-----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, AfMlevhxcwr+o9BtOSRTFDG1gFb1J6MHKzhvOdgdgepax9woMqCd0PhC7I9TCyON vCgcGSgphz0uk9K0BGL08Q== 0000932799-06-000334.txt : 20061101 0000932799-06-000334.hdr.sgml : 20061101 20061101084658 ACCESSION NUMBER: 0000932799-06-000334 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20061101 DATE AS OF CHANGE: 20061101 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ASM INTERNATIONAL N V CENTRAL INDEX KEY: 0000351483 STANDARD INDUSTRIAL CLASSIFICATION: SPECIAL INDUSTRY MACHINERY, NEC [3559] IRS NUMBER: 980101743 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-58375 FILM NUMBER: 061177209 BUSINESS ADDRESS: STREET 1: JAN VAN EYCKLAAN 10 STREET 2: 3723 BC BILTHOVEN CITY: THE NETHERLANDS STATE: P7 BUSINESS PHONE: 6022434221 MAIL ADDRESS: STREET 1: JAN VAN EYCKLAAN 10 STREET 2: 3723 BC BILTHOVEN CITY: NETHERLANDS STATE: AR ZIP: 85012 FORMER COMPANY: FORMER CONFORMED NAME: ADVANCED SEMICONDUCTOR MATERIALS INTERNATIONAL N V DATE OF NAME CHANGE: 19950530 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MELLON HBV ALTERNATIVE STRATEGIES LLC CENTRAL INDEX KEY: 0001218315 IRS NUMBER: 134050836 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 200 PARK AVE STREET 2: STE 3300 CITY: NEW YORK STATE: NY ZIP: 10166-3399 BUSINESS PHONE: 2128083941 MAIL ADDRESS: STREET 1: 200 PARK AVE STREET 2: STE 3300 CITY: NEW YORK STATE: NY ZIP: 10166-3399 SC 13D/A 1 asmi13da7.txt SC 13D AMENDMENT NO. 7 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 Amendment No. 7 -------- ASM International N.V. ------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value Euro 0.4 per share ------------------------------------------------------------------------------- (Title of Class of Securities) N07045102 ------------------------------------------------------------------------------- (CUSIP Number) Mellon HBV Alternative Strategies LLC 200 Park Avenue, 54th Floor New York, NY 10166-3399 (212) 922-8200 ------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 30, 2006 ------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. [ ] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). Page 1 of 5 CUSIP No. N07045102 - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only) Mellon HBV Alternative Strategies LLC I.R.S. No.: 13-4050836 - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ](b)[X] - ------------- ----------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 4,273,836 - -------------------------------------------------------------------------------- 8 SHARED VOTING POWER 0 - -------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 4,273,836 - -------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON 4,273,836 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see Instructions) [ ] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.0% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (see Instructions) IA - ------------------------------------------------------------------------------- Page 2 of 5 Amendment No. 7 to Schedule 13D relating to ASM International N.V. INTRODUCTION: Mellon HBV Alternative Strategies LLC (the "Reporting Person" or "MHBV"), is filing this Amendment No. 7 to Schedule 13D relating to ASM International N.V. (the "Issuer" or "ASMI") to disclose a letter sent to ASMI's management, attached hereto as EXHIBIT 99.1, (i) detailing its view of management's proposal relating to amendments to the Company's Articles of Association that fall short of the Issuer's commitment to bring its Articles of Association in line with Corporate Governance Standards set out in the Tabaksblat Code and (ii) reaffirming the Reporting Person's previously disclosed position supporting the upcoming vote on the non-binding motion for a split of the Issuer's front-end and back-end operations. Following discussions with MHBV, ASMI has agreed to put the motion on the agenda for their Extraordinary General Meeting scheduled for November 27, 2006. Although not soliciting proxies, the Reporting Person will seek shareholder support for its positions. ITEM 4. PURPOSE OF TRANSACTION The discussion under the heading Introduction above is incorporated herein by reference. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) As of October 30, 2006, the Reporting Person may be deemed to beneficially own on behalf of private affiliated investment funds and separately managed accounts over which it exercises discretionary authority 3,914,136 shares of the Issuer's Common Stock and options to purchase an additional 359,700 shares of the Issuer's Common Stock (collectively, the "Shares"), representing approximately 8.0% of the outstanding Common Stock (based on 53,489,824 shares outstanding as of October 10, 2006, as reported by the Issuer in its Proxy Statement dated October 18, 2006 for the Extraordinary General Meeting of November 27, 2006). (c) The table below sets forth transactions in the Issuer's Common Stock that the Reporting Person effected during the period since the Reporting Person's most recent filing on Schedule 13D, dated October 16, 2006, relating to the Issuer. Page 3 of 5 - ------------------------------------------------------------------------------------------------- TRADE DATE ACTION QUANTITY PRICE CURRENCY* - ------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------------- 10/17/06 SELL 5,000 14.53 EURO - ------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------------- 10/23/06 SELL 3,500 14.20 EURO - ------------------------------------------------------------------------------------------------- _____________________________ * As of the date hereof, the conversion rate is 1EUR = 1.2730 US Dollars. (SOURCE: WALL STREET JOURNAL)
