UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(AMENDMENT NO. 1)
Cardiac Science Corporation
(Name of Subject Company (issuer))
Opto Circuits (India) Ltd.
and
Jolt Acquisition Company
(Names of Filing Persons (identifying status as offeror, issuer or other person))
Common Stock, par value $0.001 per share
(Title of Class of Securities)
14141A108
(CUSIP Number of Class of Securities)
Thomas Dietiker
Opto Circuits (India) Ltd.
Plot No. 83
Electronics City, Hosur Road
Bangalore, India 560 010
+91 80 28 52 10 84
(Name, address, and telephone numbers of person authorized
to receive notices and communications on behalf of filing persons)
Copy to:
Mark T. Ehrmann, Esq.
Ryan P. Morrison, Esq.
Quarles & Brady LLP
33 East Main, Suite 900
Madison, Wisconsin 53703
(608) 251-5000
Calculation of Filing Fee
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Transaction Valuation*
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Amount of Filing Fee**
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$64,523,593
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$4,600.54
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*
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For purposes of calculating the filing fee pursuant to Rule 0-11(d) only, the Transaction
Valuation was calculated on the basis of (i) the aggregate of 28,053,736 shares of common
stock, par value $0.001 per share, of Cardiac Science Corporation (Shares), which is the
estimated maximum number of Shares that may be acquired in this tender offer (consisting of
(a) 23,867,815 Shares issued and outstanding, (b) 4,185,921 Shares authorized and reserved for
issuance (including outstanding options to purchase 2,755,968 Shares, outstanding restricted
stock units with respect to 1,421,609 Shares and outstanding warrants to purchase 8,344
Shares)), and (ii) the tender offer price of $2.30 per Share.
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**
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The filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of
1934, as amended, and Fee Rate Advisory #4 for fiscal year 2010, issued December 17, 2009, is
calculated by multiplying the Transaction Valuation by 0.00007130.
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Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify
the filing with which the offsetting fee was previously paid. Identify the previous filing by
registration statement number, or the Form or Schedule and the date of its filing.
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Amount Previously Paid: $4,600.54
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Filing Party: Opto Circuits
(India) Ltd. and Jolt Acquisition
Company
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Form or Registration No.: Schedule TO-T
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Date Filed: November 1, 2010
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o
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Check the box if the filing relates solely to preliminary communications made before the
commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement relates:
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third-party tender offer subject to Rule 14d-1.
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o
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issuer tender offer subject to Rule 13e-4.
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o
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going-private transaction subject to Rule 13e-3.
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o
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final amendment reporting the results of the tender
offer:
o
This Amendment No. 1 (this
Amendment
) amends and supplements the Tender Offer Statement on
Schedule TO, originally filed with the Securities and Exchange Commission on November 1, 2010
(which, together with any subsequent amendments and supplements thereto, collectively constitute
this
Schedule TO
). The Schedule TO relates to the offer by Jolt Acquisition Company, a Delaware
corporation (
Purchaser
) and a wholly-owned subsidiary of Opto Circuits (India) Ltd., a public
limited company incorporated under the laws of the nation of India (
Opto Circuits
), to purchase
all the issued and outstanding shares of common stock, par value $0.001 per share (
Shares
) of
Cardiac Science Corporation, a Delaware corporation (
Cardiac Science
), at a price of $2.30 per
Share, net to the seller in cash, without interest thereon (the
Offer Price
), and less any
required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to
Purchase dated November 1, 2010, a copy of which is attached hereto as Exhibit (a)(1)(A) (which,
together with the revisions described below and any subsequent amendments and supplements thereto,
collectively constitute the
Offer to Purchase
), and in the related Letter of Transmittal, as
amended, a copy of which is attached hereto as Exhibit (a)(1)(B), which, as each may be amended or
supplemented from time to time, collectively constitute the
Offer
. This Schedule TO is being
filed on behalf of Purchaser and Opto Circuits. Capitalized terms used and not defined in this
Amendment shall have the meanings assigned to such terms in the Offer to Purchase and Schedule TO.
Items 1 through 9 and 11.
All the information set forth in the Offer to Purchase is incorporated by reference herein in
response to Items 1 through 9 and Item 11 of this Schedule TO, and is hereby amended and
supplemented by the information specifically provided in this Schedule TO.
The Offer to Purchase is hereby amended and supplemented as follows:
Definition
Throughout the Offer to Purchase, the term Merger Agreement shall mean:
The Agreement and Plan of Merger, dated October 19, 2010, as amended on October
29, 2010 and November 19, 2010, among Purchaser, Opto Circuits and Cardiac Science (as
it may be amended from time to time, the
Merger Agreement
).
Summary Term Sheet
The Summary Term Sheet in the Offer to Purchase is hereby amended and supplemented by
replacing the second bullet point under the heading Opto Circuits and Source of Funds
(appearing on page 2) with the following text:
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The Offer is not subject to any financing condition. Opto Circuits plans to
fund the purchase of Shares in the Offer with its available cash and available
credit facilities.
