UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT
UNDER
SECTION 14(D)(1) OR SECTION 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
ev3 INC.
(Name Of Subject Company (Issuer))
COVIDIEN GROUP S.A.R.L.
COV DELAWARE CORPORATION
(Names of Filing Persons (Offerors))
Common Stock, par value $0.01 per share
(Title of Class of Securities)
26928A200
(CUSIP Number of Common Stock)
Michelangelo Stefani
Covidien Group S.a.r.l.
3b Bld Prince Henri
L-1724, Luxembourg
Telephone: +352 266 379 31
(Name, address and telephone number of person authorized
to receive notices and communications on behalf of filing persons)
with copies to:
Paul Kinsella
Ropes & Gray LLP
One International Place
Boston, Massachusetts 02110
Telephone: (617) 951-7000
CALCULATION OF FILING FEE
Transaction Valuation* | Amount Of Filing Fee** | |
$2,767,357,665 | $197,313 |
| * | 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 $22.50, which is the purchase price in the Offer, by the number of outstanding shares of Common Stock (the “Shares”) of ev3 Inc. (“ev3”) as of June 7, 2010 which consists of 114,792,961 Shares issued and outstanding (including 1,896,889 restricted Shares subject to vesting), 7,984,262 in-the-money options to purchase Shares and 216,451 Shares underlying restricted stock units. |
| ** | 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. 4 for fiscal year 2010 issued by the Securities and Exchange Commission. Such fee equals .00713% of the transaction value. |
| ¨ | 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: | N/A | |
Form or Registration No.: | N/A | |
Filing Party: | N/A | |
Date Filed: | N/A |
| ¨ | 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. |
| ¨ | issuer tender offer subject to Rule 13e-4. |
| ¨ | going-private transaction subject to Rule 13e-3. |
| ¨ | 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: ¨
This Tender Offer Statement on Schedule TO (this “Schedule TO”) relates to a tender offer by COV Delaware Corporation, a Delaware corporation (the “Offeror”) and a wholly owned subsidiary of Covidien Group S.a.r.l., a Luxembourg corporation (“Parent”), to purchase all of the outstanding shares of Common Stock, par value $0.01 per share (the “Shares”), of ev3 Inc., a Delaware corporation (the “Company”), at a purchase price of $22.50 per Share, paid 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 dated June 11, 2010 (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 Schedule TO is being filed on behalf of the Offeror and Parent.
The information set forth in the Offer to Purchase and the Letter of Transmittal, copies of which are filed with this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B) hereto, respectively, is incorporated by reference in answers to Items 1 through 9 and Item 11 of this Schedule TO, and is supplemented by the information specifically provided in this Schedule TO.
| ITEM 1. | SUMMARY TERM SHEET |
The information set forth in the “Summary Term Sheet” of the Offer to Purchase is incorporated herein by reference.
| ITEM 2. | SUBJECT COMPANY INFORMATION |
(a) ev3 Inc. 3033 Campus Drive, Plymouth, Minnesota 55441, (763) 398-7000.
(b) According to the Company, as of June 7, 2010, there were 114,792,961 Shares issued and outstanding, including 1,896,889 restricted Shares, 8,068,577 Shares issuable upon the exercise of outstanding options and 216,451 Shares underlying restricted stock units.
(c) The Shares are traded on The NASDAQ Global Select Market under the symbol “EVVV.” The information set forth in Section 6 “Price Range of the Shares; Dividends on the Shares” of the Offer to Purchase is incorporated herein by reference.
| ITEM 3. | IDENTITY AND BACKGROUND OF FILING PERSON |
(a), (b), (c) The information set forth in Section 9 “Certain Information Concerning Covidien Group and Purchaser” of the Offer to Purchase and Annex I “Directors and Executive Officers of Covidien Group, Purchaser and Covidien plc” of the Offer to Purchase is incorporated herein by reference.
