SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
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Check the appropriate box:
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|_| Definitive Proxy Statement
|_| Definitive Additional Materials
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Anaren Microwave, Inc.
(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement if other than the Registrant)
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Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is
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|_| Fee paid previously with preliminary materials.
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Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid: ____________________________________________________
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PRELIMINARY COPIES
ANTICIPATED DISTRIBUTION DATE: OCTOBER 21, 2002
ANAREN MICROWAVE INC.
6635 Kirkville Road
East Syracuse, New York 13057
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
To Be Held on December 16, 2002
To the Holders of the Common Stock
of Anaren Microwave, Inc.:
PLEASE TAKE NOTICE, that a Special Meeting of Shareholders of Anaren
Microwave, Inc. (the "Company") will be held on December 16, 2002, at 11:00 a.m.
Eastern Standard Time at the offices at the Company located at 6635 Kirkville
Road, East Syracuse, New York, for the following purposes:
(1) To authorize the creation of a holding company structure in which
the Company's operating assets would be transferred to a newly
formed, wholly owned, subsidiary;
(2) To authorize an amendment to the Company's Certificate of
Incorporation to change the name of the Company from "Anaren
Microwave, Inc." to "Anaren, Inc." in connection with the proposed
reorganization; and
(3) To transact such other business as may be properly brought before
the Meeting.
Shareholders of record as of the close of business on October 18, 2002
will be entitled to notice of and to vote at the Meeting. Your vote is very
important and we hope that you will attend the Meeting. However, whether or not
you plan to attend the Meeting, please vote by proxy in accordance with the
instructions on your proxy card, on your voting instruction form (from your bank
or broker), or that you received through electronic mail. There are three
convenient ways of submitting your vote:
o Voting by telephone - You can vote your shares by telephone by
calling the toll-free telephone number indicated on your proxy card
and following the voice prompt instructions. Telephone voting is
available 24 hours a day.
o Voting by the Internet - You can also vote via the Internet by
visiting the web site noted on your proxy card. Internet voting is
available 24 hours a day. We encourage you to vote via the Internet,
as it is the most cost-effective way to vote.
o Voting by mail - If you choose to vote by mail, simply mark your
proxy, date and sign it, and return it in the postage-paid envelope
provided.
If you vote by telephone or Internet, you do not need to return your proxy
card. Signing and returning the proxy card or submitting your proxy via Internet
or by telephone does not affect your right to vote in person if you attend the
Meeting and your shares are registered in your name. If your shares are held in
the name of a bank, broker, or other holder of record, you must obtain a proxy,
executed in your favor, from the holder of record to be able to vote at the
meeting.
By Order of the Board of Directors
David M. Ferrara
Secretary and General Counsel
Dated: October 21, 2002
East Syracuse, New York
ANAREN MICROWAVE, INC.
6635 Kirkville Road
East Syracuse, New York 13057
This Proxy Statement is being mailed on or about October 21, 2002, to the
Shareholders of Anaren Microwave, Inc. ("Anaren" or the "Company") entitled to
receive the accompanying Notice of Special Meeting of Shareholders and is
provided, by order of its Board of Directors, in connection with the
solicitation of proxies to be used at the Special Meeting of Shareholders (the
"Meeting") of the Company to be held on December 16, 2002 at 11:00 a.m. and at
any adjournment or adjournments thereof, for the purposes set forth in the
Notice.
If the enclosed form of proxy is executed and returned, it may
nevertheless be revoked at any time prior to its exercise by (i) submitting a
subsequently dated proxy; or (ii) filing written notice of such revocation with
the Secretary of the Meeting. The proposals described in this Proxy Statement
will be presented by the Board of Directors of the Company. Where a choice is
specified with respect to a proposal, the shares represented by the proxy will
be voted in accordance with the specifications made. Where a choice is not so
specified, the shares represented by the proxy will be voted "FOR" the proposal.
VOTING SECURITIES AND PRINCIPAL HOLDERS THEREOF
At the close of business on October 18, 2002, the record date stated in
the accompanying Notice, the Company had outstanding 22,386,820 shares of common
stock, $.01 par value (the "Common Stock"), each of which is entitled to one
vote with respect to each matter to be voted on at the Meeting. A majority of
the issued and outstanding shares of Common Stock present in person or by proxy,
a total of 11,193,411 shares, will be required to constitute a quorum for the
transaction of business at the Meeting. The Company has no class of voting stock
outstanding other than the Common Stock.
