Foxhollow Technologies, Inc. - Current report filing (8-K)
05 10월 2007 - 6:05AM
Edgar (US Regulatory)
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 event reported): October 4, 2007
FoxHollow Technologies, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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000-50998
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94-3252085
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(State or Other Jurisdiction of
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(Commission File Number)
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(I.R.S. Employer Identification
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Incorporation)
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Number)
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740 Bay Road
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Redwood City, California
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94063-2469
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(Address of Principal Executive Offices)
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(Zip Code)
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(650) 421-8400
(Registrant’s telephone number, including area code)
Not Applicable
(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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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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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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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TABLE OF CONTENTS
Item 2.01. Completion of Acquisition or Disposition of Assets.
On
October 4, 2007, pursuant to the terms of an agreement and plan of merger dated as of July
21, 2007 among ev3 Inc., FoxHollow Technologies, Inc. and Foreigner Merger Sub, Inc., Foreigner
Merger Sub, Inc., a direct wholly owned subsidiary of ev3, merged with and into FoxHollow, with
FoxHollow continuing as the surviving company and becoming a wholly owned subsidiary of ev3. The
merger agreement and the transactions contemplated thereby, including the merger, were approved by
the board of directors and stockholders of each of ev3 and FoxHollow. The FoxHollow stockholders
approved the merger agreement and the transactions contemplated thereby, including the merger, at a
special meeting of FoxHollow stockholders held on October 4, 2007.
At the effective time and as a result of the merger, each share of common stock of FoxHollow
issued and outstanding immediately prior to the effective time of the merger, other than shares
held by a FoxHollow stockholder who properly exercised appraisal rights with respect thereto in
accordance with Section 262 of Delaware General Corporation Law and shares owned by FoxHollow as
treasury stock, was converted into the right to receive 1.45 shares of ev3 common stock and $2.75
in cash. Alternatively, FoxHollow stockholders could have elected to receive either 1.62 shares of
ev3 common stock or $25.92 in cash for each share of FoxHollow common stock by making an all-stock
or an all-cash election, respectively. Stock and cash elections were subject to pro-ration to
preserve an overall mix of 1.45 shares of ev3 common stock and $2.75 in cash for all of the
outstanding shares of FoxHollow common stock in the aggregate. In the aggregate, ev3 issued
approximately 43.1 million shares of its common stock and paid approximately $81.4 million to
FoxHollow stockholders in connection with the merger.
In addition, at the effective time and as a result of the merger, all outstanding options to
purchase shares of FoxHollow common stock and other equity awards based on FoxHollow common stock,
which were outstanding immediately prior to the effective time of the merger and whether or not
then exercisable or vested, were converted into and became, respectively, options to purchase
shares of ev3 common stock and with respect to all other FoxHollow equity awards, awards based on
shares of ev3 common stock, in each case, on terms substantially identical to those in effect prior
to the effective time of the merger, except for adjustments to the underlying number of shares and
the exercise price based on an exchange ratio reflected in the merger consideration and other
adjustments as provided in the merger agreement.
The issuance of ev3 common stock to the FoxHollow stockholders in connection with the merger
was registered under the Securities Act of 1933, as amended, pursuant to a registration statement
on Form S-4 (File No. 333-145554), initially filed by ev3 with the Securities and Exchange
Commission on August 17, 2007 and declared effective on August 30, 2007. ev3’s Form S-4
registration statement, including the information/proxy statement-prospectus included therein,
contains additional information about the merger and the related transactions.
In January 2007, ev3 and FoxHollow entered into an agreement to conduct a joint clinical study
of FoxHollow’s calcium cutting device (The RockHawk) and ev3’s SpiderRX endovascular devices to
seek approval for the treatment of calcified lesions in peripheral artery disease. As part of the
January 2007 agreement, FoxHollow has the exclusive right to market the two devices together in the
United States. Other than the January 2007 agreement, there were no material relationships between
ev3 or its affiliates, on the one hand, and FoxHollow and its affiliates, on the other hand prior
to the entering into of the merger agreement.
