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 15, 2010
Keithley Instruments, Inc.
(Exact name of registrant as specified in its charter)
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Ohio
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1-9965
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34-0794417
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification No.)
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28775 Aurora Road, Solon, Ohio
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44139
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code: (440) 248-0400
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:
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Item 8.01. Other Events.
This
Form 8-K is being filed pursuant to an agreement in principle regarding the
settlement of a lawsuit relating to the Agreement and Plan of Merger (the Merger Agreement),
dated as of September 29, 2010, among Danaher Corporation, a Delaware corporation (Parent),
Aegean Acquisition Corp., an indirect wholly-owned subsidiary of Parent and an Ohio corporation
(Merger Sub), and Keithley Instruments, Inc., an Ohio corporation (the Company), providing for
the merger (the Merger) of Merger Sub with and into the Company.
As previously disclosed on page 33 of the Companys Definitive Proxy Statement on Schedule 14A
filed with the Securities and Exchange Commission (the SEC) on October 25, 2010 (the Proxy
Statement), a purported class action and derivative lawsuit was filed in connection with the
Merger in the Court of Common Pleas of Cuyahoga County, Ohio against the Company, its directors and
Parent (the Action). The complaint alleges, among other things, that the Companys directors
breached their fiduciary duties in connection with the Merger and that Parent has aided and abetted
the Companys directors in their alleged breaches of fiduciary duties.
On
November 15, 2010, counsel for all parties reached an agreement
in principle regarding the settlement of the Action.
The Company believes that no further supplemental disclosure is required under applicable
laws; however, to avoid the risk of the Action delaying or adversely affecting the Merger and to
minimize the expense of defending the Action, the Company has agreed, pursuant to the terms of the
proposed settlement, to make certain supplemental disclosures related to the proposed Merger, all
of which are set forth below. Subject to completion of certain confirmatory discovery by counsel to
the plaintiff, the proposed settlement contemplates that the parties will enter into a
stipulation of settlement. The stipulation of settlement will be subject to customary conditions,
including court approval following notice to the Companys shareholders. If the parties enter into
a stipulation of settlement, a hearing will be scheduled at which the court will consider the
fairness, reasonableness, and adequacy of the settlement. If the settlement is finally approved by
the court, it will resolve and release all claims in all actions that were or could have been
brought challenging any aspect of the proposed Merger, the Merger Agreement, and any disclosure
made in connection therewith (but excluding claims by dissenting shareholders under Section 1701.85
of the Ohio Revised Code), pursuant to terms that will be disclosed to shareholders prior to final
approval of the settlement. There can be no assurance that the
parties will ultimately enter into a stipulation of settlement or that the court will approve the
settlement even if the parties were to enter into such stipulation. In such event, the proposed
settlement may be terminated.
SUPPLEMENT TO DEFINITIVE PROXY STATEMENT
In
connection with the settlement of the Action as described in this
Form 8-K
, the Company has
agreed to make these supplemental disclosures to the Proxy Statement. This supplemental information
should be read in conjunction with the Proxy Statement, which should be read in its entirety.
Defined terms used but not defined herein have the meanings set forth in the Proxy Statement.
THE MERGER PROPOSAL Background of the Merger
The following disclosure supplements the discussion on page 11 of the Proxy Statement concerning the
April 2, 2010 meeting of our board of directors:
At that board of directors meeting, Mr. Keithley confirmed that his family would support a sale of
the Company and that the family was not seeking a control premium for the Class B common shares.
The following disclosure supplements the discussion on page 11 of the Proxy Statement concerning
our board of directors decision to engage Stifel Nicolaus Weisel:
As part of its determination to engage Stifel Nicolaus Weisel, our board of directors was aware of
and considered that Stifel Nicolaus Weisels wealth management group provided investment advisory
services to the Companys benefit plans regarding asset management and weighting, and that Stifel
Nicolaus Weisels wealth management group also provided investment advisory services to Mr.
Keithley and certain trusts for which he is trustee, using the same asset managers as the Companys
benefit plans.
