EXHIBIT (a)(10)
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares (as defined below). The Offer (as defined below) is made solely
by the Offer to Purchase, dated October 15, 2003 (the "Offer to Purchase"), and
the related Letter of Transmittal and any amendments or supplements to the
Offer to Purchase or Letter of Transmittal. The Offer is not being made to (nor
will tenders be accepted from or on behalf of) holders of Shares in any
jurisdiction in which the making of the Offer or the acceptance thereof would
not be in compliance with the laws of such jurisdiction or any administrative or
judicial action pursuant thereto. However, the Purchaser (as defined below) may,
in its discretion, take such action as it deems necessary to make the Offer in
any jurisdiction and extend the Offer to holders of such Shares in such
jurisdiction. In any jurisdiction where securities, Blue Sky or other laws
require the Offer to be made by a licensed broker or dealer, the Offer shall be
deemed to be made on behalf of the Purchaser (as defined below) by Merrill Lynch
& Co., which is acting as the dealer manager (the "Dealer Manager"), or by one
or more registered brokers or dealers licensed under the laws of such
jurisdiction.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
AND
ALL OUTSTANDING SHARES OF SERIES B CONVERTIBLE PREFERRED STOCK
OF
VIXEL CORPORATION
AT
$10.00 NET PER SHARE
BY
AVIARY ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
EMULEX CORPORATION
Aviary Acquisition Corp., a Delaware corporation (the "Purchaser") and a
wholly owned subsidiary of Emulex Corporation, a Delaware corporation
("Emulex"), is offering to purchase all issued and outstanding shares of common
stock, par value $.0015 per share, of Vixel Corporation, a Delaware corporation
("Vixel"), including the associated preferred stock or other rights issued
pursuant to the Rights Agreement, dated as of November 15, 2000, between Vixel
and Computershare Trust Company, Inc., as amended from time to time (together,
the "Common Stock"), and all issued and outstanding shares of Series B
convertible preferred stock, par value $.001 per share, of Vixel (the "Series B
Preferred Stock," and together with the Common Stock, the "Shares" and each
share thereof a "Share"), at a price of $10.00 per Share, net to the seller in
cash (the "Offer Price"), without interest thereon, upon the terms and subject
to the conditions set forth in the Offer to Purchase and in the related Letter
of Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer"). Tendering stockholders who have Shares
registered in their names and who tender directly to Computershare Trust Company
of New York, which is acting as the depositary (the "Depositary"), will not be
obligated to pay brokerage fees or commissions or, except as set forth in the
Letter of Transmittal, transfer taxes on the sale of Shares pursuant to the
Offer. Stockholders who hold their Shares through a broker, bank or other
nominee should consult such institution as to whether it charges any service
fees. The Purchaser will pay all fees and expenses of the Depositary, the Dealer
Manager, and MacKenzie Partners, Inc., which is acting as the information agent
(the "Information Agent"), incurred in connection with the Offer. The Purchaser
is offering to acquire all Shares as a first step in acquiring the entire equity
interest in Vixel. Following consummation of the Offer, the Purchaser intends to
seek representation on Vixel's Board of Directors and to seek to have Vixel
consummate the merger described below.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON WEDNESDAY, NOVEMBER 12, 2003, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY
TENDERED AND NOT VALIDLY WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER (A) THAT
NUMBER OF SHARES OF COMMON STOCK WHICH, TOGETHER WITH ANY SHARES OF COMMON STOCK
THEN OWNED BY EMULEX OR THE PURCHASER (WITHOUT GIVING EFFECT TO SHARES SUBJECT