| ITEM 4. | TERMS OF THE TRANSACTION |
The information set forth in the “Summary Term Sheet,” Section 1 “Terms of the Offer,” Section 2 “Procedures for Tendering Shares,” Section 3 “Withdrawal Rights,” Section 4 “Acceptance for Payment and Payment,” Section 5 “Material U.S. Federal Income Tax Consequences of the Offer and the Merger,” Section 7 “Possible Effects of the Offer on the Market for the Shares; Share Quotation; Exchange Act Registration; Margin Regulations,” Section 12 “Purpose of the Offer; the Merger Agreement; Plans for ev3” and Section 14 “Certain Conditions of the Offer” of the Offer to Purchase is incorporated herein by reference.
| ITEM 5. | PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS |
(a), (b) The information set forth in the “Introduction,” Section 9 “Certain Information Concerning Covidien Group and Purchaser,” Section 11 “Contacts and Transactions with ev3; Background of the Offer,” Section 12 “Purpose of the Offer; the Merger Agreement; Plans for ev3,” Section 13 “Dividends and Distributions” and Section 14 “Certain Conditions of the Offer” of the Offer to Purchase is incorporated herein by reference.
| ITEM 6. | PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS |
(a), (c)(1)-(7) The information set forth in the “Introduction,” Section 7 “Possible Effects of the Offer on the Market for the Shares; Share Quotation; Exchange Act Registration; Margin Regulations,” Section 12 “Purpose of the Offer; the Merger Agreement; Plans for ev3” and Section 13 “Dividends and Distributions” of the Offer to Purchase is incorporated herein by reference.
| ITEM 7. | SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION |
(a), (b), (d) The information set forth in Section 10 “Source and Amount of Funds” of the Offer to Purchase is incorporated herein by reference.
| ITEM 8. | INTEREST IN SECURITIES OF THE SUBJECT COMPANY |
The information set forth in Section 9 “Certain Information Concerning Covidien Group and Purchaser” of the Offer to Purchase is incorporated herein by reference.
| ITEM 9. | PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED |
The information set forth in Section 16 “Fees and Expenses” of the Offer to Purchase is incorporated herein by reference.
| ITEM 10. | FINANCIAL STATEMENTS |
Not applicable.
| ITEM 11. | ADDITIONAL INFORMATION |
(a)(1) Except as disclosed in Items 1 through 10 above, there are no present or proposed material agreements, arrangements, understandings or relationships between (i) the Parent, the Offeror, or any of their respective executive officers, directors, controlling persons or subsidiaries and (ii) the Company or any of its executive officers, directors, controlling persons or subsidiaries.
(a)(2)-(5) The information set forth in Section 7 “Possible Effects of the Offer on the Market for the Shares; Share Quotation; Exchange Act Registration; Margin Regulations,” and Section 15 “Certain Legal Matters” of the Offer to Purchase is incorporated herein by reference.
(b) The information set forth in the Offer to Purchase and the Letter of Transmittal, copies of which are attached hereto as Exhibits (a)(1)(A) and (a)(1)(B), respectively, to the extent not otherwise incorporated herein by reference, is incorporated herein by reference.