2
The following disclosure supplements the discussion on page 11 of the Proxy Statement regarding the
June 21, 2010 meeting of our board of directors:
At the meeting, Stifel Nicolaus Weisel provided to the directors estimated ranges of values for the
four alternatives with the estimated range of values for a sale of the Company being the highest.
All of the value ranges were significantly lower than the merger consideration of $21.60 per share.
The following disclosure supplements the discussion on page 11 of the Proxy Statement concerning
the June 25, 2010 telephonic meeting of our board of directors:
At the meeting, Stifel Nicolaus Weisel provided a range of values for the status quo alternative,
coupled with a significant increase in the regular dividend, which was lower than the estimated
range of values for a sale of the Company and significantly lower than the merger consideration of
$21.60 per share.
The following disclosure supplements the discussion on page 11 of the Proxy Statement:
At a meeting of the independent members of our board of directors held on July 22, 2010, the board
of directors authorized the Company to enter into a change in control agreement with Mr. Keithley
on the same terms that had been approved by the Human Resources and Compensation Committee of the
board of directors for the Companys other executive officers.
THE MERGER PROPOSAL Reasons for the Merger
The following disclosure replaces the second bullet point on page 15 of the Proxy Statement:
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The belief that, while improvements in our operating performance, as well as a rebound
in the semi-conductor and electronics end markets and growth from international markets,
especially Asia, could yield improved operating results, the achievement of such
improvements is uncertain and subject to significant execution risks because of, among
other things, the risk of introduction of higher performance products from the Companys
competitors, obsolescence of some of the Companys older products, the relatively slower
size and growth of the Companys served available market compared to other segments of the
test and measurement industry, the ability of larger, better capitalized competitors to
invest in research and development, and the Companys ability to attract and retain talent.
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The following disclosures supplement the discussion on pages 14 and 15 of the Proxy Statement
concerning the reasons for the Merger:
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The fact that the Companys common shares have historically traded and were likely to
continue to trade at a discount to the market as a result of the Companys limited scale
and dual class voting structure;
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The fact that, in assessing the Companys ability to pursue an acquisition strategy as
an alternative to a sale, our board of directors considered that there is a limited
universe of quality acquisition candidates, the Company could be disadvantaged in a
competitive process for quality acquisition targets in light of the Companys size, there
are significant diligence, integration and personnel risks associated with acquisitions,
and an acquisition program would not have a near-term impact on the Company and would
likely be occurring at a time when the Company might be considering management succession;
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The belief that the alternatives of a potential stock repurchase or extraordinary
dividend, while advantageous in that both alternatives returned cash to shareholders and,
in the case of a share repurchase, was self-selecting in providing liquidity to those
shareholders who desired it, a share repurchase would further limit float and liquidity for
the Companys common shares and a significant special cash dividend could signal to the
market that there was no better use for the Companys cash and would constrain the
Companys access to cash;
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In resolving to proceed promptly with a process to explore a sale of Keithley, our board
of directors considered whether a sale process beginning in August 2010 or sometime in 2011
would permit the market to reflect additional periods of financial performance for Keithley
which could be favorable, but our board
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of directors determined that commencing a process promptly was advisable and in the best
interests of the Company and its shareholders, based in part on the advice of Stifel
Nicolaus Weisel;
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The fact that our board of directors determined that it was in the best interests of the
Company and its shareholders to conduct a confidential sales process involving a meaningful
number of strategic and financial bidders instead of a broader, publicly announced auction,
based in part on the advice of Stifel Nicolaus Weisel;
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The fact that our board of directors considered forming a special committee of
independent directors to oversee the sales process, but determined that the absence of any
material conflicts involving any of the directors and the relatively small size of the
board of directors made a special committee unnecessary, both as a legal and a practical
matter.
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THE MERGER PROPOSAL Opinion of Stifel Nicolaus & Company, Incorporated
The following disclosure supplements the discussion under the heading Selected Comparable Public
Companies Analysis on pages 19 through 21 of the Proxy Statement:
The following table sets forth the revenue growth and operating margin statistics for each of the
selected comparable companies used in Selected Comparable Public Companies Analysis.
