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Calculation of Filing Fee
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Transaction Valuation*
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Amount of Filing Fee**
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$2,307,695
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$279.69
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| Amount Previously Paid: | | | Filing Party: | |
| Form or Registration No.: | | | Date Filed: | |
Exhibit
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Description
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(a)(1)(i) | | | Offer to Purchase for Cash All Outstanding Options to Purchase Shares of CAS Medical Systems, Inc., dated March 15, 2019. | |
(a)(1)(ii) | | | Election to Tender Eligible Options Pursuant to the Offer to Purchase, dated March 15, 2019. | |
(a)(1)(iii) | | | Form of Notice of Withdrawal of Previously Tendered Options. | |
(a)(1)(iv) | | | Form of Letter to Optionholders, dated March 15, 2019. | |
(a)(2) | | | Not applicable. | |
(a)(3) | | | Not applicable. | |
(a)(4) | | | Not applicable. | |
(a)(5) | | | Not applicable. | |
(b) | | | Not applicable. | |
(d)(1) | | | Agreement and Plan of Merger by and among Edwards, Merger Sub and CAS Medical Systems, Inc., dated as of February 11, 2019. (Incorporated herein by reference to Exhibit 2.1 of the Current Report on Form 8-K filed by CAS Medical Systems, Inc. with the Securities and Exchange Commission on February 12, 2019). | |
(d)(2) | | | Definitive Proxy Statement of CAS Medical Systems, Inc. (Incorporated herein by reference to the Schedule 14A filed by CAS Medical Systems, Inc. with the Securities and Exchange Commission on March 13, 2019). | |
(d)(3) | | | Form of Voting Agreement. (Incorporated herein by reference to Exhibit 99.1 of the Current Report on Form 8-K filed by CAS Medical Systems, Inc. with the Securities and Exchange Commission on February 12, 2019). | |
(d)(4) | | | Investment Agreement dated June 8, 2011 between CASMED and Thomas, McNerney & Partners, L.P., TMP Nominee II LLC and TMP Associates II, L.P. (Incorporated herein by reference to Exhibit 10.1 of the Current Report on Form 8-K filed by CAS Medical Systems, Inc. with the Securities and Exchange Commission on June 13, 2011). | |
(d)(5) | | | Registration Rights Agreement dated June 9, 2011 between CASMED and Thomas, McNerney & Partners, L.P., TMP Nominee II LLC and TMP Associates II, L.P. (Incorporated herein by reference to Exhibit 10.2 of the Current Report on Form 8-K filed by CAS Medical Systems, Inc. with the Securities and Exchange Commission on June 13, 2011). | |
(d)(6) | | | Form of Option Termination Agreement (Incorporated herein by reference to Exhibit 10.1 of the Current Report on Form 8-K filed by CAS Medical Systems, Inc. with the Securities and | |
Exhibit
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Description
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| | | Exchange Commission on March 12, 2019). | |
(d)(7) | | | Restricted Stock Termination Agreement dated March 12, 2019 between CASMED and Thomas M. Patton (Incorporated herein by reference to Exhibit 10.2 of the Current Report on Form 8-K filed by CAS Medical Systems, Inc. with the Securities and Exchange Commission on March 12, 2019). | |
(g) | | | Not applicable. | |
(h) | | | Not applicable. | |
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| Who is offering to purchase my options? | | |
CAS Medical Systems, Inc.
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Which options are eligible to be tendered for a cash payment?
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| | We are offering to purchase for a cash payment all outstanding vested and unvested options to purchase shares of our common stock granted under our 2003 Equity Incentive Plan, 2011 Equity Incentive Plan, 2018 Equity Incentive Plan, and inducement stock option agreements. | |
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What will be the purchase price for the options?
