This Amendment No. 3 (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.
Although Invuity believes that no supplemental disclosure is required under applicable laws, Invuity is making available certain additional information (which it considers immaterial) to its stockholders in this Amendment in response to the purported class action lawsuits described in Item 8 of the Schedule14D-9 under the subsection entitled “Stockholder Litigation.” 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 the information set forth below.
Item 3. | Past Contacts, Transactions, Negotiations and Agreements. |
The subsection entitled “Arrangements with Directors and Executive Officers of Invuity—Retention Arrangements with Stryker” in Item 4 of theSchedule 14D-9 is hereby amended and supplemented by restating the first and second sentences of the first paragraph with the following:
“As of the date hereof, Stryker and Invuity have not entered into any agreement, arrangement or understanding with any members of Invuity’s management team regarding employment or consultancy with Stryker or the Surviving Corporation, nor has there been any reference by Stryker to the potential employment of any members of Invuity’s management team in any written proposals to acquire Invuity or other writing not referenced in this Schedule14D-9. On September 18, 2018, Stryker Instruments, a subsidiary of Stryker, offered retention packages to Scott Flora, James Mackaness, Douglas Heigel, Hisham Shiblaq and Steve Annen that include payments totaling approximately $1,555,000 in the aggregate.”
Item 4. | The Solicitation or Recommendation. |
The subsection entitled “Recommendation of the Board—Background” in Item 4 of theSchedule 14D-9 is hereby amended and supplemented by inserting the following at the end of the tenth paragraph:
“Among other factors, Moelis was selected due to its proven track record and the positive experience Mr. Lucier had with Moelis in its representation of Life Technologies Corporation, of which Mr. Lucier was Chairman and Chief Executive Officer, in its sale to Thermo Fisher Scientific in 2013.”
The subsection entitled “Recommendation of the Board—Background” in Item 4 of theSchedule 14D-9 is hereby amended and supplemented by inserting the following at the end of the fifty-ninth paragraph:
“The standstill provisions in thenon-disclosure agreement with Party A fell away upon the execution of the Merger Agreement.”