SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
TENDER OFFER STATEMENT UNDER
SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 2)
Immune Design Corp.
(Name of Subject Company Issuer)
CASCADE MERGER SUB INC.
MERCK SHARP & DOHME CORP.
(Names of Filing Persons Offerors)
Common Stock, par value $0.001 per share
(Title of Class of Securities)
(CUSIP Number of Class of Securities)
Geralyn S. Ritter
Senior Vice President and Corporate Secretary
Merck & Co., Inc.
2000 Galloping Hill Road
Kenilworth, NJ 07033
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Barbara L. Becker
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
CALCULATION OF FILING FEE
|Transaction Valuation*||Amount of Filing Fee**|
Estimated solely for purposes of calculating the filing fee. The transaction value was determined by adding (1) 48,363,046 shares of common stock of Immune Design Corp. (IMDZ), par value $0.001 per share (the Shares), plus 635,165 Shares issuable upon the settlement of awards of time-vesting restricted stock units issued under IMDZs 2014 Omnibus Incentive Plan and 2008 Equity Incentive Plan, multiplied by the offer price of $5.85 per Share, (2) 5,007,902 Shares issuable pursuant to outstanding options, multiplied by $1.89, which is the offer price of $5.85 per Share minus the weighted average exercise price for such options of $3.96 per Share, and (3) 74,306 Shares subject to outstanding purchase rights under IMDZs 2014 Employee Stock Purchase Plan, multiplied by $4.71, which is the offer price of $5.85 per Share minus the exercise price for such Shares of $1.14 per Share. The calculation of the transaction value is based on information provided by IMDZ.
The filing fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended and Fee Rate Advisory #1 for Fiscal Year 2019, issued August 24, 2018, by multiplying the transaction valuation by 0.0001212.
Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
|Amount Previously Paid:||$35,930.28|
|Form or Registration No.:||Schedule TO|
|Filing Party:|| |
Merck Sharp & Dohme Corp.
and Cascade Merger Sub Inc.
|Date Filed:||March 5, 2019.|
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
Check the appropriate boxes to designate any transactions to which this statement relates:
third party tender offer subject to Rule 14d-l
issuer tender offer subject to Rule 13e-4
going-private transaction subject to Rule 13e-3
amendment to Schedule 13D under Rule 13d-2
Check the following box if the filing is a final amendment reporting the results of the tender offer. ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
This Amendment No. 2 amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on March 5, 2019 (together with any amendments and supplements thereto, this Schedule TO) and relates to the offer by Cascade Merger Sub Inc. (Purchaser), a Delaware corporation and a wholly owned subsidiary of Merck Sharp & Dohme Corp. (Parent), and an indirect subsidiary of Merck & Co., Inc. (Merck), to purchase all outstanding shares of common stock, par value $0.001 per share (individually, a Share and collectively, the Shares), of Immune Design Corp. (IMDZ), for $5.85 per Share, net to the seller in cash, without interest and less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated March 5, 2019 (together with any amendments and supplements thereto, the Offer to Purchase), and the related Letter of Transmittal, copies of which are attached hereto as Exhibits (a)(1)(A) and (a)(1)(B), respectively, to the Schedule TO.
Except as otherwise set forth in this Amendment No. 2, the information set forth in the Schedule TO remains unchanged and is incorporated herein by reference to the extent relevant to the items in this Amendment No. 2. Capitalized terms used and not otherwise defined in this Amendment No. 2 shall have the meanings ascribed to such terms in the Offer to Purchase.
Item 11. Additional Information.
Item 11 of the Schedule TO is hereby amended and supplemented as set forth below:
Section 16 of the Offer to Purchase titled Certain Legal Matters; Regulatory Approvals is hereby amended and supplemented by adding the following after the last sentence thereof:
Litigation. Beginning on March 11, 2019, six putative class-action lawsuits were filed on behalf of purported IMDZ stockholders: the first captioned Tullman v. Immune Design Corp., et al., No. 2:19-cv-00350 (filed March 11, 2019 in the United States District Court for the Western District of Washington) (the Tullman Complaint); the second captioned Hutchings v. Immune Design Corp., et al., No. 2:19-cv-00373 (filed March 14, 2019 in the United States District Court for the Western District of Washington) (the Hutchings Complaint); the third captioned Walker v. Immune Design Corp., et al., No. 1:19-cv-02391 (filed March 18, 2019 in the United States District Court for the Southern District of New York) (the Walker Complaint); the fourth captioned Reed v. Immune Design Corp., et al., No. 1:19-cv-02398 (filed March 18, 2019 in the United States District Court for the Southern District of New York) (the Reed Complaint); the fifth captioned Gray v. Immune Design Corp., et al., No. 1:19-cv-02410 (filed March 18, 2019 in the United States District Court for the Southern District of New York) (the Gray Complaint); and the sixth captioned Witmer v. Immune Design Corp., et al., No. 1:19-cv-00532 (filed March 18, 2019 in the United States District Court for the District of Delaware (the Witmer Complaint and together with the Tullman Complaint, the Hutchings Complaint, and the Gray Complaint, the Complaints). IMDZ has not been able to electronically access the Reed Complaint. The Walker Compliant was voluntarily dismissed on March 18, 2019. The Complaints were filed against IMDZ and each member of IMDZs board of directors. The Witmer Complaint also names Purchaser and Parent as defendants. The Complaints assert claims for violations of Sections 14(e) and 20(a) of the Securities Exchange Act and, in the case of the Gray Complaint and the Witmer Complaint, Section 14(d) of the Securities Exchange Act, and allege, among other things, that certain material information was omitted from IMDZs 14D-9, which the Complaints allege render the information disclosed materially misleading. The Complaints seek to enjoin the proposed transaction, or in the event the proposed transaction is consummated, to recover money damages.
After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certify that the information set forth in this statement is true, complete and correct.
Cascade Merger Sub Inc.
/s/ Faye C. Brown
Name: Faye C. Brown
Title: Assistant Secretary
Merck Sharp & Dohme Corp.
/s/ Sunil A. Patel
Name: Sunil A. Patel
Title: SVP, Corporate Development
Date: March 26, 2019