Attached files
file | filename |
---|---|
EX-2.1 - EX-2.1 - Cardiac Science CORP | v57115exv2w1.htm |
EX-99.1 - EX-99.1 - Cardiac Science CORP | v57115exv99w1.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
October 19, 2010
Date of Report (Date of earliest
event reported)CARDIAC SCIENCE CORPORATION
(Exact Name of Registrant as Specified in Charter)
Delaware | 000-51512 | 94-3300396 | ||
(State or Other Jurisdiction of Incorporation) |
(Commission File No.) | (IRS Employer Identification No.) |
3303 Monte Villa Parkway, Bothell, Washington | 98021 | |
(Address of principal executive offices) | (Zip Code) |
(425) 402-2000
(Registrants telephone number, including area code)
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 communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
þ | 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 1.01 Entry into a Material Definitive Agreement.
On October 19, 2010, Cardiac Science Corporation, a Delaware corporation (the
Company), entered into an Agreement and Plan of Merger (the Merger Agreement)
with Opto Circuits (India) Ltd., a public limited company incorporated under the law of the nation
of India (Parent), and Jolt Acquisition Company, a Delaware corporation and wholly-owned
subsidiary of Parent (Merger Sub). Pursuant to the Merger Agreement and upon the terms
and subject to the conditions thereof, Merger Sub will commence a tender offer (the
Offer) to acquire all of the issued and outstanding shares of common stock, par value
$0.001 per share, of the Company for $2.30 per share, net to the holder thereof in cash, without
interest and subject to applicable withholding (such amount, the Offer Price).
Under the Merger Agreement, Merger Sub will commence the Offer within ten business days after
October 19, 2010. In the Offer, each share of common stock validly tendered and not withdrawn will
be accepted for payment by Merger Sub in accordance with the terms of the Offer (but in no event
sooner than 20 business days after the commencement of the Offer).
Pursuant to the Merger Agreement, following the consummation of the Offer, and subject to the
satisfaction or waiver of certain conditions set forth in the Merger Agreement, Merger Sub will
merge with and into the Company, with the Company as the surviving corporation in the merger (the
Merger). At the effective time of the Merger (the Effective Time), all
remaining outstanding shares not tendered in the Offer (other than shares owned by Parent or Merger
Sub or any other direct or indirect wholly-owned subsidiary of Parent, shares owned by the Company
as treasury stock or shares held by stockholders who properly exercise their appraisal rights
pursuant to and in compliance with the Delaware General Corporation Law (the DGCL)) will
be cancelled and converted into the right to receive the Offer Price in cash, without interest and
subject to applicable withholding. In the event Parent and Merger Sub acquire at least 90% of the
issued and outstanding shares of common stock (the Short Form Merger Threshold),
including through the exercise of the Top-Up Option (defined below), the Merger will be effected
through the use of short form merger procedures available under Delaware Law (the Short Form
Merger). The Short-Form Merger may be effected without additional approval by the Companys
stockholders. If Parent and Merger Sub do not achieve the Short Form Merger Threshold, the Merger
will be subject to the approval of the Companys stockholders at a special meeting of stockholders.
In such case, Parent and Merger Sub have agreed to vote any shares of common stock they own in
favor of the Merger.
Merger Subs obligation to accept for payment and pay for all shares validly tendered pursuant
to the Offer is subject to (i) the valid tender of shares representing the greater of (x) at
least a majority of the fully diluted shares (which assumes conversion or exercise of all
outstanding options to acquire shares, or any other rights, options or warrants to acquire shares)
or (y) at least 60% of the outstanding shares, (ii) absence of laws or court orders prohibiting or
enjoining the consummation of the Offer, (iii) the expiration of waiting periods under applicable
antitrust laws and (iv) other customary closing conditions. Consummation of the Merger is subject
to stockholder approval, if required, the absence of laws or court orders prohibiting the Merger,
and expiration of any waiting periods under applicable antitrust laws. Neither the Offer nor the
Merger is subject to a financing condition.
