- Amended Statement of Ownership: Solicitation (SC 14D9/A)
June 08 2011 - 3:07PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment
No. 3)
Orthovita, Inc.
(Name of Subject Company)
Orthovita, Inc.
(Names of Persons Filing Statement)
Common Stock
($0.01 par value)
(Title of Class of Securities)
CUSIP 68750U102
(CUSIP Number of Class of Securities)
Christine J.
Arasin, Esquire
Vice President and General Counsel
Orthovita, Inc.
77 Great Valley Parkway
Malvern, PA 19355
(610) 640-1775
(Name, address, and telephone numbers of person authorized to receive
notices and communications on behalf of the persons filing statement)
With copies to:
Richard A. Silfen, Esquire
Douglas P. Howard, Esquire
Duane Morris LLP
30 South 17th Street
Philadelphia, Pennsylvania 19103
(215) 979-1000
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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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This Amendment No. 3 amends and supplements the Solicitation/Recommendation Statement
on Schedule 14D-9 initially filed with the Securities and Exchange Commission (the SEC) on May 27, 2011, as amended by Amendment No. 1 thereto filed with the SEC on May 27, 2011 and Amendment No. 2 thereto filed with
the SEC on June 3, 2011 (as the same may be further amended or supplemented from time to time, the Schedule 14D-9) by Orthovita, Inc., a Pennsylvania corporation (the Company or Orthovita). The Schedule 14D-9
relates to the tender offer by Owl Acquisition Corporation, a Delaware corporation (the Purchaser) and a wholly-owned indirect subsidiary of Stryker Corporation, a Michigan corporation (Parent), to purchase all of the
outstanding shares of the Companys common stock, par value $0.01 per share, at a purchase price of $3.85 per share, 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 amended or supplemented from time to time, the Offer to Purchase), and in the related Letter of Transmittal (as amended or supplemented from time to time, the
Letter of Transmittal) (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). Copies of the Offer to Purchase and Letter of
Transmittal are filed as Exhibit (a)(1)(A) and Exhibit (a)(1)(B) to the Schedule 14D-9, respectively, and are incorporated herein by reference. Any capitalized term used, but not otherwise defined, herein shall have the meaning ascribed to such term
in the Schedule 14D-9.
This Amendment No. 3 is being filed to reflect certain updates as reflected below.
Item 8.
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Additional Information
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The section entitled Certain Litigation under Item 8 is hereby amended and supplemented by adding the following paragraph after the last paragraph of such section:
On June 6, 2011, Adolphina Van Barel (Van Barel), a purported shareholder of Orthovita, filed a putative class
action in the United States District Court for the Eastern District of Pennsylvania, captioned
Van Barel v. Koblish et al.
, Case No. 11-3652, naming as defendants the individual members of the Orthovita Board, Orthovita, Parent and the
Purchaser. On behalf of a putative class of Orthovita shareholders and derivatively on behalf of Orthovita, Van Barel asserts claims against (i) the individual directors of Orthovita for violations of Sections 14(d)(4) and 14(e) of the Exchange
Act for material misrepresentations in, and omission of material information from, the Schedule 14D-9 and (ii) the individual directors of Orthovita for breaches of fiduciary duties in connection with the Offer and the Merger, and, on behalf of
a putative class of Orthovita shareholders, Van Barel asserts claims against Orthovita, Parent and the Purchaser for aiding and abetting the breaches of fiduciary duties by the individual directors of Orthovita. Van Barel seeks declaratory relief,
injunctive relief, rescission, damages, costs, including a reasonable allowance for the fees and expenses of attorneys and experts, and other equitable relief. Orthovita believes that this action is without merit and intends to defend its position
in this matter vigorously.
1
Item 9 is hereby amended and supplemented by adding the following exhibit, filed as part of the Schedule 14D-9:
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Exhibit
No.
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Description
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(a)(5)(F)
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Complaint filed by Adolphina Van Barel, on behalf of herself and on behalf of all others similarly situated, on June 6, 2011, in the United States District Court for the Eastern
District of Pennsylvania (incorporated by reference to Exhibit (a)(5)(C) to the Schedule TO of Stryker Corporation and Owl Acquisition Corporation, as amended by Amendment No. 1 thereto, filed with the SEC on May 27, 2011, Amendment No. 2 thereto,
filed with the SEC on June 3, 2011 and Amendment No. 3 thereto, filed with the SEC on June 8, 2011).
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2
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.
Date: June 8, 2011
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ORTHOVITA, INC.
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By:
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/s/ A
NTONY
K
OBLISH
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Antony Koblish
President
and Chief Executive Officer
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