MDZ Mds

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

SCHEDULE TO

Amendment No. 5

TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) or 13(e)(1) OF
THE SECURITIES EXCHANGE ACT OF 1934

 

MDS INC.

(Name of Subject Corporation (issuer))

MDS Inc. (Issuer)

(Name of Filing Persons (identify status as offeror, issuer or other person))

Common Shares, No Par Value

(Title of Class of Securities)

55269P302

(CUSIP Number of Class of Securities)

MDS Inc.
Attention: Chief Financial Officer
2810 Matheson Boulevard East
Suite 500, West Tower
Mississauga, Ontario, Canada, L4W 4X7
(905) 267-4222

(Name, address and telephone number of person authorized to
receive notices and communications on behalf of filing person)

Copy to:

Christopher W. Morgan, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
222 Bay Street, Suite 1750
Toronto, Ontario M5K 1J5
(416) 777-4700

CALCULATION OF FILING FEE

	Transaction Valuation (1)			Amount of Filing Fee (2)
	$450,000,000			$32,085

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:		$32,085
		Form or Registration No.:		Schedule TO
		Filing Party:		MDS Inc.
		Date Filed:		February 19, 2010
o		Check the box if 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:

o		third-party tender offer subject to Rule 14d-1.
þ		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:  þ

 

 

This Amendment No. 5 amends and supplements the Tender Offer Statement on Schedule TO initially filed on February 19, 2010 (the “Schedule TO”), as amended and supplemented by Amendment No. 1 to the Schedule TO filed on February 24, 2010 (“Amendment No. 1”), Amendment No. 2 to the Schedule TO filed on March 5, 2010 (“Amendment No. 2”), Amendment No. 3 to the Schedule TO filed on March 10, 2010 (“Amendment No. 3”) and Amendment No. 4 to the Schedule TO filed on March 30, 2010 (“Amendment No. 4”), in connection with the offer by MDS Inc., a Canadian corporation (“MDS” or the “Corporation”), to the holders of its common shares, without par value (the “Shares”), to purchase up to an aggregate amount of US$450,000,000 of Shares at a price of not more than US$9.30 per Share and not less than US$8.10 per Share in cash, without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated February 19, 2010 (the “Offer to Purchase”), the accompanying Issuer Bid Circular (the “Circular”), and the related Letter of Transmittal, Employee Share Ownership Plan Special Transaction Form, Deferred Profit Sharing Plan Special Transaction Form and Group Retirement Savings Plan Special Transaction Form which, collectively, as amended or supplemented from time to time, constitute the “Tender Offer.” This Amendment No. 5 to the Tender Offer Statement on Schedule TO is intended to satisfy the reporting requirements of Rule 13e-4(c)(2) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

All information in the Offer to Purchase and the Circular, which was previously filed as Exhibit (a)(1)(A) to the Schedule TO, and the information in Amendment No. 1, Amendment No. 2, Amendment No. 3 and Amendment No. 4 is incorporated herein by reference in response to all the items of this Schedule TO, except that such information is hereby amended and supplemented to the extent specifically provided herein.

Item 11.		Additional Information

On March 30, 2010, the Corporation issued a press release announcing the preliminary results of the Tender Offer, which expired at 5:00 p.m., Eastern time, on March 29, 2010. A copy of the press release was filed as Exhibit (a)(5)(C) to Amendment No. 4. Under the Tender Offer, MDS acquired 52,941,176 Shares at a purchase price of US$8.50 per Share.

For Canadian tax purposes, a deemed dividend of C$3.33 per Share arises on the Tender Offer. For the enhanced dividend tax credit under subsection 89(14) of the Income Tax Act (Canada) and for any corresponding provincial legislation, MDS has designated the entire deemed dividend arising on each Share purchased under the Tender Offer as an “eligible dividend”, being an amount equal to C$3.33.

For purposes of subsection 191(4) of the Income Tax Act (Canada), the specified amount in respect of each Share purchased under the Tender Offer is C$8.19.

Item 12.		Exhibits.

Exhibit No.		Description
(a)(1)(A)*		Offer to Purchase, dated February 19, 2010 and the accompanying Issuer Bid Circular.
(a)(1)(B)*		Letter of Transmittal.
(a)(1)(C)*		Notice of Guaranteed Delivery.
(a)(1)(D)*		Employee Share Ownership Plan Special Transaction Form.
(a)(1)(E)*		Deferred Profit Sharing Plan Special Transaction Form.
(a)(1)(F)*		Group Retirement Savings Plan Special Transaction Form.
(a)(2)		None.
(a)(3)		Not applicable.
(a)(4)		Not applicable.
(a)(5)(A)*		Press release announcing commencement of Tender Offer, dated February 19, 2010.
(a)(5)(B)**		MDS Inc. Substantial Issuer Bid — Amended Employee Q&A.
(a)(5)(C)***		Press release announcing Preliminary Results of the Tender Offer, dated March 30, 2010.
(b)		None.

Exhibit No.		Description
(d)(1)		MDS Inc. Stock Option Plan (incorporated by reference from the Corporation’s Report on Form 6-K, furnished to the Securities and Exchange Commission on March 14, 2007).
(d)(2)*		MDS Inc. Amended and Restated Employee Share Ownership Plan.
(d)(3)*		MDS Inc. Amended and Restated Stock Dividend and Share Purchase Plan.
(d)(4)*		MDS Inc. Deferred Profit Sharing Plan.
(d)(5)*		MDS Inc. Group Registered Retirement Savings Plan.
(g)		None.
(h)		None.

Item 13.		Information Required by Schedule 13E-3.

Not applicable.

SIGNATURE

     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.

EXHIBIT INDEX

Exhibit No.		Description
(a)(1)(A)*		Offer to Purchase, dated February 19, 2010 and the accompanying Issuer Bid Circular.
(a)(1)(B)*		Letter of Transmittal.
(a)(1)(C)*		Notice of Guaranteed Delivery.
(a)(1)(D)*		Employee Share Ownership Plan Special Transaction Form.
(a)(1)(E)*		Deferred Profit Sharing Plan Special Transaction Form.
(a)(1)(F)*		Group Retirement Savings Plan Special Transaction Form.
(a)(2)		None.
(a)(3)		Not applicable.
(a)(4)		Not applicable.
(a)(5)(A)*		Press release announcing commencement of Tender Offer, dated February 19, 2010.
(a)(5)(B)**		MDS Inc. Substantial Issuer Bid — Amended Employee Q&A.
(a)(5)(C)***		Press release announcing Preliminary Results of the Tender Offer, dated March 30, 2010.
(b)		None.
(d)(1)		MDS Inc. Stock Option Plan (incorporated by reference from the Corporation’s Report on Form 6-K, furnished to the Securities and Exchange Commission on March 14, 2007).
(d)(2)*		MDS Inc. Amended and Restated Employee Share Ownership Plan.
(d)(3)*		MDS Inc. Amended and Restated Stock Dividend and Share Purchase Plan.
(d)(4)*		MDS Inc. Deferred Profit Sharing Plan.
(d)(5)*		MDS Inc. Group Registered Retirement Savings Plan.
(g)		None.
(h)		None.

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