Subject to the terms of the Merger Agreement, the Company has granted Merger Sub an
irrevocable option (the Top-Up Option), exercisable only after acceptance by Merger Sub
of, and payment for, shares tendered in the Offer and on the terms and conditions set forth in the
Merger Agreement, to purchase newly issued shares of common stock at the Offer Price in an amount
equal to the lowest number of shares that, when added to the number of shares owned by Parent and
Merger Sub at the time the Top-Up Option is exercised, constitutes one share more than 90% of the
number of shares issued and outstanding immediately after the issuance of the shares subject to the
Top-Up Option. In no event will the Top-Up Option be exercisable for a number of shares that
exceeds the number of shares of common stock authorized and uninssued (treating shares owned by the
Company as treasury stock as unissued) and not reserved for issuance at the time of the exercise of
the Top-Up Option with respect to any restricted stock units then outstanding or any in-the-money
options. The Top-Up Option is not exercisable unless, immediately after such exercise and the
issuance of shares pursuant thererto, Parent and Merger Sub will hold, in the aggregate, at least
90% of the number of shares of common stock issued and outstanding. Parent and Merger Sub will pay
the Offer Price for the shares acquired upon exercise of the Top-Up Option, at their election,
either in cash or by a combination of cash (for at least the par value of the shares issuable on
exercise of the Top-Up Option) and delivery to the Company of a promissory note executed by Parent,
full recourse to Parent and Merger Sub, having a principal amount equal to the balance of the
purchase price. In determining the fair value of any shares under the appraisal provisions of the
DGCL, none of the Parent, Merger Sub, the Company or the surviving corporation will take into
account the Top-Up Option, shares issued pursuant to the Top-Up Option or any promissory note
issued to pay any portion of the purchase price for shares issued pursuant to the Top-Up Option.
The Merger Agreement contains representations, warranties and covenants of the parties that
are customary for transactions of this type. The Company has also agreed to customary covenants
governing the conduct of its business, including an obligation to conduct its business in the
ordinary course prior to closing. The Company has agreed in the Merger Agreement not to solicit,
initiate, knowingly encourage or participate in discussions with third parties regarding other
proposals to acquire the Company or assets of the Company and it has agreed to certain restrictions
on its ability to respond to such proposals, subject to certain exceptions relating to the receipt
of unsolicited proposals determined to constitute superior proposals as defined in the Merger
Agreement (the No Shop Covenants).
The Merger Agreement also contains customary termination provisions for the Company and Parent
and provides that, in connection with the termination of the Merger Agreement under certain
circumstances specified in the Agreement, the Company may be required to pay Parent a termination
fee of $1.3 million. Those circumstances include (i) termination by Parent if the Companys board
changes its recommendation with respect to the transaction, approves or recommends any alternative
acquisition proposal, or permits the Company to enter into an agreement related to an alternative
acquisition proposal and (ii) termination by the Company if the Companys board approves an
acquisition proposal determined to be a superior proposal provided the acquisition proposal was not
received in violation of the No Shop Covenants and certain procedural requirements were satisfied.
If Parent terminates the Merger Agreement because the Company breaches or fails to perform any of
its representations, warranties, covenants or other agreements contained in the Merger Agreement,
the Company may be required to pay Parent an amount equal to $300,000 to reimburse Parent for its
expenses incurred in connection with the Merger Agreement. In addition, the Merger Agreement
provides that if the Company terminates the Merger Agreement because of a failure by Merger Sub to
(i) commence the Offer in violation of the Merger Agreement or (ii) accept for payment and to
purchase validly tendered shares pursuant to the Offer, the Company may elect to require Parent to
pay a termination fee equal to $1.3 million or pursue any other remedy available at law or in
equity.
