-----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, HUxCzosY2snZwXq2P4NSOqYjUYtYoA5TQ6ci8s2uuKtLAnrxOEdF9q+5uLcqz0TD n0Z+FDzCCoUfECnjBrEi1w== /in/edgar/work/0000912057-00-045152/0000912057-00-045152.txt : 20001019 0000912057-00-045152.hdr.sgml : 20001019 ACCESSION NUMBER: 0000912057-00-045152 CONFORMED SUBMISSION TYPE: SC TO-T PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20001018 GROUP MEMBERS: TYCO ACQUISITION CORP. X GROUP MEMBERS: TYCO INTERNATIONAL LTD /BER/ SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: INNERDYNE INC CENTRAL INDEX KEY: 0000822084 STANDARD INDUSTRIAL CLASSIFICATION: [8731 ] IRS NUMBER: 870431168 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T SEC ACT: SEC FILE NUMBER: 005-49625 FILM NUMBER: 742223 BUSINESS ADDRESS: STREET 1: 1244 REAMWOOD AVE CITY: SUNNYVALE STATE: CA ZIP: 94089 BUSINESS PHONE: 4087456010 MAIL ADDRESS: STREET 1: 1244 REAMWOOD AVE CITY: SUNNYVALE STATE: CA ZIP: 94089 FORMER COMPANY: FORMER CONFORMED NAME: CARDIOPULMONICS INC DATE OF NAME CHANGE: 19940429 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TYCO INTERNATIONAL LTD /BER/ CENTRAL INDEX KEY: 0000833444 STANDARD INDUSTRIAL CLASSIFICATION: [3569 ] IRS NUMBER: 000000000 FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC TO-T BUSINESS ADDRESS: STREET 1: 90 PITTS BAY ROAD STREET 2: THE ZURICH CENTRE SECOND FLOOR CITY: PEMROKE HM 08 BERMU STATE: D0 BUSINESS PHONE: 4412928674 MAIL ADDRESS: STREET 1: C/O TYCO INTERNATIONAL (US) INC STREET 2: ONE TYCO PARK CITY: EXETER STATE: NH ZIP: 03833 FORMER COMPANY: FORMER CONFORMED NAME: ADT LIMITED DATE OF NAME CHANGE: 19930601 SC TO-T 1 a2027747zscto-t.txt SC TO-T AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 18, 2000 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ SCHEDULE TO TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 ------------------------ INNERDYNE, INC. (Name of Subject Company (Issuer)) ------------------------ TYCO INTERNATIONAL LTD. AND TYCO ACQUISITION CORP. X (Offerors) (Names of Filing Persons (identifying status as offeror, issuer or other person)) COMMON STOCK, PAR VALUE $0.01 PER SHARE (INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE PREFERRED STOCK) (Title of Class of Securities) 45764D102 (CUSIP Number of Class of Securities) MARK H. SWARTZ C/O TYCO INTERNATIONAL (US) INC. ONE TYCO PARK EXETER, NEW HAMPSHIRE 03833 (603) 778-9700 (Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications on Behalf of filing persons) ------------------------ Copies to: ABBE L. DIENSTAG, ESQ. FATI SADEGHI, ESQ. KRAMER LEVIN NAFTALIS & FRANKEL LLP SENIOR CORPORATE COUNSEL 919 THIRD AVENUE TYCO INTERNATIONAL (US) INC. NEW YORK, NEW YORK 10022 ONE TYCO PARK (212) 715-9100 EXETER, NEW HAMPSHIRE 03833 (603) 778-9700
------------------------ CALCULATION OF FILING FEE
TRANSACTION VALUATION (*) AMOUNT OF FILING FEE(**) $185,185,604 $37,037
* Estimated solely for the purpose of calculating the registration fee pursuant to Rules 0-11(d) and 0-11(a)(4) under the Securities Exchange Act of 1934, based on the product of (i) $6.96875, the average of the high and low sales prices of InnerDyne common stock on the Nasdaq National Market on October 16, 2000 and (ii) 26,573,719, the expected maximum number of shares of InnerDyne common stock to be acquired in the offer and the merger. ** Calculated as 1/50 of 1% 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: $48,889 Filing Party: Tyco International Ltd. Form or Registration No.: Form S-4 Date Filed: October 18, 2000 / / 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. 