SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13E-3
RULE 13e-3 TRANSACTION STATEMENT
UNDER SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2)
HEMOSOL INC.
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(Name of the Issuer)
HEMOSOL INC.
MDS INC.
MDS LABORATORY SERVICES INC.
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(Names of Persons Filing Statement)
COMMON SHARES
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(Title of Class of Securities)
42369K102
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(CUSIP Number of Class of Securities)
LEE D. HARTWELL PETER E. BRENT BRADLEY G. LEGGE
HEMOSOL INC. MDS INC. MDS LABORATORY SERVICES INC.
2585 MEADOWPINE BOULEVARD 100 INTERNATIONAL BOULEVARD 100 INTERNATIONAL BOULEVARD
MISSISSAUGA, ONTARIO TORONTO, ONTARIO TORONTO, ONTARIO
CANADA L5N 8H9 CANADA M9W 6J6 CANADA M9W 6J6
905-286-6200 416-675-6777 416-675-6777
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(Name, Address and Telephone Numbers of Person Authorized to
Receive Notices and Communications on Behalf of the Persons Filing Statement)
Copy of communications to:
JEFFREY NADLER, ESQ. CHRISTOPHER W. MORGAN, ESQ.
WEIL, GOTSHAL & MANGES LLP SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
767 FIFTH AVENUE 222 BAY STREET, SUITE 1750
NEW YORK, NEW YORK 10153 TORONTO, ONTARIO
212-310-8000 CANADA M5K 1J5
416-777-4700
This Statement is filed in connection with:
a. / / The filing of solicitation materials or an information statement subject
to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange
Act of 1934.
b. / / The filing of a registration statement under the Securities Act of 1933.
c. / / A tender offer.
d. /X/ None of the above.
Check the following box if the soliciting material or information statement
referred to in checking box (a) are preliminary copies: / /
Check the following box if the filing is a final amendment reporting the results
of the transaction: / /
CALCULATION OF FILING FEE
Transaction Valuation* Amount of Filing Fee**
$3,478,219.04 $696.00
* Estimated solely for purposes of computing the filing fee. The transaction
valuation was based on the product of (i) the 7% equity interest in Hemosol
being acquired by MDS pursuant to the Arrangement described herein (equal to
3,930,191 shares based on 56,145,582 Hemosol common shares outstanding as of
March 10, 2004), and (ii) $0.885, the average of the high and low prices
reported for Hemosol common shares on the Nasdaq National Market on March 17,
2004.
** The amount of the filing fee, calculated in accordance with Rule 0-11(b) of
the Securities Exchange Act of 1934, equals 1/50 of 1% of the transaction
valuation.
/X/ Check box if any part of the fee is offset as provided by Exchange Act 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: $696.00 Form or Registration No.: Rule 13E-3 Transaction Statement on Schedule 13E-3
Filing Party: Hemosol Inc., MDS Inc. and MDS Laboratory Services Inc. Date Filed: March 19, 2004
This Amendment No. 2 ("Amendment No. 2") is being filed by (i)
Hemosol Inc. ("Hemosol"), a corporation existing under the Business Corporations
Act (Ontario), as amended (the "OBCA"), (ii) MDS Inc. ("MDS"), a corporation
existing under the OBCA, and (iii) MDS Laboratory Services Inc. ("MDS Subco"
and, together with Hemosol and MDS, the "Filing Persons"), a corporation
existing under the OBCA and a wholly-owned subsidiary of MDS, and amends the
Rule 13e-3 Transaction Statement on Schedule 13E-3 (as so amended by Amendment
No. 1 and this Amendment No. 2, the "Transaction Statement") filed pursuant to
Section 13(e) of the Securities Exchange Act of 1934, as amended, by the Filing
Persons on March 19, 2004 and amended by Amendment No. 1 on April 5, 2004.
The Transaction Statement relates to a proposed arrangement
involving Hemosol, its securityholders and MDS, upon the terms and conditions
provided for in the Arrangement Agreement, attached as Exhibit (d)(i) to the
Rule 13e-3 Transaction Statement on Schedule 13E-3 filed by the Filing Persons
on March 19, 2004.
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ITEM 16. EXHIBITS.
