Attached files
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EX-3.1 - EXHIBIT 3.1 - Cardiac Science CORP | v57540exv3w1.htm |
EX-10.1 - EXHIBIT 10.1 - Cardiac Science CORP | v57540exv10w1.htm |
EX-3.2 - EXHIBIT 3.2 - Cardiac Science CORP | v57540exv3w2.htm |
EX-10.2 - EXHIBIT 10.2 - Cardiac Science CORP | v57540exv10w2.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
November 30, 2010
Date of Report (Date of earliest event reported)
Date of Report (Date of earliest event reported)
Cardiac Science Corporation
(Exact name of Registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation) |
000-51512 (Commission File Number) |
94-3300396 (I.R.S. Employer Identification No.) |
3303 Monte Villa Parkway
Bothell, WA 98021
(Address of Principal Executive Offices and Zip Code)
Bothell, WA 98021
(Address of Principal Executive Offices and Zip Code)
(425) 402-2000
(Registrants telephone number, including area code)
(Registrants telephone number, including area code)
N/A
(Former Name or Former Address, if changed since Last Report)
(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 1.01 | Entry into a Material Definitive Agreement. |
On December 3, 2010, Cardiac Science Corporation (the Company) entered into the First
Amendment to the Third Amended and Restated Loan and Security Agreement (the Amendment to the Loan
Agreement) and the First Amendment to the Loan and Security Agreement (EX-IM Loan Facility) (the
Amendment to the EX-IM Loan Agreement, and together with the Amendment to the Loan Agreement, the
Amendments), relating to a one-year revolving credit facility with Silicon Valley Bank (SVB).
The Amendment to the Loan Agreement amends the Third Amended and Restated Loan and Security
Agreement dated July 16, 2010 between the Company and SVB (the Loan Agreement) and the Amendment
to the EX-IM Loan Agreement amends the Loan and Security Agreement (EX-IM Loan Facility) dated July
16, 2010 (the EX-IM Loan Agreement, and together with the Loan Agreement, the Credit
Agreements). Pursuant to the Amendments, the Credit Agreements were amended to reduce the maximum
amount available for borrowing under the Credit Agreements from $15.0 million to $10.0 million. In
addition, the Amendments changed the maturity date to December 14, 2010.
Pursuant to the Amendment to the Loan Agreement, SVB consented to the transactions under the
previously announced Agreement and Plan of Merger dated as of October 19, 2010, as amended on
October 29, 2010 and November 19, 2010 (the Merger Agreement), between the Company, Opto Circuits
(India) Ltd. (Opto Circuits), a public limited company incorporated under the laws of the nation
of India, and Jolt Acquisition Company (Merger Sub), a Delaware corporation and a wholly-owned
subsidiary of Opto Circuits, including the merger of Merger Sub with
and into the Company, and waived any violation of the Loan Agreement that might occur in
connection therewith. In connection with the entry into the Amendment to the Loan Agreement, the
Company paid SVB an amendment fee in the amount of $10,000.
The foregoing summary of the Amendments are qualified in their entirety by reference to the
full text of the Amendment to the Loan Agreement and the Amendment to
the EX-IM Loan Agreement,
attached hereto as Exhibits 10.1 and 10.2, respectively.
Item 3.01 | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
Pursuant to the Merger Agreement, upon the terms and subject to the conditions thereof, Merger
Sub commenced a tender offer (the Offer) on November 1, 2010 to acquire all of the outstanding
shares of common stock of the Company, par value $0.001 per share (the Shares), at a purchase
price of $2.30 per share in cash, without interest, less applicable withholding taxes (the
Consideration), upon the terms and subject to the conditions set forth in the Offer to Purchase,
dated November 1, 2010 (the Offer to Purchase), and the related Letter of Transmittal, each as
amended or supplemented from time to time.
