13D
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CUSIP No. 232577205
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Page 2 of 11 Pages
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1.
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Names of reporting persons
Palomar Medical Technologies, Inc.
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2.
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Check the appropriate box if a
member of a group
(a)
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(b)
x
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3.
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SEC use only
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4.
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Source of funds
OO
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5.
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Check box if disclosure of legal
proceedings is required pursuant to Item 2(d) or 2(e)
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6.
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Citizenship or place of
organization
Delaware
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Number of
shares
beneficially
owned by
each
reporting
person
with
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7.
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Sole voting power
0
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8.
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Shared voting power
3,204,670
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9.
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Sole dispositive power
0
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10.
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Shared dispositive power
0
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11.
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Aggregate amount beneficially owned by each reporting person
3,204,670
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12.
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Check box if the aggregate amount
in Row (11) excludes certain shares
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13.
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Percent of class represented by
amount in Row (11)
18.6%
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14.
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Type of reporting
person
CO
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13D
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CUSIP No. 232577205
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Page
3
of 11 Pages
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SCHEDULE 13D
This Schedule 13D (this Statement) is being filed as an original filing with the Securities and Exchange Commission (the
SEC) by Palomar Medical Technologies, Inc., a Delaware corporation (Palomar), in connection with the execution and delivery of Buyer Stockholder Agreements (collectively, the Buyer Stockholder Agreements), each
dated as of March 17, 2013, by and between Palomar and each of: Michael R. Davin, the Chief Executive Officer and Chairman of Cynosure, Inc., a Delaware corporation (the Issuer), Timothy Baker, the Executive Vice President, Chief
Financial Officer and Treasurer of the Issuer, Douglas Delaney, the Executive Vice President, Sales of the Issuer, Brian Barefoot, a director of the Issuer, Ettore Biagioni, a director of the Issuer, Andrea Cangioli, a director of the Issuer, Marina
Hatsopoulos, a director of the Issuer, Thomas Robinson, a director of the Issuer, and El. En. SpA, an Italian
Società per Azioni
(collectively, the Issuer Stockholders).
The Buyer Stockholder Agreements were entered into in connection with the execution and delivery on March 17, 2013 of an Agreement
and Plan of Merger (the Merger Agreement) among Palomar, the Issuer, and Commander Acquisition Corp, a Delaware corporation (the Merger Subsidiary). Pursuant to the Merger Agreement, Palomar will merge with and into the
Merger Subsidiary, with the Merger Subsidiary surviving as a wholly-owned subsidiary of the Issuer (the Merger) at the effective time of the Merger (the Effective Time).
Pursuant to the Merger Agreement, at the Effective Time, each share of Palomar common stock, par value $0.01 per share (including each
outstanding preferred stock purchase right under the Palomars Amended and Restated Rights Plan, dated as of October 28, 2008 attached to each such share), issued and outstanding immediately prior to the Effective Time will be converted
automatically into the right to receive (i) a cash amount equal to $6.825, plus any Make-Whole Payment (as defined below), without interest, and (ii) that number (the Exchange Ratio) of validly issued, fully-paid and
non-assessable shares of the Issuers Class A common stock, par value $0.001 per share (Issuer Common Stock), equal to the quotient determined by dividing $6.825 (the Target Stock Value) by the average closing price
of the Issuer Common Stock during the 20 consecutive trading days ending on the third trading day prior to the Effective Time (the Average Buyer Stock Price), and rounding the result to the nearest 1/10,000 of a share of Issuer Common
Stock. However, (x) if the number determined by dividing the Target Stock Value by the Average Buyer Stock Price is less than or equal to 0.229, the Exchange Ratio will be 0.229 and (y) if the number determined by dividing the Target Stock
Value by the Average Buyer Stock Price is greater than or equal to 0.283, the Exchange Ratio will be 0.283 (the Maximum Exchange Ratio). For purposes of the Merger Agreement, Make-Whole Payment means (1) if, but for the
limitation on the Exchange Ratio described in the foregoing sentence, the Exchange Ratio would be greater than the Maximum Exchange Ratio, an amount that is equal to the positive difference between the Target Stock Value and the product of
(X) the Average Buyer Stock Price multiplied by (Y) the Exchange Ratio and (2) in all other cases, $0.00, except that the Make-Whole Payment may not exceed $0.400 unless otherwise agreed to by the Issuer in writing.
