adversely affect the ability of Williams Controls to achieve the results reflected in such prospective financial information. Further, the prospective financial information does not take into account the effect of any failure of the Offer or the Merger to occur and should not be viewed as accurate or continuing in that context.
The inclusion of the prospective financial information herein should not be deemed an admission or representation by Curtiss-Wright or Purchaser that they are viewed by Curtiss-Wright or Purchaser as material information of Williams Controls. The prospective financial information should be evaluated, if at all, in conjunction with the historical financial statements and other information regarding Williams Controls contained in Williams Controls’s public filings with the SEC. In light of the foregoing factors and the uncertainties inherent in Williams Controls’s prospective financial information, stockholders are cautioned not to place undue, if any, reliance on the prospective financial information included in this Offer to Purchase.
The following is a summary of the prospective financial information Williams Controls provided to Curtiss-Wright in connection with its due diligence review:
Certain of the prospective financial information set forth herein are non-GAAP financial measures. We understand that Williams Controls provided this information to Curtiss-Wright because Williams Controls believed it could be useful in evaluating, on a prospective basis, Williams Controls’s potential operating performance and cash flow. Non-GAAP financial measures should not be considered in isolation from, or as a substitute for, financial information presented in compliance with GAAP, and non-GAAP financial measures as used by Williams Controls may not be comparable to similarly titled amounts used by other companies.
The following table presents a reconciliation of EBITDA to net income, which Williams Controls believes represents the most comparable GAAP measure. This table also presents a reconciliation of Adjusted EBITDA to net income. Readers also should note that, as with all other information presented in this section, the information presented in this table reflects forward-looking, rather than historical, information.
Dr., Suite 200, Charlotte, NC 28277. Curtiss-Wright Control’s telephone number at such principal executive offices is (704)869-4650.
Curtiss-Wright. Curtiss-Wright is a Delaware corporation. Its shares are listed on the New York Stock Exchange, Inc. (NYSE). Curtiss-Wright is a diversified, multinational provider of highly engineered, technologically advanced products and services. Curtiss-Wright designs and manufactures highly engineered, advanced technologies that perform critical functions in demanding conditions in the defense, power generation, oil and gas, commercial aerospace, and general industrial markets, where safety, performance, and reliability are essential. The principal executive offices of Curtiss-Wright are located at 10 Waterview Boulevard, Parsippany, New Jersey 07054. Curtiss-Wright’s telephone number at such principal executive offices is (973) 541-3700.
Additional Information. The name, business address, citizenship, present principal occupation and employment history for the past five years of each of the members of the board of directors and the executive officers of Curtiss-Wright and the members of the board of directors and the executive officers of Purchaser are set forth in Schedule A to this Offer to Purchase.
None of Curtiss-Wright, Purchaser or, to the knowledge of Curtiss-Wright or Purchaser after reasonable inquiry, any of the persons listed in Schedule A, has during the last five years (a) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) been a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, U.S. federal or state securities laws or a finding of any violation of U.S. federal or state securities laws.
Except as set forth elsewhere in this Offer to Purchase: (a) none of Curtiss-Wright, Purchaser or, to the knowledge of Curtiss-Wright or Purchaser after reasonable inquiry, any of the persons listed in Schedule A or any associate or majority-owned subsidiary of Curtiss-Wright, Purchaser or any of the persons so listed, beneficially owns or has a right to acquire any Shares or any other equity securities of Williams Controls, (b) none of Curtiss-Wright, Purchaser or, to the knowledge of Curtiss-Wright or Purchaser after reasonable inquiry, any of the persons referred to in clause (a) above or any of their executive officers, directors, affiliates or subsidiaries has effected any transaction in Shares or any other equity securities of Williams Controls during the past 60 days, (c) none of Curtiss-Wright, Purchaser, their subsidiaries or, to the knowledge of Curtiss-Wright or Purchaser after reasonable inquiry, any of the persons listed in Schedule A, has any agreement, arrangement, or understanding, whether or not legally enforceable, with any other person with respect to any securities of Williams Controls (including, but not limited to, any agreement, arrangement, or understanding concerning the transfer or the voting of any such securities, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss or the giving or withholding of proxies, consents or authorizations), (d) in the past two years, except as previously disclosed in Williams Controls’s filings with the SEC, there have been no transactions that would require reporting under the rules and regulations of the SEC between any of Curtiss-Wright, Purchaser, their subsidiaries or, to the knowledge of Curtiss-Wright or Purchaser after reasonable inquiry, any of the persons listed in Schedule A, on the one hand, and Williams Controls or any of its executive officers, directors or affiliates, on the other hand, and (e) in the past two years, there have been no negotiations, transactions or material contacts between any of Curtiss-Wright, Purchaser, their subsidiaries or, to the knowledge of Curtiss-Wright or Purchaser after reasonable inquiry, any of the persons listed in Schedule A, on the one hand, and Williams Controls or any of its affiliates, on the other hand, concerning a merger, consolidation or acquisition, a tender offer or other acquisition of Williams Controls’s securities, an election of Williams Controls’s directors or a sale or other transfer of a material amount of assets of Williams Controls.
We do not believe our financial condition is relevant to your decision whether to tender your Shares and accept the Offer because (a) the Offer is being made for all issued and outstanding Shares solely for cash, (b) the Offer is not subject to any financing condition, (c) if we consummate the Offer, we will acquire all remaining Shares for the same cash price pursuant to the Merger, and (d) Curtiss-Wright has, and will arrange for Purchaser to have, sufficient funds to purchase all Shares validly tendered and not properly withdrawn in the Offer and to acquire the remaining issued and outstanding Shares pursuant to the Merger at the Acceptance Time and the Effective Time, as the case may be.
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10. Background of the Offer; Contacts with Williams Controls
As part of their ongoing evaluation of Curtiss-Wright’s business and strategic alternatives, our board of directors and senior members of our management, on occasion with the assistance of outside financial and legal advisors, evaluate strategic opportunities and prospects for acquisitions.
In late May 2012, representatives of Houlihan Lokey contacted Curtiss-Wright to assess Curtiss-Wright’s interest in acquiring Williams Controls.
During the week of June 4, 2012, senior management of Curtiss-Wright discussed the potential merits of acquiring Williams Controls and worked with Houlihan Lokey to arrange a management visit.
On July 18, 2012, members of Curtiss-Wright’s management toured Williams Controls’ facilities located in Oregon with members of Williams Controls’ senior management and received marketing materials.
On August 9, 2012, Curtiss-Wright submitted an initial indication of interest with a purchase price range of $13.55 to $14.67 per share.
On August 13, 2012, Curtiss-Wright amended the range to $14.05 - $14.67 per share.
On August 21, 2012, Curtiss-Wright increased its offer to $15.00 per share after discussions with Houlihan Lokey.
On September 8 through 11, 2012, Curtiss-Wright’s executives had a series of meetings with Williams Controls’ management as part of its due diligence evaluation.
On September 11, 2012, Curtiss-Wright’s Co-Chief Operating Officer toured Williams Controls’ facility in China and conducted a detailed review of sales forecasts, budget methodologies and accounting systems with Williams Controls’ management.
On September 17, 2012, Curtiss-Wright submitted a draft merger agreement and an offer of $15.75 per share.
On September 18, 2012, Curtiss-Wright was advised by Houlihan Lokey that based upon the terms of the draft merger agreement and offer submitted, Curtiss-Wright would be granted exclusivity to move forward with the acquisition.
On October 3 and 4, 2012, senior members of the management of both Williams Controls and Curtiss-Wright met with Houlihan Lokey to discuss Williams Controls’ financial results, sales forecasts and tax and pension issues.
On October 11, 2012, Williams Controls’ management discussed engineering, quality and operational capabilities with Curtiss-Wright’s management in a due diligence session.
On October 16 and 18, 2012, senior management of Curtiss-Wright Controls toured Williams Controls’ facilities in India and China with senior management of Williams Controls.
During October 2012, Curtiss-Wright and Williams Controls, together with their legal and financial advisors, negotiated the Merger Agreement and the proposed offer price.
On October 24, 2012, based on its due diligence review of Williams Controls, Curtiss-Wright lowered its proposed offer price to $15.15 per share.
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Between October 26 and 28, 2012, Curtiss-Wright and Houlihan Lokey had multiple discussions and negotiation sessions, culminating in a negotiated offer price of $15.42 per share.
On October 29, 2012, the Board of Directors of Curtiss-Wright and its relevant subsidiaries approved the Merger Agreement, including the offer price. On October 31, 2012, Williams Controls and Curtiss-Wright Controls, Inc. executed the Merger Agreement and Curtiss-Wright entered into the Tender and Support Agreement with the directors, executive officers and certain stockholders of Williams Controls.
On November 1, 2012, before the U.S. stock markets opened, Curtiss-Wright and Williams Controls issued a joint press release announcing the execution of the Merger Agreement and the forthcoming announcement of a tender offer to acquire all of the issued and outstanding Shares at a price of $15.42 per Share in cash. The press release is filed as Exhibit (a)(5)(A) to the Schedule TO and is incorporated herein by reference.
11. Purpose of the Offer and Plans for Williams Controls; Merger Agreement and Other Agreements
Purpose of the Offer and Plans for Williams Controls. The purpose of the Offer and the Merger is for Curtiss-Wright, through Purchaser, to acquire control of, and the entire equity interest in, Williams Controls. The Offer, as a first step in the acquisition of Williams Controls, is intended to facilitate the acquisition of all the Shares. Pursuant to the Merger, we will acquire all of the capital stock of Williams Controls not purchased pursuant to the Offer, the top-up option or otherwise. Stockholders of Williams Controls who sell their Shares in the Offer will cease to have any equity interest in Williams Controls or any right to participate in its earnings and future growth. If the Merger is consummated, non-tendering stockholders also will no longer have an equity interest in Williams Controls. On the other hand, after selling their Shares in the Offer or the subsequent Merger, stockholders of Williams Controls will not bear the risk of any decrease in the value of Williams Controls.
Assuming Purchaser purchases a majority of the issued and outstanding Shares pursuant to the Offer, we are entitled and currently intend to exercise our rights under the Merger Agreement to obtain pro rata representation on, and control of, the Williams Controls Board. Following the Merger, the directors of Purchaser will become the directors of Williams Controls. See “The Merger Agreement—Directors.”
In accordance with the Merger Agreement, if we accept for payment and pay for at least a majority of the issued and outstanding Shares in the Offer, we will acquire the remaining Shares pursuant to the Merger. Under the Merger Agreement, following our acceptance for payment of the Shares in the Offer, we have the option under the top-up option to purchase from Williams Controls Shares sufficient to cause Curtiss-Wright and Purchaser to own one Share more than 90 percent of the total Shares that would then be outstanding. The availability of the top-up option is subject to certain conditions and cannot be exercised: (i) to purchase an amount of Shares in excess of the number of shares of common stock that can be issued without the Williams Controls being obligated to obtain stockholder approval pursuant to NYSE Rule 312.03(c), (ii) unless the Offer closing will have occurred and (iii) unless, immediately after such exercise, Curtiss-Wright and its subsidiaries would own more than 90% of the Shares then outstanding on a fully diluted basis. See “The Merger Agreement—Top-Up Option.”
We are conducting a detailed review of Williams Controls and its assets, corporate structure, dividend policy, capitalization, operations, properties, policies, management and personnel and will consider what, if any, changes would be desirable in light of the circumstances which exist upon completion of the Offer. We will continue to evaluate the business and operations of Williams Controls during the pendency of the Offer and after the consummation of the Offer and the Merger and will take such actions as we deem appropriate under the circumstances then existing. Thereafter, we intend to review such information as part of a comprehensive review of Williams Controls’s business, operations, capitalization and management with a view of optimizing development of Williams Controls’s potential in conjunction with Curtiss-Wright’s existing businesses. Possible changes could include changes in Williams Controls’s business, corporate structure, charter, by laws, capitalization, board of directors, management and dividend policy, although, except as disclosed in this Offer to Purchase, Curtiss-Wright and Purchaser have no current plans with respect to any of such matters.
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Except as disclosed in this Offer to Purchase, we do not have any present plans or proposals that would result in an extraordinary corporate transaction involving Williams Controls or any of its subsidiaries, such as a merger, reorganization, liquidation, relocation of operations, or sale or transfer of a material amount of assets, or any material changes in Williams Controls’s capitalization, corporate structure, business or composition of its management or board of directors.