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Revenue Growth
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Margin Analysis
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Gross
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EBITDA
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Net Income
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CY 10
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CY 11
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CY 10
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CY 11
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CY 10
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CY 11
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CY 10
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CY 11
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Agilent
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19
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%
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11
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%
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56
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%
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56
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%
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20
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%
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21
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%
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13
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%
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14
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%
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LeCroy
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7
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%
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14
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%
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59
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%
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60
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%
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13
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%
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14
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%
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5
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%
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7
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%
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Natl Instruments
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26
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%
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12
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%
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78
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%
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78
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%
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20
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%
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20
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%
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12
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%
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13
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%
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Spectris
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7
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%
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5
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%
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58
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%
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58
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%
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16
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%
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16
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%
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9
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%
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10
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%
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Cascade Microtech
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72
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%
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13
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%
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36
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%
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42
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%
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(7
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%)
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6
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%
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(12
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%)
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2
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%
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FEI
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6
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%
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7
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%
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41
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%
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42
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%
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14
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%
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16
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%
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6
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%
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8
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%
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LTX-Credence
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46
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%
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21
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%
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57
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%
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59
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%
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23
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%
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28
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%
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17
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%
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22
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%
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Nanometrics
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158
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%
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8
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%
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55
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%
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54
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%
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30
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%
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28
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%
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22
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%
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20
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%
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Rudolph Technologies
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150
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%
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7
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%
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52
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%
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51
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%
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21
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%
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21
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%
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13
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%
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13
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%
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Teradyne
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117
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%
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4
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%
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55
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%
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56
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%
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37
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%
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39
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%
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27
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%
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29
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%
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Verigy
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56
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%
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19
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%
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49
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%
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49
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%
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16
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%
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18
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%
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7
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%
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11
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%
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4
The following table sets forth the financial multiples for each of the selected comparable
companies used in the Selected Comparable Public Companies Analysis.
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Market Value
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Balance Sheet
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Valuation Multiples
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Equity
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Enterprise
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Ent. Val. / Rev
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Ent. Val./ EBITDA
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P/E
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($ in millions)
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Value
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Value
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Cash
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Debt
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CY 10
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CY 11
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CY 10
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CY 11
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CY 10
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CY 11
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Agilent
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$
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11,498
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$
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12,720
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$
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2,464
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$
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3,686
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2.3x
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2.1x
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11.3x
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9.8x
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16.1x
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13.4x
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LeCroy
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87
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136
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8
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57
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1.0x
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0.8x
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7.3x
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5.9x
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12.2x
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8.5x
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Natl Instruments
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2,639
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2,323
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316
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0
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2.7x
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2.4x
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13.7x
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12.1x
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25.3x
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21.3x
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Spectris
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1,946
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2,073
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83
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211
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1.2x
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1.2x
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7.9x
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7.2x
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12.0x
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10.7x
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Cascade Microtech
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56
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36
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20
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0
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0.4x
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0.3x
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N.M.
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5.7x
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N.M.
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25.0x
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FEI
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796
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|
555
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331
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89
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0.9x
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0.8x
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6.7x
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5.3x
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20.9x
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15.5x
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LTX-Credence
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300
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|
208
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93
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1
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0.8x
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0.7x
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3.5x
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2.4x
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6.7x
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|
|
4.3x
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|
Nanometrics
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|
332
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|
290
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|
55
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|
13
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1.5x
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1.4x
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|
5.0x
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|
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4.8x
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|
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|
7.4x
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|
8.0x
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|
Rudolph Technologies
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|
273
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|
202
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|
72
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0
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|
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|
1.0x
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|
1.0x
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4.9x
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|
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4.5x
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10.2x
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|
8.8x
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|
Teradyne
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2,575
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|
|
|
1,916
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|
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|
661
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|
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|
2
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|
|
|
1.1x
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|
|
|
1.0x
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|
|
|
2.9x
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|
|
|
2.7x
|
|
|
|
4.6x
|
|
|
|
4.3x
|
|
Verigy
|
|
|
493
|
|
|
|
238
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|
|
|
393
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|
|
|
138
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|
|
|
0.4x
|
|
|
|
0.4x
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|
|
|
2.7x
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|
|
|
2.0x
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|
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|
12.9x
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|
|
|
7.5x
|
|
5
The following disclosure supplements the discussion under the subheading Selected Comparable
Transactions Analysis on pages 21 and 22 of the Proxy Statement:
The following table sets forth the transaction value and financial multiples for each of the
transactions used in Selected Comparable Transactions Analysis.
