Amended Statement of Ownership: Solicitation (sc 14d9/a)
September 29 2017 - 1:35PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment No. 1 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
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Mike Hird
Patty M. DeGaetano
Pillsbury Winthrop Shaw Pittman LLP
12255 El Camino Real,
Suite 300
San Diego, CA 92130
(619) 234-5000
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Mark McDonough
President and Chief Executive Officer
CombiMatrix Corporation
300 Goddard, Suite 100
Irvine, CA 92618
(949) 753-0624
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Parker A. Schweich
Stradling Yocca Carlson & Rauth, P.C.
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660
(949) 725-4000
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[ ]
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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This Amendment No. 1 (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. 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. 1 to Tender
Offer Statement on Schedule TO (together with the exhibits thereto, as amended, the “Schedule TO”), filed by
Invitae with the Securities and Exchange Commission (the “SEC”) on September 28, 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 September 28, 2017 (the “Prospectus/Offer to Exchange”), which is part of Amendment No.
1 to Registration Statement on Form S-4 (File No. 333-220448) (as amended, the “Registration Statement”)
that Invitae filed with the SEC on September 28, 2017, and which, with the related Letter of Transmittal filed as Exhibit
99.1 to 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 by and among Invitae, Coronado Merger Sub, Inc. and CombiMatrix.
Items 1 through 8.
All of the information in the Prospectus/Offer
to Exchange, and any 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.
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Description
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(a)(1)(A)*
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Schedule
TO filed by Invitae Corporation.
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(a)(1)(B)*
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Form
of Letter of Transmittal.
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(a)(1)(C)*
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Internal
Revenue Service Form W-9 (included in Exhibit (a)(1)(A)).
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(a)(1)(D)*
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Form
of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(1)(E)*
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Form
of Letter to Clients.
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(a)(1)(F)*
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Form
of Notice of Guaranteed Delivery.
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(a)(2)*
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Exhibit
(a)(4) is incorporated by reference.
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(a)(3)
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Not applicable.
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(a)(4)*
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Prospectus/Offer
to Exchange relating to shares of common stock of Invitae Corporation to be issued in the Exchange Offer.
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(a)(5)
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Not applicable.
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(e)(1)*
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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)).
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(e)(2)*
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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.
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(e)(3)*
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Transaction
Bonus Payout Agreement, dated as of July 31, 2017, by and among Invitae Corporation, CombiMatrix Corporation and Mark McDonough.
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(e)(4)*
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Transaction
Bonus Payout Agreement, dated as of July 31, 2017, by and among Invitae Corporation, CombiMatrix Corporation and Scott R.
Burell.
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(e)(5)*
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Independent
Contractor Agreement, effective as of the closing of the Merger, by and between Invitae Corporation and Mark McDonough.
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(e)(6)*
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Independent
Contractor Agreement, effective as of the closing of the Merger, by and between Invitae Corporation and Scott R. Burell.
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(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).
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(g)
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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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Dated: September 29, 2017
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By:
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/s/ SCOTT R. BURELL
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Name:
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Scott R. Burell
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Title:
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Chief Financial Officer
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