<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
SCHEDULE 14D-9
(AMENDMENT NO. 1)
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
__________
COMBICHEM, INC.
(NAME OF SUBJECT COMPANY)
__________
COMBICHEM, INC.
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, $.001 PAR VALUE
(TITLE OF CLASS OF SECURITIES)
20009P 10 3
(CUSIP NUMBER OF CLASS OF SECURITIES)
DR. VICENTE ANIDO, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
COMBICHEM, INC.
9050 CAMINO SANTA FE
SAN DIEGO, CALIFORNIA 92121
(858) 530-0484
(NAME, ADDRESS, AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICE AND
COMMUNICATIONS ON BEHALF OF PERSON(S) FILING STATEMENT)
__________
COPIES TO:
FAYE H. RUSSELL, ESQ.
CAREY J. FOX, ESQ.
BROBECK, PHLEGER & HARRISON, LLP
550 WEST C STREET, SUITE 1300
SAN DIEGO, CALIFORNIA 92101
(619) 234-1966
JUSTIN P. KLEIN, ESQ.
BALLARD SPAHR ANDREWS & INGERSOLL LLP
1735 MARKET STREET
PHILADELPHIA, PENNSYLVANIA 19103
(215) 864-8606
================================================================================
<PAGE>
This Amendment No. 1 to the Solicitation/Recommendation Statement on
Schedule 14D-9 (the "Schedule 14D-9") relates to the tender offer of DPC Newco,
Inc., a Delaware corporation ("Offeror") and wholly owned subsidiary of DuPont
Pharma, Inc., a Delaware corporation ("Purchaser") and an indirect wholly owned
subsidiary of E.I. du Pont de Nemours and Company, a Delaware corporation
("Parent") disclosed in a Tender Offer Statement on Schedule 14D-1 (the Schedule
14D-1) dated October 12, 1999, to purchase all of the outstanding shares at a
price of $6.75 per Share, net to the seller, in cash, upon the terms and subject
to the conditions set forth in the Offer to Purchase dated October 12, 1999 (the
"Offer to Purchase") and the related Letter of Transmittal (which together shall
constitute the "Offer"). The purpose of this Amendment No. 1 is to amend and
supplement Items 4 and 9 of the Schedule 14D-9 as described below.
Item 4. The Solicitation or Recommendation
Item 4 is hereby amended and supplemented as set forth below. The text
of Item 4 as previously filed on October 12, 1999 is incorporated herein by
reference.
On October 15, 1999, a putative shareholder "class action complaint for
breach of fiduciary duty" was filed in the Superior Court of the State of
California, County of San Diego, by Alfred Ivers, on behalf of himself and all
others similarly situated, against the Company, its Board of Directors, Parent,
Offeror, Donaldson Lufkin & Jenrette Securities Corporation, the Company's
investment advisor ("DLJ") and "DOES 1-25." The complaint alleges, among other
things, that the members of the Company's Board of Directors have breached their
fiduciary duty of loyalty and due care and their duty of candor in connection
with the Merger Agreement and related events and that Parent, Offeror and DLJ
have aided and abetted the members of the Company's Board of Directors in
breaching their fiduciary duties. The complaint, among other things, seeks to
(i) declare the Merger Agreement unenforceable, (ii) enjoin the Offer and the
Merger and (iii) recover unspecified monetary damages, costs and attorneys'
fees. The Company believes that the suit is without merit and will vigorously
defend the suit. The above description is qualified in its entirety by reference
to the complaint, a copy of which is filed herewith as Exhibit 10 and is
incorporated herein by reference.