Because each of the proposals to be presented at the Meeting requires the
affirmative vote of a specified percentage of the outstanding shares of Common
Stock, abstentions and broker non-votes (as defined below) will have the same
legal effect as a vote against the matter. As a result, Shareholders whose
shares are registered in their own names are urged to submit their votes, and
Shareholders whose shares are held in the name of a bank, broker, or other
holder of record are urged to provide instructions to the holder of record, in
each case as promptly as possible. A "broker non-vote" refers to shares
represented at the Meeting in person or by proxy by a broker or nominee where
such broker or nominee (i) has not received voting instructions on a particular
matter from the beneficial owner or persons entitled to vote; and (ii) the
broker or nominee does not have discretionary voting power on such matter.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The following table sets forth certain information with respect to persons
known to the Company to own beneficially more than 5% of the outstanding shares
of Common Stock of the Company, as of October 18, 2002 (except as otherwise
indicated).
Number of Shares
Name and Address of Common Stock
of Beneficial Owner Beneficially Owned(1) Percent of Class
------------------- --------------------- ----------------
Kern Capital Management, LLC .......... 3,264,400(2) 14.6 %
114 West 47th Street
Suite 1926
New York, NY 10036
Firsthand Capital Management, Inc. .... 1,552,300(3) 6.9 %
125 South Market Street
Suite 1200
San Jose, CA 95113
Franklin Advisors, Inc. ............... 1,270,400(4) 5.7 %
One Franklin Parkway
San Mateo, CA 94403
(1) Except as otherwise indicated, as of October 18, 2002 all of such shares
are owned with sole voting and investment power. Share numbers are based
solely on indicated filings.
(2) Based solely on information contained in a 13F Holdings Report filed with
the Securities and Exchange Commission on August 14, 2002, Kern Capital
Management, LLC has sole voting power with respect to 3,151,200 shares and
sole dispositive power with respect to all shares listed.
(3) Based solely on information contained in a 13F Holdings Report filed with
the Securities and Exchange Commission on April 9, 2002, Firsthand Capital
Management, Inc. has sole voting and dispositive power with respect to all
shares listed.
(4) Based solely on information contained in a 13F Holdings Report filed with
the Securities and Exchange Commission on August 12, 2002, Franklin
Advisors, Inc. has sole voting and dispositive power with respect to all
shares listed.
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SECURITY OWNERSHIP OF MANAGEMENT
The following table sets forth certain information, as of October 18,
2002, with respect to the beneficial ownership of the Company's Common Stock by
(i) each director and nominee for director who owned beneficially any shares of
Common Stock, (ii) each named executive officer of the Company, and (iii) all
directors and named executive officers of the Company as a group.
Number of Shares
Name and Address of Common Stock
of Beneficial Owner(1) Beneficially Owned(2) Percent of Class
---------------------- --------------------- ----------------
Lawrence A. Sala .................. 480,100(3) 2.1%
Carl W. Gerst, Jr. ................ 628,350(4) 2.8%
Thomas J. Passaro, Jr. ............ 80,139(5) *
Raymond Simione ................... 18,270(6) *
Timothy P. Ross ................... 62,600(7) *
Dale F. Eck ....................... 60,500(8) *
Herbert I. Corkin ................. 56,000(9) *
Dr. David Wilemon ................. 57,500(10) *
Matthew Robison ................... 30,500(11) *
All Directors, Nominees and
Executive Officers as a
Group (9 Persons)............... 1,473,959(12) 6.4%
*Indicates less than 1%
(1) The business address for each of the named individuals is 6635 Kirkville
Road, East Syracuse, New York.
(2) Except as otherwise indicated, as of October 18, 2002 all of such shares
are owned with sole voting and investment power.
(3) Includes 10,000 shares owned by Mr. Sala's spouse, 6,468 shares owned by
Mr. Sala's children, 387,000 shares which Mr. Sala has the right to
acquire within 60 days pursuant to outstanding stock options, and 25,500
shares of restricted stock.
(4) Includes 13,500 shares owned by Mr. Gerst's spouse and 66,400 shares which
Mr. Gerst has the right to acquire within 60 days pursuant to outstanding
stock options.
