Attached files
| file | filename |
|---|---|
| EX-99.1 - Center for Wound Healing, Inc. | v198413_ex99-1.htm |
| EX-22.1 - Center for Wound Healing, Inc. | v198413_ex22-1.htm |
| EX-22.2 - Center for Wound Healing, Inc. | v198413_ex22-2.htm |
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): October 5,
2010
The
Center For Wound Healing, Inc.
(Exact
name of registrant as specified in its charter)
|
Nevada
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000-51317
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87-0618831
|
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(State
or other jurisdiction of
incorporation)
|
(Commission
File Number)
|
(I.R.S.
Employer
Identification
No.)
|
155 White
Plains Road, Suite 200
Tarrytown,
NY 10591
(Address
of principal executive offices)
(Zip
Code)
Registrant's
telephone number, including area code (914) 372-3150
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:
|
|
¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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x
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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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Item
1.01 Entry into a Material Definitive Agreement.
On October 5, 2010, The Center For
Wound Healing, Inc. (the “Company”), CFWH Holding Corporation, a Delaware
corporation (“Parent”) and CFWH Merger Sub, Inc., a Nevada corporation and a
wholly-owned subsidiary of Parent (“Merger Sub”), entered into an Agreement and
Plan of Merger (the “Merger Agreement”). Under the terms of the Merger
Agreement, Merger Sub will merge with and into the Company (the “Merger”). As a
result of the Merger, the separate corporate existence of Merger Sub shall cease
and the Company shall continue as the surviving corporation of the Merger and a
wholly owned subsidiary of Parent. At the closing of the Merger, each share of
common stock, par value $0.001 per share, of the Company (“Company Common
Stock”), issued and outstanding immediately prior to the closing, other than
shares held by Parent as a result of the exchange by one of the Company’s
founders of a portion of his shares of Company Common Stock for shares of
capital stock of Parent, shall be converted into the right to receive an amount
in cash, not to exceed $0.60, subject to certain adjustments as set forth in the
Merger Agreement. The amount of cash consideration that holders of
shares of Company Common Stock will be entitled to receive in the Merger, giving
effect to all possible adjustments, will be at least $0.579 per
share. All amounts payable to holders of Company Common Stock in the
Merger are without interest and subject to applicable tax withholding
requirements.
Parent and Merger Sub are affiliates of
Sverica International, a private equity firm.
Holders of a total of approximately
68.3% of the issued and outstanding shares of Company Common Stock, including
all of the directors and executive officers of the Company who hold shares of
Company Common Stock, have entered into a Voting Agreement with Parent pursuant
to which such holders have agreed to vote their shares in favor of approval of
the Merger Agreement.
The Voting Agreement provides that if
stockholder parties to the Voting Agreement own at least a majority of the
issued and outstanding shares of Company Common Stock, then such holders, if
they are requested to do so by the Company, must consent in writing to adopt
resolutions approving and adopting the Merger Agreement without a meeting. The
Company anticipates making such a request in the near future.
Each of the Company, Parent and Merger
Sub has agreed to customary representations, warranties and covenants in the
Merger Agreement. Among these covenants, the Company has agreed (i) to
conduct its business in the ordinary course during the period between the
execution of the Merger Agreement and the closing of the Merger, and
(ii) to call and hold a special meeting of its shareholders for the purpose
of voting upon the approval and adoption of the Merger Agreement and to prepare
and file with the Securities and Exchange Commission a proxy statement relating
to the Company’s special meeting of its shareholders. If, however, as
currently anticipated, the holders of a majority of the issued and outstanding
Common Stock act by written consent to approve the Merger Agreement, then no
special meeting of shareholders will be required to be held, and the Company
will circulate an information statement regarding the Merger to holders of
shares of Company Common Stock who are not parties to the Voting
Agreement.
2
The
Merger Agreement contains a “no shopping provision” that provides that if, prior
to obtaining shareholder approval of the proposed Merger, the Company receives a
bona fide unsolicited alternative acquisition proposal that the Board of
Directors of the Company believes in good faith, after taking into consideration
the advice of its financial advisors and outside counsel, that such acquisition
proposal constitutes or would reasonably be expected to result in a superior
proposal, then the Company may furnish information with respect to the Company
and its subsidiaries to the person making such acquisition proposal and
participate in discussions or negotiations concerning such acquisition proposal
as provided in the Merger Agreement.
