- Amended tender offer statement by Third Party (SC TO-T/A)
October 29 2010 - 4:15PM
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. 1)
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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*
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: $18,038 Filing
Party: St. Jude Medical, Inc.
Form or
Registration No.: Form S-4
Date Filed: October 20, 2010
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. 1 (Amendment No. 1) amends and supplements the Tender Offer
Statement on Schedule TO, filed with the U.S. Securities and Exchange
Commission (SEC) on October 20, 2010 (which, together with any amendments and
supplements thereto, collectively constitute the Schedule TO) 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, 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 (as defined
below) referenced below and the related Letter of Election and Transmittal (as
defined below) referenced below.
St.
Jude Medical has filed with the SEC a registration statement on Form S-4,
as amended (the Registration Statement), relating to the shares of St. Jude
Medical Common Stock to be issued to stockholders of AGA in the Offer and the
subsequent merger (the Merger) of Offeror into AGA. 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, as amended (the 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.
This
Amendment No. 1 is being filed to amend and supplement Items 11 and 12 as
reflected below.
ITEM 11.
ADDITIONAL
INFORMATION.
Regulation
M-A Item 1011
(a)
Agreements, Regulatory Requirements and Legal Proceedings.
Item 11(a) of the Schedule TO is hereby amended by striking the words Not
applicable. after sub-section (a)(5) and inserting the following
paragraphs in lieu thereof:
On
October 27, 2010, AGA was served with a putative stockholder class action
complaint venued in the Fourth Judicial District Court of Minnesota. The
complaint, captioned Michael Rubin v. AGA Medical Holdings, Inc., et al.,
names as defendants the members of the AGA board of directors, as well as AGA,
St. Jude Medical, Offeror, Welsh, Carson, Anderson & Stowe IX, L.P.,
WCAS Capital Partners IV, L.P., Gougeon Shares, LLC and The Franck L. Gougeon
Revocable Trust. The plaintiff alleges that AGAs directors breached their
fiduciary duties to AGAs stockholders. The complaint also alleges that AGAs
purported controlling stockholders owed fiduciary duties to AGAs minority
stockholders in connection with the transaction and breached such duties. The
plaintiff further claims that St. Jude Medical and its subsidiaries aided and
abetted the purported breaches of fiduciary duty. The complaint alleges, inter
alia, that in approving the proposed transaction between AGA and St. Jude
Medical, AGA board members accepted an inadequate price, failed to make full
disclosure, and utilized unreasonable deal protection devices and that the AGA
board members acted to put their personal interests ahead of the interests of
AGA stockholders. The complaint seeks injunctive relief, including to enjoin
the transaction, in addition to unspecified compensatory damages, attorneys
fees, other fees and costs and other relief. AGA believes the plaintiffs
allegations lack merit. The foregoing description is qualified in its entirety
by reference to the complaint, which is filed as Exhibit (a)(5)(D) hereto
and is incorporated herein by reference.
On
October 28, 2010, a putative stockholder class action complaint was filed
in the Delaware Court of Chancery. The complaint, captioned Jennifer Walling v.
AGA Medical Holdings, Inc., et al., names as defendants the members of
AGAs board of directors, as well as AGA, AGA, St. Jude Medical and Offeror.
The plaintiff alleges that AGAs directors breached their fiduciary duties to
AGAs stockholders and further alleges that AGA and St. Jude Medical aided and
abetted the purported breaches of fiduciary duty. The complaint alleges, inter
alia, that in approving the proposed transaction between AGA and St. Jude
Medical, AGA board members accepted an inadequate price, failed to make full
disclosure, and utilized unreasonable deal protection devices and that the AGA
board members acted to put their personal interests ahead of the interests of
AGA stockholders. The complaint seeks injunctive relief, including to enjoin
the transaction, in addition to unspecified compensatory damages, attorneys
fees, other fees and costs and other relief. AGA believes the plaintiffs
allegations lack merit. The foregoing description is qualified in its entirety
by reference to the complaint, which is filed as Exhibit (a)(5)(E) hereto
and is incorporated herein by reference.
ITEM 12.
EXHIBITS.
Item 12 of the Schedule TO is hereby amended and
supplemented to include the following exhibits:
Exhibit No.
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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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2
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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October 29,
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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October 29,
2010
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3
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 October 20, 2010 (incorporated by reference to St.
Jude Medical, Inc.s Registration Statement on Form S-4 filed on
October 20, 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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(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.
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