On July 1, 2021, the board of directors of Atotech Limited
(NYSE:ATC) (“
Atotech”) and the board of directors
of MKS Instruments, Inc. (NASDAQ:MKSI) (“
MKS”)
announced that they had entered into a definitive agreement
pursuant to which MKS would acquire the entire issued and to be
issued share capital of Atotech (the
“
Acquisition”). The Acquisition is to be effected
by means of a scheme of arrangement under Article 125 of the
Companies (Jersey) Law 1991 (as amended).
Publication of the Scheme
Document
Atotech is pleased to announce that the scheme
document containing the full terms and conditions of the
Acquisition (the "Scheme Document"), together with
the related Forms of Proxy and the Virtual Meeting Guide, is being
sent to Atotech Shareholders today and will be made available on
Atotech’s website at https://investors.atotech.com.
Capitalised terms defined in the Scheme Document
have the same meanings in this announcement.
Notices of the Court Meeting and General
Meeting
As described in the Scheme Document, to become
effective, the Scheme will require, amongst other things, the
approval of Scheme Shareholders at the Court Meeting, the passing
of the Resolutions at the General Meeting and the subsequent
sanction of the Court. The Scheme is also subject to the
satisfaction or waiver of the Conditions and further terms that are
set out in the Scheme Document.
Notices of the Court Meeting and the General
Meeting, each of which will be held at the offices of Latham &
Watkins (London) LLP located at 99 Bishopsgate, London EC2M 3XF,
United Kingdom on November 3, 2021, are set out in the Scheme
Document. The Court Meeting will start at 10.00 a.m. (Eastern Time)
/ 2.00 p.m. (London Time) on that date and the General Meeting at
10.15 a.m. (Eastern Time) / 2.15 p.m. (London Time) or as soon
thereafter as the Court Meeting is concluded or adjourned.
The Atotech Board notes the ongoing
measures imposed by various governments and federal and state
authorities (including in the US, the UK and Jersey) in view of the
ongoing COVID-19 pandemic. In light of these measures, together
with the uncertainty as to any additional and/or alternative
measures that may be put in place by the governments of, or federal
or state authorities in, the US, UK and Jersey, and in order to
protect the health and safety of Atotech Shareholders and Atotech
Directors, Scheme Shareholders and Atotech Shareholders are
strongly encouraged not to attend the Meetings in person and are
instead encouraged to attend the Meetings remotely via the Virtual
Meeting Platform and to transmit a proxy appointment and voting
instruction in advance of the Meetings, appointing “the Chair of
the meeting” as their proxy.
Scheme Shareholders and Atotech Shareholders
will be given the opportunity to remotely attend, speak, submit
written questions, and vote at the relevant Meetings via the
Virtual Meeting Platform.
Any material changes to the arrangements for the
Court Meeting and the General Meeting will be communicated to
Atotech Shareholders and Scheme Shareholders before the Meetings by
public announcement in the United States and by making such
announcement available on Atotech’s website at
https://investors.atotech.com.
Action Required
It is important that, for the Court
Meeting in particular, as many votes as possible are cast so that
the Court may be satisfied that there is a fair representation of
opinion of Scheme Shareholders. Whether or not you intend to attend
and/or vote at the Court Meeting (in person or remotely via the
Virtual Meeting Platform), Scheme Shareholders are strongly advised
to sign and return your BLUE Form of Proxy (by email) for the Court
Meeting as soon as possible.
The completion and return of the BLUE Form of
Proxy by email will not prevent you from attending, speaking at,
submitting written questions, and voting at the Court Meeting in
person or remotely via the Virtual Meeting Platform as described
above and in the Virtual Meeting Guide, if you are entitled to and
wish to do so.
Non-Registered Shareholders
Non-Registered Shareholders will not be entitled
to attend, speak at, submit written questions to, vote at or
otherwise participate in either the Court Meeting or the General
Meeting (whether in person or remotely via the Virtual Meeting
Platform).
Non-Registered Shareholders as of the
Non-Registered Shareholder Record Time will however be entitled to
instruct their broker or other Intermediary how to vote the Scheme
Shares and Atotech Shares in which they have a beneficial interest
by completing and signing the materials provided to them in
accordance with the instructions provided to them by their broker
or other Intermediary.
Non-Registered Holders will also be able to
observe (but not participate) the Court Meeting and the General
Meeting remotely via the Virtual Meeting Platform, as described in
the opening pages of the Scheme Document and the Virtual Meeting
Guide.
