SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 4)
ORTHOVITA, INC.
(Name of Subject Company)
OWL ACQUISITION CORPORATION
(Offeror)
a wholly owned indirect subsidiary of
STRYKER CORPORATION
(Parent of Offeror)
COMMON STOCK, $0.01 PAR VALUE PER SHARE
(Title of Class of Securities)
68750U102
(CUSIP Number of Class of Securities)
Curtis E. Hall
Vice President, General Counsel and Secretary
Stryker Corporation
2825 Airview Boulevard
Kalamazoo, Michigan 49002
(269) 389-2600
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Charles W. Mulaney, Jr.
Richard C. Witzel, Jr.
Skadden, Arps, Slate, Meagher & Flom LLP
155 N. Wacker Drive
Chicago, IL 60606
(312) 407-0700
CALCULATION OF FILING FEE
| Transaction Valuation(1) | Amount of Filing Fee(2) | |
| $317,461,377 |
$36,858 | |
| (1) | Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated by multiplying the offer price of $3.85 per share of common stock of Orthovita, Inc. (“Orthovita”), par value $0.01 per share, (“Shares”) by 77,028,457 Shares, which is the number of Shares outstanding as of May 13, 2011. The transaction value also includes (i) the excess, if any, of the offer price of $3.85 per Share over the exercise price per share of each outstanding option to acquire Shares from Orthovita with an exercise price less than $3.85 per share, multiplied by the number of outstanding Shares covered by such option, and (ii) the excess, if any, of the offer price of $3.85 per Share over the exercise price per share of each outstanding warrant to acquire Shares from Orthovita, multiplied by the number of outstanding Shares covered by such warrant. As of May 13, 2011, there were 10,114,152 Shares subject to outstanding options to acquire Shares from Orthovita and outstanding warrants to purchase 1,100,000 Shares. |
| (2) | Pursuant to Section 14(g) of the Securities Exchange Act of 1934, SEC Release No. 34-59850 and SEC press release number 2010-255 (dated December 22, 2010), the amount of the filing fee is equal to $116.10 per $1,000,000 of transaction valuation, calculated by multiplying the transaction valuation by .00011610. |
| 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: $36,858 | Filing Party: Stryker Corporation | |
| Form or Registration No. Schedule TO | Date Filed: May 27, 2011 |
| ¨ | 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 offer subject to Rule 14d-1. |
| ¨ | Issuer tender offer subject to Rule 13e-4. |
| ¨ | Going-private transactions 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: ¨
This Amendment No. 4 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on May 27, 2011 (which, together with this Amendment, Amendment No. 1 filed on May 27, 2011, Amendment No. 2 filed on June 3, 2011, Amendment No. 3 filed on June 8, 2011 and any subsequent amendments and supplements thereto, collectively constitute this “Schedule TO”) by Owl Acquisition Corporation, a Delaware corporation (“Purchaser”) and an indirect wholly owned subsidiary of Stryker Corporation, a Michigan corporation (“Stryker”). This Schedule TO relates to the tender offer by Purchaser to purchase all of the outstanding shares of common stock, par value $0.01 per share (the “Shares”), of Orthovita, Inc., a Pennsylvania corporation (“Orthovita”), at a purchase price of $3.85 per Share (the “Offer Price”), net to the seller in cash, without interest thereon and less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 27, 2011 (as it may be amended or supplemented from time to time, the “Offer to Purchase”), which is set forth as Exhibit (a)(1)(A) hereto, and in the related Letter of Transmittal (as it may be amended or supplemented from time to time, the “Letter of Transmittal”), which is set forth as Exhibit (a)(1)(B) hereto (which offer, upon such terms and subject to such conditions, as it and they may be amended or supplemented from time to time, constitutes the “Offer”).
Item 4. Terms of the Transaction; Item 11. Additional Information.
Items 4 and 11(a)(5) of this Schedule TO are hereby amended and supplemented as follows:
The information set forth in the section of the Offer to Purchase entitled “Certain Legal Matters; Regulatory Approvals — Legal Proceedings” is hereby amended and supplemented by adding the following paragraph as the last paragraph thereof:
“On June 8, 2011, Warren Tsark (“Tsark”), a purported shareholder of Orthovita, filed a derivative action in the Court of Common Pleas of Montgomery County, Pennsylvania, captioned Tsark v. Koblish et al., Case No. 2011-15722, naming as defendants Orthovita, the individual members of the Orthovita Board, Stryker and the Purchaser. Tsark asserts (i) a claim against Orthovita’s directors for alleged breaches of fiduciary duty in connection with the Offer and the Merger, (ii) a claim against Orthovita and Purchaser for aiding and abetting those alleged breaches, and (iii) a claim against Orthovita’s directors for alleged waste of corporate assets. Tsark seeks, among other things, injunctive relief, rescission, damages and costs, including attorneys’ and experts’ fees and expenses. Stryker and Purchaser believe that this action is without merit and intend to defend their position in this matter vigorously.”
