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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Rule 14d-100)
Tender Offer Statement Under Section 14(d)(1)
or Section 13(e)(1) of the Securities Exchange Act of 1934
(Amendment No. 1)
VYSIS, INC.
(Name of Subject Company (Issuer))
RAINBOW ACQUISITION CORP.
a wholly owned subsidiary of
ABBOTT LABORATORIES
(Names of Filing Persons (Offerors))
COMMON STOCK, PAR VALUE $.001 PER SHARE
(Title of Class of Securities)
928961-10-1
(CUSIP Number of Class of Securities)
Jose M. de Lasa
Senior Vice President, Secretary and General Counsel
Abbott Laboratories
100 Abbott Park Road
Abbott Park, Illinois 60064-6400
(847) 937-6100
(Name, address and telephone number of
person authorized to receive notices
and communications on behalf of filing persons)
With a copy to:
Charles W. Mulaney, Jr., Esq.
Skadden, Arps, Slate, Meagher & Flom (Illinois)
333 West Wacker Drive
Chicago, Illinois 60606
Telephone: (312) 407-0700
CALCULATION OF FILING FEE
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Transaction Valuation* Amount of Filing Fee
$375,598,258.50 $75,119.66
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* Estimated for purposes of calculating the filing fee only. The filing
fee calculation assumes the purchase of 10,291,789 outstanding shares
of common stock of Vysis, Inc. at a purchase price of $30.50 per
share. The transaction value also includes the offer price of $30.50
per share, multiplied by 2,002,908, the estimated number of options
outstanding under Vysis Inc's employee stock option plans which are or
will be, as a result of the transaction, exercisable for shares of
common stock of Vysis, Inc. The amount of the filing fee calculated in
accordance with Rule 0-11 of the Securities Exchange Act of 1934, as
amended, equals 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: $75,119.66 Filing party: Abbott Laboratories and Rainbow Acquisition Corp.
Form or Registration No.: Schedule TO Date Filed: October 31, 2001
[_] 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.
[_] 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: [_]
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This Amendment No. 1 (the "Amendment") amends and supplements the Tender
Offer Statement on Schedule TO filed with the Securities and Exchange
Commission (the "Commission") on October 31, 2001 (the "Schedule TO") by
Rainbow Acquisition Corp., a Delaware corporation (the "Purchaser") and a
wholly owned subsidiary of Abbott Laboratories, an Illinois corporation
("Abbott"). The Schedule TO relates to the offer by the Purchaser to
purchase all outstanding shares of common stock, par value $.001 per share
(the "Shares"), of Vysis, Inc., a Delaware corporation (the "Company"), at
$30.50 per Share net to the seller in cash, upon the terms and conditions
set forth in its Offer to Purchase dated October 31, 2001 (the "Offer to
Purchase") and in the related Letter of Transmittal (which, together with
the Offer to Purchase and any amendments or supplements thereto,
collectively constitute the "Offer"). Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such terms in
the Offer to Purchase or in the Schedule TO.
ITEMS 4 and 11
Items 4 and 11 of the Schedule TO are hereby amended and supplemented
to include the following information:
Section 1. Terms of the Offer
The first full paragraph of this section on page 5 of the Offer
to Purchase is amended and restated as follows:
"Subject to the applicable rules and regulations of the SEC and
the provisions of the Merger Agreement, the Purchaser expressly reserves
the right, at any time on or after the date of the Merger Agreement and
before the Expiration Date (i) to terminate or amend the Offer, with the
consent of the Company, if any of the conditions set forth in Section 15--
"Certain Conditions of the Offer" have not been satisfied or (ii) to waive
any condition to the Offer (other than the Minimum Condition), in each case
by giving oral or written notice of such extension, termination, waiver or
amendment to the Depositary and by making a public announcement thereof."
ITEM 4
Item 4 of the Schedule TO is hereby amended and supplemented to
include the following information:
Section 2. Acceptance for Payment and Payment for Shares
The first paragraph of this section on page 6 of the Offer to
Purchase is amended and restated as follows:
"Upon the terms and subject to the conditions of the Offer
(including, if the Offer is extended or amended, the terms and conditions
of any such extension or amendment) and the satisfaction or waiver of all
the conditions to the Offer set forth in Section 15--"Certain Conditions of
the Offer," the Purchaser will accept for payment and will pay for all
Shares validly tendered prior to the Expiration Date and not properly
withdrawn promptly after the Expiration Date. Subject to the terms of the
Merger Agreement and compliance with Rule 14e-1(c) under the Exchange Act,
the Purchaser expressly reserves the right to delay payment for Shares
pending receipt of regulatory or governmental approvals, including, without
limitation, the HSR Act and any applicable pre-merger notification laws or
regulations of foreign jurisdictions. See Section 16--"Certain Legal
Matters; Regulatory Approvals." If Purchaser decides to include a
Subsequent Offering Period, Purchaser will accept for payment, and promptly
pay for all validly tendered Shares as they are received during the
Subsequent Offering Period. See Section 1--"Terms of the Offer.""
The fifth paragraph of this section on page 6 of the Offer to
Purchase is amended and restated as follows:
"If any tendered Shares are not accepted for payment for any
reason pursuant to the terms and conditions of the Offer, or if Share
Certificates are submitted evidencing more Shares than are tendered, Share
Certificates evidencing unpurchased Shares will be returned, without
expense to the tendering stockholder (or, in the case of Shares tendered by
book-entry transfer into the Depositary's account at the Book-Entry
Transfer Facility pursuant to the procedure set forth in Section
3--"Procedures for Accepting the Offer and Tendering Shares," such Shares
will be credited to an account maintained at the Book-Entry Transfer
Facility), promptly following the expiration or termination of the Offer."
