-----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, SDXfiY1LrNMh9pezeoRF4n0F6rrb1lWATXFslWiZzufCaAV8KwXvXVsLtDy2xDbB pDaTh2tmN0kKl7L3Fh7i0w== 0000932799-07-000165.txt : 20070614 0000932799-07-000165.hdr.sgml : 20070614 20070614112807 ACCESSION NUMBER: 0000932799-07-000165 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20070614 DATE AS OF CHANGE: 20070614 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: 07919137 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: Fursa 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: 444 MERRICK ROAD STREET 2: 1ST FLOOR CITY: LYNBROOK STATE: NY ZIP: 11563 BUSINESS PHONE: (646) 205-6200 MAIL ADDRESS: STREET 1: 444 MERRICK ROAD STREET 2: 1ST FLOOR CITY: LYNBROOK STATE: NY ZIP: 11563 FORMER COMPANY: FORMER CONFORMED NAME: MELLON HBV ALTERNATIVE STRATEGIES LLC DATE OF NAME CHANGE: 20030211 SC 13D/A 1 asmi13da10.txt AMENDMENT #10 TO SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 Amendment No. 10 -------- ASM INTERNATIONAL N.V. ------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value Euro 0.4 per share ------------------------------------------------------------------------------- (Title of Class of Securities) N07045102 ------------------------------------------------------------------------------- (CUSIP Number) FURSA ALTERNATIVE STRATEGIES LLC 444 Merrick Road, 1st Floor Lynbrook, NY 11563 646-205-6200 ------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) June 14, 2007 ------------------------------------------------------------------------------- (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). CUSIP No. N07045102 - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only) Fursa 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 4,940,883 - -------------------------------------------------------------------------------- 8 SHARED VOTING POWER 0 - -------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 4,940,883 - -------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON 4,940,883 - ------------------------------------------------------------------------------- 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) 9.2% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (see Instructions) IA - ------------------------------------------------------------------------------- 2 INTRODUCTION: Fursa Alternative Strategies LLC (the "Reporting Person") is filing this Amendment No. 10 to Schedule 13D relating to ASM International N.V. (the "Issuer" or "ASMI") to disclose a letter it has sent to ASMI's Management Board and Supervisory Board, attached hereto as Exhibit 99.1. This letter, among other things, requests clarification as to the process by which the Issuer selected its new CEO, Mr. Chuck del Prado, and the extent to which the Issuer considered the value to shareholders of appointing an outside CEO to restore the Issuer's front-end business. In addition, the letter expresses the Reporting Person's continued dissatisfaction with the Issuer's strategic direction and reiterates the Reporting Person's desire to discuss potential alternatives through which the Issuer can enhance shareholder value. 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 June 11, 2007, 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 4,940,883 shares of the Issuer's Common Stock, representing approximately 9.2% of the outstanding Common Stock (based on 53,742,268 shares outstanding as of March 31, 2007, as reported by the Issuer in its Form 6-K filed May 3, 2007 and accounting for the Issuer's repurchase of 178,706 shares of its Common Stock, as reported in its Form 6-K filed on May 30, 2007). (c) The table below sets forth transactions in the Issuer's Common Stock that the Reporting Person effected during the past sixty (60) days relating to the Issuer. 3 - ----------------------------------------------------- TRADE DATE ACTION QUANTITY PRICE CURRENCY* - ----------------------------------------------------- 4/25/07 Buy 72,778 17.88 EUR - ----------------------------------------------------- 4/25/07 Buy 76,769 24.21 USD - ----------------------------------------------------- 4/25/07 Buy 31,330 17.69 EUR - ----------------------------------------------------- 4/26/07 Buy 40,000 24.46 USD - ----------------------------------------------------- 4/26/07 Buy 58,222 17.88 EUR - ----------------------------------------------------- 4/27/07 Buy 42,222 17.80 EUR - ----------------------------------------------------- 4/27/07 Buy 33,778 17.80 EUR - ----------------------------------------------------- 4/27/07 Buy 25,000 24.25 USD - ----------------------------------------------------- 5/10/07 Buy 33,778 17.82 EUR - ----------------------------------------------------- 5/10/07 Buy 58,222 17.90 EUR - ----------------------------------------------------- ____________________________ * As of June 11, 2007, the conversion rate is 1EUR = 1.3311 US Dollars (Source: Wall Street Journal) ITEM 5. MATERIAL TO BE FILED AS EXHIBITS. Exhibit 