Page 4 of 5 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: October 30, 2006 Mellon HBV Alternative Strategies LLC, a Delaware Limited Liability Company By: /s/ William F. Harley -------------------------------- William F. Harley III Chief Investment Officer Page 5 of 5 EX-99 2 asmexhibit99_1.txt EXHIBIT 99.1 PRESS RELEASE [GRAPHIC OMITTED] Mellon HBV Alternative Strategies 30th October 2006 By fax and registered mail ASM International N.V. Attn. Management Board and Supervisory Board Jan van Eycklaan 10 3723 BC BILTHOVEN The Netherlands Dear Sirs, On 19 October 2006, you published a press release and proxy materials for the extra-ordinary general meeting of shareholders of November 27 next. AMENDMENT ARTICLES OF ASSOCIATION We strongly oppose the amendment to the Articles of Association in the form proposed by you in the proxy materials. This proposal does not comply with your commitment stated during the AGM of 18 May 2006, to adapt the Articles in accordance with the Dutch Corporate Governance Code ("TABAKSBLAT CODE"). At that meeting, our Dutch legal counsel asked (translated): "MR. VAN DER KORST: Excuse me Mr. Chairman, two questions, to verify whether my understanding is correct. You state that `the amendment of the Articles of Association will entail that these will be made Tabaksblat Code-compliant' on the issues of dismissal, and for the avoidance of doubt: dismissal and appointment of members of the Supervisory Board and of the Management Board"? CHAIRMAN [Mr. Van den Hoek]: Yes, and members of the Supervisory Board yes. And the details we do not know yet, there are various ways, we want to discuss these with our advisers". The discussion and your commitment to make the Articles Tabaksblat Code-compliant resulted from the opposition by the shareholders' meeting against the present closed character of ASMI, and your apparent concern in this context that the shareholders' meeting might not grant you discharge. As you will be aware, the Tabaksblat Code states: "The general meeting of shareholders of a company not having statutory two tier status (structuurregime) may pass a resolution to cancel the binding nature of a nomination for the appointment of a member of the management board or of the supervisory board and/or a resolution to dismiss a member of the management board or of the supervisory board by AN ABSOLUTE MAJORITY OF THE VOTES CAST. It may be provided that this majority should represent a given proportion of the issued capital, WHICH PROPORTION MAY NOT EXCEED ONE-THIRD. If this proportion of the capital is not represented at the meeting, but an absolute majority of the votes cast is in favour of a resolution to cancel the binding nature of a nomination, or to dismiss a board member, a new meeting may be convened at which a resolution may be passed BY AN ABSOLUTE MAJORITY OF THE VOTES CAST, REGARDLESS OF THE PROPORTION OF THE CAPITAL REPRESENTED AT THE MEETING." (best practice provision IV.1.1). The explanatory notes of this Code contain the following text: "Regardless of the procedures in the Articles of Association, the rule applies that if an absolute majority of the votes cast supports the decision to cancel the binding nature of a nomination for the appointment or for the dismissal, but without the required representation of a proportion of the issued capital, THIS DECISION COULD HOWEVER BE TAKEN IN A SECOND MEETING WITH AN ABSOLUTE MAJORITY OF THE VOTES CAST, WITHOUT THE QUORUM REQUIREMENT." According to your proposed amendment, the shareholders' meeting could only initiate and effect appointments and dismiss members of either board with a majority representing MORE THAN 50% OF THE ISSUED CAPITAL. Moreover, according to this proposal you exclude the possibility of a second shareholders' meeting in case this majority requirement is not met, despite the fact that such second meeting is vested both in Dutch corporate law (section 2:120 ss. 3 Dutch Civil Code) and in the Tabaksblat Code. As a result, your proposal deviates from the Tabaksblat Code on two essential issues, i.e. a majority requirement of 50% of the issued shares instead of a majority of the votes cast, and leaving out the "FALL BACK" of a second meeting without a qualified majority or quorum requirement. You justify these deviations from the Tabaksblat Code, breaching your clear commitment of 18 May, by stating that 2/5 "It would not be in the interest of the Company and its stakeholders if shareholders representing a minority of the Company's shareholders should have the right to dismiss Supervisory and Managing Directors and [that you believe] that the revised procedure as proposed, in light of the market capitalization and other specific circumstances of the Company, provides for a fair balance of the interests of all stakeholders". This is a false statement. The only