The Merger Agreement.
The following is a summary of certain provisions of the Merger Agreement. This summary is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit (d)(1) to the Tender Offer Statement on Schedule TO that we have filed with the SEC on November 15, 2012 (the “Schedule TO”) and which is incorporated herein by reference. The Merger Agreement may be examined and copies may be obtained in the manner set forth in Section 8—”Certain Information Concerning Williams Controls.”
The Offer. The Merger Agreement provides that Purchaser will commence the Offer and that, upon the terms and subject to prior satisfaction or waiver of the Offer Conditions described in Section 13—”Conditions of the Offer” (including, if the Offer is extended or amended, the terms and conditions of any extension or amendment), Purchaser will accept for payment, and pay for, all Shares validly tendered pursuant to the Offer and not properly withdrawn prior to the Expiration Date.
Purchaser is permitted to (without the consent of Williams Controls), and shall (a) extend the Offer for one or more periods of time in consecutive increments of up to ten (10) business days per extension if, at the time the Offer is scheduled to expire, any of the Offer Conditions are not satisfied or have not been waived, until such time as such Offer Conditions are satisfied or waived, and (b) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or any rule or regulation of the NYSE applicable to the Offer; provided, that (1) if at any such scheduled expiration of the Offer, the Minimum Tender Condition is not satisfied but all other Offer Conditions are satisfied or waived, then Purchaser shall (A) have the right to extend the Offer for one period of up to ten (10) business days, or (B) if and as requested by Williams Controls, extend the Offer for one or more periods of time in consecutive increments of up to ten (10) business days per extension, and (2) we shall not be required to extend the Offer beyond December 31, 2012 or the termination of the Merger Agreement.
The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Shares), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Shares occurring on or after the date hereof and prior to the Acceptance Time.
Recommendation. Williams Controls has represented to us in the Merger Agreement that the Williams Controls Board (at a meeting duly called and held) has duly and unanimously (a) authorized and approved the execution, delivery and performance of the Merger Agreement, (b) approved and declared advisable the Merger Agreement, the Offer, the Merger and the other transactions contemplated in the Merger Agreement, (c) declared that the Merger Agreement, the Merger and the Offer, on the terms and subject to the conditions set forth in the Merger Agreement, are fair to and in the best interests of the stockholders of Williams Controls, (d) recommended that the stockholders of Williams Controls accept the Offer and tender their Shares pursuant to the Offer and approve and adopt the Merger Agreement and the Merger (the “Company Recommendation”). Williams Controls has further represented to us that such Williams Controls Board resolutions are sufficient to render inapplicable to Curtiss-Wright Controls and Purchaser Section 203 of the DGCL and any other takeover laws that may purport to be applicable to the Offer, the Merger, the exercise of the top-up option and the other transactions contemplated by the Merger Agreement.
Directors. The Merger Agreement provides that, subject to the requirements of Section 14(f) of the Exchange Act, Rule 14f-1 promulgated thereunder and applicable NYSE rules, promptly upon the Acceptance Time, Purchaser has the right to designate up to such number of directors, rounded to the nearest whole number constituting at least a majority of the directors, of Williams Controls as will give Purchaser representation on the Williams Controls Board equal to the product of the number of directors on the board (giving effect to any increase) and the percentage that
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the number of Shares beneficially owned by Curtiss-Wright Controls or its affiliates bears to the total number of Shares then outstanding, and Williams Controls shall use reasonable best efforts to, upon the request of Curtiss-Wright Controls, promptly, at the election of Curtiss-Wright Controls, either increase the size of the Williams Controls Board or seek and accept the resignation of such number of directors as is necessary to enable the designees of Curtiss-Wright Controls to be elected and to cause such designees to be so elected.
Williams Controls has also agreed in the Merger Agreement that individuals designated by Purchaser shall, as nearly as practicable, and to the extent permitted by applicable law, constitute at least the same percentage of each committee of the Williams Controls Board as the percentage of the entire board represented by the individuals designated by Purchaser, other than any committee established to take action under the Merger Agreement which committee shall be composed only of Independent Directors (defined below).
In the event Purchaser’s designees are elected or appointed to the Williams Controls Board, the Merger Agreement requires that, until the Effective Time, the Williams Controls Board will have at least two directors who were directors on the date of the Merger Agreement and who are not officers of Williams Controls or any subsidiary of Williams Controls (the “Independent Directors”). If the number of Independent Directors is reduced below two for any reason, the remaining Independent Director shall be entitled to designate a person to fill such vacancy or if no Independent Director remains, the individuals who were Directors of Williams Controls on the date of the Merger Agreement shall be entitled to designate two persons to fill the vacancies who are not officers, stockholders or affiliates of Williams Controls. The Merger Agreement further provides that, until the Effective Time, certain actions of Williams Controls may only be authorized by, and will require the authorization of, the Independent Directors.
Top-Up Option. Pursuant to the terms of the Merger Agreement, following the Acceptance Time, if we acquire less than 90% of the Shares outstanding, we would have the option (the “top-up option”) to purchase from Williams Controls, subject to certain limitations, the number of authorized and not outstanding additional Shares equal to the number of Shares sufficient to cause Curtiss-Wright Controls and Purchaser to own one Share more than 90% of the Shares then outstanding, taking into account those Shares outstanding after the exercise of the top-up option. The obligation of Williams Controls to issue Shares upon the exercise of the top-up option is subject only to certain conditions and the top-up option cannot be exercised: (i) to purchase an amount of Shares in excess of the number of shares of common stock that can be issued without Williams Controls being obligated to obtain stockholder approval pursuant to NYSE Rule 312.03(c), (ii) unless the Offer closing will have occurred and (iii) unless, immediately after such exercise, Curtiss-Wright Controls and its subsidiaries would own more than 90% of the Shares then outstanding on a fully diluted basis. According to Williams Controls, as of October 31, 2012, there were approximately 4.165 million Shares available to be issued pursuant to the top-up option. Additionally, pursuant to the Tender and Support Agreements, the directors and officers of Williams Controls have agreed to tender in the Offer all Shares beneficially owned and to exercise on a net issue basis any outstanding options and tender the resulting Shares. Upon the exercise of the stock options pursuant to this agreement, the Shares forfeited as consideration for the exercise shall be available for issuance pursuant to the top-up option. Including the Shares usable upon the exercise on a net issue basis of the options, the outstanding Shares subject to the Tender and Support Agreement represented, as of October 31, 2012, approximately 26% of the total outstanding Shares. Taking into account the net exercise of the options as required pursuant to the Tender and Support Agreements, Purchaser will be able to exercise the top-up option if an additional approximately 62% of the currently issued and outstanding Shares are validly tendered pursuant to the Offer and not properly withdrawn (including the Shares tendered pursuant to the Tender and Support Agreements). The price per Share payable under the top-up option would be equal to the Offer Price. In addition, the purchase price payable in connection with the exercise of the top-up option may be paid by us, at our election, either entirely in cash or by executing and delivering to Williams Controls a full-recourse promissory note, bearing interest at 5% annually and having a one-year term, in a principal amount equal to the balance of such purchase price.
The Merger. The Merger Agreement provides that, after the completion of the Offer and the satisfaction or waiver of certain conditions, Purchaser will be merged with and into Williams Controls and Williams Controls will be the surviving corporation. Curtiss-Wright Controls, Purchaser and Williams Controls have agreed in the Merger Agreement that, unless Curtiss-Wright Controls and Purchaser effect a short-form merger pursuant to the DGCL, Williams Controls will hold a special meeting of its stockholders as soon as practicable following the Acceptance
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Time for the purpose of adopting the Merger Agreement. Curtiss-Wright Controls and Purchaser have agreed that, at the special meeting, all of the Shares acquired pursuant to the Offer or otherwise owned by Curtiss-Wright Controls or any of its direct or indirect subsidiaries will be voted in favor of the Merger.
The Merger Agreement further provides that, notwithstanding the foregoing, if, following consummation of the Offer or the exercise of the top-up option, Curtiss-Wright Controls and Purchaser (together with any other direct or indirect subsidiaries of Curtiss-Wright Controls) hold in the aggregate at least 90 percent of the outstanding shares of each class of capital stock of Williams Controls, each of Curtiss-Wright Controls, Purchaser and Williams Controls will take all necessary and appropriate action to cause the Merger to become effective, as soon as practicable after consummation of the Offer, as a short-form merger pursuant to Section 253 of the DGCL without a meeting of the stockholders of Williams Controls.
Charter, Bylaws, Directors and Officers. At the Effective Time, the certificate of incorporation of Williams Controls will be amended to conform to Exhibit C of the Merger Agreement. Also at the Effective Time, the bylaws of Williams Controls will be amended to read as the bylaws of Purchaser as in effect immediately prior to the Effective Time. The directors of Purchaser and the officers of Williams Controls immediately prior to the Effective Time will be the initial directors and officers of Williams Controls as the surviving corporation.
Conversion of Shares. Each Share issued and outstanding immediately prior to the Effective Time (other than Shares held in the treasury of Williams Controls, owned by Purchaser, Curtiss-Wright Controls or any wholly owned subsidiary of Curtiss-Wright Controls or Williams Controls, or held by stockholders who properly exercise appraisal rights under Delaware law) will, by virtue of the Merger and without any action on the part of the holder, be converted at the Effective Time into the right to receive from Purchaser the Merger Consideration, payable to such holder upon surrender of the certificate formerly representing (or upon book-entry transfer of) such Shares, without interest and less any required withholding taxes. The Merger Consideration shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Shares), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Shares occurring on or after the Acceptance Time and prior to the Effective Time. At the Effective Time, each Share held in the treasury of Williams Controls and each Share owned by Purchaser, Curtiss-Wright Controls or any wholly owned subsidiary of Curtiss-Wright Controls or Williams Controls will be canceled, and no payment or distribution will be made with respect to such Shares. At the Effective Time, each share of Purchaser’s common stock issued and outstanding immediately prior to the Effective Time will, by virtue of the Merger and without any action on the part of the holder thereof, be converted into one share of common stock of the surviving corporation. The Shares of stockholders who properly exercise their appraisal rights shall not be converted into the right to receive the Merger Consideration, but rather the holders of such Shares shall be entitled to be paid the fair value of their Shares in accordance with Section 262 of the DGCL.
Treatment of Equity Awards. The Merger Agreement provides that the Williams Controls Board shall take such action so that, at the Effective Time, and without any action on the part of any holder thereof, all unexercised stock options that are outstanding immediately prior to the Effective Time, whether vested or unvested, will vest in full as of the Effective Time and shall terminate and be canceled as of the Effective Time and each holder of a stock option will be entitled to receive with respect to such stock option, a cash payment (less any applicable withholding taxes) equal to the product of (a) the excess, if any, of the Merger Consideration over the applicable exercise price per Share of such stock option and (b) the aggregate number of Shares subject to such stock option immediately prior to the Effective Time. If the exercise price per Share of any stock option equals or exceeds the Merger Consideration, such amount will be zero.
The Merger Agreement further provides that the Williams Controls Board shall take such action so that, each holder of Shares of restricted stock may tender such Shares of restricted stock pursuant to the Offer and, if validly tendered and accepted for payment, the forfeiture restrictions shall terminate immediately upon acceptance for payment.
Representations and Warranties. In the Merger Agreement, Williams Controls has made customary representations and warranties to Curtiss-Wright Controls and Purchaser with respect to, among other matters,
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organization and qualification, capitalization, authority, the vote of the stockholders of Williams Controls required to approve the Merger, consents and approvals, its compliance with law, subsidiaries, permits, public filings, financial statements, the absence of any Company Material Adverse Effect (as defined below), litigation, employee benefit plans, labor and employment matters, insurance, properties, tax matters, information to be included in this Offer to Purchase and any other ancillary documents related to the Offer (collectively, the “Offer Documents”), the Schedule 14D-9 and in any proxy or information statement to be sent to stockholders in connection with the Merger, intellectual property, environmental matters, material contracts, affiliate transactions, anticorruption, the opinion of Houlihan Lokey Capital, Inc., and brokers’ fees. Each of Curtiss-Wright Controls and Purchaser has made customary representations and warranties to Williams Controls with respect to, among other matters, organization and qualification, authority, consents and approvals, information to be included in the Schedule 14D-9, the Offer Documents and Information Statement, brokers’ fees, Section 203 of the DGCL, and financing.
