Attached files
file | filename |
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8-K - FORM 8-K - AMERICAN MEDICAL SYSTEMS HOLDINGS INC | c64886e8vk.htm |
EX-99.2 - EX-99.2 - AMERICAN MEDICAL SYSTEMS HOLDINGS INC | c64886exv99w2.htm |
EX-99.3 - EX-99.3 - AMERICAN MEDICAL SYSTEMS HOLDINGS INC | c64886exv99w3.htm |
Exhibit 99.1
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American Medical Systems 10700 Bren Road West Minnetonka, MN 55343 USA |
Phone: 952-930-6000 Fax: 952-930-6157 |
May 26, 2011
To:
|
Holders of American Medical Systems Holdings, Inc. | |
3 1/4% Convertible Senior Subordinated Notes due 2036 | ||
and | ||
U.S. Bank National Association | ||
60 Livingston Avenue | ||
St. Paul MN 55107 | ||
Attention: Raymond Haverstock, Corporate Trust Services | ||
Re:
|
Notice of Anticipated Designated Event Effective Date |
Reference is hereby made to the Indenture, dated as of June 27, 2006 (the Original
Indenture), between American Medical Systems Holdings, Inc., a Delaware corporation (the
Company), the Notes Guarantors party thereto, as guarantors (the Guarantors)
and U.S. Bank National Association, as trustee (the Trustee) as amended by the First
Supplemental Indenture (the Supplemental Indenture) thereto dated as of September 6, 2006
between Laserscope and the Trustee (the Original Indenture as so amended, the Indenture),
relating to the Companys 3 1/4% Convertible Senior Subordinated Notes due 2036 (CUSIP No. 02744MAA6)
(the 2036 Notes). Capitalized terms used but not defined in this notice shall have the
meanings ascribed to such terms in the Indenture. Copies of the Original Indenture and the
Supplemental Indenture were included as exhibits to the Companys Current Reports on Form 8-K,
filed with the Securities and Exchange Commission (the SEC) on June 28, 2006 and
September 8, 2006, respectively, which are available on the SECs website at www.sec.gov.
On April 10, 2011, the Company entered into an Agreement and Plan of Merger (the Merger
Agreement) with Endo Pharmaceuticals Holdings Inc., a Delaware corporation (Endo),
and NIKA Merger Sub, Inc., a Delaware corporation and a wholly owned indirect subsidiary of Endo
(Merger Sub). The Company and Endo issued a press release publicly announcing execution
of the Merger Agreement on April 11, 2011, and included a copy of this press release and the Merger
Agreement as exhibits to the Companys Current Report on Form 8-K, filed with the SEC on April 12,
2011. On May 10, 2011, the Company filed a definitive proxy statement with respect to the special
meeting of the Companys stockholders to be held to adopt the Merger Agreement and announced that
the special meeting would be held on June 15, 2011.
Pursuant and subject to the Merger Agreement, the Company has agreed that Merger Sub will be
merged with and into the Company with the Company continuing as the surviving corporation (the
Merger). At the effective time of the Merger, each issued and outstanding share of
common stock of the Company (the Common Stock), other than certain shares held directly
or indirectly by the Company or Endo or by stockholders who properly exercise appraisal rights
under Delaware law, will be converted into and represent solely the right to receive $30.00 in
cash, without interest (the Merger Consideration), and less any applicable withholding
taxes.
NOTICE OF CONVERTIBILITY OF THE NOTES
In accordance with Section 4.01(c) of the Indenture, notice is hereby given that the
consummation of the Merger would constitute a Designated Event under the terms of the Indenture,
and the date of the consummation of the Merger would constitute a Designated Event Effective Date
under the terms of the Indenture. Consummation of the Merger remains subject to customary closing
conditions, including the adoption of the Merger Agreement by the stockholders of the Company.
