UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(Amendment No. 3)
TENDER OFFER STATEMENT
UNDER SECTION 14(D)(1) OR
SECTION 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
ASPECT MEDICAL
SYSTEMS, INC.
(Name Of Subject Company (Issuer))
UNITED STATES SURGICAL CORPORATION
TRANSFORMER
DELAWARE CORP.
(Names of Filing Persons (Offerors))
Common Stock, par value $0.01 per share
(Title of
Class of Securities)
045235108
(CUSIP Number of Common Stock)
John H. Masterson
United States Surgical Corporation
c/o Covidien
15 Hampshire Street
Mansfield, MA 02048
Telephone: (508) 261-8242
(Name, address and telephone number of person authorized
to receive notices and communications on behalf of filing persons)
with copies to:
Keith Higgins
Ropes & Gray LLP
One International Place
Boston, Massachusetts 02110
Telephone: (617) 951-7000
CALCULATION OF
FILING FEE
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Transaction Valuation*
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Amount Of Filing Fee**
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$209,320,104.00
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$ 11,680.06
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*
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Estimated solely for purposes of calculating amount of filing fee in accordance with Rule 0-11 under the Securities Exchange Act of 1934. The transaction value was
calculated by multiplying $12.00, which is the purchase price in the offer, by the number of outstanding shares of Common Stock (the Shares) of Aspect Medical Systems, Inc. (Aspect) as of September 30, 2009 which
consists of 17,443,342 Shares issued and outstanding.
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**
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The amount of filing fee is calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 5 for fiscal year 2009
issued by the Securities and Exchange Commission. Such fee equals .00558% of the transaction value.
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x
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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.
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Amount Previously Paid:
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$11,680.06
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Form or Registration No.:
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Schedule TO-T
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Filing Party:
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United States Surgical Corporation
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Date Filed:
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October 8, 2009
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¨
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement relates:
x
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third-party tender offer subject to Rule 14d-1.
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¨
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issuer tender offer subject to Rule 13e-4.
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¨
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going-private transaction subject to Rule 13e-3.
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¨
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final amendment reporting the results of the tender offer:
¨
This Amendment No. 3 to the Tender Offer Statement on Schedule TO (this
Amendment
), filed with the Securities and Exchange Commission on October 27, 2009, amends and supplements the Tender Offer Statement on Schedule TO filed on October 8, 2009 (the
Schedule TO
), as
amended, and relates to a tender offer by Transformer Delaware Corp., a Delaware corporation (the
Purchaser
) and a wholly owned subsidiary of United States Surgical Corporation, a Delaware corporation (
Parent
),
to purchase all of the outstanding shares of Common Stock, par value $0.01 per share (the
Shares
), of Aspect Medical Systems, Inc., a Delaware corporation (the
Company
), at a purchase price of $12.00 per
Share, net to the seller in cash, without interest thereon, less any applicable withholding taxes, and subject to the conditions set forth in the Offer to Purchase for Cash dated October 8, 2009 (the
Offer to Purchase
) and in
the related Letter of Transmittal (the
Letter of Transmittal
which, together with the Offer to Purchase, as each may be amended and supplemented from time to time, constitute the
Offer
). This Amendment is being
filed on behalf of the Purchaser and Parent.
The information set forth in the Offer to Purchase and the Letter of
Transmittal, copies of which are filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively, is incorporated by reference in answers to Items 1 through 9 and Item 11 of the Schedule TO, and is supplemented by the
information specifically provided herein.
ITEM 11.
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ADDITIONAL INFORMATION
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Item 11 of the Schedule TO is hereby amended and supplemented by replacing the first paragraph added to that Item in Amendment No. 1 with the following text:
On October 13, 2009, a putative class action complaint, Roland A. Cherwek v. Aspect Medical Systems, Inc., et al., Civil Action
No. 09-4289, was filed in the Court of Chancery of the State of Delaware (the Delaware Action). The Delaware Action purports to be brought on behalf of all public stockholders of Aspect, and names Aspect, its directors, Parent,
Purchaser and Covidien plc as defendants. The complaint alleges, among other things, that the Aspect directors named in the action violated their fiduciary duties by, among other things, failing to properly value the net worth of Aspect, failing to
maximize stockholder value, failing to engage in a fair sale process and causing materially misleading and incomplete information to be disseminated to Aspect Stockholders. The complaint also alleges that Aspect, Parent, Purchaser and Covidien plc
aided and abetted the alleged breaches of fiduciary duties by Aspects directors. The complaint seeks, among other relief, an injunction preventing completion of the Merger or, if the Merger is consummated, rescission of the Merger.
