directly or indirectly, for consideration consisting of
cash and/or securities, 50% or more of the outstanding equity
securities of the Company entitled to vote generally in the
election of directors or a substantial portion of the assets of
the Company and its Subsidiaries on a consolidated basis, if and
only if, the Board reasonably determines (after consultation
with its financial advisor and outside counsel) (i) that
the proposed transaction would be more favorable from a
financial point of view to its stockholders than the Merger and
the Transactions taking into account at the time of
determination any changes to the terms of this Agreement that as
of that time had been proposed by JE Holdings, Parent and
Purchaser; and (ii) that the person or entity making such
Superior Proposal is capable of consummating such Acquisition
Proposal (based upon, among other things, the availability of
financing and the degree of certainty of obtaining financing,
the expectation of obtaining required regulatory approvals and
the identity and background of such person).
(b) Except as set forth in this Section 6.4(b),
neither the Board nor any committee thereof shall withdraw or
modify, or propose to withdraw or modify, in a manner adverse to
JE Holdings, Parent or Purchaser, the approval or recommendation
by the Board or any such committee of this Agreement, the Merger
or the Transactions. Notwithstanding the foregoing, if, prior to
receipt of Stockholder Approval, the Board determines in good
faith (i) after having received advice from outside
counsel, that such action is consistent with the fiduciary
duties of the Board under Applicable Law; and (ii) that an
Acquisition Proposal constitutes a Superior Proposal, the Board
or a committee thereof, as applicable, may withdraw or modify
its approval or recommendation of the Merger.
(c) The Company shall, and shall direct or cause its
directors, officers, employees, representatives and agents to,
immediately cease and cause to be terminated any discussions or
negotiations with any parties that may be ongoing prior to the
date hereof with respect to any Acquisition Proposal.
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(d) The Company shall promptly advise JE Holdings orally
and in writing of (i) any Acquisition Proposal or any
request for information with respect to any Acquisition
Proposal, the material terms and conditions of such Acquisition
Proposal or request and the identity of the person making such
Acquisition Proposal or request; (ii) any material changes
in any such Acquisition Proposal or request; and (iii) any
non-public information concerning the operations of the Company
or any of its Subsidiaries that is provided to such person or
its representatives, which was not previously provided to JE
Holdings.
(e) The Company agrees, except as consistent with the
Boards fiduciary duties under Applicable Law, after having
received advice from outside legal counsel, not to release any
third party from, or waive any provision of, any confidentiality
or standstill agreement to which the Company is a party, except
as may be necessary to submit an Acquisition Proposal hereunder.
6.5. Employee Benefits
Matters. (a) JE Holdings, Parent and Purchaser agree
that following the Effective Time, the Surviving Corporation and
its Subsidiaries and successors shall provide those persons who,
immediately prior to the Effective Time, were employees of the
Company or its Subsidiaries (Retained
Employees) with employee plans and programs which
provide benefits that are substantially similar in the aggregate
than those provided to similarly situated employees of JE
Holdings. Employees of the Company or any Subsidiary shall
receive credit for purposes of accrual of seniority with respect
to termination or severance benefits and eligibility to
participate and vesting and benefit accrual (but, except as
required by Applicable Law, not for benefit accruals under any
defined benefit pension plan) under any employee benefit plan,
program or arrangement that is established or maintained by the
Surviving Corporation or any of its Subsidiaries and in which
such employees are eligible to participate after the Effective
Time for service accrued or deemed accrued prior to the
Effective Time with the Company or any Subsidiary;
provided, however, that such crediting of service
shall not operate to duplicate any benefit or the funding of any
such benefit. In addition, with respect to any medical, dental,
pharmaceutical and/or vision benefit plan of JE Holdings in
which employees of the Company may participate following the
Effective Time (a New Plan), JE Holdings
shall cause all pre-existing condition exclusion and
actively-at-work requirements to be waived for such employees
and their covered dependents (provided, however,
that such waiver shall not apply to any pre-existing condition
that excluded any such employee or dependent prior to the
Effective Time from the corresponding Plan maintained by the
Company) and shall provide that any covered expenses incurred on
or before the Effective Time by an employee or an
employees covered dependents shall be taken into account
for purposes of satisfying applicable deductible, coinsurance
and maximum out-of-pocket provisions under the relevant New Plan
after the Effective Time to the same extent as such expenses are
taken into account for the benefit of similarly situated
employees of JE Holdings and its Subsidiaries. Subject to the
provisions of this Section 6.5, nothing shall require
JE Holdings to provide the Retained Employees with any
particular employee benefit plans, agreements, or programs or
preclude or limit JE Holdings ability to modify, amend, or
terminate any New Plan or any of the Companys Plans as it
deems appropriate.
(b) In addition, JE Holdings, Parent and Purchaser shall
provide severance arrangements to the individuals set forth in
Schedule 6.5(b) for the time periods and for the amounts
contained therein.
6.6. Directors and
Officers Indemnification and Insurance. (a) The
articles of organization and by-laws of the Surviving
Corporation shall contain provisions no less favorable with
respect to indemnification than as are set forth in
Article 6D of the Companys articles of organization,
which provisions shall not be amended, repealed or otherwise
modified for a period of six years from the Effective Time in
any manner that would adversely affect the rights thereunder of
individuals who, at or prior to the Effective Time, were
directors, officers, employees, fiduciaries or agents of the
Company, unless such modification shall be required by
Applicable Law.
(b) JE Holdings shall cause the Surviving Corporation and
any successor to the Surviving Corporation, to the fullest
extent permitted under Applicable Law, to indemnify, defend and
hold harmless (including any obligation to advance funds for
expenses) from and after the Effective Time, each present and
former director, officer or employee of the Company or any of
its Subsidiaries (collectively, the Indemnified
Parties) against any costs or expenses (including
attorneys fees), judgments, fines, losses,
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claims, damages, liabilities and amounts paid in settlement in
connection with any actual or threatened claim, Action, suit,
proceeding or investigation, whether civil, criminal,
administrative or investigative, (i) arising out of or
pertaining to the Transactions; or (ii) otherwise with
respect to any acts or omissions occurring at or prior to the
Effective Time, to the same extent as provided in the
Companys articles of organization or by-laws or any
applicable contract or agreement as in effect on the date
hereof, in each case for a period of six years after the date
hereof. In the event of any such claim, Action, suit, proceeding
or investigation, the Surviving Corporation shall, to the extent
permitted by Massachusetts law, pay the expenses incurred by the
Indemnified Parties from time to time in advance of the
disposition of such claim, Action, suit, proceeding or
investigation, including the reasonable fees of counsel selected
by the Indemnified Parties, which counsel shall be reasonably
satisfactory to the Surviving Corporation, promptly after
statements therefor are received; provided,
however, that the Surviving Corporation shall not be
liable for any settlement effected without its written consent
(which consent shall not be unreasonably withheld); and
provided, further, that the Surviving Corporation
shall not be obligated pursuant to this Section 6.6(b)) to
pay the fees and expenses of more than one counsel for all
Indemnified Parties in any single action except to the extent
that two or more of such Indemnified Parties shall have
conflicting interests in the outcome of such action; and
provided, further, that, in the event that any
claim for indemnification is asserted or made within such
six-year period, all rights to indemnification in respect of
such claim shall continue until the disposition of such claim.
(c) JE Holdings shall cause the Surviving Corporation to
use its best efforts to maintain in effect, for six years from
the Effective Time, the current directors and
officers liability insurance policies maintained by the
Company with respect to matters occurring at and prior to the
Effective Time; provided, however, that the
Surviving Corporation may substitute therefor policies of
similar coverage containing terms and conditions that are not
materially less favorable to such directors and officers;
provided, further, that in no event shall the
Surviving Corporation be required to expend pursuant to this
Section 6.6(c) more than an amount per year equal to 200%
of the current annual premiums paid by the Company for such
insurance (which premiums the Company represents and warrants to
be $140,000 per annum in the aggregate); provided,
further, that if the Surviving Corporation is unable to
obtain the amount of insurance required by this
Section 6.6(c) for such aggregate premiums, the Surviving
Corporation shall obtain as much insurance (up to the amount of
insurance required by this Section 6.6(c)) as is possible
for such aggregate premium.
(d) In the event the Company or the Surviving Corporation
or any of their respective successors or assigns
(i) consolidates with or merges into any other person and
shall not be the continuing or surviving corporation or entity
of such consolidation or merger; or (ii) transfers all or
substantially all of its properties and assets to any person,
then, and in each such case, proper provision shall be made so
that the successors and assigns of the Company or the Surviving
Corporation, as the case may be, or at JE Holdings
option, JE Holdings, shall assume the obligations set forth in
this Section 6.6.
(e) JE Holdings guarantees that if for any reason the
Company or the Surviving Corporation, as the case may be, shall
not meet its obligations pursuant to this Section 6.6, it
shall meet such obligations in full when and as such obligations
arise.
6.7. Notification of Certain
Matters. The Company shall give prompt notice to JE
Holdings, and JE Holdings shall give prompt notice to the
Company, of (i) the occurrence or non-occurrence of any
event, the occurrence or non-occurrence of which reasonably
could be expected to cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any
material respect from the date hereof until the Effective Time;
and (ii) any failure of the Company, JE Holdings, Parent or
Purchaser, as the case may be, to comply with or satisfy any
covenant or agreement to be complied with or satisfied by it
hereunder; provided, however, that the delivery of
any notice pursuant to this Section 6.7 shall not limit or
otherwise affect the remedies available hereunder to the party
receiving such notice.
6.8. HSR Act Filing. As
promptly as possible after the date of this Agreement, if
required by any Applicable Law, each of JE Holdings and Company
shall file, or cause to be filed, with the Federal Trade
Commission (the FTC) and the Antitrust
Division of the United States Department of Justice (the
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Antitrust Division) a pre-merger notification
in accordance with the HSR Act with respect to the Merger
pursuant to this Agreement, and shall file an antitrust
notification in any other jurisdiction if required by any
Applicable Law. Each of JE Holdings and Company shall furnish
promptly, or cause to be furnished promptly, to the FTC, the
Antitrust Division and any other requesting Governmental
Authority any additional information requested by either of them
pursuant to the HSR Act or any other antitrust notification in
connection with such filings. JE Holdings and Company shall
cooperate fully with each other in connection with the making of
all such filings or responses, including providing copies of all
such documents to the other party and its advisors prior to
filing or responding. JE Holdings shall pay, or cause to be
paid, the applicable HSR Act filing fee and any other applicable
antitrust fees.
6.9. Exon-Florio Provision.
JE Holdings and the Company agree that at any time prior to the
Effective Time, if any action is necessary or desirable to carry
out the requirements of the Exon-Florio Provision, they shall
cause their respective proper officers and directors to use
their commercially reasonable efforts to take all such action.
