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
(AMENDMENT NO. 1)
BEI MEDICAL SYSTEMS COMPANY, INC.
(Name of Subject Company)
BROADWAY ACQUISITION CORP.
(OFFEROR)
BOSTON SCIENTIFIC CORPORATION
(PARENT OF OFFEROR)
(Names of Filing Persons (Identifying Status as Offeror,
Issuer or Other Person))
COMMON STOCK, PAR VALUE $0.001 PER SHARE
(INCLUDING THE ASSOCIATED PREFERRED SHARE PURCHASE RIGHTS)
SERIES A CONVERTIBLE PREFERRED STOCK, PAR VALUE $0.001 PER SHARE
(Title of Class of Securities)
05538E109
(COMMON STOCK ONLY)
(CUSIP Number of Class of Securities)
LAWRENCE J. KNOPF, ESQ. LAWRENCE J. KNOPF, ESQ.
BOSTON SCIENTIFIC CORPORATION BROADWAY ACQUISITION CORP.
ONE BOSTON SCIENTIFIC PLACE ONE BOSTON SCIENTIFIC PLACE
NATICK, MA 01760-1537 NATICK, MA 01760-1537
(508) 650-8567 (508) 650-8567
(Name, Address and Telephone Number of Persons Authorized to Receive Notices
and Communications on Behalf of Filing Persons)
COPIES TO:
JOHAN V. BRIGHAM, ESQ.
MATTHEW J. CUSHING, ESQ.
BINGHAM DANA LLP
150 FEDERAL STREET
BOSTON, MA 02210
(617) 951-8000
CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
$101,277,378 $9,318
*Estimated for purposes of calculating the amount of the filing fee only. The
fee was calculated on a transaction valuation determined by (i) multiplying
$6.8426, the per share tender offer price for shares of Common Stock, by
12,572,038, the number of currently outstanding shares of Common Stock sought
in the Offer (including 2,714,347 shares of Common Stock issuable upon the
exercise or conversion of outstanding stock options and warrants), which
gives an aggregate consideration of $86,025,427.22 (the "Common Stock
Consideration"), and (ii) multiplying $13.6852, the per share tender offer
price for shares of Preferred Stock, by 1,114,485, the number of currently
outstanding shares of Series A Convertible Preferred Stock sought
in the Offer, which gives an aggregate consideration of $15,251,950.12 for such
Preferred Stock, and adding the amount determined by (i) and (ii) together.
**Calculated at the rate of $92.00 per $1 million.
[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: $8,709 FILING PARTY: Boston Scientific Corporation
FORM OR REGISTRATION NO.: Schedule TO-T DATE FILED: May 30, 2002
[ ] 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 13c-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 (the "Amendment") amends and supplements Items 2,
4, 6, 7, 11 and 12 of the Tender Offer Statement on Schedule TO (the
"Schedule TO") originally filed on May 30, 2002, by Broadway Acquisition
Corp., a Delaware corporation ("Purchaser"), and Boston Scientific
Corporation, a Delaware corporation ("Parent"), relating to the offer by
Purchaser to purchase all of the outstanding shares of common stock, par
value $0.001 per share, including the associated preferred share purchase
rights, and all of the outstanding shares of Series A Convertible Preferred
Stock, par value $0.001 per share (together, the "Shares"), of BEI Medical
Systems Company, Inc., a Delaware corporation ("BEI"), at a purchase price of
$6.8426 per share of Common Stock and $13.6852 per share of Preferred Stock,
net to the seller in cash, upon the terms and subject to the conditions set
forth in the Offer to Purchase dated May 30, 2002 (the "Offer to Purchase"),
and in the related Letter of Transmittal (which, together with the Offer to
Purchase and any amendments or supplements hereto and thereto, collectively
constitute the "Offer"), copies of which were filed as Exhibits (a)(1)(i) and
(ii), respectively, to the Schedule TO. The information set forth in the
Offer to Purchase and the related Letter of Transmittal was incorporated into
the Schedule TO by reference with respect to Items 1-9 and 11 of the Schedule
TO. The Agreement and Plan of Merger, dated as of May 13, 2002 (the "Merger
Agreement"), among Parent, Purchaser and BEI, a copy of which was attached as
Exhibit (d)(i) to the Schedule TO, was incorporated in the Schedule TO by
reference with respect to Items 5 and 11 of the Schedule TO.
ITEM 2. SUBJECT COMPANY INFORMATION.
1. Item 2 of the Schedule TO is hereby amended and supplemented by deleting in
its entirety the second sentence of the first paragraph of Section 7 of the
Offer to Purchase on page 12 thereof, which had previously been incorporated
by reference into the Schedule TO, and replacing it with the following
sentence:
"The accuracy and completeness of such information has not
been independently verified by Parent or Purchaser and Parent
and Purchaser may be unaware of events that have not been
disclosed by BEI that may affect the significance or accuracy
of any such information."