As defined in the Merger Agreement, and for purposes of the Offer, “Company Material Adverse Effect” means any change, effect, event or development, individually or taken together with all other changes, events or developments that have had or would reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise), assets, liabilities, capitalization or results of operations of Williams Controls and its subsidiaries, taken as a whole; provided, however, that none of the following shall be taken into account when determining whether a “Company Material Adverse Effect” has occurred or may occur:
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| (i) general economic conditions (or changes in such conditions) in the United States or any other country or region, or conditions in the global economy generally, including real estate markets; |
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| (ii) conditions (or changes in such conditions) in the securities markets, capital markets, credit markets, currency markets or other financial markets in the United States or any other country or region, including (A) changes in interest rates and changes in exchange rates for the currencies of any countries and (B) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country or region; |
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| (iii) conditions (or changes in such conditions) in the industries in which the Company and its Subsidiaries conduct business; |
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| (iv) political conditions (or changes in such conditions) in the United States or any other country or region or acts of war, sabotage or terrorism (including any escalation or general worsening of any such acts of war, sabotage or terrorism) in the United States or any other country or region threatened or underway as of the date of this Agreement; |
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| (v) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions and other forces majeure in the United States or any other country or region; |
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| (vi) changes in law or other legal or regulatory conditions (or the interpretation thereof) or changes in GAAP or other accounting standards (or the interpretation thereof); |
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| (vii) the official announcement of the Merger Agreement or the pendency or consummation of the transactions contemplated hereby; provided, however, that this exception shall in no way diminish the effect of the representations, warranties or covenants of the Company pertaining to (a) conflicts with, breaches of, or rights of acceleration, modification or waiver under or arising from any anti-assignment, change of control or change of ownership provisions of any contracts, or (b) any required notices, waivers or consents to or from any Governmental Authority; |
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| (viii) any actions expressly required by Curtiss-Wright Controls or Purchaser to be taken or omitted, or taken pursuant to or in accordance with the Merger Agreement; |
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| (ix) changes in the stock price or trading volume of Williams Controls, or any failure by Williams Controls to meet any public estimates or expectations of its revenue, earnings or other financial performance or results of operations for any fiscal quarter (or longer financial disclosure period) ending on or after the date of the Merger Agreement and prior to the Acceptance Time, or any failure by Williams Controls to meet |
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| any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but not, in each case, the underlying cause of such changes or failures, unless such changes or failures would otherwise be excepted from this definition); |
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| (x) any legal proceedings made or brought by any current or former stockholders (on their own behalf or on behalf of Williams Controls) of Williams Controls against Williams Controls or the Board, and arising or alleged to have arisen out of the Merger or in connection with any other transactions contemplated by the Merger Agreement, or arising or alleged to have arisen out of events, conditions or circumstances first occurring or existing after the date on which Purchaser’s designees comprise a majority of the Williams Controls Board; and |
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| (xi) any recall of products made, sold or introduced into the stream of commerce, or alleged to have been made, sold or introduced into the stream of commerce, by Williams Controls, or any products liability claim or the assertion of any products liability claim involving or alleged to involve products made, sold, or introduced into the stream of commerce by Williams Controls, in each case whether or not covered or purported to be covered by policies of insurance (but only to the extent that the uninsured impact of such recall, products liability claim, or assertion of a products liability claim, individually or taken together with all other recalls, products liability claims, or assertions of products liability claims, result in liabilities of less than $500,000 to Williams Controls or its Subsidiaries); |
except to the extent such effects result from or are related to the matters described in clauses (i) through (vii) above, and disproportionately affect in a material respect Williams Controls and its subsidiaries, taken as a whole, as compared to other companies that conduct business in the countries and regions and in the industries in which Williams Controls and its subsidiaries conduct business (in which case, only to the extent of such disproportionate effects (if any) shall be taken into account when determining whether a “Company Material Adverse Effect” has occurred or may occur).
The Merger Agreement and this summary of the representations and warranties contained in the Merger Agreement are not intended to be, and should not be relied upon as, disclosures regarding any facts and circumstances relating to Williams Controls or Curtiss-Wright Controls. The representations and warranties contained in the Merger Agreement have been negotiated with the principal purpose of establishing the circumstances in which Purchaser may have the right not to consummate the Offer, or a party may have the right to terminate the Merger Agreement, if the representations and warranties of the other party prove to be untrue due to a change in circumstance or otherwise, and to allocate risk between the parties, rather than establish matters as facts. The representations and warranties also may not be accurate or complete as of any specified date and may be subject to a contractual standard of materiality different from those generally applicable to stockholders.
Covenants. The parties have agreed to a number of customary covenants in the Merger Agreement, including among others the covenants described below.
Conduct of Business. The Merger Agreement obligates Williams Controls and its subsidiaries, from the date of the Merger Agreement until the Acceptance Time, to conduct their operations according to their ordinary, regular and usual course of business consistent with past practices, and to use commercially reasonable efforts to maintain and preserve intact their business organizations and relationships with such persons with whom they have significant business relations. The Merger Agreement also contains specific restrictive covenants as to certain activities of Williams Controls prior to the Acceptance Time, which provide that Williams Controls and its subsidiaries will not take certain actions, except as set forth in the Company Disclosure Letter (as defined in the Merger Agreement) or as expressly permitted or required by the Merger Agreement, without the prior written consent of Curtiss-Wright Controls (not to be unreasonably withheld, conditioned or delayed) including, among other things and subject to certain exceptions and materiality thresholds, (i) taking any actions that would have a Company Material Adverse Effect (ii) acquiring or selling material assets, (iii) entering into, terminating, canceling or modifying agreements material to the business of Williams Controls, (iv) creating or incurring any lien on any material assets, (v) acquiring by merger, consolidation or acquisition of stock or assets any other person or any equity interest therein, (vi) amending the certificate of incorporation or bylaws of Williams Controls, (vii) declaring or paying any dividend or other distribution in respect of any Shares except for cash dividends made by any direct or indirect wholly-owned subsidiary of Williams Controls to Williams Controls or one of its wholly-owned subsidiaries, (viii) reclassifying,
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purchasing or redeeming its securities, issuing or selling its securities or granting options, (ix) incurring any indebtedness for borrowed money or guaranteeing any such indebtedness, (x) entering into, adopting or amending any employee benefit agreements or benefit plans or increasing compensation, bonus or benefits, (xi) entering into any successive collective bargaining agreement or tentative agreement, (xii) making any changes in tax reporting or accounting methods, (xiii) entering into or settling any litigation, (xiv) paying or discharging liabilities, (xv) authorizing or making any capital expenditures exceeding $150,000 individually or $500,000 in the aggregate, (xvi) disposing of or permitting to lapse any ownership or right to use of intellectual property, (xvii) disclosing to any third party any confidential or proprietary information other than in the ordinary course of business, (xiii) proposing or adopting a plan of merger, liquidation, dissolution, consolidation, restructuring, recapitalization or other reorganization with respect to each of Williams Controls or any of its subsidiaries, (xix) making any loans, advances, guarantees or capital contributions or investments other than investments in cash and cash equivalents, (xx) adopting any stockholder rights plan, poison pill or similar arrangement, (xxi) taking any action or omitting to take any action that is reasonably likely to prevent, interfere with or delay the Merger, or (xxii) agreeing to take any of the foregoing actions.
No Solicitation. In the Merger Agreement, Williams Controls has agreed not to, and to cause its subsidiaries, officers, directors or other employees, controlled affiliates, or any investment banker, attorney or other authorized agent or representative, directly or indirectly, until the Effective Time, not to: (a) solicit, initiate or induce the making, submission or announcement of, or encourage or assist, or take any action designed to, or which could reasonably be expected to facilitate, an Acquisition Proposal (as defined below), (b) furnish to any person (other than Curtiss-Wright Controls, Purchaser or any of their designees) any information (other than information made publicly available by Williams Controls in the ordinary course of business and consistent with past practice) relating to Williams Controls or any of its subsidiaries, or afford to any person (other than Curtiss-Wright Controls, Purchaser or any of their designees) access to the business, properties, assets, books, records or other non-public information, or to any management personnel, in any such case with the intent to induce the making, submission or announcement of, or the intent to encourage or assist, an Acquisition Proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to an Acquisition Proposal, (c) participate or engage in any discussions or negotiations, or cooperate in any way, with any person with respect to an Acquisition Proposal (d) approve, endorse or recommend an Acquisition Proposal or fail to reconfirm the Company Recommendation to consummate the Merger, (e) waive, terminate, modify or fail to enforce any provision of any contractual “standstill” or similar obligation of any person other than Curtiss-Wright Controls, or (f) adopt or recommend, or publicly propose to adopt or recommend, or enter into any contract contemplating, constituting or otherwise relating to, intended to or which could otherwise reasonably be expected to lead to, an Acquisition Transaction (defined below). Williams Controls further agreed to immediately cease any and all existing discussions or negotiations with any persons conducted with respect to any Acquisition Proposal and require the prompt return or destruction of all confidential information previously furnished.
Notwithstanding the foregoing, if, prior to the Acceptance Time, in response to an unsolicited, bona fide Acquisition Proposal from a third party that the Williams Controls Board determines in good faith (after consultation with its financial advisors and outside legal counsel) is, or would reasonably be expected to result in or lead to, a Superior Proposal (as defined below) and that the failure to take such action would be reasonably likely to violate its fiduciary duties, Williams Controls and its representatives, subject to Williams Controls giving Curtiss-Wright Controls at least twenty-four hours’ written notice (which notice shall contain the identity of the person making, and a copy of, such Acquisition Proposal (if it was made in writing), and the intent of Williams Controls to participate in discussions or negotiations with, or to furnish non-public information to, such person), may (i) furnish any non-public information with respect to Williams Controls to the person making such Acquisition Proposal and its representatives pursuant to a confidentiality agreement that contains terms no less favorable to Williams Controls than the terms of the confidentiality agreement entered into with Curtiss-Wright Controls, provided that a copy of all such information is delivered simultaneously to Curtiss-Wright Controls to the extent it has not previously been so furnished to Curtiss-Wright Controls, and/or afford any such person access to the business, properties, assets, books, records or other non-public information, or to any management personnel, and (ii) engage in such negotiations or discussions with the person making such Acquisition Proposal as the Williams Controls Board shall determine.
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The Merger Agreement provides that, except as described below, the Williams Controls Board (or a committee thereof) may not withhold, withdraw, qualify, modify, change or amend, in any manner adverse to Curtiss-Wright Controls, the Company Recommendation (a “Company Change in Recommendation”).
Notwithstanding the provisions described in the immediately preceding paragraph, at any time prior to the Acceptance Time, the Williams Controls Board (or the applicable committee thereof) may make a Company Change in Recommendation in the absence of an Acquisition Proposal or Superior Proposal if (i) the Williams Controls Board determines in good faith (after consultation with its financial advisors and outside legal counsel) that the failure to take such action would be reasonably likely to violate its fiduciary duties; (ii) Williams Controls has notified Curtiss-Wright Controls in writing that it intends to effect a Company Change in Recommendation, describing in reasonable detail the reasons for such Company Change in Recommendation; (iii) requested by Curtiss-Wright Controls, Williams Controls has made its representatives available to discuss with Curtiss-Wright Controls any proposed modifications to the terms and conditions of the Merger Agreement; and (iv) the Williams Controls Board (or any committee thereof) has determined in good faith (after consultation with outside legal counsel), after considering the terms of any proposed amendment or modification to the Merger Agreement, that the failure to effect a Company Change in Recommendation would continue to reasonably be expected to result in a breach of its fiduciary duties.
Notwithstanding the foregoing, nothing contained in the Merger Agreement shall prohibit the Williams Controls Board (or any committee thereof) from (i) taking and disclosing to the Williams Controls stockholders a position statement in accordance with Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act or (ii) making any disclosure to the Williams Controls stockholders with respect to matters other than Curtiss-Williams Controls, Purchaser, the Merger Agreement, or the transactions contemplated thereby, if in the good faith judgment of the Williams Controls Board (or any committee thereof and based upon written opinion of its outside legal counsel), failure to do so would be inconsistent with its fiduciary duties to its stockholders under applicable law subject to compliance with any applicable requirements of the Merger Agreement.