(5) Includes 3,333 shares owned by Mr. Passaro's children, 19,800 shares which
Mr. Passaro has the right to acquire within 60 days pursuant to
outstanding stock options, and 2,400 shares of restricted stock.
(6) Includes 2,000 shares which Mr. Simione has the right to acquire within 60
days pursuant to outstanding stock options.
(7) Includes 55,200 shares which Mr. Ross has the right to acquire within 60
days pursuant to outstanding stock options, and 7,400 shares of restricted
stock.
(8) Includes 30,500 shares which Mr. Eck has the right to acquire within 60
days pursuant to outstanding stock options.
(9) Includes 3,000 shares owned by The Entwistle Company, of which Mr. Corkin
is Chairman, Chief Executive Officer and a majority shareholder, and 8,000
shares which Mr. Corkin has the right to acquire within 60 days pursuant
to outstanding stock options.
(10) Includes 57,500 shares which Dr. Wilemon has the right to acquire within
60 days pursuant to outstanding stock options.
(11) Includes 30,500 shares which Mr. Robison has the right to acquire within
60 days pursuant to outstanding stock options.
(12) Includes 656,900 shares which all directors and officers as a group have
the right to acquire within 60 days pursuant to outstanding stock options.
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ITEM ONE
ESTABLISHMENT OF HOLDING COMPANY STRUCTURE AND
TRANSFER OF CERTAIN ASSETS TO OPERATING SUBSIDIARY
The Board of Directors is recommending that the Shareholders take action
at the Meeting to authorize the Company to reorganize into a holding company
enterprise structure. If authorized by the Shareholders, it is presently
intended that on or about December 30, 2002, the Company would transfer its
operating assets to Anaren Microwave, Inc. ("AMI"), a Delaware corporation
formed on July 1, 2002 as a wholly owned subsidiary of the Company. At June 30,
2002, the Company had approximately $235 million in assets, and it is presently
contemplated that the Company will transfer to AMI equipment, inventory, real
property and other operating assets having an aggregate book value of
approximately $45 million. The remaining assets, consisting mainly of
non-operating cash, marketable securities, intellectual property and the
Company's investment in subsidiaries, will be retained in the Company.
If the reorganization is effectuated, AMI will continue as a wholly-owned
subsidiary of the Company and will directly own the operating assets currently
held by the Company. The Company's present directors and officers will continue
in their present positions immediately following the reorganization. The initial
directors of AMI will be Lawrence A. Sala, Joseph E. Porcello and David M.
Ferrara. Lawrence A Sala will serve as Chief Executive Officer of AMI, Joseph E.
Porcello will serve as Treasurer, and David M. Ferrara will serve as Secretary.
Notwithstanding the transfer of operating assets, it is anticipated that the
Company and AMI will continue to provide various services to one another from
time to time, including without limitation managerial, accounting, payroll and
other logistical support services.
The Board believes that a holding company structure is desirable in that
it will give the Company a structure which may be better able to accommodate
future acquisitions, diversification and expansion; greater operational and
administrative flexibility; broadened alternatives for future financing; and
potentially greater protection of its non-operating assets from liabilities. In
addition, AMI is currently seeking approval from the State of New York to be a
qualified empire zone enterprise ("QEZE"). If AMI is approved as a QEZE, certain
tax benefits may also result from the reorganization, as described more fully
below.
The following is a discussion of the principal reasons for establishing a
holding company structure.
Framework for Future Acquisitions, Diversification and Expansion
The Board believes that the holding company structure will facilitate the
future expansion of its business by providing a more flexible structure for
acquiring new businesses and technologies, and will allow it more easily to
expand geographically and to diversify its product and service offerings. After
the reorganization, the Company will be able to integrate newly acquired
businesses or technologies by combining them within its existing corporate
structure or by creating new corporate entities to pursue or develop a
particular business or technology. In addition, the Board believes that the use
of separate subsidiaries to hold or acquire businesses that operate in foreign
countries may reduce the amount of foreign regulation to which the Company may
be subject.
Operational and Administrative Efficiency
The Board believes that the corporate separation afforded by a holding
company structure will increase its ability to respond more efficiently to
industry and market changes. As the Company expands
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its product and service offerings, it will be able to segregate more easily its
different lines of business into separate subsidiaries, which the Board believes
will provide greater flexibility in administration and allow these entities to
focus more easily on one particular market, product or service. When new
business opportunities arise, they can be operated as subsidiaries of the
Company, thus maintaining the separation between the Company and those
businesses.
