- Amended tender offer statement by Third Party (SC TO-T/A)
November 18 2010 - 10:08AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender
Offer Statement under Section 14(d)(1) or 13(e)(1) of the
Securities Exchange Act of 1934
(Amendment No. 6)
AGA Medical Holdings, Inc.
(Name of Subject Company (Issuer))
Asteroid Subsidiary Corporation
an indirect wholly-owned subsidiary of
St. Jude Medical, Inc.
(Names of Filing Persons (Offerors))
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
008368102
(CUSIP Number of Class of Securities)
Pamela S. Krop
Vice President, General Counsel and Secretary
St. Jude Medical, Inc.
One St. Jude Medical Drive
St. Paul, Minnesota 55117
(651) 765-2000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
Joseph M. Barbeau
Stewart L. McDowell
Gibson, Dunn & Crutcher LLP
1881 Page Mill Road
Palo Alto, California 94303-1125
(650) 849-5333
Calculation of Filing Fee
Transaction Valuation*
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Amount of Filing Fee**
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$
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793,974,436.22
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$
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56,610.38
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***
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*
Estimated for
purposes of calculating the amount of the filing fee only, in accordance with
Rule 0-11(a)(4) and 0-11(d) under the Securities Exchange Act of
1934, as amended (the Exchange Act). The market value of the securities to be
received was calculated as the product of (i) 53,755,886 shares of AGA
Medical Holdings, Inc. (AGA) common stock (the number of issued and
outstanding shares of AGA common stock as of October 13, 2010, plus the
aggregate number of AGA shares issuable upon exercise of all outstanding
options and restricted stock units, as of such date) and (ii) $14.77, the
average of the high and low sales prices per share of AGA common stock as
reported on the NASDAQ Global Select Market on October 15, 2010.
**
The amount of
the filing fee was calculated in accordance with Rule 0-11(d) of the
Exchange Act by multiplying the transaction valuation by 0.00007130.
***
Previously
paid.
x
Check the box
if any part of the fee is offset as provided by Rule 0-11(a)(2) and
identify the filing with which the offsetting fee was previously paid. Identify
the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
Amount
Previously Paid:
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$18,038
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Filing
Party:
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St.
Jude Medical, Inc.
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Form or
Registration No.:
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Form S-4
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Date
Filed:
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October 20,
2010
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o
Check the box
if the filing relates solely to preliminary communications made before the
commencement of a tender offer.
Check
the appropriate boxes below to designate any transactions to which the
statement relates:
x
third-party
tender offer subject to Rule 14d-1.
o
issuer tender
offer subject to Rule 13e-4.
o
going-private
transaction subject to Rule 13e-3.
o
amendment to
Schedule 13D under Rule 13d-2.
Check
the following box if the filing is a final amendment reporting the results of
the tender offer:
o
If
applicable, check the appropriate box(es) below to designate the appropriate
rule provision(s) relied upon:
o
Rule 13e4(i) (Cross-Border
Issuer Tender Offer)
o
Rule 14d1(d) (Cross-Border
Third-Party Tender Offer)
This
Amendment No. 6 amends and supplements the Tender Offer Statement on
Schedule TO (as amended, the Schedule TO), originally filed with the
Securities and Exchange Commission (SEC) on October 20, 2010 and amended
on October 29, 2010, November 8, 2010, November 10, 2010, November
15, 2010 and November 16, 2010 by St. Jude Medical, Inc., a Minnesota
corporation (St. Jude Medical), and Asteroid Subsidiary Corporation, a
Delaware corporation and an indirect wholly-owned subsidiary of St. Jude Medical
(Offeror), relating to the commencement of an offer (the Offer) by St. Jude
Medical, through Offeror, to exchange outstanding shares of common stock, par
value $0.01 per share (the AGA Shares), of AGA Medical Holdings, Inc., a
Delaware corporation (AGA), at the election of the holder thereof, for:
(a) $20.80 in cash, without interest, or (b) $20.80 in fair market
value of shares of common stock, $.10 par value per share, of St. Jude Medical
(St. Jude Medical Common Stock), subject in each case, to adjustment and
proration as described in the Prospectus/Offer to Exchange referenced below and
the related Letter of Election and Transmittal referenced below.
The
Offer was made pursuant to an Agreement and Plan of Merger and Reorganization,
dated as of October 15, 2010, by and among St. Jude Medical, Asteroid and
AGA (the Merger Agreement), which contemplates the Offer and the merger of
Offeror into AGA (the Merger). St. Jude Medical has filed a registration
statement with the SEC on Form S-4, dated October 20, 2010 and
amended on November 8, 2010 and November 15, 2010 (file no.