Under the Merger Agreement, the Issuer will elect Joseph P. Caruso, Palomars President, Chief Executive Officer and Chairman, as
Vice Chairman of the Issuers board of directors and as President of the Issuer, effective as of the Effective Time.
13D
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CUSIP No. 232577205
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Page
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The obligation of each of the Issuer and Palomar to consummate the Merger is subject to
the satisfaction or waiver of customary conditions, including (i) requisite approvals of the stockholders of the Issuer and Palomar, (ii) the expiration or termination of applicable waiting periods under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, (iii) the declaration by the Securities and Exchange Commission (the SEC) of the effectiveness of the registration statement relating to the shares of Issuer Common Stock to be issued to Company
stockholders pursuant to the Merger Agreement, (iv) the absence of any law or order prohibiting the consummation of the Merger, and (v) the absence of any material adverse effect with respect to the other party since December 31,
2012.
Pursuant to each Buyer Stockholder Agreement, the applicable Issuer Stockholder has granted to Palomar an irrevocable
proxy to vote at any annual or special meeting of the Issuers stockholders (or by written consent in lieu of a meeting) held during the term of the such Buyer Stockholder Agreement, the shares of Issuer Common Stock held by such Issuer
Stockholder in favor of the issuance of shares of Issuer Common Stock pursuant to the Merger (the Issuer Voting Proposal) and in favor of approval of an amendment to the Issuers 2005 Stock Incentive Plan to increase the number of
shares of Issuer Common Stock available for issuance under the Issuers 2005 Stock Incentive Plan by at least 2,000,000 shares (or in favor of the adoption of a new stock incentive plan with the same effect) (the Issuer Equity Plan
Proposal). Each Buyer Stockholder Agreement terminates upon the earliest to occur of (a) the Effective Time, (b) September 30, 2013 and (c) the date on which the Merger Agreement is terminated in accordance with its terms.
Immediately prior to the execution of the Buyer Stockholder Agreements, Palomar did not own any shares of Issuer Common
Stock. As a result of entering into the Buyer Stockholder Agreements and based on representations made in the Buyer Stockholder Agreements, Palomar may be deemed to have shared voting power with respect to, and therefore may be deemed to
beneficially own, an aggregate of 3,204,670 shares of the Issuer Common Stock, including 1,083,042 shares of Issuer Common Stock issuable upon exercise of stock options held by the Issuer Stockholders. As a result of entering into the Buyer
Stockholder Agreements and based on these representations and the representations of the Issuer in the Merger Agreement regarding the number of outstanding shares of Issuer Common Stock as of March 15, 2013, Palomar may be deemed to have shared
voting power with respect to, and therefore may be deemed to beneficially own, approximately 18.6% of the outstanding shares of Issuer Common Stock. Neither the filing of this Statement nor any of its contents shall be deemed to constitute an
admission that Palomar is the beneficial owner of any Issuer Common Stock for purposes of Section 13(d) or 16 of the Act or for any other purpose and such beneficial ownership is expressly disclaimed.
The foregoing descriptions of the Merger Agreement and the Buyer Stockholder Agreements do not purport to be complete and are qualified
in their entirety by the terms of such documents, which are filed as Exhibits 1 and 2, respectively, to this Statement and are incorporated herein by reference.
13D
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CUSIP No. 232577205
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Page
5
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ITEM 1.
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Security and Issuer.
