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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9/A
(RULE 14D-101)
SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 5
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CENTERPULSE LTD.
(NAME OF SUBJECT COMPANY)
CENTERPULSE LTD.
(NAME OF PERSON FILING STATEMENT)
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REGISTERED SHARES, PAR VALUE CHF 30 PER SHARE, INCLUDING SHARES
REPRESENTED BY AMERICAN DEPOSITARY SHARES
(TITLE AND CLASS OF SECURITIES)
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NOT APPLICABLE*
(CUSIP NUMBER OF CLASS OF SECURITIES)
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DR. MAX LINK
CHAIRMAN OF THE BOARD OF DIRECTORS
AND CHIEF EXECUTIVE OFFICER
CENTERPULSE LTD.
ANDREASSTRASSE 15
CH-8050, ZURICH
SWITZERLAND
+41-1-306-9696
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND
COMMUNICATIONS ON BEHALF OF THE PERSON(S) FILING STATEMENT)
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COPY TO:
ELLEN J. ODONER, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
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* There is no Cusip Number assigned to the Registered Shares. CUSIP No.
152005104 has been assigned to the American Depositary Shares of
Centerpulse Ltd. that are quoted on the New York Stock Exchange under the
symbol "CEP". CUSIP No. 152005203 has been assigned to the American
Depositary Shares of Centerpulse Ltd. that were issued pursuant to a
restricted ADR facility and are not publicly traded.
|_| CHECK THE BOX IF THE FILING RELATES SOLELY TO PRELIMINARY COMMUNICATIONS
MADE BEFORE THE COMMENCEMENT OF A TENDER OFFER.
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This constitutes Amendment No. 5 to the
Solicitation/Recommendation Statement on Schedule 14D-9 initially filed with the
Securities and Exchange Commission on April 25, 2003 (as previously amended, the
"Schedule 14D-9") by Centerpulse Ltd., a corporation organized under the laws of
Switzerland ("Centerpulse" or the "Company"), relating to the exchange offer by
Smith & Nephew Group plc, a corporation organized under the laws of England and
Wales ("Smith & Nephew Group"), being made pursuant to the Preliminary
Prospectus, dated April 25, 2003, forming a part of Smith & Nephew Group's
Registration Statement on Form F-4, filed with the Securities and Exchange
Commission by Smith & Nephew Group on April 25, 2003.
The information in the Schedule 14D-9 is hereby expressly
incorporated by reference, except as otherwise set forth below. Capitalized
terms used, but not otherwise defined, herein shall have the meanings given to
them in the Schedule 14D-9.
ITEM 4. THE SOLICITATION OR RECOMMENDATION.
Item 4(a) is hereby deleted in its entirety and replaced by
the following paragraph:
"Position of the Board. Reference is made to the July 8
Centerpulse Board Report (as defined below), a copy of which is incorporated by
reference in this Statement and listed as Exhibit (a)(15) to this Statement."
Item 4(b)(i) is hereby amended and supplemented to add the
following paragraphs at the end thereof:
"On June 30, 2003, Urs Kamber, Chief Financial Officer of
Centerpulse, sent a letter to Sam R. Leno, Senior Vice President and Chief
Financial Officer of Zimmer, objecting to certain statements set forth in
Zimmer's prospectus, dated June 19, 2003, forming a part of Zimmer's
Registration Statement (No. 333-105561) on Form S-4 filed with the Securities
and Exchange Commission, and reiterating a request for access to undisclosed
schedules to Zimmer's credit agreements that are said to contain conditions
precedent to funding the cash portion of the consideration for the Zimmer Offer.
Mr. Leno and Mr. Kamber exchanged further correspondence on these matters on
July 3 and 7, 2003, respectively, and Zimmer furnished the requested information
to Centerpulse.
On July 3, 2003, the Swiss Takeover Board (the "STOB")
issued further recommendations specifying the timetable for the Exchange Offer
and the Zimmer Offer. On June 11, 2003, the STOB had issued recommendations in
connection with the Zimmer Offer which, among other things, specified a
timetable for the Zimmer Offer and the Exchange Offer and held that the
limitations on withdrawal rights of certain shareholders of InCentive were
invalid. Smith & Nephew, Smith & Nephew Group and InCentive have appealed the
June 11 recommendations to the Swiss Banking Commission.
On July 7, 2003, at the request of Smith & Nephew Group,
Mr. Kamber and another representative of Centerpulse, together with
representatives of Lehman Brothers, UBS Securities and Goldman Sachs, met a
representative of Smith & Nephew Group and representatives of Lazard regarding
the timetable specified by the STOB. On July 8, 2003, Dr. Link met with Mr.
