- Amended tender offer statement by Issuer (SC TO-I/A)
05 März 2010 - 9:25PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
Amendment No. 2
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) or 13(e)(1) OF
THE SECURITIES EXCHANGE ACT OF 1934
MDS INC.
(Name of Subject Corporation (issuer))
MDS Inc. (Issuer)
(Name of Filing Persons (identify status as offeror, issuer or other person))
Common Shares, No Par Value
(Title of Class of Securities)
55269P302
(CUSIP Number of Class of Securities)
MDS Inc.
Attention: Chief Financial Officer
2810 Matheson Boulevard East
Suite 500, West Tower
Mississauga, Ontario, Canada, L4W 4X7
(905) 267-4222
(Name, address and telephone number of person authorized to
receive notices and communications on behalf of filing person)
Copy to:
Christopher W. Morgan, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
222 Bay Street, Suite 1750
Toronto, Ontario M5K 1J5
(416) 777-4700
CALCULATION OF FILING FEE
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Transaction Valuation
(1)
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Amount of Filing Fee
(2)
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$450,000,000
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$32,085
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(1)
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Calculated solely for purposes of
determining the amount of the filing fee.
This amount is based upon the offer to
purchase for not more than $450,000,000 an
aggregate of up to 55,555,555 common
shares of MDS Inc. at a purchase price of
not more than $9.30 and not less than
$8.10 per share in cash.
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(2)
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The amount of the filing fee, calculated
in accordance with Rule 0-11 under the
Securities Exchange Act of 1934, as
amended, equals $71.30 per $1,000,000 of
the value of the transaction.
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þ
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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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$32,085
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Form or Registration No.:
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Schedule TO
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Filing Party:
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MDS Inc.
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Date Filed:
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February 19, 2010
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o
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Check the box if 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:
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o
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third-party tender offer subject to Rule 14d-1.
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þ
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issuer tender offer subject to Rule 13e-4.
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o
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going-private transaction subject to Rule 13e-3.
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o
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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:
o
This Amendment No. 2 amends and supplements the Tender Offer Statement on Schedule TO initially
filed on February 19, 2010 (the Schedule TO) in connection with the offer by MDS Inc., a Canadian
corporation (MDS or the Corporation), to the holders of its common shares, without par value
(the Shares), to purchase up to an aggregate amount of US$450,000,000 of Shares at a price of not
more than US$9.30 per Share and not less than US$8.10 per Share in cash, without interest, upon the
terms and subject to the conditions set forth in the Offer to Purchase, dated February 19, 2010
(the Offer to Purchase), the accompanying Issuer Bid Circular (the Circular), and the related
Letter of Transmittal, Employee Share Ownership Plan Special Transaction Form, Deferred Profit
Sharing Plan Special Transaction Form and Group Retirement Savings Plan Special Transaction Form
which, collectively, as amended or supplemented from time to time, constitute the Tender Offer.
This Amendment No. 2 to the Tender Offer Statement on Schedule TO is intended to satisfy the
reporting requirements of Rule 13e-4(c)(2) promulgated under the Securities Exchange Act of 1934,
as amended (the Exchange Act).
All information in the Offer to Purchase and the Circular, which was previously filed as Exhibit
(a)(1)(A) to the Schedule TO, is incorporated herein by reference in response to all the items of
this Schedule TO, except that such information is hereby amended and supplemented to the extent
specifically provided herein.
Items 1 through 11.
1.
The section Conditions of the Offer of the Offer to Purchase is hereby amended and
supplemented as follows:
The following paragraph is inserted immediately above the penultimate paragraph of this
section:
For the purposes of the condition set out in (f) above, the term fair market value means
the price that would be agreed to in an open and unrestricted market by a purchaser and seller,
each acting at arms length and not under compulsion. The fair market value may not be equivalent
to the trading price of the Shares from time to time on either the TSX or the NYSE.
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Exhibit No.
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Description
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(a)(1)(A)*
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Offer to Purchase, dated February 19, 2010 and the accompanying Issuer Bid Circular.
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(a)(1)(B)*
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Letter of Transmittal.
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(a)(1)(C)*
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Notice of Guaranteed Delivery.
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(a)(1)(D)*
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Employee Share Ownership Plan Special Transaction Form.
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(a)(1)(E)*
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Deferred Profit Sharing Plan Special Transaction Form.
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(a)(1)(F)*
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Group Retirement Savings Plan Special Transaction Form.
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(a)(2)
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None.
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(a)(3)
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Not applicable.
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(a)(4)
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Not applicable.
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(a)(5)(A)*
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Press release announcing commencement of Tender Offer, dated February 19, 2010.
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(a)(5)(B) **
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MDS Inc. Substantial Issuer Bid Employee Q&A.
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(b)
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None.
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2
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(d)(1)
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MDS Inc. Stock Option Plan (incorporated by reference from the Corporations Report
on Form 6-K, furnished to the Securities and Exchange Commission on March 14,
2007).
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(d)(2)*
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MDS Inc. Amended and Restated Employee Share Ownership Plan.
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(d)(3)*
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MDS Inc. Amended and Restated Stock Dividend and Share Purchase Plan.
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(d)(4)*
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MDS Inc. Deferred Profit Sharing Plan.
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(d)(5)*
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MDS Inc. Group Registered Retirement Savings Plan.
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(g)
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None.
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(h)
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None.
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*
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Previously filed with the Corporations Schedule TO on February 19, 2010.
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**
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Previously filed with the Corporations Schedule TO/A on February 24, 2010.
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Item 13.
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Information Required by Schedule 13E-3.
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Not applicable.
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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/s/ Mark Witkowski
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Name:
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Mark Witkowski
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Title:
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Vice-President, Tax and Treasury
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Date:
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March 5, 2010
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4
EXHIBIT INDEX
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Exhibit No.
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Description
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(a)(1)(A)*
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Offer to Purchase, dated February 19, 2010 and the accompanying Issuer Bid Circular.
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(a)(1)(B)*
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Letter of Transmittal.
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(a)(1)(C)*
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Notice of Guaranteed Delivery.
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(a)(1)(D)*
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Employee Share Ownership Plan Special Transaction Form.
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(a)(1)(E)*
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Deferred Profit Sharing Plan Special Transaction Form.
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(a)(1)(F)*
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Group Retirement Savings Plan Special Transaction Form.
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(a)(2)
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None.
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(a)(3)
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Not applicable.
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(a)(4)
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Not applicable.
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(a)(5)(A)*
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Press release announcing commencement of Tender Offer, dated February 19, 2010.
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(a)(5)(B) **
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MDS Inc. Substantial Issuer Bid Employee Q&A.
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(b)
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None.
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(d)(1)
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MDS Inc. Stock Option Plan (incorporated by reference from the Corporations Report
on Form 6-K, furnished to the Securities and Exchange Commission on March 14,
2007).
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(d)(2)*
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MDS Inc. Amended and Restated Employee Share Ownership Plan.
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(d)(3)*
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MDS Inc. Amended and Restated Stock Dividend and Share Purchase Plan.
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(d)(4)*
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MDS Inc. Deferred Profit Sharing Plan.
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(d)(5)*
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MDS Inc. Group Registered Retirement Savings Plan.
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(g)
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None.
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(h)
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None.
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*
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Previously filed with the Corporations Schedule TO on February 19, 2010.
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**
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Previously filed with the Corporations Schedule TO/A on February 24, 2010.
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