6.10. Public Announcements.
JE Holdings and the Company agree that no public release or
announcement concerning the Transactions or the Merger shall be
issued by either party without the prior consent of the other
party (which consent shall not be unreasonably withheld), except
as such release or announcement may be required by Applicable
Law or the rules or regulations of any United States or
non-United States securities exchange (including, without
limitation, the listing requirements of the Hong Kong Stock
Exchange), in which case the party required to make the release
or announcement shall use its best efforts to allow the other
party reasonable time to comment on such release or announcement
in advance of such issuance.
6.11. Consents and Approvals;
Commercially Reasonable Efforts.
(a) Prior to the Effective Time, upon the terms and subject
to the conditions of this Agreement, and subject to
Section 6.4, except to the extent that, after consultation
with outside legal counsel to the Company, the Company Board
determines that to do so would not be in the best interests of
the Company and its stockholders and would be inconsistent with
the Company Boards fiduciary duties to the Companys
stockholders under Applicable Law, JE Holdings, Parent,
Purchaser and the Company agree to use their respective
commercially reasonable efforts to take, or cause to be taken,
all reasonable actions, and to do, or cause to be done, all
things reasonably necessary and appropriate, under Applicable
Laws to consummate and make effective the Transactions as
promptly as practicable including, but not limited to
(i) the preparation and filing of all forms, registrations
and notices required to be filed to consummate the Transactions
and the taking of such actions as are reasonably necessary to
obtain any requisite approvals, consents, orders, exemptions or
waivers by any third party or Governmental Authority;
(ii) the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, challenging
this Agreement or the consummation of the Transactions,
including when reasonable, seeking to have any stay or temporary
restraining order entered by any court or other Governmental
Authority vacated or reversed; and (iii) the satisfaction
of the other parties conditions to closing. In addition,
except as otherwise contemplated in Section 6.4 or as
required by Applicable Law, no party hereto shall take any
action after the date hereof that would reasonably be expected
to materially delay the obtaining of, or result in not
obtaining, any permission, approval or consent from any
Governmental Authority necessary to be obtained prior to Closing.
(b) Prior to the Effective Time, each party shall promptly
consult with the other parties hereto with respect to, provide
any necessary information with respect to, and provide the other
party (or its counsel) copies of, all filings made by such party
with any Governmental Authority or any other information
supplied by such party to a Governmental Authority in connection
with this Agreement and the Transactions. Each party hereto
shall promptly inform the other of any communication from any
Governmental Authority regarding any of the Transactions unless
otherwise prohibited by Applicable Law. If any party hereto or
Affiliate thereof receives a request for additional information
or documentary material from any such Government Authority with
respect to the Transactions, then such party shall endeavor in
good faith to make, or cause to be made, as soon as reasonably
practicable and after
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consultation with the other party, an appropriate response in
compliance with such request. To the extent that transfers,
amendments or modifications of Permits (including environmental
Permits) are required as a result of the execution of this
Agreement or consummation of the Transactions, the Company shall
use its commercially reasonable efforts to effect such transfers.
(c) In case at any time after the Effective Time any
further action is necessary or desirable to carry out the
purposes of this Agreement, the proper officers and directors of
the Company, JE Holdings, Parent and Purchaser shall use their
commercially reasonable efforts to take, or cause to be taken,
all such necessary actions, except to the extent that, after
consultation with outside legal counsel to the Company, the
Company Board determines that to do so would not be in the best
interests of the Company and its stockholders and would be
inconsistent with the Company Boards fiduciary duties to
the Companys stockholders under Applicable Law.
(d) For purposes of this Section 6.11,
commercially reasonable efforts of JE Holdings,
Parent and Purchaser shall not require JE Holdings, Parent and
Purchaser to agree to any prohibition, limitation, or other
requirement which would prohibit or materially limit the
ownership or operation by the Company or any of the Company
Subsidiaries, or by JE Holdings, Parent, Purchaser or any of
their Subsidiaries, of all or any portion of the business or
assets of the Company or any of the Company Subsidiaries or
JE Holdings, Parent or Purchaser or any of their
Subsidiaries, or compel JE Holdings, Parent or Purchaser or any
of their Subsidiaries to dispose of or hold separate all or any
portion of the business or assets of the Company or any of the
Company Subsidiaries or JE Holdings, Parent or Purchaser
Subsidiaries or any of their Subsidiaries. The Company shall not
agree to any such prohibition, limitation, or other requirement
without the prior written consent of JE Holdings, Parent or
Purchaser.
6.12. State Takeover Laws.
If any state takeover statute, or any other state law that
purports to limit or restrict business combinations or the
ability to acquire or vote shares, becomes or is deemed to
become applicable to the Company or the Merger, then the Company
Board shall take all action necessary to render such statute or
law inapplicable to the foregoing, except to the extent that,
after consultation with outside legal counsel to the Company,
the Company Board determines that to do so would not be in the
best interests of the Company and its stockholders and would be
inconsistent with the Company Boards fiduciary duties to
the Companys stockholders under Applicable Law.
6.13. Infineon Joint
Venture. The Company shall timely advise JE Holdings orally
and in writing of any material developments with respect to the
Companys joint venture or supply agreement with Infineon.
6.14. Company Warrants.
Prior to the Effective Time, the Company shall use its
reasonable best efforts to negotiate settlements with the
individual warrant holders, on terms specified or approved by
JE Holdings or Parent, pursuant to which each warrant to
purchase Shares that is outstanding as of the date hereof, as
set forth in Section 6.14 of the Disclosure Schedule
(collectively, the Warrants, and the
agreements with the Warrant holders governing such Warrants, the
Warrant Agreements), will be cancelled
immediately prior to the Effective Time. For the purposes of
this Section 6.14, reasonable best efforts of
the Company shall not require the Company to agree to
(i) make any payments or waive any rights in respect of the
Warrants or Warrant Agreements or (ii) amend the Warrants
or Warrant Agreements, in each case, unless the Merger is
consummated.
6.15. Remediation
Activities. The Company shall continue with the remediation
activities at its Methuen site as described in the Remedial
Activity Measure reports submitted to the Massachusetts
Department of Environmental Protection (the
Remediation Activities) and shall use its
commercially reasonable efforts to take, or cause to be taken,
all actions, to complete as much of the Remediation Activities
as reasonably practicable before the Effective Time. The Company
shall timely advise Parent orally and in writing of any material
developments with respect to the Remediation Activities that
would result in any material change in the scope of the
Remediation Activities or the Companys related liability.
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Article VII.
Conditions to the Merger
7.1. Conditions to the
Merger. The respective obligations of each party to effect
the Merger shall be subject to the satisfaction or waiver, at or
prior to the Effective Time, of the following conditions:
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(a) This Agreement and the Transactions shall have been
approved and adopted by Stockholder Approval to the extent
required by the MBCA and the articles of organization of the
Company; |
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(b) Any waiting period (and any extension thereof)
applicable to the consummation of the Merger under the HSR Act
and the Exon-Florio Provision and in the countries listed in
Section 3.7(b) of the Disclosure Schedule where a merger
filing was necessary shall have expired or been terminated; |
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(c) No Governmental Authority shall have enacted, issued,
promulgated, enforced or entered any Applicable Law (whether
temporary, preliminary or permanent) which is then in effect and
has the effect of making the Merger illegal or otherwise
preventing or prohibiting consummation of the Merger (including
without limitation any preliminary or permanent injunction which
would prevent the consummation of the Merger). |
7.2. Conditions to Obligations
of JE Holdings, Parent and Purchaser. The obligations of
JE Holdings, Parent and Purchaser to effect the Merger are
also subject to the satisfaction or waiver by JE Holdings
at or prior to the Effective Time of the following conditions:
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(a) The representations and warranties of the Company as
set forth in this Agreement shall be true and correct both when
made and at and as of the Effective Time, as if made at and as
of such time (except to the extent expressly made as of an
earlier date, in which case as of such date), except where the
failure of such representations and warranties to be so true and
correct (without giving effect to any limitation as to
materiality or Material Adverse Effect
set forth therein) does not have, and would not reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect; |
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(b) The Company shall have performed in all material
respects all obligations required to be performed by it under
this Agreement at or prior to the Effective Time; |
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(c) Since the date of this Agreement, there shall not have
occurred any change, event, circumstance or development that has
had, or is reasonably likely to have, a Material Adverse
Effect; and |
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(d) JE Holdings shall have received a certificate of an
executive officer of the Company, certifying that the conditions
set forth in Sections 7.2(a), 7.2(b) and 7.2(c) have been
satisfied. |
7.3. Conditions to Obligations
of the Company. The obligations of the Company to effect the
Merger are also subject to the satisfaction or waiver by the
Company at or prior to the Effective Time of the following
conditions:
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(a) The representations and warranties of JE Holdings,
Parent and Purchaser as set forth in this Agreement shall be
true and correct in all material respects both when made and at
and as of the Effective Time, as if made at and as of such time
(except to the extent expressly made as of an earlier date, in
which case as of such date); |
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(b) JE Holdings, Parent and Purchaser shall have performed
in all material respects all obligations required to be
performed by them under this Agreement at or prior to the
Effective Time; and |
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(c) The Company shall have received a certificate of an
executive officer of JE Holdings, certifying that the conditions
set forth in Sections 7.3(a) and 7.3(b) have been satisfied. |
A-33
Article VIII.