Subject to the satisfaction of these closing conditions, the Company expects that the Merger will
be completed on or about June 17, 2011 and that such date would then become a Designated Event
Effective Date. Pursuant to Section 4.01(c) of the Indenture, Holders may surrender Securities for
conversion at any time beginning 15 Trading Days before the anticipated Designated Event Effective
Date and until the Trading Day prior to the date of the Designated Event Purchase Date. Based on
the expected date of consummation of the Merger, Holders may surrender Securities for conversion at
any time during the period (the Convertibility Period) beginning May 26, 2011 and until
the Designated Event Purchase Date (which is expected to be no earlier than July 26, 2011 and no
later than August 10, 2011, with the exact date to be determined based on the date that the Company
mails the Designated Event Company Notice):
Securities that are surrendered for conversion during the Convertibility Period will be
converted into the right to receive cash, less any applicable withholding taxes, and, if
applicable, shares of Common Stock in accordance with the Indenture (the Settlement
Amount). However, in accordance with Section 4.10 of the Indenture, any Settlement Amount that
is due from and after the effective time of the Merger will be paid solely in cash, less any
applicable withholding taxes, and will not include any shares of Common Stock. The Conversion Rate
in effect on May 26, 2011 is 51.5318 shares of Common Stock per $1,000 principal amount of
Securities. However, Holders that convert their Securities during the Convertibility Period may in
some circumstances be entitled to an increased Conversion Rate as explained below under the heading
Notice of Anticipated Designated Event and Anticipated Increase in the Conversion Rate.
Holders shall also have the right, at the option of the Holder, to require the Company to
repurchase for cash all or any portion of the Securities of such Holder after consummation of the
Merger in accordance with Section 3.08 of the Indenture.
Holders should be aware that the Settlement Amount depends in part on the Volume Weighted
Average Price of the Common Stock for each Trading Day during the applicable Conversion Reference
Period, which Volume Weighted Average Price prior to the consummation of the Merger may be less
than the Merger Consideration. In accordance with Section 4.10 of the Indenture, after the Merger
is consummated, the Settlement Amount will be calculated based on the amount of cash equal to the
Merger Consideration instead of the Volume Weighted Average Price per share of Common Stock.
Accordingly, if the Merger is completed, the Conversion Value may be greater for the Securities
converted after the consummation of the Merger than for Securities converted prior thereto.
NOTICE OF ANTICIPATED DESIGNATED EVENT AND
ANTICIPATED INCREASE IN THE CONVERSION RATE
ANTICIPATED INCREASE IN THE CONVERSION RATE
Because a Designated Event would occur upon the consummation of the Merger, the Conversion
Rate applicable to the Securities that are surrendered for conversion during the Convertibility
Period will be increased pursuant to Section 4.01(i) of the Indenture if, but only if, the
Merger is consummated. Therefore, a Holder that surrenders Securities for conversion during the
Convertibility Period will not be entitled to this increase in the Conversion Rate if the Merger is
not consummated. Because the Merger is subject to certain conditions, including adoption of the
Merger Agreement by the stockholders of the Company, the Merger may not occur. Accordingly,
Holders that convert Securities before the consummation of the Merger bear the risk that they may
not be entitled to this increased Conversion Rate. Promptly following consummation of the Merger,
the Company will provide a notice of the effective date of the Merger and the amount of the
increase in the Conversion Rate that applies to Securities surrendered for conversion during the
Convertibility Period.
The increase in the Conversion Rate will be determined based on the Designated Event
Effective Date, which is the consummation date of the Merger, and the Stock Price, which is
deemed to be the Merger Consideration. The applicable increases are provided for in Section
4.01(i) of the Indenture. If the Merger is consummated on June 17, 2011 and the Merger
Consideration is $30.00 per share of Common Stock, then in accordance with Section 4.01(i), the
Company currently expects that the increase in the Conversion Rate applicable to Securities
surrendered during the Convertibility Period is expected to be approximately 0.3718 shares of
Common Stock per $1,000 principal amount of Securities to yield a Conversion Rate of approximately
51.9036 shares of Common Stock per $1,000 principal amount of Securities.