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|
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($ in millions)
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|
|
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Date
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|
Acquiror
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|
Equity
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|
Enterprise
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|
Ent. Value / LTM
|
|
Ent. Value / NTM
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Announced
|
|
Target
|
|
Value
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|
Value
|
|
Revenue
|
|
EBITDA
|
|
Revenue
|
|
EBITDA
|
|
8/16/10
|
|
|
Bruker Corporation
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|
$
|
229.0
|
|
|
$
|
229.0
|
|
|
|
2.1x
|
|
|
|
13.6x
|
|
|
|
1.8x
|
|
|
|
8.2x
|
|
|
|
|
|
Veecos Metrology Business
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/1/08
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|
|
Spectris
|
|
|
102.0
|
|
|
|
102.0
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|
|
|
1.3x
|
|
|
|
N.A.
|
|
|
|
N.A.
|
|
|
|
N.A.
|
|
|
|
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|
SPXs LDS T&M Business
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|
|
|
|
|
|
|
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|
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|
|
|
|
|
|
|
|
|
|
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|
9/1/08
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Teradyne Inc
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|
|
364.0
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|
|
|
251.0
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|
|
|
2.1x
|
|
|
|
7.8x
|
|
|
|
1.8x
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|
|
|
6.4x
|
|
|
|
|
|
Eagle Test Systems Inc
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|
|
|
|
|
|
|
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|
|
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|
|
|
|
|
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|
6/26/08
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Orbotech
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|
|
290.0
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|
|
|
230.2
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|
|
|
2.3x
|
|
|
|
N.M.
|
|
|
|
1.3x
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|
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|
8.5x
|
|
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|
Photon Dynamics
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6/22/08
|
|
|
LTX Corp.
|
|
|
176.6
|
|
|
|
135.4
|
|
|
|
0.4x
|
|
|
|
3.1x
|
|
|
|
0.5x
|
|
|
|
7.7x
|
|
|
|
|
|
Credence Systems
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2/20/08
|
|
|
KLA-Tencor
|
|
|
521.3
|
|
|
|
464.2
|
|
|
|
4.2x
|
|
|
|
N.M.
|
|
|
|
2.9x
|
|
|
|
13.6x
|
|
|
|
|
|
ICOS Vision Systems
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12/18/07
|
|
|
Rudolph Technologies
|
|
|
73.5
|
|
|
|
73.5
|
|
|
|
1.8x
|
|
|
|
N.A.
|
|
|
|
N.A.
|
|
|
|
N.A.
|
|
|
|
|
|
Applied Precisions Semi Business
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12/12/07
|
|
|
Teradyne Inc
|
|
|
402.4
|
|
|
|
325.0
|
|
|
|
4.3x
|
|
|
|
N.M.
|
|
|
|
2.8x
|
|
|
|
16.7x
|
|
|
|
|
|
Nextest Systems
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/14/07
|
|
|
Danaher Corp.
|
|
|
2,969.8
|
|
|
|
2,761.7
|
|
|
|
2.4x
|
|
|
|
14.8x
|
|
|
|
2.3x
|
|
|
|
12.4x
|
|
|
|
|
|
Tektronix Inc.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5/21/07
|
|
|
Investor Group led by Veritas Capital
|
|
|
1,134.7
|
|
|
|
1,114.6
|
|
|
|
1.9x
|
|
|
|
12.3x
|
|
|
|
1.7x
|
|
|
|
9.9x
|
|
|
|
|
|
Aeroflex Inc.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1/8/07
|
|
|
KLA-Tencor
|
|
$
|
76.8
|
|
|
$
|
64.2
|
|
|
|
1.0x
|
|
|
|
N.M.
