Filed By
Merix Corporation
Pursuant
to Rule 425 Under the Securities Act of 1933
And
Deemed Filed Pursuant to Rule 14a-6
Under the
Securities Exchange Act of 1934
Registration
Statement No. 333-163040
Subject
Company: Merix Corporation
Commission
File No. 001-33752
The
following is a copy of a letter which Merix Corporation is distributing to
certain holders of options in connection with the proposed acquisition of Merix
Corporation by Viasystems Group, Inc.
January
6, 2010
Dear
Merix Option Holder:
As you know, Merix Corporation has
entered into an Agreement and Plan of Merger (the “
Merger Agreement
”),
dated as of October 6, 2009, with Viasystems Group, Inc. (“
Viasystems
”) and
Maple Acquisition Corp., pursuant to which Merix will become a wholly owned
subsidiary of Viasystems (the “
Merger
”). If
all conditions to the closing of the Merger are satisfied (the time at which
such conditions are satisfied, the “
Closing
”), each
unexercised Merix stock option (whether vested or unvested) that is then
outstanding under the Merix Corporation 1994 Equity Incentive Plan (the “
1994 Plan
”), the
Merix Corporation 2000 Equity Incentive Plan (the “
2000 Plan
”) or the
Merix 2006 Employee Incentive Plan (the “
2006 Plan
”) will be
cancelled upon the occurrence of the Closing with no consideration paid to the
holder of the option. However, as explained further below, if by the deadline
indicated below, you exercise your vested options or choose to exercise your
options (whether vested or unvested), the Merix shares that you receive from the
exercise of your options and that you hold as of the Closing of the Merger will
be converted into the right to receive Viasystems common stock equal to the
Exchange Ratio pursuant to the terms of the Merger Agreement, and you will
receive such Viasystems common stock after the procedures for the conversion are
completed. As used in this letter, “in-the-money” refers to options that have an
exercise price that is lower than the closing price of Merix common stock as of
the applicable measurement date.
You
should consult a tax advisor regarding tax consequences of exercising any
option.
I.
Options that are currently
unvested and that will not vest by their own terms prior to the Closing of the
Merger (“Category 1 Options”)
If you hold options that are
currently unvested and that
will not vest by their own terms prior to the Closing of the Merger
1
(“Category 1 Options”), you may
choose to exercise all or a portion of these Category 1 Options, even if they
are unvested. You may choose to exercise any or all of your Category
1 Options or you may choose to exercise under Part I of the Exercise Notice and
Option Exercise Agreement, as of the Closing of the Merger, all of your Category
1 Options and Category 2 Options that are “in-the-money.”
In
either case, you must complete the attached Exercise Notice and Option Exercise
Agreement and submit it to Robert Grondahl at Merix’ executive offices by 5 p.m.
PST on February 5, 2010 in accordance with the procedure described
below
. If you choose to exercise any of your Category 1
Options in either manner described above, you will be deemed to have exercised
such options at the Closing of the Merger, contingent on the Closing of the
Merger. If the Merger closes, each share of Merix common stock that
you receive pursuant to your exercise will be converted into the right to
receive Viasystems common stock equal to the Exchange Ratio (described below)
pursuant to the terms of the Merger Agreement.
If by 5 p.m. PST on February
5, 2010, you do not submit an Exercise Notice and Option Exercise Agreement and
therefore choose not to exercise your Category 1 Option(s) in either manner
described above, your unexercised Category 1 Options will be cancelled upon
Closing of the Merger and you will not receive any consideration for any such
unexercised options
. In addition, if you do timely elect to
exercise some (but not all) of your Category 1 Option(s), any unexercised
Category 1 Options will also
be cancelled upon Closing of
the Merger and you will not receive any consideration for any such unexercised
options
.
II.
Options that are currently
vested or that will vest by their own terms before the Closing of the Merger
(“Category 2 Options”)
Options that are currently vested or
that will vest prior to the Closing of the Merger by their own terms may also be
exercised in accordance with the procedure described below.
If you
hold Category 2 Options, by the deadline described below, you must decide
whether to exercise any or all of those options
or whether to exercise under Part I
of the Exercise Notice and Option Exercise Agreement, as of the Closing of the
Merger, all of your Category 1 Options and Category 2 Options that are
“in-the-money.”
