================================================================================
SECURITIES AND EXCHANGE COMMISSION,
WASHINGTON, D.C. 20549
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SCHEDULE TO
(RULE 14D-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 18
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CENTERPULSE AG
(Name of Subject Company (Issuer))
ZIMMER HOLDINGS, INC.
(Names of Filing Persons (Offerors))
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REGISTERED SHARES, NOMINAL VALUE CHF 30.00 PER SHARE
(Title of Class of Securities)
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NOT APPLICABLE*
(CUSIP Number of Class of Securities)
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DAVID C. DVORAK, ESQ.
ZIMMER HOLDINGS, INC.
345 EAST MAIN STREET
WARSAW, INDIANA 46580
(574) 267-6131
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications on Behalf of Filing Persons)
COPIES TO:
MORTON A. PIERCE, ESQ.
M. ADEL ASLANI-FAR, ESQ.
JACK S. BODNER, ESQ.
DEWEY BALLANTINE LLP
1301 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019
(212) 259-8000
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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 AG 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 AG that were issued pursuant to a
restricted American depositary receipt 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.
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. 18 amends and supplements the Tender Offer Statement on
Schedule TO, dated June 19, 2003 (as previously amended or supplemented, the
"Schedule TO"), filed by Zimmer Holdings, Inc., a Delaware corporation
("Zimmer"), relating to the third-party tender offer by Zimmer to exchange 3.68
shares of common stock, par value US$0.01 per share, of Zimmer ("Zimmer Common
Stock") and CHF 120 in cash, for each outstanding registered share, nominal
value CHF 30 per share, of Centerpulse AG, a listed company incorporated in
Switzerland ("Centerpulse"), including registered shares represented by
Centerpulse American depositary shares ("ADSs"), upon the terms and subject to
the conditions set forth in the prospectus (as modified, amended or
supplemented, the "Prospectus"), the related ADS Letter of Transmittal and Form
of Declaration of Acceptance and Assignment (collectively referred to as the
"Offer"), which are attached to the Schedule TO as Exhibits (a)(1), (a)(2) and
(a)(3), respectively. Capitalized terms used but not defined herein have the
meanings assigned to such terms in the Prospectus and in the Schedule TO.
Zimmer has filed a Registration Statement on Form S-4, of which the
Prospectus is a part, relating to shares of Zimmer Common Stock to be issued to
holders of Centerpulse registered shares (including registered shares
represented by Centerpulse American depositary shares) in the Offer (the
"Registration Statement").
The information set forth in the entire Registration Statement, including
all schedules, exhibits and annexes thereto, the related ADS Letter of
Transmittal, the related Form of Declaration of Acceptance and Assignment and
any prospectus, prospectus supplement or other supplement thereto related to the
Offer hereafter filed with the Securities and Exchange Commission by Zimmer is
hereby expressly incorporated by reference in answer to Items 1 through 11 of
the Schedule TO.
ITEMS 1 THROUGH 11.
Items 1 through 11 are hereby amended and supplemented as follows:
In accordance with Swiss law, Zimmer announced on September 2, 2003 the
definitive interim results of the Offer and its offer for all of the outstanding
bearer shares of InCentive Capital AG, a significant shareholder of Centerpulse
("InCentive" and, such offer, the "InCentive Offer"). The initial offering
period for the Offer expired at 4:00 p.m., Central European time, 10:00 a.m.,
New York City time, on Wednesday, August 27, 2003. Based on information provided
by Credit Suisse First Boston and Mellon Investor Services LLC (the Swiss offer
manager and the U.S. exchange agent, respectively, for the Offer), as of the
expiration of the initial offering period, 7,489,650 Centerpulse registered
shares and 6,712,776 ADSs, including ADSs subject to the guaranteed delivery
procedures, were tendered and not withdrawn. Based on information provided by
Centerpulse, these shares and ADSs represent approximately 68.0% of the
outstanding Centerpulse registered shares (including shares represented by
ADSs) and, together with the Centerpulse registered shares held by InCentive,
approximately 86.7% of the issued Centerpulse registered shares (including
shares represented by ADSs). In accordance with the terms of the Offer, holders
of Centerpulse registered shares will receive 3.68 shares of Zimmer Common
Stock and CHF 120 in cash for each Centerpulse registered share tendered and
not withdrawn and holders of ADSs will receive 0.368 of a share of Zimmer
Common Stock and CHF 12 in cash for each ADS tendered and not withdrawn.
