-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Oz9N6BhN1UP3zJoqR4IKyeHw77hLhtZMTxttEXFe1IZi4cVSOqKv1HD3G21pPDV1 sTo+Bpgnbs73+LRjM3pyBw== 0001017062-98-002216.txt : 19981113 0001017062-98-002216.hdr.sgml : 19981113 ACCESSION NUMBER: 0001017062-98-002216 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19981110 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19981112 FILER: COMPANY DATA: COMPANY CONFORMED NAME: UNIT INSTRUMENTS INC CENTRAL INDEX KEY: 0000350067 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL INSTRUMENTS FOR MEASUREMENT, DISPLAY, AND CONTROL [3823] IRS NUMBER: 250941759 STATE OF INCORPORATION: CA FISCAL YEAR END: 0531 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-10095 FILM NUMBER: 98744459 BUSINESS ADDRESS: STREET 1: 22600 SAVI RANCH PKWY CITY: YORBA LINDA STATE: CA ZIP: 92887 BUSINESS PHONE: 8148385700 MAIL ADDRESS: STREET 1: 22600 SAVI RANCH PARKWAY CITY: YORBA LINDA STATE: CA ZIP: 92887 FORMER COMPANY: FORMER CONFORMED NAME: AUTOCLAVE ENGINEERS INC DATE OF NAME CHANGE: 19920703 8-K 1 FORM 8-K FOR EVENT DATED 11/10/1998 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) November 10, 1998 ----------------- UNIT INSTRUMENTS, INC. (Exact name of Registrant as specified in its charter) California 0-10095 33-0077406 ----------------------------------------------------------------------------- (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No) 22600 Savi Ranch Parkway, Yorba Linda, California 92887 ----------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (714) 921-2640 -------------- Not Applicable ------------------------------------------------------------- (Former name or former address, if changed since last report) Page 1 of 14 Exhibit Index on Page 4 Item 5. Other Events On November 10, 1998, United States Filter Corporation, a Delaware corporation ("U.S. Filter"), Kinetics Acquisition Corp., a California corporation and wholly owned subsidiary of U.S. Filter ("Subcorp"), and Unit Instruments, Inc., a California corporation ("Unit") executed a Second Amendment to Agreement and Plan of Merger, a copy of which is incorporated by reference as Exhibit 3.1 hereto (the "Second Amendment"), which revises the calculation of the merger consideration pursuant to the Agreement and Plan of Merger dated July 2, 1998 among Unit, U.S. Filter and Subcorp (as amended, the "Merger Agreement"). Pursuant to the Merger Agreement, the "Exchange Ratio" is equal to the "Merger Consideration" (as hereinafter defined) divided by the average of the closing prices per share for shares of U.S. Filter Common Stock as reported on the New York Stock Exchange Composite Tape on each of the twenty (20) consecutive trading days ending on the fifth (5th) trading day preceding the closing date of the merger (the "U.S. Filter Share Value"). As revised by the Second Amendment, the "Merger Consideration" shall be determined as follows: (i) if the U.S. Filter Share Value is greater than or equal to $22.00, then the Merger Consideration shall equal $10.00; (ii) if the U.S. Filter Share Value is less than $22.00 and greater than $12.00, then the Merger Consideration shall equal $8.00 plus the dollar amount equal to a fraction, the numerator of which shall be the U.S. Filter Share Value minus $12.00 and the denominator of which shall be five (5); and (iii) if the U.S. Filter Share Value is less than or equal to $12.00, then the Merger Consideration shall equal $8.00. U.S. Filter has the right to terminate the Merger Agreement if the average price of U.S. Filter common stock is less than $11.00. In addition, either U.S. Filter or Unit may terminate the Merger Agreement if the merger is not consummated by January 29, 1999. Item 7. Exhibits Exhibit No. Description 3.1 Second Amendment to Agreement and Plan of Merger, dated November 10, 1998 99.1 Press Release Dated November 10, 1998 2 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. UNIT INSTRUMENTS, INC. Date: November 10, 1998 By: /s/ GARY N. PATTEN ----------------------- Gary N. Patten Chief Financial Officer 3 EXHIBIT INDEX Sequential Exhibit No. Description Page No. - -------------- ----------- -------- 3.1 Second Amendment to Agreement and Plan of Merger dated November 10, 1998 5 99.1 Press Release dated November 10, 1998 __ 4 EX-3.1 2 2ND AMENDMENT TO AGREEMENT AND PLAN OF MERGER SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER This Second Amendment to Agreement and Plan of Merger (this "Amendment") is made and entered into as of November 10, 1998, by and among United States Filter Corporation, a Delaware corporation ("Parent"), Kinetics Acquisition Corp., a California corporation and a wholly owned subsidiary of Parent ("Subcorp"), and Unit Instruments, Inc., a California corporation ("Unit"). PRELIMINARY STATEMENTS A. The parties have entered into an Agreement and Plan of Merger dated as of July 2, 1998, as amended by a First Amendment to Agreement and Plan of Merger dated August 5, 1998 (as so amended, the "Agreement"). B. The parties have