SEC Comment Letter for RUDOLPH TECHNOLOGIES INC (CIK 0001094392) — Dec 22, 2005
RUDOLPH TECHNOLOGIES INC (CIK 0001094392)
Date: Dec. 22, 2005 · CIK: 0001094392 · Accession: 0000000000-05-063700
AI Filing Summary & Sentiment
File numbers found in text: 333-127371
Letter
Mail Stop 6010 December 22, 2005 Paul F. McLaughlin Chairman and Chief Executive Officer Rudolph Technologies, Inc. One Rudolph Road Flanders, New Jersey 07836
Re: Rudolph Technologies, Inc. Amendment No. 1 to Joint Proxy Statement/Prospectus on Form S-4 Filed December 12, 2005 File No. 333-127371
Dear Mr. McLaughlin:
We have limited our review of your filing to those issues we have addressed in our comments. Where indicated, we think you should revise your filings in response to these comments. If you disagree, we will consider your explanation as to why our comment is inapplicable or a revision is unnecessary. Please be as detailed as necessary in your explanation. In some of our comments, we may ask you to provide us with information so we may better understand your disclosure. After reviewing this information, we may raise additional comments.
Please understand that the purpose of our review process is to assist you in your compliance with the applicable disclosure requirements and to enhance the overall disclosure in your filing. We look forward to working with you in these respects. We welcome any questions you may have about our comments or any other aspect of our review. Feel free to call us at the telephone numbers listed at the end of this letter.
Did Rudolph`s board obtain a fairness opinion, page 3
1. Please revise this section to clarify, if true, that the opinion assumes that you will pay $60 million of the merger consideration in cash.
What do I need to do to make an election, page 7
2. We note your response to prior comment 4, however, your disclosure in this section and under "Election Procedures" on page 115 indicates that is possible that the election could be exercised by August`s shareholders after their vote on the merger. As such, it is unclear how Situation B set forth in Release No. 33-5927 is applicable.
What are the United States federal income tax consequences, page 9
3. We note your response to comment 7. However, contractual arrangements that you have made as part of your merger agreement are separate from your obligation to provide the disclosure and related opinion required by Item 4(a)(6) of Form S-4 and Item 601(b)(8) of Regulation S-K. Also, you should fully disclose uncertainties as described in previous comment 7. Therefore, we reissue the comment.
Merger Consideration, page 15
4. We note the disclosure you added in response to comment 10. If you structured the consideration formula to provide August shareholders value equal to $10.50 as of June 27, 2005, please expand your description accordingly.
Background of the Merger, page 63
5. Please disclose the merger consideration agreed upon in the merger agreement entered into by August Technology with Nanometrics on January 20, 2005.
6. We note your revisions on page 65 in response to comment 11. With a view toward clarified disclosure, please tell us the earnings multiples of you, August, KLA and the other companies that were the basis of the board`s analysis.
7. We note the disclosure added in response to prior comment 20. Please expand your disclosure to provide greater detail on why August Technology`s board of directors concluded that August Technology was unable to terminate the Nanometrics merger agreement without Nanometrics` consent. For example, indicate how the board factored the lack of progress on integration issues into that conclusion and what other specific reasons supported that conclusion.
8. We note your response to comment 24. If the shares you are offering are accompanied by shareholder rights, please register those rights and provide an opinion regarding whether the rights are binding obligations of the registrant under the state law governing the rights.
9. We note your response to comment 25. However, your background discussion includes references to several reports and opinions that you do not address in your response. For example, we note the reference to Needham`s February 4 report on page 67 and the opinions of counsel mentioned on pages 68 and 75. Therefore, we reissue the comment. Also, please include all required consents.
10. Regarding the second paragraph to your response to comment 25, it is unclear how investors can evaluate your disclosure about the Needham & Company opinion of the Rudolph consideration without full disclosure about its conclusions regarding the Nanometrics transaction and the basis for those conclusions.
Events After Execution of the Rudolph/August Technology Merger Agreement, page 79
11. Please briefly indicate what material changes to the merger agreement were effected by Amendment No. 1 to the merger agreement entered into on December 8, 2005.
12. With a view toward disclosure, please provide us with an update regarding the communications or other actions with respect to KLA`s indicated interest in acquiring August Technology.
Recommendations of August Technology`s Board of Directors..., page
13. Please disclose your response to comment 28.
Opinion of Rudolph`s Financial Advisor, page 86
14. We note the reference on page D-1 regarding the financial advisor`s previous advice regarding your rights plan. Please tell us why you did not discuss in this section that relationship and the related compensation.
Historical Exchange Ratio Analysis, page 88
15. Please provide a brief explanation so that it is clear to your shareholders why the implied premium in the last row of the last table on page 88 differs from the implied premium in the last table on page 89.
Opinion of August Technology`s Financial Advisor, page 93
16. Please disclose your response to previous comment 36.
17. Please revise your disclosure in the lead-in paragraph to the table at the top of page 97 to clarify how the implied stock ratios in the last column were calculated.