Zimmer has accepted for payment all Centerpulse registered shares and
ADSs and InCentive bearer shares tendered and not withdrawn during the initial
offering period.
In accordance with the terms of the Offer, Zimmer is providing a
subsequent offering period, or additional acceptance period, of ten Swiss
trading days in order to provide holders of Centerpulse registered shares or
ADSs who have not tendered their registered shares or ADSs during the initial
offering period with the opportunity to tender their registered shares or ADSs
into the Offer. Zimmer also is providing a similar subsequent offering period
in connection with the InCentive Offer. The subsequent offering period for each
of the Offer and the InCentive Offer begins on Tuesday, September 2, 2003 and
expires at 4:00 p.m., Central European time, 10:00 a.m., New York City time, on
Monday, September 15, 2003. Centerpulse registered shares and ADSs and
InCentive bearer shares tendered during the subsequent offering period may not
be withdrawn.
The settlement date for the exchange of Centerpulse registered shares and
ADSs and InCentive bearer shares for shares of Zimmer Common Stock is expected
to take place on October 2, 2003, subject to approval by competent Swiss
authorities. On the same day, the offered cash amount per tendered Centerpulse
registered share or ADS or InCentive bearer share (including any cash to be
paid instead of issuing fractional shares of Zimmer Common Stock) will be paid.
On August 28, 2003, Smith & Nephew plc announced that it did not receive
the minimum level of valid tenders in connection with its exchange offers for
all of the outstanding Centerpulse registered shares and ADSs and InCentive
bearer shares as of the expiration of the offers on August 27, 2003, and
declared that its offers had failed. Smith& Nephew plc announced that it will
release the Centerpulse registered shares and ADSs and InCentive bearer shares
tendered into its failed offers.
On August 31, 2003, Zimmer entered into an agreement (the "Agreement"),
attached to this Schedule TO as exhibit (d)(1), with Rene Braginsky, Hans
Kaiser, "Zurich" Versicherungs-Gesellschaft and III Institutional Investors
International Corp. (collectively, the "Shareholders" and, together with Zimmer,
the "Parties"), who collectively hold approximately 77% of InCentive's issued
share capital. The Shareholders had been parties to a similar agreement with
Smith & Nephew plc and Smith & Nephew Group plc (collectively, "Smith & Nephew")
in connection with Smith & Nephew's now-failed exchange offer for InCentive.
Pursuant to the Agreement, among other things:
- Zimmer agreed to declare the InCentive Offer unconditional on the fourth
business day following the expiration of the additional acceptance period
for the InCentive Offer.
- Zimmer agreed to comply with the Swiss Federal Banking Commission's
ruling, dated August 15, 2003, relating to the InCentive Offer, and the
Parties agreed to waive all rights to appeal any such ruling.
- The Shareholders agreed not to:
-- acquire any Centerpulse registered shares or rights to acquire
Centerpulse registered shares or, other than by way of settlement of
the Offer, sell or otherwise dispose of any Centerpulse registered
shares; or
-- acquire any InCentive bearer shares or rights to acquire InCentive
bearer shares or, other than by way of the settlement of the
InCentive Offer, sell or otherwise dispose of any InCentive bearer
shares until the expiration of a period of six months following the
end of the additional acceptance period of the InCentive Offer,
subject to certain exceptions.
