that it had not received any compensation from Stryker for investment banking or other services from August 1, 2015 through August 1, 2018. Moelis may provide services to Stryker in the future
and receive compensation therefor.
The Board selected Moelis as its financial advisor in connection with the Transactions because Moelis
has substantial experience in similar transactions. Moelis is regularly engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, strategic transactions, corporate restructurings and valuations for
corporate and other purposes.
Item 5. Persons/Assets, Retained, Employed, Compensated or Used.
Under the terms of Moelis engagement, Invuity has agreed to pay Moelis approximately $4.6 million, approximately $1.1 million
of which became payable in connection with the delivery of Moelis opinion, regardless of the conclusion reached therein, and the remainder of which is contingent upon consummation of the Merger. In addition, Invuity has agreed to reimburse
Moelis for its reasonable
out-of-pocket
expenses incurred in connection with Moelis engagement and to indemnify Moelis, any of its affiliates and each of their
respective current or former directors, officers, partners, managers, agents, representatives or employees against specified liabilities arising out of, related to or in connection with Moelis engagement, including liabilities under the
federal securities laws.
Neither Invuity nor any person acting on its behalf has or currently intends to employ, retain or compensate any
person to make solicitations or recommendations to the stockholders of Invuity on its behalf with respect to the Offer or related matters.
Item 6. Interest in Securities of the Subject Company.
No transactions with respect to Shares have been effected during the
sixty days prior to the date of this Schedule
14D-9
by Invuity or, to Invuitys knowledge after making reasonable inquiry, by any of its executive officers, directors or affiliates.
Item 7. Purposes of the Transaction and Plans or Proposals.
Subject Company Negotiations.
Except as otherwise set forth in this Schedule
14D-9
(including in the Exhibits to this Schedule
14D-9)
or as incorporated in this Schedule
14D-9
by reference, Invuity is not currently undertaking or engaged in any negotiations in response to the Offer that relate to, or
would result in, (i) a tender offer for, or other acquisition of, Shares by Invuity, any of Invuitys subsidiaries or any other person, (ii) any extraordinary transaction, such as a merger, reorganization or liquidation, involving
Invuity or any of its subsidiaries, (iii) any purchase, sale or transfer of a material amount of assets of Invuity or any of its subsidiaries or (iv) any material change in the present dividend rate or policy, indebtedness or
capitalization of Invuity.
Except as described above or otherwise set forth in this Schedule
14D-9
(including in the Exhibits to this Schedule
14D-9)
or as incorporated in this Schedule
14D-9
by reference, there are no
transactions, resolutions of the Board, agreements in principle or signed contracts in response to the Offer that relate to or would result in one or more of the matters referred to in the preceding paragraph.
Invuity has agreed that from the date of the Merger Agreement until the earlier of the date, if any, on which the Merger Agreement is
terminated and the Acceptance Time, Invuity will not, directly or indirectly, among other things, initiate, solicit, knowingly encourage or facilitate any alternative transaction proposals from third parties. In addition, Invuity has agreed to
certain procedures that it must follow in the event Invuity receives an unsolicited alternative transaction proposal, including the payment of a $5.9 million termination fee in the
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