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Section 9, Certain Information Concerning Purchaser and Opto Circuits
Section 9, Certain Information Concerning Purchaser and Opto Circuits, of the Offer to
Purchase is hereby amended and supplemented by replacing in its entirety the last paragraph in
Section 9 (which appears on page 18) with the following text:
We do not believe the financial condition of Opto Circuits is relevant to your
decision whether to tender your Shares and accept the Offer because (a) the Offer is
being made for all outstanding Shares solely for cash, (b) the Offer is not subject to
any financing condition, (c) if we consummate the Offer, we will acquire all remaining
Shares for the same cash price in the Merger, and (d) Opto Circuits has, and will
arrange for Purchaser to have, sufficient funds
to purchase all Shares validly tendered and not properly withdrawn in the Offer
and to acquire the remaining outstanding Shares and pay holders of
Cardiac Science's
other equity-based interests in connection with the Merger.
Section 10, Background of the Offer; Contacts with Cardiac Science
Section 10, Background of the Offer; Contacts with Cardiac Science, of the Offer to Purchase
is hereby amended and supplemented by replacing in its entirety the last paragraph in Section 10
(which appears on page 22) with the following text:
In the early morning of October 19, 2010, the parties executed a definitive
merger agreement. The parties issued a press release announcing the transaction later
in the morning on October 19, 2010. On October 29, 2010, the parties entered into
Amendment No. 1 to the merger agreement. Amendment No. 1 made certain technical
corrections to the merger agreement originally entered into, including corrections to
certain internal section cross references. On November 19, 2010, the parties entered
into Amendment No. 2 to the Merger Agreement. Amendment
No. 2 changed the number of shares of common stock of the surviving corporation into which each share of common
stock of Purchaser converts upon the effective time of the Merger, and amended and
restated certain exhibits to the Merger Agreement to conform with such change.
Section 11, Purpose of the Offer and Plans for Cardiac Science; Merger Agreement
Section 11, Purpose of the Offer and Plans for Cardiac Science; Merger Agreement, of the
Offer to Purchase is hereby amended and supplemented by replacing in its entirety the first
paragraph under the heading The Merger Agreement Conversion of Shares (which appears on page
25) with the following text:
Conversion of Shares.
Each Share issued and outstanding immediately prior to the
effective time of the Merger (other than Shares held in the treasury of Cardiac
Science, or Shares owned by Opto Circuits, Purchaser, or any other direct or indirect
wholly owned subsidiary of Opto Circuits, or Shares held by stockholders who properly
demand and perfect appraisal rights under Delaware law) will, by virtue of the Merger
and without any action on the part of the holder, be converted at the effective time of
the Merger into the right to receive the Merger Consideration, payable to such holder
upon surrender of book-entry shares or the certificates formerly representing such
Shares, without interest and less any required withholding taxes. At the effective time
of the Merger, each Share held in the treasury of Cardiac Science and each Share owned
by Opto Circuits, Purchaser, or any other direct or indirect wholly owned subsidiary of
Opto Circuits will be canceled and no payment or distribution will be made with respect
to such shares. At the effective time of the Merger, each share of Purchasers common
stock issued and outstanding immediately prior to the effective time will, by virtue of
the Merger and without any action on the part of the holder thereof, be converted into
238,678 fully paid and nonassessable shares of common stock of the surviving
corporation.
Section 12, Source and Amount of Funds
The following text hereby replaces in its entirety Section 12, Source and Amount of Funds,
of the Offer to Purchase:
12. Source and Amount of Funds
Opto Circuits estimates that the total amount of funds necessary to purchase all
outstanding shares of Cardiac Science pursuant to the Offer and the Merger will be
approximately $60 million, which will be used to pay stockholders of Cardiac
Science and holders of Cardiac Sciences other equity-based interests and to pay
customary fees and expenses in connection with the Offer and the Merger and the related
transactions.
The Offer is not subject to any financing condition. Opto Circuits plans to fund
the purchase of Shares in the Offer with its available cash and available credit
facilities. A summary of the credit facilities is provided below.
We do not believe our financial condition is relevant to your decision whether to
tender your Shares and accept the Offer because (a) the Offer is being made for all
outstanding Shares solely for cash, (b) the Offer is not subject to any financing
condition, (c) if we consummate the Offer, we will acquire all remaining Shares for the
same cash price in the Merger, and (d) Opto Circuits has, and will arrange for
Purchaser to have, sufficient funds to purchase all Shares validly tendered and not
properly withdrawn in the Offer and to acquire the remaining outstanding Shares and pay
holders of Cardiac Sciences other equity-based interests in connection with the Merger.
