================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
SCHEDULE TO/A
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1)
OR SECTION 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
---------------
SOMNUS MEDICAL TECHNOLOGIES, INC.
(Name of subject company (issuer))
GYRUS GROUP PLC (Offeror)
GYRUS ACQUISITION, INC. (Affiliate of Offeror)
(Names of filing persons (offerors))
---------------
COMMON STOCK, PAR VALUE $0.001 PER SHARE
Including the Associated Preferred Stock Purchase Rights
(Title of Class of Securities)
835397-10-0
(CUSIP Number of Class of Securities)
Tom Murphy
Chief Financial Officer
Gyrus Acquisition, Inc.
c/o Gyrus Group PLC
Fortran Road, St. Mellons
Cardiff CF3 0LT
United Kingdom
44 1189 219 750
(Name, address and telephone number of person authorized to receive notices
and communications on behalf of filing persons)
Copies to:
John T. Kramer, Esq.
Dorsey & Whitney LLP
220 South Sixth Street
Minneapolis, Minnesota 55402
Telephone: (612) 340-2600
CALCULATION OF FILING FEE
================================================================================
Transaction Valuation* Amount of Filing Fee**
- --------------------------------------------------------------------------------
$59,694,211 $11,939
================================================================================
* For purposes of calculating the filing fee only, this calculation assumes
the purchase of 20,627,861 shares of common stock of Somnus, including the
associated preferred stock purchase rights (together, the "Shares") at the
tender offer price of $3.11 per Share. The Shares include both 17,355,986
shares of common stock outstanding as of May 3, 2001, 1,770,794 options and
67,500 warrants.
** The amount of the filing fee, calculated in accordance with Rule 0-11 of the
Securities Exchange Act of 1934, as amended, equals 1/50 of 1% of the
transaction valuation.
~ 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: $11,939 Filing Party: Gyrus Acquisition, Inc. and Gyrus Group PLC
Form or Registration No.: Schedule TO Date Filed: May 7, 2001
| | Check the box if the filing relates 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 Amendment No. 1 amends and supplements the Tender Offer Statement
on Schedule TO (as amended and supplemented, the "SCHEDULE TO") filed with the
Securities and Exchange Commission on May 7, 2001 by Gyrus Acquisition, Inc., a
Delaware corporation (the "PURCHASER") and a wholly owned subsidiary of Gyrus
Group PLC, a public limited company incorporated and existing under the laws of
England and Wales ("PARENT"). The Schedule TO relates to the offer by the
Purchaser to purchase all the outstanding shares of common stock, par value
$0.001 per share (the "COMMON STOCK"), of Somnus Medical Technologies, Inc., a
Delaware corporation (the "COMPANY"), including the associated preferred stock
purchase rights (the "RIGHTS") issued pursuant to the Rights Agreement, dated as
of November 6, 1998, between the Company and American Securities Transfer,
Incorporated, as Rights Agent (the Common Stock and the Rights together are
referred to herein as the "SHARES"), at a purchase price of $3.11 per Share, net
to the seller in cash, without interest thereon, upon the terms and subject to
the conditions set forth in the Offer to Purchase dated May 7, 2001 (the "OFFER
TO PURCHASE"), and in the related Letter of Transmittal, copies of which were
filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively.
This Amendment No. 1 to Schedule TO is being filed on behalf of the Purchaser
and Parent.
The information contained in the Schedule TO concerning the Company,
including, without limitation, information concerning the approvals and
recommendations of the Board of Directors of the Company in connection with the
transaction, the opinion of the financial advisor to such Board of Directors,
and the Company's capital structure and financial information, was supplied by
the Company. Purchaser takes no responsibility for the accuracy of such
information.
ITEM 11. ADDITIONAL INFORMATION.
