- Filing of certain prospectuses and communications in connection with business combination transactions (425)
February 07 2011 - 8:02AM
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): February 4, 2011
ENDWAVE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
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000-31635
(Commission File No.)
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95-4333817
(IRS Employer Identification No.)
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130 Baytech Drive
San Jose, California
(Address of principal executive offices)
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95134
(Zip Code)
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(408) 522-3100
(Registrants telephone number, including area code)
N/A
(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 (see General Instruction
A.2. below):
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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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ITEM 1.01.
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ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
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Merger Agreement
On February 4, 2011, Endwave Corporation, a Delaware corporation (Endwave), GigOptix, Inc.,
a Delaware corporation (GigOptix), and Aerie Acquisition Corporation, a Delaware corporation and
wholly-owned subsidiary of GigOptix (Merger Subsidiary), entered into an Agreement and Plan of
Merger (the Merger Agreement) pursuant to which Merger Subsidiary will, subject to the
satisfaction or waiver of the conditions therein, merge with and into Endwave, the separate
corporate existence of Merger Subsidiary shall cease and Endwave will be the successor or surviving
corporation of the merger (the Merger) and a wholly-owned subsidiary of GigOptix.
Upon the consummation of the Merger, (i) the outstanding shares of Endwave common stock will
be converted into the right to receive an aggregate number of shares of GigOptix common stock equal
to the product of (.425/.575) and the number of shares of GigOptix common stock outstanding
immediately prior to consummation of the Merger, less 42.5% of the Endwave Option Shares (as
defined below) and (ii) in-the-money options to acquire Endwave common stock outstanding
immediately prior to the consummation of the Merger will be converted into that number of shares of
GigOptix common stock determined by dividing the spread value of such options at closing by the
closing price of GigOptixs common stock on the trading day prior to closing (such shares, the
Endwave Option Shares), such that following the Merger, the pre-Merger holders of common stock
and restricted stock units will own that number of shares equal to 42.5% of the outstanding stock
of the combined company, less 42.5% of the shares issued in respect of Endwave stock options. If
the Merger were consummated on February 4, 2011, each outstanding share of Endwave common stock
would convert into approximately 0.89 shares of GigOptix common stock.
The Merger Agreement contains customary no-solicitation covenants pursuant to which neither
Endwave nor GigOptix is permitted to solicit any alternative acquisition proposals, provide any
information to any person in connection with any alternative acquisition proposal, participate in
any discussions or negotiations relating to any alternative acquisition proposal, approve, endorse
or recommend any alternative acquisition proposal, or enter into any agreement relating to any
alternative acquisition proposal. The no-solicitation provision is subject to certain exceptions
that permit the Board of Directors of each of Endwave and GigOptix, as the case may be, to comply
with their respective fiduciary duties, which, under certain circumstances, would enable Endwave or
GigOptix, as the case may be, to provide information to, and engage in discussions or negotiations
with, third parties with respect to alternative acquisition proposals.
The Merger Agreement contains certain termination rights for both Endwave and GigOptix and
further provides that, upon termination of the Merger Agreement under certain circumstances,
Endwave may be obligated to pay GigOptix a termination fee of $1,000,000 plus certain reasonable
documented expenses of GigOptix.
GigOptix and Endwave currently expect to complete the Merger in the second quarter of 2011.
GigOptixs and Endwaves obligations to consummate the Merger are subject to the satisfaction or
waiver of customary closing conditions and regulatory approvals, as well as the approval of the
merger by the stockholders of Endwave.
Dr. Avi Katz will maintain his position as Chairman of the Board of Directors, Chief Executive
Officer and President of the combined company. Curt P. Sacks, the current Chief Financial Officer
of Endwave, will serve as the Chief Financial Officer of the combined company. Andrea
Betti-Berutto, the current Chief Technology Officer of GigOptix, will serve as the Chief Technology
Officer of the combined company. Other key executives from both companies will be combined to
serve on the management team. GigOptixs new Board of Directors will consist of all five existing
GigOptix directors and two Endwave directors, John Mikulsky and Joseph Lazzara.
The Boards of Directors of GigOptix and Endwave have each unanimously approved the Merger
Agreement and the related transactions, and the Board of Directors of Endwave has also adopted
resolutions recommending the requisite Endwave stockholder approval for consummation of the Merger.
Endwave will hold a stockholders meeting to submit these matters to its stockholders
for their consideration. In connection with the Merger, GigOptix intends to file with the U.S.
Securities and Exchange Commission (SEC) a registration statement on Form S-4, which will include
a proxy statement of Endwave and a prospectus of GigOptix.
The Merger Agreement has been filed as an exhibit to this Form 8-K to provide information
regarding the terms of the agreements and is not intended to modify or supplement any factual
disclosures about GigOptix or Endwave in public reports filed with the SEC. The representations
and warranties may be subject to a contractual standard of materiality different from those
generally applicable to stockholders, or may have been used for the purpose of allocating risk
between GigOptix and Endwave rather than establishing matters as facts. The foregoing description
of the Merger Agreement does not purport to be complete, and is qualified in its entirety by
reference to the full text of the Merger Agreement. Moreover, information concerning the subject
matter of the representations and warranties may change after the date of the Merger Agreement,
which subsequent information may or may not be fully reflected in public disclosures. For the
foregoing reasons, no person should rely on the representations and warranties as statements of
factual information at the time they were made or otherwise. A copy of the Merger Agreement is
filed as Exhibit 2.1 hereto and is incorporated herein by reference.