While the defendants believe that the Delaware Action is entirely without merit and that they have valid defenses to all claims, in an
effort to minimize the cost and expense of any litigation, on October 26, 2009, the defendants entered into a memorandum of understanding (MOU) with the parties to the Delaware Action providing for the settlement of the Delaware
Action. Subject to court approval and further definitive documentation, the MOU resolves the allegations by the plaintiffs against the defendants in connection with the Merger Agreement and the transactions contemplated by the Merger Agreement,
including without limitation the Offer and the Merger, and provides a release and settlement by the putative class of Aspects stockholders of all claims against the defendants and their affiliates and agents in connection with the Merger
Agreement and the transactions contemplated by the Merger Agreement, including without limitation the Offer and the Merger. In exchange for such release and settlement, pursuant to the terms of the MOU, the parties agreed, after arms length
discussions between and among the parties, that Aspect would provide additional supplemental disclosures to its Schedule 14D-9 previously filed with the SEC. The settlement, including the payment by Aspect or any successor thereto of any
attorneys fees, is also contingent upon, among other things, the Merger becoming effective under Delaware law. In the event that the settlement is not approved and such conditions are not satisfied, the defendants will continue to vigorously
defend the Delaware Action.
Covidien plc, Parent and Purchaser have denied, and continue to deny, that any of them has
committed or aided and abetted in the commission of any violation of law of any kind or engaged in any of the wrongful acts alleged in the Delaware Action. Covidien plc, Parent and Purchaser each expressly maintains that it has diligently and
scrupulously complied with its legal duties, and has executed the MOU solely to eliminate the burden and expense of further litigation.
SIGNATURES
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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United States Surgical Corporation
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Dated: October 27, 2009
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By:
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/s/ M
ATTHEW
J.
N
ICOLELLA
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Name:
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Matthew J. Nicolella
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Title:
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Vice President and Assistant Secretary
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Transformer Delaware Corp.
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Dated: October 27, 2009
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By:
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/s/ M
ATTHEW
J.
N
ICOLELLA
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Name:
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Matthew J. Nicolella
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Title:
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Vice President and Assistant Secretary
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EXHIBIT INDEX
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(a)(1)(A)
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Offer to Purchase for Cash, dated October 8, 2009.*
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(a)(1)(B)
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Form of Letter of Transmittal.*
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(a)(1)(C)
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Form of Notice of Guaranteed Delivery.*
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(a)(1)(D)
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Form of Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees.*
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(a)(1)(E)
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Form of Letter to Clients for Use by Brokers, Dealers, Banks, Trust Companies and Other Nominees.*
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(a)(2)
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None.
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(a)(3)
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None.
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(a)(4)
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None.
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(a)(5)(A)
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Joint Press Release issued by Covidien plc and Aspect Medical Systems, Inc., dated September 28, 2009 (incorporated herein by reference to the Tender Offer Statement on Schedule
TO-C filed by United States Surgical Corporation on September 28, 2009).*
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(a)(5)(B)
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Summary Advertisement published in the Wall Street Journal on October 8, 2009.*
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(b)
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None.
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(d)(1)
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Agreement and Plan of Merger, dated as of September 27, 2009, by and among United States Surgical Corporation, Transformer Delaware Corp., and Aspect Medical Systems,
Inc.*
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(d)(2)
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Form of Tender and Voting Agreement, dated as of September 27, 2009, by and among United States Surgical Corporation, Transformer Delaware Corp. and certain shareholders of
Aspect Medical Systems, Inc.*
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(d)(3)
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Confidentiality Agreement, dated as of August 3, 2009, by and between Tyco Healthcare Group LP d/b/a Covidien and Aspect Medical Systems, Inc.*
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(d)(4)
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Guaranty, dated as of September 27, 2009, by Covidien International Finance S.A.*
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(d)(5)
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Agreement, dated as of September 27, 2009 among United States Surgical Corporation and First Health, L.P., First Health Limited, First Health Associates, L.P., First BioMed, L.P.
and First BioMed Portfolio, L.P., as stockholders of Aspect Medical Systems, Inc.*
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(g)
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None.
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(h)
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None.
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