This Amendment No. 2 (this
Amendment
) amends and supplements the
Solicitation/Recommendation Statement on
Schedule 14D-9
of Invuity, Inc., a Delaware corporation (
Invuity
), originally filed with the Securities and Exchange Commission (the
SEC
) on September 24, 2018 (together with any subsequent amendments and supplements thereto, the
Schedule
14D-9
). This Amendment relates to the
tender offer by Accipiter Corp., a Delaware corporation (
Purchaser
) and a wholly owned subsidiary of Stryker Corporation, a Michigan corporation (
Stryker
), as disclosed in the Tender Offer Statement on
Schedule TO, filed by Purchaser and Stryker with the SEC on September 24, 2018, pursuant to which Purchaser has offered to purchase all of the outstanding common stock, $0.001 par value per share, of Invuity (the
Shares
)
for a purchase price of $7.40 per Share, in cash, without interest, subject to any applicable withholding of taxes, upon the terms and subject to the conditions set forth in Purchasers Offer to Purchase, dated September 24, 2018, and in
the related Letter of Transmittal. Copies of the Offer to Purchase and Letter of Transmittal are filed as Exhibits (a)(1)(A) and (a)(1)(B) to the Schedule
14D-9,
respectively, and are incorporated herein by
reference.
Except as otherwise set forth below, the information set forth in the
Schedule 14D-9
remains unchanged and is incorporated by reference as relevant to the items in this Amendment. Capitalized terms used but not otherwise defined herein have the meanings ascribed to such
terms in the Schedule
14D-9.
This Amendment is being filed to reflect certain updates as set forth below.
Item 8.
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Additional Information.
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The subsection entitled Regulatory ApprovalsHSR Act in Item 8 of the
Schedule 14D-9 is
hereby amended and supplemented by inserting the following at the end of the second paragraph:
At 11:59 p.m. Eastern Time on
October 9, 2018, the waiting period applicable to the Offer and the Merger under the HSR Act expired. Accordingly, the condition of the Offer relating to the expiration or termination of the HSR Act waiting period has been satisfied.
The subsection entitled Stockholder Litigation in Item 8 of the
Schedule 14D-9 is
hereby amended
and restated in its entirety as follows:
Stockholder Litigation
.
Invuity is aware of four class action lawsuits filed in connection with the Merger Agreement and the transactions contemplated thereby. Two
complaints, captioned Hercules Hurtado v. Invuity, Inc., et al., Case No.
3:18-cv-05920,
and Ruth Leibowitz v. Invuity, Inc., et al., Case No.
3:18-cv-06136,
were filed in the United States District Court for the Northern District of California on September 26, 2018, and October 5, 2018, respectively. The
third complaint, captioned Adam Franchi v. Invuity, Inc., et al. (the
Franchi Complaint
), was filed in the United States District Court for the District of Delaware on September 28, 2018. These complaints allege claims under
Section 14(a) of the Exchange Act, generally challenging the adequacy of the disclosures in Invuitys Schedule
14D-9.
The cases also involve control-person claims against Invuitys
directors, and the Franchi Complaint involves control-person claims against Stryker.
The fourth complaint, captioned Connor
Kilp v. Invuity, Inc., et al., Case No.
CGC-18-570154,
was filed in the San Francisco County Superior Court of California on September 27, 2018. Plaintiffs in that
case allege that the members of the Board breached their fiduciary duties by approving of and entering into the Merger Agreement and that the Offer Price was inadequate. The plaintiffs further allege that the members of the Board breached their
fiduciary duties by making inadequate disclosures in connection with the transaction.
All of the complaints seek, among other things, to
enjoin the proposed transaction, rescission of the proposed transaction should it be completed, and damages.