- The Shareholders made certain representations and warranties to Zimmer
setting forth, among other things, the manner in which the adjusted net
asset value has been calculated for purposes of determining the
consideration payable by Zimmer in the InCentive Offer and that neither
InCentive nor any of its subsidiaries has any liabilities of any kind
arising out of or in connection with any transaction entered into or
completed prior to the settlement date of the InCentive Offer, other than
those reflected, reserved or provisioned in the interim financial
statements of InCentive as of August 27, 2003 and which reduce the
adjusted net asset value of InCentive. The Agreement also contains other
customary representations and warranties by the Shareholders.
- The Shareholders agreed to indemnify Zimmer for, among other things,
losses incurred by Zimmer as a result of any breach of the representations
and warranties made by the Shareholders or any acquisition of shares of
InCentive or Centerpulse by the Shareholders that causes Zimmer to be
obligated under Swiss law to increase the offer price for the Offer or the
InCentive Offer.
- As security for the Shareholders' indemnification obligations, a portion
of the consideration payable to the Shareholders in connection with the
InCentive Offer will be deposited in escrow, pursuant to the terms of an
escrow agreement to be entered into by the Parties. A form of the escrow
agreement is attached to the Agreement as a schedule thereto. The
aggregate amount to be deposited in escrow is CHF 25,000,000, subject to
increase under certain circumstances. The Agreement sets forth how any
payment out of the escrow amount will be apportioned among the
Shareholders whose funds are escrowed.
The Agreement also contains other customary terms and conditions. The
summary of the Agreement set forth in this Schedule TO is qualified in its
entirety by the full text of the Agreement, which is attached to this Schedule
TO as exhibit (d)(1), and is specifically incorporated herein by reference.
On September 2, 2003, Zimmer issued the press release attached to this
Schedule TO as exhibit (a)(38) relating to the above. Zimmer also made the
announcement, an English translation of which is attached to this Schedule TO
as exhibit (a)(39), relating to the Offer, as well as the announcement, an
English translation of which is attached to this Schedule TO as exhibit
(a)(40), relating to the InCentive Offer. The information set forth in the
above-referenced documents is specifically incorporated herein by reference.
ITEM 12. EXHIBITS.
Item 12 of the Schedule TO is hereby amended by adding the following
exhibit thereto:
(a)(38) Press Release of Zimmer Holdings, Inc., dated September 2, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on
September 2, 2003).
(a)(39) Announcement of Zimmer Holdings, Inc., dated September 2, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on
September 2, 2003).
(a)(40) Announcement of Zimmer Holdings, Inc., dated September 2, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on
September 2, 2003).
(d)(1) Agreement, dated as of August 31, 2003, by and among Zimmer
Holdings, Inc. and certain shareholders of InCentive Capital AG
listed therein.
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.
ZIMMER HOLDINGS, INC.
By: /s/ J. Raymond Elliott
----------------------------------------
J. Raymond Elliott
Chairman of the Board,
President and Chief Executive Officer
Date: September 2, 2003
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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(a)(1) Prospectus, dated June 19, 2003 (incorporated herein by reference to
Zimmer Holdings, Inc.'s Rule 424(b)(3) filing in connection with
Registration Statement No. 333-105561 made with the Securities and
Exchange Commission on June 20, 2003).
(a)(2) Form of ADS Letter of Transmittal (incorporated herein by reference
to Exhibit 99.1 of Zimmer Holdings, Inc.'s Registration Statement on
Form S-4/A, Registration No. 333-105561, filed with the Securities
and Exchange Commission on June 18, 2003).
(a)(3) Form of Declaration of Acceptance and Assignment (incorporated
herein by reference to Exhibit 99.2 of Zimmer Holdings, Inc.'s
Registration Statement on Form S-4/A, Registration No. 333-105561,
filed with the Securities and Exchange Commission on June 18, 2003).
(a)(4) Form of ADS Notice of Guaranteed Delivery (incorporated herein by
reference to Exhibit 99.3 of Zimmer Holdings, Inc.'s Registration
Statement on Form S-4/A, Registration No. 333-105561, filed with the
Securities and Exchange Commission on June 18, 2003).