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| | If you elect to participate in the offer, then unless we terminate the offer prior to the expiration date or the conditions to the offer are not satisfied, upon completion of the offer, in exchange for each eligible option (whether vested or unvested) that has not previously expired or been exercised or withdrawn from the offer, we will pay the option payment and then cancel the option. The per share option payment shall equal the greater of (i) the amount, if any, by which $2.45 exceeds the exercise price, or (ii) $0.10. The option payment will be made in cash, without interest, and reduced in each case by any applicable tax withholding. Directors and executive officers are not eligible to receive payments with respect to underwater options. | |
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May I tender an option that I have already exercised?
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| | No. Only outstanding, unexercised options are eligible to be tendered under the offer. If you have previously exercised an eligible option in part and the remaining unexercised portion of that option is outstanding, such remaining portion may be tendered under the offer. | |
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Have we or our board of directors adopted a position on the offer?
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| | Our board of directors has approved this offer and recommends that you tender your eligible options pursuant to this offer. In addition, our board of directors has unanimously approved the merger agreement, the merger and the other transactions contemplated by the merger agreement and has determined that the merger agreement, the merger and the other transactions contemplated by the merger agreement are advisable to, and in the best interests of, us and our stockholders. | |
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How long will the offer remain open and can the offer be extended or terminated prior to that time?
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| | The offer will expire at 5:00 p.m., New York City time, on April 17, 2019, unless we choose to extend the offer or to terminate the offer before that time or are otherwise required by law to extend the offer. Subject to applicable laws and the terms we describe in this offer to purchase, we are reserving the right to extend or terminate the offer in our sole discretion. If it appears that the merger will not be completed soon after the expiration date, we expect to extend the offer. We will not, however, extend the offer if the merger has been completed before the time of expiration of the offer. | |
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How will I be notified if CASMED extends the tender offer or amends the terms of the tender offer?
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| | If we decide to extend the offer, we will issue a press release not later than 9:00 a.m., New York City time, on the business day after the then-scheduled expiration date. We will announce any amendment to the offer by making a public announcement of the amendment and/or filing amended offer documents with the SEC. We post our press releases and filings with the SEC on our website at www.fore-sight.com. | |
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Are there any conditions to completion of this tender offer?
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| | Yes. While the offer is not conditioned upon a minimum number of option holders electing to participate in this offer or on any minimum total number of eligible options being tendered, participation in the offer will require an option holder to tender all of his or her eligible options in the offer. Because the offer will not be completed if the | |
| | | | merger is not consummated, the offer is further subject to the satisfaction or waiver of the conditions to the merger described in this offer to purchase. | |
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Why is CASMED making the offer?
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| | We have entered into a merger agreement with Merger Sub and Edwards, pursuant to which we will be merged with and into Merger Sub and each outstanding share of our common stock will be converted into the right to receive $2.45 in cash. Pursuant to the merger agreement, we have agreed with Merger Sub and Edwards to provide that at the effective time of the merger, each of the eligible options will be cancelled in accordance with applicable law and in a manner reasonably acceptable to Merger Sub, Edwards and to us, and the holders of such options will be entitled to receive the applicable option payment. We are making this offer in order to provide a means for our option holders to receive value for their stock options in connection with, and upon completion of, the merger. We are also making this offer in order to ensure that no options to purchase shares of our stock will remain outstanding following the merger, because our 2003 Equity Incentive Plan, 2011 Equity Incentive Plan, 2018 Equity Incentive Plan and inducement stock option agreements do not unilaterally permit us to terminate the eligible options in the context of a transaction such as the merger. | |
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What happens if the merger agreement is terminated?
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| | If the merger agreement is terminated, we will terminate this offer and we will not pay any consideration in exchange for eligible options tendered to us. Under those circumstances, you will continue to hold your eligible options to purchase shares of our common stock under the same terms, conditions and stock option plans and agreements as applied before the offer. | |
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Will our executive officers or directors participate in this offer?
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| | Our directors and executive officers are eligible to participate on the same terms offered to any other holder of eligible options. However, our executive officers and directors have agreed to terminate each of their options with an exercise price in excess of $2.45 without compensation. | |
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When will payment be made?
