CYNOSURE, INC. (NASDAQ:CYNO) Files An 8-K Entry into a Material Definitive Agreement
Item1.01.
| Entry into a Material Definitive Agreement. |
On February14, 2017, Cynosure, Inc. (Cynosure) and
Hologic, Inc. (Hologic) entered into a definitive
Agreement and Plan of Merger, dated as of February14, 2017 (the
Merger Agreement), by and among Cynosure, Hologic and
Minuteman Merger Sub, Inc. (Purchaser).
to the terms of Merger Agreement, Purchaser will commence an all
cash tender offer (the Offer) for any (subject to the
minimum condition) and all of Cynosures outstanding shares of
ClassA Common Stock, par value $0.001 per share (the
Shares), at a purchase price of $66.00 per Share (the
Offer Price), net to the seller in cash, without interest,
subject to any required withholding of taxes. Under the Merger
Agreement, Hologic is required to commence the Offer within five
business days after the date of the Merger Agreement. The Offer
will remain open for a minimum of 20 business days from the date
of commencement.
The obligation of Purchaser to purchase Shares tendered in the
Offer is subject to customary closing conditions, including
(i)Shares having been validly tendered and not withdrawn that
represent at least a majority of the total number of Shares then
outstanding, (ii)the expiration or termination of applicable
waiting periods under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, (iii)approval from the
German Federal Cartel Office under the German Act Against
Restraints of Competition having been obtained, (iv)the absence
of injunctions or other legal restraints preventing the
consummation of the Offer or the Merger, as defined below, (v)the
accuracy of representations and warranties made by Cynosure in
the Merger Agreement, (vi)compliance by Cynosure with its
covenants in the Merger Agreement, and (vii)other conditions set
forth in Annex I to the Merger Agreement. The consummation of the
Offer is not subject to any financing conditions.
Following the completion of the Offer, subject to the absence of
injunctions or other legal restraints preventing the consummation
of the Merger, Purchaser will merge with and into Cynosure, with
Cynosure surviving as a wholly owned subsidiary of Hologic (the
Merger), to the procedure provided for under Section251(h)
of the Delaware General Corporation Law, without any additional
stockholder approvals. The Merger will be effected as soon as
practicable following the time of purchase by Purchaser of Shares
validly tendered and not withdrawn in the Offer.
At the effective time of the Merger (the Effective Time),
each issued and outstanding Share (other than Shares owned by
(i)Cynosure, Hologic, Purchaser, or any other subsidiary of
Hologic, which Shares will be cancelled and will cease to exist,
(ii)any subsidiary of Cynosure, which Shares will be converted
into such number of shares of common stock of the surviving
corporation so as to maintain relative ownership percentages or
(iii)stockholders who validly exercise appraisal rights under
Delaware law with respect to such Shares) will be converted into
the right to receive an amount in cash equal to the Offer Price,
without interest, subject to any required withholding taxes.
to the terms of the Merger Agreement, as of immediately prior to
the Effective Time, (i)each then-outstanding Cynosure stock
option will vest in full and be cancelled and converted into a
right to receive the Offer Price (less the applicable exercise
price) in respect of each Share underlying such stock option,
(ii)each then outstanding Cynosure restricted stock unit award
will vest and be cancelled and converted into the right to
receive the Offer Price in respect of each Share underlying such
restricted stock unit award, and (iii)each then-outstanding
Cynosure performance stock unit award will vest and be cancelled
and converted into the right to receive the Offer Price in
respect of the maximum number of Shares underlying such
performance stock unit award.
In the Merger Agreement, Cynosure has agreed, among other things,
(i)to use commercially reasonable efforts to conduct its business
in the ordinary course during the period between the execution of
the Merger Agreement and the consummation of the Merger;
(ii)subject to certain customary exceptions set forth in the
Merger Agreement to permit Cynosures board of directors to comply
with its fiduciary duties, to recommend that Cynosures
stockholders accept the Offer and tender their shares to the
Offer; and (iii)not to solicit alternative acquisition proposals
and to certain restrictions on its ability to respond to any such
proposals. The Merger Agreement also contains customary
representations, warranties and covenants of Cynosure, Hologic
and Purchaser.
The Merger Agreement contains customary termination rights for
both Cynosure and Hologic, including, among others, for failure
to consummate the Offer on or before August14, 2017.