Regulation M-A
Item 1016
(a)(2)(a) Press Release of Hemosol, dated February 12, 2004*
(a)(2)(b) Press Release of MDS, dated February 12, 2004*
(a)(3)(i) Notice of Annual and Special Meeting and Management Information
Circular of Hemosol Inc., dated March 10, 2004*
(a)(3)(ii) Form of Proxy for Shareholders*
(a)(3)(iii) Form of Proxy for Eligible Convertible Securityholders*
(a)(5)(i) Audited consolidated balance sheets of Hemosol as at December
31, 2003 and 2002 and the accompanying audited consolidated
statements of loss, deficit and cash flows for each of the years
in the three-year period ended December 31, 2003, including the
notes thereto and the report of the auditors thereon*
(a)(5)(ii) Annual Information Form of Hemosol, dated May 27, 2003*
(a)(5)(iii) Balance Sheet of New Hemosol and the report of the auditors
thereon (incorporated herein by reference to Annex H of the
Notice of Annual and Special Meeting and Management Information
Circular (Exhibit (a)(3)(i))*
(a)(5)(iv) Pro Forma Financial Statements for New Hemosol (incorporated
herein by reference to Annex I of the Notice of Annual and
Special Meeting and Management Information Circular (Exhibit
(a)(3)(i))*
(a)(5)(v) Pro Forma Financial Statements for Labco (incorporated herein by
reference to Annex J of the Notice of Annual and Special Meeting
and Management Information Circular (Exhibit (a)(3)(i))*
(b) Not applicable.
(c)(i) Fairness Opinion by KPMG to the Independent Committee of the
Board of Directors of Hemosol Inc., dated February 11, 2004
(incorporated herein by reference to Annex E of the Notice of
Annual and Special Meeting and Management Information Circular
(Exhibit (a)(3)(i))*
(c)(ii) Draft Materials for KPMG financial presentation to the Hemosol
Board*
(c)(iii) PwC Draft Report*
(d)(i) Arrangement Agreement, dated as of February 11, 2004, between
Hemosol and MDS (incorporated herein by reference to Annex D of
the Notice of
3
Annual and Special Meeting and Management Information Circular
(Exhibit (a)(3)(i))*
(d)(ii) Form of Blood Products Contribution Agreement**
(d)(iii) Blood Products Partnership Agreement (incorporated herein by
reference to Exhibit 5 to Annex D of the Notice of Annual and
Special Meeting and Management Information Circular (Exhibit
(a)(3)(i))*
(d)(iv) Blood Products Security Agreements***
(d)(v) BPP Guarantee****
(d)(vi) Form of Escrow Agreement**
(d)(vii) Amended and Restated Stock Option Plan of Hemosol, dated
December 7, 2000*
(d)(viii) Hemosol Stock Option Plan Amendment*
(d)(ix) Warrant Indenture, dated November 28, 2003, between Hemosol and
Computershare*
(d)(x) Labco Indemnity Agreement (incorporated herein by reference to
Exhibit 12 to Annex D of the Notice of Annual and Special
Meeting and Management Information Circular (Exhibit (a)(3)(i))*
(d)(xi) Form of Labs Contribution Agreement**
(d)(xii) Labs Management Agreement (incorporated herein by reference to
Exhibit 8 to Annex D of the Notice of Annual and Special Meeting
and Management Information Circular (Exhibit (a)(3)(i))*
(d)(xiii) Labs Partnership Agreement (incorporated herein by reference to
Exhibit 7 to Annex D of the Notice of Annual and Special Meeting
and Management Information Circular (Exhibit (a)(3)(i))*
(d)(xiv) Letter of Understanding between MDS and Hemosol, accepted and
agreed to by Hemosol on October 31, 2003, as amended*
(d)(xv) MDS Guarantee*
(d)(xvi) MDS Indemnity Agreement (incorporated herein by reference to
Exhibit 13 to Annex D of the Notice of Annual and Special
Meeting and Management Information Circular (Exhibit (a)(3)(i))*
(d)(xvii) Memorandum of Understanding between MDS and Hemosol, dated
October 22, 2002, as amended on December 23, 2003*
4
(d)(xviii) New Hemosol MOU***
(d)(xix) New Hemosol Stock Option Plan (incorporated herein by reference
to Annex F of the Notice of Annual and Special Meeting and
Management Information Circular (Exhibit (a)(3)(i))*
(d)(xx) Warrant Certificate, dated November 22, 2002, relating to the
Tranche A Warrants*
(d)(xxi) Partnership Interest Transfer Agreement***
(d)(xxii) Consent of Ernst & Young LLP*
(f) Not applicable
(g) Not applicable
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* Previously filed.
** Filed herewith.
*** To be filed by amendment.
**** Not applicable.
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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.
Dated: April 19, 2004
HEMOSOL INC.
By: /s/ LEE D. HARTWELL
-----------------------------------------
Name: Lee D. Hartwell
Title: President, Chief Executive Officer
and Chief Financial Officer
MDS INC.
By: /s/ PETER E. BRENT
-----------------------------------------
Name: Peter E. Brent
Title: Senior Vice President, General
Counsel and Corporate Secretary
MDS LABORATORY SERVICES INC.