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| | Subject to the terms and conditions of the offer, payment for eligible options purchased will be made promptly after expiration of the offer. | |
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How do I participate in the offer and tender my eligible options?
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| | If you decide to participate in the offer and tender your eligible options, you must return to us, before the expiration date, a properly completed and signed election form, or a copy of that form, at the address or facsimile number or email address listed on the front page of this offer to purchase. We may reject any election form delivered to us to the extent that we determine in our discretion it is not properly completed or to the extent we believe it would be unlawful to accept the tendered options. If you do not properly complete, sign and deliver to us the election form before the expiration date of the offer, it will have the same effect as if you rejected the offer. | |
| Do I have to pay a commission if I agree to tender my eligible options? | | |
No. There is no commission if you tender your eligible options.
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Once I have tendered options in the offer, can I withdraw my tendered options?
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| | Yes. You may withdraw the tender of your eligible options at any time before the expiration date. To withdraw previously tendered eligible options, you must notify us in writing at the address, facsimile number or email address on the front pages of this offer to purchase. A notice of withdrawal must be signed by you and will result in all of your previously tendered eligible options to be withdrawn from the offer. However, you may tender your eligible options again before the | |
| | | | expiration date by following the proper tendering procedures. We may reject any notice of withdrawal delivered to us to the extent that we determine in our discretion it is not properly completed. If you previously have properly completed, signed and delivered an election form to us and you do not properly complete, sign and deliver to us a notice of withdrawal before the expiration of the offer, it will have the same effect as if you accepted the offer. | |
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What will happen to my eligible options if I do not tender my eligible options in the offer?
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If you choose not to tender your eligible options, they will remain outstanding in accordance with their original terms and conditions, including terms relating to expiration. In addition, if the merger is consummated, the options will become fully vested and exercisable. However, if the merger is consummated, we will no longer be a public company and our common stock will no longer be traded on Nasdaq or any other stock market. As a result, your eligible options will be options to purchase shares of common stock of a company:
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for which there is no public trading market;
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that will no longer make filings with the SEC; and
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that will not be required to comply with the SEC’s rules relating to publicly-held companies.
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| | | | If you retain your eligible options following the merger, although you will retain the right to exercise your eligible options to the extent provided by the current terms and conditions of the options, you will not be entitled to receive the option payment being made under this offer. See “Significant Consequences to Non-Tendering Option Holders.” | |
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What happens if my eligible options expire prior to the expiration date of the offer?
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| | We will only accept for cancellation and purchase those eligible options that are still outstanding on the expiration date of the offer. Any eligible option that expires by its terms before the expiration date of this offer will not be considered outstanding, and no payment will be made for those eligible options pursuant to this offer. Because of the possibility that we may choose to extend the expiration date of the offer, it is not possible to determine with any certainty when the offer will expire. Accordingly, it is your responsibility to decide whether to exercise any of your eligible options before they expire, whether or not you have tendered them pursuant to this offer. | |
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Can I exercise my eligible options after I have tendered them?
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| | Even if you tender your eligible options in this offer, you may still exercise any of your eligible options to purchase shares of our common stock at any time up to the expiration date of this offer by following the procedures for exercise set forth in the terms and conditions of your eligible options. | |
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What happens if I exercise my eligible options into CASMED common stock prior to the expiration date of the offer?
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| | If you exercise your eligible options prior to the expiration date of the offer according to the terms and conditions of your eligible options, even if you have already tendered your options in this offer, you will receive shares of our common stock and you will not receive any payments in this offer. If the merger is then completed and you have not yet sold the shares, each share of our common stock that you own will be cancelled in the merger and for each cancelled share you will be entitled to receive $2.45 in cash (unless you successfully assert appraisal rights under Delaware law as described in our proxy statement relating to the special meeting of stockholders to be held on April 18, 2019). | |
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What happens if my employment with CASMED terminates prior to the expiration date of the offer?