Financing Flexibility
The Board anticipates that a holding company structure will permit the use
of financing techniques that are more readily available to companies that hold a
variety of diversified businesses under one corporate umbrella, without any
impact on its capital structure. For example, capital may be raised on an
enterprise-wide basis, or solely by AMI or other entities within the holding
company structure. The Board has no present intention to seek additional
financing for the Company or any of its subsidiaries (including AMI), as it
believes that their respective cash requirements for the foreseeable future will
be satisfied by currently invested cash balances and expected cash flows from
operations.
Protection of Assets from Exposure to Liability
The Board believes that the corporate separation afforded by a holding
company structure will increase its ability to shield the Company's assets from
potential liabilities. By separating the operating assets from the holdings of
the parent company, a holding company structure affords greater protection from
many liabilities associated with the operation of a manufacturing business,
liabilities that typically are not associated with the non-operating assets to
be retained by the Company. Provided that the proper corporate formalities are
observed, the holding company structure may enable the Company to protect its
non-operating assets from the liabilities associated with the different business
operations of its subsidiaries, and the assets of each subsidiary may be
protected from liabilities arising out of the operations of its sister
subsidiaries.
Certain Potential Tax Benefits to the Company and AMI
AMI is currently in the process of seeking approval as a QEZE under New
York State's Empire Zones Program. Based upon the former New York State Economic
Development Zone program, the Empire Zones Program offers additional incentives
and assistance to a taxpayer that becomes a QEZE, meets certain eligibility
requirements and is located in a geographic area designated as an "Empire Zone."
The Company's East Syracuse facility is currently located within an Empire Zone.
If the reorganization is effectuated and AMI is approved as a QEZE, AMI may be
entitled to certain New York State tax benefits. Available benefits could
include, among other things, the QEZE Credit For Real Property Taxes, the QEZE
Tax Reduction Credit, the Empire Zone Wage Tax Credit, and a sales and use tax
exemption. These benefits may provide, among other things, full or partial
relief from (and in some cases refunds of) New York State income, franchise,
sales and use taxes for specified time periods. Without the proposed
reorganization, the Company would be severely limited in achieving the full
extent of these benefits.
While the Board presently anticipates that AMI will continue to seek
approval as a QEZE, there can be no assurance that approval will be granted.
Moreover, future changes in applicable law or regulation, or changes in
regulatory or judicial interpretation of existing law or regulation, could
reduce or eliminate the potential tax benefits described above. As a result,
there can be no assurance that the reorganization will result in any or all of
the benefits described above.
5
Accounting Treatment of the Reorganization
The transfer of assets to AMI will be recorded as an investment in a subsidiary
by the Company, and the transferred assets will be recorded by AMI. There will
be no change in the total consolidated assets of the Company after the transfer
has been made.
Federal Income Tax Consequences
The reorganization is not expected to have any federal income tax
consequences to Shareholders.
Rights of Dissenting Shareholders
Sections 623 and 909 of the New York Business Corporation Law provide that
if the proposed reorganization is consummated, Shareholders who object to the
reorganization and who follow the procedures specified in Section 623 will have
the right to receive cash payment of the fair value of their shares. A
description of these procedures and the requirements for preserving dissenters'
rights to appraisal is attached to this Proxy Statement as Appendix A. The
statutory procedures outlined in Appendix A are complex. Shareholders wishing to
exercise their dissenters' rights should consult their own legal advisors.
Vote Required for Approval
The affirmative vote of the holders of two-thirds of the outstanding
shares of Common Stock is required for authorization of the proposed
reorganization.
The Board reserves the right, even after Shareholder authorization, to
forego or postpone the reorganization if such action is determined to be in the
best interests of the Company and the Shareholders.
The Board of Directors recommends that Shareholders vote FOR this
Proposal. Proxies solicited by the Board of Directors will be voted in favor of
the Proposal unless Shareholders specify otherwise.
