SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
July 19, 2001
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Date of Report
(Date of earliest event reported)
DATA CRITICAL CORPORATION
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(Exact Name of Registrant as Specified in Charter)
Delaware 000-27855 91-1901482
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(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
19820 North Creek Parkway, Suite 100
Bothell, Washington 98011
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(Address of principal executive offices) (Zip Code)
(425) 482-7000
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Registrant's telephone number, including area code
Item 5. Other Events
On July 19, 2001, Data Critical Corporation, a Delaware corporation,
entered into an Agreement and Plan of Merger with General Electric Company, a
New York corporation, and Ether Merger Corp., a Delaware corporation and wholly
owned subsidiary of GE. The merger agreement provides that Ether Merger Corp.
will merge with and into Data Critical. Data Critical will be the surviving
corporation and will become a wholly owned indirect subsidiary of GE. At the
effective time of the merger, each outstanding share of Data Critical common
stock, other than those for which dissenters' appraisal rights have been
properly demanded and perfected in accordance with Delaware law, will be
converted into the right to receive $3.75 in cash.
The closing of the transaction is conditioned upon, among other things,
adoption of the merger agreement by the holders of a majority of the outstanding
shares of Data Critical common stock, approval from the Federal Communications
Commission, or FCC, for transfer of Data Critical's FCC licenses and expiration
of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
The merger agreement contains customary prohibitions against solicitation
and negotiation of competing offers to acquire or merge with Data Critical,
with customary protections for the exercise of Data Critical's board of
directors of its fiduciary duties to stockholders under applicable law. Data
Critical will be required to pay GE a termination fee of $2 million if the
merger agreement is terminated under certain circumstances which are described
in the merger agreement.
In connection with the merger agreement, Data Critical and GE entered into
a Stock Option Agreement pursuant to which Data Critical granted GE an
irrevocable option to purchase, under certain circumstances, up to 3,406,530
authorized and unissued shares of Data Critical common stock at a price per
share of $3.75. Data Critical may be required to repurchase from GE any portion
of the option that GE has not yet exercised upon the happening of certain
events. Under no circumstances can GE realize more than $3.35 million total from
the merger agreement termination fee, if any, and the option.
Also in connection with the execution of the merger agreement, and as an
inducement and condition to GE's entering into the merger agreement,
stockholders of Data Critical who beneficially own in the aggregate
approximately 33% of Data Critical's voting capital stock entered into
stockholder agreements, in which they agreed to vote their shares in favor of
the merger and to refrain from selling or transferring, or soliciting the sale
or transfer of, their shares before the stockholder meeting. The stockholders
who have signed this voting agreement are Warburg, Pincus Ventures, L.P., Aether
Systems, Inc., Kimberlin Family Partners, Oshkim Limited Partners, Apex
Investment Fund II, L.P. and David E. Albert, M.D.
Also in connection with the merger agreement Data Critical executed an
Amendment to the Preferred Share Rights Agreement between Data Critical and
Mellon Investor Services LLC (formerly ChaseMellon Shareholder Services,
L.L.C.). This amendment made the provisions of the Data Critical stockholder
rights plan inapplicable to the proposed transaction between Data Critical and
GE.
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Copies of (1) the merger agreement, (2) the rights plan amendment, (3) the
stock option agreement between Data Critical and GE, (3) the form of stockholder
agreement and (4) Data Critical's press release announcing the signing of the
merger agreement are attached as Exhibits 2.1, 2.2, 2.3, 4.1, and 99.1,
respectively, and are incorporated herein by reference. The description of those
agreements contained herein is not complete and you should refer to the exhibits
for a copy of the actual agreements.
Item 7. Financial Statements and Exhibits
(c) Exhibits
2.1 Agreement and Plan of Merger, dated as of July 19, 2001, by
and among General Electric Company, Ether Merger Corp. and
Data Critical Corporation
2.2 Stock Option Agreement, dated as of July 19, 2001, between
Data Critical Corporation and General Electric Company
2.3 Form of Stockholder Agreement between General Electric
Company and certain stockholders of Data Critical Corporation
4.1 Amendment, dated as of July 19, 2001, to Preferred Share
Rights Agreement between Data Critical Corporation and Mellon
Investor Services LLC
99.1 Press Release issued by Data Critical Corporation dated July
19, 2001
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SIGNATURE
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.
DATA CRITICAL CORPORATION
Dated: July 20, 2001 By /s/ MICHAEL E. SINGER
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Michael E. Singer
Executive Vice President and Chief
Financial Officer
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EXHIBIT INDEX
Exhibit Number Description
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2.1 Agreement and Plan of Merger, dated as of July 19, 2001, by
and among General Electric Company, Ether Merger Corp. and
Data Critical Corporation
2.2 Stock Option Agreement, dated as of July 19, 2001, between
Data Critical Corporation and General Electric Company
2.3 Form of Stockholder Agreement between General Electric
Company and certain stockholders of Data Critical Corporation
4.1 Amendment, dated as of July 19, 2001, to Preferred Share
Rights Agreement between Data Critical Corporation and Mellon
Investor Services LLC
99.1 Press Release issued by Data Critical Corporation dated July
19, 2001