Without limiting the foregoing, if the Merger occurs and any Holders fail to convert their
Securities during the Convertibility Period, those Holders will lose their right to convert in
connection with the Merger and thereby lose their right to receive an increase in the Conversion
Rate pursuant to Section 4.01(i) of the Indenture.
Please refer to the Indenture for a more complete description of the increase in the
Conversion Rate applicable in connection with Designated Events.
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CONVERSION PROCEDURES
Procedures for Conversion
A Holder may convert a portion of a 2036 Note, but only if that portion is an integral
multiple of $1,000 in principal amount.
If a Holder converts a 2036 Note, the Company shall pay any transfer, stamp or similar taxes
or duties related to the issue or delivery of shares of Common Stock upon the conversion. However,
the Holder shall pay any such tax which is due because the Holder requests the shares to be issued
in a name other than the Holders name.
As described below, the procedures to be followed by Holders to exercise the conversion
privilege described in this Notice depend on whether their Securities are in certificated form or
are a Global Security.
Securities held in Certificated Form
To convert a 2036 Note that is held in certificated form, the Holder must:
| complete and manually sign a conversion notice (a copy of which is attached hereto or which can be found on the back of the certificate representing the 2036 Note) and deliver such conversion notice to the Conversion Agent; | ||
| surrender such 2036 Note to the Conversion Agent; | ||
| furnish appropriate endorsements and transfer documents if required by a Registrar or a Conversion Agent; | ||
| if required pursuant to Section 4.04 of the Indenture, pay all transfer or similar taxes; and | ||
| if required pursuant to Section 4.02(c) of the Indenture, pay funds equal to the interest payable on the next corresponding Interest Payment Date (see Interest Payments below). |
Global Securities
To convert a beneficial interest in a 2036 Note that is a Global Security, the Holder must, in
addition to complying with any other rules and procedures of The Depository Trust Company (the
Depositary):
| cause there to be completed and delivered an appropriate instruction form for conversion, in accordance with the rules and procedures of the Depositary; | ||
| cause there to be delivered to the Conversion Agent, through the facilities of the Depositary, in accordance with the rules and procedures of the Depositary, the interest in the Global Security to be converted; | ||
| if required pursuant to Section 4.04 of the Indenture, pay all transfer or similar taxes; and |
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| if required pursuant to Section 4.02(c) of the Indenture, pay funds equal to the interest payable on the next corresponding Interest Payment Date (see Interest Payments below). |
Interest Payments
Upon conversion, a Holder will not receive any separate cash payment for accrued and unpaid
interest or additional interest, unless such conversion occurs between a regular record date and
the interest payment date to which it relates. If a Holder surrenders a 2036 Note for conversion
from the close of business on a Regular Record Date to the opening of business on the next
succeeding Interest Payment Date, then, notwithstanding such conversion, the interest payable with
respect to such 2036 Note on such Interest Payment Date will be paid, on such Interest Payment
Date, to the Holder of record of such 2036 Note at the close of business on such Regular Record
Date. However, Securities surrendered for conversion during the period after 5:00 p.m., New York
City time, on any Regular Record Date to 9:00 a.m., New York City time, on the corresponding
Interest Payment Date must be accompanied by payment in funds acceptable to the Company of an
amount equal to the interest payable on such corresponding Interest Payment Date, except that no
such interest payments must be made if:
| such Securities have been surrendered for conversion following the Regular Record Date immediately preceding the final interest payment date of July 1, 2036, or | ||
| the Securities have been called for redemption pursuant to Section 3.01 of the Indenture. |
The 2036 Notes bear interest at an annual rate of 3 1/4%, payable semi-annually, computed on the
basis of a 360-day year of twelve 30-day months. The interest payment dates for the 2036 Notes are
January 1 and July 1 of each year, and the corresponding record dates are the immediately preceding
June 15 and December 15, respectively.