(a)(5) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees (incorporated herein by reference to
Exhibit 99.4 of Zimmer Holdings, Inc.'s Registration Statement on
Form S-4/A, filed with the Securities and Exchange Commission on
June 18, 2003).
(a)(6) Form of Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees (incorporated herein by
reference to Exhibit 99.5 of Zimmer Holdings Registration Statement
on Form S-4/A, Registration No. 333-105561, filed with the
Securities and Exchange Commission on June 18, 2003).
(a)(7) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 (incorporated herein by reference to Exhibit
99.6 of Zimmer Holdings, Inc.'s Registration Statement on Form
S-4/A, Registration No. 333-105561, filed with the Securities and
Exchange Commission on June 18, 2003).
(a)(8) Swiss Pre-Announcement, dated May 20, 2003, of Zimmer Holdings, Inc.
with respect to its offer for Centerpulse registered shares
(including shares represented by Centerpulse American depositary
shares) (incorporated herein by reference to Zimmer Holdings, Inc.'s
Rule 425 filing made with the Securities and Exchange Commission on
May 20, 2003).
(a)(9) Press Release of Zimmer Holdings, Inc., dated May 20, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on May
20, 2003).
(a)(10) Slide Presentation of Zimmer Holdings, Inc., dated May 20, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on May
20, 2003).
(a)(11) Published Letter of Zimmer Holdings, Inc., dated May 21, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on May
21, 2003).
(a)(12) Press Release of Zimmer Holdings, Inc., dated May 29, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on May
30, 2003).
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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(a)(13) Form of Swiss Offer Prospectus (incorporated herein by reference to
Exhibit 99.9 of Zimmer Holdings, Inc.'s Registration Statement on
Form S-4/A, Registration No. 333-105561, filed with the Securities
and Exchange Commission on June 18, 2003).
(a)(14) Swiss Offer Prospectus Summary, dated June 19, 2003, (incorporated
herein by reference to Zimmer Holdings, Inc.'s Rule 425 filing made
with the Securities and Exchange Commission on June 19, 2003).
(a)(15) Press Release of Zimmer Holdings, Inc., dated June 19, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on June
19, 2003).
(a)(16) Press Release by Zimmer Holdings, Inc., dated June 20, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on June
20, 2003).
(a)(17) Form of letter to registered holders of Centerpulse shares.*
(a)(18) Announcement of Zimmer Holdings, Inc., dated July 9, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on July
9, 2003).
(a)(19) Press Release of Zimmer Holdings, Inc., dated July 9, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on July
9, 2003).
(a)(20) Press Release of Zimmer Holdings, Inc., dated July 16, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on July
16, 2003).
(a)(21) Press Release of Zimmer Holdings, Inc., dated July 22, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on
July 22, 2003).
(a)(22) Press Release of Zimmer Holdings, Inc., dated July 23,2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on July
23,2003).
(a)(23) Press Release of Zimmer Holdings, Inc., dated July 23, 2003
(incorporated by herein reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on July
23, 2003).
(a)(24) Press Release of Zimmer Holdings, Inc., dated July 25, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s, Rule
425 filing made with the Securities and Exchange Commission on July
25, 2003).
(a)(25) Transcript of Zimmer Holdings, Inc. Earnings Conference Call held
on July 24, 2003 (incorporated herein by reference to Zimmer
Holdings Inc.'s Rule 425 filing made with the Securities and
Exchange Commission July 25, 2003).
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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(a)(26) Press Release of Zimmer Holdings, Inc., dated July 30, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on July
30, 2003).
(a)(27) Press Release of Zimmer Holdings, Inc., dated August 6, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on
August 6, 2003).
(a)(28) Press Release of Zimmer Holdings, Inc., dated August 6, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on
August 6, 2003).