In
either case,
you must
submit your Exercise Notice and Option Exercise Agreement, in accordance with
the procedure described below, to Robert Grondahl at Merix’ executive offices by
5 p.m. PST on February 5, 2010 or by the expiration date of such option if the
expiration date is earlier than February 5, 2010
. Unless you
choose under Part I of the Exercise Notice and Option Exercise Agreement to
exercise, as of the Closing of the Merger, all of your Category 1 Options and
Category 2 Options that are “in-the-money,” your exercise will
NOT
be contingent
upon the Closing of the Merger, and the date of your exercise will be the date
you submit your Exercise Notice and Option Exercise Agreement to
Merix.
If by the earlier of 5 p.m.
PST on February 5, 2010 or the expiration date of your option, you do not
exercise your Category 2 Options in either manner described above, your
unexercised Category 2 Options will be cancelled upon the Closing of the Merger
and you will not receive any consideration for any such unexercised
options
. In addition, if you do timely elect to exercise some (but not
all) of your Category 2 Option(s), any unexercised Category 2 Options will also
be cancelled upon
Closing of the Merger and you will not receive any consideration for any such
unexercised options
.
III.
The Exchange
Ratio
The Exchange Ratio will be a fraction,
the numerator of which is 2,500,000 and the denominator of which is equal to the
number of Merix common stock outstanding as of the effective time of the Merger
(including Merix common stock issued upon exercise of Merix stock
options). For illustration purposes only, if the Exchange Ratio were
0.10401 and you exercised an option for 1000 shares, you would have the right to
receive 104 shares of Viasystems common stock upon the Closing of the Merger
pursuant to the terms of the Merger Agreement. As of January 6
th
,
2010, the Exchange Ratio was
0.11425
and
will vary depending on the number of options that are
exercised. Please see pages 75-87 of the proxy statement/prospectus
of Merix and Viasystems which you have or will be receiving in the
mail.
IV.
Procedure to Exercise
Options; Deadline; Payment of Exercise Price and Tax
Withholding
If you decide to exercise
any of your options, whether Category 1 Options or Category 2 Options, you must
complete and sign the attached Exercise Notice and Option Exercise Agreement and
return it to Robert Grondahl at Merix’ executive offices by 5 p.m. PST on
February 5, 2010. However, if you hold Category 2 Options AND the
option expiration date is before February 5, 2010, you must complete, sign and
return your Exercise Notice and Option Exercise Agreement with respect to such
options to Robert Grondahl by the close of business on the option expiration
date.
Category
1 Options
With respect to Category 1
Options that you choose to exercise
, if you submit your Exercise Notice
before the deadline stated above, you will be deemed to have exercised such
Category 1 Options at the Closing of the Merger, contingent on the Closing of
the Merger, and you will be required to pay the per share exercise price of
Category 1 Options that you exercise on a “net cashless exercise basis.”
As used in this letter
agreement, “net cashless exercise basis,” with respect to Category 1 Options,
means that the exercise price you would be required to pay upon the exercise of
your Category 1 Options will be satisfied by deducting (A) the number of shares
of Merix common stock having a value, based on the closing price of Merix common
stock on the trading day prior to the Closing of the Merger, equal to the
exercise price you are required to pay from (B) the number of shares of Merix
common stock that you will be entitled to receive as a result of the
exercise of those options. For example, if the exercise price of your
Category 1 Option is $500 in the aggregate and you decide to exercise that
option, the number of shares of Merix common stock having a value equal to $500,
based on the closing price of Merix common stock on the trading day prior to the
Closing of the Merger, will be deducted from the number of shares of Merix
common stock you are entitled to receive as a result of the exercise of that
option. In addition, the number of shares of Merix common stock
having a value equal to any withholding taxes that you are
responsible for paying (determined at the minimum required tax withholding
rates) will be deducted from the number of Merix common stock you are entitled
to receive as a result of the exercise of that option.