Termination, Amendment and
Waiver
8.1. Termination. This
Agreement may be terminated and the Merger and the other
Transactions may be abandoned at any time prior to the Effective
Time, notwithstanding any Stockholder Approval:
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(a) By mutual written consent of each of JE Holdings,
Parent, Purchaser and the Company duly authorized by the JE
Boards and the Board; or |
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(b) By JE Holdings, Parent, Purchaser or the Company if
(i) the Effective Time shall not have occurred on or before
January 15, 2005 (the Termination Date);
provided, however, that the right to terminate
this Agreement under this Section 8.1(b) shall not be
available to any party whose failure to fulfill any obligation
under this Agreement has been the cause of, or resulted in, the
failure of the Effective Time to occur on or before such date or
(ii) any Governmental Authority shall have enacted, issued,
promulgated, enforced or entered any injunction, order, decree
or ruling (whether temporary, preliminary or permanent) which
has become final and nonappealable and has the effect of making
consummation of the Merger illegal or otherwise preventing or
prohibiting consummation of the Merger; or |
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(c) By the Company (i) if there shall have been a
breach of any representation, warranty, covenant or agreement on
the part of JE Holdings, Parent or Purchaser contained in this
Agreement, such that (x) the conditions set forth in
Section 7.3(a) or 7.3(b) would not be capable of being
satisfied and (y) such breach is not capable of being cured
or, if reasonably capable of being cured, shall not have been
cured prior to the earlier of (I) ten (10) Business
Days following notice of such breach and (II) the
Termination Date; provided that the Company shall not
have the right to terminate this Agreement pursuant to this
Section 8.1(c) if the Company is then in material breach of
any of its representations, warranties, covenants or agreements
contained in this Agreement; or (ii) prior to the
Stockholder Approval of this Agreement provided that the Company
has complied with the terms and conditions of
Section 6.4(b); or |
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(d) By JE Holdings (i) if there shall have been a
breach of any representation, warranty, covenant or agreement on
the part of the Company contained in this Agreement, such that
(x) the conditions set forth in Sections 7.2(a),
7.2(b) and 7.2(c) would not be capable of being satisfied and
(y) such breach is not capable of being cured or, if
reasonably capable of being cured, shall not have been cured
prior to the earlier of (I) ten (10) Business Days
following notice of such breach and (II) the Termination
Date; provided that JE Holdings shall not have the right
to terminate this Agreement pursuant to this Section 8.1(d)
if JE Holdings, Parent or Purchaser is then in material breach
of any of its representations, warranties, covenants or
agreements contained in this Agreement; or (ii) if the
Board of Directors (x) shall have withdrawn, modified or
changed in a manner adverse to JE Holdings, Parent or Purchaser
its approval or recommendation of the Transactions, or shall
have resolved to effect any of the foregoing, or (y) shall
have recommended to the stockholders of the Company an
Acquisition Proposal other than the Transactions, or shall have
resolved to effect any of the foregoing; or |
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(e) By any party if, upon a vote thereon at the
Stockholders Meeting or any postponement or adjournment
thereof, this Agreement shall not gain Stockholder Approval. |
8.2. Effect of Termination.
(a) In the event of the termination of this Agreement
pursuant to Section 8.1, this Agreement shall forthwith
become void and there shall be no liability or obligation on the
part of any party hereto, except with respect to
Section 6.10, this Section 8.2, and Article IX,
which shall survive such termination.
(b) In the event that this Agreement is terminated by the
Company pursuant to Section 8.1(c)(ii) or by JE Holdings
pursuant to Section 8.1(d)(ii), then the Company shall pay
two million dollars ($2,000,000) (such amount, the
Termination Fee) to JE Holdings, at or prior
to the time of termination in the case of a termination pursuant
to Section 8.1(c)(ii) or as promptly as practicable (but
A-34
in any event within two (2) Business Days) in the case of a
termination pursuant to Section 8.1(d)(ii), payable by wire
transfer of same day funds.
(c) In the event that (i) this Agreement is terminated
by JE Holdings pursuant to Section 8.1(d)(i), and
(ii) at any time after the date of this Agreement and prior
to the event giving rise to JE Holdings right to terminate
this Agreement under Section 8.1(d)(i), an Acquisition
Proposal shall have been made known to the Company, and
(iii) within 12 months after such termination, the
Company or any of the Companys Subsidiaries enters into an
agreement in respect of such Acquisition Proposal or a
transaction pursuant to which such Acquisition Proposal is
consummated, then the Company shall pay the Termination Fee to
JE Holdings by wire transfer of same day funds on the date of
the agreement in respect of the Acquisition Proposal or, if
earlier, on the date of the consummation of the transaction in
respect of the Acquisition Proposal, as may be applicable
(provided that, for the purposes of this
Section 8.2(c), the term Acquisition Proposal
shall have the meaning assigned to such term in Annex A,
except that the references to 30% or more shall be
deemed to be references to 50% or more of the Company and
its Subsidiaries on a consolidated basis).
(d) In the event that (i) this Agreement is terminated
by the Company, JE Holdings, Parent or Purchaser pursuant to
Section 8.1(e), then the Company shall pay to JE Holdings
an amount in cash equal to the JE Expense Reimbursement Amount,
payable by wire transfer of same day funds concurrently with or
prior to such termination if terminated by the Company and on
the Business Day following such termination if terminated by JE
Holdings, Parent or Purchaser; and (ii) (I) this
Agreement is terminated by the Company, JE Holdings, Parent or
Purchaser pursuant to Section 8.1(e), (II) at any time
after the date of this Agreement and prior to the
Stockholders Meeting an Acquisition Proposal shall have
been publicly disclosed, and (III) within 12 months
after such termination, the Company or any of the Companys
Subsidiaries enters into an agreement in respect of such
Acquisition Proposal or a transaction pursuant to which such
Acquisition Proposal is consummated, then the Company shall pay
to JE Holdings an amount equal to the Termination Fee minus the
JE Expense Reimbursement Amount (to the extent such amount has
previously been paid to JE Holdings) by wire transfer of same
day funds on the date of the agreement in respect of the
Acquisition Proposal or, if earlier, on the date of the
consummation of the transaction in respect of the Acquisition
Proposal, as may be applicable (provided that, for the
purposes of this Section 8.2(c), the term Acquisition
Proposal shall have the meaning assigned to such term in
Annex A, except that the references to 50% or more of
the Company and its Subsidiaries on a consolidated basis).
(e) The Company acknowledges that the agreements contained
in this Section 8.2 are an integral part of the
Transactions, and that, without these agreements, JE Holdings,
Parent and Purchaser would not enter into this Agreement;
accordingly, if the Company fails to timely pay any amount
required to be paid by it pursuant to this Section 8.2,
and, in order to obtain the payment, JE Holdings, Parent or
Purchaser commences a suit which results in a judgment against
the Company for the payment set forth in this Section 8.2,
the Company shall pay to JE Holdings, Parent or Purchaser its
reasonable costs and expenses (including reasonable
attorneys fees) in connection with this suit, together
with interest on the amount due from each date for payment until
the date of the payment at the prime rate of Citibank, N.A. then
in effect on the date the payment was required to be made plus
one percent (1%). Notwithstanding anything to the contrary in
this Agreement, JE Holdings right to receive payment of
the Termination Fee pursuant to this Section 8.2 shall be
the exclusive remedy of JE Holdings, Parent and Purchaser
against the Company for any liability resulting from this
Agreement, and upon payment of the Termination Fee in accordance
with this Section 8.2, neither the Company nor any of its
respective stockholders, directors, officers or agents, as the
case may be, shall have any further liability or obligation
relating to or arising out of this Agreement or the Transactions.
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Article IX.
General Provisions
9.1. Expenses. Except as set
forth in Section 8.2, all costs and expenses incurred in
connection with this Agreement and the Transactions shall be
paid by the party incurring such expenses, whether or not any
Transaction is consummated.
9.2. Amendment. This
Agreement may be amended by the parties hereto by action taken
by or on behalf of their respective Boards of Directors at any
time prior to the Effective Time; provided,
however, that, after the approval and adoption of this
Agreement and the Transactions by Stockholder Approval, no
amendment may be made that would reduce the amount or change the
type of consideration into which each Share, Preferred Share or
Company Stock Option shall be converted upon consummation of the
Merger or otherwise adversely affect the rights of the
Companys equityholders. This Agreement may not be amended
except by an instrument in writing signed by each of the parties
hereto.
9.3. Non-Survival of
Representations and Warranties. None of the representations
and warranties in this Agreement or in any schedule, instrument
or other document delivered pursuant to this Agreement shall
survive the Effective Time. The covenants and agreements
contained herein shall survive in accordance with their
respective terms.
9.4. Waiver. At any time
prior to the Effective Time, any party hereto may
(i) extend the time for the performance of any obligation
or other act of any other party hereto; (ii) waive any
inaccuracy in the representations and warranties of any other
party contained herein or in any document delivered pursuant
hereto; and (iii) waive compliance with any agreement of
any other party or any condition to its own obligations
contained herein. Any such extension or waiver shall be valid if
set forth in an instrument in writing signed by the party or
parties to be bound thereby.
9.5. Notices. All notices,
requests, claims, demands and other communications hereunder
shall be in writing and shall be given (and shall be deemed to
have been duly given upon receipt) by delivery in person, by
facsimile (with receipt confirmed by telephone or automatic
transmission report) or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at
the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this
Section 9.5):
(a) If to JE Holdings, Parent or Purchaser, addressed to it
at:
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c/o Johnson Electric Capital Limited |
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Johnson Building, 6-22 Dai Shun Street |
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Tai Po Industrial Estate, New Territories |
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Hong Kong |
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Attention: Christopher Hasson |
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Fax: 852-9190-3400 |
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With a copy to: |
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Morrison & Foerster LLP |
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1290 Avenue of the Americas |
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New York, NY 10104 |
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Attention: John R. Hempill, Esq. |
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Fax: 212-468-7900 |
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Morrison & Foerster LLP |
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Suite 3803 Bund Center |
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No. 222 Yan An Road East |
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Shanghai 200002, Peoples Republic of China |
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Attention: Charles C. Comey, Esq. |
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Fax: (011-86) 21 6335 2291 |
A-36
(b) If to the Company prior to the Effective Time,
addressed to it at:
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Parlex Corporation |
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One Parlex Place |
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Methuen, MA 01844 |
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Attention: Peter J. Murphy |
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Fax: 978-685-8809 |
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with a copy to: |
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Ropes & Gray, LLP |
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One International Place |
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Boston, MA 02110 |
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Attention: Keith F. Higgins, Esq. |
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Fax: 617-951-7050 |
9.6. Severability. If any
term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as
the economic or legal substance of the Transactions is not
affected in any manner materially adverse to any party. Upon
such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the Transactions be
consummated as originally contemplated to the fullest extent
possible.
9.7. Entire Agreement;
Assignment. This Agreement and the other documents referred
to herein constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior
agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter
hereof. This Agreement shall not be assigned (whether pursuant
to a merger, by operation of law or otherwise), except that
Parent and Purchaser may assign all or any of their rights and
obligations hereunder to any Affiliate of Parent,
provided that no such assignment shall relieve the
assigning party of its obligations hereunder if such assignee
does not perform such obligations.
9.8. Parties in Interest.
This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement, other than
Section 6.6 (which is intended to be for the benefit of the
persons covered thereby and may be enforced by such persons).
9.9. Specific Performance.
The parties hereto agree that irreparable damage would occur in
the event any provision of this Agreement were not performed in
accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in
addition to any other remedy at law or equity.
9.10. Governing Law. This
Agreement shall be governed by, and construed in accordance
with, the laws of The Commonwealth of Massachusetts applicable
to contracts executed in and to be performed in that
Commonwealth. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined in any
Massachusetts state or United States District Court sitting in
the City of Boston. The parties hereto hereby (i) submit to
the exclusive jurisdiction of any Massachusetts state or United
States District Court sitting in the City of Boston for the
purpose of any Action arising out of or relating to this
Agreement brought by any party hereto; and (ii) irrevocably
waive, and agree not to assert by way of motion, defense, or
otherwise, in any such Action, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that
its property is exempt or immune from attachment or execution,
that the Action is brought in an inconvenient forum, that the
venue of the Action is improper, or that this Agreement or the
Transactions may not be enforced in or by any of the above-named
courts.