DBS Credit Facility
On
November 19, 2010, Purchaser entered into a term loan credit facility in an
aggregate amount of up to $30 million (USD) (the
DBS Facility
) with DBS Bank Ltd.,
Singapore (
DBS
). The DBS Facility is
expected to be used to fund a portion of the purchase of
Shares in the Offer and the Merger. Loans outstanding under the DBS Facility will bear
interest at a per annum rate equal to LIBOR plus 3.5%. The DBS Facility contains
representations and warranties, affirmative and negative covenants (including financial
covenants) and events of default that are customary and typical for financings of this
type. As security for the DBS Facility and other obligations, Purchaser has agreed to
pledge shares of Cardiac Science following the completion of the
Offer. All obligations of Purchaser under the DBS Facility will be guaranteed by Opto
Circuits. Purchaser is permitted to prepay loans outstanding under the DBS Facility
without penalty or premium. The DBS Facility is to be repaid in installments beginning 18
months following the initial draw on the DBS Facility and has a final maturity date of
five years from the initial draw on the DBS Facility.
Purchaser is required to pay DBS a front-end fee of one percent of the maximum
amount of the Facility and other related fees and expenses. Purchaser must also comply
with various standard conditions prior to drawing on the Facility. These conditions
are customary in similar transactions, including:
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The execution of final customary documentation.
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There not having been any event, occurrence, development or state of
circumstances or facts that has had or would reasonably be expected to have a
material adverse effect on the Purchaser or DBS.
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Provision of various financial and acquisition documents.
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Provision of certain corporate governance documents of each obligor.
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Provision of various legal opinions.
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Credit Facility with Standard Chartered Bank
Opto Circuits has entered into a $30 million (USD) credit facility (the
Credit
Facility
), dated August 18, 2010, with Standard Chartered Bank, a body corporate
incorporated under Royal Charter, 1853, acting through its branch in Bangalore, India
(
Standard Chartered
).
The Credit Facility is of the nature of pre-shipment financing under export orders
and is available on a running account basis as per Reserve Bank of India guidelines to
meet the
working capital requirements of Opto Circuits. Funds are available to be drawn
under the Credit Facility for a period of 12 months from the date of the facility.
Pursuant to a letter dated November 11, 2010, Standard Chartered has confirmed that the
Credit Facility is available to fund the purchase of Shares in the Offer and the
Merger, and $30 million (USD) is currently available under the Credit Facility. A copy
of that letter is filed as an exhibit to Opto Circuits Tender Offer Statement on
Schedule TO filed with the SEC and is incorporated herein by reference.
Funding under the Credit Facility is subject to the following terms and
conditions:
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The Credit Facility will be used for the specified purposes;
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Opto Circuits submitting relevant documents relating to the Credit Facility
as specified by Standard Chartered from time to time;
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Opto Circuits complying with conditions precedent customary in similar
transactions, including delivery of resolutions of the board of directors
authorizing use of the Credit Facility, delivery of various corporate
governance documents, delivery of a demand promissory note undertaking to
repay the entire amount of the Credit Facility, and other requirements as
required from time to time by Standard Chartered;
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Opto Circuits complying with Reserve Bank of India guidelines;
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Opto Circuits providing current assets as security in favor of Standard
Chartered and agreeing to insure the property offered as security;
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Opto Circuits being the sole legal and beneficial owner of all its fixed
and current assets and none of such assets shall be sold without the prior
consent of Standard Chartered;
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A periodic review based on Opto Circuits financial statements; and
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General covenants and representations and warranties, including but not
limited to details regarding incorporation of Opto Circuits, its
constitutional documents, and changes in ownership.
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Interest rates under the Credit Facility will be at rates as negotiated with and
agreed by Standard Chartered, subject to Reserve Bank of India guidelines. Opto
Circuits expects that such rates will be in a range of 2.5% to 3.5% per annum. Such
interest rates shall be subject to change upon change in interest rates by the Reserve
Bank of India from time to time.
If Opto Circuits does not comply with any terms or conditions of
the Credit Facility or in case of a failure to pay on the due date or in the case of
drawing in excess of the sanctioned limit or upon the occurrence of an event of
default, Opto Circuits will be required to pay additional interest of 2% per annum over
and above the interest applicable to the Credit Facility.
Amounts drawn on the Credit Facility are required to be repaid on the due dates
specified and agreed to by Standard Chartered. Any prepayment or partial payment may
be allowed only with the prior written consent of Standard Chartered and will be
subject to any prepayment charges and conditions as stipulated by Standard Chartered.
Opto Circuits obligations under the Credit Facility are secured on a first pari
passu charge basis over current assets. Under the terms of the Credit Facility,
Standard Chartered has the right, upon providing written notice, to cancel all undrawn
portions of the Credit Facility and demand repayment of all outstanding amounts under
the Credit Facility.
Copies of each of the Credit Facility and the DBS Facility are included as
exhibits to Opto Circuits Tender Offer Statement on Schedule TO filed with the SEC and
are
incorporated herein by reference. Reference is made to such exhibits for a more
complete description of the terms and conditions of the credit facilities.
Opto Circuits plans to repay the borrowings under the credit facilities over time
with new financing and available cash.
Opto Circuits reserves the right to fund the purchase of the Shares pursuant to
the Offer from one or a combination of the above discussed sources or other sources.