Please
note that if you choose to exercise Category 1 Options that have an exercise
price that is higher than the fair market value of Merix common stock on the
date you submit your Exercise Notice, you may be paying more for Merix common
stock than its fair market value, such Category 1 Options will not be exercised
on a “net cashless exercise basis”, and you will be required to pay the exercise
price and any tax withholding amount in cash
. In addition,
Merix will notify you by internal Company email if the exercise price of any
Category 1 Option that is in-the-money at the time you have chosen to exercise
ceases to be in-the-money based on the closing price of Merix common stock on
February 8, 2010, or on such later date that is one business day before the date
of the Closing of the Merger (the “Closing Date”). In such event,
your election to exercise such option will be cancelled and your option will not
be deemed exercised at the Closing of the Merger unless you notify Robert
Grondahl in writing by 9 p.m. PST on February 8, 2010, or on such later date
that is one business day before the Closing Date, that you still wish to
exercise such Category 1 Option, contingent upon the Closing of the Merger and
you pay the full exercise price before the Closing of the Merger. If
you do not pay the full exercise price before the Closing of the Merger, your
election to exercise such Category 1 Options that are not in-the-money will be
cancelled.
You can choose to rescind your election
to exercise your Category 1 Options by written notice to Robert Grondahl by 5
p.m. PST on February 5, 2010.
Category
2 Options
With respect to Category 2
Options
, such options will, if exercised on or before 5 p.m. PST on
February 5, 2010, be exercised effective as of the date you submit your exercise
paperwork
and
pay the required exercise price and applicable withholding taxes. As
an alternative to exercising any Category 2 Option on or before February 5,
2010, you can elect to exercise all Category 2 Options together with your
Category 1 Options as of the Closing of the Merger, but only if the exercise
price is lower than the closing price of Merix common stock on February 8, 2010,
or on such later date that is one business day before the Closing
Date,
and
only if you make
this election on or before 5 p.m. PST on February 5, 2010. For
Category 2 Options that are in-the-money on the date of exercise, your payment
of the exercise price and any applicable withholding taxes will be made on a
“net cashless exercise basis.”
Please
note that if you choose to exercise Category 2 Options that have an exercise
price that is higher than the fair market value of Merix common stock on the
date of exercise, you will be paying more for Merix common stock than its fair
market value, such Category 2 Options will not be exercised on a “net cashless
exercise basis,” and you will be required to pay the exercise price and any tax
withholding amount in cash
.
Merix expects a delay of 1-2 business
days for the delivery of shares you are entitled to receive as a result of your
exercise of any Category 2 Option.
Your exercise of any Category 2 Option
on or before February 5, 2010 is
irrevocable
. Your
election to exercise, as of the Closing of the Merger, all of your Category 1
Options and Category 2 Options can be revoked in writing to Robert Grondahl on
or before 5 p.m. PST on February 5, 2010.
V.
General
Provisions
If you do not choose to exercise your
Merix stock options as described above, all of your unexercised Merix stock
options, whether vested or unvested, will be cancelled upon the Closing of the
Merger and you will not receive any consideration for your unexercised
options.
No particular tax treatment is
guaranteed by the transactions contemplated herein. We recommend you
consult with your own tax advisor for information specific to your personal
taxes. Before deciding whether to exercise any of your options,
please read carefully the proxy statement/prospectus that you have access to on
line (Merix intranet) or may be receiving by mail (if you currently own shares).
For a printed copy of the proxy statement/prospectus, please contact Krys Keene
at 503-716-3653 (or ext 3653).
All exercises of options, whether
vested or unvested, are subject to any blackout windows in effect from time to
time. Merix will notify you of such blackout windows.
All payments made with respect to your
options pursuant to this letter agreement will be subject to applicable federal,
state and local tax withholding requirements. Nothing contained in
this letter agreement constitutes an employment or service commitment by us or
Viasystems (or any of our respective affiliates), affects your status as an
employee at-will who is subject to termination without cause at any time, or
interferes in any way with our right or Viasystems’ right (or the right of any
of our respective affiliates) to change your compensation or other terms of
employment at any time.
By signing below you hereby acknowledge
and agree that (A) each of your Merix stock options, (i) if such options are
Category 1 Options, will become fully vested and exercisable as of the effective
time of the Merger, contingent upon the closing of the Merger; (ii) whether or
not they are Category 1 Options or Category 2 Options, will be cancelled upon
the Closing of the Merger, unless you exercise such options by completing and
returning the attached Exercise Notice and Option Exercise Agreement for those
options to Robert Grondahl by on or before 5 p.m. PST on February 5, 2010, and
(B) following such cancellation, you will have no further rights or payments due
to you on account of such cancellation. If you decide not to sign and
return this letter agreement and take the appropriate actions to exercise your
options (as applicable), your unexercised stock options will terminate without
consideration upon the Closing of the Merger.