|
|
|
|
0.8x
|
|
|
|
N.M.
|
|
|
|
|
|
Therma-Wave
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10/3/06
|
|
|
LeCroy Corporation
|
|
|
32.8
|
|
|
|
32.8
|
|
|
|
3.1x
|
|
|
|
N.M.
|
|
|
|
2.6x
|
|
|
|
8.2x
|
|
|
|
|
|
Catalyst Enterprises, Inc.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2/23/06
|
|
|
KLA-Tencor
|
|
|
481.5
|
|
|
|
392.9
|
|
|
|
3.8x
|
|
|
|
N.M.
|
|
|
|
2.8x
|
|
|
|
10.9x
|
(1)
|
|
|
|
|
ADE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11/25/05
|
|
|
MKS Instruments
|
|
|
70.0
|
|
|
|
70.0
|
|
|
|
2.0x
|
|
|
|
N.A.
|
|
|
|
N.A.
|
|
|
|
N.A.
|
|
|
|
|
|
Ion Systems
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6/28/05
|
|
|
Rudolph Technologies
|
|
|
194.2
|
|
|
|
141.9
|
|
|
|
2.0x
|
|
|
|
N.M.
|
|
|
|
1.5x
|
|
|
|
9.4x
|
|
|
|
|
|
August Technology
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Transaction value used in analysis reflects revised terms of the transaction announced on May 26, 2006.
|
6
The following disclosure supplements the discussion under the subheading Discounted Equity
Analysis on page 22 of the Proxy Statement:
For purposes of the Discounted Equity Analysis, Stifel Nicolaus Weisel applied price-to-earnings
multiples to Keithleys projected CY 2011E and CY2012E earnings per share ranging from 10.0x to
14.0x.
Additional Information and Where to Find It
In connection with the proposed Merger, the Company filed the Proxy Statement and a form of
proxy with the SEC on October 25, 2010 and the Proxy Statement and a form of proxy were mailed to
shareholders of record of the Company as of October 22, 2010. BEFORE MAKING ANY VOTING DECISION,
THE COMPANYS SHAREHOLDERS ARE URGED TO READ THE PROXY STATEMENT CAREFULLY AND IN ITS ENTIRETY
BECAUSE THE PROXY STATEMENT CONTAINS IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER. The Proxy
Statement and other relevant materials, and any other documents filed by the Company with the SEC,
may be obtained free of charge at the SECs website at www.sec.gov, or by going to the Companys
website at http://ir.keithley.com.
Participants in the Solicitation
The Company and its directors and executive officers may be deemed to be participants in the
solicitation of proxies from its shareholders in connection with the proposed Merger. INFORMATION
ABOUT THE COMPANYS DIRECTORS AND EXECUTIVE OFFICERS IS SET FORTH IN THE COMPANYS PROXY STATEMENT
ON SCHEDULE 14A FILED WITH THE SEC ON DECEMBER 29, 2009 AND THE COMPANYS ANNUAL REPORT ON FORM
10-K FILED WITH THE SEC ON DECEMBER 14, 2009. Shareholders may obtain additional information
regarding the interests of the Company and its directors and executive officers in the Merger,
which may be different than those of the Companys shareholders generally, by reading the Proxy
Statement, which was filed with the SEC on October 25, 2010 and other relevant documents regarding
the Merger filed with the SEC.
7
SIGNATURES
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.
|
|
|
|
|
|
Keithley Instruments, Inc.
|
|
November 15, 2010
|
By:
|
/s/ Mark J. Plush
|
|
|
|
Name:
|
Mark J. Plush
|
|
|
|
Title:
|
Senior Vice President and
Chief Financial Officer
|
|
|
8