Under the Merger Agreement the following terms have the definitions described in this paragraph:“Acquisition Proposal” means any offer or proposal (other than an offer or proposal by Curtiss-Wright Controls or Purchaser) to engage in an Acquisition Transaction; “AcquisitionTransaction” means any transaction or series of related transactions (other than the transactions contemplated by the Merger Agreement) involving: (i) the purchase or other acquisition, directly or indirectly, from Williams Controls or any other person by any person or “group” (as defined in or under Section 13(d) of the Exchange Act) of more than fifty percent (50%) of any class of equity securities of Williams Controls outstanding as of the consummation of such purchase or other acquisition, or any tender offer or exchange offer by any person or “group” that, if consummated, would result in such person or “group” beneficially owning more than fifty percent (50%) of any class of equity securities of Williams Controls outstanding as of the consummation of such tender or exchange offer; (ii) a merger, consolidation, joint venture, business combination or other similar transaction involving Williams Controls pursuant to which the stockholders of Williams Controls immediately preceding such transaction hold less than fifty percent (50%) of the voting equity interests in the surviving or resulting entity of such transaction; (iii) a sale, transfer, acquisition or disposition of more than fifty percent (50%) of the consolidated assets, revenues or net income of Williams Controls and its subsidiaries taken as a whole (measured by the fair market value thereof); or (iv) a liquidation, dissolution or other winding up of Williams Controls and its subsidiaries, taken as a whole; and“Superior Proposal” means any bona fide written Acquisition Proposal for an Acquisition Transaction that (i) is fully funded or has fully committed acquisition financing, and (ii) the Williams Controls Board (or any committee thereof) shall have determined in its good faith judgment (after consultation with its financial advisor and outside legal counsel) is reasonably likely to be consummated in accordance with its terms, taking into account all relevant legal, financial, regulatory and other aspects of such Acquisition Proposal and the identity and business reputation of the Person making such Acquisition Proposal, which Acquisition Proposal represents terms that would result in a transaction that is more favorable to the Williams Controls stockholders (in their capacity as such) from a financial point of view than the Offer and the Merger (taking into account all of the terms and conditions of such proposal (including the form of consideration) and the Merger Agreement (including any changes to the terms of the Merger Agreement proposed by Curtiss-Wright Controls in response to such Acquisition Proposal or otherwise)).
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Employee Matters. In the Merger Agreement, we have agreed with Williams Controls that after the Effective Time, Curtiss-Wright Controls shall, and shall cause Williams Controls, as the surviving corporation, to, honor all employee benefit plans and compensation arrangements in accordance with their terms as in effect immediately prior to the Effective Time, provided that such employee benefit plans may be amended or terminated. In addition, for a period of one year following the Effective Time, Curtiss-Wright Controls shall, and shall cause Williams Controls, as the surviving corporation, to, (i) maintain for the benefit of the Williams Controls Employees (defined below) any employee benefit plans or other compensation and severance arrangements (but excluding equity based benefits and individual employment agreements) of Williams Controls, as the surviving corporation, at benefit levels that are no less than those in effect on the date of the Merger Agreement, and provide compensation and benefits to each Williams Controls Employee under such plans, or (ii) provide compensation, benefits and severance payments (other than equity based benefits and individual employment agreements) to each Williams Controls Employee that, taken as a whole, are no less favorable in the aggregate than the compensation, benefits and severance payments (other than equity based benefits and individual employment agreements) provided to such Williams Controls Employee immediately prior to the Effective Time, or (iii) provide some combination of (i) and (ii) above such that each Williams Controls Employee receives compensation, benefits and severance payments (other than equity based benefits and individual employment agreements) that, taken as a whole, are no less favorable in the aggregate than the compensation, benefits and severance payments (other than equity based benefits and individual employment agreements) provided to such Williams Controls Employee immediately prior to the Effective Time. In each case, base compensation as of immediately prior to the Effective Time shall not be decreased for a period of one year following the Effective Time for any Continuing Employee employed during that period.
All employees of Williams Controls who continue their employment with, or are employed by, Williams Controls after the Effective Time (each a “Williams Controls Employee”) will be granted credit for all service with Williams Controls or its subsidiaries prior to the Effective Time for purposes of eligibility to participate, vesting and entitlement to benefits where length of services is relevant (including for purposes of vacation accrual and severance pay entitlement). In addition, each Williams Controls Employee will be immediately eligible to participate in any and all employee benefit plans sponsored by Williams Controls, as the surviving corporation, and Curtiss-Wright Controls will waive all eligibility waiting periods, any evidence of insurability requirements and the application of any pre-existing conditions limitations under such plans to the extent that such coverage replaces coverage under a comparable plan in which such Williams Controls Employee participated immediately before the Effective Time. Furthermore, Williams Controls, as the surviving corporation, will cause any eligible expenses incurred by such Williams Controls Employee to be given full credit under the new plan following the Effective Date for purposes of satisfying all deductible, coinsurance and maximum out of pocket requirements applicable to such Williams Controls Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such plan, and will credit the accounts of such William Controls Employees under any new plan which is a flexible spending plan with any unused balance from any such previous plan in the account of such Williams Controls Employee.
The Merger Agreement further provides that nothing in the foregoing obligations shall create any guarantee of employment for any period of time or preclude Curtiss-Wright Controls or Williams Controls, as the surviving corporation, to terminate any Williams Controls Employee for any reason, or require the continuation, or prevent the amendment, modification or termination of any employee benefit plan.
Indemnification and Insurance. In the Merger Agreement, Curtiss-Wright Controls and Purchaser have agreed to honor and fulfill in all respects the obligations of Williams Controls and its subsidiaries under (i) any indemnification, expense advancement and exculpation provision set forth in any certificate of incorporation or bylaws or comparable organizational documents of Williams Controls or any of its subsidiaries as in effect on the date of the Merger Agreement and (ii) all indemnification agreements between Williams Controls or any of its subsidiaries and any of their respective current or former directors and officers and any person who becomes a director, officer, employee or agent of Williams Controls or any of its subsidiaries prior to the Effective Time (the “Indemnified Persons”). In addition, during the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, Williams Controls and its subsidiaries, as the surviving corporation, will cause its articles of incorporation and bylaws (and other similar organizational documents), and the successors in interest of each of them, to contain provisions with respect to indemnification, exculpation and the advancement of expenses that are at least as favorable as the indemnification, exculpation and advancement of expenses provisions contained
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in the articles of incorporation and bylaws (or other similar organizational documents) of Williams Controls and its subsidiaries as of the date of the Merger Agreement.
The Merger Agreement further provides that Curtiss-Wright Controls will, and will cause Williams Controls as the surviving corporation to, indemnify and hold harmless each Indemnified Person from and against any costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses), arising out of (i) any event, circumstance or occurrence related to such Indemnified Person’s capacity as a director, officer, employee or agent of Williams Controls or any of its subsidiaries or other affiliates (regardless of whether such action or omission, or alleged action or omission, occurred prior to, at or after the Effective Time), or (ii) the Offer, the Merger, the Merger Agreement or any of the transactions contemplated by the Merger Agreement. In addition, Curtiss-Wright Controls will, and will cause Williams Controls as the surviving corporation to, advance any such indemnification costs, fees and expenses to an Indemnified Person prior to the final disposition of any claim. Curtiss-Wright Controls retains the right to control the defense of any claim, proceeding, investigation or inquiry of any Indemnified Person after the Effective Time.
The Merger Agreement further provides that, as of the Effective Time, Williams Controls shall, in consultation with Curtiss-Wright Controls, obtain and fully pay for officers’ and directors’ liability and fiduciary insurance policies (the “D&O Insurance”), with a six year “tail” claims period effective from and after the Effective Date, on terms and conditions no less advantageous than the D&O Insurance of Williams Controls with respect to matters existing or occurring prior to the Effective Time. Under the terms of the Merger Agreement, such insurance coverage is required to be maintained only to the extent that the aggregate premium for such coverage does not exceed $200,000.
Reasonable Best Efforts. The Merger Agreement provides that, subject to its terms and conditions, each of Williams Controls, Purchaser and Curtiss-Wright Controls will use its reasonable best efforts to take, or cause to be taken, such action and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable to consummate and make effective in the most expeditious manner practicable the transactions contemplated by the Merger Agreement, including (i) causing the conditions to the Merger to be satisfied, (ii) obtaining all consents, approvals, authorizations and actions or nonactions required for or in connection with the consummation by the parties of the Offer, the Merger, and the other transactions contemplated thereby and (iii) obtaining all necessary and appropriate consents, waivers and approvals under any contracts to which Williams Controls or any of its subsidiaries is a party in connection with the Merger Agreement and the consummation of the transactions contemplated thereby so as to maintain and preserve the benefits under such contracts following the consummation of the transactions contemplated by the Merger Agreement.
Pursuant to the Merger Agreement, Williams Controls, Purchaser and Curtiss-Wright Controls have agreed to use their respective reasonable best efforts to (a) respond promptly to any requests for additional information made by the Federal Trade Commission (“FTC”) or the Department of Justice (“DOJ”), (b) to cause the waiting periods under the HSR Act to terminate or expire at the earliest possible date after the date of filing, (c) to cooperate and coordinate with the other in the making of any such filings, (d) to supply the other with any information that may be required in order to make such filings, and (e) to supply any additional information that reasonably may be required or requested by the FTC, DOJ, or other governmental authorities. Williams Controls, Purchaser and Curtiss-Wright Controls have also agreed to (i) give each other reasonable advance notice of all meetings with any governmental authority relating to the Offer or the Merger, (ii) give each other an opportunity to participate in each of such meetings, (iii) keep the other party reasonably apprised with respect to any oral communications with any governmental authority regarding the Offer or the Merger, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Offer or the Merger, articulating any regulatory or competitive argument and/or responding to requests or objections made by any governmental authority, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all written communications (including any analyses, presentations, memoranda, briefs, arguments and opinions) with a governmental authority regarding the Offer or the Merger, (vi) provide each other (or counsel of each party, as appropriate) with copies of all written communications to or from any governmental authority relating to the Offer or the Merger, and (vii) cooperate and provide each other with a reasonable opportunity to participate in, and consider in good faith the views of the other
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with respect to, all material deliberations with respect to all efforts to satisfy the conditions against any legal prohibitions.
The Merger Agreement further provides that prior to the Merger closing date, Williams Controls will use commercially reasonable efforts to take, or cause to be taken, all actions, and do or cause to be done all things reasonably necessary, proper or advisable on its part under applicable Laws and rules and policies of the NYSE to cause the delisting of its Shares from the NYSE as promptly as practicable after the Effective Time and the deregistration of its Shares under the Exchange Act as promptly as practicable after such delisting.
Takeover Laws. In the event that the restrictions of any state anti-takeover or other similar law are or become applicable to the Merger Agreement or any of the transactions contemplated by the Merger Agreement, Williams Controls, Curtiss-Wright Controls and Purchaser have agreed to use their respective reasonable best efforts to ensure that the transactions contemplated by the Merger Agreement may be consummated as promptly as practicable on the terms and subject to the conditions set forth in the Merger Agreement and otherwise to eliminate or minimize the effect of such Law on the Merger Agreement and the transactions contemplated thereby.
Approval of Compensation Actions.The Merger Agreement provides that, prior to the Acceptance Time, Williams Controls shall use commercially reasonable efforts to cause each employment compensation, severance and employee benefit agreement, arrangement or understanding entered into by Williams Controls on or after the date of the Merger Agreement with any of its officers, directors or employees pursuant to which consideration is paid to such officer, director or employee to satisfy the requirements of the non-exclusive safe-harbor set forth in Rule 14d-10(d) of the Exchange Act.