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| | If your employment with CASMED terminates during the pendency of the offer and your options remain exercisable, you will continue to be permitted to tender your options in the offer until such time as your options are no longer exercisable, at which time they will terminate and be of no further force or effect. | |
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How will CASMED pay for the tendered eligible options?
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| | We will pay approximately $2,307,695 before fees and expenses if we purchase all of the eligible options that are currently outstanding pursuant to this offer. We expect to obtain these funds from our cash on hand at or immediately prior to the merger. | |
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What are the U.S. federal income tax consequences if I tender my shares?
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| | If you elect to participate in the offer and your eligible options are accepted for cancellation, and you receive the option payment for your cancelled eligible options, you will have ordinary compensation income equal to the option payment. To the extent applicable, taxes will be withheld from any payment made to employees and former employees in this offer. | |
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What is the recent market price of the eligible options and the common stock into which the eligible options are exercisable?
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| | Because the options generally are not transferable, there is no market price for the eligible options. However, each vested eligible option may be exercised to purchase one share of our common stock at the designated exercise price for that eligible option. On March 14, 2019, the last reported sale price of our common stock was $2.43 per share. | |
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Who can help answer my questions about the offer?
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| | You may contact a representative of CASMED at the address and the phone number listed on the front pages of this offer to purchase if you have any questions or requests for assistance or for additional copies of this offer to purchase or the election form. | |
Name
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Position
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Eligible
Options |
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Executive Officers | | | | | | | |
Thomas M. Patton | | | President and Chief Executive Officer | | |
810,000
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Jeffery A. Baird | | | Chief Financial Officer | | |
175,000
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John K. Gamelin | | | Vice President of Research and Development | | |
216,000
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Paul B. Benni | | | Chief Scientific Officer | | |
151,000
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Non-Employee Directors | | | | | | | |
Alan Milinazzo | | | Director | | |
45,000
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Paul Molloy | | | Director | | |
45,000
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Gregory Rainey | | | Director | | |
45,000
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James Thomas | | | Director | | |
45,000
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Kathleen Tune | | | Director | | |
45,000
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Kenneth Weisshaar | | | Director | | |
65,000
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Common Stock Price ($)
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High
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Low
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Fiscal 2017 | | | | | | | | | | | | | |
First Quarter ended March 31
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| | | $ | 1.75 | | | | | $ | 1.38 | | |
Second Quarter ended June 30
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| | | $ | 1.50 | | | | | $ | 0.80 | | |
Third Quarter ended September 30
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| | | $ | 1.28 | | | | | $ | 0.84 | | |
Fourth Quarter ended December 31
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| | | $ | 0.99 | | | | | $ | 0.59 | | |
Fiscal 2018 | | | | | | | | | | | | | |
First Quarter ended March 31
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| | | $ | 1.35 | | | | | $ | 0.73 | | |
Second Quarter ended June 30
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| | | $ | 2.06 | | | | | $ | 1.06 | | |
Third Quarter ended September 30
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| | | $ | 2.70 | | | | | $ | 1.74 | | |
Fourth Quarter ended December 31
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| | | $ | 2.39 | | | | | $ | 1.33 | | |
Name
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Position
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Thomas M. Patton | | | Director, President and Chief Executive Officer | |
Jeffery A. Baird | | | Chief Financial Officer | |
John K. Gamelin | | | Vice President of Research and Development | |
Paul B. Benni | | | Chief Scientific Officer | |
Alan Milinazzo | | | Director | |
Paul Molloy | | | Director | |
Gregory Rainey | | | Director | |
James Thomas | | | Director | |
Kathleen Tune | | | Director | |
Kenneth Weisshaar | | | Director | |
Option Date
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Option Exercise
Price |
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Options
Outstanding(1) |
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Cash Payment
Per Option(2)(3) |
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