The Merger Agreement provides that each Company option to purchase common stock that is
outstanding immediately prior to the effective time of the Merger (an Option) and has an
exercise price per share that is less than the Offer Price (an In the Money Option) will
be accelerated to be fully vested immediately prior to the effective time and will be canceled at
the effective time. Holders of In the Money Options will be entitled to receive an amount in cash
(less applicable tax withholding) equal to the excess of the Offer Price over the exercise price
per share, multiplied by the number of shares covered by such Option. Options that are not In the
Money Options will not be assumed or substituted for and will terminate at the Effective Time
without any further action by the holders of such Options in accordance with the terms of the
applicable Company equity plan under which such Options were granted. Each Company restricted
stock unit for the Companys common stock that is outstanding immediately prior to the effective
time of the Merger (an RSU) will be cancelled at the effective time, and the holders of
such RSUs will be entitled to receive an amount in cash (less applicable tax withholding) equal to
the Offer Price multiplied by the maximum number of shares subject to such RSU.
The Merger Agreement has been adopted by the boards of directors of both Parent and the
Company and the Companys Board of Directors has unanimously recommended that stockholders of the
Company accept the Offer, tender their shares to Merger Sub pursuant to the Offer and, if required
by the DGCL, vote to approve the Merger Agreement and the related Plan of Merger.
This summary of the principal terms of the Merger Agreement and the copy of the Merger
Agreement filed as an exhibit to this Form 8-K are intended to provide information regarding the
terms of the Merger Agreement and are not intended to modify or supplement any factual disclosures
about the Company in its public reports filed with the Securities and Exchange Commission (the
SEC). In particular, the Merger Agreement and related summary are not intended to be,
and should not be relied upon as, disclosures regarding any facts and circumstances relating to the
Company. The foregoing description of the Offer, Merger and Merger Agreement does not purport to
be complete and is qualified in its entirety by reference to the full text of the Merger Agreement,
a copy of which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.
The Merger Agreement itself has been provided solely to inform investors of its terms. The
Merger Agreement contains representations and warranties by the Company, on the one hand, and by
Parent and Merger Sub, on the other hand, made solely for the benefit of the 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. The disclosure schedules contain information that modifies, qualifies and creates
exceptions to the representations and warranties set forth in the Merger Agreement. Moreover,
certain representations and warranties in the Merger Agreement were made as of a specified date,
may be subject to a contractual standard of materiality different from what may be viewed as
material to stockholders or may have been used for the purpose of allocating risk between the
Company, on the one hand, and Parent and Merger Sub, on the other hand. Accordingly, investors are
not third-party beneficiaries under the Merger Agreement and should not rely on the representations
and warranties in the Merger Agreement as characterizations of the actual state of facts about the
Company, Parent or Merger Sub at the time they were made or otherwise.
Item 8.01 Other Events.
On October 19, 2010, the Company and Parent issued a joint press release announcing that they
had entered into the Merger Agreement. A copy of the press release is furnished as Exhibit 99.1
and incorporated herein by reference. The information in this Item 8.01 of Form 8-K, as well as
Exhibit 99.1, shall not be treated as filed for purposes of Section 18 of the Securities Exchange
Act of 1934, as amended, nor shall it be deemed incorporated by reference in any filing under the
Securities Act of 1933, as amended.
Additional Information about the Transaction and Where to Find it.
The tender offer for the outstanding common stock of the Company referred to in this press
release has not yet commenced. This press release is neither an offer to purchase nor a
solicitation of an offer to sell any securities. The solicitation and the offer to buy shares of
the Companys common stock will be made pursuant to an offer to purchase and related materials that
Parent and Merger Sub intend to file with the Securities and Exchange Commission. At the time the
offer is commenced Parent and Merger Sub will file a tender offer statement on Schedule TO with the
Securities and Exchange Commission, and thereafter the Company will file a
solicitation/recommendation statement on Schedule 14D-9 with respect to the offer. The tender
offer statement (including an offer to purchase, a related letter of transmittal and other offer
documents) and the solicitation/recommendation statement will contain important information that
should be read carefully and considered before any decision is made with respect to the tender
offer. These materials will be sent free of charge to all stockholders of the Company when
available. In addition, all of these materials (and all other materials filed by the Company with
the Securities and Exchange Commission) will be available at no charge from the Securities and
Exchange Commission through its website at www.sec.gov. Investors and security holders may also
obtain free copies of the tender offer documents, once available, from the information agent for
the tender offer or by mailing a request to Cardiac Science Corporation, Attention: Investor
Relations, 3303 Monte Villa Parkway, Bothell, Washington 98021.