Section 18, Litigation
The following text hereby replaces in its entirety Section 18, Litigation, of the Offer to
Purchase:
18. Litigation
Subsequent to the announcement of the Merger, seven putative shareholder class
actions were filed alleging claims related to the Merger:
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On October 20, 2010, a shareholder class action complaint was filed in
Snohomish County Superior Court. The complaint, captioned
Creamer v. Cardiac
Science Corporation, et al.
, names as defendants the members of the Cardiac
Science board, as well as Cardiac Science, one of its executive officers, Opto
Circuits, and Purchaser (the
Creamer Action
). The plaintiffs allege that the
Cardiac Science directors and officers breached their fiduciary duties to the
Cardiac Science stockholders, and further claim that Cardiac Science, Opto
Circuits and Purchaser aided and abetted the purported breaches of fiduciary
duty. The complaint alleges that the proposed transaction between Cardiac
Science and Opto Circuits involves an unfair price, an inadequate sales
process and unreasonable deal protection devices and that defendants agreed to
the Merger to benefit themselves personally. The complaint seeks injunctive
relief, including to enjoin the transaction, and to impose a constructive
trust in favor of plaintiffs and the purported class upon any benefits
improperly received by defendants. Plaintiffs also seek attorneys and other
fees and costs, in addition to seeking other relief. The foregoing summary is
qualified in its entirety by reference to the Creamer Action, which is filed
as an exhibit to the Schedule TO that has been filed with the Commission and
is incorporated herein by reference.
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On October 22, 2010, a shareholder class action complaint was filed in the
Court of Chancery of the State of Delaware. The complaint, captioned
Patenaude
v. Cardiac Science Corporation, et al.
, names as defendants the members of the
Cardiac Science board, as well as Cardiac Science, Opto Circuits, and
Purchaser (the
Patenaude Action
). The plaintiffs allege that the Cardiac
Science directors breached their fiduciary duties to the Cardiac Science
stockholders, and further claim that Cardiac Science, Opto Circuits and
Purchaser aided and abetted the purported breaches of fiduciary duty. The
complaint alleges that the proposed transaction between Cardiac Science and
Opto Circuits involves an unfair price, an inadequate sales process and
unreasonable deal protection devices and that defendants agreed to the Merger
to
benefit themselves personally. The complaint seeks injunctive relief, including
to enjoin the transaction, and, in the event the transaction is consummated, to
rescind the transaction. Plaintiffs also seek attorneys and other fees and
costs, in addition to seeking other relief. The foregoing summary is qualified
in its entirety by reference to the Patenaude Action, which is filed as an
exhibit to the Schedule TO that has been filed with the Commission and is
incorporated herein by reference.
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On October 22, 2010, a shareholder class action complaint was filed in
Snohomish County Superior Court. The complaint, captioned
Gluck v.
Naumann-Etienne, et al.
, names as defendants the members of the Cardiac
Science board, as well as Cardiac Science, Opto Circuits, and Purchaser (the
Gluck Action
). The plaintiffs allege that the Cardiac Science directors and
officers breached their fiduciary duties to the Cardiac Science stockholders,
and further claim that Opto Circuits and Purchaser aided and abetted the
purported breaches of fiduciary duty. The complaints allege that the proposed
transaction between Cardiac Science and Opto Circuits involves an unfair
price, an inadequate sales process and unreasonable deal protection devices.
The complaint seeks injunctive relief, including to enjoin the transaction,
and, in the event the transaction is consummated, to rescind the transaction.
Plaintiffs also seek attorneys and other fees and costs, in addition to
seeking other relief. The foregoing summary is qualified in its entirety by
reference to the Gluck Action, which is filed as an exhibit to the Schedule TO
that has been filed with the Commission and is incorporated herein by
reference.
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On October 26, 2010, a shareholder class action complaint was filed in
Snohomish County Superior Court. The complaint, captioned
Rapport v. Marver,
et al.
, names as defendants the members of the Cardiac Science board, as well
as Cardiac Science (the
Rapport Action
). The plaintiffs allege that the
Cardiac Science directors and officers breached their fiduciary duties to the
Cardiac Science stockholders, and further claim that Cardiac Science aided and
abetted the purported breaches of fiduciary duty. The complaint alleges that
the proposed transaction between Cardiac Science and Opto Circuits involves an
unfair price, an inadequate sales process and unreasonable deal protection
devices. The complaint seeks injunctive relief, including to enjoin the
transaction, and, in the event the transaction is consummated, to rescind the
transaction. Plaintiffs also seek attorneys and other fees and costs, in
addition to seeking other relief. The foregoing summary is qualified in its
entirety by reference to the Rapport Action, which is filed as an exhibit to
the Schedule TO that has been filed with the Commission and is incorporated
herein by reference.
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On October 27, 2010, a shareholder class action complaint was filed in
Snohomish County Superior Court. The complaint, captioned
Bagge v.
Naumann-Etienne, et al.
, names as defendants the members of the Cardiac
Science board, former Cardiac Science Board member Christopher Davis, as well
as Cardiac Science, Opto Circuits and Purchaser (the
Bagge Action
). The
plaintiffs allege that the Cardiac Science directors and officers breached
their fiduciary duties to the Cardiac Science stockholders, and further claim
that Cardiac Science, Opto Circuits and Purchaser aided and abetted the
purported breaches of fiduciary duty. The complaint alleges that the proposed
transaction between Cardiac Science and Opto Circuits involves an unfair
price, an inadequate sales process and unreasonable deal protection devices.
