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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 SECTION 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
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ORATEC INTERVENTIONS, INC.
(Name of Subject Company (Issuer))
ORCHID MERGER CORP.
SMITH & NEPHEW, INC.
SMITH & NEPHEW PLC
(Names of Filing Persons (Offerors))
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COMMON STOCK, PAR VALUE $.001 PER SHARE
(including the associated preferred stock purchase rights)
(Title of Class of Securities)
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68554M
(CUSIP Number of Class of Securities)
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James A. Ralston, Senior Vice President and General Counsel
Smith & Nephew, Inc.
1450 Brooks Road
Memphis, Tennessee 38116
(901) 396-2121
(Name, address and telephone number of
person authorized to receive notices
and communications on behalf of filing persons)
Copy to:
Pran Jha
Sidley Austin Brown & Wood
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
Telephone: (312) 853-7000
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.
[X] 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 (this "Amendment") amends and supplements the
Tender Offer Statement on Schedule TO filed by Orchid Merger Corp., a Delaware
corporation ("Purchaser"), Smith & Nephew, Inc., a Delaware corporation ("Smith
& Nephew"), and Smith & Nephew plc, a corporation organized under the laws of
England and Wales ("Parent"), on February 22, 2002 (as amended, the "Schedule
TO"), relating to the offer to purchase all issued and outstanding shares of
common stock, par value $.001 per share, of ORATEC Interventions, Inc., a
Delaware corporation ("ORATEC"), including the associated preferred stock
purchase rights issued pursuant to the Preferred Shares Rights Agreement dated
as of November 28, 2000, as amended, between ORATEC and American Stock Transfer
& Trust Company, as rights agent (collectively, the "Shares"), upon the terms
and subject to the conditions set forth in the Offer to Purchase dated February
22, 2002 (the "Offer to Purchase") and in the related Letter of Transmittal
(which, together with the Offer to Purchase, as supplemented or amended from
time to time, constitute the "Offer"). Capitalized terms used but not defined
herein have the meanings assigned to such terms in the Schedule TO.
This Amendment also amends and supplements the Schedule 13D of
Purchaser, Smith & Nephew and Parent originally filed on February 22, 2002.
Items 1 through Item 11.
Items 1 through 11 of the Schedule TO are hereby amended and
supplemented as follows:
The subsection entitled "Conditions" of the section of the Offer to
Purchase entitled "Summary Term Sheet" is hereby amended and supplemented by
adding the following thereto:
" . The offer is not conditioned on obtaining financing.
. We have arranged financing with Lloyds TSB Bank plc to
provide the funds necessary to consummate the offer and the
merger. We have not established any alternative financing
arrangements."
The last sentence of the first paragraph of the section of the Offer
to Purchase entitled "Acceptance for Payment and Payment for Shares" is hereby
amended in its entirety to read as follows:
"In addition, subject to applicable rules of the SEC, we
reserve the right to delay acceptance for payment of, or payment
for, Shares pending expiration or termination of all waiting
periods imposed by the HSR Act."
The second paragraph of the section of the Offer to Purchase entitled
"Acceptance for Payment and Payment for Shares" is hereby amended in its
entirety to read as follows:
"For information with respect to the waiting period under
the HSR Act applicable to the purchase of Shares pursuant to the
Offer, see Section 15."
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The seventh paragraph of the section of the Offer to Purchase entitled
"Certain Information Concerning Purchaser, Smith & Nephew and Parent" is hereby
amended in its entirety to read as follows:
"None of Purchaser, Smith & Nephew, Parent, or to the best
knowledge of Purchaser, Smith & Nephew or Parent, any of the persons
listed in Schedule I hereto, owns or has any right to acquire any
Shares and none of them has effected any transaction in the Shares
during the past 60 days."
