UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(Amendment No. 6)
TENDER OFFER STATEMENT
UNDER SECTION 14(D)(1) OR SECTION 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
SOMANETICS CORPORATION
(Name Of Subject Company (Issuer))
UNITED STATES SURGICAL CORPORATION
COVIDIEN DE CORP.
(Names of Filing Persons (Offerors))
Common Shares, par value $0.01 per share
(Title of Class of Securities)
834445405
(CUSIP Number of Common Stock)
John H. Masterson
United States Surgical Corporation
c/o Covidien
15 Hampshire Street
Mansfield, MA 02048
Telephone: (508) 261-8000
(Name, address and telephone number of person authorized
to receive notices and communications on behalf of filing persons)
with copies to:
Joseph L. Johnson III
Goodwin Procter LLP
Exchange Place
Boston, Massachusetts 02109
Telephone: (617) 570-1000
CALCULATION OF FILING FEE
| Transaction Valuation* |
Amount Of Filing Fee** | |
| $343,688,025 |
$24,504.96 |
| * | 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 is based upon the offer to purchase 13,747,521 outstanding Common Shares of Somanetics Corporation at a purchase price of $25.00 cash per share. Such number of outstanding Common Shares represents the total of 11,953,384 issued and outstanding Common Shares outstanding options with respect to 1,794,137 Common Shares, in each case as of June 16, 2010. |
| ** | 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. |
| 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: |
$ 24,504.96 | |
| Form or Registration No.: |
Schedule TO-T | |
| Filing Party: |
United States Surgical Corporation | |
| Date Filed: |
June 25, 2010 |
| ¨ | 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: x
This Amendment No. 6 to the Tender Offer Statement on Schedule TO (this “Amendment”), filed with the Securities and Exchange Commission on July 28, 2010, amends and supplements the Tender Offer Statement on Schedule TO filed on June 25, 2010 (the “Schedule TO”) and relates to a tender offer by Covidien DE Corp., a Delaware corporation (the “Offeror”) and a wholly owned subsidiary of United States Surgical Corporation, a Delaware corporation (“Parent”), to purchase all of the outstanding Common Shares, par value $0.01 per share (the “Shares”), of Somanetics Corporation, a Michigan corporation (the “Company”), at a purchase price of $25.00 per Share, net 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 for Cash dated June 25, 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 Amendment 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 the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively, is incorporated by reference in answers to Items 1 through 9 and Item 11 of the Schedule TO, and is supplemented by the information specifically provided herein.
ITEM 11. ADDITIONAL INFORMATION
Item 11 of this Schedule TO is hereby amended and supplemented by adding the following:
“Pursuant to the terms of the Merger Agreement, on July 27, 2010, the Purchaser exercised its option (the “Top-Up Option”) to purchase directly from the Company an additional number of Shares sufficient (when combined with the Shares purchased by the Purchaser in the Offer) to give the Purchaser ownership of one Share more than 90% of the outstanding Shares. Pursuant to the exercise of the Top-Up Option, the Purchaser purchased an aggregate of 8,046,616 Shares.
Following the exercise of the Top-Up Option, Parent caused the Purchaser and the Company to consummate the Merger. In accordance with the Merger Agreement, the Purchaser was merged with and into the Company, with the Company continuing as the Surviving Corporation and as a wholly owned subsidiary of Parent. At the Effective Time of the Merger, each Share outstanding immediately prior to the Effective Time (other than Shares held in treasury by the Company or Shares owned by Parent or the Purchaser) was converted into the right to receive $25.00 per Share, net to the applicable stockholder in cash, without interest and less any required withholding and transfer taxes, which is the same amount per Share that was paid in the Offer. Following the Merger, the Shares will no longer be listed on the Nasdaq Global Market.
On July 28, 2010, Covidien plc, the parent company of Parent and the Purchaser, issued a press release announcing the completion of the Merger. The full text of the press release is attached hereto as Exhibit (a)(5)(F) and is incorporated herein by reference.”