Item 9. Material to be Filed as Exhibits
<TABLE>
<CAPTION>
Exhibit Description
- - ------- -----------
<S> <C>
Exhibit 1 Offer to Purchase dated October 12, 1999 (incorporated by reference to Exhibit (a)(1) of the
Schedule 14D-1 of E.I. du Pont de Nemours and Company, Dupont Pharma, Inc. and DPC Newco,
Inc. filed with the Securities and Exchange Commission on October 12, 1999 (the "Schedule
14D-1")).**(1)
Exhibit 2 Letter of Transmittal (incorporated by reference to Exhibit (a)(2) of the Schedule 14D-1).**
(1)
Exhibit 3 Joint Press Release issued by the Company and the Parent, dated October 5, 1999.(1)
Exhibit 4 Opinion Letter of Donaldson Lufkin & Jenrette Securities Corporation dated October 4, 1999.*
(1)
Exhibit 5 Mutual Non-Disclosure Agreement dated March 10, 1999 between the Company and DuPont
Pharmaceuticals Company. (1)
Exhibit 6 Agreement and Plan of Merger, dated as of October 5, 1999 between the Company, the Parent and
Offeror (incorporated by reference to Exhibit (c)(1) of the Schedule 14D-1). (1)
Exhibit 7 Stock Option Agreement dated as of October 5, 1999 among the Parent, Offeror and the Company
(incorporated by reference to Exhibit (c)(3) of the Schedule 14D-1). (1)
Exhibit 8 Shareholders Agreement dated as of October 5, 1999 between the Parent, Offeror and certain
stockholders of the Company (incorporated by reference to Exhibit (c)(2) of the Schedule
14D-1). (1)
Exhibit 9 Letter to Stockholders of the Company dated October 12, 1999.* (1)
Exhibit 10 Complaint - Alfred Ivers on behalf of himself and all others similarly situated v. CombiChem,
Inc., Phillipe O. Chambon, William Scott, Vicente Anido, Jr., Arthur Reidel, Peter L. Myers,
Michael J. Pazzani, E.I. du Pont de Nemours and Company, DPC Newco, Inc., Donaldson Lufkin &
Jenrette Securities Corporation and Does 1-25, inclusive, Case No. GIC 737125 (Superior
Court, San Diego, CA, filed October 15, 1999). (2)
</TABLE>
____________________
* Included in copies of Schedule 14D-9 mailed to stockholders of the Company.
** Included in the Offer to Purchase materials mailed to stockholders of the
Company.
<PAGE>
(1) Previously filed.
(2) Filed herewith.
2
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Date: October 22, 1999 COMBICHEM, INC.
/s/ Dr. Vicente Anido, Jr.
------------------------------------
Dr. Vicente Anido, Jr.
President & Chief Executive Officer
3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
- - ------- -----------
<S> <C>
Exhibit 1 Offer to Purchase dated October 12, 1999 (incorporated by reference to Exhibit (a)(1) of the
Schedule 14D-1 of E.I. du Pont de Nemours and Company, Dupont Pharma, Inc. and DPC Newco,
Inc. filed with the Securities and Exchange Commission on October 12, 1999 (the "Schedule
14D-1")).** (1)
Exhibit 2 Letter of Transmittal (incorporated by reference to Exhibit (a)(2) of the Schedule 14D-1).**
(1)
Exhibit 3 Joint Press Release issued by the Company and the Parent, dated October 5, 1999. (1)
Exhibit 4 Opinion Letter of Donaldson Lufkin & Jenrette Securities Corporation dated October 4, 1999.*
(1)
Exhibit 5 Mutual Non-Disclosure Agreement dated March 10, 1999 between the Company and DuPont
Pharmaceuticals Company. (1)
Exhibit 6 Agreement and Plan of Merger, dated as of October 5, 1999 between the Company, the Parent and
Offeror (incorporated by reference to Exhibit (c)(1) of the Schedule 14D-1). (1)
Exhibit 7 Stock Option Agreement dated as of October 5, 1999 among the Parent, Offeror and the Company
(incorporated by reference to Exhibit (c)(3) of the Schedule 14D-1). (1)
Exhibit 8 Shareholders Agreement dated as of October 5, 1999 between the Parent, Offeror and certain
stockholders of the Company (incorporated by reference to Exhibit (c)(2) of the Schedule
14D-1). (1)
Exhibit 9 Letter to Stockholders of the Company dated October 12, 1999.* (1)
Exhibit 10 Complaint - Alfred Ivers on behalf of himself and all others similarly situated v. CombiChem,
Inc., Phillipe O. Chambon, William Scott, Vicente Anido, Jr., Arthur Reidel, Peter L. Myers,
Michael J. Pazzani, E.I. du Pont de Nemours and Company, DPC Newco, Inc., Donaldson Lufkin &
Jenrette Securities Corporation and Does 1-25, inclusive, Case No. GIC 737125 (Superior
Court, San Diego, CA, filed October 15, 1999). (2)
</TABLE>
____________________
* Included in copies of Schedule 14D-9 mailed to stockholders of the Company.
** Included in the Offer to Purchase materials mailed to stockholders of the
Company.