Expected Timetable of Principal
Events
The Scheme Document contains an expected
timetable of principal events relating to the Scheme, which is also
attached as an Appendix to this announcement. Subject to obtaining
the approval of Atotech Shareholders and the Court, and the
satisfaction or, where applicable, the waiver of the other
Conditions (as set out in the Scheme Document), the Scheme is
expected to become effective in the fourth quarter of 2021.
Notices
Important Notices Relating to
Advisers
Credit Suisse is acting as financial advisor and
Latham & Watkins is acting as legal advisor to Atotech. Ogier
is advising Atotech as to Jersey law matters.
About Atotech
Atotech is a leading specialty-chemicals
technology company and a market leader in advanced electroplating
solutions. Atotech delivers chemistry, equipment, software, and
services for innovative technology applications through an
integrated systems-and-solutions approach. Atotech solutions are
used in a wide variety of end-markets, including smartphones and
other consumer electronics, communications infrastructure, and
computing, as well as in numerous industrial and consumer
applications such as automotive, heavy machinery, and household
appliances.
Atotech, headquartered in Berlin, Germany, is a
team of 4,000 employees in over 40 countries generating annual
revenue of $1.2 billion in 2020. Atotech has manufacturing
operations across Europe, the Americas, and Asia. With its
well-established innovative strength and industry-leading global
TechCenter network, Atotech delivers pioneering solutions combined
with unparalleled on-site support for over 9,000 customers
worldwide. For more information about Atotech, please visit us at
www.atotech.com.
As noted at the time of Atotech’s public
offering, Atotech is not a company subject to regulation under the
City Code on Takeovers and Mergers (the “UK Takeover Code”),
therefore no dealing disclosures are required to be made under Rule
8 of the UK Takeover Code by shareholders of MKS or Atotech.
Safe Harbor for Forward-Looking
Statements
Statements in this announcement regarding the
proposed transaction between MKS and Atotech (the “transaction”),
the expected timetable for completing the transaction, future
financial and operating results and metrics for the combined
company, including to reflect MKS’ acquisition of Photon Control
Inc., which MKS acquired in July 2021, benefits and synergies of
the transaction, future opportunities for the combined company and
any other statements about MKS’ or Atotech’s managements’ future
expectations, beliefs, goals, plans or prospects constitute
forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Any statements that are
not statements of historical fact (including statements containing
the words “will,” “projects,” “intends,” “believes,” “plans,”
“anticipates,” “expects,” “estimates,” “forecasts,” “continues” and
similar expressions) should also be considered to be
forward-looking statements. These statements are only predictions
based on current assumptions and expectations. Actual events or
results may differ materially from those in the forward-looking
statements set forth herein. Among the important factors that could
cause actual events to differ materially from those in the
forward-looking statements are: the ability of the parties to
complete the transaction; the risk that the conditions to the
closing of the transaction, including receipt of required
regulatory approvals and approval of Atotech shareholders, are not
satisfied in a timely manner or at all; the terms of MKS’ existing
term loan, the terms and availability of financing for the
transaction, the substantial indebtedness MKS expects to incur in
connection with the transaction and the need to generate sufficient
cash flows to service and repay such debt; litigation relating to
the transaction; unexpected costs, charges or expenses resulting
from the transaction; the risk that disruption from the transaction
materially and adversely affects the respective businesses and
operations of MKS and Atotech; restrictions during the pendency of
the transaction that impact MKS’ or Atotech’s ability to pursue
certain business opportunities or other strategic transactions; the
ability of MKS to realize the anticipated synergies, cost savings
and other benefits of the transaction, including the risk that the
anticipated benefits from the transaction may not be realized
within the expected time period or at all; competition from larger
or more established companies in the companies’ respective markets;
MKS’ ability to successfully grow Atotech’s business; potential
adverse reactions or changes to business relationships resulting
from the announcement, pendency or completion of the transaction;
the ability of MKS to retain and hire key employees; legislative,
regulatory and economic developments, including changing conditions
affecting the markets in which MKS and Atotech operate, including
the fluctuations in capital spending in the semiconductor industry
and other advanced manufacturing markets and fluctuations in sales
to MKS’ and Atotech’s existing and prospective customers; the
challenges, risks and costs involved with integrating the
operations of the companies MKS and Atotech acquire; the impact of
the COVID-19 pandemic and related private and public measures on
Atotech’s business; the ability of MKS to anticipate and meet
customer demand; manufacturing and sourcing risks, including supply
chain disruptions and component shortages; potential fluctuations
in quarterly results; dependence on new product development; rapid
technological and market change; acquisition strategy; volatility
of stock price; international operations; financial risk
management; and the other factors described in MKS’ Annual Report
on Form 10-K for the fiscal year ended December 31, 2020 and any
subsequent Quarterly Reports on Form 10-Q, and Atotech’s Annual
Report on Form 20-F for fiscal year ended December 31, 2020 and any
Reports on Form 6-K, each as filed with the U.S. Securities and
Exchange Commission (the “SEC”). MKS and Atotech
are under no obligation to, and expressly disclaim any obligation
to, update or alter these forward-looking statements, whether as a
result of new information, future events or otherwise after the
date of this press release.