333-170045), relating to the shares of St. Jude Medical Common Stock to be
issued to stockholders of AGA in the Offer and the Merger (the Registration
Statement). The terms and conditions of the Offer and the Merger (as may from
time to time be amended, supplemented or finalized) are described in the
Prospectus/Offer to Exchange which is a part of the Registration Statement (the
Prospectus/Offer to Exchange), and the related Letter of Election and
Transmittal, which are filed as Exhibits (a)(4) and (a)(1)(A) to the
Schedule TO, respectively.
All
of the information in the Prospectus/Offer to Exchange and the related Letter
of Election and Transmittal, and any Prospectus/Offer to Exchange supplement or
other amendment thereto related to the Offer hereafter filed with the SEC by
St. Jude Medical and Offeror, is hereby incorporated by reference in answer to
Items 1 through 11 of this Schedule TO. The Merger Agreement, a copy of which
is attached as Exhibit (d)(1) to the Schedule TO, is incorporated in
this Schedule TO by reference.
ITEM 1.
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SUMMARY TERM SHEET.
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Item
1 of this Schedule TO is hereby amended and supplemented by adding the text set
forth below in Item 4.
ITEM 4.
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TERMS OF THE TRANSACTION.
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Item 4
of this Schedule TO is hereby amended and supplemented by adding the following
text thereto:
St.
Jude Medical today announced that Offeror has successfully completed its
previously announced exchange offer for all of the outstanding shares of common
stock of AGA at 12:00 midnight New York City time (one minute after 11:59 p.m.)
on the evening of November 17, 2010, the initial expiration date of the
exchange offer, as described in the Registration Statement on Form S-4.
Based
on a preliminary count by the exchange agent for the exchange offer, a total of
45,804,031 AGA Shares, representing approximately 91.1 percent of AGAs
outstanding common stock, were validly tendered and not withdrawn in the
exchange offer. In addition, 3,384,670 shares, representing approximately
6.7 percent of AGAs outstanding common stock, were tendered pursuant to
notices of guaranteed delivery. As of November 17, 2010, AGA had
50,279,409 shares of common stock outstanding. All shares that were
validly tendered and not withdrawn have been accepted for payment in accordance
with the terms of the exchange offer and applicable law.
Of
the shares tendered and not subject to a notice of guaranteed delivery, cash
elections were made with respect to 28,988,298 shares and stock elections were
made with respect to 16,815,733 shares. In addition, of the shares tendered
pursuant to a notice of guaranteed delivery, cash elections were made with
respect to 2,039,649 shares and stock elections were made with respect to
1,345,021 shares. The notice of guaranteed delivery period will end at
5:00 p.m., New York City Time on November 22, 2010.
Accordingly, St. Jude Medical expects to announce the final proration
calculations no later than 9:00 a.m. New York City time on November 23,
2010.
St.
Jude Medical expects that Offeror will merge with and into AGA on November 18,
2010 pursuant to a short-form merger completed using the procedures available
under Delaware law.
Upon
completion of the merger, 50 percent of the AGA Shares converted in the Merger
will receive $20.80 in cash, without interest, and 50 percent of the AGA Shares
converted in the Merger shall receive 0.540 of a share of St. Jude Medical Common
Stock, subject to adjustment as and to the extent described in the Merger
Agreement in order for the exchange offer, taken together with this Merger and
the second merger described below, to qualify as a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code.
After
completion of the Merger described above and pursuant to the Merger Agreement,
St. Jude Medical will cause AGA to be merged with and into a wholly-owned
subsidiary of St. Jude Medical, provided that each of St. Jude Medical
and AGA receives an opinion of counsel to the effect that the exchange offer,
taken together with the Merger described above and this second merger, will
qualify as a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code.
2
ITEM
11.
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ADDITIONAL
INFORMATION.
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Item
11(b) is hereby amended and supplemented by adding the text set forth in Item
4.
Item
12 of the Schedule TO is hereby amended and supplemented by adding the
following text thereto:
(a)(5)(I)
Press release
issued on November 18, 2010 (incorporated by reference to St. Jude
Medical, Inc.s 425 filing on November 18, 2010).
3
SIGNATURE
After
due 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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ST. JUDE MEDICAL, INC.