(1) Previously filed
(2) Filed herewith
4
<PAGE>
EXHIBIT 10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
<TABLE>
<S> <C>
ALFRED IVERS, On Behalf of Himself and All Others ) Case No. GIC 737125
Similarly Situated, )
) CLASS ACTION
Plaintiff, )
)
vs. ) CLASS ACTION COMPLAINT FOR BREACH OF
) FIDUCIARY DUTY
)
COMBICHEM, INC., PHILIPPE O. CHAMBON, WILLIAM SCOTT, ) General - Civil
VICENTE ANIDO, JR., ARTHUR REIDEL, PETER L. MYERS, )
MICHAEL J. PAZZANI, E.I. DUPONT DE NEMOURS AND )
COMPANY, DPC NEWCO, INC., DONALDSON LUFKIN & JENRETTE )
SECURITIES CORPORATION and DOES 1-25, inclusive, )
)
)
)
Defendants. ) DEMAND FOR JURY TRIAL
- - ------------------------------------------------------
</TABLE>
Plaintiff, by his attorneys, alleges as follows:
INTRODUCTION
1. This is a class action on behalf of the public stockholders, of
CombiChem, Inc. ("CombiChem" or the "Company") against CombiChem and its Board
of Directors (collectively the "CombiChem Defendants") as well as E.I. DuPont de
Nemours and Company and DPC Newco, Inc. (collectively "DuPont") and Donaldson
Lufkin & Jenrette Securities Corporation ("DLJ"), arising out of DuPont's
October 5, 1999 offer to purchase the outstanding shares of CombiChem for $6.75
per share.
2. Each of the defendants has directly violated and/or aided and abetted
the other defendants' violations of the fiduciary duties owed to the public
shareholders of CombiChem. Absent judicial intervention, the merger will be
consummated which will result in irreparable injury to the plaintiff and the
Class. This action seeks to enjoin defendants' unlawful conduct.
JURISDICTION AND VENUE
3. This Court has jurisdiction over the causes of action asserted herein
pursuant to the California Constitution, Article VI, (S) 10, because this case
is a cause not given by statute to other trial courts.
4. This Court has jurisdiction over each of the defendants because they
conduct business in, reside in and/or are citizens of California. Certain of the
defendants are citizens of California, including defendant CombiChem which has
its principal place of business in the State of California. The amount in
controversy of plaintiffs claim exclusive of interest and costs is less than
$75,000. Venue is proper in this Court because defendants' wrongful acts arose
in and emanated from this county.
PARTIES
5. Plaintiff Alfred Ivers at all times relevant hereto has been a
stockholder of CombiChem.
<PAGE>
6. Defendant CombiChem is a corporation with its principal executive
offices located at 9050 Camino Santa Fe, San Diego, California. CombiChem is a
San Diego-based computational drug discovery company which utilizes its rapid
synthesis capabilities to accelerate the discovery process for new drugs.
CombiChem's common shares are publicly traded on the NASDAQ. CombiChem has over
13.5 million shares outstanding held by hundreds of shareholders.
7. Defendant Philippe O. Chambon ("Chambon") has served as a director of
the Company since 1995.
8. Defendant William Scott ("Scott") has served as a director of the
Company since 1997.
9. Defendant Vicente Anido, Jr. ("Anido") has served as President and
Chief Executive Officer and as a director of the Company since 1996.
10. Defendant Arthur Reidel ("Reidel") has served as a director of the
Company since 1997.
11. Defendant Peter L. Myers ("Myers") has served as a director, Vice
President and Chief Scientific Officer of the Company since 1995.
12. Defendant Michael J. Pazzani ("Pazzani") has served as a director of
the Company since 1999.
13. The defendants named in (P)(P)7-12 are sometimes collectively referred
to herein as the "Individual Defendants."
14. Defendant E.I. DuPont de Nemours and Company ("DuPont de Nemours") is
the parent corporation of DPC Newco, Inc. ("DPC"). DuPont de Nemours is a
pharmaceutical company operating in 65 countries world wide. DPC is a company
that was formed for the purposes of facilitating this acquisition. Both
DuPont de Nemours and DPC (collectively "DuPont") are Delaware corporations with
their principal executive offices located in Wilmington, Delaware.
15. Defendant Donaldson Lufkin & Jenrette Securities Corporation ("DLJ")
is an investment banking firm with its principal executive offices located in
New York, New York.
16. The true names and capacities of defendants sued herein under
California Code of Civil Procedure (S)474 as Does 1 through 25, inclusive, are
presently not known to plaintiff, who therefore sues these defendants by such
fictitious names. Plaintiff will seek to amend this Complaint and include these
Doe defendants' true names and capacities when they are ascertained. Each of the
fictitiously named defendants is responsible in some manner for the conduct
alleged herein and for the injuries suffered by the Class.