99.1 Letter from the Reporting Person to the Issuer 4 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: June 14, 2007 Fursa Alternative Strategies LLC, a Delaware Limited Liability Company By: /s/ William F. Harley, III ----------------------------------- William F. Harley, III Chief Investment Officer EX-99 2 asmexhibit99_1.txt EXHIBIT 99.1 BY FAX AND BY MAIL The Management Board and Supervisory Board of ASM International N.V. Jan van Eycklaan 10 3723 BC BILTHOVEN The Netherlands 14 June 2007, London Dear Sirs, As a shareholder holding approximately 9.2% of common shares in the capital of ASM International N.V. we bring the following to your attention: APPOINTMENT OF CEO On the day of the AGM of ASMI you announced that Mr. Del Prado Jr. has been appointed Chief Executive Officer. Obviously, such appointment is an important decision within the corporate governance structure of the Company, especially given the fact that the chairman has the right to cast as many votes as there are other board members in office (article 17.3 Articles of Association (AoA)). This gives rise to the following questions: a. Why was the appointment of Mr. Del Prado Jr. not been included on the agenda of the AGM, despite the fact that your boards apparently intended to discuss this appointment during this meeting? We refer to article 10.5 of the Supervisory Board Rules which states that each substantial change in the corporate governance structure will be submitted to the General Meeting of Shareholders for discussion under a separate agenda item. b. Have the family ties between the incorporator and present CEO Mr. Del Prado Sr. and Mr. Del Prado Jr. been taken into consideration and if so, in what manner? In particular, have you considered that appointment of a qualified external candidate would have been, in the eyes of many shareholders, an important contribution to value restoration of the front-end business? We refer to the discussions during the AGM of 18 May 2006 regarding the appointment of Mr. Del Prado Jr. as member of the Management Board, wherein several shareholders criticized his candidacy and the lack of clarity regarding the nomination procedure. For the avoidance of doubt: Mr. Del Prado Sr. was quoted in Financieele Dagblad of 23 May last as being "irritated" that Fursa was not represented at the AGM. In the first place, this assumption is incorrect; Fursa has cast its votes on the limited number of agenda items. In the second place, there was no announcement by ASMI that appointment of the CEO would be discussed let alone voted upon. CORPORATE GOVERNANCE The appointment of Mr. Del Prado Jr. confirms our concern, raised several times before, that the present corporate governance structure of ASMI leads to minimization of influence of outside shareholders. We refer for instance to our letter of 13 April 2006 and the letters of our Dutch legal counsel of 23 November and 28 December 2006. We reiterate that the present appointment and dismissal process vested in ASMI's Articles of Association still does not reflect the principles and best practices of the Corporate Governance Code, despite the clear and unambiguous commitment by the ASMI Boards to procure such compliance. The present appointment and dismissal procedure basically means that board members can only be appointed and dismissed by a shareholders' vote representing more than half of the issued capital or, alternatively, on the basis of a nomination by the Supervisory Board. This as a practical matter means that the newly appointed CEO cannot be dismissed by shareholders without the supporting vote of his father. We therefore strongly repeat our previous requests to propose amendments to the Articles of Association in order to achieve compliance with principle IV.1.1 of the Corporate Governance Code and the best practice provisions relating thereto. REPORTING In its Q4 and 2006 annual results, ASMI presented greater detail on the performance of the front-end business, helping the market to appreciate the achievements made in this business, including a break-down in earnings from operations relating to established products, products in development and overhead. This level of detail was, however, dropped in the Q1 2007 presentation. This stepping back from your commitment of 24 November 2006 is counterproductive in view of the intended value restoration of the front-end business, and we strongly urge you to reassume this level of detail. 