(a)(29) Correspondence to Zimmer Employees and Sales Force Members, dated
August 6, 2003 (incorporated herein by reference to Zimmer
Holdings, Inc.'s Rule 425 filing made with the Securities and
Exchange Commission on August 7, 2003).
(a)(30) Press Release of Zimmer Holdings, Inc., dated August 13, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on
August 13, 2003).
(a)(31) Press Release of Zimmer Holdings, Inc., dated August 15, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on
August 18, 2003).
(a)(32) Employee Newsletter of Zimmer Holdings, Inc., distributed August 19,
2003 (incorporated herein by reference to Zimmer Holdings, Inc.'s
Rule 425 filing made with the Securities and Exchange Commission on
August 20, 2003.)
(a)(33) Press Release of Zimmer Holdings, Inc., dated August 20, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s
Rule 425 filing made with the Securities and Exchange Commission on
August 20, 2003).
(a)(34) Press Release of Zimmer Holdings, Inc., dated August 21, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s
Rule 425 filing made with the Securities and Exchange Commission on
August 21, 2003).
(a)(35) Announcement of Zimmer Holdings, Inc., dated August 22, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on
August 22, 2003).
(a)(36) Press Release of Zimmer Holdings, Inc., dated August 26, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on
August 26, 2003).
(a)(37) Press Release of Zimmer Holdings, Inc., dated August 28, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on
August 28, 2003).
(a)(38) Press Release of Zimmer Holdings, Inc., dated September 2, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on
September 2, 2003).
(a)(39) Announcement of Zimmer Holdings, Inc., dated September 2, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on
September 2, 2003).
(a)(40) Announcement of Zimmer Holdings, Inc., dated September 2, 2003
(incorporated herein by reference to Zimmer Holdings, Inc.'s Rule
425 filing made with the Securities and Exchange Commission on
September 2, 2003).
(b)(1) $1,350,000,000 Revolving Credit and Term Loan Agreement among Zimmer
Holdings, Inc., Zimmer, Inc., Zimmer K.K., Zimmer Ltd., the
borrowing subsidiaries, and lenders named therein, dated as of June
12, 2003 (incorporated herein by reference to Exhibit 10.27 of
Zimmer Holdings, Inc.'s Registration Statement on Form S-4/A,
Registration No. 333-105561, filed with the Securities and Exchange
Commission on June 13, 2003).
(b)(2) $400,000,000 364-Day Credit Agreement among Zimmer Holdings, Inc.,
Zimmer, Inc., the borrowing subsidiaries, and lenders named therein,
dated as of June 12, 2003 (incorporated herein by reference to
Exhibit 10.28 of Zimmer Holdings, Inc.'s Registration Statement on
Form S-4/A, Registration No. 333-105561, filed with the Securities
and Exchange Commission on June 13, 2003).
(d)(1) Agreement, dated as of August 31, 2003, by and among Zimmer
Holdings, Inc. and certain shareholders of InCentive Capital AG
listed therein.
(g) None.
(h)(1) Tax opinion of Dewey Ballantine LLP (re: U.S. tax matters)
(incorporated herein by reference to Exhibit 8.1 of Zimmer Holdings,
Inc.'s Registration Statement on Form S-4/A, Registration No.
333-105561, filed with the Securities and Exchange Commission on
June 19, 2003).
(h)(2) Tax opinion of Pestalozzi Lachenal Patry (re: Swiss tax matters)
(incorporated herein by reference to Exhibit 8.2 of Zimmer Holdings,
Inc.'s Registration Statement on Form S-4/A, Registration No.
333-105561, filed with the Securities and Exchange Commission on
June 18, 2003).
(h)(3) Tax opinion of Bird & Bird (re: U.K. tax matters) (incorporated
herein by reference to Exhibit 8.3 of Zimmer Holdings, Inc.'s
Registration Statement on Form S-4/A, Registration No. 333-105561,
filed with the Securities and Exchange Commission on June 18, 2003).
* Previously filed.