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Item 12. Exhibits
Item 12 of this Schedule TO is hereby amended and supplemented by adding the following exhibit thereto:
| Exhibit No. |
Description | |
| (a)(5)(D) | Complaint filed by Warren Tsark derivatively on behalf of Orthovita, Inc., on June 8, 2011, in the Court of Common Pleas of Montgomery County, Pennsylvania |
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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.
Dated: June 10, 2011
| Stryker Corporation | ||
| By: | /s/ Tony M. McKinney | |
| Name: | Tony M. McKinney | |
| Title: | Vice President, Chief Accounting Officer | |
| Owl Acquisition Corporation | ||
| By: | /s/ Wayne D. Dahlberg | |
| Name: | Wayne D. Dahlberg | |
| Title: | Vice President, Finance | |
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Exhibit Index
| Exhibit No. |
Description | |
| (a)(1)(A) | Offer to Purchase, dated May 27, 2011* | |
| (a)(1)(B) | Form of Letter of Transmittal * | |
| (a)(1)(C) | Form of Notice of Guaranteed Delivery * | |
| (a)(1)(D) | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees * | |
| (a)(1)(E) | Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees * | |
| (a)(1)(F) | Form of Summary Advertisement as published in The Wall Street Journal on May 27, 2011 * | |
| (a)(1)(G) | Joint Press Release of Stryker Corporation and Orthovita, Inc. dated May 27, 2011 * | |
| (a)(2) | Not applicable | |
| (a)(3) | Not applicable | |
| (a)(4) | Not applicable | |
| (a)(5)(A) | Complaint filed by Andrew T. Thorn, on behalf of himself and on behalf of all others similarly situated, and derivatively on behalf of Orthovita, Inc., on May 26, 2011, in the Court of Common Pleas of Montgomery County, Pennsylvania * | |
| (a)(5)(B) | Complaint filed by Robert Clayton, on behalf of himself and on behalf of all others similarly situated, on May 31, 2011, in the United States District Court for the Eastern District of Pennsylvania * | |
| (a)(5)(C) | Complaint filed by Adolphina Van Barel, on behalf of herself and on behalf of all others similarly situated, and derivatively on behalf of Orthovita, Inc., on June 6, 2011, in the United States District Court for the Eastern District of Pennsylvania * | |
| (a)(5)(D) | Complaint filed by Warren Tsark derivatively on behalf of Orthovita, Inc., on June 8, 2011, in the Court of Common Pleas of Montgomery County, Pennsylvania ** | |
| (b) | Not applicable | |
| (d)(1) | Agreement and Plan of Merger, dated as of May 16, 2011, by and among Orthovita, Inc., Owl Acquisition Corporation and Stryker Corporation * | |
| (d)(2) | Form of Tender and Voting Agreement, dated as of May 16, 2011, between Stryker Corporation, Owl Acquisition Corporation and each of the directors and executive officers of Orthovita, Inc. and Essex Woodlands Health Ventures Fund VII, L.P. * | |
| (d)(3) | Tender and Voting Agreement, dated as of May 16, 2011, between Stryker Corporation, Owl Acquisition Corporation and Essex Woodlands Health Ventures Fund VII, L.P. * | |
| (d)(4) | Confidentiality Agreement, dated as of January 18, 2011, as amended, between Orthovita, Inc. and Stryker Corporation * | |
| (d)(5) | Employment Agreement, dated as of May 16, 2011, by and between Stryker Corporation and Antony Koblish * | |
| (d)(6) | Employment Agreement, dated as of May 16, 2011, by and between Stryker Corporation and Maarten Persenaire, M.D. * | |
| (d)(7) | Employment Agreement, dated as of May 16, 2011, by and between Stryker Corporation and Christopher H. Smith * | |
| (g) | Not applicable | |
| (h) | Not applicable | |
| * | Previously filed. |
| ** | Filed herewith. |
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