2 VOTES ON MOTION AT THE 27 NOVEMBER EGM During the EGM of 27 November 2006, on our behalf doubts were expressed whether the total number of votes in favour of our motion, as counted by the civil law notaries, was correct. As a result of the correspondence between our respective counsels of 28 December 2006 and 16 January 2007, our Dutch counsel has forwarded the information available to us by mail of 17 January 2007 to the civil law notary. Eventually, a few days before the AGM she informed our Dutch counsel that she was not able to determine the votes cast during that EGM or the origin of such votes. The civil law notary announced she would confirm this position in writing, which however has not been the case. In our view this is unacceptable. During the EGM the civil law notaries had to correct themselves in the sense that they admitted that approximately 4.5 million proxy votes in favour of our motion were initially not included. Months later, the civil law notary confirmed orally it would not be possible to determine the number of votes and their origin, which raises serious doubts regarding the voting system. We look forward to receiving a clear answer to our question on the number of votes cast in favour of our motion. CURRENT STRATEGY During the AGM, you stated you continue to support and execute the current strategy of combining front-end and back-end operations. In November 2006 you stated you "will continue to evaluate developments in the semi-conductor industry and the strategy of ASMI and will give all options, without exception, appropriate consideration" (press release of 24 November 2006). The current strategy appears to be failing despite improvements in top line and operational margins of the front-end business: a. The valuation of the market capitalisation of the front-end business (ASMI's current market capitalisation before dilution) still appears effectively negative in as much as it is surpassed in value by the market capitalisation of its subsidiary ASM Pacific Technology (ASM PT). The current ASMI share price performance is driven, we believe, by the performance of the ASM PT shares. Before the EGM of 27 November 2006, the net market value of the front-end business was slightly positive. However, since then it has drifted back to currently minus (euro) 1.50 per share; b. Leading semi-conductor equipment analysts and industrial specialists continue to believe that the combination of the ASM PT participation and the front-end business does not create added value. The market perception apparently also is that ASMI's front-end operations lack sufficient scale to realize margins at peer group level; 3 c. ASM PT has an excellent manufacturing platform - in a diversified market - and would appear otherwise well positioned to take up the role of consolidator in its niche. However, as a result of ASMI's current control of ASM PT, ASM PT is perceived as being unable to take up this role. FUTURE STRATEGY Immediately prior to the EGM of November 2006, you committed yourself to continuously evaluate ASMI's position and to give all options "without exception" appropriate consideration, as well as your preparedness to create independence between front-end and back-end operations. Your commitment on this important point appeared to make a decisive difference for that shareholders' meeting to not adopt the motion to split at that time. Our questions therefore are: a. Does the present position of ASMI (including the ratio between ASM PT's market cap and ASMI's market cap) give rise for you to reconsider the current corporate structure of ASMI?; b. If this is presently not the case, have you determined milestones (time wise, as well as operational and valuation parameters) for such assessment? If so, what are these milestones? If not, why not? c. Which actions are you considering to restore value to the front-end business? What are your alternative plans if the market continues to place an irregular valuation to the front-end business? d. The Supervisory Board chose to support a medium-to-high risk strategy evidenced by (i.) supporting a family member as a new CEO in a public company, (ii.) Supporting deviations from corporate governance code, (iii.) supporting a corporate structure not appreciated by the market and questioned by the industry and (iv.) supporting the continuation of subscale business units in the front-end business portfolio. Have further assessments been made by the Supervisory Board, including any recent risk analysis of margin recovery process of the front-end business, possible consolidation plays in both the front-end and back-end sectors and assessment of ASMI's positioning in a possible sector downturn? It is our preference to discuss the above questions and comments with representatives of your Supervisory Board within a short period of time. We are anxious to understand why the Supervisory Board chooses to support the above described corporate structure and strategy, as well as the fact that it is the responsibility of the Supervisory Board to mediate in discussions as these between material shareholders and the Board (see the ruling of the Enterprise Chamber re Stork of 17 January last). We look forward to your response within two weeks from today. Yours sincerely, Fursa Alternative Strategies LLC By: /s/ William F. Harley, III ---------------------------- William F. Harley, III President & Chief Investment Officer 4 -----END PRIVACY-ENHANCED MESSAGE-----