Amended Statement of Ownership: Solicitation (sc 14d9/a)
24 Octubre 2017 - 3:06PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No. 2 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. 2 (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.
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. 2 to Tender
Offer Statement on Schedule TO (together with the exhibits thereto, as amended, the “Schedule TO”), filed by Invitae
with the SEC on October 23, 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”).
As
described in the Prospectus Supplement, for purposes of calculating and satisfying the condition in the Merger Agreement that
at least 90% of the CombiMatrix Series F Warrants outstanding immediately prior to the date of the Merger Agreement shall have
been validly tendered and not withdrawn prior to the expiration of the Exchange Offer, which is a condition to Invitae’s
obligation to consummate the Merger, Invitae will also count towards such 90% requirement any and all CombiMatrix Series F warrants
that are validly exercised prior to the expiration of the Offer (including, for this purpose, such exercises as are made contingent
solely upon a closing of the Merger). In addition, the Prospectus Supplement (i) provides updated estimates of the fraction of
a share of Invitae common stock, or the Merger Exchange Ratio, into which each share of CombiMatrix common stock will be converted
upon a closing of the Merger, based on CombiMatrix’s current estimate of net cash, (ii) provides updated estimates of the
number of shares of Invitae common stock to be issued in connection with the Merger and the Exchange Offer, and (iii) provides
additional disclosure as to how the participation percentage by the holders of the CombiMatrix Series F warrants in the Exchange
Offer and the amount of CombiMatrix Series F warrants separately exercised impacts the implied per share Merger consideration
based on CombiMatrix’s currently estimated net cash.
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)(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)*
|
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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.
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*
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
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|
|
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Dated: October
24, 2017
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By:
|
/s/
SCOTT R. BURELL
|
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Name:
|
Scott R. Burell
|
|
Title:
|
Chief Financial Officer
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