decided to further amend the Agreement by amending, restating and supplementing certain provisions of the Agreement as set forth in this Amendment. AGREEMENT Now, therefore, in consideration of these premises and the mutual and dependent promises hereinafter set forth, the parties hereto agree as follows: Section 1. Section 2.2(a) of the Agreement is amended and restated in --------- its entirety as follows: "(a) The "Exchange Ratio" shall equal the Merger Consideration divided by the Parent Share Value. The "Merger Consideration" shall be determined as follows: (i) if the Parent Share Value is greater than or equal to $22.00, then the Merger Consideration shall equal $10.00; (ii) if the Parent Share Value is less than $22.00 and greater than $12.00, then the Merger Consideration shall equal $8.00 plus the dollar amount equal to a fraction, the numerator of which shall be the Parent Share Value minus $12.00 and the denominator of which shall be five (5); and (iii) if the Parent Share Value is less than or equal to $12.00, then the Merger Consideration shall equal $8.00. The "Parent Share Value" shall be the average of the closing price per share for shares of Parent Common Stock as reported on the New York Stock Exchange ("NYSE") Composite Tape ("NYSE Composite Tape") on each of the twenty (20) consecutive trading days ending on the fifth (5th) trading day preceding the Closing Date (the "Average Share Price"). No certificates for fractional Shares of Parent Common Stock shall be issued as a result of the conversion provided for in Section 2.1(b)." Section 2. Section 7.1(c) of the Agreement is amended and restated in --------- its entirety as follows: "(c) by either Parent or Unit if the Merger shall not have been consummated before January 29, 1999, provided, however, that the right to terminate this Agreement under this Section 7.1(c) shall not be available to any party whose failure or whose affiliate's failure to perform any material covenant or obligation under this Agreement has been the cause of or resulted in the failure of the Merger to occur on or before such date." Section 3. Section 7.1(i) of the Agreement is amended and restated in --------- its entirety as follows: "(i) by Parent, if the Average Share Price is less than $11.00." Section 4. In order to induce Subcorp and Parent to enter into this --------- Amendment, Unit hereby represents and warrants to Parent and Subcorp as follows: 5 (a) Unit has received the oral advice of Needham & Company, its financial advisors, to the effect that, as of the date of this Amendment, the Exchange Ratio is fair to the Unit Shareholders from a financial point of view. Such oral advice has not been withdrawn or revoked or modified in any material respect and is to be confirmed in a written fairness opinion of Needham & Company, which opinion will be dated as of the date of this Amendment. Unit will promptly provide copies of such opinion to Parent. (b) The Board of Directors of Unit has authorized this Amendment and, at a meeting duly called and held, has by unanimous vote of all of Unit's directors (i) determined that the Agreement, as amended by this Amendment, and the transactions contemplated thereby and hereby, including the Merger, taken together, are fair to and in the best interests of the Unit Shareholders, and (ii) resolved to recommend that the Unit Shareholders approve the Agreement, as amended by this Amendment, and the transactions contemplated therein and herein, including the Merger (which recommendation shall be deemed part of the Unit Board Recommendation). Section 5. In addition to the conditions set forth in Section 6.3 of --------- the Agreement, the obligations of Parent and Subcorp to consummate the Merger and the other transactions contemplated by the Agreement, as amended by this Amendment, shall be subject to the conditions that (a) the representations and warranties of Unit set forth in this Amendment shall be true and correct in all material respects on and as of the Closing Date and (b) a Unit Affiliate Letter (as defined below) shall have been delivered to Parent by each Unit Affiliate (as defined below) who is also an officer of Unit, duly executed by such Unit Affiliate, at least twenty (20) days prior to the Closing Date. Section 6. Preliminary Statement "E", Section 5.1(d) and Section --------- 5.3(f) are hereby deleted in their entirety. Section 7 -- Affiliates of Unit. Unit shall use all reasonable ------------------------------- efforts to cause such officers and directors of Unit as may be requested by Parent and, in any event, each person who may be at the Effective Time or was on the date hereof an "affiliate" of Unit for purposes of Rule 145 under the Securities Act (each a "Unit Affiliate"), to execute and deliver to Parent no less than 30 days prior to the date of the Unit Shareholders Meeting, the written undertakings in the form attached hereto as Exhibit A (the "Unit Affiliate Letter"). Concurrently with the delivery of this Amendment, Unit, after