(a) The following information is added to the bottom of the chart on
page 21 of the Offer to Purchase:
Book Value Per Share as of May 4, 2001............POUND STERLING 1.11
(b) The second paragraph under the section headed "Conditions to the
Tender Offer" on page 28 of the Offer to Purchase is replaced in its entirety by
the following:
"In addition, notwithstanding any other provision of the
Offer, subject to the terms of the Merger Agreement, the Purchaser
shall not be required to accept for payment or pay for any Shares, and
may delay the acceptance for payment of or, subject to any applicable
rules and regulations of the SEC, including Rule 14e-1(c) under the
Exchange Act (relating to the Purchaser's obligation to pay for or
return tendered Shares after the termination or withdrawal of the
Offer), the payment for any tendered Shares, if at any time prior to
the expiration of the Offer, any of the following events or conditions
shall occur or exist:"
(c) The last paragraph under the section headed "Conditions to the
Tender Offer" on page 28 of the Offer to Purchase is replaced in its entirety by
the following:
"The foregoing conditions are for the sole benefit of Parent
and the Purchaser and may be asserted or waived by Parent or the
Purchaser, regardless of the circumstances giving rise to any such
condition, in whole or in part at any time and from time to time in its
sole discretion; PROVIDED, HOWEVER, THAT any condition that has not
been asserted prior to the expiration of the Offer, other than those
involving the receipt of necessary approvals by any Governmental
Entity, will be satisfied or waived on or before the expiration of the
Offer. Subject to the foregoing, the failure by Parent or the Purchaser
at any time to exercise any of the foregoing rights shall not be deemed
a waiver of any such right, and each such right shall be deemed an
ongoing right and may be asserted at any time and from time to time."
ITEM 12. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION
* (a)(1)(A) -- Offer to Purchase dated May 7, 2001.
* (a)(1)(B) -- Letter of Transmittal.
* (a)(1)(C) -- Notice of Guaranteed Delivery.
* (a)(1)(D) -- Letter to Brokers, Dealers, Banks, Trust Companies and Other
Nominees.
* (a)(1)(E) -- Letter to Clients for use by Brokers, Dealers, Banks, Trust
Companies and Other Nominees.
* (a)(1)(F) -- Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.
* (a)(1)(G) -- Press Release issued by Parent on May 4, 2001.
* (a)(1)(H) -- Summary Advertisement published May 7, 2001.
* (d)(1) -- Agreement and Plan of Merger, dated as of May 4, 2001, among
Parent, the Purchaser and the Company.
* (d)(2) -- Company Stockholder Agreement, dated May 3, 2001, , between
Parent and each of certain stockholders of the Company.
- ----------------------------
* Previously filed.
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.
GYRUS ACQUISITION, INC.
By: /s/ Mark Goble
-----------------------------------------
NAME: Mark Goble, M.D.
TITLE: Chief Executive Officer
GYRUS GROUP PLC
By: /s/ Mark Goble
-----------------------------------------
NAME: Mark Goble, M.D.
TITLE: Group Managing Director
DATED: May 25, 2001
INDEX TO EXHIBITS
EXHIBIT NUMBER DOCUMENT
* (a)(1)(A) Offer to Purchase dated May 7, 2001.
* (a)(1)(B) Letter of Transmittal.
* (a)(1)(C) Notice of Guaranteed Delivery.
* (a)(1)(D) Letter to Brokers, Dealers, Banks, Trust Companies and Other
Nominees.
* (a)(1)(E) Letter to Clients for use by Brokers, Dealers, Banks,
Trust Companies and Other Nominees.
* (a)(1)(F) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
* (a)(1)(G) Press Release by Parent on May 4, 2001.
* (a)(1)(H) Summary Advertisement published May 7, 2001.
(b) Not applicable.
* (d)(1) Agreement and Plan of Merger, dated as of May 4, 2001, among
Parent, the Purchaser and the Company.
* (d)(2) Company Stockholder Agreement, dated May 3, 2001, between Parent
and each of certain stockholders of the Company.
(g) Not applicable.
(h) Not applicable.
- ----------------------------
* Previously filed.