UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
SCHEDULE 14D-9
(Rule 14d-101)
SOLICITATION/RECOMMENDATION STATEMENT UNDER
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
ev3 Inc.
(Name of Subject Company)
ev3 Inc.
(Names of Person(s) Filing Statement)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
26928A200
(CUSIP Number of Class of Securities)
Kevin M. Klemz
Senior Vice President, Secretary and Chief Legal Officer
ev3 Inc.
3033 Campus Drive
Plymouth, Minnesota 55441
(763) 398-7000
(Name, Address and Telephone Number of Person Authorized to Receive
Notice and Communications on Behalf of the Person(s) Filing Statement)
Copies To:
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Bruce A. Machmeier, Esq.
Amy E. Culbert, Esq.
Patrick J. Pazderka, Esq.
Oppenheimer Wolff & Donnelly LLP
45 South Seventh Street, Suite 3300
Minneapolis, Minnesota 55402-1509
(612) 607-7000
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Steven J. Gartner, Esq.
Adam M. Turteltaub, Esq.
Willkie Farr & Gallagher LLP
787 Seventh Street
New York, New York 10019
(212) 728-8000
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Check the box if the filing relates solely to preliminary communications made before
the commencement of a tender offer.
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TABLE OF CONTENTS
This Amendment No. 1 (the “Amendment”) to Schedule 14D-9 amends and supplements the
Schedule 14D-9 filed with the Securities and Exchange Commission on June 11, 2010 (as amended from
time to time, the “Schedule 14D-9”) by ev3 Inc., a Delaware corporation (“ev3”). The Schedule
14D-9 relates to the cash tender offer by COV Delaware Corporation (“Purchaser”), a Delaware
corporation and wholly-owned subsidiary of Covidien Group S.a.r.l., a Luxembourg company
(“Parent”), to purchase all outstanding shares of ev3’s common stock, par value $0.01 per share
(the “Shares”) at a purchase price of $22.50 per Share, in cash, without interest, subject to any
withholding of any federal, state, local and foreign taxes, and other assessments of any nature
whatsoever imposed by a taxing authority (the “Offer Price”). The tender offer is disclosed in the
Tender Offer Statement on Schedule TO (together with the exhibits thereto and as amended and
supplemented from time to time, the “Schedule TO”), filed by Purchaser and Parent with the
Securities and Exchange Commission (the “SEC”) on June 11, 2010, and is subject to the terms and
conditions set forth in the Offer to Purchase dated June 11, 2010 (and as amended and supplemented
from time to time, the “Offer to Purchase”), and in the related Letter of Transmittal (the “Letter
of Transmittal” which together with the Offer to Purchase constitutes the “Offer”). Copies of the
Offer to Purchase and Letter of Transmittal are filed as Exhibits (a)(1)(A) and (a)(1)(B) to the
Schedule 14D-9, respectively.
The information in the Schedule 14D-9 is incorporated into this Amendment by reference to all
of the applicable items in the Schedule 14D-9, except that such information is hereby amended and
supplemented to the extent specifically provided herein.
Item 8. Additional Information
Item 8 (“Additional Information”) of the Schedule 14D-9 is hereby amended and supplemented
under the heading “Litigation” to include Court File No. 27-CV-10-14045 as the court file number
for
Crystal Young v. ev3 Inc., et al.
Item 8 of the Schedule 14D-9 is also hereby amended and supplemented by inserting the
following paragraphs after the last paragraph under the heading “Litigation”:
“On June 9, 2010, a purported stockholder of ev3 filed a purported class action Complaint in
the District Court for the State of Minnesota, Hennepin County (the “Bergland Complaint”). The
action,
Alan Bergland v. ev3 Inc., et al.
, Court File No. 27-CV-10-14554, against ev3 and the ev3
Board (the “Bergland Action”), is pending. The Bergland Action purports to be brought individually
and on behalf of the public stockholders of ev3 and alleges claims for breach of fiduciary duties
against the ev3 Board in connection with the transactions contemplated by the Merger Agreement.