603) 778-9700 / / 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 Tender Offer Statement on Schedule TO (this "Schedule TO"), is filed by Tyco International Ltd. ("Tyco"), a Bermuda company, and Tyco Acquisition Corp. X ("Tyco Acquisition"), a Delaware corporation and a wholly-owned subsidiary of Tyco. This Schedule TO relates to the offer by Tyco Acquisition to exchange a fraction of a common share of Tyco, par value $0.20 per share (the "Tyco Common Shares"), for each outstanding share of common stock, par value $0.01 per share, of InnerDyne, Inc. ("InnerDyne"), a Delaware corporation, including the associated rights to purchase preferred stock (the "Shares"), based on an exchange ratio of $7.50 divided by the Average Tyco Share Price (as defined below), upon the terms and subject to the conditions set forth in the Prospectus dated October 18, 2000 (the "Prospectus") and in the related Letter of Transmittal, copies of which are attached hereto as Exhibits (a)(1) and (a)(2) (which, together with any amendments or supplements thereto, collectively constitute the "Offer"). The "Average Tyco Share Price" shall mean the average of the daily volume-weighted selling prices per Tyco Common Share on the New York Stock Exchange (as reported by Bloomberg Financial Markets) for each of the five consecutive trading days ending on the second trading day before the expiration date preceding the first acceptance of Shares for exchange in the Offer. 1 ITEMS 1 TO 11. The information set forth in the Prospectus and the related Letter of Transmittal is incorporated herein by reference with respect to Items 1 to 11 of this Schedule TO. ITEM 12. MATERIAL TO BE FILED AS EXHIBITS. (a)(1) Prospectus dated October 18, 2000 (incorporated by reference from Tyco's Registration Statement on Form S-4 filed on October 18, 2000 (the "Form S-4")). (a)(2) Form of Letter of Transmittal (incorporated by reference to exhibit 99.1 to the Form S-4). (a)(3) Form of Notice of Guaranteed Delivery (incorporated by reference to exhibit 99.2 to the Form S-4). (a)(4) Form of Letter from Tyco Acquisition to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated by reference to exhibit 99.3 to the Form S-4). (a)(5) Form of Letter from Brokers, Dealers, Commercial Banks, Trust Companies and Nominees to Clients (incorporated by reference to exhibit 99.4 to the Form S-4). (a)(6) Form of Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (incorporated by reference to exhibit 99.5 to the Form S-4). (a)(7) Summary Advertisement as published in THE WALL STREET JOURNAL on October 18, 2000 (incorporated by reference to exhibit 99.6 to the Form S-4). (a)(8) Press Release issued by Tyco on October 4, 2000 (incorporated by reference to the filing by Tyco on Form 425 on October 4, 2000). (b) None. (d)(1) Agreement and Plan of Merger, dated as of October 3, 2000, among Tyco Acquisition, VLMS, Inc., a Delaware Corporation and wholly-owned subsidiary of Tyco Acquisition, and InnerDyne, and guaranteed by Tyco (incorporated by reference to Annex A to the Prospectus). (d)(2) Standstill Letter, dated October 4, 1999 between a subsidiary of Tyco and InnerDyne. (d)(3) Dual Party Confidential Disclosure Agreement, dated October 4, 1999 between a subsidiary of Tyco and InnerDyne. (g) None. (h)(1) Tax opinion of PricewaterhouseCoopers LLP (incorporated by reference to exhibit 8.1 to the Form S-4). (h)(2) Tax opinion of Appleby Spurling & Kempe (incorporated by reference to exhibit 8.3 to the Form S-4).
ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3. Not applicable. 2 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: October 18, 2000 TYCO INTERNATIONAL LTD. By: /s/ MARK H. SWARTZ ----------------------------------------- Name: Mark H. Swartz Title: Executive Vice President and Chief Financial Officer
3 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: October 18, 2000 TYCO ACQUISITION CORP. X By: /s/ MARK H. SWARTZ ----------------------------------------- Name: Mark H. Swartz Title: Vice President
4 EXHIBIT INDEX EXHIBIT NUMBER (a)(1) Prospectus dated October 18, 2000 (incorporated by reference from Tyco's Registration Statement on Form S-4 filed on October 18, 2000 (the "Form S-4")). (a)(2) Form of Letter of Transmittal (incorporated by reference to exhibit 99.1 to the Form S-4). (a)(3) Form of Notice of Guaranteed Delivery (incorporated by reference to exhibit 99.2 to the Form S-4). (a)(4) Form of Letter from Tyco Acquisition to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated by reference to exhibit 99.3 to the Form S-4). (a)(5) Form of Letter from Brokers, Dealers, Commercial Banks, Trust Companies and Nominees to Clients (incorporated by reference to exhibit 99.4 to the Form S-4). (a)(6) Form of Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (incorporated by reference to exhibit 99.5 to the Form S-4). (a)(7) Summary Advertisement as published in THE WALL STREET JOURNAL on October 18, 2000 (incorporated by reference to exhibit 99.6 to the Form S-4). (a)(8) Press Release issued by Tyco on October 4, 2000 (incorporated by reference to the filing by Tyco on Form 425 on October 4, 2000). (b) None. (d)(1) Agreement and Plan of Merger, dated as of October 3, 2000, among Tyco Acquisition, VLMS, Inc., a Delaware Corporation and wholly-owned subsidiary of Tyco Acquisition, and InnerDyne, and guaranteed by Tyco (incorporated by reference to Annex A to the Prospectus). (d)(2) Standstill Letter, dated October 4, 1999 between a subsidiary of Tyco and InnerDyne. (d)(3) Dual Party Confidential Disclosure Agreement, dated October 4, 1999 between a subsidiary of Tyco and InnerDyne. (g) None. (h)(1) Tax opinion of PricewaterhouseCoopers LLP (incorporated by reference to exhibit 8.1 to the Form S-4). (h)(2) Tax opinion of Appleby Spurling & Kempe (incorporated by reference to exhibit 8.3 to the Form S-4).
5 EX-99.(D)(2) 2 a2027747zex-99_d2.txt EXHIBIT 99.(D)(2) Exhibit 99(d)(2) [TYCO LETTERHEAD] August 1, 2000 InnerDyne, Inc. 1244 Reamwood Avenue Sunnyvale, CA 94089 Attention: William Mavity, President and CEO Ladies and Gentlemen: We refer to a certain Dual Party Confidential Disclosure Agreement, dated October 4, 1999 (the "Confidentiality Agreement"), between United States Surgical, a division of Tyco Healthcare Group LP ("USS"), and InnerDyne, Inc. (the "Company"). USS is an affiliate of Tyco International (US) Inc. ("Tyco"). In consideration of the willingness of the Company to make certain confidential and proprietary information regarding the Company available to Tyco and certain of its affiliates in connection with Tyco's evaluation of a potential acquisition of the Company (the "Proposed Transaction"), Tyco hereby covenants and agrees as follows: 1. Tyco agrees to be bound by all terms and provisions of the Confidentiality Agreement applicable to USS, as if Tyco were a party to such agreement. Tyco further agrees that, notwithstanding any provisions in the Confidentiality Agreement to the contrary, all information disclosed by the Company to Tyco in connection with its evaluation of the Proposed Transaction, regardless of whether such information is disclosed orally or in writing or designated "Confidential" or not, shall be deemed Confidential Information (as defined in the Confidentiality Agreement), subject, however, to the exceptions set forth in paragraph 4 of the Confidentiality Agreement. 