- Additional Proxy Soliciting Materials (definitive) (DEFA14A)
November 12 2010 - 4:02PM
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):
November 5
, 2010
CardioNet, Inc.
(Exact name of registrant as specified in its charter)
Delaware
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001-33993
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33-0604557
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(State or other jurisdiction
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(Commission
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(I.R.S. Employer
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of incorporation)
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File Number)
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Identification No.)
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227 Washington Street
Conshohocken, PA
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19428
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code:
(610) 729-7000
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:
o
Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
x
Soliciting material pursuant
to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Item 1.01.
Entry
into a Material Definitive Agreement.
Merger Agreement and Settlement Agreement
On
November 5, 2010, CardioNet, Inc. (the Company) entered into a
Merger Agreement (the Merger Agreement) with Biotel Inc. (Biotel) and
Garden Merger Sub, Inc., a wholly owned subsidiary of the Company (Merger
Sub). Under the Merger Agreement, Merger Sub will be merged with and
into Biotel (the Merger), with Biotel continuing after the Merger as the
surviving corporation and a subsidiary of the Company. In connection with
this Merger Agreement, the Company and Biotel also entered into a Settlement
Agreement (the Settlement Agreement) to terminate the prior merger agreement
among the parties dated April 1, 2009, and to settle the outstanding litigation
among them, which settlement will be effective conditioned upon, and as of the
closing of the Merger. At the effective time of the Merger, each issued
and outstanding share of Biotels common stock (the Common Stock) will be
converted into the right to receive $3.84 in cash, before adjustment for
working capital, without interest (the Merger Consideration). In
addition, each holder of an option to purchase shares of Common Stock will be
entitled to receive a per share cash payment equal to the amount by which the
Merger Consideration exceeds the exercise price of such option, less any
applicable withholding taxes.
Biotel
and the Company have made customary representations and warranties and agreed
to customary covenants in the Merger Agreement. The completion of the
Merger is subject to approval of the Merger Agreement by Biotels shareholders
and other customary closing conditions. The transaction is not subject to
any financing condition.
The
Merger Agreement contains certain termination rights and provides that, upon
the termination of the Merger Agreement under specified circumstances, Biotel
may be required to pay the Company a termination fee equal to $330,000 and to
reimburse the Company for expenses up to $100,000.
Voting
Agreements
In
connection with the Merger Agreement, the Company has entered into voting
agreements (the Voting Agreements), each dated as of November 5, 2010,
with each of the directors and executive officers of Biotel (each a Biotel
Shareholder, and collectively, the Biotel Shareholders) pursuant to which,
among other things, each Biotel Shareholder has agreed to vote all shares of
Common Stock beneficially owned by such Biotel Shareholder (the Covered Shares)
for approval of the Merger Agreement and the transactions contemplated thereby
and against any action that is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone or adversely affect the transactions
contemplated by the Merger Agreement. In addition, pursuant to the terms
of the Voting Agreements, each Biotel Shareholder has granted the Company an
irrevocable proxy to vote the Covered Shares with respect to the matters set
forth in the Voting Agreement. The Biotel Shareholders beneficially own
an aggregate of approximately 22% of Biotels outstanding Common Stock.
2
The
foregoing descriptions of the Merger Agreement, the Settlement Agreement and
the Voting Agreements do not purport to be complete and are qualified in their
entirety by reference to the full text of the agreements, which are filed
respectively as Exhibits 2.1, 99.1 and 99.2 hereto and incorporated by
reference. The Merger Agreement is
included to provide investors and security holders with information regarding
its terms. It is not intended to provide
any other factual information about the Company or the other parties
thereto. In particular, the assertions
embodied in the representations and warranties contained in the Merger
Agreement are qualified by information in the disclosure schedules provided by
Biotel to the Company and vice versa in
connection with the signing of the Merger Agreement. Moreover, certain
representations and warranties in the Merger Agreement were used for the
purpose of allocating risk between the Company and Biotel rather than
establishing matters as fact. Accordingly, investors and security holders
should not rely on the representations and warranties in the Merger Agreement
as characterizations of the actual state of facts about the Company or Biotel.
This
material is not a substitute for the proxy statement Biotel will file with the
Securities and Exchange Commission.
Investors are urged to read the proxy statement, including detailed risk
factors, when it becomes available, because it will contain important
information. The proxy statement and
other documents, which will be filed by Biotel with the Securities and Exchange
Commission, will be available free of charge at the SECs website, www.sec.gov,
or by visiting Biotels website at www.biotelinc.com.
Biotel
Inc. and certain of its directors, executive officers and certain other members
of its management may be deemed to be soliciting proxies from Biotels
shareholders in connection with the proposed transaction. Investors may obtain a detailed list of
names, affiliations and interests of Biotels participants in the solicitation
of proxies of Biotels shareholders by reading the proxy statement when it
becomes available.
Item
9.01. Financial Statements and
Exhibits.
(d)
Exhibits
.
Exhibit No.
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Description
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2.1
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Merger
Agreement, dated as of November 5, 2010, among Biotel Inc., Garden
Merger Sub, Inc. and CardioNet, Inc. *
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99.1
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Settlement
Agreement, dated as of November 5, 2010, between Biotel Inc. and CardioNet, Inc.
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99.2
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Form of
Voting Agreement, executed by the Company and the other signatories thereto
on November 5, 2010.
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* The Company hereby agrees to furnish
supplementally a copy of the omitted schedules and exhibits to the Securities
and Exchange Commission upon its request.
3
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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CardioNet, Inc.
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November 12, 2010
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By:
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/s/
Heather Getz
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Name:
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Heather
Getz, CPA
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Title:
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Chief
Financial Officer
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4
EXHIBIT INDEX
Exhibit No.
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Description
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2.1
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Merger
Agreement, dated as of November 5, 2010, among Biotel Inc., Garden
Merger Sub, Inc. and CardioNet, Inc. *
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99.1
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Settlement
Agreement, dated as of November 5, 2010, between Biotel Inc. and
CardioNet, Inc.
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99.2
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Form of
Voting Agreement, executed by the Company and the other signatories thereto
on November 5, 2010.
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* The Company hereby agrees to furnish
supplementally a copy of the omitted schedules and exhibits to the Securities
and Exchange Commission upon its request.
5
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