TO PURCHASE UNDER THE PURCHASER OPTION (AS DEFINED BELOW) OR THE STOCKHOLDERS
AGREEMENT (AS DEFINED BELOW)), REPRESENTS GREATER THAN 50.1% OF THE SHARES OF
COMMON STOCK OUTSTANDING ON A FULLY DILUTED BASIS (EXCLUDING THE CONVERSION OF
THE SERIES B PREFERRED STOCK) AND (B) THAT NUMBER OF SHARES OF SERIES B
PREFERRED STOCK WHICH, TOGETHER WITH ANY SHARES OF SERIES B PREFERRED STOCK THEN
OWNED BY EMULEX OR THE PURCHASER (WITHOUT GIVING EFFECT TO SHARES SUBJECT TO
PURCHASE UNDER THE PURCHASER OPTION OR THE STOCKHOLDERS AGREEMENT), REPRESENTS
GREATER THAN 50.1% OF THE SERIES B PREFERRED STOCK OUTSTANDING ON A FULLY
DILUTED BASIS AND (2) THE SATISFACTION OF CERTAIN OTHER CONDITIONS AS CONTAINED
IN THE OFFER TO PURCHASE, INCLUDING THE EXPIRATION OR TERMINATION OF ANY
APPLICABLE WAITING PERIOD UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT
OF 1976, AS AMENDED.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of October 8, 2003 (the "Merger Agreement"), by and among Emulex, the
Purchaser and Vixel, pursuant to which, as soon as practicable after the
completion of the Offer and satisfaction or waiver of all conditions to the
Merger (as defined below), the Purchaser will be merged with and into Vixel and
the separate corporate existence of the Purchaser will thereupon cease. The
merger of the Purchaser with and into Vixel, as effected pursuant to the
immediately preceding sentence, is referred to herein as the "Merger." At the
effective time of the Merger (the "Effective Time"), each Share (other than
Shares held by Vixel as treasury stock, Shares held by Emulex, the Purchaser or
any other wholly owned subsidiary of Emulex and Shares held by a holder who has
not voted in favor of the Merger or consented thereto in writing and who
complies with Section 262 of the Delaware General Corporation Law ("Delaware
Law")) will be canceled and retired and converted into the right to receive the
$10.00 per Share (or any greater amount per Share paid pursuant to the Offer) in
cash, without interest.
THE BOARD OF DIRECTORS OF VIXEL HAS UNANIMOUSLY DETERMINED THAT THE TERMS
OF THE OFFER, THE MERGER AND THE MERGER AGREEMENT ARE FAIR TO AND IN THE BEST
INTERESTS OF VIXEL'S STOCKHOLDERS AND HAS UNANIMOUSLY RECOMMENDED THAT THE
HOLDERS OF SUCH SHARES ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE
OFFER.
As a condition and inducement to Emulex's and the Purchaser's willingness
to enter into the Merger Agreement, certain stockholders of Vixel (each a
"Stockholder") entered into a Stockholders Agreement, dated as of October 8,
2003, with Emulex and the Purchaser (the "Stockholders Agreement"). The
Stockholders Agreement provides for the tender into the Offer of all Shares held
by the Stockholders, which as of September 28, 2003 represented approximately
11% of the issued and outstanding shares of Common Stock (assuming the
conversion of the Series B Preferred Stock held by certain Stockholders and
excluding warrants and stock options that certain Stockholders may exercise for
859,058 shares and up to 456,666 shares, respectively, of Common Stock),
including any Shares acquired after the date of the Stockholders Agreement,
whether upon the exercise of warrants or options to acquire Shares or otherwise.
The Stockholder Agreement also requires the Stockholders to vote such Shares (1)
in favor of approval and adoption of the Merger Agreement (as the same may have
been amended or revised) and any action required in furtherance thereof, (2)
against any agreement or transaction to an acquisition proposal other than as
proposed by Emulex or the Purchaser and (3) against any proposal, action or
transaction that would prevent, or materially impede or delay, the consummation
of the Offer or Merger. Shares subject to the Stockholders Agreement, and
warrants and stock options held by the Stockholders, are also subject to certain
restrictions on transfer under the Stockholders Agreement.