Following
completion of the merger on October 4, 2007, FoxHollow notified the NASDAQ Global
Select Market that the merger had been completed. FoxHollow requested that NASDAQ file with the
Securities and Exchange Commission an application on Form 25 to strike FoxHollow’s common stock
from listing on NASDAQ and from registration under Section 12(b) of the Securities Exchange Act of
1934. FoxHollow intends to file a certification on Form 15 to terminate the registration of its
common stock under
Section 12(g) of the Exchange Act (and its corresponding reporting obligation under Section
13(a) of the Exchange Act) and to suspend its reporting obligations under Section 15(d) of the
Exchange Act.
The foregoing description of the merger agreement does not purport to be complete and is
qualified in its entirety by reference to a full text of the merger agreement, which is attached as
Exhibit 2.1 to this current report on Form 8-K and is incorporated herein by reference.
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Item 3.01.
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Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard;
Transfer of Listing.
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Following
completion of the merger on October 4, 2007, FoxHollow notified the NASDAQ Global
Select Market that the merger had been completed and that as a result of the merger, each
outstanding share of FoxHollow common stock was canceled, other than shares held by a FoxHollow
stockholder who properly exercised appraisal rights with respect thereto in accordance with Section
262 of Delaware General Corporation Law and shares owned by FoxHollow as treasury stock, converted
into the right to receive the merger consideration, as described above under the heading “Item
2.01. Completion of Acquisition or Disposition of Assets.” FoxHollow requested that NASDAQ file
with the Securities and Exchange Commission an application on Form 25 to strike FoxHollow’s common
stock from listing on NASDAQ and from registration under Section 12(b) of the Securities Exchange
Act of 1934. FoxHollow intends to file a certification on Form 15 to terminate the registration of
its common stock under Section 12(g) of the Exchange Act (and its corresponding reporting
obligation under Section 13(a) of the Exchange Act) and to suspend its reporting obligations under
Section 15(d) of the Exchange Act.
Item 3.03. Material Modification to Rights of Security Holders.
Pursuant to the merger agreement, each outstanding share of FoxHollow common stock issued and
outstanding prior to the effective time of the merger was canceled, other than shares held by a
FoxHollow stockholder who properly exercised appraisal rights with respect thereto in accordance
with Section 262 of Delaware General Corporation Law and shares owned by FoxHollow as treasury
stock, converted into the right to receive the merger consideration, as described above under the
heading “Item 2.01. Completion of Acquisition or Disposition of Assets.”
Item 5.01. Changes in Control of Registrant.
Upon
closing of the merger on October 4, 2007, a change in control of FoxHollow occurred.
Pursuant to the terms of the merger agreement, Foreigner Merger Sub, Inc., a wholly owned
subsidiary of ev3, merged with and into FoxHollow, with FoxHollow continuing as the surviving
company and becoming a wholly owned subsidiary of ev3. At the effective time and as a result of
the merger, each outstanding share of FoxHollow common stock was canceled, other than shares held
by a FoxHollow stockholder who properly exercised appraisal rights with respect thereto in
accordance with Section 262 of Delaware General Corporation Law and shares owned by FoxHollow as
treasury stock, converted into the right to receive 1.45 shares of ev3 common stock and $2.75 in
cash. Alternatively, FoxHollow stockholders could have elected to receive either 1.62 shares of
ev3 common stock or $25.92 in cash for each share of FoxHollow common stock by making an all-stock
or an all-cash election, respectively. Stock and cash elections were subject to pro-ration to
preserve an overall mix of 1.45 shares of ev3 common stock and $2.75 in cash for all of the
outstanding shares of FoxHollow common stock in the aggregate. In the aggregate, ev3 issued
approximately 43.1 million shares of its common stock and paid approximately $81.4 million to
FoxHollow stockholders in connection with the merger.