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ITEM TWO
CHANGE OF CORPORATE NAME
The Board of Directors is requesting that Shareholders authorize an
amendment to the Company's Certificate of Incorporation to change the name of
the Company from "Anaren Microwave, Inc." to "Anaren, Inc." The Board presently
contemplates changing the name if and when the reorganization described above is
consummated. Following the reorganization, AMI will commence and continue its
operations under the "Anaren Microwave, Inc." name. The Board contemplates that
the Company's Common Stock will continue to trade under the symbol "ANEN."
The Board believes that the change of name is desirable for a number of
reasons, including the following:
o The name change would facilitate differentiation between the
Company and AMI.
o The name "Anaren, Inc." more accurately reflects the common
name by which many of the Company's customers, suppliers,
investors and other third parties historically have referred
to the Company.
o The name "Anaren Microwave, Inc." more accurately describes
the specific business to be conducted by AMI following the
reorganization, whereas the more generic name "Anaren, Inc."
reflects the potential broader activities of the proposed
holding company enterprise as a whole.
The affirmative vote of the holders of a majority of the outstanding
shares of Common Stock is required for authorization of the proposed amendment.
The Board reserves the right, even after Shareholder authorization, to
forego or postpone the name change amendment if such action is determined to be
in the best interests of the Company and the Shareholders.
The Board of Directors recommends that Shareholders vote FOR this
Proposal. Proxies solicited by the Board of Directors will be voted in favor of
the Proposal unless Shareholders specify otherwise.
7
MISCELLANEOUS
Other Matters
As of the date of this Proxy Statement, management has no knowledge of any
business which will be presented for consideration at the Meeting other than
that described herein. Should any other matter properly come before the Meeting,
it is the intention of the persons named in the accompanying proxy to vote such
proxy in accordance with their best judgment.
Solicitation of Proxies
The entire expense of preparing, assembling and mailing the Proxy
Statement, form of proxy and other material used in the solicitation of proxies
will be paid by the Company. In addition to the solicitation of proxies by mail,
arrangements may be made with brokerage houses and other custodians, nominees
and fiduciaries to send proxy material to their principals, and the Company will
reimburse them for expenses in so doing. To the extent necessary to ensure
sufficient representation, officers and regular employees of the Company may
request, without additional compensation therefor, the return of proxies
personally by telephone or telegram. The extent to which this will be necessary
depends entirely on how promptly proxies are received, and Shareholders are
urged to send their proxies without delay.
SHAREHOLDER PROPOSALS
In order for a Shareholder proposal to be considered for inclusion in the
Company's Proxy Statement relating to the 2003 Annual Meeting of Shareholders,
such proposal must be received by the Company by May 23, 2003.
David M. Ferrara
Secretary and General Counsel
Date: October 21, 2002
East Syracuse, New York
8
APPENDIX A
DESCRIPTION OF PROCEDURE TO ENFORCE DISSENTING SHAREHOLDERS'
RIGHTS TO RECEIVE PAYMENT FOR SHARES AND TEXT OF NYBCL SECTION 623
Description of Procedure to Enforce Dissenters' Rights
Sections 623 and 909 of the New York Business Corporation Law (the
"NYBCL") provide that if the proposed reorganization set forth in Item One of
the attached Proxy Statement is consummated, Shareholders who object to the
reorganization and who follow the procedures specified in Section 623 will have
the right to receive cash payment of the fair value of their shares. The express
procedures of New York law must be followed precisely; if they are not,
Shareholders may lose their right to dissent. As described more fully below,
such "fair value" would potentially be determined in judicial proceedings, the
result of which cannot be predicted. There can be no assurance that Shareholders
exercising dissenters' rights of appraisal will receive consideration equal to
or greater than the value of the Common Stock to be owned by them following
consummation of the reorganization.
The statutory procedures outlined below are complex. Shareholders wishing
to exercise their dissenters' rights should consult their own legal advisors.
Any Shareholder who is entitled to vote on the proposed reorganization
will have the right to receive cash payment of the fair value of his or her
shares and the other rights and benefits provided in Section 623 if such
Shareholder does not vote in favor of the reorganization and (before the vote of
Shareholders) files with the Company written objection to the reorganization,
including in that written objection notice of his or her election to dissent,
his or her name and residence address, the number of shares as to which he or
she dissents, and a demand for payment of the fair value of such shares if the
reorganization is consummated. A vote against the reorganization will not
satisfy the requirement of filing a written objection. Failure to vote against
the reorganization will not waive a Shareholder's right to payment if the
Shareholder has filed a written objection and has not voted in favor of the
reorganization. If a Shareholder abstains from voting on the reorganization,
this will not waive dissenter's rights so long as the appropriate written
objection to the Merger is properly and timely filed. All notices of election to
dissent should be addressed to David M. Ferrara, Secretary and General Counsel,
Anaren Microwave, Inc., 6635 Kirkville Road, East Syracuse, New York 13057.
