================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
SCHEDULE TO/A
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 5)
----------------
INVIVO CORPORATION
(Name of Subject Company)
----------------
INVIVO ACQUISITION CORPORATION
INTERMAGNETICS GENERAL CORPORATION
(Name of Filing Persons (Offeror))
----------------
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
----------------
461858102
(CUSIP Number of Class of Securities)
----------------
GLENN H. EPSTEIN
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
INTERMAGNETICS GENERAL CORPORATION
450 OLD NISKAYUNA ROAD
P.O. BOX 461
LATHAM, NEW YORK 12110
(518) 782-1122
(Name, address and telephone number of person authorized to receive notices and
communications on behalf of filing person)
COPY TO:
CLARE O'BRIEN, ESQ.
SHEARMAN & STERLING LLP
599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 848-4000
CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
---------------------- ----------------------
$152,034,519.66 $12,299.59
* Estimated for purposes of calculating the amount of the filing fee only.
The fee was calculated by multiplying $22.00, the per share tender offer
price, by the 5,970,156 currently outstanding shares of Common Stock
sought in the Offer, which gives an aggregate consideration of
$131,343,432.00 (the "Common Stock Consideration"). The Common Stock
Consideration was then added to $20,691,087.66, being the net
consideration for the Subject Company's 1,448,662 stock options, to arrive
at a total transaction value of $152,034,519.66.
** Calculated as 0.008090% of the transaction value.
[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: $12,299.59 Filing Party: Intermagnetics
General Corporation
Form or Registration No.: Schedule TO Date Filed: December 23, 2003
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes 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:
[X]
This Amendment No. 5 ("Final Amendment") amends and supplements the
Tender Offer Statement on Schedule TO filed on December 23, 2003, as amended on
January 7, 2004, January 9, 2004, January 15, 2004 and January 23, 2004 (the
"Schedule TO"), by Invivo Acquisition Corporation f/k/a Magic Subsidiary
Corporation, a Delaware corporation ("Purchaser") and a wholly owned subsidiary
of Intermagnetics General Corporation, a New York corporation ("Parent"). The
Schedule TO relates to the Offer by Purchaser to purchase all outstanding shares
of Common Stock, par value $0.01 per share (the "Shares"), of Invivo
Corporation, a Delaware corporation (the "Company"), at a purchase price of
$22.00 per Share, net to the seller in cash, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated December 23, 2003 (the
"Offer to Purchase") and in the related Letter of Transmittal, copies of which
are attached to the Schedule TO as Exhibits (a)(1) and (a)(2) (which, together
with any amendments or supplements thereto, collectively constitute the
"Offer"). Pursuant to General Instruction H to Schedule TO, this Final Amendment
satisfies the reporting requirements of Section 13(d) of the Securities Exchange
Act of 1934 with respect to all securities acquired by the Purchaser in the
Offer. Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to such terms in the Offer to Purchase or the Schedule TO.
ITEM 8. INTEREST IN THE SECURITIES OF THE SUBJECT COMPANY.
Item 8 of the Schedule TO is hereby amended and supplemented by the
following:
At 12:00 midnight, New York City time, on Friday, January 23, 2004,
the Offer expired. Based on a preliminary count, approximately 5,695,898 Shares
were tendered pursuant to the Offer, of which 248,621 Shares were tendered
pursuant to notices of guaranteed delivery. Such Shares constituted
approximately 95.6% of the outstanding shares. On January 26, 2004, effective as
of 12:01 a.m., all Shares validly tendered and not withdrawn prior to the
expiration of the Offer were accepted for payment. A copy of the press release
announcing the expiration of the Offer and the acceptance of validly tendered
Shares is attached hereto as Exhibit 99.(a)(13).
ITEM 12. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Offer to Purchase dated December 23, 2003.*
(a)(2) Form of Letter of Transmittal.*
(a)(3) Form of Notice of Guaranteed Delivery.*
(a)(4) Form of Letter from Purchaser to Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.*
(a)(5) Form of Letter from Brokers, Dealers, Commercial Banks, Trust
Companies and Nominees to Clients.*
(a)(6) Form of Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.*
(a)(7) Summary Advertisement as published in The New York Times on
December 23, 2003.*
(a)(8) Joint Press Release issued by Parent and the Company on
December 18, 2003 (incorporated by reference to Exhibit 99.1
to the Schedule TO-C of Parent and Purchaser filed on December
18, 2003).
(a)(9) Press Release issued by Parent on January 7, 2004
(incorporated by reference to exhibit 99.1 of Amendment No. 1
to Schedule TO filed by Parent and Purchaser on January 7,
2004).
