This Amendment No. 1 (this Amendment) to Schedule
14D-9
amends and supplements the Solicitation/Recommendation Statement on Schedule
14D-9
(as amended or supplemented from time to time, the
Schedule 14D-9)
previously filed by Immune Design Corp., a Delaware corporation (Immune Design), with the Securities and Exchange Commission on March 5, 2019, relating to the offer
by (i) Merck Sharp & Dohme Corp., a New Jersey corporation (Parent), and (ii) Cascade Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Parent (Purchaser), to purchase all of the
issued and outstanding shares of common stock of Immune Design, $0.001 par value per share, (the Shares) for $5.85 per Share, to be paid to the seller in cash, without interest and subject to any applicable withholding, upon the terms
and subject to the conditions set forth in the Offer to Purchase, dated March 5, 2019 (as it may be amended or supplemented from time to time), and the related Letter of Transmittal (as it may be amended or supplemented from time to time).
Except as otherwise set forth below, the information set forth in the Schedule
14D-9
remains unchanged and is
incorporated by reference as relevant to the items in this Amendment. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Schedule
14D-9.
This Amendment is being
filed to reflect certain updates as reflected below.
Item 8.
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Additional Information.
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Item 8 of the Schedule
14D-9
is hereby amended and restated by deleting the sentence under the heading
Legal Proceedings
on page 40 of the Schedule
14D-9
and replacing it with the following paragraph:
Beginning on March 11, 2019, two putative class-action lawsuits were filed on behalf of purported Immune Design
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) and 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 and together with the Tullman
Complaint, the Complaints). The Complaints were filed against Immune Design and each member of Immune Designs board of directors. The Complaints assert claims for violations of Sections 14(e) and 20(a) of the Securities Exchange
Act and allege, among other things, that this Schedule 14D-9 omits certain material information, 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.
Item 8 of the Schedule
14D-9
is hereby amended and restated by deleting the third paragraph under the heading
Antitrust Compliance
on page 40 of the Schedule
14D-9
and
replacing it with the following paragraph:
On March 5, 2019, each of Parent and Immune Design filed its respective
Premerger Notification and Report Form with the FTC and the Antitrust Division in connection with the Offer. The required waiting period under the HSR Act with respect to the Offer was terminated early by the FTC on March 15, 2019. Accordingly,
the condition to the Offer requiring that any applicable waiting period under the HSR Act shall have expired or been terminated has been satisfied. The Offer continues to be subject to the satisfaction or waiver of the remaining conditions set forth
in the Offer to Purchase.
1.