The sixth paragraph of the section of the Offer to Purchase entitled
"Background of the Offer; Contacts with ORATEC" is hereby amended in its
entirety to read as follows:
"On July 31, 2001, the ORATEC Board met at a special meeting to
discuss ORATEC's recent meeting with Smith & Nephew. J.P. Morgan gave
the ORATEC Board a presentation related to potential acquisition
scenarios. J.P. Morgan reported to the ORATEC Board that, based on its
analysis, it was unlikely that ORATEC would receive a valuation which
would maximize shareholder value during the early stages of
implementing its operating strategy. The ORATEC Board engaged in a
lengthy discussion relating to potential transactions, including a
potential transaction with Smith & Nephew. The ORATEC Board determined
that given the market conditions, the low probability that Smith &
Nephew would offer ORATEC a valuation that the ORATEC Board would deem
reasonable, and the cost to ORATEC of continued management
distraction, it would not pursue further discussions with Smith &
Nephew at that time."
The eighth paragraph of the section of the Offer to Purchase entitled
"Background of the Offer; Contacts with ORATEC" is hereby amended in its
entirety to read as follows:
"In September 2001, Mr. Anstey was contacted by senior management
of another company ("Company A") to discuss potential strategic
business opportunities. Mr. Anstey had several meetings and
discussions with a representative of Company A to discuss a potential
strategic relationship between ORATEC and Company A. Following these
initial discussions, ORATEC and Company A decided that the companies
were moving in different strategic directions and as a result were not
at that time in a position to structure a strategic relationship that
would create near term value for either company. Therefore, ORATEC and
Company A decided not to pursue a strategic transaction in the near
term."
The text of the second sentence of the first lead-in paragraph of the
section of the Offer to Purchase entitled "Conditions of the Offer -- Conditions
to the Offer" before clauses (a) through (h) of such section is hereby amended
in its entirety to read as follows:
"Furthermore, notwithstanding any other term of the Offer or the
Merger Agreement, Purchaser shall not be required to accept for
payment or, subject as aforesaid, to pay for any Shares not
theretofore accepted for payment or paid for, and may terminate the
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Offer if, at any time on or after the date of the Merger Agreement and
prior to the expiration of the Offer, any of the following conditions
exists:"
The first sentence of the last paragraph of the section of the Offer
to Purchase entitled "Conditions of the Offer-Conditions to the Offer" is hereby
amended in its entirety to read as follows:
"The foregoing conditions are for the sole benefit of Smith & Nephew
and Purchaser and may, subject to the terms of the Merger Agreement,
be waived by Smith & Nephew and Purchaser in whole or in part at any
time and from time to time in their sole discretion; provided, that
the determination of the satisfaction or waiver of all such
conditions, other than those involving receipt of government
approvals, will be made on or prior to the expiration of the Offer."
Item 11. ADDITIONAL INFORMATION.
The section of the Offer to Purchase entitled "Legal Matters; Required
Regulatory Approvals - Antitrust" is hereby amended and supplemented by adding
the following thereto:
"On March 12, 2002, the HSR Act waiting period applicable to the Offer
expired. Expiration of the HSR Act waiting period satisfies one of the
conditions to the Offer."
The press release of Smith & Nephew dated March 13, 2002 relating to
the expiration of the HSR Act waiting period is filed as Exhibit (a)(1)(I)
hereto and incorporated herein by reference.
Item 12. EXHIBITS.
The first sentence of the eighth paragraph of Exhibit (a)(1)(G) to the
Offer to Purchase is hereby amended in its entirety to read as follows:
"Purchaser expressly reserves the right, in its sole discretion
(subject to the terms and conditions of the Merger Agreement and the
applicable rules and regulations of the Securities and Exchange
Commission ("SEC")), at any time and from time to time, to extend the
period of time during which the Offer is open for any reason,
including the failure of any of the conditions specified in Section 14
of the Offer to Purchase to be satisfied."
EXHIBIT NO. DESCRIPTION
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(a)(1)(I) Press release of Smith & Nephew dated March 13, 2002.
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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.
SMITH & NEPHEW PLC
By: /s/ Peter Hooley
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Name: Peter Hooley
Title: Finance Director
SMITH & NEPHEW, INC.
By: /s/ James A. Ralston
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Name: James A. Ralston
Title: Senior Vice President and
General Counsel
ORCHID MERGER CORP.
By: /s/ James A. Ralston
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Name: James A. Ralston
Title: Senior Vice President and
General Counsel
Date: March 13, 2002
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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(a)(1)(I) Press release of Smith & Nephew dated March 13, 2002.
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