The Offer expired at 12:00 midnight, New York City time, on
November 30, 2010. According to BNY Mellon Shareowner Services, the depositary for the Offer, as
of 12:00 midnight, New York City time, on November 30, 2010, a total of approximately 18,251,708
Shares (excluding Shares tendered pursuant to guaranteed delivery
procedures) were validly tendered and not withdrawn in the Offer, which represented approximately 76% of
all issued and outstanding Shares. On December 1, 2010, Merger Sub accepted for payment all Shares
that were validly tendered and not withdrawn, and payment for such Shares has been or will be made
promptly, in accordance with the terms of the Offer.
On December 3, 2010, pursuant to the terms of the Merger Agreement, Merger Sub exercised its
top-up option, provided for in Section 2.2 of the Merger Agreement, to purchase directly from the
Company an additional number of shares of Company common stock sufficient to give Merger Sub
ownership of one share more than 90% of the then outstanding shares of Company common stock, when
combined with the shares owned by Opto Circuits and Merger Sub at the time of the exercise of the
top-up option. Pursuant to the exercise of this top-up option (including the shares issued pursuant
to the top-up option), Merger Sub purchased directly from the Company a total of 30,690,208 newly
issued shares of Company common stock (the Top-Up Shares) at a price of $2.30 per share in
consideration for a promissory note issued to the Company in the aggregate amount of approximately
$70,587,478. Following the purchase of the Top-Up Shares, on December 3, 2010, Merger Sub was
merged with
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and into the Company pursuant to a short-form merger under Delaware law (the Merger), with
the Company remaining as the surviving corporation (the Surviving Corporation). At the effective
time of the Merger, each issued and outstanding share of Company common stock that was not tendered
pursuant to the Offer was cancelled and converted into the right to receive the Consideration
(other than any Shares owned by Opto Circuits or Merger Sub, any Shares owned by the Company as
treasury stock and any Shares owned by stockholders who properly exercise appraisal rights under
Delaware law with respect to their Shares).
As a result of the Merger, the Company no longer fulfills the numerical listing requirements
of the Nasdaq Global Market (Nasdaq). Accordingly, on December 3, 2010, the Company notified
Nasdaq that the Shares issued and outstanding immediately prior to the effective time of the Merger
(other than any Shares owned by Opto Circuits or Merger Sub, any Shares owned by the Company as
treasury stock or any Shares owned by stockholders who properly exercise appraisal rights under
Delaware law with respect to their Shares) were converted into the right to receive the
Consideration, and requested that Nasdaq file with the SEC an application on Form 25 to report that
the Shares are no longer listed on Nasdaq. Trading of the Shares on Nasdaq has been suspended
effective as of the close of business on December 3, 2010. The Company intends to file with the
SEC a Form 15 under the Securities Exchange Act of 1934, as amended (the Exchange Act),
requesting the deregistration of the Shares and the suspension of the Companys reporting
obligations under Sections 13 and 15(d) of the Exchange Act.
The foregoing description of the Merger Agreement is qualified in its entirety by reference to the
Merger Agreement, Amendment No. 1 to the Merger Agreement and Amendment No. 2 to the Merger
Agreement, copies of which were filed as Exhibit 2.1 to the Current Reports on Form 8-K filed by
the Company on October 19, 2010, October 29, 2010 and November 19, 2010, respectively.
Item 3.02 | Unregistered Sales of Equity Securities. |
The disclosure under Item 3.01 is incorporated herein by reference. The Top-Up Shares were
offered and sold to Merger Sub in reliance upon exemptions from registration pursuant to Section
4(2) under the Securities Act of 1933, as amended, as a transaction by an issuer not involving a
public offering.
Item 3.03 | Material Modification to Rights of Security Holders. |
At the effective time of the Merger, each remaining issued and outstanding Share not tendered
in the Offer (other than any Shares owned by Opto Circuits or Merger Sub, any Shares owned by the
Company as treasury stock and any Shares owned by stockholders who properly exercise appraisal
rights under Delaware law with respect to their Shares) were converted into the right to receive
the same $2.30 in cash per share, without interest thereon and less any required withholding taxes,
as was paid in the Offer.