Amendment to Rights Agreement
On February 4, 2011, Endwave entered into that certain Amendment No. 2 to Rights Agreement
(the Rights Agreement Amendment) with Computershare Trust Company, N.A., successor in interest to
Computershare Trust Company, Inc., amending that certain Rights Agreement, dated as of December 1,
2005, as amended by that certain Amendment No. 1 to Rights Agreement, dated as of December 21, 2007
(the Rights Agreement). The Rights Agreement Amendment amended the terms of the Rights Agreement
to exclude GigOptix and its affiliates from the definition of Acquiring Person thereunder, and to
provide that the execution, delivery or performance of the Merger Agreement shall not trigger the
rights set forth in the Rights Agreement.
The description of the Rights Agreement, as modified by the Rights Agreement Amendment, is a
summary only, does not purport to be complete, and is qualified in its entirety by reference to the
full text of the Rights Agreement and the Rights Agreement Amendment. A copy of the Rights
Agreement is attached as an exhibit to the Companys Current Report on Form 8-K filed with the SEC
on December 5, 2005 and is incorporated herein by reference. The
Rights Agreement Amendment is filed as Exhibit 4.1 hereto and is incorporated herein by
reference.
On February 7, 2011, GigOptix and Endwave issued a joint press release announcing, among other
things, the execution of the Merger Agreement. A copy of the press release is filed as Exhibit 99.1
to this Current Report on Form 8-K and is incorporated herein by reference.
In addition, on February 7, 2011, a PowerPoint presentation has been posted on the website of
both companies, detailing the rationale, motivation and prospects of the merger, a copy of which is
filed as Exhibit 99.2 to this Current Report on Form 8-K and is incorporated herein by reference.
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Item 9.01
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Financial Statements and Exhibits.
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(d) The following exhibits are filed with this report:
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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 February 4, 2011, by
and among GigOptix, Inc., Endwave Corporation and Aerie
Acquisition Corporation.
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4.1
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Amendment No. 2 to Rights Agreement, dated as of February 4,
2011, by and between Endwave Corporation and Computershare
Trust Company, N.A., successor in interest to Computershare
Trust Company, Inc.
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99.1
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Joint
press release issued on February 7, 2011.
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99.2
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PowerPoint presentation posted on February 7, 2011.
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IMPORTANT ADDITIONAL INFORMATION WILL BE FILED WITH THE SEC
In connection with the proposed Merger, GigOptix intends to file with the SEC a registration
statement on Form S-4, which will include a proxy statement of Endwave and a prospectus of
GigOptix, and other relevant materials in connection with the proposed Merger, and each of GigOptix
and Endwave intend to file with the SEC other documents regarding the proposed Merger. The
definitive proxy statement/prospectus will be mailed to the stockholders of Endwave. INVESTORS AND
STOCKHOLDERS OF GIGOPTIX AND ENDWAVE ARE URGED TO READ THE PROXY STATEMENT/PROSPECTUS (INCLUDING
ANY AMENDMENTS OR SUPPLEMENTS THERETO) AND THE OTHER RELEVANT MATERIAL CAREFULLY IN THEIR ENTIRETY
WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT GIGOPTIX, ENDWAVE
AND THE PROPOSED MERGER.
The proxy statement/prospectus (when available) and any other related documents filed by
GigOptix and Endwave with the SEC, may be obtained free of charge at the SECs web site at
www.sec.gov
. In addition, the proxy statement/prospectus (when it is available) and other
documents filed by GigOptix or Endwave with the SEC relating to the proposed transaction may also
be obtained for free by accessing GigOptixs website at www.gigoptix.com by clicking on the link
for Investor, then clicking on the link for SEC Filings, or by accessing Endwaves website at
www.endwave.com and clicking on the Company link and then clicking on the link for SEC Filings
underneath the heading Investor Relations.
Endwave and its respective executive officers and directors and other persons may be deemed to
be participants in the solicitation of proxies from the stockholders of Endwave in connection with
the proposed Merger. Information regarding Endwaves directors and executive officers is available
in its annual report on Form 10-K for the year ended December 31, 2009, filed with the SEC on March
24, 2010, and the proxy statement for Endwaves 2010 annual meeting of stockholders, filed with the
SEC on June 11, 2010. Information regarding GigOptixs directors and executive officers is
available in its annual report on Form 10-K for the year ended December 31, 2009, filed with the
SEC on March 31, 2010, and the proxy statement for GigOptixs 2010 annual meeting of stockholders,
filed with the SEC on October 5, 2010. Certain directors and executive officers of GigOptix and/or
Endwave may have direct or indirect interests in the Merger due to securities holdings,
pre-existing or future indemnification arrangements and rights to severance payments if their
employment is terminated prior to or following the Merger. If and to the extent that any of the
GigOptix or Endwave participants will receive any additional benefits in connection with the
Merger, the details of those benefits will be described in the proxy statement/prospectus relating
to the Merger. Investors and stockholders may obtain additional information regarding the direct
and indirect interests of GigOptix, Endwave and their respective executive officers and directors
in the Merger by reading the proxy statement/prospectus regarding the Merger when it becomes
available.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, Endwave has duly caused
this report to be signed on its behalf by the undersigned hereunto duly authorized.
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ENDWAVE CORPORATION
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Dated: February 7, 2011
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By:
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/s/ Curt P. Sacks
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Curt P. Sacks
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Chief Financial Officer and
Senior Vice President
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Exhibit Index
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Exhibit
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No.
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Description
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2.1
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Agreement and Plan of Merger, dated as of February 4, 2011, by and
among GigOptix Inc., Aerie Acquisition Corporation and Endwave
Corporation
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4.1
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Amendment No. 2 to Rights Agreement, dated as of February 4, 2011,
by and between Endwave Corporation and Computershare Trust
Company, N.A., successor in interest to Computershare Trust
Company, Inc.
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99.1
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Joint
press release issued on February 7, 2011
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99.2
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PowerPoint presentation posted on February 7, 2011.
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