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The
name of the Issuer is Cynosure, Inc. The address of the Issuers principal executive offices is 5 Carlisle Road, Westford, Massachusetts 01886. The title of the class of equity securities to which this Statement relates is the Issuers
Class A common stock, par value $0.001 per share, including options to purchase up to an aggregate of 1,083,042 shares of Issuer Common Stock.
ITEM 2.
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Identity and Background.
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This Statement is being filed by Palomar Medical Technologies, Inc. Palomar is a corporation organized under the laws of the State of
Delaware. Palomar is a researcher and developer of innovative aesthetic light-based systems for hair removal and other cosmetic procedures, including both lasers and high powered lamps. The address of the principal executive offices of Palomar is 15
Network Drive, Burlington, Massachusetts 01803.
The name, business address, present principal occupation or employment and
citizenship of each director and executive officer of Palomar are set forth on
Schedule I
hereto and are incorporated herein by reference (such persons named on
Schedule I
hereto, the Specified Persons).
During the last five years, neither Palomar nor, to the best of Palomars knowledge, any Specified Person has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction that resulted in such person being subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
ITEM 3.
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Source and Amount of Funds or Other Consideration.
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The Buyer Stockholder Agreements were entered into as an inducement to Palomar to enter into the Merger Agreement. No other consideration was paid by Palomar or any Specified Person to any Issuer
Stockholder in connection with the execution and delivery of the Buyer Stockholder Agreements.
ITEM 4.
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Purpose of Transaction.
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The Buyer Stockholder Agreements were entered into as an inducement to Palomar to enter into the Merger Agreement and were entered into to
secure the support of the Issuer Stockholders for the Issuer Voting Proposal and the Issuer Equity Plan Proposal in connection with the Merger. The descriptions of the Merger and the Buyer Stockholder Agreements set forth in the introduction to this
Statement are incorporated herein by reference. Under the Merger Agreement, the Issuer will elect Joseph P. Caruso, Palomars President, Chief Executive Officer and Chairman, as Vice Chairman of the Issuers board of directors and as
President of the Issuer, effective as of the Effective Time.
13D
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CUSIP No. 232577205
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Page
6
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ITEM 5.
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Interest in Securities of the Issuer.
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(a) and (b) Immediately prior to the execution of the Buyer Stockholder Agreements, Palomar did not own any shares of Issuer Common Stock. As a result of entering into the Buyer Stockholder
Agreements and based on representations made in the Buyer Stockholder Agreements, Palomar may be deemed to have shared voting power with respect to, and therefore may be deemed to beneficially own, an aggregate of 3,204,670 shares of the Issuer
Common Stock, including 1,083,042 shares of Issuer Common Stock issuable upon exercise of stock options held by the Issuer Stockholders. As a result of entering into the Buyer Stockholder Agreements and based on these representations and the
representations of the Issuer in the Merger Agreement regarding the number of outstanding shares of Issuer Common Stock as of March 15, 2013, Palomar may be deemed to have shared voting power with respect to, and therefore may be deemed to
beneficially own, approximately 18.6% of the outstanding shares of Issuer Common Stock.
Except as set forth above, neither
Palomar nor, to the best of Palomars knowledge, any Specified Person owns any shares of Issuer Common Stock.
Neither
the filing of this Statement nor any of its contents shall be deemed to constitute an admission that Palomar is the beneficial owner of any Issuer Common Stock for purposes of Section 13(d) or 16 of the Act or for any other purpose and such
beneficial ownership is expressly disclaimed.
(c) Except as set forth in this Item 5, neither Palomar nor, to the best
of Palomars knowledge, any Specified Person has effected any purchase or sale transaction in shares of Issuer Common Stock during the past 60 days.
(d) To the best of Palomars knowledge, no person other than each Issuer Stockholder has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of,
the shares of Issuer Common Stock referred to in this Item 5.
(e) Not applicable.
ITEM 6.