If an executed proxy is received but no direction is indicated as to how
such proxy is to be voted, the shares represented by such proxy will be voted in
favor of the reorganization. Accordingly, the submission of such an unmarked
proxy, unless revoked prior to its being voted, will serve to waive dissenter's
rights.
Within ten days after the date the reorganization is approved by the
Shareholders, the Company will give written notice of such approval by
registered mail to each Shareholder who filed written objection, except for any
Shareholder who voted in favor of the reorganization. A Shareholder may not
dissent as to fewer than all of his or her shares, held by him or her of record,
that he or she owns beneficially. A nominee or fiduciary may not dissent on
behalf of any beneficial owner of shares as to fewer than all of said shares of
such owner held of record by such nominee or fiduciary.
Upon consummation of the reorganization, a dissenting Shareholder will
cease to have any rights of a Shareholder, except the right to be paid the fair
value of his or her dissenting shares. A Shareholder's notice of election may be
withdrawn at any time prior to his or her acceptance in writing of an offer to
purchase his or her dissenting shares by the Company, but in no case may such
notice of election be withdrawn later than 60 days after consummation of the
reorganization (unless the Company does not make a timely offer) without the
Company's consent. Within one month after the filing of the notice of
A-1
election to dissent, a dissenting Shareholder must submit the certificates
representing his or her dissenting shares to the Company or its transfer agent,
which shall note conspicuously on the certificates that such notice of election
has been filed, and will then return the certificates to the Shareholder. Any
Shareholder who fails to submit his or her certificates for such notation within
45 days from the date of filing such notice of election to dissent will lose his
or her dissenter's rights unless a court, for good cause shown, otherwise
directs.
Within 15 days after the expiration of the period within which
Shareholders may file their notices of election to dissent, or within 15 days
after consummation of the reorganization, whichever is later (but in no case
later than 90 days after the date of the Meeting), the Company must make a
written offer by registered mail to each Shareholder who has filed such notice
of election to pay for his or her dissenting shares at a specified price which
the Company considers to be the fair value and, if the reorganization has been
consummated, must accompany such offer by advance payment to each Shareholder
who has submitted his or her certificates of an amount equal to 80% of the
amount of such offer. Such offer must be made at the same price per share to all
the dissenting Shareholders. If, within 30 days after the making of such offer,
the Company and any dissenting Shareholders agree on the price to be paid for
dissenting shares, the balance of payment therefor must be made within 60 days
after the making of such offer or the consummation of the reorganization,
whichever is later, and upon surrender of the certificates representing such
shares.
If the Company fails to make such offer within the 15 day period described
above, or if it makes the offer and any dissenting Shareholder fails to agree
within the period of 30 days thereafter upon the price to be paid for his or her
shares, the Company is required within 20 days after the expiration of whichever
is the applicable of the two periods to institute a special proceeding in the
Supreme Court of the State of New York, County of Onondaga, to determine the
rights of dissenting Shareholders and to fix the fair value of their dissenting
shares. If the Company fails to institute such proceeding within such 20 day
period, any dissenting Shareholder may institute a proceeding for the same
purpose not later than 30 days after the expiration of such 20 day period. If
the dissenting Shareholder does not institute such a proceeding within such 30
day period, his or her dissenter's rights are lost unless the court, for good
cause shown, otherwise directs.