(a)(10) Press Release issued by Parent on November 3, 2003
(incorporated by reference to exhibit 99.(a)(10) of Amendment
No. 3 to Schedule TO filed by Parent and Purchaser on January
15, 2004).
(a)(11) Press Release issued by Parent on November 13, 2003
(incorporated by reference to exhibit 99.(a)(11) of Amendment
No. 3 to Schedule TO filed by Parent and Purchaser on January
15, 2004).
(a)(12) Joint Press Release issued by Parent and the Company on
November 24, 2003 (incorporated by reference to exhibit
99.(a)(12) of Amendment No. 3 to Schedule TO filed by Parent
and Purchaser on January 15, 2004).
(b)(1) Credit Agreement among Parent, as Borrower, and the domestic
subsidiaries of Parent, as Guarantors, the lenders parties
thereto, JPMorgan Chase Bank, as Syndication Agent, KeyBank,
N.A., as Documentation Agent, and Wachovia Bank, N.A., as
Administrative Agent, dated as of December 17, 2003.*
(d)(1) Agreement and Plan of Merger, dated as of December 17, 2003,
among Parent, Purchaser, and the Company (incorporated by
reference to Exhibit 99.2 to the Form 8-K of Parent filed on
December 18, 2003).
(d)(2) Confidentiality Letter Agreement, dated November 21, 2003,
between Parent and the Company.*
(g) None.
(h) None.
99.(a)(13) Press Release issued by Parent on January 26, 2004.
- -----------------------------------------
* Incorporated by reference to the Schedule TO filed by Purchaser and Parent on
December 23, 2003.
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: January 26, 2004
INVIVO ACQUISITION CORPORATION
By: /s/ Glenn H. Epstein
-------------------------------
Name: Glenn H. Epstein
Title: President
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: January 26, 2004
INTERMAGNETICS GENERAL CORPORATION
By: /s/ Glenn H. Epstein
-----------------------------------
Name: Glenn H. Epstein
Title: Chairman and Chief Executive
Officer
EXHIBIT INDEX
EXHIBIT
NO.
- ---
(a)(1) Offer to Purchase dated December 23, 2003.*
(a)(2) Form of Letter of Transmittal.*
(a)(3) Form of Notice of Guaranteed Delivery.*
(a)(4) Form of Letter from Purchaser to Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.*
(a)(5) Form of Letter from Brokers, Dealers, Commercial Banks, Trust
Companies and Nominees to Clients.*
(a)(6) Form of Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.*
(a)(7) Summary Advertisement as published in The New York Times on
December 23, 2003.*
(a)(8) Joint Press Release issued by Parent and the Company on
December 18, 2003 (incorporated by reference to Exhibit 99.1
to the Schedule TO-C of Parent and Purchaser filed on December
18, 2003).
(a)(9) Press Release issued by Parent on January 7, 2004
(incorporated by reference to exhibit 99.1 of Amendment No. 1
to Schedule TO filed by Parent and Purchaser on January 7,
2004).
a)(10) Press Release issued by Parent on November 3, 2003
(incorporated by reference to exhibit 99.(a)(10) of Amendment
No. 3 to Schedule TO filed by Parent and Purchaser on January
15, 2004).
(a)(11) Press Release issued by Parent on November 13, 2003
(incorporated by reference to exhibit 99.(a)(11) of Amendment
No. 3 to Schedule TO filed by Parent and Purchaser on January
15, 2004).
(a)(12) Joint Press Release issued by Parent and the Company on
November 24, 2003 (incorporated by reference to exhibit
99.(a)(12) of Amendment No. 3 to Schedule TO filed by Parent
and Purchaser on January 15, 2004).
(b)(1) Credit Agreement among Parent, as Borrower, and the domestic
subsidiaries of Parent, as Guarantors, the lenders parties
thereto, JPMorgan Chase Bank, as Syndication Agent, KeyBank,
N.A., as Documentation Agent, and Wachovia Bank, N.A., as
Administrative Agent, dated as of December 17, 2003.*
(d)(1) Agreement and Plan of Merger, dated as of December 17, 2003,
among Parent, Purchaser, and the Company (incorporated by
reference to Exhibit 99.2 to the Form 8-K of Parent filed on
December 18, 2003).
(d)(2) Confidentiality Letter Agreement, dated November 21, 2003,
between Parent and the Company.*
(g) None.
(h) None.
99.(a)(13) Press Release issued by Parent on January 26, 2004.
- -----------------------------------------
* Incorporated by reference to the Schedule TO filed by Purchaser and Parent on
December 23, 2003.