Conditions to Consummation of the Merger. Pursuant to the Merger Agreement, the obligations of Curtiss-Wright Controls, Purchaser and Williams Controls to consummate the Merger are subject to the satisfaction or waiver, where permissible, at or prior to the Effective Time, of each of the following conditions: (a) unless the Merger is consummated as a short-form merger, the Merger Agreement shall have been adopted by the affirmative vote of the holders of at least a majority of the issued and outstanding Shares, (b) Purchaser shall have accepted for payment and paid for the Shares validly tendered and not withdrawn pursuant to the offer, and (c) no judgment, ruling, order, writ, injunction, decision or decree issued by a court of competent jurisdiction or other restraint or prohibition of any governmental authority of competent jurisdiction shall be in effect, and no law shall have been enacted, entered, promulgated, enforced or deemed applicable by any governmental authority of competent jurisdiction and remain in effect, that, in any such case, prohibits or makes illegal the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
Termination. The Merger Agreement provides that it may be terminated, and the Offer, the Merger, and the other transactions contemplated by the Merger Agreement may be abandoned, at any time prior to the Acceptance Time (in the case of termination rights set forth inparagraphs (b) and(c) below, at any time prior to the Effective Time), only as follows:
(a) by mutual written consent of Curtiss-Wright Controls, Purchaser and Williams Controls; or
(b) by either Williams Controls or Curtiss-Williams in the event that the Offer closing shall not have occurred on or before December 31, 2012 (the “Outside Date”); provided, however, that (i) if the Offer closing occurs on or prior to December 31, 2012, the Outside Date shall be March 31, 2013; and (ii) the right to terminate the Merger Agreement pursuant to this paragraph shall not be available to any party (A) whose actions or omissions have been a principal cause of, or primarily resulted in, the failure of the Offer closing to occur on or before such date and such action or failure to act constitutes a breach of the Merger Agreement, or (B) that is in breach in any material respect of any of its representations, warranties or covenants under the Merger Agreement at such time; or
(c) by either Williams Controls or Curtiss-Wright Controls if there shall be any law enacted by a governmental authority of competent jurisdiction after the date of the Merger Agreement remaining in effect that makes the acceptance for payment of or payment for the shares tendered pursuant to the Offer illegal or that prohibits the consummation of the Merger, or any court of competent jurisdiction shall have issued a permanent
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injunction prohibiting the acceptance for payment of or payment for the shares tendered pursuant to the Offer or prohibiting the consummation of the Merger and such injunction shall have become final and non-appealable; provided, however, that in the case of an injunction a party shall not be permitted to terminate this Agreement pursuant to this paragraph if the issuance and/or continuation of any such injunction is attributable to the failure of such party to perform any covenant or other obligation under the Merger Agreement required to be performed by such party at or prior to the Effective Time; or
(d) by Williams Controls, if (i) Williams Controls has received an Acquisition Proposal that the Williams Controls Board in good faith (after consultation with its financial advisors and outside legal counsel) has determined is a Superior Proposal and that did not result from a breach of the non-solicitation provision of the Merger Agreement; (ii) the Williams Controls Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel) that the failure of the Williams Controls Board to terminate the Merger Agreement and enter into a definitive agreement relating to such Superior Proposal would reasonably be expected to result in a breach of its fiduciary duties; (iii) Williams Controls has delivered to Curtiss-Wright Controls a written notice (a “Superior Proposal Notice”) advising Curtiss-Wright Controls that the Williams Controls Board intends to take such action and specifying the terms and conditions of such Superior Proposal that is the basis of the proposed action by the Williams Controls Board; (iv) if requested by Curtiss-Wright Controls, Williams Controls shall negotiate with Curtiss-Wright Controls to amend the terms and conditions of the Merger Agreement in such a manner that the Acquisition Proposal which was determined to be a Superior Proposal no longer is a Superior Proposal during the period beginning at 5:00 p.m. Pacific Time on the day of delivery by Williams Controls to Curtiss-Wright Controls of such Superior Proposal Notice and ending four (4) business days later at 5:00 p.m. Pacific Time; (v) at the end of such four business day period, such Acquisition Proposal has not been withdrawn and the Williams Controls Board (or any committee thereof) shall have determined in good faith (after consultation with outside legal counsel), after considering the terms of any proposed amendment or modification to this Agreement, that the failure of the Williams Controls Board to terminate the Merger Agreement and enter into a definitive agreement relating to such Superior Proposal would still reasonably be expected to result in a breach of its fiduciary duties to the Williams Controls stockholders under applicable law; and (vi) concurrently with, and as a condition of, the termination of the Merger Agreement, Williams Controls pays Curtiss-Wright Controls the Termination Fee (defined below); or
(e) by Curtiss-Wright Controls, if (i) neither Curtiss-Wright Controls nor Purchaser are in breach in any material respect of any of their respective representations, warranties or covenants under the Merger Agreement at such time, and (ii) Williams Controls has breached any of its representations, warranties or covenants under the Merger Agreement such that the conditions to the Offer (requiring that all Williams Controls representation and warranties are true and correct and that Williams Controls has complied in all material respects with all agreements, covenants and obligations required to be performed or complied by it under the Merger Agreement) would not be satisfied and either such breach is not capable of cure or, if capable of cure, Williams Controls has failed to cure such breach within thirty (30) business days after Williams Controls received written notice of such breach from Curtiss-Wright Controls (it being understood that Curtiss-Wright Controls shall not be permitted to terminate the Merger Agreement pursuant to this paragraph in respect of a curable breach set forth in any such written notice (x) at any time during such thirty (30) business day period, and (y) at any time after such thirty (30) business day period if Williams Controls has cured such breach during such thirty (30) business day period); or
(f) by Curtiss-Wright Controls, if (i) the Williams Controls Board (or any committee thereof) has effected a Company Change in Recommendation; (ii) a tender or exchange offer for the Shares that constitutes an Acquisition Proposal (whether or not a Superior Proposal) is commenced by a person unaffiliated with Curtiss-Wright Controls and, within ten (10) business days after the public announcement of the commencement of such Acquisition Proposal, Williams Controls shall not have filed a Schedule 14D-9 pursuant to Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act recommending that the Williams Controls stockholders reject such Acquisition Proposal and not tender any Shares into such tender or exchange offer, or (iii) the Williams Controls Board fails publicly to reaffirm its adoption and recommendation of the Merger Agreement, the Offer, the Merger or the other transactions contemplated by the Merger Agreement within ten (10) business days of receipt of a written request by Curtiss-Wright Controls to provide such reaffirmation following an Acquisition Proposal; or
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(g) by Williams Controls, if (i) Williams Controls is not in breach in any material respect of any of its representations, warranties or covenants under the Merger Agreement at such time, and (ii) Curtiss-Wright Controls or Purchaser has breached (A) any of its representations or warranties under the Merger Agreement (which breach would or would reasonably be expected to individually or in the aggregate, prevent or materially impede, hinder or delay the performance by Curtiss-Wright Controls or Purchaser of any of their respective obligations under the Merger Agreement or the consummation of the Offer or the Merger), or (B) covenants or obligations hereunder, and, in either case, either such breach is not capable of cure or, if capable of cure, Curtiss-Wright Controls or Purchaser shall have failed to cure such breach within thirty (30) business days after Curtiss-Wright Controls has received written notice of such breach from Williams Controls (it being understood that Williams Controls is not permitted to terminate the Merger Agreement pursuant to this paragraph in respect of a curable breach set forth in any such written notice (A) at any time during such thirty (30) business day period, and (B) at any time after such thirty (30) business day period if Curtiss-Wright Controls and Purchaser shall have cured such breach during such thirty (30) business day period); or
(h) by Williams Controls, if (i) Purchaser fails to commence the Offer within the required time or terminates or makes any change to the Offer in violation of the terms of the Merger Agreement, or (ii) at any scheduled expiration date of the Offer, Purchaser fails to accept for payment and pay for the Shares validly tendered and not withdrawn in the Offer and at such time all of the conditions to the Offer are satisfied and no subsequent expiration date for the Offer is established pursuant to an authorized extension of the Offer, except, in the case of clauses (i) or (ii), any such failure that resulted from a breach by Williams Controls of any representation, warranty, covenant or agreement set forth in the Merger Agreement; or
(i) by Williams Controls or Curtiss-Wright Controls, if (i) during the pendency of the Offer the terminating party had not breached its representations, warranties or covenants in the Merger Agreement in a manner that materially delayed or impeded the terms of the Offer, and (ii) the Offer shall have expired or been terminated in accordance with its terms without Curtiss-Wright Controls or Purchaser having accepted for purchase any of the Shares pursuant to the Offer.
Fees and Expenses. Except as described below with respect to the Termination Fee, all fees and expenses incurred in connection with the Merger Agreement and the transactions contemplated thereby shall be paid by the party or parties, as applicable, incurring such expenses whether or not the Offer or the Merger is consummated.
As described in greater detail below, in the event that the Merger Agreement is validly terminated under “Termination” above, Williams Controls has agreed to pay Curtiss-Wright Controls a termination fee of $4,173,750 (the “Termination Fee”). Williams Controls has agreed to pay the Termination Fee if (i) the Merger Agreement is validly terminated by Curtiss-Wright Controls or Williams Controls pursuant toparagraph (b) under “Termination” solely due to a failure of the Minimum Tender Condition or pursuant toparagraph (i) under “Termination”, (ii) neither Curtiss-Wright Controls nor Purchaser are in breach in any material respect of any of their respective representations, warranties or covenants under the Merger Agreement at such time, (iii) at or prior to the time of the termination of the Merger Agreement a third party has publicly disclosed a bona fide Acquisition Proposal and such Acquisition Proposal has not been withdrawn prior to the time of the termination of the Merger Agreement, and (iv) within two hundred seventy (270) days following the termination of the Merger Agreement, Williams Controls enters into a definitive agreement to consummate, or consummates, any Acquisition Proposal (regardless of whether such Acquisition Proposal is made before or after termination of the Merger Agreement);
In the event that the Merger Agreement is terminated (A) by Williams Controls under the circumstances described inparagraph (d) under “Termination”, Williams Controls must pay Curtiss-Wright Controls the Termination Fee; (B) by Curtiss-Wright Controls under the circumstances described inparagraph (f) under “Termination”, Williams Controls must pay Curtis-Wright the Termination Fee; (C) by Curtiss-Wright Controls under the circumstances described inparagraph (e) under “Termination” or by Williams Controls under the circumstances described inparagraph (g)or(h) under “Termination”, the non-terminating party must pay the terminating party $1,250,000, which amount shall represent liquidated damages with respect to the breach that gave rise to the termination and such payment shall be the sole and exclusive remedy of the terminating party against the non-terminating party. In no event shall Williams Controls be required to pay the Termination Fee on more than one occasion.
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Amendment. The Merger Agreement may be amended by the parties at any time before or after the Offer closing has occurred or stockholder approval has been obtained; provided, however, that (i) after the Offer closing and subject to certain adjustments to the Merger Consideration as specified in the Merger Agreement, there will be no amendment that decreases the Offer Price or the Merger Consideration, and (ii) after the Stockholder Approval has been obtained, there will be made no amendment that by applicable law requires further approval by the Williams Controls stockholders without such further approval having been obtained. The Merger Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties.
Waiver. At any time and from time to time prior to the Effective Time, any party or parties may, to the extent legally allowed and except as otherwise set forth in the Merger Agreement, (a) extend the time for the performance of any of the obligations or other acts of the other party or parties thereto, as applicable, (b) waive any inaccuracies in the representations and warranties made to such party or parties thereto contained therein or in any document delivered pursuant to the Merger Agreement and (c) waive compliance with any of the agreements or conditions for the benefit of such party or parties thereto contained therein (other than the Minimum Tender Condition) unless such waiver is consented to in writing by Williams Controls). Any agreement on the part of a party or parties hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party or parties, as applicable. Any delay in exercising any right under the Merger Agreement shall not constitute a waiver of such right.
Confidentiality Agreement. Prior to entering into the Merger Agreement, Williams Controls and Curtiss-Wright entered into a confidentiality agreement, dated as of July 5, 2012 (the “Confidentiality Agreement”). As a condition to being furnished confidential information of Williams Controls, Curtiss-Wright agreed, among other things, to keep such confidential information confidential and to use it only for specified purposes and to certain employee non-solicitation provisions for the protection of Williams Controls. The Confidentiality Agreement also contained a customary “standstill” provision that does not apply to the Offer, the Merger or the other transactions contemplated by the Merger Agreement. Under the Merger Agreement, the Confidentiality Agreement expressly remains in full force and effect. The foregoing summary is qualified in its entirety by reference to the complete text of the Confidentiality Agreement, which is filed as Exhibit (d)(3) to the Schedule TO and is incorporated herein by reference.