17. By virtue of their positions as directors and/or officers of
CombiChem, the Individual Defendants have, and at all relevant times had, the
power to control and influence, and did control and influence and cause
CombiChem to engage in the practices complained of herein.
FIDUCIARY DUTIES OF THE INDIVIDUAL DEFENDANTS
18. By reason of the above Individual Defendants, positions with the
Company as officers and/or directors, said individuals are in a fiduciary
relationship with plaintiff and the other public stockholders of CombiChem and
owe plaintiff and the other members of the Class a duty of highest good faith,
fair dealing, loyalty and full, candid and adequate disclosure.
19. Each of the Individual Defendants is required to act in good faith, in
the best interests of a corporation's shareholders and with such care, including
reasonable inquiry, as would be expected of an ordinarily prudent person. In a
situation where the directors of a publicly traded company undertake a
transaction that may result in a change in corporate control (particularly when
it involves a decision to eliminate the shareholders' equity investment in a
company), the applicable state law requires the directors to take all steps
reasonably required to
6
<PAGE>
maximize the value shareholders will receive rather than use a change of control
to benefit themselves. To diligently comply with this duty, the directors of a
corporation may not take any action that:
(a) adversely affects the value provided to the corporation's
shareholders;
(b) contractually prohibits them from complying with or carrying out
their fiduciary duties;
(c) discourages or inhibits alternative offers to purchase control of
the corporation or its assets; or
(d) will otherwise adversely affect their duty to search and secure
the best value reasonably available under the circumstances for the
corporation's shareholders.
20. As described herein, the Individual Defendants have breached their
fiduciary duties by taking actions designed to deter higher offers from other
potential acquirers so as to ensure the defendants receive hundreds of thousands
of dollars in personal benefits at the expense of CombiChem's shareholders.
Defendants cannot possibly fulfill their fiduciary obligations after
implementing provisions which disable them from maximizing shareholder value.
The Individual Defendants have breached their fiduciary obligation to act
reasonably.
CLASS ACTION ALLEGATIONS
21. Plaintiff brings this action pursuant to (S)382 of the California Code
of Civil Procedure on his own behalf and as a class action on behalf of all
holders of CombiChem common stock, who are being and will be harmed by
defendants' actions described below (the "Class"). Excluded from the Class are
defendants herein and any person, firm, trust, corporation, or other entity
related to or affiliated with any defendants.
22. This action is properly maintainable as a class action.
23. The Class is so numerous that joinder of all members is impracticable.
There are over 13.5 million shares of CombiChem stock issued. The shares trade
on the NASDAQ and thousands of CombiChem stockholders of record are located
throughout the United States.
24. Questions of law and fact are common to the Class and predominate over
questions affecting any individual Class members. The common questions include,
inter alia, the following:
(a) whether the defendants breached their fiduciary duties of care,
loyalty and/or candor owed by them to plaintiff and the other members of the
Class in connection with the proposed sale of CombiChem;
(b) whether the defendants have breached their fiduciary duty to
secure and obtain the best price reasonable under the circumstances for the
benefit of plaintiff and the other members of the Class in connection with the
proposed sale of CombiChem;
(c) whether the defendants have, in bad faith or for improper
motives, erected and/or retained barriers to discourage other offers for the
Company or its assets;
(d) whether plaintiff and the other members of the Class would be
irreparably damaged were the provisions and conduct detailed herein allowed to
persist; and
(e) whether the compensation to be paid to plaintiff and the Class is
unfair and inadequate.
25. The defendants have acted or refused to act on grounds generally
applicable to the Class thereby making appropriate final injunctive relief with
respect to the Class as a whole.
26. Plaintiff is committed to prosecuting this action and has retained
competent counsel experienced in litigation of this nature. The claims of
plaintiff are typical of the claims of the other members of the Class and
7
<PAGE>
plaintiff has the same interests as the other members of the Class. Accordingly,
plaintiff is an adequate representative of the Class and will fairly and
adequately protect the interests of the Class.
27. Plaintiff anticipates that there will be no difficulty in the
management of this litigation as a class action.
28. For the reasons stated herein, a class action is superior to other
available methods for the fair and efficient adjudication of this controversy.
