Current report filing (8-K)
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): July 26, 2012
AUTHENTEC, INC. (Exact name of registrant as specified in its charter)
Delaware 001-33552 59-3521332 (State or other jurisdiction of incorporation or organization)
(Commission File Number) (I.R.S. Employer Identification No.)
100 Rialto Place, Suite 100, Melbourne, Florida 32901 Telephone: (321) 308-1300 (Address, including zip code, and telephone number, including area code, of registrants? principal executive offices)
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: ? 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) ? Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) ? 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 On July 26, 2012, AuthenTec, Inc., a Delaware corporation (the ?Company?), entered into an Agreement and Plan of Merger (the ?Merger Agreement?) with Apple Inc., a California corporation (?Parent?), and Bryce Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of Parent (?Merger Sub?), providing for the merger of Merger Sub into the Company (the ?Merger?), with the Company surviving the Merger as a wholly owned subsidiary of Parent. The Merger Agreement was unanimously approved by the Company?s Board of Directors.
At the effective time of the Merger, each share of Company common stock issued and outstanding immediately prior to the effective time (other than shares (i) held by the Company in treasury, (ii) owned directly or indirectly, by any of the Company?s wholly owned subsidiaries, Parent, or Merger Sub or any other direct or indirect wholly owned subsidiary of Parent, or (iii) held by stockholders who have perfected and not withdrawn a demand for appraisal rights under Delaware law) will be automatically cancelled and converted into the right to receive $8.00 in cash, without interest.
Consummation of the Merger is subject to customary closing conditions, including without limitation (i) the adoption of the Merger Agreement by the holders of a majority of the outstanding shares of the Company?s common stock entitled to vote thereon, (ii) the absence of any legal restraint enjoining or prohibiting the Merger, (iii) the expiration or early termination of the waiting period applicable to the consummation of the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the receipt of certain foreign antitrust approvals, (iv) the absence of a material adverse effect on the Company, (v) the absence of any pending or threatened litigation initiated by the Federal Trade Commission or the Antitrust Division of the Department of Justice under certain antitrust laws or any related legal restraint and (vi) certain other customary conditions. Consummation of the Merger is not subject to any financing contingencies.
The Company is subject to customary ?no-shop? restrictions on its ability to solicit alternative acquisition proposals from third parties and to provide information to and engage in discussions with third parties regarding alternative acquisition proposals. However, prior to adoption of the Merger Agreement by the Company?s stockholders, the no-shop provision is subject to customary exceptions which allow the Company under certain circumstances to provide information to and participate in discussions with third parties with respect to certain unsolicited alternative acquisition proposals.
Each of the Company, Parent and Merger Sub has made customary representations and warranties in the Merger Agreement, and each has agreed to use its reasonable best efforts to consummate the Merger. The Company has also agreed to various covenants in the Merger Agreement, including, without limitation, to cause a special meeting of the Company?s stockholders to be held to consider the adoption of the Merger Agreement and file a proxy statement with the Securities and Exchange Commission (the ?SEC?) related to such special meeting.
The Merger Agreement contains certain termination rights for the Company and Parent. Upon termination of the Merger Agreement under specified circumstances, the parties may be required to pay the other party a termination fee. If the Company is required to pay a termination fee as a result of, among other things, the Company accepting a superior proposal as contemplated by the Merger Agreement, the amount of the termination fee is $10.95 million.
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The Merger Agreement also provides that if it is terminated by either the Company or Parent in certain circumstances where requisite antitrust approvals have not been received, governmental litigation under applicable antitrust laws has been initiated or if an injunction or other legal restraint on the consummation of the Merger under applicable antitrust laws has become final, Parent will be required to pay the Company a termination fee of $20.0 million.
Piper Jaffray & Co. acted as exclusive financial adviser and rendered a fairness opinion to the board of directors of the Company. Alston & Bird LLP acted as legal adviser to the Company.
The foregoing description of the Merger Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Merger Agreement attached hereto as Exhibit 2.1, which is incorporated herein by reference.
Intellectual Property and Technology Agreement On July 26, 2012, Parent and the Company entered into an Intellectual Property and Technology Agreement (the ?IP Agreement?). The IP Agreement provides Parent with the right to acquire non-exclusive licenses and certain other rights with respect to hardware technology, software technology and patents of the Company.
For the right to acquire such non-exclusive licenses and other rights, Parent will pay the Company $20.0 million. Parent will have 270 days from the date of the IP Agreement to choose, in its sole discretion, to license certain hardware technology and patents and/or certain software technology and patents on a perpetual, non-exclusive basis for an aggregate sum of up to $115.0 million.
The IP Agreement contains customary representations and warranties and indemnification obligations, subject to certain exceptions and limitations.
The foregoing description of the IP Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the IP Agreement attached hereto as Exhibit 10.1, which is incorporated herein by reference.
Development Agreement On July 26, 2012, Parent and the Company entered into a Development Agreement under which the Company will perform certain non-recurring engineering services for Parent for product development and will receive payment of a total of up to $7.5 million for performance of the development work. New intellectual property resulting from the services is to be owned by Parent and certain limited licenses with respect to the services and resulting work product will be granted by the parties. The Company will act as an independent contractor under the terms of the Development Agreement.
The foregoing description of the Development Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Development Agreement attached hereto as Exhibit 10.2, which is incorporated herein by reference.
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Voting Agreements On July 26, 2012, certain of the Company?s directors and executive officers, who beneficially own approximately 3.4% of the outstanding Company common stock, concurrently with the execution of the Merger Agreement and in their capacities as stockholders of the Company, entered into a voting agreement (the ?Voting Agreement?) with Parent and Merger Sub, pursuant to which they have agreed to, among other things, vote their shares in favor of the approval of the Merger Agreement and other proposals necessary to consummate the Merger unless such Voting Agreement is terminated pursuant to its terms.
The foregoing description of the Voting Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the form of the Voting Agreement attached hereto as Exhibit 2.2, which is incorporated herein by reference.
The representations, warranties and covenants of the Company contained in the Merger Agreement a