During the proceeding, the court will determine whether each dissenting
Shareholder is entitled to receive payment for his or her shares and, if so,
will fix the value of such shares as of the close of business on the day prior
to the Meeting, taking into consideration the nature of the reorganization
giving rise to the Shareholder's right to receive payment for his or her
dissenting shares and other relevant factors. The court will also award interest
on such amount to be paid from the date of the reorganization to the date of
payment unless the court finds that a Shareholder's refusal to accept an offer
for payment was arbitrary, vexatious, or otherwise not in good faith. Each party
to such proceeding will bear its own costs unless the court finds that such
refusal by any Shareholder was arbitrary, vexatious, or otherwise not in good
faith, in which case the Company's costs will be assessed against such
Shareholder. The court, in its discretion, may also apportion or assess any part
of the dissenting Shareholder's costs against the Company if it finds that the
fair value of the shares determined materially exceeds the amount which the
Company offered to pay, or that no offer or advance payment was made by the
Company, or that the Company failed to institute such special proceeding, or
that the actions of the Company in complying with its obligations under Section
623 were arbitrary, vexatious, or otherwise not in good faith. Within 60 days
following the final determination of the applicable proceeding, the Company
shall pay to each dissenting Shareholder the amount found to be due him or her
upon the Shareholder's surrender of all certificates representing dissenting
shares.
The enforcement by a Shareholder of his or her right to receive payment
for shares in accordance with Section 623 excludes the enforcement by such
Shareholder of any other right to which he or she might otherwise be entitled by
virtue of his or her ownership of shares (unless such Shareholder withdraws his
or her notice of election as provided in Section 623 or the reorganization is
abandoned),
A-2
except that such Shareholder will retain the right to bring or maintain an
appropriate action to obtain relief on the grounds that the reorganization will
be or is unlawful or fraudulent as to him or her.
THE FOREGOING DESCRIPTION IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SECTION
623, A COPY OF WHICH IS AVAILABLE FROM THE COMPANY UPON REQUEST.
A-3
PROXY ANAREN MICROWAVE, INC. PROXY
6635 Kirkville Road
East Syracuse, New York 13057
THIS IS YOUR PROXY
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF ANAREN MICROWAVE,
INC.
The undersigned hereby (1) acknowledges receipt of the notice of the
Special Meeting of Shareholders of Anaren Microwave, Inc. (the "Company") to be
held at the Offices of the Company at 6635 Kirkville Road, East Syracuse, New
York on December 16, 2002 at 11:00 A.M., local time and of the Proxy Statement
in connection therewith and (2) appoints Lawrence A. Sala and Carl W. Gerst, Jr.
and each of them as proxies, each with the power to appoint his substitute, and
hereby authorizes them to represent and to vote, as designated below, all of the
shares of common stock, $.01 par value, of Anaren Microwave, Inc. held of record
by the undersigned on October 18, 2002 at the Special Meeting of Shareholders,
or any adjournment thereof. If any nominee for director should be unavailable to
serve, it is intended that all of the shares will be voted for such substitute
nominee as may be determined by the Board of Directors. The undersigned directs
that this Proxy be voted as follows:
(Continued and to be dated and signed on the reverse)
ITEM 1: ESTABLISHMENT OF OPERATING SUBSIDIARY AND TRANSFER OF CERTAIN ASSETS TO
OPERATING SUBSIDIARY
FOR AGAINST ABSTAIN
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ITEM 2: CHANGE OF CORPORATE NAME
FOR AGAINST ABSTAIN
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In their discretion the proxies are authorized to vote upon such other business
as may properly come before the Meeting or any adjournment thereof.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN
BY THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION IS MADE WITH RESPECT TO A
SPECIFIC PROPOSAL, THIS PROXY WILL BE VOTED "FOR" THAT PROPOSAL.
PLEASE MARK, SIGN, DATE AND RETURN THIS PROXY USING THE ENCLOSED ENVELOPE. NO
POSTAGE REQUIRED.
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Signature
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Please Print Name Here
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Signature
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Please Print Name Here
Dated: __________________________, 20___
IMPORTANT. Please sign exactly as name
appears on this card. Each joint owner
should sign. Executors, administrators,
trustees, etc. should give full title.
SPECIAL MEETING OF SHAREHOLDERS OF
ANAREN MICROWAVE, INC.
December 16, 2002
Co. # ________________ Acct. #_____________________
TO VOTE BY MAIL
Please date, sign and mail your proxy card in the envelope provided as soon as
possible.
TO VOTE BY TELEPHONE (TOUCH-TONE PHONE ONLY)
Please call toll-free 1-800-PROXIES and follow the instructions. Have your
control number and the proxy card available when you call.
TO VOTE BY INTERNET
Please access the web page at www.voteproxy.com and follow the on-screen
instructions. Have your control number available when you access the web page.
YOUR CONTROL NUMBER IS ----------> |_|