BACKGROUND TO PROPOSED MERGER
29. CombiChem is engaged in the computational discovery of drugs wherein
the Company applies its proprietary design technology and rapid synthesis
capabilities to accelerate the discovery process for new drugs and chemical
products. Since CombiChem went public in 1998, its unique approach has provided
the pharmaceutical and chemical industries the opportunity to conduct drug
discovery efforts in a more productive and cost-effective manner. In the Spring
of 1999, CombiChem's efforts and the shareholders' investment in CombiChem were
just beginning to pay off as its services were in increasing demand and the
Company was just about to post its first profit ever.
30. On April 27, 1999, CombiChem announced that it launched
TargetStar(TM):
TargetStar is a new discovery product designed to help the
pharmaceutical and biotechnology industry overcome the challenging task of
prioritizing and determining the "drugability" of the many new and novel
drug targets being discovered within these industries.
"TargetStar exemplifies CombiChem's commercialization strategy for its
proprietary design technology and allows us to offer our computational
expertise to a broader customer base," said Vicente Anido, Jr., Ph.D.,
CombiChem's president and chief executive officer. "As a result of all the
recent discoveries in the human genome, the biotechnology and
pharmaceutical industries are being flooded with new drug target
opportunities. We believe TargetStar will help them decide which targets
may be worth moving into the expensive discovery process," stated Anido.
31. On June 2, 1999, CombiChem announced that it has received from the
U.S. Patent and Trademark Office, Patent No. 5,767,238 entitled "Inverse Solid
Phase Synthesis."
The patent describes CombiChem's invention for the general use of a
solid phase matrix to readily separate product from reactants in the
solution synthesis of organic molecules. In addition, the patent
specifically describes the use of said solid phase matrix in combinatorial
library synthesis using traditional solution chemistry. Inverse solid
phase addition represents an attractive alternative to conventional solid
phase synthesis which can be limited in scope and often demand significant
pre-optimization work before being successful.
The issuance of the patent covers methods of using a range of solid
phase matrices to bind "unreacted" reactants following solution synthesis,
and enables rapid isolation of product by simple separation techniques.
The process can be applied at each reaction step of compound library
production thereby offering the capability to effectively conduct such
synthesis in solution, still the favored route for chemists to produce new
organic molecules.
CombiChem's incorporation of this technique into its Discovery Engine
permits the rapid synthesis of a large range of novel organic molecules
which it believes may be useful in discovering novel pharmaceuticals,
agrochemicals and fine chemical products.
"We are pleased that the U.S. Patent Office granted us a patent in the
use of resin capture agents to enable facile purification of reaction
products following combinational library synthesis in solution," said Dr.
Peter L. Myers, CombiChem's chief scientific officer and chief operating
officer.
8
<PAGE>
32. The Individual Defendants knew that even though CombiChem was on the
brink of finally realizing profits and would enjoy a boost in its share price,
the Individual Defendants benefit's resulting from the Company's success would
be limited - at least for the next few years. The Individual Defendants were
handsomely rewarded by CombiChem with stock options through three separate
plans: the Salary Option Grant, the Automatic Option Grant and the Director Fee
Option Grant. The plans provided the stock options would vest over a period of
several years. As such, the Individual Defendants were precluded from realizing
any benefit from their unvested options even though the Company was about to
become profitable. For defendants Pazzani, Chambon and Scott, who owned no
shares (besides options subject to a vesting schedule of 20,000, 20,000 and
25,000, respectively), this was troubling. Equally troubled were the defendants
who actually owned some shares but had hundreds of thousands of dollars tied up
in unvested options. Both defendants Anido and Myers had 150,001 options each
which were subject to the Company's vesting schedule.
33. Absent waiting out the full vesting schedule there was only one way to
fully capitalize on CombiChem's success - sell the Company.
34. The Individual Defendants knew that if the Company was acquired, their
options granted under the Director Fee Option Grant, the Automatic Option Grant,
and the Salary Option Grant would immediately vest and become fully exercisable.
As such, if the Company was sold, the Individual Defendants would realize
hundreds of thousands of dollars that they would have otherwise had to wait
years for.
35. Similarly, defendant DLJ wanted to capitalize on CombiChem's success
but it too was limited in its capitalization abilities by virtue of the fact
that it owned almost 1,500,000 CombiChem shares and there was little depth to
the market for CombiChem shares. CombiChem traded on average 71,000 shares per
day and it would be virtually impossible for DLJ to sell these shares on the
open market. Given the sheer magnitude of its holdings and its desire to dispose
of its stock, DLJ needed to cashout of its shares through an acquisition/merger
of CombiChem in order to sell its CombiChem shares at a price at or near the
current "bid."