ITEM 4. TERMS OF THE TRANSACTION.
1. Item 4(a) of the Schedule TO is hereby amended and supplemented by deleting
the phrase "the acceptance of Shares for payment pursuant to the Offer" in
the first line of the first paragraph on page 5 of the Offer to Purchase,
which had previously been incorporated by reference into the Schedule TO,
and replacing it with the following:
"the Expiration Date, provided that the Offer has not been
terminated prior to such date pursuant to the terms of the
Offer."
2. Item 4(a) of the Schedule TO is hereby further amended and supplemented by
deleting the reference to the Public Relations Newswire in the second
paragraph on page 5 of the Offer to Purchase which had previously been
incorporated by reference into the Schedule TO.
3. Item 4(a) of the Schedule TO is hereby further amended and supplemented by
adding the following clause to the end of the last sentence of the fourth
paragraph on page 5 of the Offer to Purchase, which had previously been
incorporated by reference into the Schedule TO:
"and such press release shall be filed with the Commission in
compliance with Rule 14d-4(d)(1) under the Exchange Act."
4. Item 4(a) of the Schedule TO is hereby amended and supplemented by deleting
in their entirety the second and third sentence of the first paragraph of
Section 2 of the Offer to Purchase on page 6 thereof, which had previously
been incorporated by reference into the Schedule TO, and replacing them with
the two sentences:
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"Purchaser shall pay for all Shares validly tendered and not
withdrawn promptly following the Expiration Date, provided,
that the Offer has not been terminated pursuant to the terms
of the Offer prior to such date. Notwithstanding the
immediately preceding sentence and subject to applicable rules
and regulations of the Commission and the terms of the Merger
Agreement, Purchaser expressly reserves the right to delay
payment for Shares in the event that governmental approvals
are required to make such payments and such approvals have not
yet been obtained."
5. Item 4(a) of the Schedule TO is hereby further amended and supplemented by
deleting in its entirety the first sentence of the second paragraph of
Section 5 of the Offer to Purchase on page 10 of the Offer to Purchase,
which had previously been incorporated by reference into the Schedule TO.
6. Item 4(a) of the Schedule TO is hereby further amended and supplemented by
deleting the parenthetical "(including any action or inaction by Parent or
any of its affiliates)" in the last paragraph of Section 14 of the Offer to
Purchase on page 32 thereof, which had previously been incorporated by
reference into the Schedule TO, and by adding the following clause at the
end of the first sentence of such paragraph:
"prior to the expiration of the Offer."
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
1. Item 6 of the Schedule TO is hereby amended and supplemented by deleting the
second paragraph in the section of the Offer to Purchase entitled "Appraisal
Rights" on page 28 thereof, which had previously been incorporated by
reference into the Schedule TO, and replacing it with the following
paragraphs:
"Each stockholder electing to demand the appraisal of their
Shares shall deliver to BEI, before the taking of the vote on
the Merger, a written demand for appraisal of such Shares. A
proxy or vote against the merger or consolidation shall not
constitute such a demand. Within 10 days after the effective
date of the Merger, the Surviving Corporation will notify each
stockholder of BEI who has complied with the demand for
appraisal procedures and has not voted in favor of, or
consented to, the Merger as of the date that the Merger has
become effective.
Additionally, within 120 days after the effective date of the
Merger, any stockholder who is entitled to appraisal rights
may file a petition in the Delaware Court of Chancery
demanding a determination of the value of their Shares.
At the hearing on such petition, the Court of Chancery shall
(i) determine the stockholders who have complied with the
provisions of Section 262, and who have become entitled to
appraisal rights, and (ii) appraise the Shares, determining
their fair value exclusive of any element of value arising
from the accomplishment or expectation of the Merger, together
with a fair rate of interest, if any, to be paid upon the
amount determined to be the fair value. In determining such
fair value, the Court is required to take into account all
relevant factors.
The foregoing summary of the rights of dissenting holders of
Shares under Delaware Law does not purport to be a complete
statement of the procedures to be followed by holders of
Shares desiring to exercise any dissenters' rights under
Delaware Law. The preservation and exercise of dissenters'
rights require strict adherence to the applicable provisions
of Delaware Law. The provisions of Section 262 are complex and
technical in nature. Holders desiring to exercise their
appraisal rights may wish to consult counsel, since the
failure to comply strictly with these provisions will result
in the loss of their appraisal rights."
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ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
1. Item 7 of the Schedule TO is hereby amended and supplemented by adding the
following paragraphs after the end of Section 9 of the Offer to Purchase on
page 13 of thereof, which had previously been incorporated by reference into
the Schedule TO:
"Parent has the ability to borrow up to approximately
$1.6 billion pursuant to (i) a $1.0 billion revolving credit
facility entered into by Parent on May 31, 2002 that
terminates in May 2003, and (ii) a $600 million revolving
credit facility entered into by Parent on August 15, 2001,
that terminates in August 2006. These agreements, filed as
exhibits (b)(1) and (b)(2), respectively, to this Schedule TO
and incorporated herein by reference thereto, were entered
into in the ordinary course by Parent and not specifically for
the purpose of the Offer. Each of the revolving credit
facilities is among Parent and a syndicate of lenders, the
composition of which may change from time to time.
Each of the $1.0 billion and the $600 million credit
facility makes available to Parent U.S. dollar denominated
loans, Euro dollar loans, letters of credit, multi-currency
loans and local currency loans. The amounts borrowed under
each facility bears a variable interest rate on (i) U.S.
dollar denominated same day loans, based upon the greater of
the applicable prime rate, a specified base CD rate plus 1%,
or the Federal Funds Effective Rate plus 0.5%, and on
(ii) Eurodollar denominated loans and multi-currency
denominated loans, based on the rate per annum determined by
the credit facility's administrative agent to be the offered
rate for deposits in the applicable currency with a term
comparable to the interest period of such loan plus an
applicable margin based upon Parent's then current credit
rating. Both the $1.0 billion and the $600 million credit
facilities are unsecured and contain customary negative and
affirmative covenants, including financial covenants, conduct
of business covenants, limitations on liens and indebtedness
and limitations on fundamental changes. For more information
regarding the Parent's available borrowings pursuant to the
revolving credit facilities, including any of the non-U.S.
currency loans, please see exhibits (b)(1) and (b)(2) to
this Schedule TO."
ITEM 11. ADDITIONAL INFORMATION.
1. Item 11(a)(i) of the Schedule TO is hereby amended and supplemented by
replacing the first sentence of the first paragraph of the section of the
Offer to Purchase entitled "Stockholders Agreement" on page 25 thereof,
which had previously been incorporated by reference into the Schedule TO,
with the following sentence:
"The following is a summary of certain provisions of the
Stockholders Agreement entered into with each of the following
BEI stockholders: First Chicago Equity Corporation, affiliates
of Diaz Altschul, LLP, the Delta Opportunity Funds,
MedCapital, LLC, Robert P. Khederian, Charles Crocker, Ralph
M. Richart, Jordan Davis and Radius Venture Partners I, L.P.
(collectively, the "Supporting Stockholders")."
2. Item 11(a)(i) of the Schedule TO is hereby amended and supplemented by
deleting the clause ", exercisable under certain limited circumstances," in
the last paragraph entitled "Grant of Option" on page 25 of the Offer to
Purchase, which had previously been incorporated by reference into the
Schedule TO, and inserting the following sentence at the end of such
paragraph:
"Such options granted by each of the Supporting Stockholders
to Purchaser may be exercised by Purchaser only in connection
with or after the initial purchase of
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Shares pursuant to the Offer, and only to the extent that a
number of options are concurrently exercised and a number of
Shares are concurrently purchased in the Offer such that,
after giving effect to such exercises and purchases, the
Purchaser or an affiliate thereof would own Shares and stock
options constituting not less than a majority of the then
outstanding Common Stock (including, without limitation, all
Common Shares issuable upon the conversion of Series A Shares
or upon the exercise or conversion of any options, warrants,
rights or other convertible securities), or such higher
percentage of the Common Shares as may be required to approve
the Merger pursuant to the Restated Certificate of
Incorporation of BEI or applicable law."
ITEM 12. EXHIBITS.
Item 12 of the Schedule TO is hereby amended and supplemented to include the
following:
(b)(1) Credit Agreement among Parent and the several lenders party thereto date
as of May 31, 2002.
(b)(2) Credit Agreement among Parent and the several lenders party thereto,
dated as of August 15, 2001 (incorporated by reference to Exhibit 10.2
of Parent's Quarterly Report on Form 10-Q filed by Parent on November
14, 2001).
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: June 18, 2002
BROADWAY ACQUISITION CORP.
By: /s/ Lawrence J. Knopf
--------------------------------
Name: Lawrence J. Knopf
Title: Vice 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: June 18, 2002
BOSTON SCIENTIFIC CORPORATION
By /s/ Lawrence J. Knopf
------------------------------------------
Name: Lawrence J. Knopf
Title: Assistant General Counsel
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EXHIBIT INDEX
EXHIBIT NO.
(b)(1) Credit Agreement among Parent and the several lenders party thereto date
as of May 31, 2002.
(b)(2) Credit Agreement among Parent and the several lenders party thereto,
dated as of August 15, 2001 (incorporated by reference to Exhibit 10.2
of Parent's Quarterly Report on Form 10-Q filed by Parent on November
14, 2001).