Section 5. Certain United States Federal Income Tax Consequences
The first paragraph of this section on page 10 of the Offer to
Purchase is amended and restated as follows:
"The following is a summary of certain United States federal
income tax consequences of the Offer and the Merger to stockholders of the
Company whose Shares are tendered and accepted for payment pursuant to the
Offer or whose Shares are converted into the right to receive cash in the
Merger. The discussion does not purport to consider all aspects of United
States federal income taxation that might be relevant to stockholders of
the Company. The discussion is based on current provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), existing, proposed and
temporary regulations thereunder and administrative and judicial
interpretations thereof, all of which are subject to change, possibly with
a retroactive effect. The discussion applies only to stockholders of the
Company in whose hands Shares are capital assets within the meaning of
Section 1221 of the Code. This discussion does not apply to Shares received
pursuant to the exercise of employee stock options or otherwise as
compensation, or to certain types of stockholders (such as insurance
companies, tax-exempt organizations, financial institutions and
broker-dealers) who may be subject to special rules. This discussion does
not discuss the United States federal income tax consequences to any
stockholder of the Company who, for United States federal income tax
purposes, is a nonresident alien individual, a foreign corporation, a
foreign partnership or a foreign estate or trust, nor does it consider the
effect of any foreign, state or local tax laws."
ITEMS 4, 5, 6 and 8
Items 4, 5, 6 and 8 of the Schedule TO are hereby amended and
supplemented to include the following information:
Section 10. Background of the Offer; Past Contacts or Negotiations
with the Company
The ninth full paragraph of this section on page 16 of the Offer
to Purchase is amended and restated as follows:
"On October 15, the Company Board met to evaluate Abbott's
proposal to acquire the Company. At this meeting, the Company Board
rejected the Abbott proposal, and, on October 16, the Company's financial
advisor communicated that decision to Abbott's financial advisor. The
Company's financial advisor did not make a counter-proposal to Abbott, but
indicated that the Company would be willing to review additional proposals
from Abbott if they involved a higher offering price."
The tenth full paragraph of this section on page 16 of the Offer
to Purchase is amended and restated as follows:
"On October 17, Abbott submitted a revised proposal to acquire
all of the Company's shares for $30.00 per share in cash or, if BP would
indemnify Abbott from any liability due by the Company to any to any
investment bank or financial advisor (other than the Company's financial
advisor and Abbott's financial advisor) as a result of the transaction,
$30.50 per share in cash, in each case conditioned upon the same items
included in Abbott's October 12 letter."
The first paragraph of this section on page 17 of the Offer to
Purchase is amended and restated as follows:
"From October 20 through October 23, representatives of the
Company and Abbott and their respective legal counsel negotiated specific
terms and provisions of the proposed transaction agreements, including the
conditions to closing of the offer, the interim covenants, the
non-solicitation provisions, the provisions regarding regulatory approvals
and the circumstances under with the parties could terminate the merger
agreement. Concurrently with such negotiations, representatives of BP and
Abbott and their respective legal counsel negotiated the terms of the
stockholder agreement to be entered into among Abbott, the Purchaser, ATC
and BP. During these negotiations between BP and Abbott, BP representatives
stated that BP would be willing to indemnify Abbott from any liability due
by the Company to any investment bank or financial advisor (other than the
Company's financial advisor and Abbott's financial advisor) as a result of
the transaction and, as a result, Abbott agreed that it would be willing to
acquire all of the Company's shares for $30.50 per share in cash."
ITEM 11
Item 11 of the Schedule TO is hereby amended and supplemented to
include the following information:
Section 16. Certain Legal Matters; Regulatory Approvals
The fourth full paragraph of this section on page 33 of the
Offer to Purchase is amended and restated as follows:
"Pursuant to the requirements of the HSR Act, on October 31,
2001, Abbott, on behalf of itself and the Purchaser, filed a Premerger
Notification and Report Form with respect to the Offer and Merger with the
FTC. Abbott was unable to make any filing on that date with the Antitrust
Division because, due to concerns raised by the spread of anthrax through
the U.S. mail, the Department of Justice halted the receipt of any mail,
packages or HSR filings. Following discussions with the Department of
Justice, Abbott was allowed to make an electronic filing with the Antitrust
Division on November 6, 2001. Accordingly, the waiting period applicable to
the purchase of Shares pursuant to the Offer did not begin until November
6. The waiting period is scheduled to expire at 11:59 p.m., New York City
time, on November 21, 2001, unless such waiting period is earlier
terminated by the FTC and the Antitrust Division or extended by a request
from the FTC or the Antitrust Division for additional information or
documentary material. If either the FTC or the Antitrust Division were to
request additional information or documentary material prior to the
expiration of the waiting period, the waiting period would be extended
until 11:59 p.m., New York City time, on the tenth day after substantial
compliance by the Purchaser with such request. Thereafter, such waiting
period can be extended only by court order."
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.
ABBOTT LABORATORIES
By: /s/ RICHARD A. GONZALEZ
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Name: Richard A. Gonzalez
Title: Executive Vice President,
Medical Products
RAINBOW ACQUISITION CORP.
By: /s/ THOMAS D. BROWN
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Name: Thomas D. Brown
Title: President
Dated: November 13, 2001