MERGER NEGOTIATIONS
36. On or about August 25, 1999, the Individual Defendants met with DuPont
executives to discuss a possible sale of CombiChem to DuPont. By late August,
CombiChem and DuPont had entered into formal merger negotiations wherein the
Individual Defendants provided to DuPont certain proprietary information about
the Company and the Company's prospects. In fact it was during these
negotiations that the Individual Defendants disclosed for the first time ever
that CombiChem would report net income for the second half of 1999. More
significantly, the Individual Defendants revealed that the aggregate net income
that CombiChem would report in the third and fourth quarters of 1999 would
exceed $4.3 million for the quarters combined. In addition, the Individual
Defendants provided to DuPont the Company's internal operating projections
wherein it was disclosed that CombiChem would post revenue growth of 50% for the
year 1999 and would earn $26 million over the next 3 1/4 years. The following
are the internal operating projections that were provided by the Individual
Defendants to DuPont during their merger negotiations:
COMBICHEM'S INTERNAL OPERATING PROJECTIONS
<TABLE>
<CAPTION>
- - ------------------------------------------------------------------------------------------------------------------------
1999 2000 2001 2002 2003
- - ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Revenue $22.6 million $31.1 million $37.7 million $45.9 million $54.6 million
- - ------------------------------------------------------------------------------------------------------------------------
Net Income(Loss) ($2.3 million) $ 0.5 million $ 5.6 million $11.5 million $12.5 million
- - ------------------------------------------------------------------------------------------------------------------------
</TABLE>
THE PROPOSED ACQUISITION
37. On October 5, 1999, CombiChem announced that it had entered into a
merger agreement with DuPont, to acquire, via a tender offer, the outstanding
shares of CombiChem for approximately $91 million dollars or $6.75 per share.
38. The proposed acquisition price is a discount to where CombiChem stock
went public the year before. In fact, the merger was timed to close just before
the Company would be obligated to disclose its financial
9
<PAGE>
results for the third quarter 1999 and before CombiChem would reveal it would be
profitable for the first time and that it would have net income of $4.3 million
in the third and fourth quarters combined.
39. The price of $6.75 per share which DuPont proposes to pay to Class
members is grossly unfair and inadequate because, among other things:
(a) The announcement of the proposed merger was made at a time when
the Company's stock price was trading below where it had gone public the year
before; and
(b) The defendants timed the announcement of the merger to place an
artificial cap on the price for CombiChem's stock to enable them to acquire the
stock at the lowest possible price;
(c) The defendants timed the merger to close prior to the date in
which they would disclose CombiChem's strong third quarter 1999 results,
including 50%+ revenue growth, and post CombiChem's first quarterly profit since
its existence as a public company;
(d) The merger with DuPont was agreed to at a grossly inadequate
price in exchange for DuPont's agreement to enter into employment agreements
with certain of the CombiChem insiders; and
(e) The merger documents do not adequately disclose and the
defendants have never disclosed that CombiChem will have net income of $4.3
million in the third and fourth quarters combined.
THE MERGER AGREEMENT
40. The Merger Agreement contained numerous provisions designed to tilt
the playing field in favor of DuPont and/or make it difficult for a competing
bid from a third party to succeed, including:
A "no shop" provision which states in part that "the Company shall
not, nor shall it permit its affiliates and the officers, directors,
employees, representatives and agents of the Company and its Subsidiaries
(including without limitation, any investment banker, attorney or
accountant retained by the Company or any of its subsidiaries) to, directly
or indirectly, encourage, solicit, participate in or initiate discussions
or negotiations with, or provide any nonpublic information or data (other
than the Company's standard public information package) to, any
corporation, partnership, Person or other entity or group (other than
[DuPont], any affiliate or associate of [DuPont] or any designees of
[DuPont]) with respect to any inquiries or the making of any offer or
proposal (including, without limitation, any offer or proposal to the
stockholders of the Company) concerning an Acquisition Transaction (and
`Acquisition Proposal') or otherwise facilitate any effort or attempt to
make or implement an Acquisition Proposal."
41. If the acquisition is consummated, plaintiff and the other members of
the Class will no longer own shares in a "growth" company, which is growing at a
50+% rate and will post $17 million in profits in 2000-2002 alone, but rather
will be cashed out of their CombiChem shares for just $6.75 per share.