The complaint seeks injunctive relief, including to enjoin the transaction.
Plaintiffs also seek attorneys and other fees and costs, in addition to
seeking other relief. The foregoing summary is qualified in its entirety by
reference to the Bagge Action, which is filed as an exhibit to the Schedule TO
that has been filed with the Commission and is incorporated herein by
reference.
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On November 10, 2010, a shareholder class action complaint was filed in the
Court of Chancery of the State of Delaware. The complaint, captioned
Kühni v.
Cardiac Science Corporation, et al.
, names as defendants the members of the
Cardiac Science board, as well as Cardiac Science, Opto Circuits, and
Purchaser (the
Kühni Action
). The plaintiffs allege that the Cardiac Science
directors breached their fiduciary duties to the Cardiac Science stockholders
and further claim that Cardiac Science, Opto Circuits and Purchaser aided and
abetted the purported breaches of fiduciary duty. The complaint alleges that
the proposed transaction between Cardiac
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Science and Opto Circuits involves an
unfair price, an inadequate sales process and unreasonable deal protection
devices and that defendants agreed to the Merger to benefit themselves
personally. The complaint alleges that the Form 14D-9 filed by Cardiac Science
on November 1, 2010 fails to disclose to Cardiac Science shareholders material
information necessary for them to determine whether to tender into the Tender
Offer or to seek appraisal. The complaint seeks injunctive relief, including
to enjoin the transaction, and, in the event the transaction is consummated,
to rescind the transaction. Plaintiffs also seek attorneys and other fees and
costs, in addition to seeking other relief. The foregoing summary is
qualified in its entirety by reference to the Kühni Action, which is filed as
an exhibit to the Schedule TO that has been filed with the Commission and is
incorporated herein by reference.
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On November 10, 2010, a shareholder class action complaint was filed in the
Court of Chancery of the State of Delaware. The complaint, captioned
Suan
Investments, Inc. v. Cardiac Science Corporation, et al.
, names as defendants
the members of the Cardiac Science board, as well as Cardiac Science, Opto
Circuits, and Purchaser (the
Suan Action
). The plaintiffs allege that the
Cardiac Science directors breached their fiduciary duties to the Cardiac
Science stockholders, and further claim that Cardiac Science, Opto Circuits
and Purchaser aided and abetted the purported breaches of fiduciary duty. The
complaint alleges that the proposed transaction between Cardiac Science and
Opto Circuits involves an unfair price, an inadequate sales process and
unreasonable deal protection devices and that defendants agreed to the Merger
to benefit themselves personally. The complaint alleges that the Form 14D-9
filed by Cardiac Science on November 1, 2010 fails to disclose to Cardiac
Science shareholders material information necessary for them to determine
whether to tender into the Tender Offer or to seek appraisal. The complaint
seeks injunctive relief, including to enjoin the transaction. Plaintiffs also
seek attorneys and other fees and costs, in addition to seeking
other relief. The foregoing summary is qualified in its
entirety by reference to the Suan Action, which is filed as an exhibit to the
Schedule TO that has been filed with the Commission and is incorporated herein
by reference.
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In connection with these seven putative class action lawsuits, the following
litigation events have occurred:
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On November 3, 2010, plaintiffs in the four putative shareholder class
actions pending in Snohomish County, Washington filed an Unopposed Motion for
(1) Consolidation of Related Cases and Appointment of Counsel for the Proposed
Class and (2) Approval of Plaintiffs Proposed Leadership Structure
(
Consolidation Motion
). The Snohomish County Superior Court granted the
Consolidation Motion on November 4, 2010 and consolidated the Creamer Action,
the Gluck Action, the Rapport Action and the Bagge Action into one action
under the caption
In re Cardiac Science Corp. Shareholder Litigation
(the
Consolidated Washington Action
). The plaintiffs in the Consolidated
Washington Action did not file a consolidated complaint.
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On November 5, 2010, plaintiffs in the Consolidated Washington Action filed
Plaintiffs Motion and Memorandum of Law for Limited Expedited Discovery.
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On November 5, 2010, plaintiff in the
Patenaude
Action served a
Subpoena ad
Testificandum
and
Duces Tecum
on Piper Jaffray & Co., the financial
advisor to the Cardiac Science board of directors related to the proposed
merger with Opto Circuits.
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On November 7, 2010, plaintiff in the
Patenaude
Action served his First
Request for the Production of Documents and Things to All Defendants.
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On November 7, 2010, plaintiff in the
Patenaude
Action filed an amended
complaint (the
Amended Patenaude Action
) in the Court of Chancery of the
State of Delaware. The amended complaint named the same defendants as named
in the original complaint but added allegations that the Cardiac Science
directors and officers breached their fiduciary duties to the Cardiac Science
shareholders by providing materially misleading and incomplete information
about the Tender Offer to Cardiac Science shareholders. The foregoing summary
of the Amended
Patenaude
Action is qualified in its entirety by reference to
the Amended
Patenaude
Action, which is filed as an exhibit to the Schedule TO
that has been filed with the Commission and is incorporated herein by
reference.