Tender and Support Agreement. Curtiss-Wright Controls, Purchaser, and each of Patrick W. Cavanagh, Dennis E. Bunday, Mark S. Koenen, Kenneth Dean Hendrickson, R. Eugene Goodson, Doug Hailey, Samuel H. Greenawalt, Donn J. Viola, and Peter Salas (the current directors and executive officers of Williams Controls), and Dolphin Offshore Partners, L.P., and Dolphin Direct Equity Partners, L.P., in their capacity as stockholders of Williams Controls, entered into a Tender and Support Agreement, dated as of October 31, 2012 (the “Tender and Support Agreement”). Pursuant to the Tender and Support Agreement, the signatories have agreed to tender in the Offer all Shares beneficially owned and to exercise on a net issue basis any outstanding options and tender the resulting Shares. Including the Shares issuable upon the exercise on a net issue basis of the options, the outstanding Shares subject to the Tender and Support Agreement represented, as of October 31, 2012, approximately 26% of the total outstanding Shares. Pursuant to the Tender and Support Agreement, the stockholder signatories agreed, among other things, subject to the termination of the Tender and Support Agreement to (a) tender in the Offer (and not to withdraw) all Shares beneficially owned or thereafter acquired by them, (b) vote such Shares in favor of the adoption of the Merger Agreement in the event stockholder approval is required to consummate the Merger pursuant to Section 251 of the DGCL and against any competing transaction, (c) appoint us as their proxy to vote such shares in connection with the Merger Agreement, and (d) not otherwise transfer any of their Shares. The Tender and Support Agreement will terminate upon the earliest of (x) the termination of the Merger Agreement, (y) the Effective Time, and (z) written notice by Curtiss-Wright Controls to terminate the Tender and Support Agreement. The foregoing summary is qualified in its entirety by reference to the complete text of the Tender and Support Agreement, which is filed as Exhibit (d)(2) to the Schedule TO and is incorporated herein by reference.
Effects of Inability to Consummate the Merger. If, following the consummation of the Offer, the Merger is not consummated for any reason (see above—”The Merger Agreement—Conditions to Consummation of the Merger”), Curtiss-Wright, which indirectly owns 100 percent of the common stock of Purchaser, will indirectly control the Shares acquired by Purchaser pursuant to the Offer, as well as any other Shares held by Curtiss-Wright or its subsidiaries. Under the Merger Agreement, promptly following payment by Purchaser for Shares purchased
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pursuant to the Offer, and from time to time thereafter, subject to Section 14(f) of the Exchange Act and applicable NYSE rules and regulations regarding director independence, Williams Controls has agreed to take all actions necessary to cause a pro rata portion (based on the percentage of outstanding shares acquired by Purchaser) of the directors of Williams Controls to consist of persons designated by Purchaser (see above—”The Merger Agreement—Directors”). As a result of its ownership of such Shares and right to designate nominees for election to the Williams Controls Board, Curtiss-Wright will be able to indirectly influence decisions of the Williams Controls Board and the decisions of Purchaser as a stockholder of Williams Controls. This concentration of influence in one stockholder may adversely affect the market value of the Shares.
If we control more than 50 percent of the outstanding Shares following the consummation of the Offer but the Merger is not consummated, stockholders of Williams Controls, other than those affiliated with Curtiss-Wright, will lack sufficient voting power to elect directors or to cause other actions to be taken which require majority approval.
12. Source and Amount of Funds
Curtiss-Wright, the ultimate parent of Purchaser, will provide Purchaser with sufficient funds to pay for all Shares accepted for payment in the Offer or to be acquired in the Merger. We estimate that the total amount of funds necessary to purchase all issued and outstanding Shares and other equity-based interests of Williams Controls Controls pursuant to the Offer and the Merger will be approximately $119 million. We expect to fund these payments through either a capital contribution or an intercompany loan from Curtiss-Wright to Curtiss-Wright Controls and then from Curtiss-Wright Controls to Purchaser (the terms of which have not yet been determined). Curtiss-Wright will obtain such funds from cash on hand and/or existing committed credit facilities. In addition, Curtiss-Wright has entered into a Guaranty Agreement for the benefit of Williams Controls whereby it guarantees the obligations of Purchaser and Curtiss-Wright Controls under the Merger Agreement. The Offer is not conditioned upon any financing arrangements.
13. Conditions of the Offer
Notwithstanding any other term of the Offer but subject to the terms set forth in the Merger Agreement, we are not required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act (relating to our obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer and, only after complying with any obligation to extend the Offer pursuant to the Merger Agreement, may terminate the Offer, if:
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| (1) the Minimum Tender Condition is not satisfied; |
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| (2) the Antitrust Condition is not satisfied; |
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| (3) any of the following conditions shall exist at the time of expiration of the Offer or immediately prior to such payment: |
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| (A) any order, judgment, decision, decree, injunction, ruling, award, writ or assessment (whether temporary, preliminary or permanent in nature) issued by any court of competent jurisdiction or other restraint or prohibition of any federal, state, county, provincial, or foreign government, governmental or regulatory entity or body, department, commission, board, agency or instrumentality (“Governmental Authority”), or any law, statute, constitution, principle of common law, ordinance, code, rule, regulation, ruling or other legal requirement shall be enacted, entered, promulgated, enforced or deemed applicable, that prohibits or makes illegal the consummation of the Offer or the Merger or the transaction contemplated by this Agreement; |
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| (B) any instituted or pending material action, suit or proceeding by any Governmental Authority seeking to restrain or prohibit the purchase of Shares pursuant to the Offer or the consummation of the Offer; |
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| (C) (1) any representation or warranty of Williams Controls contained in Section 4.7 of the Merger Agreement shall not be true and correct (except for any de minimis inaccuracy), as of the date of the Merger Agreement and as of the date of determination as though made on the date of determination (except to the extent such representation or warranty expressly relates to an earlier date, in which case as of such earlier date), (2) any representation or warranty contained in Section 4.2, 4.4, 4.5, 4.13(b), 4.19(h) or 4.27 of the Merger Agreement that is qualified as to materiality or by reference to a Company Material Adverse Effect shall not be true and correct, or any such representation or warranty of Williams Controls that is not so qualified shall not be true and correct in all materials respects, as of the date of the Agreement and as of the date of determination as though made on the date of determination (except to the extent such representation or warranty expressly relates to an earlier date, in which case as of such earlier date), or (3) any other representation or warranty of Williams Controls (other than the representation and warranty contained in Section 4.13(a)) contained in the Merger Agreement shall not be true and correct (without giving effect to any qualifications or limitations as to materiality or Company Material Adverse Effect set forth therein) as of the date of the Merger Agreement and as of the date of determination as though made on the date of determination (except to the extent that such representation or warranty expressly relates to a specified date, in which case as of such specified date), except, in the case of this clause (3), where the failure of such representations and warranties to be true as of such dates, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect; |
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| (D) William Controls shall have failed to perform or comply in all material respects with all agreements, covenants and obligations required to be performed or complied with by it under the Merger Agreement; or |
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| (E) since September 30, 2011, there shall have occurred any change, circumstance, event or occurrence that has had or would reasonably be expected to have a Company Material Adverse Effect; or |
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| (4) the Merger Agreement shall have been terminated in accordance with its terms. |
Subject to the Merger Agreement and applicable law, we expressly reserve the right, at any time or from time to time prior to the expiration of the Offer, in our sole discretion, to waive or otherwise modify the terms and conditions of the Offer in any respect, except that we reserve the right to waive or otherwise modify those conditions of the Offer that depend upon receipt of government regulatory approvals at any time prior to the acceptance of Shares for payment. Any reference in this Offer to Purchase or in the Merger Agreement to a condition or requirement being satisfied shall be deemed met if such condition or requirement is so waived. Purchaser will terminate the Offer only pursuant to the specified conditions described in this Offer to Purchase. The failure by us or any of our affiliates at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances shall not be deemed a waiver with respect to any other facts and circumstances and each such right shall be deemed an ongoing right.
14. Dividends and Distributions
The Merger Agreement provides that, from the date of the Merger Agreement to the Effective Time, except as required by law, Williams Controls is not permitted to declare, set aside or pay dividends with respect to the Shares other than cash dividends made by any direct or indirect wholly-owned subsidiary of the Williams Controls to Williams Controls or one of its wholly-owned subsidiaries. See Section 11—”Purpose of the Offer and Plans for Williams Controls; Merger Agreement and Other Agreements—The Merger Agreement—Conduct of Business.”
15. Certain Legal Matters
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General. Except as otherwise set forth in this Offer to Purchase, based on our review of Williams Controls’s publicly available SEC filings and other information regarding Williams Controls, we are not aware of any licenses or other regulatory permits that appear to be material to the business of Williams Controls and that might be adversely affected by the acquisition of Shares by us pursuant to the Offer or, except as set forth below, of any approval or other action by any governmental, administrative or regulatory agency or authority that would be required for the acquisition or ownership of Shares by us pursuant to the Offer. In addition, except as set forth below, we are not aware of any filings, approvals or other actions by or with any governmental authority or administrative or regulatory agency that would be required for our acquisition or ownership of the Shares. Should any such approval or other action be required, we currently expect that such approval or action, except as described below under “State Takeover Laws,” would be sought or taken. There can be no assurance that any such approval or action, if needed, would be obtained or, if obtained, that it would be obtained without substantial conditions, and there can be no assurance that, in the event that such approvals were not obtained or such other actions were not taken, adverse consequences might not result to Williams Controls’s or our business or that certain parts of Williams Controls’s or our business might not have to be disposed of or held separately. In such an event, we may not be required to purchase any Shares in the Offer. See Section 13—”Conditions of the Offer.”
Antitrust Compliance.
Under the HSR Act, and the related rules and regulations that have been issued by the FTC, certain transactions having a value above specified thresholds may not be consummated until specified information and documentary material (“Premerger Notification and Report Forms”) have been furnished to the FTC and the Antitrust Division of the DOJ (the “Antitrust Division”) and certain waiting period requirements have been satisfied. The requirements of the HSR Act apply to the acquisition of Shares in the Offer and the Merger.
Under the HSR Act and the rules and regulations promulgated thereunder, the purchase of Shares in the Offer cannot be completed until the expiration of a 15 calendar day waiting period following the filing by Curtiss-Wright, as the parent entity of Purchaser, of a Premerger Notification and Report Form concerning the Offer with the FTC and the Antitrust Division, unless the waiting period is earlier terminated by the FTC and the Antitrust Division. Curtiss-Wright filed the Premerger Notification and Report Forms with the FTC and the Antitrust Division in connection with the purchase of the Shares in the Offer and the Merger on November 14, 2012. The required waiting period with respect to the Offer and the Merger will expire at 11:59 p.m., New York City time, on the 15th calendar day following the date such filing occurred unless the FTC or the Antitrust Division issues a request for additional information and documentary material (a “Second Request”) prior to that time. If within the 15 calendar day waiting period either the FTC or the Antitrust Division were to issue a Second Request, the waiting period with respect to the Offer and the Merger would be extended until 10 calendar days following the date of substantial compliance by Curtiss-Wright with that request, unless the FTC or the Antitrust Division terminated the additional waiting period before its expiration. After the expiration of the 10 calendar day waiting period, the waiting period could be extended only by a court enjoining the transaction. Curtiss-Wright also may agree with the FTC or the Antitrust Division that it will not close the transaction for a certain amount of time in order to allow the completion of its antitrust review. Complying with a Second Request can take a significant period of time. Although Williams Controls is required to file certain information and documentary materials with the FTC and the Antitrust Division in connection with the Offer, neither Williams Controls’s failure to make those filings nor a Second Request issued to Williams Controls from the FTC or the Antitrust Division will extend the waiting period with respect to the purchase of Shares in the Offer and the Merger. The Merger will not require an additional filing under the HSR Act if Curtiss-Wright owns at least 50% of the outstanding Shares at the time of the Merger or if the Merger occurs within one year after the HSR Act waiting period applicable to the Offer expires or is terminated.
