Cherokee International Corp - Current report filing (8-K)
September 30 2008 - 6:01AM
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):
September 24,
2008
Cherokee
International Corporation
(Exact Name of Registrant as
Specified in Charter)
Delaware
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000-50593
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95-4745032
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(State or Other
Jurisdiction
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(Commission
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(IRS Employer
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of Incorporation)
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File Number)
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Identification No.)
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2841 Dow
Avenue, Tustin, California
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92780
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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:
(714) 544-6665
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):
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
On September 24, 2008, Cherokee
International Corporation, a Delaware corporation (
Cherokee
),
and Lineage Power Holdings, Inc. (
Parent
), a
portfolio company of The Gores Group, LLC, entered into an Agreement and Plan
of Merger (the
Merger Agreement
) by and among Parent,
Birdie Merger Sub, Inc., a Delaware corporation and wholly-owned
subsidiary of Parent (
Merger Sub
),
and Cherokee, pursuant to which Merger Sub will be merged with and into
Cherokee, with Cherokee continuing after the merger as the surviving
corporation and a wholly owned subsidiary of Parent (the
Merger
). Cherokees board of directors has unanimously
approved the adoption of the Merger Agreement and the Merger and has
recommended that Cherokees stockholders approve and adopt the Merger
Agreement.
Pursuant to the Merger Agreement, upon
consummation of the Merger: (1) each
issued and outstanding share of common stock of Cherokee (the
Shares
), other than Shares owned by Cherokee, Parent,
Merger Sub or any wholly owned subsidiary of Cherokee, Parent or Merger Sub, or
by any stockholders who are entitled to and who properly exercise appraisal
rights under Delaware law, will be cancelled and converted into the right to
receive $3.20 in cash, without interest; (2) each unexercised Cherokee
stock option that is outstanding at the effective time of the Merger (whether
or not then vested) will be cancelled and converted into the right to receive an
amount in cash (subject to applicable withholding taxes) equal to (x) the
excess, if any, of $3.20 per share over the per share exercise or purchase
price of such outstanding Cherokee stock option, multiplied by (y) the
number of shares of Cherokee common stock underlying such Cherokee stock
option; and (3) shares of Cherokee common stock purchased under Cherokees
Employee Stock Purchase Program will be cancelled and converted into the right
to receive $3.20 per share.
Cherokee has made customary representations,
warranties and covenants in the Merger Agreement, including, among others,
covenants: (1) to, during the interim period between the execution of the
Merger Agreement and consummation of the Merger, carry on its business in the
usual, regular and ordinary course in the same manner as previously conducted; (2) not
to engage in certain kinds of transactions during such period; and (3) to
cause a stockholder meeting to be held to consider approval of the Merger and
the other transactions contemplated by the Merger Agreement.
Additionally, Cherokee has agreed not to (1) solicit,
initiate or encourage proposals relating to alternative business combination
transactions or (2) subject to certain exceptions, enter into discussions
concerning alternative business combination transactions. However, Cherokee will be authorized to
solicit, initiate or encourage takeover proposals with respect to Cherokees
European operations. In addition, the
Merger Agreement may be terminated by Cherokee and Parent under certain
circumstances, including by Cherokee if its board of directors determines in
good faith that it has received an unsolicited bona fide superior proposal,
as defined in the Merger Agreement, and otherwise complies with certain terms
of the Merger Agreement.
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In
connection with such termination, Cherokee must pay a fee of $2,500,000.00 to
Parent. Cherokee may also be required to
pay Parent a fee of $2,500,000.00 under other specified circumstances in
connection with a termination of the Merger Agreement.
Consummation of the Merger is subject to the
satisfaction or waiver (if applicable) of a number of conditions, including: (1) approval
of Cherokees stockholders; (2) subject to certain exceptions, the absence
of a material adverse effect with respect to Cherokee during the interim period
between the execution of the Merger Agreement and consummation of the Merger; (3) expiration
of the waiting period and approval under any applicable antitrust laws; and (4) no
restraints of any governmental entity prohibiting the consummation of the
merger. In addition, each partys
obligation to consummate the Merger is subject to the accuracy of the
representations and warranties of the other party, subject to a material
adverse effect condition, and material compliance of the other party with its
covenants.
The foregoing description of the Merger and
the Merger Agreement is not complete and is qualified in its entirety by
reference to the Merger Agreement, which is filed hereto as Exhibit 2.1
and incorporated herein by reference.