18. Please quantify 1.5% of the "aggregate transaction value" mentioned on page 100.
Litigation, page 109
19. Please explain the factual basis alleged to underlie the proceedings. Also disclose any monetary relief sought.
Conditions to Obligations to Complete the Merger, page 128
20. We note your response to the last sentence of comment 46. However, it remains unclear how waiver of the remaining conditions would never result in a need to resolicit proxies. For example, we note you can waive the condition regarding the occurrence of a material adverse event.
Undertakings
21. Please use the current version of required undertakings.
Exhibits
22. We note your response to prior comment 50. It remains unclear how you concluded that the agreements are not material given the circumstances of your transaction.
23. We reissue the last sentence of comment 49. The agreement mentioned in Item 601(b)(2) of Regulation S-K should not be conditioned on confidentiality.
Exhibit 5.1
24. Given the limitation in the first paragraph on page 2 that your counsel is opining "only as to the validity of the Shares under the General Corporation Law of the State of Delaware," please have your counsel confirm to us in writing, and file their written confirmation as correspondence on the EDGAR system, that they concur with our understanding that the reference and limitation to "the General Corporation Law of the State of Delaware" includes the statutory provisions and also all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws. Please see Section VIII, part 14 of the Current Issues Outline available at http://www.sec.gov/pdf/cfcr112k.pdf.
25. Please tell us the nature of the proceedings mentioned in clause (ii) of paragraph two and why assumptions regarding those proceedings are necessary for the opinion given.
26. Given the date limitation in the fourth paragraph, please have your counsel update the opinion prior to the time you request acceleration of the effective date of the registration statement.
Exhibits 8.1 and 8.2
27. You should not file legal opinions that assume conclusions of law that are a necessary requirement for the opinion given. We note the assumption regarding due execution and delivery of documents. Please tell us the nature of the documents that are the subject of this assumption and why the assumption is necessary and appropriate for the opinions given.
* * *
As appropriate, please amend your registration statement in response to these comments. You may wish to provide us with marked copies of the amendment to expedite our review. Please furnish a cover letter with your amendment that keys your responses to our comments and provides any requested information. Detailed cover letters greatly facilitate our review. Please understand that we may have additional comments after reviewing your amendment and responses to our comments.
We direct your attention to Rules 460 and 461 regarding requesting acceleration of a registration statement. Please allow adequate time after the filing of any amendment for further review before submitting a request for acceleration. Please provide this request at least two business days in advance of the requested effective date.
Please contact Tim Buchmiller at (202) 551-3635 or me at (202) 551-3617 with questions regarding our comments.
Sincerely,
Russell Mancuso
Branch Chief
Show Raw Text
<DOCUMENT>
<TYPE>LETTER
<SEQUENCE>1
<FILENAME>filename1.txt
<TEXT>
Mail Stop 6010
December 22, 2005
Paul F. McLaughlin
Chairman and Chief Executive Officer
Rudolph Technologies, Inc.
One Rudolph Road
Flanders, New Jersey 07836
Re: Rudolph Technologies, Inc.
Amendment No. 1 to Joint Proxy Statement/Prospectus on Form
S-4
Filed December 12, 2005
File No. 333-127371
Dear Mr. McLaughlin:
We have limited our review of your filing to those issues we
have addressed in our comments. Where indicated, we think you
should
revise your filings in response to these comments. If you
disagree,
we will consider your explanation as to why our comment is
inapplicable or a revision is unnecessary. Please be as detailed
as
necessary in your explanation. In some of our comments, we may
ask
you to provide us with information so we may better understand
your
disclosure. After reviewing this information, we may raise
additional comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
Did Rudolph`s board obtain a fairness opinion, page 3
1. Please revise this section to clarify, if true, that the
opinion
assumes that you will pay $60 million of the merger consideration
in
cash.
What do I need to do to make an election, page 7
2. We note your response to prior comment 4, however, your
disclosure
in this section and under "Election Procedures" on page 115
indicates
that is possible that the election could be exercised by August`s
shareholders after their vote on the merger. As such, it is
unclear
how Situation B set forth in Release No. 33-5927 is applicable.
What are the United States federal income tax consequences, page 9
3. We note your response to comment 7. However, contractual
arrangements that you have made as part of your merger agreement
are
separate from your obligation to provide the disclosure and
related
opinion required by Item 4(a)(6) of Form S-4 and Item 601(b)(8) of
Regulation S-K. Also, you should fully disclose uncertainties as
described in previous comment 7. Therefore, we reissue the
comment.
Merger Consideration, page 15
4. We note the disclosure you added in response to comment 10. If
you structured the consideration formula to provide August
shareholders value equal to $10.50 as of June 27, 2005, please
expand
your description accordingly.
Background of the Merger, page 63
5. Please disclose the merger consideration agreed upon in the
merger
agreement entered into by August Technology with Nanometrics on
January 20, 2005.