42. The shareholders have been denied the fair process and an arm's-length
negotiated terms to which they are entitled in a sale of their Company. The
officers and directors are obligated to maximize shareholder value, not
structure a preferential deal for themselves where they will receive "change of
control" payments following the consummation of this proposed merger.
43. The Class members are being deprived of their right to a fair and
unbiased process to sell the Company, and the opportunity to obtain maximum
value and terms for their interests, without preferential treatment to the
insiders.
44. By reason of their positions with CombiChem, the Individual Defendants
are in possession of non-public information concerning the financial condition
and prospects of CombiChem, and especially the true value and expected increased
future value of CombiChem and its assets, which they have not disclosed to
CombiChem's
10
<PAGE>
public stockholders, including, but not limited to CombiChem's preliminary third
quarter 1999 results and the fact that they expect CombiChem to have net income
of $4.3 million in the third and fourth quarters combined.
45. The Individual Defendants concealed the true worth of CombiChem by,
among other things, never revealing (prior to agreeing to support DuPont's
tender offer and thereby capping the price of CombiChem shares) that CombiChem
would earn $26 million over the next 3 1/4 years. Thus, the Individual
Defendants have failed to ensure that CombiChem shareholders obtained the
highest value reasonably available prior to entering into the merger agreement.
FIRST CAUSE OF ACTION
Breach Of Fiduciary Duty Of Loyalty
And Due Care Against CombiChem Defendants
46. Plaintiff repeats and realleges each allegation set forth herein.
47. The Individual Defendants have thus far failed to announce active
auction, open bidding or other procedures best calculated to maximize
shareholder value. Instead of attempting to obtain the highest price reasonably
available for CombiChem's shareholders the Individual Defendants have taken
actions that will only serve their own interests while inhibiting the
maximization of shareholder value.
48. The Individual Defendants were and are under a duty:
(a) to fully inform themselves of the market value of CombiChem
before taking, or agreeing to refrain from taking, action;
(b) to act in the interests of the equity owners;
(c) to maximize shareholder value;
(d) to obtain the best financial and other terms when the Company's
independent existence will be materially altered by a transaction; and
(e) to act in accordance with their fundamental duties of due care
and loyalty.
49. By the acts, transactions and courses of conduct alleged herein, the
CombiChem Defendants, individually and as part of a common plan and scheme, or
in breach of their fiduciary duties to plaintiff and the other members of the
Class, are implementing and abiding by a process that will deprive plaintiff and
other members of the Class of the true value of their investment in CombiChem.
50. CombiChem shareholders will, if these defendants' actions are allowed
to stand, be deprived of the opportunity for substantial gains the plaintiff and
Class members may realize if an active auction or open bidding process is
allowed to occur.
51. By reason of the foregoing acts, practices and course of conduct, the
CombiChem Defendants failed to exercise ordinary care and diligence in the
exercise of their fiduciary obligations toward plaintiff and the other CombiChem
public stockholders and were assisted in that failure by DuPont and DLJ, which
knowingly assisted defendants' wrongful acts.
52. In light of the foregoing, plaintiff demands that the Individual
Defendants, as their fiduciary obligations require, immediately:
. Undertake an independent evaluation of CombiChem's worth as an
acquisition candidate.
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. Rescind any and all agreements that inhibit the maximization of
shareholder value, including but not limited to the "no shop" provision and
agreements to obtain employment for CombiChem insiders.
. Disclose to the public that CombiChem would generate net income of at
least $4.3 million for the third and fourth quarters of 1999 combined.
. Retain independent advisors and appoint a truly independent committee
of persons so that the interests of CombiChem's public stockholders will be
protected and any subsequent offers will be considered and negotiated in
the interest of CombiChem's public stockholders.
53. As a result of these defendants' failure to take such steps to date,
plaintiff and the other members of the Class have been and will be damaged in
that they have been and will be prevented from obtaining a fair price for their
shares.
54. Defendants are not acting in good faith toward plaintiff and the other
members of the Class, and have breached and are continuing to breach their
fiduciary duties to plaintiff and the members of the Class.
55. As a result of the CombiChem Defendants' unlawful action, plaintiff
and the other members of the Class will be irreparably harmed in that they will
not receive fair value for CombiChem's assets and business and will be prevented
from obtaining the real value of their equity ownership in CombiChem. Unless the
defendants' actions are enjoined by the Court, defendants will continue to
breach their fiduciary duties owed to plaintiff and the members of the Class,
and will engage in a process that inhibits the maximization of shareholder
value.