Withdrawal of Designated Event Purchase Notice
If a Holder has delivered a Designated Event Purchase Notice in accordance with the Indenture
electing to exercise the Holders right to require the Company to repurchase the Holders 2036
Notes, then the Holder will not be permitted to convert those 2036 Notes unless the Holder duly
withdraws that Designated Event Purchase Notice in accordance with the Indenture.
Backup Withholding and Withholding Tax: Internal Revenue Forms
TO COMPLY WITH INTERNAL REVENUE SERVICE CIRCULAR 230, YOU ARE HEREBY NOTIFIED THAT: (A) ANY
DISCUSSION OF U.S. FEDERAL TAX ISSUES CONTAINED OR REFERRED TO IN THIS NOTICE IS NOT INTENDED OR
WRITTEN TO BE USED, AND CANNOT BE USED BY YOU, FOR THE PURPOSES OF AVOIDING PENALTIES THAT MAY BE
IMPOSED ON YOU UNDER THE INTERNAL REVENUE CODE; (B) SUCH DISCUSSION IS BEING USED IN CONNECTION
WITH THE PROVISION OF NOTICE BY THE COMPANY; AND (C) YOU SHOULD SEEK ADVICE BASED ON YOUR
PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.
To avoid the application of a 28% backup withholding tax on any payments made to certain
converting Holders (or other payees), each converting Holder (or other payee) should complete and
provide an Internal Revenue Service (IRS) Form W-9 (in the case of a U.S. person or a
resident alien) or an IRS Form W-8BEN or other appropriate IRS Form W-8 (in the case of a foreign
holder).
5
Each U.S. person (or U.S. resident alien), when completing an IRS Form W-9, is required to
provide the Holders correct taxpayer identification number (TIN) (generally the Holders
Social Security or federal employer identification number), along with certain other information,
and to certify under penalties of perjury that the Holder is a U.S. person (or U.S. resident
alien), that such TIN is correct (or that such holder is awaiting a TIN) and that the U.S. person
(or U.S. resident alien) is not subject to backup withholding. Failure to provide the correct
information on IRS Form W-9 or an adequate basis for an exemption may subject the converting U.S.
person (or U.S. resident alien) to a $50 penalty imposed by the IRS and backup withholding at a
rate of 28% of the gross proceeds received pursuant to the conversion. If withholding results in an
overpayment of taxes, a refund or credit may be obtained, provided that the required information is
timely furnished to the IRS. An IRS Form W-9, along with the accompanying instructions, has been
included with this Notice for completion by Holders that are U.S. persons (or U.S. resident
aliens).
Foreign Holders should not complete an IRS Form W-9. Instead, to avoid withholding and/or
backup withholding, each foreign Holder should complete an IRS Form W-8BEN (or other appropriate
type of IRS Form W-8). In the case of foreign Holders for which IRS Form W-8BEN is the appropriate
form, IRS Form W-8BEN requires the foreign Holders to provide such Holders name and address, along
with certain other information, and to certify, under penalties of perjury, that such Holder is not
a U.S. person. Foreign Holders may obtain an IRS Form W-8BEN and instructions (or other appropriate
IRS Form W-8) from the IRSs website (http://www.irs.gov).
Failure to include a properly completed IRS Form W-9 or applicable IRS Form W-8 may result in
the application of U.S. backup withholding or withholding tax.