9.11. Waiver of Jury Trial.
Each of the parties hereto hereby waives to the fullest extent
permitted by Applicable Law any right it may have to a trial by
jury with respect to any litigation directly or
A-37
indirectly arising out of, under or in connection with this
Agreement or the Transactions. Each of the parties hereto
(i) certifies that no representative, agent or attorney of
any other party has represented, expressly or otherwise, that
such other party would not, in the event of litigation, seek to
enforce that foregoing waiver; and (ii) acknowledges that
it and the other parties hereto have been induced to enter into
this Agreement and the Transactions, as applicable, by, among
other things, the mutual waivers and certifications in this
Section 9.11.
9.12. Headings. The
descriptive headings contained in this Agreement are included
for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
9.13. Counterparts. This
Agreement may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
[The remainder of this page has been left blank
intentionally.]
A-38
IN WITNESS WHEREOF, JE Holdings, Parent, Purchaser and the
Company have caused this Agreement to be executed as of the date
first written above by their respective officers thereunto duly
authorized.
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JOHNSON ELECTRIC HOLDINGS LIMITED |
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By |
/s/ Christopher Hasson |
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Title: |
Authorized Signatory |
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J.E.C. ELECTRONICS SUB ONE, INC. |
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By |
/s/ Christopher Hasson |
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Title: |
Chief Executive Officer |
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J.E.C. ELECTRONICS SUB TWO, INC. |
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By |
/s/ Christopher Hasson |
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Title: |
Chief Executive Officer |
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Title: |
Chief Executive Officer |
A-39
For purposes of this Agreement:
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Acquisition Proposal means
(a) any bona fide written proposal or offer from any person
relating to any direct or indirect acquisition of (i) all
or a substantial part of the assets of the Company and its
Subsidiaries taken on a consolidated basis, or (ii) over
30% of any class of equity securities of the Company (including
the issuance of any convertible stock and debt and considered on
an as-converted basis) entitled to vote in the election of
directors; (b) any tender offer or exchange offer, as
defined pursuant to the Exchange Act, that, if consummated,
would result in any person beneficially owning 30% or more of
any class of equity securities of the Company; or (c) any
merger, consolidation, business combination, sale of all or a
substantial part of the assets, recapitalization, liquidation,
dissolution or similar transaction involving the Company, in
each case, other than the Transactions; provided,
however, that for purposes of Section 8.2 hereof
each reference herein to 30% shall be changed to
50% or more of the Company and its Subsidiaries on a
consolidated basis; provided, further,
however, that offers for the sale of the Multilayer
Division and the Laminated Cable Division will not be considered
an Acquisition Proposal. An Acquisition Proposal includes a
Superior Proposal. |
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Affiliate shall have the meaning set
forth in Rule 12b-2 of the Exchange Act. |
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Applicable Law means all provisions
applying to a person or its property of (a) constitutions,
treaties, statutes, laws (including the common law), rules,
regulations, ordinances or orders of a Governmental Authority
(including the SEC) having jurisdiction over the person;
(b) governmental approvals, orders, decisions, injunctions,
judgments, awards and decrees of or agreements with a
Governmental Authority having jurisdiction over the person;
(iii) GAAP; (v) the Securities Act; (c) the
Exchange Act; (d) ERISA; (e) the Code; and
(f) applicable Blue Sky Laws. |
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beneficial owner shall be determined
in accordance with Rule 13d-3 and Rule 13d-5 under the
Exchange Act. |
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Business Day means any day on which
banks are not required or authorized to close in the City of New
York or Hong Kong. |
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control (including the terms
controlled by and under
common control with) means the possession,
directly or indirectly, or as trustee or executor, of the power
to direct or cause the direction of the management and policies
of a person, whether through the ownership of voting securities,
as trustee or executor, by contract or credit arrangement or
otherwise. |
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Environmental Laws means any United
States federal, state, local or non-United States laws relating
to (a) releases or threatened releases of Hazardous
Substances or materials containing Hazardous Substances;
(b) the manufacture, handling, transport, use, treatment,
storage or disposal of Hazardous Substances or materials
containing Hazardous Substances; or (c) pollution or
protection of the indoor or outdoor environment, health or
natural resources. |
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ERISA Affiliate means any trade or
business (whether or not incorporated) under common control with
the Company or any Subsidiary and which, together with the
Company or any Subsidiary, is treated as a single employer
within the meaning of Section 414(b), (c), (m) or
(o) of the Code. |
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Exchange Act means the Securities
Exchange Act of 1934, as amended, and the rules and regulations
thereunder. |
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Governmental Authority means any:
(a) nation, principality, state, commonwealth, province,
territory, county, municipality, district or other jurisdiction
of any nature; (b) federal, state, local, municipal,
foreign or other government; (c) governmental or
quasi-governmental authority of any nature (including any
governmental division, subdivision, department, agency, bureau,
branch, office, commission, council, board, instrumentality,
officer, official, representative, organization, unit, body or |
A-40
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entity and any court or other tribunal); (d) multinational
organization or body; or (e) individual, entity or body
exercising, or entitled to exercise, any executive, legislative,
judicial, administrative, regulatory, police, military or taxing
authority or power of any nature. |
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Hazardous Substances means
(a) those substances defined in or regulated as hazardous
or toxic substances, materials or wastes under the following
United States federal statutes and their state counterparts, as
each may be amended from time to time, and all regulations
thereunder: the Hazardous Materials Transportation Act, the
Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act, as
amended, the Clean Water Act, the Safe Drinking Water Act, the
Atomic Energy Act, the Federal Insecticide, Fungicide, and
Rodenticide Act and the Clean Air Act; (b) petroleum and
petroleum products, including crude oil and any fractions
thereof; (c) natural gas, synthetic gas, and any mixtures
thereof; (d) polychlorinated biphenyls, asbestos and radon;
and (e) any substance, material or waste regulated as a
hazardous or toxic substance, material or waste by any
Governmental Authority pursuant to any Environmental Law. |
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Intellectual Property means any and
all (by whatever name or term known or designated) tangible and
intangible, now known or hereafter existing, world-wide
(including, without limitation, United States, non-United States
and international) (a) rights associated with works of
authorship, including but not limited to copyrightable works,
copyrights, moral rights and mask works; (b) trademark,
service mark, trade dress, logo, trade name and corporate name
rights and other source identifiers; (c) internet domain
names, addresses and uniform resource locators and all
associated e-mail addresses; (d) trade secret rights,
including know-how and confidential and proprietary information;
(e) patents, patentable inventions, designs algorithms and
other industrial property rights, including, without limitation,
utility patents, design patents, plant patents, statutory
invention registrations and defensive publications; (f) all
other intellectual and industrial property rights (of every kind
and nature, including, without limitation, rental
rights and rights to remuneration), whether arising by operation
of law, contract, license or otherwise; and (g) all
registrations, initial applications, renewals, extensions,
continuations, divisions or reissues thereof now or hereafter,
made, existing, or in force. |
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JE Expense Reimbursement Amount means
an amount, not to exceed four hundred thousand dollars
($400,000), equal to the documented and out-of-pocket fees and
expenses of JE Holdings and its Affiliates incurred in
connection with the preparation and execution of this Agreement
and the Transactions contemplated hereby, including, without
limitation, fees and expenses of legal, Tax and financial
advisors. |
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knowledge to the knowledge
of, or any similar phrase shall mean, with respect to the
Company, to the conscious awareness after reasonable inquiry of
Peter J. Murphy, Jonathan R. Kosheff, Alan Wong and William Gray. |
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Laminated Cable Division means a
division of the Company, which manufactures flat or round wire
laminated to a flexible substrate material, providing
connections between electronic sub-systems. |
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Liquidation Value with respect to each
Preferred Share, shall mean an amount equal to $80.00 per
share (subject to equitable adjustment for any stock splits,
stock dividends, combinations, reorganizations,
reclassifications, recapitalizations or other similar events
affecting the Preferred Shares after the date of issuance of
such Preferred Shares and prior to the Effective Time), plus an
amount equal to all accrued and unpaid dividends on such
Preferred Share as of the Effective Time. |
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Material Adverse Effect means any
event, circumstance, change or effect that is materially adverse
to the business, condition (financial or otherwise) or results
of operations of the Company and the Subsidiaries, taken as a
whole; provided, however, that a Material Adverse
Effect shall not include events, circumstances, changes and
effects (a) that are generally applicable to (i) the
business segments in which the Company conducts its business or
(ii) either the United States economy or global economy as
a whole; provided that the Company and its Subsidiaries
are not |
A-41
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disproportionately affected thereby; (b) to the extent that
they are caused by any change in applicable accounting
requirements or principles, or applicable laws, rules or
regulations, which occurs or becomes effective after the date
hereof; or (c) to the extent attributable to the
announcement of pending Transactions or compliance with the
terms of this Agreement that impacts the Company or any of its
Subsidiaries. |
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Multilayer Division means a
subdivision of the Companys flexible circuits business
division, which manufactures multiple layers of circuitry that
are stacked and then laminated. |
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Nondisclosure Agreement means that
letter agreement governing the provision and treatment of
Evaluation Material (as defined therein), dated as of
March 7, 2005, between Johnson Electric Capital Limited and
the Company. |
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person means an individual,
corporation, partnership, limited partnership, limited liability
company, syndicate, person (including, without limitation, a
person as defined in Section 13(d)(3) of the
Exchange Act), trust, association or entity or government,
political subdivision, agency or instrumentality of a government. |
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PIC means Parlex International
Corporation, a United States Virgin Islands corporation. |
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Preferred Shares mean all issued and
outstanding shares of the Companys Series A
Convertible Preferred Stock, par value $1.00 per share. |
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Securities Act means the Securities
Act of 1933, as amended, and the rules and regulations
promulgated thereunder. |
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Subsidiary or
Subsidiaries of the Company, the
Surviving Corporation, Parent, JE Holdings or any other person
means an Affiliate controlled by such person, directly or
indirectly, through one or more intermediaries. |
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Tax or Taxes
means (a) all federal, state, local, foreign and other net
income, gross income, gross receipts, value-added, sales, use,
ad valorem, transfer, franchise, profits, license, lease,
service, service use, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, windfall
profits, customs, duties, alternative minimum taxes or other
taxes, fees, assessments or charges in the nature of taxes,
together with any interest, any penalties or additions to tax
with respect thereto, and including any fees or penalties
imposed on a person in respect of any information Tax Return
made to a Governmental Authority; (b) any liability amounts
described in clause (a), whether as a result of transferee
liability, being a member of an affiliated, consolidated,
combined or unitary group for any period, or otherwise through
operation of law that is imposed by reason of Treas. reg.