Item 5.01 | Changes in Control of Registrant |
As previously announced, pursuant to the Merger Agreement, Merger Sub commenced a tender offer
on November 1, 2010 to purchase all of the issued and outstanding Shares at a purchase price of
$2.30 per share, net to the seller in cash, without interest thereon and less any required
withholding taxes. The Offer and withdrawal rights expired at 12:00 midnight, New York City time,
on Tuesday, November 30, 2010. Pursuant to the Merger Agreement and the Offer, on December 1,
2010, Merger Sub accepted for payment all Shares validly tendered and not withdrawn prior to the
expiration of the Offer. As of December 1, 2010, Merger Sub had acquired 18,251,708 Shares
pursuant to the Offer, representing approximately 76% of the then-outstanding Shares. Merger Sub
assumed control of the Company by purchasing Shares from the Companys stockholders in connection
with the Offer.
After acquisition of such Shares pursuant to the Offer, Merger Sub merged with and into the
Company by way of the Merger on December 3, 2010. In the Merger, all outstanding Shares (other
than any Shares owned by Opto Circuits or Merger Sub, any Shares owned by the Company as treasury
stock and any Shares owned by stockholders who properly exercise appraisal rights under Delaware
law with respect to their Shares) were converted into the right to receive the same $2.30 in cash
per share, without interest thereon and less any required withholding taxes, as was paid in the
Offer. Pursuant to the Merger, Opto Circuits has acquired 100% of the shares of the Surviving
Corporation. The funds for the purchase of the Shares pursuant to the Offer amounting to
approximately $42.0
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million, and the remaining amount of approximately $16.2 million for purchase of the
untendered Shares and the cash-out of outstanding in-the-money options and vested restricted stock
units pursuant to the Merger, came from Opto Circuits existing cash balances and available credit
facilities, as disclosed in Amendment No. 1 to Opto Circuits Schedule TO, as filed with the
Securities and Exchange Commission on November 19, 2010.
The information set forth below in Item 5.02 of this Current Report on Form 8-K is
incorporated herein by reference. The other information required by Item 5.01(a) of Form 8-K is
contained in the Companys Solicitation/Recommendation Statement on Schedule 14D-9 (the Schedule
14D-9) originally filed with the SEC on November 1, 2010, as subsequently amended, and
is incorporated herein by reference.
The foregoing description of the Merger Agreement is qualified in its entirety by reference to
the Merger Agreement, Amendment No. 1 to the Merger Agreement and Amendment No. 2 to the Merger
Agreement, copies of which were filed as Exhibit 2.1 to the Current Reports on Form 8-K filed by
the Company on October 19, 2010, October 29, 2010 and November 19, 2010, respectively.
Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
The Merger Agreement provides that, effective upon the payment by Merger Sub for the Shares
accepted pursuant to the Offer, Opto Circuits is entitled to designate a number of directors,
rounded up to the next whole number, to serve on the Board of Directors of the Company (the
Board) as is equal to the product of the total number of directors on the Board (determined after
giving effect to the directors elected pursuant to such designation) multiplied by the percentage
that the aggregate number of Shares beneficially owned by Opto Circuits and/or Merger Sub
(including Shares accepted for payment pursuant to the Offer) bears to the total number of Shares
then outstanding.
In accordance with the Merger Agreement and at Opto Circuits request, the Board appointed
five representatives designated by Opto Circuits namely, Anshul Vaswaney, Arvind Manjegowda,
Ashwin Khemani, Balasubramanian Saravanan, and Valiveti Bhaskar as directors of the Board
effective as of December 1, 2010. The appointment of these directors provided Opto Circuits with
majority representation on the Board. Information about the five directors designated for
appointment by Opto Circuits has been previously disclosed in the Information Statement contained
in the Schedule 14D-9 and is incorporated herein by reference. In accordance with the Merger
Agreement, on November 30, 2010, Ronald A. Andrews, Jr. and David L. Marver provided notice to the
Board of their resignation from the Board and any committee of the Board, which became effective on
December 1, 2010 upon the appointment of the five representatives to the Board designated by Opto
Circuits. Pursuant to the Merger Agreement, three directors who were independent directors for
purposes of the continued listing requirements of NASDAQ, W. Robert Berg, Ruediger Naumann-Etienne
and Timothy C. Mickelson, remained on the Board until immediately prior to the effective time of
the Merger. Pursuant to the Merger Agreement, upon the effective time of the Merger, the sole
director of Merger Sub immediately prior to the Merger namely, Anshul Vaswaney became the
sole director of the Surviving Corporation and Messrs. Naumann-Etienne, Berg, Mickelson,
Manjegowda, Khemani, Saravanan and Bhaskar ceased to serve as directors.