Pursuant to the terms of the merger agreement, the ev3 board of directors agreed to cause the
number of directors that will comprise the ev3 board of directors to be 10, including six members
designated by ev3 and four members designated by FoxHollow. On October 3, 2007, the ev3 board of
directors approved a number of actions in connection with the ev3/FoxHollow merger, including the
expansion of the ev3 board of directors from eight to 10 members and the election of the following
four board designees of FoxHollow as directors of ev3 effective as of the effective time of the
merger: John B. Simpson, Ph.D., M.D., Jeffrey B. Child, Richard N. Kender and Myrtle S. Potter.
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Item 5.02.
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Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
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On October 4, 2007 prior to the completion of the merger, the Compensation Committee of the
Board of Directors of FoxHollow approved a $50,000 cash bonus to be paid to Daniel J. Lerner, M.D.,
Senior Vice President of Molecular Programs of FoxHollow, in recognition of additional services he
provided FoxHollow in furtherance of FoxHollow’s collaboration with Merck & Co. Inc.
Pursuant to the terms of the merger agreement, at the effective time of the merger on October
4, 2007, Kevin M. Klemz, the sole director and officer of Foreigner Merger Sub, Inc. became the
sole director and officer of FoxHollow.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Pursuant to the terms of the merger agreement at the effective time of the merger on October
4, 2007, the certificate of incorporation and bylaws of Foreigner Merger Sub, Inc. as in effect
immediately prior to the effective time of the merger became the certificate of incorporation and
bylaws of FoxHollow until thereafter changed or amended. Copies of the certificate of
incorporation and bylaws of FoxHollow are attached as Exhibit 4.1 and 4.2, respectively, to this
current report on Form 8-K and incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d)
Exhibits
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Exhibit No.
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Description
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2.1
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Agreement and Plan of Merger dated as of July 21, 2007 by and among ev3 Inc.,
Foreigner Merger Sub, Inc. and FoxHollow Technologies, Inc. (incorporated by
reference to Exhibit 2.1 to ev3’s Current Report on Form 8-K filed with the
Securities and Exchange Commission on July 23, 2007)*
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4.1
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Amended and Restated Certificate of Incorporation of FoxHollow Technologies, Inc.
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4.2
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Amended and Restated Bylaws of FoxHollow Technologies, Inc.
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*
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All exhibits and schedules to the Agreement and Plan of Merger have been omitted
pursuant to Item 601(b)(2) of Regulation S-K. FoxHollow will furnish the omitted
exhibits and schedules to the Securities and Exchange Commission upon request by
the Commission.
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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.
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FOXHOLLOW TECHNOLOGIES, INC.
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By:
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/s/ Kevin M. Klemz
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Kevin M. Klemz
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Chief Executive Officer, Chief Financial Officer and Secretary
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Date:
October 4, 2007
FOXHOLLOW TECHNOLOGIES, INC.
CURRENT REPORT ON FORM 8-K
EXHIBIT INDEX
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Exhibit No.
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Description
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2.1
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Agreement and Plan of Merger dated as of July 21, 2007 by and among ev3
Inc., Foreigner Merger Sub, Inc. and FoxHollow Technologies, Inc.
(incorporated by reference to Exhibit 2.1 to ev3’s Current Report on Form
8-K filed with the Securities and Exchange Commission on July 23, 2007)*
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4.1
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Amended and Restated Certificate of Incorporation of FoxHollow
Technologies, Inc. (filed herewith)
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4.2
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Amended and Restated Bylaws of FoxHollow Technologies, Inc. (filed herewith)
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*
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All exhibits and schedules to the Agreement and Plan of Merger have been
omitted pursuant to Item 601(b)(2) of Regulation S-K. FoxHollow will
furnish the omitted exhibits and schedules to the Securities and Exchange
Commission upon request by the Commission.
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