-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, G0c6BU75YV9CpS3CsPH+3yyX4+e4whvN/3xd5F85wanQnJLN5s9WvEMQKJ9snM14 mudD61VjaYq0rbmOeIw3QA== 0000950123-09-053948.txt : 20091028 0000950123-09-053948.hdr.sgml : 20091028 20091028092740 ACCESSION NUMBER: 0000950123-09-053948 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20091028 DATE AS OF CHANGE: 20091028 GROUP MEMBERS: BOXER ACQUISITION, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: I FLOW CORP /DE/ CENTRAL INDEX KEY: 0000857728 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 330121984 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-41065 FILM NUMBER: 091140635 BUSINESS ADDRESS: STREET 1: 20202 WINDROW DRIVE CITY: LAKE FOREST STATE: CA ZIP: 92630 BUSINESS PHONE: 9292062700 MAIL ADDRESS: STREET 1: 20202 WINDROW DRIVE CITY: LAKE FOREST STATE: CA ZIP: 92630 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KIMBERLY CLARK CORP CENTRAL INDEX KEY: 0000055785 STANDARD INDUSTRIAL CLASSIFICATION: CONVERTED PAPER & PAPERBOARD PRODS (NO CONTAINERS/BOXES) [2670] IRS NUMBER: 390394230 STATE OF INCORPORATION: DE FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: 351 PHELPS DRIVE CITY: IRVING STATE: TX ZIP: 75038 BUSINESS PHONE: 9722811200 MAIL ADDRESS: STREET 1: P O BOX 619100 STREET 2: DFW AIRPORT STATION CITY: DALLAS STATE: TX ZIP: 75261-9100 SC TO-T/A 1 d69786sctovtza.htm SC TO-T/A sctovtza
 
 
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Amendment No. 2
Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of
the Securities Exchange Act of 1934
I-FLOW CORPORATION
(Name of Subject Company (Issuer))
BOXER ACQUISITION, INC.
(Offeror)
A wholly Owned Subsidiary of
KIMBERLY-CLARK CORPORATION
(Offeror)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
Common Stock, Par Value $0.001 Per Share
(Title of Class of Securities)
449520303
(Cusip Number of Class of Securities)
John Wesley
Kimberly-Clark Corporation
P.O. Box 619100
Dallas, Texas 75261-9100
(972) 281-1200
(Name, Address and Telephone Number of Persons Authorized to Receive Notices
and Communications on Behalf of Filing Persons)
Copies to:
     
Imad I. Qasim
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
(312) 853-7094 		  Matthew G. McQueen
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
(312) 853-7036
CALCULATION OF FILING FEE
     
Transaction Valuation(1)   Amount of Filing Fee(2)
 
$325,493,355   $18,162.53
 
(1)   Estimated for purposes of calculating the amount of the filing fee only. The calculation is based on the offer to purchase up to 25,730,700 shares of common stock, par value $0.001 per share, of I-Flow Corporation (the “Company”) at an offer price of $12.65 per share. Such shares consist of (i) 24,463,356 shares of common stock of the Company outstanding as of October 18, 2009 (including 248,052 shares of unvested restricted stock), (ii) 558,414 shares of common stock of the Company potentially issuable upon the exercise of outstanding in-the-money stock options as of October 18, 2009 and (iii) 708,930 shares of common stock of the Company subject to issuance pursuant to outstanding restricted stock units as of October 18, 2009.
 
(2)   The filing fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #5 for fiscal year 2009, issued March 11, 2009, by multiplying the transaction value by 0.0000558.
þ    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: $18,162.53
  Filing Party: Kimberly-Clark Corporation and Boxer Acquisition, Inc.
Form or Registration No.: Schedule TO
  Date Filed: October 20, 2009
o   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:
  þ   third-party tender offer subject to Rule 14d-1.
 
  o   issuer tender offer subject to Rule 13e-4.
 
  o   going-private transaction subject to Rule 13e-3.
 
  o   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: o
 
 

 

 

     This Amendment No. 2 to the Tender Offer Statement on Schedule TO (this “Amendment”) is filed by (i) Boxer Acquisition, Inc., a Delaware corporation (the “Purchaser”) and wholly owned subsidiary of Kimberly-Clark Corporation, a Delaware corporation (“Parent”), and (ii) Parent. This Amendment amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on October 20, 2009 (together with any amendments and supplements thereto, the “Schedule TO”), and relates to the offer (the “Offer”) by the Purchaser to purchase all of the outstanding shares of common stock of I-Flow Corporation, a Delaware corporation (the “Company”), par value $0.001 per share, together with the associated purchase rights issued pursuant to the Rights Agreement, dated as of March 8, 2002, and as thereafter amended, between the Company and American Stock Transfer & Trust Company, as Rights Agent (the “Rights” and, together with the shares of the Company’s common stock, the “Shares”), at a purchase price of $12.65 per Share net to the seller in cash, without interest and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated October 20, 2009 (together with any amendments and supplements thereto, the “Offer to Purchase”) and in the related Letter of Transmittal.
     Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Schedule TO.
Item 11. Additional Information.
     Item 11(a)(5) of the Schedule TO is hereby amended and supplemented by adding the following text thereto:
     “On October 23, 2009, Stuart Kessler, on behalf of himself and the public stockholders of the Company, filed a purported class action complaint in the Superior Court of the State of California, Orange County, captioned Stuart Kessler v. James J. Dal Porto, et al. (Case No. 30-2009 00312968). The lawsuit names the Company, each of the Company’s directors, Parent and the Purchaser as defendants. The lawsuit alleges, among other things, that the Company’s directors breached their fiduciary duties, and that the Company and Parent aided and abetted such alleged breaches of fiduciary duties. Based on these allegations, the lawsuit seeks, among other relief, injunctive relief enjoining the Offer and the Merger. It also purports to seek recovery of the costs of the action, including reasonable attorneys’ fees.”

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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.
         
Date: October 28, 2009   BOXER ACQUISITION, INC.
 		  
  By:   /s/ Thomas J. Mielke    
    Name:   Thomas J. Mielke   
    Title:   Secretary   
 
 
Date: October 28, 2009   KIMBERLY-CLARK CORPORATION
 		  
  By:   /s/ John W. Wesley    
    Name:   John W. Wesley   
    Title:   Vice President and Secretary   
 

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