Amended Statement of Ownership: Solicitation (sc 14d9/a)
10 November 2017 - 9:04AM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No. 3 to
SCHEDULE
14D-9
(Rule
14d-101)
Solicitation/Recommendation
Statement under Section 14(d)(4)
of
the Securities Exchange Act of 1934
CombiMatrix
Corporation
(Name
of Subject Company)
CombiMatrix
Corporation
(Names
of Persons Filing Statement)
Series
F Warrants to Purchase Common Stock, Par Value $0.001 Per Share
(Title
of Class of Securities)
20009T147
(CUSIP
Number of Class of Securities)
Mark
McDonough
President
and Chief Executive Officer
CombiMatrix
Corporation
300
Goddard, Suite 100
Irvine,
CA 92618
(949)
753-0624
(Name,
address and telephone number of person authorized to receive notices and communications on behalf of the persons filing statement)
Copies
to:
Thomas
Brida
General
Counsel
Invitae
Corporation
1400
16th Street
San
Francisco, CA 94103
(415)
350-3618
|
Mike
Hird
Patty
M. DeGaetano
Pillsbury
Winthrop Shaw Pittman LLP
12255
El Camino Real,
Suite
300
San
Diego, CA 92130
(619)
234-5000
|
Mark
McDonough
President
and Chief Executive Officer
CombiMatrix
Corporation
300
Goddard, Suite 100
Irvine,
CA 92618
(949)
753-0624
|
Parker
A. Schweich
Stradling
Yocca Carlson & Rauth, P.C.
660
Newport Center Drive, Suite 1600
Newport
Beach, CA 92660
(949)
725-4000
|
[ ]
|
Check
the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
|
This
Amendment No. 3 (this “Amendment”) amends and supplements the Solicitation/Recommendation Statement on Schedule
14D-9 (as amended, the “Schedule 14D-9”) originally filed on September 14, 2017, as subsequently amended by Amendment
No. 1 to the Schedule 14D-9 filed with the Securities and Exchange Commission (the “SEC”) on September 29, 2017 and
Amendment No. 2 to the Schedule 14D-9 filed with the SEC on October 24, 2017. This Schedule 14D-9 relates to the offer by
Invitae Corporation, a Delaware corporation (“Invitae”), to exchange (the “Exchange Offer”) each outstanding
Series F warrant (the “CombiMatrix Series F Warrants”) to acquire shares of common stock of CombiMatrix Corporation,
a Delaware corporation (“CombiMatrix”), for shares of common stock, par value $0.0001 per share, of Invitae (the “Invitae
Common Stock”), as disclosed in the Amendment No. 3 to Tender Offer Statement on Schedule TO (together with the exhibits
thereto, as amended, the “Schedule TO”), filed by Invitae with the SEC on November 8, 2017.
The
terms and conditions of the Exchange Offer, as well as a description of CombiMatrix and other information required by Schedule
14D-9, are set forth in the prospectus/offer to exchange, dated October 6, 2017 (as supplemented, the “Prospectus/Offer
to Exchange”), as supplemented by Prospectus Supplement No. 1, dated October 23, 2017, filed as Exhibit (a)(4)(B) hereto
(the “Prospectus Supplement”), that Invitae filed with the SEC and which, with the related Letter of Transmittal filed
as Exhibit 99.1 to Invitae’s registration statement on Form S-4 (No. 333-220448) (as amended, the “Registration Statement”),
together constitute the “Offer.” The Prospectus/Offer to Exchange is incorporated herein by reference in its entirety.
Pursuant
to the Exchange Offer, each CombiMatrix Series F Warrant validly tendered and not withdrawn in the Exchange Offer will be exchanged
for a number of shares of Invitae Common Stock (the “Warrant Exchange Ratio”) equal to 0.3056, which was calculated
as the quotient (rounded to the nearest ten-thousandth) obtained by dividing $2.90 by the average closing price of $9.491 for
shares of Invitae common stock on the NYSE for the immediately preceding period of 30 trading days prior to July 31, 2017, the
date of the Agreement and Plan of Merger and Reorganization
(the “Merger Agreement”)
by and among Invitae, Coronado Merger Sub, Inc., a wholly owned subsidiary of Invitae (“Merger Sub”), and CombiMatrix,
pursuant to which Merger Sub will merge with and into CombiMatrix, with CombiMatrix surviving as a wholly owned subsidiary of
Invitae (the “Merger”).