ITEM 12. EXHIBITS
| (a)(1)(A) |
Offer to Purchase for Cash, dated June 25, 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 Somanetics Corporation, dated June 16, 2010 (incorporated herein by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Covidien plc on June 16, 2010).* | |
| (a)(5)(B) |
Summary Advertisement published in the Wall Street Journal on June 25, 2010.* | |
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| (a)(5)(C) |
Complaint filed by Stanley Manne, individually and on behalf of all others similarly situated, on June 30, 2010, in the Sixth Judicial Circuit Court for the State of Michigan, Oakland County.* | |
| (a)(5)(D) |
Complaint filed by Maryellen Farrelly, individually and on behalf of all others similarly situated, on July 15, 2010, in the United States District Court, Eastern District of Michigan.* | |
| (a)(5)(E) |
Press Release issued by Covidien plc, dated July 27, 2010.* | |
| (a)(5)(F) |
Press Release issued by Covidien plc, dated July 28, 2010. | |
| (b) |
None. | |
| (d)(1) |
Agreement and Plan of Merger, dated as of June 16, 2010, by and between United States Surgical Corporation, Covidien DE Corp. and Somanetics Corporation.* | |
| (d)(2) |
Tender and Voting Agreement, dated as of June 16, 2010, by and between United States Surgical Corporation, Covidien DE Corp. and Bruce J. Barrett.* | |
| (d)(3) |
Confidentiality and Standstill Agreement, dated as of March 16, 2010, by and between United States Surgical Corporation and Somanetics Corporation.* | |
| (d)(4) |
Guaranty, dated as of June 16, 2010, by Covidien International Finance S.A.* | |
| (g) |
None. | |
| (h) |
None. | |
| * | Previously filed |
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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.
| UNITED STATES SURGICAL CORPORATION | ||||
| Dated: July 28, 2010 |
By: | /s/ MATTHEW J. NICOLELLA | ||
| Name: | Matthew J. Nicolella | |||
| Title: | Vice President and Assistant Secretary | |||
| COVIDIEN DE CORP. | ||||
| Dated: July 28, 2010 |
By: | /s/ MATTHEW J. NICOLELLA | ||
| Name: | Matthew J. Nicolella | |||
| Title: | Vice President and Assistant Secretary | |||
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EXHIBIT INDEX
| (a)(1)(A) |
Offer to Purchase for Cash, dated June 25, 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 Somanetics Corporation, dated June 16, 2010 (incorporated herein by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Covidien plc on June 16, 2010).* | |
| (a)(5)(B) |
Summary Advertisement published in the Wall Street Journal on June 25, 2010.* | |
| (a)(5)(C) |
Complaint filed by Stanley Manne, individually and on behalf of all others similarly situated, on June 30, 2010, in the Sixth Judicial Circuit Court for the State of Michigan, Oakland County.* | |
| (a)(5)(D) |
Complaint filed by Maryellen Farrelly, individually and on behalf of all others similarly situated, on July 15, 2010, in the United States District Court, Eastern District of Michigan.* | |
| (a)(5)(E) |
Press Release issued by Covidien plc, dated July 27, 2010.* | |
| (a)(5)(F) |
Press Release issued by Covidien plc, dated July 28, 2010. | |
| (b) |
None. | |
| (d)(1) |
Agreement and Plan of Merger, dated as of June 16, 2010, by and between United States Surgical Corporation, Covidien DE Corp. and Somanetics Corporation.* | |
| (d)(2) |
Tender and Voting Agreement, dated as of June 16, 2010, by and between United States Surgical Corporation, Covidien DE Corp. and Bruce J. Barrett.* | |
| (d)(3) |
Confidentiality and Standstill Agreement, dated as of March 16, 2010, by and between United States Surgical Corporation and Somanetics Corporation.* | |
| (d)(4) |
Guaranty, dated as of June 16, 2010, by Covidien International Finance S.A.* | |
| (g) |
None. | |
| (h) |
None. | |
| * | Previously filed |
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