Upon termination of the Merger Agreement under specified
circumstances, including (i)a termination by Cynosure to enter
into an agreement for an alternative transaction that constitutes
a Superior Proposal (as defined in the Merger Agreement) or (ii)a
termination by Hologic due to a change in the Cynosure boards
recommendation, Cynosure has agreed to pay Hologic a termination
fee of approximately $57.7 million.
The foregoing description of the Merger Agreement does not
purport to be complete and is qualified in its entirety by
reference to the actual terms of the Merger Agreement, a copy of
which is attached hereto as Exhibit 2.1 and incorporated herein
by reference. The Merger Agreement has been included to provide
investors with information regarding its terms and is not
intended to provide any financial or other factual information
about Cynosure or Hologic. In particular, the representations,
warranties and covenants contained in the Merger Agreement
(i)were made only for purposes of that agreement and as of
specific dates, (ii)were solely for the benefit of the parties to
the Merger Agreement, (iii)may be subject to limitations agreed
upon by the parties, including being qualified by confidential
disclosures made for the purposes of allocating contractual risk
between the parties to the Merger Agreement instead of
establishing those matters as facts and (iv)may be subject to
standards of materiality applicable to the contracting parties
that differ from those applicable to investors. Moreover,
information concerning the subject matter of the representations,
warranties and covenants may change after the date of the Merger
Agreement, which subsequent information may or may not be fully
reflected in public disclosures by Cynosure or Hologic.
Accordingly, investors should read the representations and
warranties in the Merger Agreement not in isolation but only in
conjunction with the other information about Cynosure or Hologic
and their respective subsidiaries that the respective companies
include in reports, statements and other filings they make with
the U.S. Securities and Exchange Commission (the SEC).
| Item5.03. |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On February14, 2017, Cynosures board of directors adopted an
amendment (the By-law Amendment) to Cynosures Amended and
Restated By-laws. The By-law Amendment, which was effective upon
adoption by the board, among other things, designates the Court
of Chancery of the State of Delaware as the sole and exclusive
forum for any stockholder to bring (1)any derivative action or
proceeding brought on behalf of Cynosure, (2)any action asserting
a claim of breach of a fiduciary duty owed by any current or
former director, officer, other employee, agent or stockholder of
Cynosure to Cynosure or Cynosures stockholders, including,
without limitation, a claim alleging the aiding and abetting of
such a breach of fiduciary duty, (3)any action asserting a claim
arising to any provision of the General Corporation Law of the
State of Delaware, the certificate of incorporation or the
by-laws of Cynosure (as each may be amended from time to time),
or as to which the General Corporation Law of the State of
Delaware confers jurisdiction on the Court of Chancery of the
State of Delaware, or (4)any action asserting a claim governed by
the internal affairs doctrine or other internal corporate claim
as that term is defined in Section115 of the General Corporation
Law of the State of Delaware.
The foregoing description of the By-law Amendment does not
purport to be complete and is qualified in its entirety by
reference to the full text of the By-law Amendment, a copy of
which is attached hereto as Exhibit 3.1 and incorporated herein
by reference.
| Item8.01. | Other Events. |
On February14, 2017, Cynosure and Hologic issued a joint press
release announcing the execution of the Merger Agreement.A copy
of the press release is attached hereto as Exhibit 99.1 and
incorporated herein by reference.
| Item9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits. |
See the Exhibit Index attached to this Current Report on Form
8-K, which is incorporated herein by reference.
Additional Information
The tender offer has not yet commenced. This Current Report on
Form 8-K is neither an offer to purchase nor a solicitation of an
offer to sell any securities. At the time the tender offer is
commenced, Hologic will file with the SEC a Tender Offer
Statement on Schedule TO, and Cynosure will file a
Solicitation/Recommendation Statement on Schedule 14D-9 with
respect to the tender offer. Cynosure stockholders and other
investors are strongly advised to read the tender offer materials
(including the Offer to Purchase, the related Letter of
Transmittal and certain other tender offer documents that have
yet to be filed) and the Solicitation/Recommendation Statement
because they will contain important information that should be
read carefully before any decision is made with respect to the
tender offer. The Tender Offer Statement and the
Solicitation/Recommendation Statement will be available for free
at the SECs website at www.sec.gov. Free copies of these
materials and other tender offer documents will be made available
by the information agent for the tender offer.