As a result of Merger Sub controlling more than 50% of the Companys voting power, the
Company qualified as a controlled company as defined in Rule 5615(c) of the NASDAQ Marketplace
Rules. Therefore, the Company was exempt from the requirements of Rule 5605 of the NASDAQ
Marketplace Rules with respect to the Board being comprised of a majority of independent
directors as defined by the NASDAQ Marketplace Rules.
The foregoing description of the Merger Agreement is qualified in its entirety by reference to
the Merger Agreement, Amendment No. 1 to the Merger Agreement and Amendment No. 2 to the Merger
Agreement, copies of which were filed as Exhibit 2.1 to the Current Reports on Form 8-K filed by
the Company on October 19, 2010, October 29, 2010 and November 19, 2010, respectively.
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Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Pursuant to the Merger Agreement, on December 3, 2010 at the effective time of the Merger, the
Companys certificate of incorporation was amended and restated in its entirety. A copy of the
certificate of incorporation of the Surviving Corporation, as amended and restated pursuant to the
Merger, is attached hereto as Exhibit 3.1 and incorporated herein by reference.
Pursuant to the Merger Agreement, on December 3, 2010 at the effective time of the Merger, the
Companys bylaws were amended and restated in their entirety. A copy of the bylaws of the
Surviving Corporation, as amended and restated pursuant to the Merger, is attached hereto as
Exhibit 3.2 and incorporated herein by reference.
Item 9.01 | Financial Statements and Exhibits. |
(d) | Exhibits. |
Exhibit No. | Description | |||
3.1 | Amended and Restated Certificate of Incorporation of Cardiac Science Corporation |
|||
3.2 | Amended and Restated Bylaws of Cardiac Science Corporation |
|||
10.1 | First Amendment to Third Amended and Restated Loan and Security Agreement
between Silicon Valley Bank and Cardiac Science Corporation, dated December 3, 2010 |
|||
10.2 | First Amendment to Loan and Security Agreement (EX-IM Loan Facility) between
Silicon Valley Bank and Cardiac Science Corporation, dated December 3, 2010 |
|||
20.1 | Information Statement pursuant to Section 14(f) of the Securities Exchange Act
of 1934, as amended, and Rule 14f-1 thereunder (incorporated by reference to
Exhibit (a)(8) of the Companys Solicitation/Recommendation Statement on
Schedule 14D-9 filed with the Securities and Exchange Commission on November 1,
2010, as amended) |
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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: December 6, 2010
CARDIAC SCIENCE CORPORATION |
||||
By: | /s/ MICHAEL K. MATYSIK | |||
Name: | Michael K. Matysik | |||
Title: | Senior Vice President, Chief Financial Officer and Secretary | |||
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EXHIBIT INDEX
Exhibit No. | Description | |||
3.1 | Amended and Restated Certificate of Incorporation of Cardiac Science Corporation |
|||
3.2 | Amended and Restated Bylaws of Cardiac Science Corporation |
|||
10.1 | First Amendment to Third Amended and Restated Loan and Security Agreement
between Silicon Valley Bank and Cardiac Science Corporation, dated December 3, 2010 |
|||
10.2 | First Amendment to Loan and Security Agreement (EX-IM Loan Facility) between
Silicon Valley Bank and Cardiac Science Corporation, dated December 3, 2010 |
|||
20.1 | Information Statement pursuant to Section 14(f) of the Securities Exchange Act
of 1934, as amended, and Rule 14f-1 thereunder (incorporated by reference to
Exhibit (a)(8) of the Companys Solicitation/Recommendation Statement on
Schedule 14D-9 filed with the Securities and Exchange Commission on November 1,
2010, as amended) |
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