1.1502-6, or similar provision of law; and (c) any
liability for the payment of amounts described in
clause (a) or (b) as a result of any tax sharing, tax
indemnity or tax allocation agreement or any other express or
implied agreement to indemnify any other person. |
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Tax Returns means all returns and
reports (including elections, declarations, disclosures,
schedules, estimates and information returns) required to be
supplied to a Government Authority (or any agent thereof)
relating to Taxes. |
A-42
In addition to the foregoing definitions, the following terms
shall have the definitions specified on the pages of the
Agreement listed below:
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2004 Balance Sheet
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A-13 |
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Acquisition Proposal
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EX-A-1 |
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Action
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A-14 |
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affiliate
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EX-A-1 |
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Agreement
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A-5 |
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Antitrust Division
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A-31 |
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Applicable Law
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EX-A-1 |
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Articles of Merger
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A-6 |
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beneficial owner
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EX-A-1 |
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Blue Sky Laws
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A-11 |
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Board
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A-10 |
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business day
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EX-A-1 |
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Certificates
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A-8 |
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Code
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A-6 |
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Common Share Merger Consideration
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A-7 |
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Company
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A-5 |
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Company Common Stock
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A-5 |
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Company Owned Intellectual Property
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A-18 |
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Company Required Approvals
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A-11 |
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Company Stock Option
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A-7 |
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Company Stock Option Plans
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A-7 |
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Companys Financial Advisor
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A-22 |
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Confidential Information
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A-28 |
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control
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EX-A-1 |
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Convertible Notes
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A-10 |
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Disclosure Schedule
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A-9 |
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Dissenting Shares
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A-7 |
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Effective Time
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A-6 |
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Environmental Laws
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EX-A-1 |
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Environmental Permits
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A-21 |
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ERISA
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A-14 |
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ERISA Affiliate
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EX-A-1 |
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Exchange Act
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EX-A-1 |
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Exon-Florio Provision
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A-11 |
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Financial Statements
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A-12 |
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FTC
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A-30 |
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GAAP
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A-12 |
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Governmental Authority
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EX-A-1 |
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Hazardous Substances
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EX-A-2 |
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HSR Act
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A-11 |
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Indemnified Parties
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A-29 |
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Infineon
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A-26 |
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Insurance Policies
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A-22 |
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Intellectual Property
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EX-A-2 |
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IP Contracts
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A-18 |
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IRS
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A-14 |
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A-43
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JE Board
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JE Expense Reimbursement Amount
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EX-A-2 |
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JE Holdings
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A-5 |
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knowledge
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EX-A-2 |
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Laminated Cable Division
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EX-A-2 |
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Leases
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A-18 |
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Liquidation Value
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EX-A-2 |
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Material Adverse Effect
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EX-A-2 |
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Material Contracts
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A-21 |
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MBCA
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A-5 |
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MCRL
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A-11 |
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Merger
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A-5 |
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Merger Consideration
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A-7 |
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Multiemployer Plan
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A-15 |
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Multilayer Division
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EX-A-3 |
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Multiple Employer Plan
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A-15 |
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New Plan
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A-29 |
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Nondisclosure Agreement
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EX-A-3 |
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Option Consideration
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A-7 |
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Parent
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A-5 |
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Paying Agent
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A-8 |
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Permits
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A-12 |
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person
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EX-A-3 |
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PIC
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EX-A-3 |
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Plans
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A-14 |
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Preferred Share Merger Consideration
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A-7 |
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Preferred Shares
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EX-A-3 |
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Proxy Statement
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A-27 |
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Purchaser
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A-5 |
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Registered Intellectual Property
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A-19 |
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Retained Employees
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A-29 |
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SEC
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A-12 |
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SEC Reports
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A-12 |
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Securities Act
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EX-A-3 |
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Shares
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A-5 |
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SOX
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A-12 |
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Stockholder Approval
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A-11 |
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Stockholders Meeting
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A-27 |
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Subsidiary
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EX-A-3 |
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Superior Proposal
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A-28 |
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Surviving Corporation
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A-5 |
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Tax or Taxes
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EX-A-3 |
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Tax Returns
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EX-A-3 |
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Termination Date
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A-34 |
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Termination Fee
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A-34 |
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Transactions
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A-7 |
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United States Person
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A-20 |
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Warrant Agreements
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A-32 |
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Warrants
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A-32 |
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A-44
AMENDMENT NO. 1 TO THE
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER
(this Amendment) is entered into as of
August 24, 2005, among JOHNSON ELECTRIC HOLDINGS LIMITED, a
Bermuda corporation (JE Holdings), J.E.C.
ELECTRONICS SUB ONE, INC., a Massachusetts corporation and an
indirect wholly-owned Subsidiary of JE Holdings
(Parent), J.E.C. ELECTRONICS SUB TWO, INC., a
Massachusetts corporation and a wholly-owned Subsidiary of
Parent (Purchaser), and PARLEX CORPORATION, a
Massachusetts corporation (the Company).
RECITALS
WHEREAS, pursuant to Section 9.2 of the Agreement and Plan
of Merger (the Agreement), dated as of
August 18, 2005, among JE Holdings, Parent, Purchaser and
the Company, the Agreement may be amended by action taken by or
on behalf of their respective Boards of Directors.
WHEREAS, the Boards of Directors of JE Holdings, Parent,
Purchaser and the Company desire to amend Section 8.1(b) of
the Agreement as set forth herein and have authorized the
officers of JE Holdings, Parent, Purchaser and the Company
to execute this Amendment.
NOW, THEREFORE, in consideration of the mutual promises and
covenants hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, JE Holdings, Parent, Purchaser and the Company
hereby agree as follows:
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1. Definitions. Capitalized terms not
otherwise defined in this Amendment have the meanings given to
them in the Agreement. |
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2. Amendment. Pursuant to Section 9.2 of
the Agreement, Section 8.1(b) of the Agreement is hereby
deleted in its entirety and replaced with the following: |
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(b) By JE Holdings, Parent, Purchaser or the Company if
(i) the Effective Time shall not have occurred on or before
January 15, 2006 (the Termination Date);
provided, however, that the right to terminate
this Agreement under this Section 8.1(b) shall not be
available to any party whose failure to fulfill any obligation
under this Agreement has been the cause of, or resulted in, the
failure of the Effective Time to occur on or before such date or
(ii) any Governmental Authority shall have enacted, issued,
promulgated, enforced or entered any injunction, order, decree
or ruling (whether temporary, preliminary or permanent) which
has become final and nonappealable and has the effect of making
consummation of the Merger illegal or otherwise preventing or
prohibiting consummation of the Merger; or |
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3. No Other Amendments. Except as modified by
Section 2 above, the Agreement shall continue in full force
and effect. |
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4. Governing Law. This Amendment shall be
governed by, and construed in accordance with, the laws of The
Commonwealth of Massachusetts applicable to contracts executed
in and to be performed in that Commonwealth. All actions and
proceedings arising out of or relating to this Amendment shall
be heard and determined in any Massachusetts state or United
States District Court sitting in the City of Boston. The parties
hereto hereby (i) submit to the exclusive jurisdiction of
any Massachusetts state or United States District Court sitting
in the City of Boston for the purpose of any Action arising out
of or relating to this Amendment brought by any party hereto;
and (ii) irrevocably waive, and agree not to assert by way
of motion, defense, or otherwise, in any such Action, any claim
that it is not subject personally to the jurisdiction of the
above-named courts, that its property is exempt or immune from
attachment or execution, that the Action is brought in an
inconvenient forum, that the venue of the Action is improper, or
that this Amendment may not be enforced in or by any of the
above-named courts. |
A-45
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5. Waiver of Jury Trial. Each of the parties
hereto hereby waives to the fullest extent permitted by
Applicable Law any right it may have to a trial by jury with
respect to any litigation directly or indirectly arising out of,
under or in connection with this Amendment. Each of the parties
hereto (i) certifies that no representative, agent or
attorney of any other party has represented, expressly or
otherwise, that such other party would not, in the event of
litigation, seek to enforce that foregoing waiver; and
(ii) acknowledges that it and the other parties hereto have
been induced to enter into this Amendment, as applicable, by,
among other things, the mutual waivers and certifications in
this Section 5. |
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6. Headings. The descriptive headings
contained in this Amendment are included for convenience of
reference only and shall not affect in any way the meaning or
interpretation of this Amendment. |
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7. Counterparts. This Amendment may be
executed and delivered (including by facsimile transmission) in
one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall
constitute one and the same agreement. |
[The remainder of this page has been left blank
intentionally.]
A-46
IN WITNESS WHEREOF, JE Holdings, Parent, Purchaser and the
Company have caused this Amendment to be executed as of the date
first written above by their respective officers thereunto duly
authorized.
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JOHNSON ELECTRIC HOLDINGS LIMITED |
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By |
/s/ Christopher Hasson |
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Title: |
Authorized Signatory |
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J.E.C. ELECTRONICS SUB ONE, INC. |
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By |
/s/ Christopher Hasson |
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Title: |
Chief Executive Officer |
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J.E.C. ELECTRONICS SUB TWO, INC. |
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By |
/s/ Christopher Hasson |
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Title: |
Chief Executive Officer |
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Title: |
Chief Executive Officer |
A-47
ANNEX B
Needham & Company, LLC One Post Office Square, Suite
1900, Boston, MA 02109 (617) 457-0900
August 16, 2005
CONFIDENTIAL
Board of Directors
Parlex Corporation
One Parlex Place
Methuen, MA 01844
Gentlemen:
We understand that Parlex Corporation (Parlex),
Johnson Electric Holdings Limited (Johnson
Electric), J.E.C. Electronics Sub One, Inc., an indirect
wholly-owned subsidiary of Johnson Electric (Holding
Co.) and J.E.C. Electronics Sub Two, Inc., a wholly-owned
subsidiary of Holding Co. (Subsidiary) propose to
enter into an Agreement and Plan of Merger (the Merger
Agreement) whereby, upon the terms and subject to the
conditions set forth in the Merger Agreement, the Subsidiary of
Johnson Electric will merge with and into Parlex, with Parlex
surviving the merger (the Merger). Pursuant to the
Merger Agreement, each outstanding share of Parlex common stock,
par value $0.10 per share (the Common Stock) is
proposed to be converted into and represents the right to
receive $6.75 per share in cash and each share of
Series A convertible preferred stock, par value
$1.00 per share (Series A Stock) is
proposed to be converted into the right to receive the
Liquidation Value (as defined in the Merger Agreement) thereof.