stakeholder that benefits from this deviation is the Del Prado family, i.e. Mr. Del Prado Senior and Mr. Del Prado Junior (both members of the Management Board) and the Del Prado family together holding approximately 23% of the shares. Given their position and their shareholding, the proposed amendment of the Articles of Association does not improve the influence of the shareholders' meeting regarding appointment and dismissal of board members, as is contemplated by the relevant principles and best practice provisions of the Tabaksblat Code. In our view, a company where shareholders do not have the possibility to appoint and dismiss board members in accordance with these principles and best practice provisions is not qualified to be the custodian of a single investment of (euro) 850,000,000 (i.e. your 54% investment in ASM PT). We therefore herewith request you to adapt the proposed amendment in order to make it compliant with the above quoted provisions of the Tabaksblat Code - as committed by you during the AGM -, duly within such time in order to effectuate such amendment during the EGM of 27 November 2006. We will gladly discuss this with you. If you however refuse to adapt the proposed amendment we will consider taking the appropriate (legal) measures, including the filing of a request with the Enterprise Chamber for an enquiry procedure. COMPANY POSITION REGARDING THE MOTION TO SPLIT In your press release it is stated that you "STRONGLY DISAGREE" with this motion and unanimously recommend that shareholders vote against this motion. You thereto list four reasons, of which items 1, 2 and 4 factually boil down to the same, i.e. the assumption that a combination of ASMI and ASM PT would provide for material synergetic effects for the benefit of ASMI. The contracts between ASMl and ASM PT are listed in note 30 of the annual report of ASM PT. These are: a. ASM International receives annually HK$ 1,500,000 (approximately (euro) 150,000) as consultancy fee; b. the purchase of an ASM International subsidiary by ASM PT for HK$ 466,000 (approximately (euro) 46,600); c. a management and production agreement providing management services for a quarterly fee of HK$ 375,000 (approximately (euro) 37,500); and 3/5 d. trading between ASM PT and ASM International (at arm's length) of in total HK$ 9,206,000 (approximately) (euro) 920,600). These transactions cannot cover "important manufacturing and design expertise". It is also hard to comprehend how services, as described under c., in the amount of (euro) 37,500 per quarter could be critical for you reaching sustainable profitability. Under 4 you state "accommodation of front-end and back-end operations is a competitive advantage". If this were the case, it is difficult to understand why the margins of ASMI's front-end business are so significantly below the margins of its peers, why the market does not allocate any value to the front-end business of ASMI and why so few technology focused investors are included in your shareholder base. After having spoken with a large number of semiconductor equipment analysts from most major investment banks and various specialists within this sector, the consistent feedback from them is that there are no advantages of combining a front-end and back-end business, neither at present nor in the foreseeable future. We therefore believe that your arguments are not genuine to the extent that they would be critical for ASM International to achieve sustainable profitability. They definitely do not justify a single investment in a public Hong Kong company worth (euro) 850,000,000. Your argument listed under 3. ("implement the disposal of ASM PT would distract management") is unfounded. If shareholders value can be unlocked, it is a poor argument not to allocate management time and professional advice to assist you with such a project. On the contrary, given the fact that your CEO is a member of the ASM PT board and given that ASMl apparently provides consultancy services to ASM PT, the disposal of ASM PT would unlock management time enabling the ASMl board to focus on its top priority. In your press release and explanatory notes you state that "consistent with the advice obtained from our investment bank" you have concluded that at present any material change in your business model could be seriously detrimental to achieving your goal of "restoring the profitability of your front-end operations". This statement does not make clear whether your advising bank subscribes to your reasons, listed above, and if so, to what extent. We therefore herewith request you to publicly disclose the key assumptions, considerations and conclusions of the advice of your advising bank timely prior to the EGM of 27 November. We also request you to ensure that your advisers are present at the EGM to further elaborate on their findings and to answer questions in this respect. 4/5 We look forward to receiving your reply to the above issues (revised amendment of the Articles, public disclosure of the findings of your advising bank and its presence during the EGM) ultimately on 3 November 2006 at noon (CET). Yours faithfully, /s/ Cor Timmermans Cor Timmermans Mellon HBV Alternative Strategies UK Limited 5/5 -----END PRIVACY-ENHANCED MESSAGE-----