The Conversion Agent is: U.S. Bank National Association Corporate Trust Services
The Trustee is acting as the Registrar and Conversion Agent, and the address and telephone
number of the Trustee are as follows:
U.S. Bank National Association
60 Livingston Avenue
St. Paul MN 55107
Attention: Lori Buckles, Corporate Trust Services (American Medical
Systems Holdings, Inc. 31/4% Convertible Senior Subordinated Notes due 2036)
Phone: (651) 495-3520
Facsimile: (651) 495-8158
60 Livingston Avenue
St. Paul MN 55107
Attention: Lori Buckles, Corporate Trust Services (American Medical
Systems Holdings, Inc. 31/4% Convertible Senior Subordinated Notes due 2036)
Phone: (651) 495-3520
Facsimile: (651) 495-8158
Please refer to the Indenture for a more complete description of the convertibility of the
2036 Notes, the consideration due upon conversion and when such consideration must be paid by the
Company.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
The Company files annual, quarterly and current reports, proxy statements and other
information with the SEC. Any document the Company files with the SEC may be read and copied at
the SECs public reference room located at 100 F Street, N.E., Washington, D.C., 20549. The
Companys SEC filings also are available to the public at the SECs website at http://www.sec.gov.
The documents listed below (as they may be amended from time to time) contain important
information about the Company and the 2036 Notes, and Holders should review these documents
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carefully before determining whether or not to surrender Securities for purchase by the
Company or to convert their Securities as described in this notice:
| the Companys annual report on Form 10-K for the year ended January 1, 2011, filed with the SEC on February 25, 2011 (file no. 000-30733); | ||
| the Companys quarterly report on Form 10-Q for the quarter ended April 2, 2011, filed with the SEC on May 12, 2011 (file no. 000-30733); | ||
| the Companys current reports on Form 8-K, filed with the SEC on April 12, 2011, April 18, 2011 and May 3, 2011, (file no. 000-30733); | ||
| the description of the Common Stock and related rights set forth in the Companys registration statements on Form 8-A filed with the SEC on May 31, 2000 and any documents subsequently filed that amend such description (file no. 000-30733); and | ||
| the Original Indenture filed as an exhibit to the Companys current report on Form 8-K, filed with the SEC on June 28, 2006 (file no. 000-30733); | ||
| the Supplemental Indenture filed as an exhibit to the Companys current report on Form 8-K, filed with the SEC on September 8, 2006 (file no. 000-30733); and | ||
| future filings the Company makes with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, on or after the date of this notice. |
For more information about the Merger, Holders should review the Definitive Proxy Statement on
Schedule 14A filed by the Company with the SEC on May 10, 2011. A copy of the Merger Agreement is
included with the Schedule 14A and is also filed as Exhibit 2.1 to the Companys Current Report on
Form 8-K filed with the SEC on April 12, 2011.
In the event of conflicting information in the documents referred to above, the information in
the latest filed documents should be considered correct. Holders should not assume that the
information in this notice or any of the documents referred to above is accurate as of any date
other than the date of the applicable document.
AMERICAN MEDICAL SYSTEMS HOLDINGS, INC.
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FORM OF CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the box: o
To convert only part of this Security, state the principal amount to be converted (must be $1,000
or an integral multiple of $1,000): $ .
If you want the stock certificate made out in another persons name, fill in the form below:
(Insert assignees social security or tax I.D. number)
(Print or type assignees name, address and zip code)
Your Signature | ||||
Date: |
||||
(Sign exactly as your name appears on the other side of this Security) | ||||
* Signature guaranteed by: | ||||
By: |
* | The signature must be guaranteed by an institution which is a member of one of the following recognized signature guaranty programs: (i) the Securities Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty program acceptable to the Trustee. |
METHOD OF DELIVERY
o | CHECK HERE IF THE SECURITIES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE CONVERSION AGENT WITH DEPOSITARY AND COMPLETE THE FOLLOWING: |
Name of Surrendering Institution:
DTC Account Number:
Contact Person:
Address:
Telephone (with international dialing code):
Facsimile (with international dialing code):
Date Surrendered:
Transaction Code Number:
SPECIAL ISSUANCE INSTRUCTIONS
To be completed ONLY if payments are to be made to Depositary for the account of someone other
than the person(s) whose signature appear(s) within this conversion notice.
Make payment to:
(DTC Account Number)
(Account Party)