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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9
(AMENDMENT NO. 2)
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SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
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SIBIA NEUROSCIENCES, INC.
(NAME OF SUBJECT COMPANY)
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SIBIA NEUROSCIENCES, INC.
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, $.001 PAR VALUE
(TITLE OF CLASS OF SECURITIES)
825732 10 0
(CUSIP NUMBER OF CLASS OF SECURITIES)
DR. WILLIAM T. COMER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SIBIA NEUROSCIENCES, INC.
505 COAST BOULEVARD SOUTH
SAN DIEGO, CALIFORNIA 92037
(858) 452-5892
(NAME, ADDRESS, AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICE AND COMMUNICATIONS ON BEHALF OF
PERSON(S) FILING STATEMENT)
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COPIES TO:
THOMAS A. COLL, ESQ.
CARL R. SANCHEZ, ESQ.
COOLEY GODWARD LLP
4365 EXECUTIVE DRIVE, SUITE 1100
SAN DIEGO, CALIFORNIA 92121
(619) 550-6000
GARY P. COOPERSTEIN, ESQ.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10004
(212) 859-8000
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This Amendment No. 2 to the Solicitation/Recommendation Statement on
Schedule 14D-9 (the "Statement") relates to the tender offer of MC Subsidiary
Corp., a Delaware corporation ("Offeror") and wholly owned subsidiary of Merck &
Co., Inc., a New Jersey corporation (the "Parent"), disclosed in a Tender Offer
Statement on Schedule 14D-1 (the "Schedule 14D-1") dated August 6, 1999, to
purchase all of the outstanding Shares at a price of $8.50 per Share, net to the
seller, in cash, upon the terms and subject to the conditions set forth in the
Offer to Purchase dated August 6, 1999 (the "Offer to Purchase") and the related
Letter of Transmittal (which together shall constitute the "Offer"). The purpose
of this Amendment No. 2 is to 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 August 6, 1999 is incorporated herein by
reference.
As previously disclosed in Amendment No. 1 to this Schedule 14D-9 and
Exhibit 10 thereto, on the afternoon of August 16, 1999, a putative class action
lawsuit (the "Complaint") was filed in the Superior Court of the State of
California in the County of San Diego alleging, among other things, that SIBIA
and its directors had breached their fiduciary duty by failing in the initial
Schedule 14D-9 to disclose the existence of an $18 million judgment entered in
favor of the Company (which is currently on appeal) as the result of a favorable
jury verdict in a patent infringement suit that had been brought by the Company
against Cadus Pharmaceuticals Corporation (the "Cadus Judgement")(See Exhibit 10
of this Schedule 14D-9/A at pages 8 and 11). The Company and the directors deny
this allegation and all of the material allegations contained in the Complaint.
In fact, the Cadus Judgement has been disclosed in the Company's Annual Report
on Form 10-K for the period ended December 31, 1998 which was filed with the SEC
on March 31, 1999 and mailed to all shareholders of record on or about March 31,
1999. The Cadus Judgment also has been reported in the Wall Street Journal on
December 22, 1998, as well as in other media. Although the Cadus Judgement
previously has been disclosed, SIBIA hereby again discloses,in response to the
Complaint, that on December 18, 1998, the jury in the Cadus litigation returned
a verdict in favor of the Company in its patent infringement claim against
Cadus, awarding the Company damages in the amount of $18 million for such
infringement. The Cadus Judgment is now on appeal and the full amount of the
award has been placed in escrow pending final resolution of such appeal.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS
Item 9 is hereby amended and restated as follows:
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
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<S> <C>
Exhibit 1 Offer to Purchase dated August 6, 1999 (incorporated by
reference to Exhibit (a)(1) of the Schedule 14D-1 of Merck
& Co., Inc. and MC Subsidiary Corp. filed with the
Securities and Exchange Commission on August 6, 1999 (the
"Schedule 14D-1")).**(1)
Exhibit 2 Letter of Transmittal (incorporated by reference to Exhibit
(a)(2) of Schedule 14D-1).** (1)
Exhibit 3 Joint Press Release issued by the Company and the Parent,
dated August 2, 1999.(1)
Exhibit 4 Opinion Letter of CIBC World Markets Corp., dated July 30,
1999.* (1)
Exhibit 5 Confidential Disclosure Agreement dated July 21, 1999
between the Company and Parent.(1)
Exhibit 6 Agreement and Plan of Merger, dated July 30, 1999 between
the Company, the Parent and the Merger Sub (incorporated by
reference to Exhibit (c)(1) of the Schedule 14D-1).(1)
Exhibit 7 Stock Option Agreement dated July 30, 1999 among the Parent,
the Merger Sub and the Company (incorporated by reference to
Exhibit (c)(3) of the Schedule 14D-1).(1)
Exhibit 8 Shareholders Agreement dated July 30, 1999 between the
Parent, the Merger Sub 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 August 6, 1999.*(1)
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<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
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<S> <C>
Exhibit 10 Complaint - Steve Pellinger on behalf of himself and all
others similarly situated v. SIBIA Neurosciences, Inc.,
William R. Miller, William T. Comer, Gunnar Ekdahl, Jeffrey
F. McKelvy, Stanley T. Crooke, James D. Watson and Does 1-25
inclusive, Case No. GIC 733725 (Superior Court, San Diego,
CA, filed August 16, 1999)(1)
Exhibit 11 Letter to SIBIA Board of Directors.(1)
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* 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
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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.
SIBIA NEUROSCIENCES, INC.
Date: August 30, 1999 /s/ DR. WILLIAM T. COMER
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Dr. William T. Comer
President and Chief Executive Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
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<S> <C>
Exhibit 1 Offer to Purchase dated August 6, 1999 (incorporated by
reference to Exhibit (a)(1) of the Schedule 14D-1 of Merck &
Co., Inc. and MC Subsidiary Corp. filed with the Securities
and Exchange Commission on August 6, 1999 (the "Schedule
14D-1")).**(1)
Exhibit 2 Letter of Transmittal (incorporated by reference to Exhibit
(a)(2) of Schedule 14D-1).**(1)
Exhibit 3 Joint Press Release issued by the Company and the Parent,
dated August 2, 1999.(1)
Exhibit 4 Opinion Letter of CIBC World Markets Corp., dated July 30,
1999.*(1)
Exhibit 5 Confidential Disclosure Agreement dated July 21, 1999
between the Company and Parent.(1)
Exhibit 6 Agreement and Plan of Merger, dated July 30, 1999 between
the Company, the Parent and the Merger Sub (incorporated by
reference to Exhibit (c)(1) of the Schedule 14D-1).(1)
Exhibit 7 Stock Option Agreement dated July 30, 1999 among the
Parent, the Merger Sub and the Company (incorporated by
reference to Exhibit (c)(3) of the Schedule 14D-1).(1)
Exhibit 8 Shareholders Agreement dated July 30, 1999 between the
Parent, the Merger Sub 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 August 6, 1999.*(1)
Exhibit 10 Complaint - Steve Pellinger on behalf of himself and all
others similarly situated v. SIBIA Neurosciences, Inc.,
William R. Miller, William T. Comer, Gunnar Ekdahl, Jeffrey
F. McKelvy, Stanley T. Crooke, James D. Watson and Does 1-25
inclusive, Case No. GIC 733725 (Superior Court, San Diego,
CA, filed August 16, 1999)(1)
Exhibit 11 Letter to SIBIA Board of Directors.(1)
</TABLE>
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* 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
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