ZU (MM)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Amendment No. 4

to

SCHEDULE 14D-9

(Rule 14d-101)

Solicitation/Recommendation Statement

Under Section 14(d)(4) of the Securities Exchange Act of 1934

 

 

zulily, inc.

(Name of Subject Company)

 

 

zulily, inc.

(Name of Persons Filing Statement)

 

 

Class A Common Stock, par value $0.0001 per share

Class B Common Stock, par value $0.0001 per share

(Title of Class of Securities)

Class A Common Stock - 989774104

Class B Common Stock - 989774203

(CUSIP Number of Class of Securities)

Deirdre Runnette

General Counsel

zulily, inc.

2601 Elliott Avenue, Suite 200

Seattle, Washington 98121

(877) 779-5614

 

 

With copies to:

Keith A. Flaum

James R. Griffin

Weil, Gotshal & Manges LLP

201 Redwood Shores Parkway

Redwood Shores, California 94065

(650) 802-3000

 

 

 

¨

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. 4 amends and supplements Item 8 in the Solicitation/Recommendation Statement on Schedule 14D-9 filed by zulily, inc. (the “Company”) with the SEC on September 1, 2015 (as amended and supplemented from time to time, the “Schedule 14D-9”). The Schedule 14D-9 relates to the exchange offer (the “Offer”) by Mocha Merger Sub, Inc., a Delaware corporation (“Purchaser”) and an indirect, wholly owned subsidiary of Liberty Interactive Corporation, a Delaware corporation (“Liberty Interactive”), to exchange all of the Company’s Class A common stock, par value of $0.0001 per share (the “Class A Common Stock”) and the Company’s Class B common stock, par value of $0.0001 per share (the “Class B Common Stock” and, together with the Class A Common Stock, the “Shares”). Pursuant to the Offer, Purchaser is offering to exchange for each outstanding Share:

 

•

$9.375 in cash, without interest and subject to any withholding of taxes required by applicable law, and

 

•

0.3098 of a share of Liberty Interactive’s Series A QVC Group Common Stock, par value $0.01 per share

upon the terms and subject to the conditions set forth in the Offer to Exchange, dated as of September 1, 2015 (as amended or supplemented from time to time), and in the related letter of transmittal (as amended or supplemented from time to time).

Except as otherwise set forth below, the information set forth in the Schedule 14D-9 remains unchanged. Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Schedule 14D-9.

 

Item 8.

Additional Information to be Furnished.

Item 8 of the Schedule 14D-9 is hereby amended and supplemented by inserting as the third paragraph of the subsection entitled “Certain Litigation” the disclosure set forth below:

“On September 21, 2015, Krisha Mada, a purported stockholder of the Company, filed a putative class action complaint (the “Mana Complaint”) in the Court of Chancery of the State of Delaware against the Company, the Board, Mark Vadon, Darrell Cavens, Liberty Interactive, Purchaser, Merger Sub 2 and Goldman Sachs. The Mada Complaint alleges that: (i) the members of the Board breached their fiduciary duties to the Company’s stockholders in connection with the Transactions; (ii) Mark Vadon and Darrell Cavens breached their fiduciary duties to the Company’s stockholders in connection with the Transactions; and (iii) Liberty Interactive, Purchaser and Merger Sub 2 and Goldman Sachs aided and abetted such breaches of fiduciary duties. The suits seek, among other things: (i) certification as a class action; (ii) an order enjoining the Transactions; (iii) rescission of the Reorganization Agreement, or any terms thereof, to the extent already implemented or granting of rescissory damages; and (iv) an award of the costs and disbursements of the action, including reasonable attorneys’ and experts’ fees.”

Item 9 of the Schedule 14D-9 is hereby amended and supplemented by adding to the list of Exhibits immediately following the Exhibit listed as Exhibit (a)(5)(E) the Exhibit as follows:

 

(a)(5)(F)

Complaint filed by Krishna Mada, filed September 21, 2015 (incorporated by reference to Exhibit (a)(5)(K) to the Schedule TO of Mocha Merger Sub, Inc., filed by Liberty Interactive Corporation and Mocha Merger Sub, Inc. with the Securities and Exchange Commission on September 23, 2015).

 

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SIGNATURE

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.

Dated: September 23, 2015