This Current Report on Form8-K is filed by K2M Group Holdings, Inc., a Delaware corporation (the “Company” or “K2M”), in connection with the matters described herein.
This Current Report onForm 8-K is being filed by K2M in connection with an agreement to settle certain litigation relating to the previously announced definitive Agreement and Plan of Merger (the “merger agreement”), dated as of August 29, 2018, by and among Stryker Corporation, a Michigan corporation (“Stryker”), Austin Merger Sub Corp., a Delaware corporation and a wholly owned subsidiary of Stryker (“Merger Sub”), and K2M, pursuant to which, on the terms and subject to the conditions set forth in the merger agreement, Merger Sub will merge with and into K2M, with Merger Sub ceasing to exist and K2M surviving as a direct or indirect wholly owned subsidiary of Stryker (the “merger”).
Supplemental Disclosures in Connection with Transaction Litigation
As previously disclosed in the Company’s Current Report on Form8-K filed with the Securities and Exchange Commission (the “SEC”) on October 18, 2018, two purported class action lawsuits were filed on October 11, 2018, in the United States District Court for the District of Delaware, challenging the merger. These lawsuits, Brown vs K2M Group Holdings, Inc. et al., Case No.1:18-cv-01567-UNA and Franchi vs K2M Group Holdings, Inc. et al., Case No.1:18-cv-01568-UNA (the “Actions”), name K2M and individual officers and members of the K2M Board of Directors as defendants. The Actions allege, among other things, that the defendants failed to disclose certain information relating to K2M’s financial projections set forth in the proxy statement filed with the SEC on October 5, 2018. On October 17, 2018, plaintiff in the Brown lawsuit filed a motion for a preliminary injunction seeking to enjoin the stockholder vote on the merger pending the disclosure of additional information.
K2M believes that the Actions are without merit and that no further disclosure is required to supplement the proxy statement under applicable law; however, to eliminate the burden, expense, and uncertainties inherent in such litigation, and without admitting any liability or wrongdoing, K2M has agreed to make certain supplemental disclosures to the proxy statement as set forth below. Nothing in these supplemental disclosures shall be deemed an admission of the legal necessity or materiality under applicable law of any of the disclosures set forth herein. The defendants have vigorously denied, and continue vigorously to deny, that they have committed any violation of law or engaged in any of the wrongful acts that were alleged in the Actions. In consideration for such supplemental disclosures by K2M, plaintiffs in the Actions have agreed to voluntarily dismiss the Actions, and plaintiff in theBrown lawsuit has agreed to withdraw the motion for a preliminary injunction seeking to enjoin the stockholder vote on the merger pending the publication of additional disclosures.
Supplements to the Proxy Statement
The supplemental disclosures to the proxy statement set forth in this Current Report onForm 8-K below should be read alongside the proxy statement, which should be read in its entirety, and to the extent that information in this Current Report onForm 8-K differs from or updates information contained in the proxy statement, this Current Report onForm 8-K shall supersede the information in the proxy statement. Defined terms used but not otherwise defined herein have the meanings set forth in the proxy statement.
1. The section of the proxy statement titled “Financial Projections” is hereby supplemented as follows:
A. Under the caption “Financial Projections,” the table and related footnotes on page 54 of the proxy statement are replaced in their entirety as follows:
