SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(RULE 14d-101)
SOLICITATION/RECOMMENDATION
STATEMENT UNDER SECTION 14(d)(4)
OF THE
SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 3)
AGA MEDICAL HOLDINGS, INC.
(Name of Subject Company)
AGA MEDICAL HOLDINGS, INC.
(Name of Person Filing Statement)
COMMON STOCK, $0.01 PAR VALUE PER SHARE
(Title of Class of Securities)
008368102
(CUSIP Number of Class of Securities)
John R. Barr
President and Chief Executive Officer
AGA Medical Holdings, Inc.
5050 Nathan Lane North
Plymouth, MN 55442
(763) 513-9227
(Name, address and telephone number of person
authorized to receive notices
and communications on behalf of the person filing
statement)
Copies to:
Fredrikson & Byron, P.A.
200 South Sixth Street, Suite 4000
Minneapolis, MN 55402
(612) 492-7000
Attention: David C.
Grorud, Esq.
Ryan C. Brauer, Esq.
o
Check the box if the filing
relates solely to preliminary communications made before the commencement of a
tender offer.
Explanatory
Note:
This
Amendment No. 3 amends and supplements the Solicitation/Recommendation
Statement on Schedule 14D-9 (together with the exhibits thereto and as may be
amended and supplemented from time to time, the “Statement”), initially filed
with the Securities and Exchange Commission (the “SEC”) on October 20,
2010, as amended by Amendment No. 1 filed with the SEC on October 29,
2010 and by Amendment No. 2 filed with the SEC on November 8, 2010
(“Amendment No. 2”) by AGA Medical Holdings, Inc., a Delaware
corporation (the “Company”).
The
Statement relates to the tender offer commenced by Asteroid Subsidiary
Corporation, a Delaware corporation (“Purchaser”) and indirect wholly-owned
subsidiary of St. Jude Medical, Inc., a Minnesota corporation (“Parent”),
disclosed in a Tender Offer Statement on Schedule TO (together with the
exhibits thereto and as may be amended and supplemented from time to time, the
“Schedule TO”), initially filed with the SEC by Purchaser and Parent on October 20,
2010 and amended on October 29, 2010 and November 8, 2010, to
purchase all of the issued and outstanding shares of Company common stock, par
value $0.01 per share (the “Shares”) in exchange for (a) $20.80 in cash,
without interest, or (b) $20.80 in fair market value of shares of common
stock, $.10 par value per share, of Parent, at the election of the
participating stockholder (who may elect Cash Consideration for some Shares and
Stock Consideration for others), and upon the terms and subject to the
conditions set forth in Purchaser’s Prospectus/Offer to Exchange, which is part
of the Registration Statement on Form S-4 (file no. 333-170045), initially
filed by Parent on October 20, 2010, and amended on November 8, 2010,
as well as the related Letter of Election and Transmittal that accompanied the
Prospectus/Offer to Exchange. The Prospectus/Offer to Exchange and the form of
Letter of Election and Transmittal are attached to the Statement as Exhibits
(a)(1)(A) and (a)(1)(B), respectively.
Unless
otherwise indicated, all capitalized terms used herein but not defined shall
have the meanings ascribed to them in Amendment No. 2.
Item 8.
Additional Information.
Item
8 of the Statement is hereby amended and supplemented by restating the first
paragraph in the section entitled “United States and Foreign Antitrust Laws” as
follows:
Under
the HSR Act, the Merger may not be consummated unless certain filings have been
submitted to the Federal Trade Commission (the “FTC”) and the Antitrust
Division of the U.S. Department of Justice (the “Antitrust Division”), and
certain waiting period requirements have been satisfied. As of November 9,
2010, Parent’s request for early termination of the waiting period has been
granted with respect to all filings made under the HSR Act and foreign
antitrust laws, and such waiting periods with respect to the Offer have
therefore ended.
Item
8 of the Statement is further amended and supplemented by adding the following
sentence to the end of the first paragraph under the section entitled “Litigation”:
On
November 10, 2010, the proceedings related to the putative class action filed
in the Hennepin County District Court, Fourth Judicial District, State of
Minnesota were stayed by the Hennepin County District Court, pending resolution
of the Delaware Action (as defined in this Statement), at which time the
parties expect to present a stipulated dismissal with prejudice.
Item
8 of the Statement is further amended and supplemented by replacing the second
paragraph under the section entitled “Litigation” with a subsection entitled “Delaware
Court of Chancery,” which shall include the following paragraphs:
Delaware
Court of Chancery
On
October 28, 2010, a putative stockholder class action complaint was filed
in the Delaware Court of Chancery (the “Delaware Action”). The complaint,
captioned Jennifer Walling v. AGA Medical Holdings, Inc., et al., names as
defendants the members of the Company’s Board of Directors, as well as the
Company, Parent and Purchaser. The complaint alleges that the Company’s
directors breached their fiduciary duties to the Company’s stockholders and
further alleges that the Company and Parent aided and abetted the purported
breaches of fiduciary duty. The complaint alleges, among other things, that in
approving the proposed transaction between the Company and Parent, Company
Board members accepted an inadequate price, failed to make full disclosure, and
utilized unreasonable deal protection devices and that the Company Board
members acted to put their personal interests ahead of the interests of Company
stockholders. The complaint seeks injunctive relief, including to enjoin the
transaction, in addition to unspecified compensatory damages, attorneys’ fees,
other fees and costs and other relief.
On
November 8, 2010, the parties to the Delaware Action entered into a
memorandum of understanding (the “MOU”). The MOU sets forth an agreement
in principle to settle the litigation. On November 8, 2010, the
Company filed Amendment No. 2 to the Statement, which included certain
additional disclosures as set forth in an exhibit to the MOU, and Parent filed
Amendment No. 1 to its Registration Statement on Form S-4 (file no.
333-170045) to include certain parallel additional disclosures. The additional
disclosures include information concerning the background of the negotiations
in connection with the Offer and the Merger and clarifications relating to the
procedures and considerations underlying the financial analyses performed by
Piper Jaffray in connection with the Offer and the Merger. The Company also
agreed to extend the time its stockholders can submit a written demand for
appraisal pursuant to Section 262 of the Delaware General Corporation Law
by an additional fifteen days. The settlement contemplated by the MOU is
subject to several conditions, including the negotiation and execution of a
stipulation of settlement and the approval of the Delaware Court of Chancery.
As a result of the MOU, the Delaware Court of Chancery has removed from its
calendar the hearing on plaintiff’s motion for preliminary injunction,
previously scheduled for November 15, 2010.
The defendants have denied
and continue to deny any wrongdoing or liability with respect to all claims,
events and transactions challenged in the Delaware Action or otherwise. The
defendants have entered into the MOU to eliminate the uncertainty, burden,
risk, expense and distraction of further litigation. For additional
information, on these matters, please refer to the complaint in the Delaware
Action, which is filed as Exhibit (a)(5)(F) hereto and is
incorporated herein by reference, and the MOU, which is filed as Exhibit (a)(5)(H) hereto
and is incorporated herein by reference.
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