This Amendment No. 2 (this Amendment) to the Tender Offer Statement on
Schedule TO amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on September 24, 2018 (together with any amendments and supplements thereto, the Schedule TO) by
Accipiter Corp. (Purchaser), a Delaware corporation, and Stryker Corporation (Stryker), a Michigan corporation. The Schedule TO relates to the tender offer by Purchaser, a wholly-owned subsidiary of Stryker, and Stryker, for
all of the outstanding shares of common stock, par value $0.001 per share, of Invuity, Inc. (Invuity), a Delaware corporation, at a price of $7.40 per share, paid to the seller in cash, without interest, subject to any required
withholding of taxes, upon the terms and conditions set forth in the Offer to Purchase, dated September 24, 2018 (the Offer to Purchase), a copy of which is attached as Exhibit (a)(1)(A) to the Schedule TO, and in the related Letter
of Transmittal (the Letter of Transmittal), a copy of which is attached as Exhibit (a)(1)(B) to the Schedule TO, which, as each may be amended or supplemented from time to time, collectively constitute the Offer. This
Amendment is being filed on behalf of Stryker and Purchaser.
The information set forth in the Offer to Purchase, including Annex I
thereto, and the related Letter of Transmittal is incorporated by reference herein in response to Items 1 through 9 and Item 11 of the Schedule TO. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such
terms in the Offer to Purchase.
Items 1 through 9; Item 11.
Item 11 of the Schedule TO (and Items 1 through 9 of the Schedule TO, to the extent such items incorporate by reference the information
contained in the Offer to Purchase) and the disclosure under Section 14
Conditions of the Offer
and Section 15
Legal Matters
Antitrust
of the Offer to Purchase are hereby
amended and supplemented by adding the following sentence:
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 information set forth in the Offer to Purchase under
The Tender OfferSection
15Legal
Matters
and Items 1 through 9 and Item 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, are hereby amended and supplemented by amending and restating in its
entirety the subsection entitled
Securityholder Litigation
within such section of the Offer to Purchase as follows:
Securityholder 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 Invuitys board of directors 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 Invuitys board of directors 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.