The FTC and the Antitrust Division will consider the legality under the antitrust laws of Purchaser’s proposed acquisition of Williams Controls. At any time before or after Purchaser’s acceptance for payment of Shares pursuant to the Offer, if the Antitrust Division or the FTC believes that the Offer would violate the U.S. federal antitrust laws by substantially lessening competition in any line of commerce affecting U.S. consumers, the FTC and the Antitrust Division have the authority to challenge the transaction by seeking a federal court order enjoining the transaction or, if Shares have already been acquired, requiring disposition of such Shares, or the divestiture of substantial assets of Curtiss-Wright, Purchaser, Williams Controls, or any of their respective subsidiaries or affiliates. U.S. state attorneys general and private persons may also bring legal action under the antitrust laws seeking similar relief or
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seeking conditions to the completion of the Offer. While Purchaser and Curtiss-Wright believe that the consummation of the Offer will not violate any antitrust laws, there can be no assurance that a challenge to the Offer on antitrust grounds will not be made or, if a challenge is made, what the result will be. If any such action is threatened or commenced by the FTC, the Antitrust Division or any state or any other person, Purchaser may not be obligated to consummate the Offer or the Merger. See Section 13—”Conditions of the Offer.”
Other Foreign Laws. It is a condition of our obligation to accept for payment and pay for Shares tendered pursuant to the Offer that any required approvals or consents in respect of the transactions contemplated by the Merger Agreement shall have been obtained under any applicable antitrust or other competition laws of jurisdictions other than the United States or investment laws relating to foreign ownership, and that any applicable waiting periods thereunder have expired or been terminated.
If any foreign governmental authority initiates an action to block the Offer or the Merger and an order is issued prohibiting the Offer or the Merger, we and Williams Controls may not be obligated to consummate the Offer or the Merger.
Stockholder Approval. Williams Controls has represented in the Merger Agreement that the execution and delivery of the Merger Agreement by Williams Controls and the consummation by Williams Controls of the transactions contemplated by the Merger Agreement have been duly and validly authorized by the Williams Controls Board, and that no other corporate proceedings on the part of Williams Controls are necessary to authorize the Merger Agreement or to consummate the transactions so contemplated, except, in the case of the consummation of the Merger, for the adoption of the Merger Agreement by the holders of a majority in voting interest of the issued and outstanding Shares if required by the DGCL. As described below, such approval is not required if the Merger is consummated pursuant to the short-form merger provisions of the DGCL. According to Williams Controls’s certificate of incorporation, the Shares are the only securities of Williams Controls that entitle the holders thereof to voting rights. If, following the purchase of Shares by Purchaser pursuant to the Offer, Purchaser and its affiliates own a majority of the outstanding Shares, Purchaser will be able to effect the Merger without the affirmative vote of any other stockholder of Williams Controls.
Short-Form Merger. The DGCL provides that if a parent company owns at least 90 percent of each class of stock of a subsidiary entitled to vote on a merger, the parent company can effect a short-form merger with that subsidiary without the action of the other stockholders of the subsidiary. Accordingly, if as a result of the Offer, the top-up option or otherwise, Purchaser directly or indirectly owns at least 90 percent of the Shares, Purchaser could, and (subject to the satisfaction or waiver of the conditions to its obligations to effect the Merger contained in the Merger Agreement) is obligated under the Merger Agreement to effect the Merger without prior notice to, or any action by, any other stockholder of Williams Controls if permitted to do so under the DGCL. Even if Purchaser does not own 90 percent of the outstanding Shares following consummation of the Offer, Purchaser could seek to purchase additional Shares in the open market, from Williams Controls or otherwise in order to reach the 90 percent threshold and effect a short-form merger. The consideration per Share paid for any Shares so acquired, other than Shares acquired pursuant to the top-up option, may be greater or less than that paid in the Offer. In addition, pursuant to the terms of the Merger Agreement, following the Acceptance Time, if we acquire a majority but less than 90 percent of the Shares outstanding, we could exercise our top-up option to purchase from Williams Controls, subject to certain limitations, a number of additional Shares equal to the number of Shares sufficient to cause Curtiss-Wright and Purchaser to own one Share more than 90 percent of the Shares then outstanding, taking into account those Shares outstanding after the exercise of the top-up option. The price per Share payable under the top-up option would be equal to the Offer Price, and such purchase price may be paid by us, at our election, either entirely in cash or by paying in cash an amount equal to not less than the aggregate par value of the Shares purchased pursuant to the top-up option and by executing and delivering to Williams Controls a full-recourse, unsecured and non-transferable promissory note, bearing interest at 5% annually and having a one-year term with no pre-payment premium or penalty, in a principal amount equal to the balance of such purchase price. See Section 11—”Purpose of the Offer and Plans for Williams Controls; Merger Agreement and Other Agreements—The Merger Agreement—Top-Up Option.”
State Takeover Laws. A number of states (including Delaware, where Williams Controls is incorporated) have adopted takeover laws and regulations which purport, to varying degrees, to be applicable to attempts to
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acquire securities of corporations which are incorporated in such states or which have substantial assets, stockholders, principal executive offices or principal places of business therein. In general, Section 203 of the DGCL prevents an “interested stockholder” (including a person who owns or has the right to acquire 15% or more of a corporation’s outstanding voting stock) from engaging in a “business combination” (defined to include mergers and certain other actions) with a Delaware corporation for a period of three years following the time such person became an interested stockholder unless, among other things, the “business combination” is approved by the board of directors of such corporation prior to such time. Williams Controls has represented to us in the Merger Agreement that the Williams Controls Board (at a meeting duly called and held) has duly and unanimously adopted resolutions that are sufficient to render inapplicable to Curtiss-Wright and Purchaser the restrictions on business combinations set forth in Section 203 of the DGCL and any other takeover laws that may purport to be applicable to the Offer, the Merger and the other transactions contemplated by the Merger Agreement and the Tender and Support Agreement. Accordingly, no Delaware statute should have the effect of precluding the Offer or the Merger. Purchaser has not attempted to comply with any other state takeover laws in connection with the Offer or the Merger. To the extent that the provisions of other state takeover statutes purport to apply to the Offer or the Merger, Purchaser believes that such laws conflict with federal law and constitute an unconstitutional burden on interstate commerce. Purchaser reserves the right to challenge the validity or applicability of any state law allegedly applicable to the Offer, the Merger, the Merger Agreement, the Tender and Support Agreement or the transactions contemplated thereby (other than the DGCL), and nothing in this Offer to Purchase nor any action taken in connection herewith is intended as a waiver of that right. In the event that it is asserted that one or more takeover statutes apply to the Offer or the Merger, and it is not determined by an appropriate court that such statute or statutes do not apply or are invalid as applied to the Offer, the Merger or the Merger Agreement, as applicable, Purchaser may be required to file certain documents with, or receive approvals from, the relevant state authorities, and Purchaser might be unable to accept for payment or purchase Shares tendered pursuant to the Offer or be delayed in continuing or consummating the Offer. In such case, Purchaser may not be obligated to accept for purchase, or pay for, any Shares tendered. See Section 13—”Conditions of the Offer.”
Appraisal Rights. No appraisal rights are available to the holders of Shares in connection with the Offer. However, if the Merger is consummated, each holder of Shares (the “Appraisal Shares”) at the Effective Time who has neither voted in favor of the Merger nor consented thereto in writing, and who otherwise complies with the applicable statutory procedures under Section 262 of the DGCL, will be entitled to receive a judicial determination of the fair value of the Appraisal Shares (exclusive of any element of value arising from the accomplishment or expectation of the Merger) and to receive payment of such judicially determined amount in cash, together with such rate of interest, if any, as the Delaware court may determine for Appraisal Shares held by such holder. Unless the Delaware court in its discretion determines otherwise for good cause shown, this rate of interest will be five percent over the Federal Reserve discount rate (including any surcharge) as established from time to time between the Effective Time and the date of payment and will be compounded quarterly.
Any such judicial determination of the fair value of the Appraisal Shares could be based upon considerations other than or in addition to the price paid in the Offer and the market value of the Appraisal Shares. Stockholders should recognize that the value so determined could be higher or lower than, or the same as, the price per Share paid pursuant to the Offer or the per share price to be paid pursuant to the Merger. Moreover, we or Williams Controls may argue in an appraisal proceeding that, for purposes of such a proceeding, the fair value of the Appraisal Shares is less than the price paid in the Offer and the Merger. Stockholders also should note that investment banking opinions as to the fairness, from a financial point of view, of the consideration payable in a sale transaction, such as the Offer and the Merger, are not opinions as to fair value under Section 262 of the DGCL.
The Merger Agreement provides that, in any appraisal proceeding with respect to Appraisal Shares and to the fullest extent permitted by applicable law, the fair value of the Appraisal Shares shall be determined in accordance with Section 262 of the DGCL without regard to the top-up option, the Shares issued in connection with the top-up option or any cash or promissory note delivered by Purchaser to Williams Controls in payment for the Shares issued pursuant to the top-up option.
If any holder of Appraisal Shares who demands appraisal under Section 262 of the DGCL fails to perfect, or effectively withdraws or loses his, her, or its rights to appraisal as provided in the DGCL, the Appraisal Shares of
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such stockholder will be converted into the right to receive the Merger Consideration, without interest and subject to applicable withholding taxes, in accordance with the Merger Agreement.
The foregoing summary of appraisal rights of stockholders under the DGCL does not purport to be a statement of the procedures to be followed by stockholders desiring to exercise any appraisal rights under Delaware law. The preservation and exercise of appraisal rights require strict and timely adherence to the applicable provisions of Delaware law which will be set forth (or attached) in their entirety in the proxy statement or information statement for the Merger, unless the Merger is effected as a short-form merger, in which case they will be set forth in (or attached to) the notice of merger. The foregoing discussion is not a complete statement of law pertaining to appraisal rights under Delaware law and is qualified in its entirety by reference to Delaware law.
Stockholders cannot exercise appraisal rights at this time. The information provided above is for informational purposes only with respect to the alternatives of stockholders if and when the Merger is consummated. If stockholders sell their Shares in the Offer (or otherwise prior to the Merger), such holders will not be entitled to exercise appraisal rights with respect to such Shares.
”Going Private” Transactions. Rule 13e-3 under the Exchange Act is applicable to certain “going private” transactions and may under certain circumstances be applicable to the Merger. However, Rule 13e-3 will be inapplicable if (a) the Shares are deregistered under the Exchange Act prior to the Merger or another business combination or (b) the Merger or other business combination is consummated within one year after the purchase of the Shares pursuant to the Offer and the amount paid per Share pursuant to the Merger or other business combination is at least equal to the amount paid per Share in the Offer. Neither Curtiss-Wright nor Purchaser believes that Rule 13e-3 will be applicable to the Merger.
16. Fees and Expenses
We have retained Arc Securities, LLC to act as financial advisor in connection with the transactions contemplated by the Merger Agreement, for which services Arc Securities, LLC will receive customary compensation. Arc Securities, LLC will receive reimbursement for reasonable out-of-pocket expenses and indemnification against certain liabilities arising out of the engagement, including liabilities under the federal securities laws. In the ordinary course of business, Arc Securities, LLC and its affiliates may trade Shares for their own accounts and accounts of customers, and, accordingly, may at any time hold a long or short position in the Shares.
We have retained the Depositary and the Information Agent in connection with the Offer. Each of the Depositary and the Information Agent will receive customary compensation, reimbursement for reasonable out-of-pocket expenses, and indemnification against certain liabilities in connection with the Offer, including liabilities under the federal securities laws.
As part of the services included in such retention, the Information Agent may contact holders of Shares by personal interview, mail, electronic mail, telephone and other methods of electronic communication and may request brokers, dealers, commercial banks, trust companies and other nominees to forward the Offer materials to beneficial holders of Shares.
Except as set forth above, we will not pay any fees or commissions to any broker or dealer or other person for soliciting tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks, trust companies and other nominees will upon request be reimbursed by us for customary mailing and handling expenses incurred by them in forwarding the offering material to their customers.
17. Miscellaneous
We are not aware of any jurisdiction where the making of the Offer is prohibited by any administrative or judicial action pursuant to any valid state statute. If we become aware of any valid state statute prohibiting the
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making of the Offer or the acceptance of the Shares, we will make a good faith effort to comply with that state statute or seek to have such statute declared inapplicable to the Offer. If, after a good faith effort, we cannot comply with the state statute, we will not make the Offer to, nor will we accept tenders from or on behalf of, the holders of Shares in that state. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Purchaser by one or more registered brokers or dealers licensed under the laws of such jurisdiction.