By signing this letter agreement, you
(on behalf of yourself, your family, heirs, executors, successors, assigns, and
agents) now and forever, release, waive, discharge and hold harmless Merix,
Viasystems and their respective affiliates, successors, shareholders, employees,
directors, agents and any other related party from any claim, action or right of
any sort related to your options; provided, however, that the foregoing release
does not apply to your right to receive the payments in respect of your options
in accordance with this letter agreement and the Merger Agreement.
You expressly acknowledge that you
later may discover claims, demands, causes of action or facts in addition to or
different from those which you now know or believe to exist with respect to your
options and which, if known or suspected at the time of executing this letter
agreement, may have materially affected the terms of your
release. Nevertheless, you hereby waive any claims, demands, and
causes of action with respect to your options (except as expressly provided in
the preceding paragraph) that might arise as a result of such different or
additional claims, demands, causes of action or facts.
*************************
Applicable
only to
California
residents:
The
foregoing release is intended to be effective as a general release of the claims
set forth therein. Accordingly, you hereby expressly waive any rights and
benefits conferred by Section 1542 of the California Civil Code and any similar
provision of any other applicable state law as to such
claims. Section 1542 of the California Civil Code
provides:
“A
GENERAL RELEASE DOES NOT EXTEND TO A CLAIM WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.”
*************************
This
letter agreement, along with the 1994 Plan, the 2000 Plan and/or the 2006 Plan
(as applicable), your option award agreement (as modified by this letter
agreement) and the Merger Agreement constitute the entire arrangement with
respect to the subject matter hereof, and supersede all other prior letters or
understandings, both written and verbal, among the parties. This
letter agreement shall be governed by the laws of the State of
Oregon. The summaries of the various payment rights set forth in this
letter agreement are subject to the specific terms and provisions of the Merger
Agreement. In the event of a conflict between this letter agreement
and the Merger Agreement, the terms of the Merger Agreement shall
govern.
According to our records as of the date
of this letter, you are the holder of Merix stock options listed on the
attachment to the Exercise Notice and Option Exercise Agreement attached
hereto. Please notify us immediately if your records provide
otherwise.
|
|
1
Options
granted to Merix board of directors on August 7, 2009 will not be
exercisable.
|
If you
have any questions, please call Jeanne Nelson at 503-716-3689 or Robert Grondahl
at 503-716-3638.
Very truly yours,
/s/ Jeanne
Nelson
Jeanne
Nelson
Senior Director,
Human Resources
ACKNOWLEDGED
AND AGREED:
Employee
Signature: ________________________________
Date:
___________________________________
Important
Merger Information and Additional Information
This
document does not constitute an offer to sell or the solicitation of an offer to
buy any securities or a solicitation of any vote or approval. In connection with
the proposed transaction, Viasystems and Merix will file relevant materials with
the Securities and Exchange Commission (the
“SEC”). Viasystems has filed, and the SEC has declared effective, a
Registration Statement on Form S-4 that includes a proxy statement of Merix and
which also constitutes a prospectus of Viasystems. Merix will mail
the proxy statement/prospectus to its shareholders.
Investors are urged to read the
definitive proxy statement/prospectus regarding the proposed transaction because
it contains important information.
The definitive proxy
statement/prospectus and other documents that have or will be filed by
Viasystems and Merix with the SEC will be available free of charge at the SEC’s
website, www.sec.gov, or by directing a request when such a filing is made to
Merix Corporation, 15725 SW Greystone Court, Suite 200, Beaverton Oregon 97006,
Attention: Investor Relations or by directing a request when such a filing is
made to Viasystems Group, Inc., 101 South Hanley Road, Suite 400, St. Louis,
Missouri 63105, Attention: Investor Relations.
Participants in
Solicitation
Viasystems,
Merix, their respective directors and certain of their executive officers may be
considered participants in the solicitation of proxies in connection with the
proposed transaction. Information about the directors and executive
officers of Merix is set forth in Merix’s definitive proxy statement, which was
filed with the SEC on August 26, 2009. Information about the
directors and executive officers of Viasystems is set forth in the Form 10-K of
Viasystems, Inc., which was filed with the SEC on March 30,
2009. Investors may obtain additional information regarding the
interests of such participants by reading the definitive proxy
statement/prospectus Merix filed with the SEC on January 4, 2010.
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