Forward-Looking Statements.
Certain statements either contained in or incorporated by reference into this document, other
than purely historical information, including estimates, projections and statements relating to the
Companys business plans, objectives and expected operating results, and the assumptions upon which
those assumptions are based, are forward-looking statements. These forward-looking statements
generally include statements that are predictive in nature and depend upon or refer to future
events or conditions, and include words such as believes, plans, anticipates, projects,
estimates, expects, intends, strategy, future, opportunity, may, will, should,
could, potential or similar expressions. Such forward-looking statements include the ability
of the Company, Merger Sub and Parent to complete the transactions contemplated by the Merger
Agreement, including the parties ability to satisfy the conditions to the consummation of the
Offer and the other conditions set forth in the Merger Agreement and the possibility of any
termination of the Merger Agreement. The forward-looking statements contained in this document are
based on current expectations and assumptions that are subject to risks and uncertainties which may
cause actual results to differ materially from the forward-looking statements. Actual results may
differ
materially from current expectations because of risk associated with uncertainties as to the timing
of the Offer and the subsequent Merger; uncertainties as to how many of the Companys stockholders
will tender their Shares of common stock in the Offer; the ability of Parent to secure the required
funding to finance the transaction; the risk that competing offers or acquisition proposals will be
made; the possibility that various conditions to the consummation of the Offer or the Merger may
not be satisfied or waiver, including that a governmental entity may prohibit, delay or refuse to
grant approval for the consummation of the Offer or the Merger; the effects of disruption from the
transactions on the Companys business and the fact that the announcement and pendency of the
transactions may make it more difficult to establish or maintain relationships with employees,
suppliers and other business partners; the risk that stockholder litigation in connection with the
Offer or the Merger may result in significant costs of defense, indemnification and liability;
other risks and uncertainties pertaining to the business of the Company detailed in the Companys
public filings with the SEC from time to time, including the Companys most recent Annual Report on
Form 10-K for the year ended December 31, 2009 and Quarterly Reports on Form 10-Q. The reader is
cautioned not to unduly rely on these forward-looking statements. The Company expressly disclaims
any intent or obligation to update or revise publicly these forward-looking statements except as
required by law.
Item 9.01 Financial Statements and Exhibits.
(d) | Exhibits. |
Exhibit No. | Description | |
2.1
|
Agreement and Plan of Merger, dated as of October 19, 2010, by and among Cardiac Science Corporation, Opto Circuits (India) Ltd. and Jolt Acquisition Company.* | |
99.1
|
Press release of Cardiac Science Corporation and Opto Circuits India Ltd., dated October 19, 2010. |
* | Schedules omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish a supplemental copy of any omitted schedules to the SEC upon request. |
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.
CARDIAC SCIENCE CORPORATION |
||||
Dated: October 19, 2010 | By: | /s/ MICHAEL K. MATYSIK | ||
Name: | Michael K. Matysik | |||
Title: | Senior Vice President and Chief Financial Officer |
EXHIBIT INDEX
Exhibit No. | Description | |
2.1
|
Agreement and Plan of Merger, dated as of October 19, 2010, by and among Cardiac Science Corporation, Opto Circuits India Ltd. and Jolt Acquisition Company.* | |
99.1
|
Press release of Cardiac Science Corporation and Opto Circuits India Ltd., dated October 19, 2010. |
* | Schedules omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish a supplemental copy of any omitted schedules to the SEC upon request. |