Also as a condition and inducement to Emulex's and the Purchaser's
willingness to enter into the Merger Agreement, Vixel entered into a Purchaser
Option Agreement, dated October 8, 2003, by and between Emulex, the Purchaser
and Vixel, pursuant to which Vixel granted the Purchaser an irrevocable option
(the "Purchaser Option") to purchase, for the Offer Price, shares of Common
Stock and/or Series B Preferred Stock, in such relative amounts as determined by
the Purchaser in its discretion (subject to the number of authorized shares of
Series B Preferred Stock available for issuance), up to 19.9% in the aggregate
of the then-outstanding shares of Common Stock and Series B Preferred Stock on
an "as-converted" basis (collectively, the "Optioned Shares"). The exercise of
the Purchaser Option for Common Stock is conditioned upon the Purchaser and
Emulex owning in the aggregate, immediately following such exercise, at least
90% of the outstanding shares of Common Stock. The exercise of the Purchaser
Option for Series B Preferred Stock is conditioned upon the Purchaser and Emulex
owning in the aggregate, immediately following such exercise, at least 90% of
the outstanding shares of Series B Preferred Stock.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment, and thereby purchased, Shares properly tendered to the Purchaser
and not validly withdrawn as, if and when the Purchaser gives oral or written
notice to the Depositary of the Purchaser's acceptance for payment of such
Shares. Payment for Shares accepted for payment pursuant to the Offer will be
made by deposit of the Offer Price therefor with the Depositary, which will act
as agent for tendering stockholders for the purpose of receiving payment from
Purchaser and transmitting payment to validly tendering stockholders. Under no
circumstances will interest be paid on the Offer Price to be paid by the
Purchaser for the Shares, regardless of any extension of the Offer or any delay
in making such payment. In all cases, payment for Shares accepted for payment
pursuant to the Offer will be made only after timely receipt by the Depositary
at one of its addresses appearing on the back cover of the Offer to Purchase of
(1) certificates representing, or a timely Book-Entry Confirmation with respect
to, such Shares into the Depositary's account at the Depositary Trust Company
(the "Book-Entry Transfer Facility") pursuant to the procedures described in
Section 3 -- "Procedure for Tendering Shares" of the Offer to Purchase, (2) a
Letter of Transmittal (or a facsimile thereof), properly completed and duly
executed, with any required signature guarantees, or, in the case of a
book-entry transfer, an Agent's Message (as defined in Section 3 -- "Procedure
for Tendering Shares" of the Offer to Purchase), and (3) any other documents
required by the Letter of Transmittal.
The Purchaser may, without the consent of Vixel, (1) if at any scheduled
expiration of the Offer any of the conditions to the Purchaser's obligation to
accept Shares for payment shall not be satisfied or waived, extend the Offer
beyond the Expiration Date (defined below) for a time period reasonably
necessary to permit such condition to be satisfied, (2) extend the Offer for any
period required by any rule, regulation or interpretation of the United States
Securities and Exchange Commission, or the staff thereof, applicable to the
Offer or (3) extend (or re-extend) the Offer for an aggregate period of not more
than five business days beyond the latest applicable date that would otherwise
be permitted under clause (1) or (2) of this sentence, if, as of such date, all
of the conditions to the Purchaser's obligations to accept Shares for payment
are satisfied or waived, but there shall not have been validly tendered and not
withdrawn pursuant to the Offer that number of Shares necessary on a fully
diluted basis to permit the Merger to be effected without a meeting of Vixel's
stockholders in accordance with Delaware law. The Purchaser may, without the
consent of Vixel, also extend the Offer in accordance with Rule 14d-11 under the
Exchange Act of 1934, as amended (the "Exchange Act"). In addition, the Offer
Price may be increased and the Offer may be extended to the extent required by
law in connection with such increase, in each case without the consent of Vixel.
The term "Expiration Date" shall mean 12:00 midnight, New York City time, on
November 12, 2003, unless and until the Purchaser extends the period of time for
which the Offer is open, in which event the term "Expiration Date" shall mean
the latest time and date at which the Offer, as so extended by the Purchaser,
shall expire.
Any extension, amendment or termination of the Offer will be followed as
promptly as practicable by public announcement thereof, the announcement in the
case of an extension to be issued no later than 9:00 a.m., New York City time,
on the next business day after the previously scheduled Expiration Date in
accordance with the public announcement requirements of Rule 14d-4(c) under the
Exchange Act.
Shares tendered pursuant to the Offer may be withdrawn (pursuant to the
procedures set forth below) at any time prior to the Expiration Date.