In addition to the Offer to Purchase, the related Letter of
Transmittal and certain other tender offer documents, Cynosure
and Hologic file annual, quarterly and special reports, proxy
statements and other information with the SEC. You may read and
copy any reports, statements or other information filed by the
parties at the SEC public reference room at 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference room. The parties
filings with the SEC are also available to the public from
commercial document-retrieval services and at the website
maintained by the SEC at www.sec.gov.
Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking
statements relating to the acquisition of Cynosure by Hologic.
Statements regarding the timing and the closing of the
transaction, the expected benefits and synergies of the
transaction, prospective performance and future business plans,
and future opportunities for the combined company, and any
assumptions underlying any of the foregoing, are forward-looking
statements. Any statements that are not statements of historical
fact (including statements containing the words believes, plans,
anticipates, expects, estimates and similar expressions) should
also be considered to be forward-looking statements.
These statements are based on current expectations of future
events. If underlying assumptions prove inaccurate or unknown, or
unknown risks or uncertainties materialize, actual results could
vary materially from the parties expectations and projections.
Risks and uncertainties include, among other things,
uncertainties regarding the timing of the closing of the
transaction; uncertainties as to how many of Cynosures
stockholders may tender their stock in the tender offer; the
possibility that various closing conditions to the tender offer
and merger transactions may not be satisfied or waived, including
that a governmental entity may prohibit, delay, or refuse to
grant approval for the consummation of the transaction; the
outcome of any legal proceedings that may be instituted in
connection with the transaction; that the integration of
Cynosures business into Hologic is not as successful as expected;
the failure to realize anticipated synergies and cost savings;
the failure of Hologic to achieve the expected financial and
commercial results from the transaction; a decrease in demand for
procedures performed with Cynosure products and for Cynosure
products themselves; increased competition in the aesthetic laser
industry; Cynosures ability to develop and commercialize new
products; Cynosures reliance on sole source suppliers, the
inability to accurately predict the timing or outcome of
regulatory decisions; other business effects, including effects
of industry, economic or political conditions outside either
companys control; transaction costs; actual or contingent
liabilities; as well as other cautionary statements contained
elsewhere herein and in Cynosures and Hologics periodic reports
filed with the SEC including the factors set forth in their most
recent annual reports on Form 10-K and quarterly reports on Form
10-Q, the Tender Offer Statement on Schedule TO and other tender
offer documents to be filed by Hologic, and the
Solicitation/Recommendation Statement on Schedule 14D-9 to be
filed by Cynosure. These forward-looking statements reflect
Cynosures expectations as of the date of this Current Report on
Form 8-K. Cynosure undertakes no obligation to update the
information provided herein.
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.
| CYNOSURE, INC. | ||||||
| Date:February 14, 2017 | By: | /s/ Michael R. Davin | ||||
|
Michael R. Davin
President, Chief Executive Officer and Chairman of the |
||||||
EXHIBIT
INDEX
|
Exhibit Number |
Description |
|
| 2.1 |
Agreement and Plan of Merger, dated as of February 14, 2017, by and among Cynosure, Inc., Hologic, Inc. and Minuteman Merger Sub, Inc.* |
|
| 3.1 | Amendment to Amended and Restated By-laws of Cynosure, Inc. | |
| 99.1 |
Joint Press Release issued by Cynosure, Inc. and Hologic, Inc. on February 14, 2017 |
| * | Schedules have been omitted |
About CYNOSURE, INC. (NASDAQ:CYNO)
Cynosure Inc. (Cynosure) develops and markets aesthetic treatment systems that enable plastic surgeons, dermatologists and other medical practitioners to perform procedures to remove hair, treat vascular and benign pigmented lesions, remove multi-colored tattoos, revitalize the skin, reduce fat through laser lipolysis, reduce cellulite, clear nails infected by toe fungus, ablate sweat glands and improve gynecologic health. The Company operates through aesthetic treatment products and services segment. It markets radiofrequency (RF) energy sourced medical devices for precision surgical applications, such as facial plastic and general surgery; gynecology; ear, nose and throat procedures; ophthalmology; oral and maxillofacial surgery; podiatry, and proctology. The Company’s product portfolio utilizes a range of energy sources, including Alexandrite, diode, neodymium-doped yttrium aluminum garnet (Nd: YAG), pulse dye, Q-switched lasers, intense pulsed light and RF technology. CYNOSURE, INC. (NASDAQ:CYNO) Recent Trading Information
CYNOSURE, INC. (NASDAQ:CYNO) closed its last trading session up +14.43 at 65.93 with 13,508,817 shares trading hands.