The terms of the Merger are set forth more fully in the Merger
Agreement.
Immediately prior to the execution of the Merger Agreement,
Parlex and Amphenol Corporation (Amphenol) propose
to enter into an Asset Purchase Agreement (the Purchase
Agreement) related to the sale of Parlexs Multilayer
division, including certain related equipment and inventory
(collectively, the Multilayer Business) (the
Acquisition). In connection with the Acquisition,
Amphenol may purchase certain equipment and inventory for
additional cash payments after the closing of the Acquisition.
The terms of the Acquisition are set forth more fully in the
Purchase Agreement.
You have asked us to advise you as to the fairness, from a
financial point of view, to the holders of Common Stock of
Parlex of the consideration to be paid by Johnson Electric in
the proposed Merger. You have not asked us to advise you as to
the fairness, from a financial point of view, of the
consideration to be paid to Parlex by Amphenol in the proposed
Acquisition. Accordingly, we express no opinion as to the
fairness, from a financial point of view, to Parlex of the
consideration to be paid by Amphenol in the proposed Acquisition.
For purposes of this opinion we have, among other things:
(i) reviewed a draft of the Merger Agreement dated
August 15, 2005; (ii) reviewed a draft of the Purchase
Agreement dated August 12, 2005; (iii) reviewed
certain publicly available information concerning Parlex and
certain other relevant financial and operating data of Parlex
furnished to us by Parlex; (iv) held discussions with
members of management of Parlex concerning the business and
prospects of Parlex; (v) reviewed certain materials
prepared by Parlex concerning the business and prospects of
Parlex; (vi) reviewed certain financial
New York: 445 Park Avenue, New York, NY 10022-4406
(212) 371-8300
Menlo Park, CA: 3000 Sand Hill Road, Building 2,
Suite 190, Menlo Park, CA 94025 (650) 854-9111
San Francisco, CA: One Ferry Building,
Suite 240, San Francisco, CA 94111 (415) 262-4860
B-1
forecasts with respect to Parlex prepared by the management of
Parlex; (vii) reviewed the projected net proceeds from the
sale of the Multilayer Business prepared by the management of
Parlex; (viii) compared certain publicly available
financial data of companies whose securities are traded in the
public markets and that we deemed relevant to similar data for
Parlex; (ix) reviewed the trading history of the
Parlexs Common Stock, including its performance in
comparison to market indicies and to selected companies in
comparable businesses; (x) reviewed the financial terms of
certain other business combinations that we deemed generally
relevant; (xi) participated in discussions and negotiations
among representatives of Parlex and Johnson Electric and their
financial and legal advisors; and (xii) performed and/or
considered such other studies, analyses, inquiries and
investigations as we deemed appropriate.
In connection with our review and in arriving at our opinion, we
have assumed and relied on the accuracy and completeness of all
of the financial and other information reviewed by us for
purposes of this opinion and have neither attempted to verify
independently nor assumed responsibility for verifying any of
such information. In addition, we have assumed, with your
consent, that (i) the Merger will be consummated upon the
terms and subject to the conditions set forth in the draft
Merger Agreement dated August 15, 2005 and (ii) the
Acquisition will be consummated upon the terms and condition set
forth in the draft Purchase Agreement dated August 12,
2005, in each case without material alteration or waiver
thereof. With respect to the financial forecasts for Parlex and
the projected net proceeds from the sale of the Multilayer
Business provided to us by Parlexs management, we have
assumed, with your consent and based upon discussions with
Parlexs management, that such forecasts and projections
have been reasonably prepared on bases reflecting the best
currently available estimates and judgments of such management,
at the time of preparation, of the future operating and
financial performance of Parlex and the projected proceeds from
the sale of the Multilayer Business. We express no opinion with
respect to any of such forecasts, projections or estimates or
the assumptions on which they were based.
We have relied on advice of counsel given to Parlex as to all
legal matters and advice of independent accountants given to
Parlex as to all financial reporting matters, all with respect
to Parlex, the Merger and the Merger Agreement. We have not
assumed any responsibility for or made or obtained any
independent evaluation, appraisal or physical inspection of the
assets or liabilities of Parlex. Further, our opinion is based
on economic, monetary and market conditions as they exist and
can be evaluated as of the date hereof and we assume no
responsibility to update or revise our opinion based upon
circumstances and events occurring after the date hereof. Our
opinion as expressed herein is limited to the fairness, from a
financial point of view, to the holders of Common Stock of
Parlex of the consideration to be paid by Johnson Electric in
the proposed Merger. You have not asked us to advise you as to
the fairness, from a financial point of view, of the
consideration to be paid to Parlex by Amphenol in the proposed
Acquisition. Accordingly, we express no opinion as to the
fairness, from a financial point of view, to Parlex of the
consideration to be paid by Amphenol in the proposed
Acquisition. In addition, our opinion does not address
Parlexs underlying business decision to engage in the
Merger or the Acquisition or the relative merits of the Merger
or the Acquisition as compared to other business strategies that
might be available to Parlex.
Needham & Company, LLC, as part of its investment
banking business, is regularly engaged in the valuation of
businesses and their securities in connection with mergers and
acquisitions, negotiated underwritings, secondary distributions
of securities, private placements and other purposes. We have
been engaged by Parlex as financial advisor in connection with
the Merger and to render this opinion and will receive a fee for
our services, which is contingent on the consummation of the
Merger. In addition, Parlex has agreed to indemnify us for
certain liabilities arising out of our role as financial advisor
and out of the rendering of this opinion and to reimburse us for
our reasonable out-of-pocket expenses. We have in the past
provided and may in the future provide investment banking and
financial advisory services to Parlex unrelated to the proposed
Merger, for which services we have received and expect to
receive compensation. Needham & Company, LLC owns
12,500 shares of Series A Stock of Parlex and warrants
to purchase 62,500 shares of Common Stock. Entities
affiliated with Needham & Company, LLC own
385,000 shares of Common Stock of Parlex. In the ordinary
course of our business, we may actively trade
B-2
the equity securities of Parlex for our own account or for the
accounts of customers and, accordingly, may at any time hold a
long or short position in such securities.
This letter and the opinion expressed herein are solely for the
use and benefit of the Board of Directors of Parlex and except
as set forth below may not be quoted or referred to or used for
any purpose without our prior written consent. If this opinion
is required by applicable law to be included in a proxy
statement or other similar statement filed with the Securities
and Exchange Commission and provided to securityholders of
Parlex in connection with the Merger, this opinion will be
reproduced in such statement in full, and any description of or
reference to Needham & Company, LLC or summary of this
opinion in such statement will be in a form reasonably
acceptable to Needham & Company, LLC and its counsel.
Based upon and subject to the foregoing, it is our opinion that,
as of the date hereof, the consideration to be paid by Johnson
Electric in the proposed Merger is fair to the holders of Common
Stock of Parlex from a financial point of view.
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Very truly yours, |
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Needham &
Company, LLC
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B-3
ANNEX C
MASSACHUSETTS BUSINESS CORPORATION ACT
PART 13
SUBDIVISION A.
RIGHT TO DISSENT AND OBTAIN PAYMENT FOR SHARES
Section 13.01. Definitions.
In this PART the following words shall have the following
meanings unless the context requires otherwise:
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Affiliate, any person that directly or
indirectly through one or more intermediaries controls, is
controlled by, or is under common control of or with another
person. |
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Beneficial shareholder, the person who is a
beneficial owner of shares held in a voting trust or by a
nominee as the record shareholder. |
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Corporation, the issuer of the shares held by
a shareholder demanding appraisal and, for matters covered in
sections 13.22 to 13.31, inclusive, includes the surviving
entity in a merger. |
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Fair value, with respect to shares being
appraised, the value of the shares immediately before the
effective date of the corporate action to which the shareholder
demanding appraisal objects, excluding any element of value
arising from the expectation or accomplishment of the proposed
corporate action unless exclusion would be inequitable. |
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Interest, interest from the effective date of
the corporate action until the date of payment, at the average
rate currently paid by the corporation on its principal bank
loans or, if none, at a rate that is fair and equitable under
all the circumstances. |
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Marketable securities, securities held of
record by, or by financial intermediaries or depositories on
behalf of, at least 1,000 persons and which were |
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(a) listed on a national securities exchange, |
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(b) designated as a national market system security on an
interdealer quotation system by the National Association of
Securities Dealers, Inc., or |
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(c) listed on a regional securities exchange or traded in
an interdealer quotation system or other trading system and had
at least 250,000 outstanding shares, exclusive of shares held by
officers, directors and affiliates, which have a market value of
at least $5,000,000. |
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Officer, the chief executive officer,
president, chief operating officer, chief financial officer, and
any vice president in charge of a principal business unit or
function of the issuer. |
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Person, any individual, corporation,
partnership, unincorporated association or other entity. |
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Record shareholder, the person in whose name
shares are registered in the records of a corporation or the
beneficial owner of shares to the extent of the rights granted
by a nominee certificate on file with a corporation. |
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Shareholder, the record shareholder or the
beneficial shareholder. |
Section 13.02 Right
to Appraisal. (a) A shareholder is entitled to
appraisal rights, and obtain payment of the fair value of his
shares in the event of, any of the following corporate or other
actions:
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(1) consummation of a plan of merger to which the
corporation is a party if shareholder approval is required for
the merger by section 11.04 or the articles of organization
or if the corporation is a subsidiary that is merged with its
parent under section 11.05, unless, in either case,
(A) all shareholders are to receive only cash for their
shares in amounts equal to what they would receive upon a
dissolution of the corporation or, in the case of shareholders
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marketable securities in the merging corporation, only
marketable securities of the surviving corporation and/or cash
and (B) no director, officer or controlling shareholder has
a direct or indirect material financial interest in the merger
other than in his capacity as (i) a shareholder of the
corporation, (ii) a director, officer, employee or
consultant of either the merging or the surviving corporation or
of any affiliate of the surviving corporation if his financial
interest is pursuant to bona fide arrangements with either
corporation or any such affiliate, or (iii) in any other
capacity so long as the shareholder owns not more than five
percent of the voting shares of all classes and series of the
corporation in the aggregate; |
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(2) consummation of a plan of share exchange in which his
shares are included unless: (A) both his existing shares
and the shares, obligations or other securities to be acquired
are marketable securities; and (B) no director, officer or
controlling shareholder has a direct or indirect material
financial interest in the share exchange other than in his
capacity as (i) a shareholder of the corporation whose
shares are to be exchanged, (ii) a director, officer,
employee or consultant of either the corporation whose shares
are to be exchanged or the acquiring corporation or of any
affiliate of the acquiring corporation if his financial interest
is pursuant to bona fide arrangements with either corporation or
any such affiliate, or (iii) in any other capacity so long
as the shareholder owns not more than five percent of the voting
shares of all classes and series of the corporation whose shares
are to be exchanged in the aggregate; |
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(3) consummation of a sale or exchange of all, or