Additional Information and Where to Find
It
BEFORE MAKING ANY VOTING DECISION,
ATOTECH’S SHAREHOLDERS ARE URGED TO READ THE SCHEME DOCUMENT IN ITS
ENTIRETY AND ANY OTHER DOCUMENTS FILED BY ATOTECH WITH THE SEC IN
CONNECTION WITH THE PROPOSED TRANSACTION OR INCORPORATED BY
REFERENCE THEREIN BEFORE MAKING ANY VOTING OR INVESTMENT DECISION
WITH RESPECT TO THE PROPOSED TRANSACTION BECAUSE THEY CONTAIN
IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE
PARTIES TO THE PROPOSED TRANSACTION.
Any vote in respect of resolutions to be
proposed at Atotech shareholder meetings to approve the proposed
transaction, the scheme of arrangement or related matters, or other
responses in relation to the proposed transaction, should be made
only on the basis of the information contained in the Scheme
Document. Shareholders may obtain a free copy of the Scheme
Document and other documents Atotech files with the SEC (when
available) through the website maintained by the SEC at
www.sec.gov. Atotech will also make available free of charge on its
investor relations website at https://investors.atotech.com copies
of materials it files with, or furnishes to, the SEC.
No Offer or Solicitation
This communication is for information purposes
only and is not intended to and does not constitute, or form part
of, an offer, invitation or the solicitation of an offer or
invitation to purchase, otherwise acquire, subscribe for, sell or
otherwise dispose of any securities, or the solicitation of any
vote or approval in any jurisdiction, pursuant to the proposed
transaction or otherwise, nor shall there be any sale, issuance or
transfer of securities in any jurisdiction in contravention of
applicable law.
The proposed transaction will be implemented
solely pursuant to the scheme of arrangement, subject to the terms
and conditions of the definitive agreement between MKS and Atotech,
dated July 1, 2021, which contains the terms and conditions of the
proposed transaction.
Appendix
All dates and times are based on Atotech’s and
MKS’ current expectations and are subject to change. If any of the
dates and/or times in this expected timetable change materially,
the revised dates and/or times will be published by public
announcement in the United States and by making such announcement
available on Atotech’s website https://investors.atotech.com.
Event
|
Expected time / date |
Directions Hearing |
August 26, 2021 |
|
|
Non-Registered Shareholder Record Time |
5.00 p.m. (Eastern time) / 10.00 p.m. (London time) on September
24, 2021 |
|
|
Publication of this Document |
September 28, 2021 |
|
|
Latest time for lodging Forms of Proxy for: |
|
|
|
Court Meeting (BLUE form) |
10.00 a.m. (Eastern Time) / 2.00 p.m. (London Time) on November 1,
2021(1) |
|
|
General Meeting (WHITE form) |
10.15 a.m. (Eastern Time) / 2.15 p.m. (London Time) on November 1,
2021(1) |
|
|
Scheme Voting Record Time for the Court Meeting and the General
Meeting |
5.00 p.m. (Eastern Time) / 10.00 p.m. (London Time) on October 24,
2021(2) |
|
|
Court Meeting |
10.00 a.m. (Eastern Time) / 2.00 p.m. (London Time) on November 3,
2021 |
|
|
General Meeting |
10.15 a.m. (Eastern Time) / 2.15 p.m. (London Time) on November 3,
2021(3) |
|
|
The following dates are indicative only and will depend on,
among other things, the dates upon which (i) the Conditions are
satisfied or (where applicable) waived, (ii) the Court sanctions
the Scheme, and (iii) the Court Order sanctioning the Scheme is
delivered to the Registrar of Companies. Atotech will give notice
of any changes to these dates and times, when known, by public
announcement in the United States and by making such announcement
available on Atotech’s website at
https://investors.atotech.com. Any further
updates or changes to these times will be notified in the same
way. |
|
Court Sanction Hearing |
Subject to clause 9 of the Scheme, December 22, 2021 |
|
|
Last day of dealings in, and for registration of transfers of,
Atotech Shares |
D-3 Business Days |
|
|
Scheme Record Time |
5.00 p.m. (Eastern Time) / 10.00 p.m. (London Time) on D-1 Business