consultation with its outside counsel, shall provide Parent with a letter (reasonably satisfactory to outside counsel to Parent) specifying all of the persons or entities who, in Unit's opinion, may be deemed to be "affiliates" of Unit under the preceding sentence. Section 8 -- Miscellaneous. -------------------------- (a) Effect of Amendment. The provisions of this Amendment are ------------------- hereby incorporated into and made part of the Agreement. Except as amended by this Amendment, all of the provisions of the Agreement shall continue in full force and effect. (b) Definitions. Unless otherwise defined in this Amendment, ----------- capitalized terms have the meanings given in the Agreement. (c) Entire Agreement. The Agreement (including the documents ---------------- and the instruments referred to therein), the First Amendment to Agreement and Plan of Merger dated August 5, 1998 among Parent, Subcorp and Unit, the Confidentiality Agreement, and this Amendment constitute the entire agreement among the parties and supersede all prior agreements, understandings and representations by or among the parties, written and oral, with respect to the subject matter hereof and thereof. 6 (d) Counterparts. This Amendment may be executed in ------------ counterparts, which shall constitute one and the same instrument. The parties may execute more than one copy of this Amendment, each of which shall constitute an original. [Signature Page Follows] 7 IN WITNESS WHEREOF, Parent, Subcorp and Unit have signed this Amendment as of the date first written above. "PARENT" UNITED STATES FILTER CORPORATION, a Delaware corporation By: ------------------------------ Name: -------------------- Title: ------------------------ "SUBCORP" KINETICS ACQUISITION CORP., a California corporation By: ------------------------------ Name: -------------------- Title: ------------------------ "UNIT" UNIT INSTRUMENTS, INC., a California corporation By: ------------------------------ Name: -------------------- Title: ------------------------ 8 EXHIBIT A [Form of Unit Affiliate Letter] November ____, 1998 Ladies and Gentlemen: I have been advised that as of the date hereof I may be deemed an "affiliate" of Unit Instruments, Inc., a California corporation (the "Company"), as that term is defined for purposes of paragraphs (c) and (d) of Rule 145 of the Rules and Regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") under the U.S. Securities Act of 1933 (the "Act"). Pursuant to the terms of the Agreement and Plan of Merger, dated as of July 2, 1998, as amended as of August 5, 1998 and November 10, 1998 (as so amended, the "Agreement"), among United States Filter Corporation, a Delaware corporation ("Parent"), Kinetics Acquisition Corp., a California corporation ("Subcorp"), and the Company providing for the Merger of Subcorp with and into the Company (the "Merger"), and as a result of the Merger, I may receive shares of common stock of Parent, par value $.01 per share (the "Parent Common Stock"), in exchange for the shares of common stock of the Company, par value $.15 per share (the "Company Common Stock") owned by me at the Closing of the Merger as determined pursuant to the Agreement. As used herein the term "Parent Common Stock" means and includes those shares of Parent Common Stock issued to me as a result of the Merger. I represent, warrant and covenant to Parent and Subcorp that in such event: A. I shall not make any sale, transfer or other disposition of the Parent Common Stock in violation of the Act or the Rules and Regulations. In this connection, I understand that the issuance of the Parent Common Stock to me has been or will be registered under the Act, but that such registration would not cover resales by affiliates. Accordingly, the Parent Common Stock must be held by me indefinitely unless (a) the Parent Common Stock has been registered under the Act for sale by me, (b) a sale of the Parent Common Stock is made in conformity with the volume and other applicable limitations of paragraph (d) of Rule 145, or (c) another exemption from registration is available. B. I understand that neither Parent nor Subcorp is under any obligation to register the sale or other disposition of the Parent Common Stock by me or on my behalf or to take any other action to qualify for an exemption from registration. C. I have carefully read this letter and the Agreement and have discussed their requirements and other applicable limitations upon my ability to sell, transfer or otherwise dispose of the Parent Common Stock, to the extent I felt necessary, with my counsel or counsel for the Company. D. I understand that stop transfer instructions will be given to Parent's transfer agents with respect to my Parent Common Stock and that there will be placed on the certificates for my Parent Common Stock a legend stating in substance: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED IN A TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, APPLIES AND MAY