substantially all, of the property of the corporation if the
sale or exchange is subject to section 12.02, or a sale or
exchange of all, or substantially all, of the property of a
corporation in dissolution, unless: |
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(i) his shares are then redeemable by the corporation at a
price not greater than the cash to be received in exchange for
his shares; or |
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(ii) the sale or exchange is pursuant to court
order; or |
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(iii) in the case of a sale or exchange of all or
substantially all the property of the corporation subject to
section 12.02, approval of shareholders for the sale or
exchange is conditioned upon the dissolution of the corporation
and the distribution in cash or, if his shares are marketable
securities, in marketable securities and/or cash, of
substantially all of its net assets, in excess of a reasonable
amount reserved to meet unknown claims under section 14.07,
to the shareholders in accordance with their respective
interests within one year after the sale or exchange and no
director, officer or controlling shareholder has a direct or
indirect material financial interest in the sale or exchange
other than in his capacity as (i) a shareholder of the
corporation, (ii) a director, officer, employee or
consultant of either the corporation or the acquiring
corporation or of any affiliate of the acquiring corporation if
his financial interest is pursuant to bona fide arrangements
with either corporation or any such affiliate, or (iii) in
any other capacity so long as the shareholder owns not more than
five percent of the voting shares of all classes and series of
the corporation in the aggregate; |
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(4) an amendment of the articles of organization that
materially and adversely affects rights in respect of a
shareholders shares because it: |
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(i) creates, alters or abolishes the stated rights or
preferences of the shares with respect to distributions or to
dissolution, including making non-cumulative in whole or in part
a dividend theretofore stated as cumulative; |
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(ii) creates, alters or abolishes a stated right in respect
of conversion or redemption, including any provision relating to
any sinking fund or purchase, of the shares; |
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(iii) alters or abolishes a preemptive right of the holder
of the shares to acquire shares or other securities; |
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(iv) excludes or limits the right of the holder of the
shares to vote on any matter, or to cumulate votes, except as
such right may be limited by voting rights given to new shares
then being authorized of an existing or new class; or |
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(v) reduces the number of shares owned by the shareholder
to a fraction of a share if the fractional share so created is
to be acquired for cash under section 6.04; |
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(5) an amendment of the articles of organization or of the
bylaws or the entering into by the corporation of any agreement
to which the shareholder is not a party that adds restrictions
on the transfer or registration or any outstanding shares held
by the shareholder or amends any pre-existing restrictions on
the transfer or registration of his shares in a manner which is
materially adverse to the ability of the shareholder to transfer
his shares; |
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(6) any corporate action taken pursuant to a shareholder
vote to the extent the articles of organization, bylaws or a
resolution of the board of directors provides that voting or
nonvoting shareholders are entitled to appraisal; |
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(7) consummation of a conversion of the corporation to
nonprofit status pursuant to subdivision B of
PART 9; or |
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(8) consummation of a conversion of the corporation into a
form of other entity pursuant to subdivision D of PART 9. |
(b) Except as otherwise provided in
subsection (a) of section 13.03, in the event of
corporate action specified in clauses (1), (2), (3),
(7) or (8) of subsection (a), a shareholder may
assert appraisal rights only if he seeks them with respect to
all of his shares of whatever class or series.
(c) Except as otherwise provided in
subsection (a) of section 13.03, in the event of
an amendment to the articles of organization specified in
clause (4) of subsection (a) or in the event of
an amendment of the articles of organization or the bylaws or an
agreement to which the shareholder is not a party specified in
clause (5) of subsection (a), a shareholder may assert
appraisal rights with respect to those shares adversely affected
by the amendment or agreement only if he seeks them as to all of
such shares and, in the case of an amendment to the articles of
organization or the bylaws, has not voted any of his shares of
any class or series in favor of the proposed amendment.
(d) The shareholders right to obtain payment of the
fair value of his shares shall terminate upon the occurrence of
any of the following events:
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(i) the proposed action is abandoned or rescinded; or |
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(ii) a court having jurisdiction permanently enjoins or
sets aside the action; or |
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(iii) the shareholders demand for payment is
withdrawn with the written consent of the corporation. |
(e) A shareholder entitled to appraisal rights under this
chapter may not challenge the action creating his entitlement
unless the action is unlawful or fraudulent with respect to the
shareholder or the corporation.
Section 13.03. Assertion
of Rights by Nominees and Beneficial Owners.
(a) A record shareholder may assert appraisal rights as to
fewer than all the shares registered in the record
shareholders name but owned by a beneficial shareholder
only if the record shareholder objects with respect to all
shares of the class or series owned by the beneficial
shareholder and notifies the corporation in writing of the name
and address of each beneficial shareholder on whose behalf
appraisal rights are being asserted. The rights of a record
shareholder who asserts appraisal rights for only part of the
shares held of record in the record shareholders name
under this subsection shall be determined as if the shares as to
which the record shareholder objects and the record
shareholders other shares were registered in the names of
different record shareholders.
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(b) A beneficial shareholder may assert appraisal rights as
to shares of any class or series held on behalf of the
shareholder only if such shareholder:
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(1) submits to the corporation the record
shareholders written consent to the assertion of such
rights no later than the date referred to in subclause (ii)
of clause (2) of subsection (b) of
section 13.22; and |
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(2) does so with respect to all shares of the class or
series that are beneficially owned by the beneficial shareholder. |
SUBDIVISION B.
PROCEDURE FOR EXERCISE OF APPRAISAL RIGHTS
Section 13.20. Notice
of Appraisal Rights.
(a) If proposed corporate action described in
subsection (a) of section 13.02 is to be
submitted to a vote at a shareholders meeting or through
the solicitation of written consents, the meeting notice or
solicitation of consents shall state that the corporation has
concluded that shareholders are, are not or may be entitled to
assert appraisal rights under this chapter and refer to the
necessity of the shareholder delivering, before the vote is
taken, written notice of his intent to demand payment and to the
requirement that he not vote his shares in favor of the proposed
action. If the corporation concludes that appraisal rights are
or may be available, a copy of this chapter shall accompany the
meeting notice sent to those record shareholders entitled to
exercise appraisal rights.
(b) In a merger pursuant to section 11.05, the parent
corporation shall notify in writing all record shareholders of
the subsidiary who are entitled to assert appraisal rights that
the corporate action became effective. Such notice shall be sent
within 10 days after the corporate action became effective
and include the materials described in section 13.22.
Section 13.21. Notice
of Intent to Demand Payment.
(a) If proposed corporate action requiring appraisal rights
under section 13.02 is submitted to vote at a
shareholders meeting, a shareholder who wishes to assert
appraisal rights with respect to any class or series of shares:
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(1) shall deliver to the corporation before the vote is
taken written notice of the shareholders intent to demand
payment if the proposed action is effectuated; and |
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(2) shall not vote, or cause or permit to be voted, any
shares of such class or series in favor of the proposed action. |
(b) A shareholder who does not satisfy the requirements of
subsection (a) is not entitled to payment under this
chapter.
Section 13.22. Appraisal
Notice and Form.
(a) If proposed corporate action requiring appraisal rights
under subsection (a) of section 13.02 becomes
effective, the corporation shall deliver a written appraisal
notice and form required by clause (1) of
subsection (b) to all shareholders who satisfied the
requirements of section 13.21 or, if the action was taken
by written consent, did not consent. In the case of a merger
under section 11.05, the parent shall deliver a written
appraisal notice and form to all record shareholders who may be
entitled to assert appraisal rights.
(b) The appraisal notice shall be sent no earlier than the
date the corporate action became effective and no later than
10 days after such date and must:
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(1) supply a form that specifies the date of the first
announcement to shareholders of the principal terms of the
proposed corporate action and requires the shareholder asserting
appraisal rights |
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to certify (A) whether or not beneficial ownership of those
shares for which appraisal rights are asserted was acquired
before that date and (B) that the shareholder did not vote
for the transaction; |
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(2) state: |
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(i) where the form shall be sent and where certificates for
certificated shares shall be deposited and the date by which
those certificates shall be deposited, which date may not be
earlier than the date for receiving the required form under
subclause (ii); |
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(ii) a date by which the corporation shall receive the form
which date may not be fewer than 40 nor more than 60 days
after the date the subsection (a) appraisal notice and
form are sent, and state that the shareholder shall have waived
the right to demand appraisal with respect to the shares unless
the form is received by the corporation by such specified date; |
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(iii) the corporations estimate of the fair value of
the shares; |
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(iv) that, if requested in writing, the corporation will
provide, to the shareholder so requesting, within 10 days
after the date specified in clause (ii) the number of
shareholders who return the forms by the specified date and the
total number of shares owned by them; and |
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(v) the date by which the notice to withdraw under
section 13.23 shall be received, which date shall be within
20 days after the date specified in subclause (ii) of
this subsection; and |
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(3) be accompanied by a copy of this chapter. |
Section 13.23. Perfection
of Rights; Right to Withdraw.
(a) A shareholder who receives notice pursuant to
section 13.22 and who wishes to exercise appraisal rights
shall certify on the form sent by the corporation whether the
beneficial owner of the shares acquired beneficial ownership of
the shares before the date required to be set forth in the
notice pursuant to clause (1) of
subsection (b) of section 13.22. If a shareholder
fails to make this certification, the corporation may elect to
treat the shareholders shares as after-acquired shares
under section 13.25. In addition, a shareholder who wishes
to exercise appraisal rights shall execute and return the form
and, in the case of certificated shares, deposit the
shareholders certificates in accordance with the terms of
the notice by the date referred to in the notice pursuant to
subclause (ii) of clause (2) of
subsection (b) of section 13.22. Once a
shareholder deposits that shareholders certificates or, in
the case of uncertificated shares, returns the executed forms,
that shareholder loses all rights as a shareholder, unless the
shareholder withdraws pursuant to said subsection (b).
(b) A shareholder who has complied with
subsection (a) may nevertheless decline to exercise
appraisal rights and withdraw from the appraisal process by so
notifying the corporation in writing by the date set forth in
the appraisal notice pursuant to subclause (v) of
clause (2) of subsection (b) of
section 13.22. A shareholder who fails to so withdraw from
the appraisal process may not thereafter withdraw without the
corporations written consent.
(c) A shareholder who does not execute and return the form
and, in the case of certificated shares, deposit that
shareholders share certificates where required, each by
the date set forth in the notice described in
subsection (b) of section 13.22, shall not be
entitled to payment under this chapter.