We have filed with the SEC the Schedule TO (including exhibits) in accordance with the Exchange Act, furnishing certain additional information with respect to the Offer and may file amendments thereto. In addition, Williams Controls will file the Schedule 14D-9 (including exhibits) in accordance with the Exchange Act setting forth its recommendation and furnishing certain additional related information. The Schedule TO and the Schedule 14D-9, and any amendments thereto, including exhibits, may be examined and copies may be obtained from the SEC in the manner set forth in Section 8—”Certain Information Concerning Williams Controls”—”Available Information.”
No person has been authorized to give any information or make any representation on behalf of Purchaser or Curtiss-Wright not contained in this Offer to Purchase, the Letter of Transmittal or the Notice of Guaranteed Delivery and, if given or made, such information or representation must not be relied upon as having been authorized. No broker, dealer, commercial bank, trust company or other nominee shall be deemed to be the agent of Curtiss-Wright, Purchaser, Williams Controls, the Information Agent or the Depositary or any of their affiliates for the purpose of the Offer. Neither delivery of this Offer to Purchase nor any purchase pursuant to the Offer will, under any circumstances, create any implication that there has been no change in the affairs of Curtiss-Wright, Purchaser, Williams Controls or any of their respective subsidiaries since the date as of which information is furnished or the date of this Offer to Purchase.
Neither the Offer, nor this Offer to Purchase, nor the Letter of Transmittal, nor the Notice of Guaranteed Delivery constitutes a solicitation of proxies for any meeting of Williams Controls’s stockholders. Any such solicitation that we or any of our affiliates might seek would be made only pursuant to separate proxy materials complying with the requirements of Section 14(a) of the Exchange Act.
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| Columbia Acquisition Sub, Inc. | |
November 15, 2012
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SCHEDULE A
INFORMATION CONCERNING MEMBERS OF THE BOARDS OF DIRECTORS AND
THE EXECUTIVE OFFICERS OF CURTISS-WRIGHT, CURTISS-WRIGHT CONTROLS AND
PURCHASER
CURTISS-WRIGHT
Set forth below are the name, business address and current principal occupation or employment, and material occupations, positions, offices or employment for the past five years of each director and executive officer of Curtiss-Wright. Except as otherwise noted, positions specified are positions with Curtiss-Wright.
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Name | | Address | | Principal Occupation or
Employment |
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Curtiss-Wright
Board of Directors | | | | |
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Martin R. Benante | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Chairman of the Board of Directors and Chief Executive Officer of Curtiss-Wright Corporation (Since April 2000). |
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Dean M. Flatt | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | President and Chief Operating Officer of Honeywell International Inc.’s Defense and Space division (July 2005- July 2008); President of Honeywell International Inc.’s Aerospace Electronics Systems division (December 2001-July 2005); President of Honeywell International Inc.’s Specialty Materials and Chemicals division (July 2000-December 2001); member of Operating Executive Board of JF Lehman & Company (since May 2010). |
| | | | |
S. Marce Fuller | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | President and Chief Executive Officer of Mirant Corporation (July 1999 – October 2005). |
| | | | |
Dr. Allen A. Kozinski | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Group Vice President, Global Refining of BP PLC (1998 – 2002). |
| | | | |
John R. Myers | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Chairman and Chief Executive Officer of Tru-Circle Corporation (June 1999 – July 2003); Limited Partner of Carlisle Enterprises (1993 – 1999); since 2005 served as Operating Partner of First Atlantic Capital Corporation. |
| | | | |
Admiral (Ret.) John B. Nathman | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Commander of U.S. Fleet Forces Command (February 2005 – May 2007); Vice Chief of Naval Operations U.S. Navy (August 2004 – February 2005); Deputy Chief of Naval Operations for Warfare Requirements and Programs at the Pentagon (August 2002 – August 2004); |
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| | | | |
Name | | Address | | Principal Occupation or
Employment |
| |
| |
|
| | | | Commander, Naval Air Forces (October 2001 – August 2002); Commander of Naval Air Forces, U.S. Pacific Fleet (August 2000 – October 2001). |
| | | | |
Robert J. Rivet | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Executive Vice President, Chief Operations and Administrative Officer of Advanced Micro Devices, Inc. (October 2008 – February 2011); Executive Vice President, Chief Financial Officer of Advanced Micro Devices, Inc. (September 2000 – October 2009). |
| | | | |
Dr. William W. Sihler | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Ronald E. Trzcinski Professor of Business Administration, Darden Graduate School of Business Administration, University of Virginia (Since 1984); Director, President, and Treasurer of Southeastern Consultants Group, Ltd. (Since 1992). |
| | | | |
Albert E. Smith | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Chairman of Tetra Tech, Inc. (March 2006 – January 2008); Member of the Secretary of Defense’s Science Board (2002 – 2005); Executive Vice President of Lockheed Martin Corp. (September 1999 – June 2005). |
| | | | |
Executive Officers | | | | |
| | | | |
David C. Adams | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | President and Chief Operating Officer (October 2012 – present); Co-Chief Operating Officer (November 2008 – October 2012); Vice President (November 2005 – November 2008); President of Curtiss-Wright Controls (since June 2005); Senior Vice President, Electronic Systems Curtiss-Wright Controls (February 2004 – June 2005); Group Vice President, Integrated Sensing (April 2002 – February 2004). |
| | | | |
David J. Linton | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Vice President (October 2012 – present); Co-Chief Operating Officer (November 2008 – October 2012); Vice President (May 2004 – November 2008); President (since May 2004); Vice President of Program Management, Raytheon Network Centric Systems (November 2003 – April 2004); Chief Executive Officer, Cordiem, Inc. (April 2001 – March 2003); Vice President and General Manager of Electric Systems, Hamilton Sundstrand Corporation (June 1998 – April 2001). |
| | | | |
Thomas P. Quinly | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Vice President (since November 2010); President Curtiss-Wright Controls, Inc. (since November 2008); Senior Vice President, Embedded Computing of Curtiss-Wright Controls, Inc. (since 2004). |
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| | | | |
Name | | Address | | Principal Occupation or
Employment |
| |
| |
|
Glenn E. Tynan | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Vice President of Finance and Chief Financial Officer (since June 2002); Controller (June 2000 – May 2002). |
| | | | |
Michael J. Denton | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Vice President, Secretary, and General Counsel (since August 2001). |
| | | | |
Glenn G. Coleman | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Vice President and Corporate Controller (since May 2008); Finance Vice President, Wireless Business Group of Alcatel Lucent, formerly Lucent Technologies; (June 2007 – December 2007); Finance Vice President, American Controller of Alcatel Lucent, formerly Lucent Technologies; (January 2002 – May 2007). |
| | | | |
Harry S. Jakubowitz | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Vice President (since May 2007); Treasurer (since September 2005). |
| | | | |
Paul J. Ferdenzi | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Vice President, Human Resources (since November 2011); Associate General Counsel (since June 1999); Assistant Secretary (since May 2001). |
| | | | |
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CURTISS-WRIGHT CONTROLS
Set forth below are the name, business address and current principal occupation or employment, and material occupations, positions, offices or employment for the past five years of each director and executive officer of Curtiss-Wright Controls. Except as otherwise noted, positions specified are positions with Curtiss-Wright.
| | | | |
Name | | Business Address | | Principal Occupation or
Employment |
| |
| |
|
Directors | | | | |
| | | | |
Martin R. Benante | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Chairman of the Board of Directors and Chief Executive Officer of Curtiss-Wright Corporation (Since April 2000). |
| | | | |
Michael J. Denton | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Vice President, Secretary, and General Counsel (since August 2001). |
| | | | |
David C. Adams | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | President and Chief Operating Officer (October 2012 – present); Co-Chief Operating Officer (November 2008 – October 2012); Vice President (November 2005 – November 2008); President of Curtiss-Wright Controls (since June 2005); Senior Vice President, Electronic Systems Curtiss-Wright Controls (February 2004 – June 2005); Group Vice President, Integrated Sensing (April 2002 – February 2004). |
| | | | |
Executive Officers | | | | |
| | | | |
Thomas P. Quinly | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Vice President (since November 2010); President Curtiss-Wright Controls, Inc. (since November 2008); Senior Vice President, Embedded Computing of Curtiss-Wright Controls, Inc. (since 2004). |
| | | | |
Glenn E. Tynan | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey 07054 | | Vice President of Finance and Chief Financial Officer (since June 2002); Controller (June 2000 – May 2002). Vice President, Curtiss-Wright Controls, Inc. |
| | | | |
Allan Symonds | | Curtiss-Wright Controls, Inc.
15800 John J. Delaney Dr.,
Suite 200, Charlotte, NC
28277 | | Vice President Finance, Curtiss-Wright Controls, Inc. |
| | | | |
Dan O’Connell | | Curtiss-Wright Controls, Inc.
15800 John J. Delaney Dr.,
Suite 200, Charlotte, NC
28277 | | Vice President and General Manager, Curtiss-Wright Controls, Inc. |
| | | | |
Robert H. Shaw | | Curtiss-Wright Controls, Inc.
15800 John J. Delaney Dr.,
Suite 200, Charlotte, NC
28277 | | Vice President, General Counsel and Assistant Secretary of Curtiss-Wright Controls, Inc.; Vice President and Secretary of Purchaser |
| | | | |
Harry S. Jakubowitz | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey
07054 | | Vice President (since May 2007); Treasurer (since September 2005). Treasurer of Curtiss-Wright Controls, Inc. |
| | | | |
Michael J. Denton | | Curtiss-Wright Corporation
10 Waterview Boulevard,
Second Floor
Parsippany, New Jersey
07054 | | Vice President, Secretary, and General Counsel (since August 2001). |
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PURCHASER
Set forth below are the name, business address and current principal occupation or employment, and material occupations, positions, offices or employment for the past five years of each director and executive officer of Purchaser. Except as otherwise noted, positions specified are positions with Curtiss-Wright.
| | | | |
Name | | Business Address | | Principal Occupation or
Employment |
| |
| |
|
Directors | | | | |
| | | | |
Allan Symonds | | Curtiss-Wright Controls, Inc.
15800 John J. Delaney Dr.,
Suite 200, Charlotte, NC
28277 | | Vice President Finance, Curtiss-Wright Controls, Inc. |
| | | | |
Robert H. Shaw | | Curtiss-Wright Controls, Inc.
15800 John J. Delaney Dr.,
Suite 200, Charlotte, NC
28277 | | Vice President, General Counsel and Assistant Secretary of Curtiss-Wright Controls, Inc.; Vice President and Secretary of Purchaser |
| | | | |
Executive Officers | | | | |
| | | | |
John Watts | | Curtiss-Wright Controls, Inc.
15800 John J. Delaney Dr.,
Suite 200, Charlotte, NC
28277 | | President and Treasurer of Purchaser |
| | | | |
Robert H. Shaw | | Curtiss-Wright Controls, Inc.
15800 John J. Delaney Dr., Suite
200, Charlotte, NC 28277 | | Vice President, General Counsel and Assistant Secretary of Curtiss-Wright Controls, Inc.; Vice President and Secretary of Purchaser |
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Manually signed facsimiles of the Letter of Transmittal, properly completed and duly executed, will be accepted. The Letter of Transmittal, certificates for Shares and any other required documents should be sent by each stockholder of Williams Controls or such stockholder’s broker, dealer, commercial bank, trust company or other nominee to the Depositary as follows:
The Depositary for the Offer Is:
Wells Fargo Bank, N.A.
| |
By Mail: | By Courier or Hand |
| (until 11:59 p.m., New York City time |
| on Thursday, December 13, 2012): |
| |
Wells Fargo Bank, N.A. | Wells Fargo Bank, N.A. |
Shareowner Services | Shareowner Services |
Voluntary Corporate Actions | Voluntary Corporate Actions |
P.O. Box 64854 | 1110 Centre Point Curve, Suite 101 |
St. Paul, MN 55164-0854 | Mendota Heights, MN 55120-4100 |
Any questions or requests for assistance may be directed to the Information Agent at the telephone number and address set forth below. Requests for additional copies of the Offer to Purchase and the Letter of Transmittal may be directed to the Information Agent. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
501 Madison Avenue, 20th Floor
New York, New York 10022
Shareholders may call toll free: (888) 750-5834
Banks and Brokers may call collect: (212) 750-5833
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