| ITEM 12. | EXHIBITS |
(a)(1)(A) | Offer to Purchase for Cash, dated June 11, 2010. | |
(a)(1)(B) | Form of Letter of Transmittal. | |
(a)(1)(C) | Form of Notice of Guaranteed Delivery. | |
(a)(1)(D) | Form of Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees. | |
(a)(1)(E) | Form of Letter to Clients for Use by Brokers, Dealers, Banks, Trust Companies and Other Nominees. | |
(a)(2) | None. | |
(a)(3) | None. | |
(a)(4) | None. | |
(a)(5)(A) | Joint Press Release issued by Covidien plc and ev3 Inc., dated June 1, 2010 (incorporated herein by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Covidien plc on June 1, 2010). | |
(a)(5)(B) | Summary Advertisement published in The Wall Street Journal on June 11, 2010. | |
(a)(5)(C) | Complaint filed by Crystal Young, individually and on behalf of all others similarly situated, on June 7, 2010, in the District Court of the State of Minnesota, Hennepin County. | |
(b) | Commitment Letter, dated as of June 1, 2010, by and among Covidien plc, Covidien International Finance S.A. and Morgan Stanley Senior Funding, Inc., and Joinder Agreement to Commitment Letter, dated as of June 11, 2010, by and among the parties thereto. | |
(d)(1) | Agreement and Plan of Merger, dated as of June 1, 2010, by and between Covidien Group S.a.r.l., COV Delaware Corporation, and ev3 Inc. | |
(d)(2) | Tender and Voting Agreement, dated as of June 1, 2010, by and between Covidien Group S.a.r.l., COV Delaware Corporation, Warburg, Pincus Private Equity Partners LP, Warburg, Pincus Netherlands Equity Partners I, C.V., and Warburg, Pincus Netherlands Equity Partners III, C.V. | |
(d)(3) | Letter Agreement, dated as of April 6, 2010, by and between Tyco Healthcare Group d/b/a Covidien and ev3 Inc. | |
(d)(4) | Letter Agreement, dated as of April 28, 2010, by and between Tyco Healthcare Group d/b/a Covidien and ev3 Inc. | |
(d)(5) | Guaranty, dated as of June 1, 2010, by Covidien International Finance S.A. | |
(g) | None. | |
(h) | None. | |
| ITEM 13. | INFORMATION REQUIRED BY SCHEDULE 13E-3 |
Not applicable.
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.
| COVIDIEN GROUP S.A.R.L. | ||||
| Dated: June 11, 2010 | By: | /s/ MICHELANGELO F. STEFANI | ||
| Name: | Michelangelo F. Stefani | |||
| Title: | General Manager | |||
| COV DELAWARE CORPORATION | ||||
| Dated: June 11, 2010 | By: | /s/ MATTHEW J. NICOLELLA | ||
| Name: | Matthew J. Nicolella | |||
| Title: | Vice President and Assistant Secretary | |||
EXHIBIT INDEX
(a)(1)(A) | Offer to Purchase for Cash, dated June 11, 2010. | |
(a)(1)(B) | Form of Letter of Transmittal. | |
(a)(1)(C) | Form of Notice of Guaranteed Delivery. | |
(a)(1)(D) | Form of Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees. | |
(a)(1)(E) | Form of Letter to Clients for Use by Brokers, Dealers, Banks, Trust Companies and Other Nominees. | |
(a)(2) | None. | |
(a)(3) | None. | |
(a)(4) | None. | |
(a)(5)(A) | Joint Press Release issued by Covidien plc and ev3 Inc., dated June 1, 2010 (incorporated herein by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Covidien plc on June 1, 2010). | |
(a)(5)(B) | Summary Advertisement published in the Wall Street Journal on June 11, 2010. | |
(a)(5)(C) | Complaint filed by Crystal Young, individually and on behalf of all others similarly situated, on June 7, 2010, in the District Court of the State of Minnesota, Hennepin County. | |
(b) | Commitment Letter, dated as of June 1, 2010, by and among Covidien plc, Covidien International Finance S.A., Covidien Ltd. and Morgan Stanley Senior Funding, Inc., and Joinder Agreement to Commitment Letter, dated as of June 11, 2010, by and among the parties thereto. | |
(d)(1) | Agreement and Plan of Merger, dated as of June 1, 2010, by and between Covidien Group S.a.r.l., COV Delaware Corporation, and ev3 Inc. | |
(d)(2) | Tender and Voting Agreement, dated as of June 1, 2010, by and between Covidien Group S.a.r.l., COV Delaware Corporation, Warburg, Pincus Private Equity Partners LP, Warburg, Pincus Netherlands Equity Partners I, C.V., and Warburg, Pincus Netherlands Equity Partners III, C.V. | |
(d)(3) | Letter Agreement, dated as of April 6, 2010, by and between Tyco Healthcare Group d/b/a Covidien and ev3 Inc. | |
(d)(4) | Letter Agreement, dated as of April 28, 2010, by and between Tyco Healthcare Group d/b/a Covidien and ev3 Inc. | |
(d)(5) | Guaranty, dated as of June 1, 2010, by Covidien International Finance S.A. | |
(g) | None. | |
(h) | None. | |