SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE14D-9
SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 2)
INVUITY, INC.
(Name of Subject Company)
INVUITY, INC.
(Name of Person Filing Statement)
Common Stock, par value $0.001 per share
(Title of Class of Securities)
46187J205
(CUSIP Number of Class of Securities)
Scott Flora
Interim President and Chief Executive Officer
Invuity, Inc.
444 De Haro Street
San Francisco, CA 94107
(415)665-2100
(Name, address and telephone number of person authorized to receive
notices and communications on behalf of the persons filing statement)
With copies to:
Robert T. Ishii Wilson Sonsini Goodrich & Rosati, P.C. One Market Plaza, Spear Tower Suite 3300 San Francisco, California 94105 (415) 947-2000 | Allison B. Spinner Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road Palo Alto, California 94304 (650)493-9300 |
| ☐ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
This Amendment No. 2 (this “Amendment”) amends and supplements the Solicitation/Recommendation Statement onSchedule 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 Purchaser’s 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 Schedule14D-9, respectively, and are incorporated herein by reference.
Except as otherwise set forth below, the information set forth in theSchedule 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 Schedule14D-9. This Amendment is being filed to reflect certain updates as set forth below.
| Item 8. | Additional Information. |
The subsection entitled “Regulatory Approvals—HSR Act” in Item 8 of theSchedule 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 theSchedule 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 Invuity’s Schedule14D-9. The cases also involve “control-person” claims against Invuity’s 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.”
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule14D-9 is true, complete and correct.
| INVUITY, INC. | ||||
| By: | /s/ Scott Flora | |||
| Name: | Scott Flora | |||
| Title: | Interim President and Chief Executive Officer | |||
Dated: October 10, 2018