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Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
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Except as described in this Statement, to best of Palomars knowledge, there are no other contracts, arrangements, understandings or
relationships (legal or otherwise) between or among Palomar or any Specified Person and any other person with respect to any securities of the Issuer, including but not limited to, transfer or voting of any of the securities of the Issuer, joint
ventures, loan or option arrangements, puts or calls, guarantees or profits, division of profits or loss, or the giving or withholding of proxies, or a pledge or contingency the occurrence of which would give another person voting power over the
securities of the Issuer.
13D
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CUSIP No. 232577205
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Page
7
of 11 Pages
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ITEM 7.
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Material to be Filed as Exhibits.
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Exhibit
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Description
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1
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Agreement and Plan of Merger, dated as of March 17, 2013, by and among Palomar, the Issuer, and the Merger Subsidiary (incorporated herein by reference to Exhibit 2.1 to
Palomars Current Report on Form 8-K (File No. 1-11177) filed with the SEC on March 18, 2013)
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2
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Form of Buyer Stockholder Agreement (incorporated herein by reference to Exhibit 10.2 to Palomars Current Report on Form 8-K (File No. 1-11177) filed with the SEC on
March 18, 2013)
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13D
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CUSIP No. 232577205
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Page
8
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true,
complete and correct.
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Dated: March 21, 2013
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PALOMAR MEDICAL TECHNOLOGIES, INC.
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By:
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/s/ Joseph P. Caruso
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Name:
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Joseph P. Caruso
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Title:
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President, Chief Executive Officer, and Chairman of the Board of Directors
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13D
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CUSIP No. 232577205
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Page
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of 11 Pages
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EXHIBIT INDEX
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Exhibit
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Description
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1
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Agreement and Plan of Merger, dated as of March 17, 2013, by and among Palomar, the Issuer, and the Merger Subsidiary (incorporated herein by reference to Exhibit 2.1 to
Palomars Current Report on Form 8-K (File No. 1-11177) filed with the SEC on March 18, 2013)
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2
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Form of Buyer Stockholder Agreement (incorporated herein by reference to Exhibit 10.2 to Palomars Current Report on Form 8-K (File No. 1-11177) filed with the SEC on
March 18, 2013)
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13D
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CUSIP No. 232577205
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Page
10
of 11 Pages
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Schedule I
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Name
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Business Address
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Present Principal
Occupation or
Employment
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Citizenship
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Joseph Caruso
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c/o Palomar Medical Technologies, Inc
15 Network Drive
Burlington, Massachusetts 01803
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President, Chief Executive Officer and Chairman of Palomar
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United States
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Paul Weiner
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c/o Palomar Medical Technologies, Inc
15 Network Drive
Burlington, Massachusetts 01803
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Senior Vice President, Chief Financial Officer and Treasurer of Palomar
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United States
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Jeanne Cohane
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c/o Palomar Medical Technologies, Inc
15 Network Drive
Burlington, Massachusetts 01803
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Director of Palomar
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United States
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Damian N. DellAnno
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c/o Palomar Medical Technologies, Inc
15 Network Drive
Burlington, Massachusetts 01803
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Director of Palomar; Principal and Founder of Next Step Healthcare, LLC
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United States
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Nicholas P. Economou Ph.D.
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c/o Palomar Medical Technologies, Inc
15 Network Drive
Burlington, Massachusetts 01803
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Director of Palomar; President and Chief Executive Officer of PointSpectrum Corporation
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United States
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James G. Martin Ph.D.
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c/o Palomar Medical Technologies, Inc
15 Network Drive
Burlington, Massachusetts 01803
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Director of Palomar
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United States
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A. Neil Pappalardo
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c/o Palomar Medical Technologies, Inc
15 Network Drive
Burlington, Massachusetts 01803
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Director of Palomar; Chairman of Medical Information Technology, Inc.
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United States
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13D
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CUSIP No. 232577205
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Page
11
of 11 Pages
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Name
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Business Address
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Present Principal
Occupation or
Employment
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Citizenship
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Louis P. Valente
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c/o Palomar Medical Technologies, Inc
15 Network Drive
Burlington, Massachusetts 01803
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Director of Palomar
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United States
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