Attached files
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| EX-2.1 - OTIX GLOBAL, INC. | v196426_ex2-1.htm |
| EX-99.1 - OTIX GLOBAL, INC. | v196426_ex99-1.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 reported) September 13, 2010
OTIX
GLOBAL, INC.
(Exact
name of registrant as specified in its charter)
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DELAWARE
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000-30335
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87-0494518
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(State
or other jurisdiction of
incorporation
or organization)
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(Commission
file
number)
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(I.R.S.
Employer
Identification
No.)
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4246
South Riverboat Road, Suite 300
Salt
Lake City, UT 84123
(Address
of principal executive offices)
(801)
312-1700
(Registrant’s
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:
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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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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.
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Entry
into a Material Definitive
Agreement.
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Merger
Agreement
On
September 13, 2010 Otix Global, Inc. (“Otix”) entered into a definitive
Agreement and Plan of Merger (the “Merger Agreement”) with William Demant
Holding A/S (“WDH”).
Pursuant
to the terms of the Merger Agreement, and subject to the conditions thereof,
Otix will merge with and into WDH. If the merger is completed holders of
outstanding shares of Otix’s common stock will be entitled to receive $8.60 in
cash (the “Merger Consideration”) for each share of Otix common stock owned,
totaling approximately $50 million.
Otix has
20 days from the date of the Merger Agreement in which it may initiate, solicit,
or encourage the submission of proposals from other parties. If Otix accepts
another proposal and terminates the Merger Agreement, it will be liable to pay
WDH a fee of $2 million. After 20 days, Otix may also terminate the Merger
Agreement under certain other circumstances, including if its Board of Directors
determines in good faith that it has received a Superior Proposal (as defined in
the Merger Agreement) and otherwise complies with certain terms of the Merger
Agreement, upon the payment of the termination fee. In addition, if WDH
terminates the Merger Agreement under certain circumstances, WDH would be
required to pay Otix a fee of $5 million.
The
consummation of the merger is subject to customary conditions including adoption
of the Merger Agreement by Otix’s stockholders and certain regulatory approvals.
It is anticipated that the merger will be completed between mid-November and the
end of 2010.
WDH has
available lines of credit, of which the aggregate undrawn balance will be
sufficient for WDH to pay the merger consideration and all related fees and
expenses. Consummation of the merger is not subject to a financing
condition.
Otix has
made various representations and warranties and agreed to specified covenants in
the Merger Agreement, including covenants relating to the conduct of Otix’s
business between the date of the Merger Agreement and the closing of the merger,
restrictions on solicitations of proposals after a 20
day period with respect to alternative transactions, governmental filings and
approvals, public disclosures and other matters.
Outstanding
stock awards under Otix’s Stock Incentive Plans, whether vested or unvested,
will be cancelled in the merger, and the holders of such options will be
entitled to receive a cash payment from WDH in an amount equal to the number of
shares subject to such options multiplied by an amount equal to the Merger
Consideration less the applicable exercise price. Options with exercise prices
greater than or equal to the Merger Consideration will be cancelled without any
payment being made in respect thereof. Each share of Otix restricted stock shall
become fully vested and free of any vesting or other restrictions immediately
prior to the effective time of the merger. As a result, all restricted stock
will be treated in a manner consistent with the other shares of common stock and
will be converted into the right to receive the Merger
Consideration.
Stockholder
and Voting Agreement
The
Merger Agreement has been attached as an exhibit to provide investors with
information regarding its terms. It is not intended to provide any other factual
information about Otix or WDH. The representations, warranties and covenants
contained in the Merger Agreement were made solely for the purposes of the
Merger Agreement and the benefit of the parties to the Merger Agreement, and may
be subject to limitations agreed upon by the contracting parties. Certain of the
representations and warranties have been made for the purposes of allocating
contractual risk between the parties to the Merger Agreement instead of
establishing these matters as facts. Investors are not third-party beneficiaries
under the Merger Agreement. In addition, the representations and warranties
contained in the Merger Agreement (i) are qualified by information in a
confidential disclosure schedule that the parties have exchanged, (ii) were made
only as of the date of such Merger Agreement or a prior, specified date and
(iii) in some cases are subject to qualifications with respect to materiality,
knowledge and/or other matters, including standards of materiality applicable to
the contracting parties that differ from those applicable to investors.