The Bergland Action seeks preliminary and permanent injunctive relief, enjoining ev3 and the ev3
Board and their agents and representatives from consummating the Offer and the Merger until they
have cured their alleged breaches of fiduciary duty, rescission of the Offer and Merger and
rescissionary damages, and an accounting by the defendants for profits and any special benefits
resulting for alleged breaches of their fiduciary duties. The foregoing summary is qualified in
its entirety by reference to the Bergland Complaint, which is filed as Exhibit (a)(5)(F) hereto and
is incorporated herein by reference.
On June 15, 2010, a purported stockholder of ev3 filed a purported class action Complaint in
the District Court for the State of Minnesota, Hennepin County (the “Keilty Complaint”). The
action,
Kevin J. Keilty v. ev3 Inc., et al.
, against ev3, the ev3
Board and Covidien plc (the “Keilty Action”), is pending. The Keilty Action purports to be brought
individually and on behalf of the public stockholders of ev3 and alleges claims for breach of
fiduciary duties against the ev3 Board in connection with the transactions contemplated by the
Merger Agreement and that Covidien plc aided and abetted the ev3 Board in the alleged breach of the
directors’ fiduciary duties to ev3’s stockholders. The Keilty Action seeks preliminary and
permanent injunctive relief, enjoining ev3 and the ev3 Board and
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their agents and representatives from consummating the Offer and the Merger, rescission of the
Offer and Merger and rescissionary damages, and an accounting by the defendants for damages to
plaintiff because of the wrongs alleged in the Keilty Complaint. A
court file number has not yet been assigned. The foregoing summary is
qualified in its entirety by reference to the Keilty Complaint, which is filed as Exhibit (a)(5)(G)
hereto and is incorporated herein by reference.
On June 18, 2010, a purported stockholder of ev3 filed a purported class action complaint in
the Court of Chancery of the State of Delaware (the “Olson Complaint”). The action,
Joanne Olson
v. ev3 Inc., et al.
, against ev3, the ev3 Board and Purchaser (the
“Olson Action”), is pending. The Olson Action, which purports to be brought individually and on
behalf of the public stockholders of ev3, claims that the members of the ev3 Board breached their
fiduciary duties to ev3’s stockholders both in entering into the Merger Agreement and the
transactions contemplated thereby, including the Top-Up Option, and by providing inadequate
disclosure regarding the Merger Agreement and such transactions and that Purchaser aided and
abetted the ev3 Board in the alleged breach of the directors’ fiduciary duties to ev3’s
stockholders. The Olson Action seeks, among other things, an injunction prohibiting the
consummation of the Offer, the exercise of the Top-Up Option, the issuance of the Top-Up Shares,
the acceptance of a promissory note as consideration for the Top-Up Shares and the consummation of
the Merger and declaring that the Top-Up Option is invalid and void, may not be validly exercised
under Delaware law and improperly impairs the statutory appraisal rights of ev3 stockholders. A
court file number has not yet been assigned. The
foregoing summary is qualified in its entirety by reference to the Olson Complaint, which is filed
as Exhibit (a)(5)(H) hereto and is incorporated herein by reference.”
Item 9. Exhibits.
Item 9 (“Exhibits”) of the Schedule 14D-9 is hereby amended and supplemented by inserting the
following exhibit thereto:
“(a)(5)(F) Complaint filed by Alan Bergland, individually and on behalf of all others
similarly situated, on June 9, 2010, in the District Court of the State of Minnesota, Hennepin
County.
(a)(5)(G) Complaint filed by Kevin J. Keilty, individually and on behalf of all others
similarly situated, on June 15, 2010, in the District Court of the State of Minnesota, Hennepin
County.
(a)(5)(H) Complaint filed by Joanne Olson, individually and on behalf of all others similarly
situated, on June 18, 2010, in the Court of Chancery of the State of Delaware.”
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SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the information set
forth in this Schedule 14D-9 is true, complete and correct.
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ev3 Inc.
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By:
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/s/ Kevin M. Klemz
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Kevin M. Klemz
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Senior Vice President, Secretary and
Chief Legal Officer
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Dated: June 21, 2010
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