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By:
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/s/
Pamela S. Krop
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Name:
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Pamela
S. Krop
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Title:
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Vice
President, General Counsel and Secretary
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Date:
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November 18,
2010
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ASTEROID SUBSIDIARY CORPORATION
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By:
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/s/
Pamela S. Krop
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Name:
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Pamela
S. Krop
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Title:
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Vice
President and Secretary
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Date:
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November 18,
2010
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4
EXHIBIT INDEX
Exhibit No.
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(a)(1)(A)
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Form of
Letter of Election and Transmittal (incorporated by reference to
Exhibit 99.1 to St. Jude Medical, Incs. Registration Statement on
Form S-4 filed on October 20, 2010).*
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(a)(1)(B)
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Form of
Notice of Guaranteed Delivery (incorporated by reference to Exhibit 99.3
to St. Jude Medical, Inc.s Registration Statement on Form S-4
filed on October 20, 2010).*
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(a)(1)(C)
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Form of
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees
(incorporated by reference to Exhibit 99.4 to St. Jude
Medical, Inc.s Registration Statement on Form S-4 filed on
October 20, 2010).*
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(a)(1)(D)
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Form of
Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees (incorporated by reference to Exhibit 99.5
to St. Jude Medical, Inc.s Registration Statement on Form S-4
filed on October 20, 2010).*
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(a)(4)
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Prospectus/Offer
to Exchange, dated November 15, 2010 (incorporated by reference to
Amendment No. 2 to St. Jude Medical, Inc.s Registration Statement
on Form S-4 filed on November 15, 2010).*
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(a)(5)(A)
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Joint
Press Release issued by St. Jude Medical, Inc. and AGA Medical
Holdings, Inc., dated October 18, 2010, announcing the execution of
the Agreement and Plan of Merger and Reorganization, dated as of
October 15, 2010, among St. Jude Medical, Inc., Asteroid Subsidiary
Corporation and AGA Medical Holdings, Inc. (incorporated by reference to
Exhibit 99.1 to St. Jude Medical, Inc.s Current Report on Form 8-K
filed on October 18, 2010).*
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(a)(5)(B)
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Letter
delivered to employees of AGA Medical Holdings, Inc. (incorporated by
reference to AGA Medical Holdings, Inc. Schedule 14D-9 filing on
October 18, 2010).*
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(a)(5)(C)
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Joint
Press Release issued by St. Jude Medical, Inc. and AGA Medical
Holdings, Inc., dated October 20, 2010, announcing the commencement
of the Offer (incorporated by reference to St. Jude Medical, Inc.s
Rule 425 filing on October 20, 2010).*
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(a)(5)(D)
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Class Action
Complaint commenced October 27, 2010 (Rubin v. AGA Medical
Holdings, Inc. et al.).*
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(a)(5)(E)
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Class Action
Complaint commenced October 27, 2010 (Walling v. AGA Medical
Holdings, Inc. et al.).*
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(a)(5)(F)
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Memorandum
of Understanding relating to complaint filed on October 28, 2010 in the
Delaware Court of Chancery (Walling v. AGA Medical Holdings, Inc., et.
al.).*
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(a)(5)(G)
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Press
release issued on November 10, 2010 (incorporated by reference to St. Jude Medical,
Inc.s 425 filing on November 10, 2010).*
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(a)(5)(H)
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Press
release issued on November 16, 2010 (incorporated by reference to St.
Jude Medical, Inc.s 425 filing on November 16, 2010).*
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(a)(5)(I)
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Press
release issued on November 18, 2010 (incorporated by reference to St. Jude
Medical, Inc.s 425 filing on November 18, 2010).
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(d)(1)
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Agreement
and Plan of Merger and Reorganization, dated as of October 15, 2010,
among St. Jude Medical, Inc., Asteroid Subsidiary Corporation and AGA
Medical Holdings, Inc. (incorporated by reference to Exhibit 2.1 to
St. Jude Medical, Inc.s Registration Statement on Form S-4 filed
on October 20, 2010).*
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(d)(2)
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Tender
and Voting Agreement, dated as of October 15, 2010, among St. Jude
Medical, Inc., Welsh, Carson, Anderson & Stowe IX, L.P., WCAS
Capital Partners IV, L.P., Gougeon Shares, LLC and The Frank L. Gougeon
Revocable Trust (incorporated by reference to Exhibit 99.1 to AGA
Medical Holdings, Inc.s Current Report on Form 8-K filed on
October 18, 2010).*
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(h)
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Opinion
of Gibson, Dunn & Crutcher LLP regarding tax matters (incorporated
by reference to Exhibit 8.1 to St. Jude Medical, Inc.s
Registration Statement on Form S-4 filed on October 20, 2010).*
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*
Previously filed.
5
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