Thereafter, such tenders are irrevocable, except that they may be withdrawn
after December 14, 2003 unless such Shares have been accepted for payment as
provided in the Offer to Purchase. No withdrawal rights will apply to Shares
tendered into a subsequent offering period under Rule 14d-11 of the Exchange Act
and no withdrawal rights apply during a "subsequent offering period" under Rule
14d-11 with respect to Shares tendered in the Offer and accepted for payment.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
its address set forth on the back cover of the Offer to Purchase and must
specify the name of the person who tendered the Shares to be withdrawn, the
number and class of Shares to be withdrawn and the name of the registered holder
of the Shares to be withdrawn, if different from the name of the person who
tendered the Shares. If certificates representing Shares have been delivered or
otherwise identified to the Depositary, then, prior to the physical release of
such certificates, the serial numbers shown on such certificates must be
submitted to the Depositary and, unless such Shares have been tendered by an
Eligible Institution (a financial institution, including most commercial
banks, savings and loan associations and brokerage houses, that is a participant
in the Security Transfer Agent's Medallion Program, or any other "eligible
guarantor institute," as such term is defined in Rule 17Ad-15 under the Exchange
Act), the signatures on the notice of withdrawal must be guaranteed by an
Eligible Institution. If Shares have been tendered pursuant to the procedures
for book-entry transfer as contained in Section 3 -- "Procedure for Tendering
Shares" of the Offer to Purchase, any notice of withdrawal must also specify the
name and number of the account at the appropriate Book-Entry Transfer Facility
to be credited with the withdrawn Shares and otherwise comply with such
Book-Entry Transfer Facility's procedures. Withdrawals of tendered Shares may
not be rescinded, and any Shares properly withdrawn will thereafter be deemed
not validly tendered for purposes of the Offer. However, withdrawn Shares may be
retendered by again following one of the procedures described in Section 3 --
"Procedure for Tendering Shares" of the Offer to Purchase any time prior to the
Expiration Date. All questions as to the form and validity (including time of
receipt) of notices of withdrawal will be determined by the Purchaser, in its
sole discretion, and its determination will be final and binding.
The receipt of cash for Shares pursuant to the Offer or the Merger will be
a taxable transaction for United States federal income tax purposes and may
also be a taxable transaction under applicable state, local or foreign tax laws.
Stockholders should consult with their tax advisors as to the particular tax
consequences of the Offer and the Merger to them, including the applicability
and effect of the Alternative Minimum Tax and any state, local or foreign income
and other tax laws and of changes in such tax laws. For a more complete
description of certain U.S. federal income tax consequences of the Offer and the
Merger see Section 5 -- "Certain United States Federal Income Tax Consequences"
of the Offer to Purchase.
The information required to be disclosed by paragraph (d)(1) of Rule 14d-6
of the General Rules and Regulations under the Exchange Act is contained in the
Offer to Purchase and is incorporated herein by reference.
Vixel has provided the Purchaser with Vixel's stockholder lists and
security position listings for the purpose of disseminating the Offer to holders
of Shares. The Offer to Purchase, the related Letter of Transmittal and other
relevant documents will be mailed by the Purchaser to record holders of Shares,
and will be furnished by the Purchaser to brokers, dealers, banks and similar
persons whose names, or the names of whose nominees, appear on the stockholder
lists, or, if applicable, who are listed as participants in a clearing agency's
security position listing, for subsequent transmittal to beneficial owners of
Shares.
THE OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION AND SHOULD BE READ IN THEIR ENTIRETY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER.
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
as set forth below. Requests for additional copies of the Offer to Purchase,
Letter of Transmittal and other tender offer documents may be directed to the
Information Agent at its address and telephone number set forth below, and
copies will be furnished at the Purchaser's expense. The Purchaser will not pay
any fees or commissions to any broker or dealer or other person (other than to
the Dealer Manager, Depositary and the Information Agent) for soliciting tenders
of Shares pursuant to the Offer.
The Information Agent for the Offer is:
(MACKENZIE PARTNERS, INC. LOGO)
105 Madison Avenue
New York, New York 10016
(212) 929-5500 (Call Collect)
or
CALL TOLL-FREE (800) 322-2885
E-mail: proxy@mackenziepartners.com
The Dealer Manager for the Offer is:
MERRILL LYNCH & CO.
Four World Financial Center
New York, New York 10080
(866) 276-1462 (Call Collect)
October 15, 2003