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On November 8, 2010, plaintiff in the
Patenaude
Action scheduled his motion
for preliminary injunction to be heard by the Delaware Court of Chancery on
November 22, 2010.
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On November 9, 2010, Cardiac Science and the Cardiac Science directors and
officers filed the Cardiac Science Defendants Motion to Dismiss or, In the
Alternative, Stay Litigation in the Consolidated Washington Action.
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On November 10, 2010, the parties to the
Patenaude
Action and the
Kühni
Action reached agreement on a schedule for expedited discovery and expedited
briefing on plaintiff Patenaudes motion for preliminary injunction, based on
the November 22, 2010 hearing date for the preliminary injunction motion.
Also on November 10, 2010, the parties to the
Patenaude
Action and the
Kühni
Action reached agreement on the terms of a Stipulation and Proposed Order
Governing the Production and Exchange of Confidential and Highly Confidential
Information (the
Confidentiality Order
). Cardiac Science and Opto Circuits
thereupon commenced production of documents to the plaintiffs in these two
actions subject to the terms of the Confidentiality Order and in accord with
the agreed schedule for expedited discovery.
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On November 11, 2010, the parties to the
Patenaude
Action and the
Kühni
Action filed the Confidentiality Order.
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On November 11, 2010, plaintiffs in the Consolidated Washington Action
agreed to stay the Consolidated Washington Action in favor of participating in
the litigation and expedited discovery in the
Patenaude
Action and the
Kühni
Action.
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On November 12, 2010, in light of the agreement to stay the Consolidated
Washington Action, plaintiffs in the Consolidated Washington Action struck
their Motion for Limited Expedited Discovery and Cardiac Science and the
Cardiac Science directors and officers struck their Motion to Dismiss or, in
the Alternative, Stay Litigation.
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On November 15, 2010, the parties to the Consolidated Washington Action
filed and the Court entered a Stipulation and Agreed Order Regarding Stay of
Action, pursuant to which the Consolidated Washington Action has been stayed
in favor of the Washington plaintiffs participating in the litigation and
expedited discovery in the
Patenaude
Action and the
Kühni
Action.
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On November 15 and November 16, 2010, plaintiffs in the
Patenaude
Action,
the
Kühni
Action and the Consolidated Washington Action took the depositions
under oath of Cardiac Science President and Chief Executive Officer David L.
Marver and a representative of Piper Jaffray & Co.
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While Opto Circuits and Purchaser believe that each of the seven aforementioned
complaints is without merit and that they, Cardiac Science and the other defendants
named therein (collectively, the
Defendants
) have valid defenses to all claims, in an
effort to minimize the cost and expense of litigation relating to such lawsuits, on
November 17, 2010, the Defendants reached an agreement in principle with the plaintiffs
in the
Patenaude
Action,
the
Kühni
Action and the Consolidated Washington Action
(collectively, the
Settling Plaintiffs
) to settle each of those putative class action
lawsuits in its entirety and resolve all allegations by the Settling Plaintiffs against
the Defendants in connection with the Offer, the Merger and the other transactions
contemplated by the Merger Agreement. In support of the settlement,
on November 18,
2010, the Defendants entered into a memorandum of understanding (
MOU
) with the
Settling Plaintiffs. Subject to court approval and further definitive documentation,
the MOU resolves the claims brought by the Settling Plaintiffs in all of the
aforementioned lawsuits. The MOU, which is subject to further definitive documentation
and court approval, provides for a settlement and release by the purported class of
Cardiac Sciences stockholders of all claims against the Defendants in connection with
the Offer, the Merger and the other transactions contemplated by the Merger Agreement.
In exchange for such settlement and release, the parties agreed, after arms length
discussions between and among the Defendants and the Settling Plaintiffs, that Cardiac
Science would provide additional supplemental disclosures to its Schedule 14D-9 (such
disclosures being set forth in an amendment thereto), although Cardiac Science does not
make any admission that such additional supplemental disclosures are material or
otherwise required. After reaching agreement on the substantive terms of the
settlement, the parties also agreed that Settling Plaintiffs may apply to the court for
an award of reasonable attorneys fees and reimbursement of reasonable expenses; unless
the parties are able to reach agreement on the amount of such fees and expenses,
Defendants reserve the right to oppose the Settling Plaintiffs application for
attorneys fees and expenses. The settlement, including the payment by the Defendants
of any such fees and expenses, is also contingent upon, among other things,
consummation of the Offer, the Merger and the other transactions contemplated by the
Merger Agreement and the approval of the Delaware Court of Chancery. In the event that
the MOU is not approved and such conditions are not satisfied, the Defendants will
continue to vigorously defend these actions. The foregoing summary of the MOU is
qualified in its entirety by reference to the MOU, which is filed as an exhibit to the
Schedule TO that has been filed with the Commission and is incorporated herein by
reference. The plaintiff in the
Suan
Action is not a party to
the settlement or the MOU, and Opto Circuits, Purchaser and the other
Defendants intend to vigorously contest the claims if pursued.