The Company’s Board of Directors may,
at any time prior to obtaining shareholder approval of the Merger Agreement,
(i) withdraw, modify, qualify, or propose publicly to withdraw, modify or
qualify in a manner adverse to Parent or Merger Sub, its recommendation that the
Company’s shareholders vote in favor of approval of the Merger, or
(ii) approve, endorse or recommend or enter into a letter of intent or
similar agreement in principle or any definitive agreement contemplating or
otherwise relating to, a superior proposal if, in each case, the Company’s Board
of Directors of the Company concludes in good faith, after taking into
consideration the advice of outside counsel, that failure to take
such action would be inconsistent with its fiduciary obligations under
applicable law, and otherwise complies with the “no shopping” provisions of the
Merger Agreement. The Company’s Board of Directors is not permitted to change
its recommendation or endorse a Superior Proposal or enter into any letter of
intent or similar agreement in principle or any definitive agreement
contemplating or otherwise relating to a Superior Proposal, unless, at the same
time, the Company terminates the Merger Agreement and pays to Parent a
termination fee of $1 million and reimburses Parent for the expenses incurred by
Parent in connection with the Merger Agreement.
In addition to the approval of the
Company’s shareholders, the completion of the Merger is subject to (i) the
receipt of financing (for which Parent has received written commitments) and
other customary closing conditions, and (ii) absence of any governmental
order, decree, judgment, injunction or other ruling that would prevent or
prohibit consummation of the Merger.
A copy of the Merger Agreement is
attached as Exhibit 2.1 to this report. The foregoing description of the
Merger Agreement is not complete and is qualified in its entirety by reference
to the full text of the Merger Agreement. The exhibits and schedules to the
Merger Agreement have been omitted from the attached Exhibit 2.1. The
Company shall furnish supplementally a copy of any omitted schedule or exhibit
to the Securities and Exchange Commission upon request. A copy of the
Voting Agreement is attached as Exhibit 2.2 to this report. The press
release, issued October 5, 2010, announcing the signing of the Merger Agreement,
released on October 6, 2010, is attached as Exhibit 99.1 to this report and
is incorporated herein by reference.
3
The Merger Agreement contains a number
of representations and warranties which the Company and Parent and Merger Sub
have made to 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.
These disclosure schedules contain information that has been included in the
prior public disclosures of the Company, as well as additional non-public
information. While the Company does not believe that this non-public information
is required to be publicly disclosed under the applicable securities laws, this
information does modify, qualify and create exceptions to the representations
and warranties set forth in the Merger Agreement. In addition, these
representations and warranties were made as of the date of the Merger Agreement.
Information concerning the subject matter of the representations and warranties
may have changed since the date of the Merger Agreement, which subsequent
information may or may not be fully reflected in the public disclosures of the
Company. Moreover, representations and warranties are frequently utilized in
merger agreements as a means of allocating risks, both known and unknown, rather
than to make affirmative factual claims or statements. Accordingly, you should
not rely on the representations and warranties as current characterizations of
factual information about the Company or Parent.
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Item
9.01
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Financial
Statements and Exhibits
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(d) Exhibits.
The
following exhibit is filed herewith:
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Description of Exhibit
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2.1
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Agreement
and Plan of Merger dated as of October 5, 2010, among CFWH Holding
Corporation, CFWH Merger Sub, Inc., and The Center For Wound Healing,
Inc.
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Voting
Agreement dated as of October 5, 2010, among CFWH Holding Corporation,
CFWH Merger Sub, Inc., and the Stockholder parties signatory
thereto.
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99.1
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Press
Release dated October 5, 2010, released on October 6, 2010, issued by The
Center For Wound Healing,
Inc.
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4
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.
Date:
October 6, 2010
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THE
CENTER FOR WOUND HEALING, INC.
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By:
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/s/ Andrew G. Barnett
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Andrew
G. Barnett
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Chief
Executive Officer
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