ONLY BE SOLD OR OTHERWISE TRANSFERRED IN COMPLIANCE WITH THE REQUIREMENTS OF RULE 145 OR PURSUANT TO A REGISTRATION STATEMENT UNDER THAT ACT OR AN EXEMPTION FROM SUCH REGISTRATION." E. I also understand that unless the transfer by me of my Parent Common Stock has been registered under the Act or is a sale made in conformity with the provisions of Rule 145, Parent reserves the right to put a legend on the certificates issued to my transferee stating in substance: 9 "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 AND WERE ACQUIRED FROM A PERSON WHO RECEIVED SUCH SHARES IN A TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE U.S. SECURITIES ACT OF 1933 APPLIES. THE SHARES HAVE BEEN ACQUIRED BY THE HOLDER NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION OF SUCH SHARES, AND SUCH SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT OF 1933." Very truly yours, --------------------------------- Page 10 EX-99.1 3 PRESS RELEASE DATED 11/10/1998 Exhibit 99.1 Contact: Gary N. Patten Chief Financial Officer 714/921-2640 Roger S. Pondel Pondel Parsons & Wilkinson 310/207-9300 Unit Instruments Announces Revised Merger Terms YORBA LINDA, CA - November 10, 1998 - Unit Instruments, Inc. (Nasdaq: UNII) announced today that it has agreed to revised merger consideration terms with United States Filter Corporation (NYSE: USF). Under the revised terms, as specified in a Second Amendment to Agreement and Plan of Merger dated as of November 10, 1998, the ratio at which shares of Unit common stock will be exchanged into shares of U.S. Filter common stock will be calculated by dividing the revised merger consideration by the average price of U.S. Filter common stock over a 20 trading day period ending on the fifth trading day preceding the closing. The exchange ratio will be $10.00 divided by the average price of U.S. Filter common stock if the average U.S. Filter share price is equal to or greater than $22.00. If the average U.S. Filter share price is equal to or less than $12.00, then the exchange ratio shall be determined by dividing $8.00 by the average U.S. Filter share price. If the average U.S. Filter share price is greater than $12.00 but less than $22.00, then the exchange ratio will be determined by dividing an amount ranging between $8.00 and $10.00 (such amount to be determined in accordance with a formula set forth in the Second Amendment) by the average U.S. Filter share price. U.S. Filter has the right to terminate the Merger Agreement if the average U.S. Filter share price is below $11.00. The full text of the Second Amendment has been filed today with the Securities and Exchange Commission as an exhibit to a current report of Unit on Form 8-K, and may be viewed on the SEC's web site at www.sec.gov. A copy of the Second Amendment may also be obtained by contacting Gary N. Patten, corporate secretary of Unit Instruments at 714/921-2640. This news release contains forward-looking statements that involve risks and uncertainties that could cause actual results to differ materially from those projected. Such risks and uncertainties include, but are not limited to, the price of U.S. Filter stock during the twenty (20) day average pricing period, the failure of one or more conditions to consummate the merger, business activity levels in both the domestic and international semiconductor equipment markets, the magnitude and duration of the current industry downturn, the company's dependence on a few large customers, performance and industry acceptance of the company's products, specifically MultiFlo(TM) and Safe Delivery Source (SDS(TM)) MFCs, product pricing pressures, performance and profitability under fixed price contracts, expenses for extended product warranty, adequacy of cost reduction programs, the successful commercialization of the Z-Bloc(TM) Modular Gas System, development of a viable industrial sales base, failure to remediate Year 2000 issues, and other challenges from the company's competition. Certain of these and other risks are detailed from time to time in Unit Instruments' filings with the Securities and Exchange 11 Commission, including the Annual Report on Form 10-K for the fiscal year ended May 31, 1998, Current Report on Form 8-K dated July 2, 1998 and Quarterly Report on Form 10-Q dated August 29, 1998. In light of the significant risks and uncertainties inherent in the forward-looking information included herein, there can be no assurance that the results contemplated by such statement will be achieved. The company assumes no obligation to update the information in this release. Unit Instruments, Inc. is a leading manufacturer of mass flow controllers and gas delivery systems for the semiconductor and industrial markets. The company maintains support and service centers throughout North America, Europe and the Pacific Rim. Unit Instruments is traded on the Nasdaq National Market under the symbol UNII. Unit's web site is located at http://www.unit.com. 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