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)
February 23, 2009
(Exact
name of registrant as specified in its charter)
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Delaware
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0-24765
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33-0732700
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(State
or other jurisdiction of incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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750
University Avenue
Los
Gatos, CA 95032
(Address
of principal executive offices, including zip code)
(408)
399-3500
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (
see
General Instruction
A.2.):
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¨
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Written communications pursuant
to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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TABLE OF
CONTENTS
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ENTRY
INTO A MATERIAL DEFINITIVE
AGREEMENT
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Merger
Agreement
On
February 23, 2009, hi/fn, inc. (“
Hifn
”)
entered into an Agreement and Plan of Merger (the “
Merger
Agreement
”) with Exar Corporation (“
Exar
”) and
Hybrid Acquisition Corp., a wholly-owned subsidiary of Exar (“
Acquisition
Sub
”). Pursuant to the Merger Agreement, and upon the terms and subject
to the conditions thereof, Acquisition Sub will commence an offer for all of the
outstanding shares of Hifn common stock (the “
Hifn
Shares
”) at a purchase price of either (i) $4.00 per share, net to the
seller in cash, without interest and less any applicable withholding taxes or
(ii) 0.3529 shares of Exar common stock and $1.60 per share, net to the seller
in cash, without interest and less any applicable withholding taxes (the “
Offer
”).
As conditions to consummating the Offer, Hifn stockholders must have validly
tendered (and not withdrawn) shares constituting at least a majority of the Hifn
shares (taking into account the potential exercise of vested stock options and
the issuance of shares under Hifn’s Employee Stock Purchase Plan) (the “
Minimum
Condition
”)
and the other conditions set forth in Exhibit A of the
Merger Agreement must have been satisfied,
including the effectiveness of
the Registration Statement on Form S-4 registering the shares of Exar common
stock issuable pursuant to the Offer and Merger (as defined below). Acquisition
Sub may extend the Offer for successive periods of up to 20 business days each
in order to achieve the Minimum Condition
and the
other conditions set forth in Exhibit A of the Merger
Agreement
. Hifn also granted Acquisition Sub an option to
purchase additional Hifn Shares to enable Acquisition Sub to achieve ownership
of 90% of the outstanding Hifn Shares
, which
is exercisable by Acquisition Sub after it purchases shares in the
Offer.
As soon
as practicable following the completion of the Offer, Acquisition Sub will merge
with and into Hifn (the “
Merger
”
and such time as the Merger occurs is the “
Effective
Time
”). Following the consummation of the Merger, Hifn will be a
wholly-owned subsidiary of Exar. At the Effective Time, each Hifn Share that is
outstanding and that has not been accepted for purchase pursuant to the terms of
the Offer will be converted into the right to receive 0.3529 shares of Exar
common stock and $1.60 per share, net to the seller in cash, without interest
and less any applicable withholding taxes (other than Hifn Shares that are held
by (a) Acquisition Sub, Exar, any Exar subsidiary, or Hifn, which will be
canceled without consideration, and (b) stockholders, if any, who properly
exercise their appraisal rights under the General Corporation Law of the State
of Delaware). The consummation of the Merger is also subject to customary
closing conditions. If Acquisition Sub achieves ownership of 90% of the Hifn
Shares through the Offer or the exercise of the option described above, it may
effect the Merger as a short-form merger without additional approval of the
Merger by the Hifn stockholders. Otherwise, Hifn will be required to hold a
special meeting of stockholders to obtain stockholder approval of the Merger and
the Merger
Agreement.
Hifn has
made various representations and warranties and agreed to specified covenants in
the Merger Agreement, including covenants relating to the conduct of Hifn’s
business between the date of the Merger Agreement and the closing of the Merger
and restrictions on solicitation of proposals with respect to alternative
transactions.
The
Merger Agreement contains certain termination rights of Exar and Hifn and
provides that, upon the termination of the Merger Agreement under specified
circumstances, Hifn will be required to pay Exar a termination fee of $2.2
million or to reimburse Exar for transaction-related expenses of up to
$750,000.
The
Merger Agreement, which is filed as Exhibit 2.1 to this report, has been
included to provide investors and security holders with information regarding
its terms. The Merger Agreement contains representations and warranties the
parties thereto made to and solely for the benefit of each other. The assertions
embodied in those representations and warranties are qualified by information in
confidential disclosure schedules that the parties have exchanged in connection
with signing the Merger Agreement. Accordingly, investors and security holders
should not rely on the representations and warranties as characterizations of
the actual state of facts, since they were only made as of the date of the
Merger Agreement and are modified in important part by the underlying disclosure
schedules. Moreover, information concerning the subject matter of the
representations and warranties may change after the date of the Merger
Agreement, which subsequent information may or may not be fully reflected in
Hifn’s public disclosures.