On
November 8, 2017, Invitae issued a press release, filed as Exhibit (a)(1)(G) hereto, reminding CombiMatrix Series F Warrant holders
about the Exchange Offer expiration, its terms, conditions, the intended delisting of any unexchanged and unexercised CombiMatrix
Series F Warrants, and procedures for tendering or exercising their CombiMatrix Series F Warrants.
Items
1 through 8.
All
of the information in the Prospectus/Offer to Exchange, the Prospectus Supplement, and any additional prospectus supplement or
other amendment or supplement thereto related to the Exchange Offer hereafter filed with the SEC by Invitae, is hereby incorporated
by reference into Items 1 through 8 of this Schedule 14D-9. This Amendment should be read together with the Schedule 14D-9.
Item
9. Exhibits.
Exhibit
No.
|
|
Description
|
(a)(1)(A)*
|
|
Schedule
TO filed by Invitae Corporation.
|
(a)(1)(B)*
|
|
Form
of Letter of Transmittal.
|
(a)(1)(C)*
|
|
Internal
Revenue Service Form W-9 (included in Exhibit (a)(1)(B)).
|
(a)(1)(D)*
|
|
Form
of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
|
(a)(1)(E)*
|
|
Form
of Letter to Clients.
|
(a)(1)(F)*
|
|
Form
of Notice of Guaranteed Delivery.
|
(a)(1)(G)
|
|
Press release issued by Invitae
Corporation on November 8, 2017 (incorporated by reference to Exhibit (a)(1)(F) to the Schedule TO filed by Invitae Corporation
with the SEC on November 8, 2017).
|
(a)(2)
|
|
Exhibits
(a)(4)(A) and (a)(4)(B) are incorporated by reference.
|
(a)(3)
|
|
Not applicable.
|
(a)(4)(A)
|
|
Prospectus/Offer
to Exchange relating to shares of common stock of Invitae Corporation to be issued in the Exchange Offer (incorporated by
reference to the Prospectus/Offer to Exchange filed by Invitae Corporation with the SEC on October 6, 2017).
|
(a)(4)(B)
|
|
Prospectus
Supplement No. 1 to the Prospectus/Offer to Exchange relating to shares of common stock of Invitae Corporation to be issued
in the Exchange Offer (incorporated by reference to Prospectus Supplement No. 1 filed by Invitae Corporation with the SEC
on October 23, 2017).
|
(a)(5)
|
|
Not applicable.
|
(e)(1)*
|
|
Agreement
and Plan of Merger and Reorganization, dated as of July 31, 2017, by and among Invitae Corporation, Coronado Merger Sub, Inc.
and CombiMatrix Corporation (incorporated by reference to Exhibit 2.1 to Invitae’s Current Report on Form 8-K filed
on August 1, 2017, and included as Annex A to Exhibit (a)(4)(A)).
|
(e)(2)*
|
|
Form
of Transaction Bonus Payout Agreement, dated as of July 31, 2017, entered into by and among CombiMatrix Corporation, Invitae
Corporation and each of the outside directors of CombiMatrix.
|
(e)(3)*
|
|
Transaction
Bonus Payout Agreement, dated as of July 31, 2017, by and among Invitae Corporation, CombiMatrix Corporation and Mark McDonough.
|
(e)(4)*
|
|
Transaction
Bonus Payout Agreement, dated as of July 31, 2017, by and among Invitae Corporation, CombiMatrix Corporation and Scott R.
Burell.
|
(e)(5)*
|
|
Independent
Contractor Agreement, effective as of the closing of the Merger, by and between Invitae Corporation and Mark McDonough.
|
(e)(6)*
|
|
Independent
Contractor Agreement, effective as of the closing of the Merger, by and between Invitae Corporation and Scott R. Burell.
|
(e)(7)*
|
|
Marketing
and Laboratory Services Agreement, dated as of September 25, 2017, by and among Invitae Corporation, Good Start Genetics,
Inc. and CombiMatrix Molecular Diagnostics, Inc. (incorporated by reference to Exhibit 10.1 to CombiMatrix’s Current
Report on Form 8-K filed on September 27, 2017).
|
(g)
|
|
Not applicable.
|
*
Incorporated by reference to the Registration Statement or the Schedule TO.
SIGNATURES
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.
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COMBIMATRIX CORPORATION
|
|
|
|
Dated: November
9, 2017
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By:
|
/s/
SCOTT R. BURELL
|
|
Name:
|
Scott R. Burell
|
|
Title:
|
Chief Financial Officer
|
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