Christopher J. O'Donnell, Chief Executive Officer of Smith & Nephew, in Zurich,
Switzerland about the same subject.
On July 8, 2003, the Board met with senior management of
Centerpulse, Centerpulse's legal counsel and independent accountants, an
independent industry specialist and representatives of Lehman Brothers, UBS
Securities and Goldman Sachs to consider the Zimmer Offer and compare it to the
Exchange Offer. The Board reviewed the results of the business, financial and
legal due diligence Centerpulse and its advisors had conducted with respect to
Zimmer. Representatives of Lehman Brothers, UBS Securities and Goldman Sachs
then presented their financial analyses of the Zimmer Offer and a comparison of
the Zimmer Offer to the Exchange Offer. After discussion, the Board adopted a
report to Centerpulse shareholders on the Zimmer Offer (the "July 8 Centerpulse
Board Report").
On July 9, 2003, Dr. Link sent letters to Centerpulse
shareholders and Centerpulse employees, copies of which are incorporated by
reference in this Statement and listed as Exhibits (a)(16) and (a)(17),
respectively, to this Statement, informing such shareholders and such employees
about the issuance of the July 8 Centerpulse Board Report and the position of
the Board taken therein. On that same day, Centerpulse also issued a press
release, a copy of which is incorporated by reference in this Statement and
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listed as Exhibit (a)(18) to this Statement, regarding the issuance of the July
8 Centerpulse Board Report."
Item 4(b)(ii) is hereby deleted in its entirety and
replaced by the following paragraph:
"Reasons for the Position of the Board. Reference is made
to the July 8 Centerpulse Board Report, a copy of which is incorporated by
reference in this Statement and listed as Exhibit (a)(15) to this Statement."
Item 4(c) is hereby deleted in its entirety and replaced by
the following paragraph:
"Intent to Tender. Except as described in the Preliminary
Prospectus under the caption "THE INCENTIVE EXCHANGE OFFER", which information
is incorporated by reference in this Statement, or as set forth in this
Statement, the directors and executive officers of Centerpulse have not
indicated how they intend to tender under the changed circumstances."
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
Item 6 is hereby deleted in its entirety and replaced by
the following paragraphs:
"The following table sets forth information regarding the
exercise of stock options by the executive officers of Centerpulse listed below:
NUMBER OF SECURITIES ISSUED UPON
NAME DATE WEIGHTED AVERAGE EXERCISE PRICE EXERCISE
--------------------- ---------------------------- ----------------------------------------- -----------------------------------
David Floyd May 23, 2003 $9.46 per Centerpulse ADS 17,360 Centerpulse ADSs
Steven Hanson May 22, 2003 $12.53 per Centerpulse ADS 19,250 Centerpulse ADSs
May 23, 2003 $19.02 per Centerpulse ADS 17,500 Centerpulse ADSs
Mike McCormick May 16, 2003 $8.04 per Centerpulse ADS 3,750 Centerpulse ADSs
May 19, 2003 $6.04 per Centerpulse ADS 1,680 Centerpulse ADSs
Matthias Moelleney May 14, 2003 CHF 147 per Centerpulse Share 1,000 Centerpulse Shares
June 2, 2003 CHF 147 per Centerpulse Share 250 Centerpulse Shares
Beatrice Tschanz May 30, 2003 CHF 198 per Centerpulse Share 1,250 Centerpulse Shares
Thomas Zehnder May 27, 2003 CHF 131 per Centerpulse Share 1,500 Centerpulse Shares
May 27, 2003 CHF 76 per Centerpulse Share 250 Centerpulse Shares
June 2, 2003 CHF 198 per Centerpulse Share 1,250 Centerpulse Shares
The following table sets forth information regarding the
sale of Centerpulse Shares or Centerpulse ADSs, as the case may be, by the
executive officers of Centerpulse listed below:
NAME DATE WEIGHTED AVERAGE SALE PRICE NUMBER OF SECURITIES SOLD EXCHANGE
------------------- --------------------- --------------------------------------- ---------------------------------- --------------
David Floyd May 23, 2003 $26.40 per Centerpulse ADS 17,360 Centerpulse ADSs NYSE
May 23, 2003 $26.30 per Centerpulse ADS 1,000 Centerpulse ADSs NYSE
Steven Hanson May 22, 2003 $25.87 per Centerpulse ADS 19,250 Centerpulse ADSs NYSE
May 23, 2003 $26.75 per Centerpulse ADS 17,500 Centerpulse ADSs NYSE
Mike McCormick May 15, 2003 $22.00 per Centerpulse ADS 150 Centerpulse ADSs NYSE
May 16, 2003 $22.40 per Centerpulse ADS 3,750 Centerpulse ADSs NYSE
May 19, 2003 $22.65 per Centerpulse ADS 1,680 Centerpulse ADSs NYSE
Matthias Moelleney May 14, 2003 CHF 289 per Centerpulse Share 1000 Centerpulse Shares SWX
June 2, 2003 CHF 355 per Centerpulse Share 250 Centerpulse Shares SWX
Beatrice Tschanz May 30, 2003 CHF 350 per Centerpulse Share 1,250 Centerpulse Shares SWX
Thomas Zehnder May 27, 2003 CHF 340 per Centerpulse Share 1,750 Centerpulse Shares SWX
June 2, 2003 CHF 355 per Centerpulse Share 1,250 Centerpulse Shares SWX
The information above as to sales has been provided to the
Company by the relevant executive officer of Centerpulse.