Day |
|
|
Effective Date of the Scheme |
December 30, 2021 “D”(4) |
|
|
Date for despatch of cheques/settlement for cash consideration
(including any cash entitlement in respect of fractional shares)
due under the Scheme |
D(5) |
|
|
Cancellation of listing of Atotech Shares on the NYSE |
by 9.30 a.m. (Eastern Time) / 2.30 p.m. (London Time) on D+1
Business Day |
|
|
Listing of, and commencement of dealings in, New MKS Shares on
Nasdaq |
by 9.30 a.m. (Eastern Time) / 2.30 p.m. (London Time) on D+1
Business Day(6) |
|
|
New MKS Shares credited by the Transfer Agent to Cede & Co., as
nominee for DTC (in respect of Atotech Shares held in book-entry
form through DTC) |
D+1 Business Day(6) |
|
|
New MKS Shares credited by the Transfer Agent in book-entry form on
its books or through DRS if the Scheme Shareholder is DRS-eligible
(in respect of Atotech Shares held in certificated or book-entry
form on books of the Transfer Agent) |
D+1 Business Day(6) |
|
|
Dispatch of statements of entitlement to New MKS Shares held
through DRS (in respect of Atotech Shares held in certificated or
book-entry form on books of the Transfer Agent) |
D+1 Business Day(6) |
|
|
Long Stop Date |
December 31, 2021(7) |
_________(1) The BLUE Form of Proxy must be
received no later than 10.00 a.m. (Eastern Time) / 2.00 p.m.
(London Time) on November 1, 2021 (or, if the Court Meeting is
adjourned, 48 hours (excluding any part of a day that is not a
Business Day) before the time fixed for the adjourned Meeting). The
WHITE Form of Proxy must be received no later than 10.15 a.m.
(Eastern Time) / 2.15 p.m. (London Time) on November 1, 2021 (or,
if the General Meeting is adjourned, 48 hours (excluding any part
of a day that is not a Business Day) before the time fixed for the
adjourned Meeting). If the BLUE Form of Proxy relating to the Court
Meeting is not returned by Scheme Shareholders so as to be received
by the time mentioned above for return of the BLUE Form of Proxy,
it may be handed to the Chair of the Court Meeting before the start
of the Court Meeting and will still be valid. In order to effect
this, it may be handed to the Chair in person at the Court Meeting
or emailed at any time prior to the Court Meeting but NOT AFTER
10.00 a.m. (Eastern Time) / 2.00 p.m. (London Time) on November 3,
2021 to Atotech@ogier.com. (2) If either the Court
Meeting or the General Meeting is adjourned for more than 30 days,
the Scheme Voting Record Time for the relevant adjourned Meeting
will be 5.00 p.m. (Eastern Time) on the day which is 10 days before
the date set for such adjourned Meeting.(3) To
commence at 10.15 a.m. (Eastern Time) / 2.15 p.m. (London Time) or,
if later, as soon thereafter as the Court Meeting shall have
concluded or adjourned.(4) The Scheme will become
effective pursuant to its terms upon the Court Order being
delivered to the Registrar of Companies.(5) The
Cash Consideration shall be settled in accordance with the terms of
the Scheme on or as soon as reasonably practicable following the
Effective Date (and in any event no later than 2 Business Days
following the Effective Date).(6) The Share
Consideration shall be settled in accordance with the terms of the
Scheme as soon as reasonably practicable following the Effective
Date (and in any event no later than 2 Business Days following the
Effective Date).(7) The latest date by which the
Scheme must be implemented, which may be extended by agreement
between Atotech and MKS and (if required) the approval of the
Court, and which shall be automatically extended to March 31, 2022
if: (i) all of the Clearances necessary for the Acquisition have
not been obtained by December 31, 2021, or (ii) there is a
Permitted Switch. |
Atotech Contacts:
Investor Relations & Communications:
Sarah Spray
Vice President, Global Head of Investor Relations & Communications
+1 803.504.4731
Email: sarah.spray@atotech.com
Lex Suvanto / Patrick Ryan / Ruediger Assion
Edelman
Emails: lex.suvanto@edelman.com / Patrick.ryan@edelman.com / Ruediger.assion@edelman.com
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