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 Otix’s or WDH’s public
disclosures. Accordingly, investors should not rely on the representations and
warranties as characterizations of the actual state of facts or condition of
Otix or WDH or any of their respective subsidiaries or affiliates.
2
IMPORTANT
ADDITIONAL INFORMATION WILL BE FILED WITH THE SEC
Otix
plans to file with the SEC and mail to its stockholders a Proxy Statement in
connection with the merger. The Proxy Statement will contain important
information about Otix, WDH, the merger and related matters. Investors and
security holders are urged to read the Proxy Statement carefully when it is
available. Investors and security holders will be able to obtain free copies of
the Proxy Statement and other documents filed with the SEC by Otix through the
web site maintained by the SEC at www.sec.gov.
Otix and its respective directors and
executive officers, may be deemed to be participants in the solicitation of
proxies in respect of the transactions contemplated by the Merger Agreement.
Information regarding Otix’s directors and executive officers is contained in
Otix’s Annual Report on Form 10-K for the year ended December 31, 2009 and its
proxy statement dated April 2, 2010, which were filed with the SEC. Information
regarding WDH’s directors and executive officers is contained in WDH’s Annual
Report and can be accessed at www.demant.com. As of September 13, 2010, Otix’s
directors and executive officers beneficially owned approximately 99,632 shares,
or 1.7%, of Otix’s common stock. A more complete description will be available
in the Proxy Statement.
CAUTIONARY
NOTE REGARDING FORWARD LOOKING STATEMENTS
Any
statements in this Current Report on Form 8-K about future expectations, plans
and prospects for Otix, including statements about the expected timetable for
consummation of the proposed transaction among WDH and Otix, and any other
statements about WDH’s or Otix’s future expectations, beliefs, goals, plans or
prospects, constitute forward-looking statements within the meaning of The
Private Securities Litigation Reform Act of 1995. These statements may contain
the words “believes,” “anticipates,” “plans,” “expects,” “will” and similar
expressions. Actual results may differ materially from those currently
anticipated due to a number of risks and uncertainties that are subject to
change based on factors that are, in many instances, beyond the control of WDH
and Otix. Risks and uncertainties that could cause results to differ from
expectations include: the merger may not be approved by our shareholders or the
applicable governmental agencies; we may fail to receive the requisite number of
votes or proxies from our shareholders to obtain a quorum; the Merger Agreement
may be terminated according to its terms prior to the finalization of the
merger; the announcement of the pending merger with WDH may have a significant
and deleterious effect on our business; the occurrence of any event or
proceeding that could give rise to the termination of the Merger Agreement; the
inability to complete the merger due to the failure of the closing conditions to
be satisfied; the outcome of any legal proceedings that may be instituted in
connection with the merger; uncertainties as to the timing of the merger; the
risk that competing offers will be made; the effects of disruption from the
transaction making it more difficult to maintain relationships with employees,
customers, suppliers, banking partners, other business partners or governmental
entities; other business effects, including the effects of industry, economic or
political conditions outside of the control of WDH and Otix; transaction costs;
actual or contingent liabilities; or other risks and uncertainties described in
the section titled “Risk Factors” in Otix’s Annual Report on Form 10-K for the
year ended December 31, 2009, as filed by Otix with the Securities and Exchange
Commission, and described in other filings made by Otix from time to time with
the Securities and Exchange Commission.
In
addition, the forward-looking statements included in this Current Report on Form
8-K represent Otix’s estimates as of the date of this Current Report on Form
8-K. Otix anticipates that subsequent events and developments may cause its
forward-looking statements to change. Otix specifically disclaims any obligation
or intention to update or revise these forward-looking statements as a result of
changed events or circumstances after the date of this Current Report on Form
8-K.
3
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ITEM
9.01
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Financial
Statements and Exhibits
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(d)
Exhibits.
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2.1
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Agreement
and Plan of Merger, dated September 13, 2010, by and among William Demant
Holding A/S, OI Merger Sub, Inc., and Otix Global, Inc.,
(1)
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99.1
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Otix
Global, Inc. press release dated September 13,
2010.
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(1)
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The
schedules to the Merger Agreement have been omitted from this filing
pursuant to Item 601(b)(2) of Regulation S-K. Otix Global, Inc. will
furnish copies of any of such schedules to the SEC upon
request.
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4
SIGNATURE
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.
Dated:
September 13, 2010
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OTIX
GLOBAL, INC.
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/s/
Michael M. Halloran
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Michael
M. Halloran
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Vice
President and Chief Financial
Officer
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