In connection with the Merger Agreement,
certain stockholders of Cherokee with controlling voting power of over
approximately 50% of the Shares have entered into a voting agreement with
Parent, Merger Sub and Cherokee (the Voting Agreement) pursuant to which
those stockholders have agreed to vote in favor of the transactions
contemplated by the Merger Agreement and not to transfer their shares except
under certain circumstances. The Voting
Agreement will terminate upon any termination of the Merger Agreement.
The foregoing description of the Voting
Agreement is not complete and is qualified in its entirety by reference to the
Voting Agreement, which is filed hereto as Exhibit 10.1 and incorporated
herein by reference.
Item
8.01. Other Events
On September 25, 2008, Cherokee and
Parent issued a press release announcing the execution of the Merger Agreement. A copy of the press release is filed as Exhibit 99.1
and incorporated herein by reference.
Important
Additional Information Will be Filed with the SEC
Cherokee plans to file with the SEC and mail
to its stockholders a Proxy Statement in connection with the Merger. The Proxy
Statement will contain important information about Cherokee, the Merger and
related matters. Stockholders are urged
to read the Proxy Statement carefully when it is available.
3
Stockholders will be able to obtain free
copies of the Proxy Statement and other documents filed with the SEC by
Cherokee through the website maintained by the SEC at www.sec.gov.
In addition, stockholders will be able to
obtain free copies of the Proxy Statement from Cherokee by contacting Investor
Relations,
2841 Dow
Avenue, Tustin, California, 92780, telephone (714) 227-0391, or by going to the Cherokees Investor Relations page on
its website at www.cherokeepwr.com.
Cherokee, Parent and their respective
executive officers and directors may be deemed, under SEC rules, to be participants
in the solicitation of proxies from the stockholders of Cherokee with respect
to the proposed transaction. Certain directors and executive officers of
Cherokee may have direct or indirect interests in the Merger due to securities
holdings, pre-existing or future indemnification arrangements, vesting of
options, or rights to severance or retention payments in connection with the
Merger. Additional information regarding Cherokee and the interests of its
executive officers and directors in the acquisition will be contained in the
proxy statement regarding the acquisition that will be filed by Cherokee with
the SEC in connection with the proposed transaction.
Forward-Looking
and Cautionary Statements
This report contains projections of future
results and other forward-looking statements that involve a number of risks and
uncertainties and are made pursuant to the Safe Harbor Provisions of the
Private Securities Litigation Reform Act of 1995.
The forward-looking statements in this report
include, without limitation, expectations with respect to the proposed Merger. Important factors that may cause actual
results and outcomes to differ materially from those contained in such
forward-looking statements include, without limitation, the parties ability to
consummate the transaction as expected; the possibility that one or more of the
conditions to the consummation of the transaction may not be satisfied; the
possibility that regulatory and/or shareholder approvals required for the
transaction may not be obtained in a timely manner, if at all; the parties
ability to meet expectations regarding the timing, completion, and other
matters relating to the transaction; and any event that could give rise to the
termination of the Merger Agreement.
Cherokee cautions that the foregoing list of
important factors is not complete and does not undertake to update any
forward-looking statements that it may make.
All subsequent written and oral forward-looking statements concerning
the proposed transaction or other matters and attributable to Cherokee or any
person acting on its behalf are expressly qualified in their entirety by the
cautionary statements referenced above.
4
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits
.
The following are filed as
Exhibits to this Report:
Exhibit
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No.
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Description of Exhibit
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2.1
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Agreement and Plan of Merger, dated September 24, 2008, by and
among Cherokee, Merger Sub and Parent.*
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10.1
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Voting Agreement, dated September 24, 2008, by and among GSCP
(NJ), Inc., GSC Recovery II, L.P., GSC Recovery IIA, L.P., GSC Partners
CDO Fund, Limited, GSC Partners CDO Fund II, Limited, OCM Principal
Opportunities Fund, L.P. and OCM/GFI Power Opportunities Fund, L.P., Cherokee,
Parent and Merger Sub.
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99.1
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Joint press release issued by Cherokee and Parent on
September 25, 2008.
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* Exhibits and schedules
omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees
to furnish a supplemental copy of an omitted exhibit or schedule to the SEC
upon request.
5
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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Cherokee International Corporation
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By:
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/s/ Linster W. Fox
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Linster (Lin) W. Fox
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Chief Financial Officer
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Dated: September 29, 2008
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