Item 12.
Exhibits.
Item 12 of this Schedule TO is hereby amended and supplemented by adding the following
exhibits thereto:
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(a)(1)(B)
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Amended Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9)
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(a)(5)(B)(i)
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Verified Amended Class Action Complaint captioned
Lionel Patenaude v. Cardiac Science Corporation, Ruediger Naumann-Etienne, Ronald Andrews, W. Robert Berg, Dave Marver, Timothy C. Mickelson, Opto Circuits (India) Ltd. and Jolt Acquisition Company
, Case No. 5923-VCP, filed on November 7, 2010 in the Court of Chancery of the State of Delaware
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(a)(5)(E)
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Complaint captioned
Stephen Bagge vs. Ruediger Naumann-Etienne, Ronald Andrews, W. Robert Berg, Dave Marver, Timothy C. Mickelson, Christopher J. Davis, Cardiac Science Corporation, Opto Circuits Limited and Jolt Acquisition Company
, Case No. 102090451, filed on October 27, 2010 in the Superior Court of Washington, Snohomish County
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(a)(5)(F)
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Complaint captioned
Daniel Kühni v. Cardiac Science Corporation, Ruediger Naumann-Etienne, Ronald Andrews, W. Robert Berg, Dave Marver, Timothy C. Mickelson, Opto Circuits (India) Limited and Jolt Acquisition Company
, Case No. 5972-, filed on November 10, 2010 in the Court of Chancery of the State of Delaware
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(a)(5)(G)
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Complaint captioned
Suan Investments, Inc. v. Ruediger Naumann-Etienne, David L. Marver, W. Robert Berg, Timothy C. Mickelson, Ronald A. Andrews, Cardiac Science Corporation, Opto Circuits (India) Ltd. and Jolt Acquisition Company
, Case No. 5971-, filed on November 10, 2010 in the Court of Chancery of the State of Delaware
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(a)(5)(H)
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Memorandum of Understanding, dated
as of November 18, 2010, related to putative
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class action lawsuits other than the Suan Investments Action (as defined therein)
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(b)(1)
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Facility Agreement, made as of August 18, 2010, between Opto Circuits (India) Limited and Standard Chartered Bank
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(b)(2)
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Letter, dated November 11, 2010, between Opto Circuits (India) Limited and Standard Chartered Bank regarding credit facilities
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(b)(3)
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Facility Agreement, dated
November 19, 2010, between Jolt Acquisition Company, Opto Circuits (India) Limited, DBS Bank Ltd, Bangalore Branch, The Financial Institutions listed therein, DBS Bank Ltd, Singapore and the Security Trustee
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(d)(2)(A)
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Amendment No. 2, dated November 19, 2010, to the Agreement and Plan of Merger, dated as of October 19, 2010, as amended, by and among Cardiac Science Corporation, Opto Circuits (India) Ltd. and Jolt Acquisition Company
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information
set forth in this statement is true, complete and correct.
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Opto Circuits (India) Ltd.
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By:
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/s/ Vinod Ramnani
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Name:
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Vinod Ramnani
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Title:
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Chairman & Managing Director
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Jolt Acquisition Company
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By:
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/s/ Anshul Vaswaney
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Name:
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Anshul Vaswaney
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Title:
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President
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Dated: November 19, 2010
Exhibit Index
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(a)(1)(A)
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Offer to Purchase dated November 1, 2010*
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(a)(1)(B)
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Amended Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9)
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(a)(1)(C)
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Form of Notice of Guaranteed Delivery*
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(a)(1)(D)
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Form of Letter to Brokers, Dealers, Commercial Banks, Trusts Companies and Other Nominees*
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(a)(1)(E)
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Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees*
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(a)(1)(F)
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Text of joint press release issued by Opto Circuits (India) Ltd. and Cardiac Science Corporation, dated October 19, 2010 (incorporated by reference to the Schedule TO-C filed by Opto Circuits (India) Ltd. and Jolt Acquisition Company with the Securities and Exchange Commission on October 19, 2010)*
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(a)(1)(G)
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Text of joint press release issued by Opto Circuits (India) Ltd. and Cardiac Science Corporation issued in India, dated October 19, 2010 (incorporated by reference to the Schedule TO-C filed by Opto Circuits (India) Ltd. and Jolt Acquisition Company with the Securities and Exchange Commission on October 19, 2010)*
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(a)(1)(H)
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Form of summary advertisement published in the New York Times on November 1, 2010*