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Except as set forth herein, no transactions in the
Centerpulse Shares or the Centerpulse ADSs have been effected during the past 60
days by Centerpulse or any subsidiary of Centerpulse or, to Centerpulse's
knowledge, by any executive officer, director or affiliate of Centerpulse."
ITEM 7. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
Item 7(a) is hereby deleted in its entirety and replaced by
the following paragraph:
"Except as described in the Preliminary Prospectus under
the captions "THE TRANSACTION", "THE EXCHANGE OFFER", "SUMMARY OF THE
COMBINATION AGREEMENT" and "THE INCENTIVE EXCHANGE OFFER", which information is
incorporated by reference in this Statement, or as set forth in this Statement
or the Solicitation/Recommendation Statement on Schedule 14D-9 of Centerpulse
relating to the Zimmer Offer (together with the Exhibits thereto and as it may
be amended from time to time, the "Zimmer Offer 14D-9"), which is incorporated
by reference in this Statement, Centerpulse is not undertaking or engaged in any
negotiations in response to the Exchange Offer that relate to: (1) a tender
offer or other acquisition of Centerpulse's securities by Centerpulse, any
subsidiary of Centerpulse or any other person; (2) an extraordinary transaction,
such as a merger, reorganization or liquidation, involving Centerpulse or any
subsidiary of Centerpulse; (3) any purchase, sale or transfer of a material
amount of assets of Centerpulse or any subsidiary of Centerpulse or (4) any
material change in the present dividend rate or policy, or indebtedness or
capitalization, of Centerpulse."
Item 7(b) is hereby deleted in its entirety and replaced by
the following paragraph:
"Except as described in the Preliminary Prospectus under
the captions "THE TRANSACTION", "THE EXCHANGE OFFER", "SUMMARY OF THE
COMBINATION AGREEMENT" and "THE INCENTIVE EXCHANGE OFFER", which information is
incorporated by reference in this Statement, or as set forth in this Statement
or the Zimmer Offer 14D-9, which is incorporated by reference in this Statement,
there are no transactions, board resolutions, agreements in principle or signed
contracts entered into in response to the Exchange Offer that relate to one or
more of the matters referred to in Item 7(a) above."
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
The following Exhibits are filed herewith:
(a)(15) Report of the Centerpulse Board of Directors to the Centerpulse
Shareholders, dated July 8, 2003 (incorporated by reference to
Annex B of Centerpulse's Amendment No. 1 to the
Solicitation/Recommendation Statement on Schedule 14D-9 filed with
the Securities and Exchange Commission on July 9, 2003).
(a)(16) Letter of the Chairman and Chief Executive Officer of Centerpulse
to the Centerpulse Shareholders, dated July 9, 2003 (incorporated
by reference to Annex A of Centerpulse's Amendment No. 1 to the
Solicitation/Recommendation Statement on Schedule 14D-9 filed with
the Securities and Exchange Commission on July 9, 2003).
(a)(17) Letter of the Chairman and Chief Executive Officer of Centerpulse
to Centerpulse Employees, dated July 9, 2003 (incorporated by
reference to Exhibit (a)(2)(C) of Centerpulse's Amendment No. 1 to
the Solicitation/Recommendation Statement on Schedule 14D-9 filed
with the Securities and Exchange Commission on July 9, 2003).
(a)(18) Press Release issued by the Company, dated July 9, 2003
(incorporated by reference to Exhibit (a)(5)(D) of Centerpulse's
Amendment No. 1 to the Solicitation/Recommendation Statement on
Schedule 14D-9 filed with the Securities and Exchange Commission on
July 9, 2003).
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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.
CENTERPULSE LTD.
By: /s/ Max Link
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MAX LINK
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
By: /s/ Urs Kamber
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URS KAMBER
CHIEF FINANCIAL OFFICER
Dated: July 9, 2003
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