Tender
and Voting Agreement
In order
to induce Exar and Acquisition Sub to enter into the Merger Agreement, all
members of the board of directors and certain executive officers of Hifn (in
their capacities as stockholders of Hifn) entered into a Tender and Voting
Agreement (the “
Tender
Agreement
”) with Exar and Acquisition Sub concurrently with the execution
and delivery of the Merger Agreement. Subject to the terms and conditions of the
Tender Agreement, these individuals agreed to tender in the Offer the Hifn
Shares beneficially owned by them and to vote such shares in favor of adoption
of the Merger Agreement at any special stockholders’ meeting called for that
purpose (if necessary).
The
Merger Agreement and the Tender Agreement are attached hereto as
Exhibits 2.1 and 99.1, respectively, and are incorporated herein by
reference. The foregoing descriptions of the Merger Agreement and the Tender
Agreements do not purport to be complete and are qualified in their entirety by
reference to the full text of such agreements.
The Offer
has not yet commenced. The solicitation and the offer to buy shares of Hifn
common stock will be made only pursuant to an offer to purchase, prospectus and
related materials that Exar intends to file with the SEC on Schedule TO and a
Registration Statement on Form S-4. Hifn also intends to file a
solicitation/recommendation statement on Schedule 14D-9 with respect to the
Offer. Hifn stockholders and other investors should read these materials
carefully because they contain important information, including the terms and
conditions of the Offer. Hifn stockholders and other investors will be able to
obtain copies of these materials without charge from the SEC through the SEC’s
website at www.sec.gov. Stockholders and other investors are urged to read
carefully those materials prior to making any decisions with respect to the
Offer.
On
February 23, 2009, Hifn and Exar issued a joint press release relating to the
Merger Agreement. A copy of the press release is attached hereto as
Exhibit 99.2.
Forward-Looking
Statements
This
report contains forward-looking statements that involve risk and uncertainty.
All statements other than statements of historical fact are statements that
could be deemed forward-looking statements, including: statements regarding the
expected completion and effects of the Offer and the Merger, statements
regarding the ability to complete the transaction considering the various
closing conditions; any statements of expectation or belief; and any statements
of assumptions underlying any of the foregoing. Statements regarding future
events are based on current expectations and are necessarily subject to
associated risks related to, among other things, uncertainties as to the timing
of the tender offer and merger; uncertainties as to how many Hifn stockholders
will tender their stock in the offer; the risk that competing offers will be
made; the possibility that various closing conditions for the transaction may
not be satisfied or waived, including that a governmental entity may prohibit,
delay or refusal to grant approval for the consummation of the transaction; the
effects of the transaction making it more difficult to maintain existing
relationships with employees, customers or business partners; and other business
effects, including the effects of industry, economic or political conditions
outside of Hifn’s control. Actual results may differ materially from those in
the projections or other forward-looking statements. For information regarding
other related risks, please see the "Risk Factors" section of Hifn’s filings
with the SEC, including its most recent Annual Report on Form 10-K and
Quarterly Report on Form 10-Q. Hifn assumes no obligation and does not
intend to update these forward-looking statements.
Securities
Law Disclosures
This
report is for informational purposes only and is not an offer to buy or the
solicitation of an offer to sell any securities. The solicitation and the offer
to buy shares of Hifn common stock will be made only pursuant to an offer
to purchase and related materials that Exar intends to file with the Securities
and Exchange Commission. Hifn stockholders and other investors should read these
materials carefully because they contain important information, including the
terms and conditions of the offer. Once filed, Hifn stockholders and other
investors will be able to obtain copies of the tender offer statement on
Schedule TO, the offer to purchase and related documents without charge from the
Securities and Exchange Commission through the Commission's website at
www.sec.gov. Stockholders and other investors are urged to read carefully those
materials prior to making any decisions with respect to the offer.
(d) Exhibits
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Exhibit
Number
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Description
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2.1
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Agreement
and Plan of Merger, dated as of February 23, 2009, by and among hi/fn,
inc., Exar Corporation and Hybrid Acquisition Corp., a wholly-owned
subsidiary of Exar Corporation
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99.1
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Tender
and Voting Agreement, dated February 23, 2009, by and among Exar
Corporation, Hybrid Acquisition Corp., a wholly-owned subsidiary of Exar
Corporation, and each of the members of the board of directors and certain
officers of hi/fn, inc.
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99.2
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Joint
Press Release by hi/fn, inc. and Exar Corporation dated February 23,
2009
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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 hereunto
duly authorized.
Date:
February 24, 2009
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hi/fn
inc.
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By: /s/
William R. Walker
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William
R. Walker
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Vice
President, Finance and Chief Financial Officer
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Exhibit
Number
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Description
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2.1
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Agreement
and Plan of Merger, dated as of February 23, 2009, by and among hi/fn,
inc., Exar Corporation and Hybrid Acquisition Corp., a wholly-owned
subsidiary of Exar Corporation
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99.1
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Tender
and Voting Agreement, dated February 23, 2009, by and among Exar
Corporation, Hybrid Acquisition Corp., a wholly-owned subsidiary of Exar
Corporation, and each of the members of the board of directors and certain
officers of hi/fn, inc.
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99.2
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Joint
Press Release by hi/fn, inc. and Exar Corporation dated February 23,
2009
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