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(a)(5)(A)
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Complaint captioned
Mindy Creamer vs. Cardiac Science Corporation, David L. Marver, Michael K. Matysik, Ruediger Naumann-Etienne, W. Robert Berg, Timothy C. Mickelson, Ronald A. Andrews, Jr., Opto Circuits (India) Ltd. and Jolt Acquisition Company
, Case No. 102087824, filed on October 20, 2010 in the Superior Court of Washington, Snohomish County*
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(a)(5)(B)
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Complaint captioned
Lionel Patenaude v. Cardiac Science Corporation, Ruediger Naumann-Etienne, Ronald Andrews, W. Robert Berg, Dave Marver, Timothy C. Mickelson, Opto Circuits (India) Ltd. and Jolt Acquisition Company
, Case No. 5923-, filed on October 22, 2010 in the Court of Chancery of the State of Delaware*
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(a)(5)(B)(i)
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Verified Amended Class Action Complaint captioned
Lionel Patenaude v. Cardiac Science Corporation, Ruediger Naumann-Etienne, Ronald Andrews, W. Robert Berg, Dave Marver, Timothy C. Mickelson, Opto Circuits (India) Ltd. and Jolt Acquisition Company
, Case No. 5923-VCP, filed on November 7, 2010 in the Court of Chancery of the State of Delaware
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(a)(5)(C)
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Complaint captioned
Robert Gluck v. Ruediger Naumann-Etienne, Ronald Andrews, W. Robert Berg, Dave Marver, Timothy C. Mickelson, Cardiac Science Corporation, Opto Circuits (India) Ltd. and Jolt Acquisition Company
, Case No. 102089126, filed on October 22, 2010 in the Superior Court of Washington, Snohomish County*
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(a)(5)(D)
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Complaint captioned
Mark Rapport v. David Marver, Ruediger Naumann-Etienne, W. Robert Berg, Ronald Andrews, and Cardiac Science Corporation
, Case No. 102090051, filed on October 26, 2010 in the Superior Court of Washington, Snohomish County*
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(a)(5)(E)
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Complaint captioned
Stephen Bagge vs. Ruediger Naumann-Etienne, Ronald Andrews, W. Robert Berg, Dave Marver, Timothy C. Mickelson, Christopher J. Davis, Cardiac Science Corporation, Opto Circuits Limited and Jolt Acquisition Company
, Case No. 102090451, filed on October 27, 2010 in the Superior Court of Washington, Snohomish County
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(a)(5)(F)
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Complaint captioned
Daniel Kühni v. Cardiac Science Corporation, Ruediger Naumann-Etienne, Ronald Andrews, W. Robert Berg, Dave Marver, Timothy C. Mickelson, Opto Circuits (India) Limited and Jolt Acquisition Company
, Case No. 5972-, filed on November 10, 2010 in the Court of Chancery of the State of Delaware
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(a)(5)(G)
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Complaint captioned
Suan Investments, Inc. v. Ruediger Naumann-Etienne, David L. Marver, W. Robert Berg, Timothy C. Mickelson, Ronald A. Andrews, Cardiac Science Corporation, Opto Circuits (India) Ltd. and Jolt Acquisition Company
, Case No. 5971-, filed on November 10, 2010 in the Court of Chancery of the State of Delaware
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(a)(5)(H)
|
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Memorandum of Understanding, dated
as of November 18, 2010, related to putative
|
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|
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class action lawsuits other than the Suan Investments Action (as defined therein)
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(b)(1)
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Facility Agreement, made as of August 18, 2010, between Opto Circuits (India) Limited and Standard Chartered Bank
|
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(b)(2)
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Letter, dated November 11, 2010, between Opto Circuits (India) Limited and Standard Chartered Bank regarding credit facilities
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(b)(3)
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Facility Agreement, dated
November 19, 2010, between Jolt Acquisition Company, Opto Circuits (India) Limited, DBS Bank Ltd, Bangalore Branch, The Financial Institutions listed therein, DBS Bank Ltd, Singapore and the Security Trustee
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(d)(1)
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Agreement and Plan of Merger, dated October 19, 2010, by and among Opto Circuits (India) Ltd., Jolt Acquisition Company and Cardiac Science Corporation (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K filed by Cardiac Science Corporation with the Securities and Exchange Commission on October 19, 2010)*
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(d)(2)
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Amendment No. 1, dated October 29, 2010, to the 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 (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K filed by Cardiac Science Corporation with the Securities and Exchange Commission on October 29, 2010)*
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(d)(2)(A)
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Amendment No. 2, dated November 19, 2010, to the Agreement and Plan of Merger, dated as of October 19, 2010, as amended, by and among Cardiac Science Corporation, Opto Circuits (India) Ltd. and Jolt Acquisition Company
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(d)(3)
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Mutual Non-Disclosure Agreement, dated June 25, 2010, by and between Cardiac Science Corporation, Opto Circuits (India) Ltd. and its subsidiary Criticare Systems Inc.*
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(d)(4)
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Addendum No. 1, dated July 26, 2010, to Mutual Non-Disclosure Agreement, dated June 25, 2010, by and between Cardiac Science Corporation, Opto Circuits (India) Ltd. and its subsidiary Criticare Systems Inc.*
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(d)(5)
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Non-Binding Letter of Intent, dated August 10, 2010, between Opto Circuits (India) Ltd. and Cardiac Science Corporation*
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