6. We note your revisions on page 65 in response to comment 11.
With
a view toward clarified disclosure, please tell us the earnings
multiples of you, August, KLA and the other companies that were
the
basis of the board`s analysis.
7. We note the disclosure added in response to prior comment 20.
Please expand your disclosure to provide greater detail on why
August
Technology`s board of directors concluded that August Technology
was
unable to terminate the Nanometrics merger agreement without
Nanometrics` consent. For example, indicate how the board
factored
the lack of progress on integration issues into that conclusion
and
what other specific reasons supported that conclusion.
8. We note your response to comment 24. If the shares you are
offering are accompanied by shareholder rights, please register
those
rights and provide an opinion regarding whether the rights are
binding obligations of the registrant under the state law
governing
the rights.
9. We note your response to comment 25. However, your background
discussion includes references to several reports and opinions
that
you do not address in your response. For example, we note the
reference to Needham`s February 4 report on page 67 and the
opinions
of counsel mentioned on pages 68 and 75. Therefore, we reissue
the
comment. Also, please include all required consents.
10. Regarding the second paragraph to your response to comment 25,
it
is unclear how investors can evaluate your disclosure about the
Needham & Company opinion of the Rudolph consideration without
full
disclosure about its conclusions regarding the Nanometrics
transaction and the basis for those conclusions.
Events After Execution of the Rudolph/August Technology Merger
Agreement, page 79
11. Please briefly indicate what material changes to the merger
agreement were effected by Amendment No. 1 to the merger agreement
entered into on December 8, 2005.
12. With a view toward disclosure, please provide us with an
update
regarding the communications or other actions with respect to
KLA`s
indicated interest in acquiring August Technology.
Recommendations of August Technology`s Board of Directors..., page
82
13. Please disclose your response to comment 28.
Opinion of Rudolph`s Financial Advisor, page 86
14. We note the reference on page D-1 regarding the financial
advisor`s previous advice regarding your rights plan. Please tell
us
why you did not discuss in this section that relationship and the
related compensation.
Historical Exchange Ratio Analysis, page 88
15. Please provide a brief explanation so that it is clear to your
shareholders why the implied premium in the last row of the last
table on page 88 differs from the implied premium in the last
table
on page 89.
Opinion of August Technology`s Financial Advisor, page 93
16. Please disclose your response to previous comment 36.
17. Please revise your disclosure in the lead-in paragraph to the
table at the top of page 97 to clarify how the implied stock
ratios
in the last column were calculated.
18. Please quantify 1.5% of the "aggregate transaction value"
mentioned on page 100.
Litigation, page 109
19. Please explain the factual basis alleged to underlie the
proceedings. Also disclose any monetary relief sought.
Conditions to Obligations to Complete the Merger, page 128
20. We note your response to the last sentence of comment 46.
However, it remains unclear how waiver of the remaining conditions
would never result in a need to resolicit proxies. For example,
we
note you can waive the condition regarding the occurrence of a
material adverse event.
Undertakings
21. Please use the current version of required undertakings.
Exhibits
22. We note your response to prior comment 50. It remains unclear
how you concluded that the agreements are not material given the
circumstances of your transaction.
23. We reissue the last sentence of comment 49. The agreement
mentioned in Item 601(b)(2) of Regulation S-K should not be
conditioned on confidentiality.
Exhibit 5.1
24. Given the limitation in the first paragraph on page 2 that
your
counsel is opining "only as to the validity of the Shares under
the
General Corporation Law of the State of Delaware," please have
your
counsel confirm to us in writing, and file their written
confirmation
as correspondence on the EDGAR system, that they concur with our
understanding that the reference and limitation to "the General
Corporation Law of the State of Delaware" includes the statutory
provisions and also all applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting these
laws.
Please see Section VIII, part 14 of the Current Issues Outline
available at http://www.sec.gov/pdf/cfcr112k.pdf.
25. Please tell us the nature of the proceedings mentioned in
clause
(ii) of paragraph two and why assumptions regarding those
proceedings
are necessary for the opinion given.
26. Given the date limitation in the fourth paragraph, please have
your counsel update the opinion prior to the time you request
acceleration of the effective date of the registration statement.
Exhibits 8.1 and 8.2
27. You should not file legal opinions that assume conclusions of
law
that are a necessary requirement for the opinion given. We note
the
assumption regarding due execution and delivery of documents.
Please
tell us the nature of the documents that are the subject of this
assumption and why the assumption is necessary and appropriate for
the opinions given.
* * *
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested information. Detailed cover
letters greatly facilitate our review. Please understand that we
may
have additional comments after reviewing your amendment and
responses
to our comments.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
Please contact Tim Buchmiller at (202) 551-3635 or me at
(202)
551-3617 with questions regarding our comments.
Sincerely,
Russell Mancuso
Branch Chief
cc: David M. Schwartzbaum, Esq. (via fax)
Thomas R. King, Esq. (via fax)
Robert K. Ranum, Esq. (via fax)
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Paul F. McLaughlin
Rudolph Technologies, Inc.
December 22, 2005
Page 5
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