By: /s/ BRADLEY G. LEGGE
-----------------------------------------
Name: Bradley G. Legge
Title: Director
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
- ------- -----------
(a)(2)(a) Press Release of Hemosol, dated February 12, 2004*
(a)(2)(b) Press Release of MDS, dated February 12, 2004*
(a)(3)(i) Notice of Annual and Special Meeting and Management Information
Circular of Hemosol Inc., dated March 10, 2004*
(a)(3)(ii) Form of Proxy for Shareholders*
(a)(3)(iii) Form of Proxy for Eligible Convertible Securityholders*
(a)(5)(i) Audited consolidated balance sheets of Hemosol as at December
31, 2003 and 2002 and the accompanying audited consolidated
statements of loss, deficit and cash flows for each of the years
in the three-year period ended December 31, 2003, including the
notes thereto and the report of the auditors thereon*
(a)(5)(ii) Annual Information Form of Hemosol, dated May 27, 2003*
(a)(5)(iii) Balance Sheet of New Hemosol and the report of the auditors
thereon (incorporated herein by reference to Annex H of the
Notice of Annual and Special Meeting and Management Information
Circular (Exhibit (a)(3)(i))*
(a)(5)(iv) Pro Forma Financial Statements for New Hemosol (incorporated
herein by reference to Annex I of the Notice of Annual and
Special Meeting and Management Information Circular (Exhibit
(a)(3)(i))*
(a)(5)(v) Pro Forma Financial Statements for Labco (incorporated herein by
reference to Annex J of the Notice of Annual and Special Meeting
and Management Information Circular (Exhibit (a)(3)(i))*
(b) Not applicable.
(c)(i) Fairness Opinion by KPMG to the Independent Committee of the
Board of Directors of Hemosol Inc., dated February 11, 2004
(incorporated herein by reference to Annex E of the Notice of
Annual and Special Meeting and Management Information Circular
(Exhibit (a)(3)(i))*
(c)(ii) Draft Materials for KPMG financial presentation to the Hemosol
Board*
(c)(iii) PwC Draft Report*
7
(d)(i) Arrangement Agreement, dated as of February 11, 2004, between
Hemosol and MDS (incorporated herein by reference to Annex D of
the Notice of Annual and Special Meeting and Management
Information Circular (Exhibit (a)(3)(i))*
(d)(ii) Form of Blood Products Contribution Agreement**
(d)(iii) Blood Products Partnership Agreement (incorporated herein by
reference to Exhibit 5 to Annex D of the Notice of Annual and
Special Meeting and Management Information Circular (Exhibit
(a)(3)(i))*
(d)(iv) Blood Products Security Agreements***
(d)(v) BPP Guarantee****
(d)(vi) Form of Escrow Agreement**
(d)(vii) Amended and Restated Stock Option Plan of Hemosol, dated
December 7, 2000*
(d)(viii) Hemosol Stock Option Plan Amendment*
(d)(ix) Warrant Indenture, dated November 28, 2003, between Hemosol and
Computershare*
(d)(x) Labco Indemnity Agreement (incorporated herein by reference to
Exhibit 12 to Annex D of the Notice of Annual and Special
Meeting and Management Information Circular (Exhibit (a)(3)(i))*
(d)(xi) Form of Labs Contribution Agreement**
(d)(xii) Labs Management Agreement (incorporated herein by reference to
Exhibit 8 to Annex D of the Notice of Annual and Special Meeting
and Management Information Circular (Exhibit (a)(3)(i))*
(d)(xiii) Labs Partnership Agreement (incorporated herein by reference to
Exhibit 7 to Annex D of the Notice of Annual and Special Meeting
and Management Information Circular (Exhibit (a)(3)(i))*
(d)(xiv) Letter of Understanding between MDS and Hemosol, accepted and
agreed to by Hemosol on October 31, 2003, as amended*
(d)(xv) MDS Guarantee*
(d)(xvi) MDS Indemnity Agreement (incorporated herein by reference to
Exhibit 13 to Annex D of the Notice of Annual and Special
Meeting and Management
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Information Circular (Exhibit (a)(3)(i))*
(d)(xvii) Memorandum of Understanding between MDS and Hemosol, dated
October 22, 2002, as amended on December 23, 2003*
(d)(xviii) New Hemosol MOU***
(d)(xix) New Hemosol Stock Option Plan (incorporated herein by reference
to Annex F of the Notice of Annual and Special Meeting and
Management Information Circular (Exhibit (a)(3)(i))*
(d)(xx) Warrant Certificate, dated November 22, 2002, relating to the
Tranche A Warrants*
(d)(xxi) Partnership Interest Transfer Agreement***
(d)(xxii) Consent of Ernst & Young LLP*
(f) Not applicable
(g) Not applicable
- ----------
* Previously filed.
** Filed herewith.
*** To be filed by amendment.
**** Not applicable.
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