2. For a period of two years following the date hereof, Tyco and its affiliates will not, without the prior written approval of the Board of Directors of the Company, (a) purchase or acquire (or enter into any agreement or make any proposal to purchase or otherwise acquire) any securities of the Company, any warrant or option to purchase such securities, any security convertible into any such securities, or any other right to acquire such securities, or (b) act, whether alone or in concert with others, to seek to propose to the Company or any of its shareholders any merger, business combination, restructuring, recapitalization or similar transaction to or with the Company or any of its subsidiaries or otherwise seek or propose to influence or control the Company's management or policies. Notwithstanding the foregoing provisions of this paragraph, if the Board of Directors of the Company approves a transaction with any person that would result in such person beneficially owning more than 20% of the InnerDyne, Inc. August 1, 2000 Page 2 outstanding voting securities of the Company (or a successor to the Company in a merger or consolidation transaction) or all or substantially all of its assets, or any person or "group" (as defined in the Securities and Exchange Act of 1934, as amended), other than Tyco or any of its affiliates, has commenced or publicly announced its intention to commence a tender offer for more than 20% of the outstanding voting securities of the Company, or any options, warrants or other rights to acquire voting securities of the Company, then Tyco shall not be prohibited thereafter from taking any of the actions described in the preceding sentence. 3. For a period of two years following the date hereof, Tyco and its affiliates will not, directly or indirectly, solicit for employment any employee of the Company with whom Tyco had direct contact in the course of its evaluation of the Proposed Transaction; provided, however, that Tyco and its affiliates shall not be precluded from hiring any such employee who responds to a public advertisement placed by Tyco or any of its affiliates. 4. Notwithstanding any provision in the Confidentiality Agreement to the contrary, each party's obligations under paragraphs 2 and 3 of the Confidentiality Agreement (as amended by this letter agreement) shall remain in full force for a period of three (3) years from the date hereof. Very truly yours, TYCO INTERNATIONAL (US) INC. By: /s/ Richard J. Meelia --------------------------------------- Richard J. Meelia, Vice President Accepted as of the date first above written: INNERDYNE, INC. By: /s/ William G. Mavity ----------------------------------- Title: William G. Mavity President and CEO EX-99.(D)(3) 3 a2027747zex-99_d3.txt EXHIBIT 99.(D)(3) Exhibit 99(d)(3) INNERDYNE;INC. DUAL PARTY CONFIDENTIAL DISCLOSURE AGREEMENT This Agreement is effective this fourth day of October, 1999 by and between InnerDyne, Inc., having an address of 1244 Reamwood Avenue, Sunnyvale, California, 94089, (hereinafter referred to as "InnerDyne") and United States Surgical, a division of Tyco Healthcare Group LP, a Delaware limited partnership, having a place of business at 150 Glover Avenue, Norwalk, Connecticut 06856 (hereinafter referred to as "USS"): WHEREAS, InnerDyne possesses certain technical information related to laparoscopic access instrumentation; and WHEREAS, USS is interested in evaluating InnerDyne's technical information in order to determine the desirability of acquiring rights in and to the technical information; and WHEREAS, it may be necessary for USS to disclose certain confidential and proprietary information of USS to InnerDyne in order to effectively evaluate InnerDyne's technical information. NOW, THEREFORE, in consideration of the promises and of the mutual covenants, conditions, and limitations herein contained, USS and InnerDyne do hereby agree as follows: 1. InnerDyne may disclose to USS confidential and proprietary technical information relating to laparoscopic access instrumentation solely for the purpose of and in sufficient detail to enable USS to fully evaluate such technical information to determine the desirability of acquiring rights to make, use and/or sell products incorporating InnerDyne's technical information. USS may also disclose to InnerDyne such proprietary and confidential information of USS as it deems necessary and desirable to effectuate its evaluation of InnerDyne's technical information. 