56. Plaintiff and the other members of the Class have no adequate remedy
at law.
SECOND CAUSE OF ACTION
Breach Of Duty Of Candor Against CombiChem Defendants
57. Plaintiff repeats and realleges each allegation set forth herein.
58. As fiduciaries of the CombiChem shareholders, the Individual
Defendants owe the CombiChem shareholders a duty to fully disclose the existence
and nature of all material facts in their possession or control with respect to
the DuPont merger and all other alternative transactions.
59. The Individual Defendants breached and are continuing to breach their
duty of candor and full disclosure owed to CombiChem's shareholders by failing
to disclose material facts concerning CombiChem and its operations. For
example, defendants have failed to adequately disclose in the Tender
Offer/Merger documents that (i) its financial advisor (DLJ) had an inherent
conflict of interest in rendering its purported "fairness opinion," in that DLJ
owns approximately 11% (or 1,490,000 shares) of the outstanding shares of
CombiChem and that but for the tender offer it would essentially be unable to
dispose of its CombiChem shares due to the lack of depth of the market for
CombiChem shares (71,000 average daily trading volume); (ii) that DLJ regularly
performs investment banking services for DuPont and DLJ's refusal to rubber
stamp the tender-offer as "fair" would threaten its ability to generate monies
from and be compensated for future investment banking services; (iii) that a
member of CombiChem's Board of Directors is also an employee of and receives a
salary from an affiliate of DLJ and that his acquiescence to rubber stamp the
tender offer was influenced by fear of his potential loss of employment and the
future benefits to be derived therefrom; and (iv) that CombiChem would have net
income of at least $4.3 million in the third and fourth quarters combined.
Plaintiff has no adequate remedy at law for defendants' misrepresentations
and/or omissions. Only through this Court's exercise of its broad equitable
powers can plaintiff and the Class be fully protected from the immediate and
irreparable injury that defendants' actions threaten to inflict.
THIRD CAUSE OF ACTION
Aiding And Abetting Of Breach Of Fiduciary
Duties Against DuPont And DLJ
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60. Plaintiff repeats and alleges each allegation set forth herein.
61. DuPont and DLJ aided and abetted the CombiChem defendants' breach of
fiduciary duties to CombiChem's shareholders to maximize shareholder value by
actively participating and colluding in the CombiChem Defendants' breach. DuPont
and DLJ aided in timing the acquisition to close before CombiChem reveals that
for the first time in its history as a public company it would be profitable and
that it would have aggregate net income for third and fourth quarters combined
of $4.3 million, all of which has deprived the CombiChem shareholders of the
highest value available to them. As a result of DuPont and DLJ's conduct alleged
herein, DuPont and DLJ benefitted financially.
62. Defendants must be enjoined from continuing with the tender offer.
Only through this Court's exercise of its broad equitable power can plaintiff
and the Class be fully protected from the immediate and irreparable injury that
defendants' actions threaten to inflict.
PRAYER
WHEREFORE, plaintiff demands judgment and preliminary and permanent relief,
including injunctive relief, in plaintiffs favor and in favor of the Class and
against defendants as follows:
A. Declaring that this action is properly maintainable as a class action;
B. Declaring and decreeing that the DuPont merger agreement was entered
into in breach of the fiduciary duties of the Individual Defendants and is
therefore unlawful and unenforceable;
C. Enjoining defendants from proceeding with the DuPont merger agreement
and tender offer;
D. Enjoining defendants from consummating the merger, and/or tender offer
unless and until the Company discloses all material facts regarding the tender
offer/merger and implements procedures to obtain the highest possible price for
the Company;
E. Directing the Individual Defendants to exercise their fiduciary duties
to obtain a transaction which is in the best interests of shareholders until the
process for the sale or auction of the Company is completed and the highest
possible price is obtained;
F. Awarding plaintiff and the Class appropriate damages;
G. Awarding plaintiff the costs and disbursements of this action,
including reasonable attorneys' and experts' fees; and
H. Granting such other and further relief as this Court may deem just and
proper.
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JURY DEMAND
Plaintiff demands a trial by jury.
DATED this 15th day of October, 1999.
MILBERG WEISS BERSHAD HYNES & LERACH LLP
WILLIAMS S. LERACH
DARREN J. ROBBINS
RANDALL J. BARON
/s/ Darren J. Robbins
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DARREN J. ROBBINS
660 West Broadway, Suite 1800
San Diego, CA 92101
Telephone: (619) 231-1058
Attorneys for Plaintiff
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