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.