Section 13.24. Payment.
(a) Except as provided in section 13.25, within
30 days after the form required by subclause (ii) of
clause (2) of subsection (b) of
section 13.22 is due, the corporation shall pay in cash to
those shareholders who complied with subsection (a) of
section 13.23 the amount the corporation estimates to be
the fair value of their shares, plus interest.
(b) The payment to each shareholder pursuant to
subsection (a) shall be accompanied by:
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(1) financial statements of the corporation that issued the
shares to be appraised, consisting of a balance sheet as of the
end of a fiscal year ending not more than 16 months before
the date of |
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payment, an income statement for that year, a statement of
changes in shareholders equity for that year, and the
latest available interim financial statements, if any; |
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(2) a statement of the corporations estimate of the
fair value of the shares, which estimate shall equal or exceed
the corporations estimate given pursuant to
subclause (iii) of clause (2) of
subsection (b) of section 13.22; and |
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(3) a statement that shareholders described in
subsection (a) have the right to demand further
payment under section 13.26 and that if any such
shareholder does not do so within the time period specified
therein, such shareholder shall be deemed to have accepted the
payment in full satisfaction of the corporations
obligations under this chapter. |
Section 13.25. After-Acquired
Shares.
(a) A corporation may elect to withhold payment required by
section 13.24 from any shareholder who did not certify that
beneficial ownership of all of the shareholders shares for
which appraisal rights are asserted was acquired before the date
set forth in the appraisal notice sent pursuant to
clause (1) of subsection (b) of
section 13.22.
(b) If the corporation elected to withhold payment under
subsection (a), it must, within 30 days after the form
required by subclause (ii) of clause (2) of
subsection (b) of section 13.22 is due, notify
all shareholders who are described in subsection (a):
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(1) of the information required by clause (1) of
subsection (b) of section 13.24; |
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(2) of the corporations estimate of fair value
pursuant to clause (2) of subsection (b) of said
section 13.24; |
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(3) that they may accept the corporations estimate of
fair value, plus interest, in full satisfaction of their demands
or demand appraisal under section 13.26; |
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(4) that those shareholders who wish to accept the offer
shall so notify the corporation of their acceptance of the
corporations offer within 30 days after receiving the
offer; and |
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(5) that those shareholders who do not satisfy the
requirements for demanding appraisal under section 13.26
shall be deemed to have accepted the corporations offer. |
(c) Within 10 days after receiving the
shareholders acceptance pursuant to subsection(b), the
corporation shall pay in cash the amount it offered under
clause (2) of subsection (b) to each shareholder
who agreed to accept the corporations offer in full
satisfaction of the shareholders demand.
(d) Within 40 days after sending the notice described
in subsection (b), the corporation must pay in cash the
amount if offered to pay under clause (2) of
subsection (b) to each shareholder deserved in
clause (5) of subsection (b).
Section 13.26. Procedure
if Shareholder Dissatisfied with Payment or Offer.
(a) A shareholder paid pursuant to section 13.24 who
is dissatisfied with the amount of the payment shall notify the
corporation in writing of that shareholders estimate of
the fair value of the shares and demand payment of that estimate
plus interest, less any payment under section 13.24. A
shareholder offered payment under section 13.25 who is
dissatisfied with that offer shall reject the offer and demand
payment of the shareholders stated estimate of the fair
value of the shares plus interest.
(b) A shareholder who fails to notify the corporation in
writing of that shareholders demand to be paid the
shareholders stated estimate of the fair value plus
interest under subsection (a) within 30 days
after receiving the corporations payment or offer of
payment under section 13.24 or section 13.25,
respectively, waives the right to demand payment under this
section and shall be entitled only to the payment made or
offered pursuant to those respective sections.
C-6
SUBDIVISION C.
JUDICIAL APPRAISAL OF SHARES
Section 13.30. Court
Action.
(a) If a shareholder makes demand for payment under
section 13.26 which remains unsettled, the corporation
shall commence an equitable proceeding within 60 days after
receiving the payment demand and petition the court to determine
the fair value of the shares and accrued interest. If the
corporation does not commence the proceeding within the 60-day
period, it shall pay in cash to each shareholder the amount the
shareholder demanded pursuant to section 13.26 plus
interest.
(b) The corporation shall commence the proceeding in the
appropriate court of the county where the corporations
principal office, or, if none, its registered office, in the
commonwealth is located. If the corporation is a foreign
corporation without a registered office in the commonwealth, it
shall commence the proceeding in the county in the commonwealth
where the principal office or registered office of the domestic
corporation merged with the foreign corporation was located at
the time of the transaction.
(c) The corporation shall make all shareholders, whether or
not residents of the commonwealth, whose demands remain
unsettled parties to the proceeding as an action against their
shares, and all parties shall be served with a copy of the
petition. Nonresidents may be served by registered or certified
mail or by publication as provided by law or otherwise as
ordered by the court.
(d) The jurisdiction of the court in which the proceeding
is commenced under subsection (b) is plenary and
exclusive. The court may appoint 1 or more persons as appraisers
to receive evidence and recommend a decision on the question of
fair value. The appraisers shall have the powers described in
the order appointing them, or in any amendment to it. The
shareholders demanding appraisal rights are entitled to the same
discovery rights as parties in other civil proceedings.
(e) Each shareholder made a party to the proceeding is
entitled to judgment (i) for the amount, if any, by which
the court finds the fair value of the shareholders shares,
plus interest, exceeds the amount paid by the corporation to the
shareholder for such shares or (ii) for the fair value,
plus interest, of the shareholders shares for which the
corporation elected to withhold payment under section 13.25.
Section 13.31. Court
Costs and Counsel Fees.
(a) The court in an appraisal proceeding commenced under
section 13.30 shall determine all costs of the proceeding,
including the reasonable compensation and expenses of appraisers
appointed by the court. The court shall assess the costs against
the corporation, except that the court may assess cost against
all or some of the shareholders demanding appraisal, in amounts
the court finds equitable, to the extent the court finds such
shareholders acted arbitrarily, vexatiously, or not in good
faith with respect to the rights provided by this chapter.
(b) The court in an appraisal proceeding may also assess
the fees and expenses of counsel and experts for the respective
parties, in amounts the court finds equitable:
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(1) against the corporation and in favor of any or all
shareholders demanding appraisal if the court finds the
corporation did not substantially comply with the requirements
of sections 13.20, 13.22, 13.24 or 13.25; or |
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(2) against either the corporation or a shareholder
demanding appraisal, in favor of any other party, if the court
finds that the party against whom the fees and expenses are
assessed acted arbitrarily, vexatiously, or not in good faith
with respect to the rights provided by this chapter. |
(c) If the court in an appraisal proceeding finds that the
services of counsel for any shareholder were of substantial
benefit to other shareholders similarly situated, and that the
fees for those services should not be assessed against the
corporation, the court may award to such counsel reasonable fees
to be paid out of the amounts awarded the shareholders who were
benefited.
(d) To the extent the corporation fails to make a required
payment pursuant to sections 13.24, 13.25, or 13.26, the
shareholder may sue directly for the amount owed and, to the
extent successful, shall be entitled to recover from the
corporation all costs and expenses of the suit, including
counsel fees.
C-7
PARLEX CORPORATION
One Parlex Place
Methuen, Massachusetts 01844
Proxy for Special Meeting to be held _________, 2005
THIS PROXY IS SOLICITED ON BEHALF OF THE PARLEX BOARD OF
DIRECTORS
[September__,] 2005
The undersigned shareholder(s) hereby appoint(s) [Peter J. Murphy] and [Jonathan R. Kosheff], or
either of them, as proxies, each with full power to appoint his substitute, and hereby authorizes
both of them, or any one if only one be present, to represent and to vote, as designated on the
reverse side of this ballot, all the shares of common stock of Parlex Corporation that the
undersigned is/are entitled to vote at the Special Meeting of Stockholders to be held on [___,
2005] at [ a.m. local time] at Parlex corporate headquarters, One Parlex Place, Methuen,
Massachusetts 01844 or at any adjournment or postponement thereof.
This proxy, when properly executed, will be voted in the manner directed herein by the undersigned
stockholder(s). If no direction is made, this proxy will be voted FOR Proposals 1 and 2 with
discretionary authority to vote upon such other matters as may properly come before the meeting.
If you wish to vote in accordance with the Board of Directors recommendation, just sign and date
on the reverse side. You need not mark any boxes.
PLEASE VOTE, DATE AND SIGN ON THE REVERSE AND RETURN THIS CARD PROMPTLY USING THE ENCLOSED
ENVELOPE.
Please sign exactly as your name(s) appear(s) on the shareholder record books of Parlex
Corporation. Joint owners should each sign personally. Trustees and other fiduciaries should
indicate the capacity in which they sign, and where more than one name appears, a majority must
sign. If a corporation, this signature should be that of an authorized officer who should state his
or her title.
PARLEX CORPORATION
One Parlex Place
Methuen, Massachusetts 01844
VOTE BY INTERNET [www.proxyvote.com]
Use the Internet to transmit your voting instructions and for electronic delivery of information up
until 11:59 p.m. Eastern Time the day before the cut-off date or meeting date. Have your proxy
card in hand when you access the web site and follow the instructions to obtain your records and to
create an electronic voting instruction form.
VOTE BY TELEPHONE 1-800-___-____
Use any touch-tone telephone to transmit your voting instructions up until 11:59 p.m. Eastern Time
the date before the cut-off date or meeting date. Have your proxy card in hand when you call and
then follow the instructions.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided and
return it to Parlex Corporation, c/o [ ].
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED
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þ PLEASE
MARK VOTES AS IN
THE EXAMPLE
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1. |
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To approve the
Agreement and Plan of
Merger, dated as of
August 18, 2005, as
amended, among Johnson
Electric Holdings
Limited, J.E.C.
Electronics Sub One,
Inc., an indirect
wholly-owned subsidiary
of JE Holdings, J.E.C.
Electronics Sub Two,
Inc., a wholly-owned
subsidiary of J.E.C.
Electronics Sub One,
Inc., and Parlex
Corporation.
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FOR
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AGAINST
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ABSTAIN
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2. |
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To grant the persons
named as proxies
discretionary authority
to vote to adjourn the
Special Meeting, if
necessary, to satisfy the
conditions to complete
the Merger as set forth
in the Agreement and Plan
of Merger, including for
the purpose of soliciting
proxies to vote in favor
of the Agreement and Plan
of Merger.
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To consider and act
upon such matters as may
properly come before the
meeting.
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Mark box at right if an
address change or comment
has been noted on the
reverse of this card. |
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Please be sure to
sign and date this
Proxy. |
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Stockholder
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Co-owner |
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Sign here:
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Date:
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Sign here:
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Date:
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