2. Each party agrees to accept the disclosures of the other party on a confidential basis ("CONFIDENTIAL INFORMATION") and to exercise the same degree of care with respect to the other party's CONFIDENTIAL INFORMATION as is exercised in preserving and safeguarding its own confidential and proprietary information, but no less than a reasonable degree of care. Each party further agrees not to disclose the other party's CONFIDENTIAL INFORMATION other than to those of its officers, directors, employees, advisors, attorneys, consultants or agents (hereinafter referred to collectively as "Representatives") with a need to know the CONFIDENTIAL INFORMATION to carry out the purpose of this agreement, provided that such Representatives shall have agreed to be bound in writing to maintain confidentiality of the CONFIDENTIAL INFORMATION. In order to be considered CONFIDENTIAL INFORMATION subject to the terms and conditions of this Agreement, information must be disclosed to the receiving party in written or other tangible form which is clearly marked "Confidential", or be designated as confidential in writing when the confidential information is revealed; or if disclosed orally, then designated as confidential orally when disclosed, and confirmed within thirty (30) days in writing as confidential. It is further agreed by the parties that the existence, the terms and the conditions of this Agreement shall be deemed to be CONFIDENTIAL INFORMATION of both parties, and shall be safeguarded accordingly and not disclosed to others. 3. It is hereby acknowledged by InnerDyne that USS shall incur no obligation or liability other than as set forth herein merely for examining and considering InnerDyne's CONFIDENTIAL INFORMATION. Similarly, it is hereby acknowledged by USS that InnerDyne shall incur no obligation or liability other than as set forth herein merely for examining and considering USS's CONFIDENTIAL INFORMATION. USS and InnerDyne further agree that neither will disclose or use (except as provided in Section 1 hereof) the other's CONFIDENTIAL INFORMATION unless and until a further signed agreement is made between the parties setting forth the terms and conditions under which rights to such CONFIDENTIAL INFORMATION are to be acquired. 4. Notwithstanding the foregoing, a receiving party's obligations under paragraphs 2 and 3 above shall not extend to any disclosed information: (a) that was publicly available prior to the date of disclosure by the disclosing party; or (b) that has been received by the receiving party from another source not under obligation of secrecy to the disclosing party; or (c) that becomes publicly available not due to any unauthorized act by the receiving party; or (d) that is independently developed by the receiving party, as evidenced by written documentation. 5. The parties hereby agree that no right or license under any patent, copyright, or trademark of USS or InnerDyne is granted, or is to be construed as being granted, to either party by the terms and conditions of this Agreement. Further, the parties hereby agree that no announcements of actual or potential collaboration between USS and InnerDyne will be made by either party without the prior written consent of the other party, which consent shall not unreasonably be withheld. 6. This Agreement shall be integrated and construed, and the legal relations created herein shall be determined, in accordance with the laws of the State of Delaware. 7. The validity and/or enforceability of any clause of this Agreement, or part thereof, shall not affect the validity and/or enforceability of any other clause, or part thereof. 8. Excepting only formal written agreements executed hereafter or concurrently herewith, this Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof and merges or supersedes all prior discussions, proposals, offers, and agreements, if any, with respect thereto, and there are no understandings, representations or warranties of any kind except as set forth herein. 9. This Agreement shall be binding upon and inure to the benefit of USS, its successors and assigns, and InnerDyne, its successors and assigns. 10. Each party's obligation under paragraphs 2 and 3 shall become effective and remain in full force for a period of three (3) years from the date of execution of this Agreement. AGREED TO AND ACCEPTED INNERDYNE, INC. By: /s/ Robert A. Stern --------------------------- Robert A. Stern Title: Vice President and Chief Financial Officer Date: October 4, 1999 UNITED STATES SURGICAL, a Division of Tyco Healthcare Group LP By: /s/ John C. Andreas --------------------------- Title: Vice President and General Counsel Date: October 5, 1999 -----END PRIVACY-ENHANCED MESSAGE-----