Exhibit (a)(1)(F)
This announcement is neither an offer to purchase nor a solicitation of an offer to sell Shares (as defined below), and the provisions herein are subject in their entirety to the provisions of the Offer (as defined below). The Offer is made solely by the Offer to Purchase, dated December 19, 2014, and the related Letter of Transmittal and any amendments or supplements thereto, and is being made to all holders of Shares. The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, “blue sky” or other laws of such jurisdiction. In those jurisdictions where applicable laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Purchaser (as defined below) by one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by Purchaser.
Notice of Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
CUBIST PHARMACEUTICALS, INC.
a Delaware corporation
at
$102.00 NET PER SHARE
Pursuant to the Offer to Purchase dated December 19, 2014
by
MAVEC CORPORATION
a wholly owned subsidiary of
MERCK & CO., INC.
Mavec Corporation, a Delaware corporation (“Purchaser”) and a wholly owned subsidiary of Merck & Co., Inc., a New Jersey corporation (“Parent”), is offering to purchase for cash any (subject to the Minimum Tender Condition, as described below) and all of the issued and outstanding shares of common stock, par value $0.001 per share (the “Shares”), of Cubist Pharmaceuticals, Inc., a Delaware corporation (“Cubist”), at a price of $102.00 per Share (the “Offer Price”) in cash, net to the seller in cash, without interest, but subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated December 19, 2014 (the “Offer to Purchase”), and in the related Letter of Transmittal (the “Letter of Transmittal” which, together with the Offer to Purchase and other related materials, as each may be amended or supplemented from time to time, constitutes the “Offer”).
Stockholders of record who tender directly to Computershare Trust Company, N.A. (the “Depositary”) will not be obligated to pay brokerage fees, commissions or similar expenses or, except as otherwise provided in the Letter of Transmittal, stock transfer taxes with respect to the purchase of Shares by Purchaser pursuant to the Offer. Stockholders who hold their Shares through a broker, dealer, commercial bank, trust company or other nominee should consult with such institution as to whether it charges any service fees or commissions.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT THE END OF THE DAY, IMMEDIATELY AFTER 11:59 P.M., EASTERN TIME, ON TUESDAY, JANUARY 20, 2015, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of December 8, 2014 (as it may be amended from time to time, the “Merger Agreement”), by and among Parent, Purchaser and Cubist. The Merger Agreement provides, among other things, that following the consummation of the Offer and subject to the satisfaction or waiver of certain conditions, Purchaser will be merged with and into Cubist (the “Merger”), with Cubist continuing as the surviving corporation in the Merger and a wholly-owned subsidiary of Parent. Because the Merger will be governed by Section 251(h) of the General Corporation Law of the State of Delaware (“DGCL”), no Cubist stockholder vote will be required to consummate the Merger. In the Merger, each Share
outstanding immediately prior to the effective time of the Merger (other than Shares held in the treasury of the Company, Shares owned by the Company or any direct or indirect wholly owned subsidiary of the Company, Shares owned by Parent, Purchaser or any direct or indirect wholly owned subsidiary of Parent or Purchaser, and Shares held by stockholders who have perfected and not withdrawn a demand for, or lost their right to, appraisal pursuant to Section 262 of the DGCL with respect to such Shares) will be automatically canceled and converted into the right to receive $102.00 per Share or any greater per Share price paid in the Offer, without interest but subject to any required withholding of taxes. As a result of the Merger, Cubist will cease to be a publicly traded company and will become wholly owned by Parent. Under no circumstances will interest be paid on the purchase price for Shares, regardless of any extension of the Offer or any delay in making payment for Shares. The Merger Agreement is more fully described in the Offer to Purchase.
The Offer is not subject to any financing condition. The Offer is conditioned upon, among other things, (a) the absence of a termination of the Merger Agreement in accordance with its terms and (b) the satisfaction of (i) the Minimum Tender Condition (as described below) (ii) the Regulatory Condition (as described below) and (iii) the Governmental Entity Condition (as described below). The Minimum Tender Condition requires that the number of Shares validly tendered and received in accordance with the terms of the Offer and not properly withdrawn on or prior to the end of the day, immediately after 11:59 p.m., Eastern Time, on Tuesday, January 20, 2015 (the “Expiration Date”, unless Purchaser shall have extended the period during which the Offer is open in accordance with the Merger Agreement, in which event “Expiration Date” shall mean the latest time and date at which the Offer, as so extended by Purchaser, shall expire), together with any Shares then owned beneficially by Parent and Purchaser (together with their wholly-owned subsidiaries), constitutes at least one Share more than one-half of all Shares then-outstanding as of the Expiration Date. The Regulatory Condition requires, among other things, (i) that the waiting period (and any extension thereof) applicable to the consummation of the Offer and the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder, shall have expired or been terminated, (ii) the transactions contemplated by the Merger Agreement shall have been cleared under the Austrian Cartel Act (Kartellgesetz 2005), and (iii) confirmation from the French Ministry of Economy (in form and substance reasonably satisfactory to Parent) that Articles L.151-3 and R.153-1 and seq (as modified by Decree n°2014-479 of May 14, 2014) of the French Monetary and Financial Code do not apply to the transactions contemplated by the Merger Agreement or, in the alternative, requisite authorization without condition of the French Ministry of Economy of the transactions contemplated by the Merger Agreement. The Governmental Entity Condition requires that there is no law, decree, judgment, order or injunction, promulgated, enacted, entered, enforced, issued or amended by any governmental entity of competent jurisdiction that restrains, enjoins or otherwise prohibits the making or consummation of the Offer or the Merger. The Offer is also subject to other conditions (each individually, an “Offer Condition”, and collectively, the “Offer Conditions”) as described in the Offer to Purchase.
The board of directors of Cubist (at a meeting or meetings duly called and held) has unanimously (i) determined that the Merger Agreement and such transactions are fair to and in the best interests of Cubist and its stockholders, (ii) approved, declared advisable, and adopted the Merger Agreement, and (iii) subject to the terms of the Merger Agreement, resolved to recommend that the holders of Shares accept the Offer and tender their Shares pursuant to the Offer.
The Merger Agreement contains provisions to govern the circumstances in which Purchaser is required or permitted to extend the Offer and in which Parent is required to cause the Purchaser to extend the Offer. Specifically, the Merger Agreement provides that Purchaser must extend the Offer (i) to a date that is not more than 10 business days after any previously scheduled Expiration Date if any Offer Condition has not been satisfied or waived in order to permit the satisfaction of the Offer Conditions and (ii) for any period required by any rules or regulations of the SEC, the interpretations and positions of the SEC and its staff with respect thereto or the rules and regulations of The NASDAQ Stock Market LLC. However, in no event will Purchaser be required to extend the Offer and the Expiration Date to a date later than April 7, 2015, which date may be extended until June 6, 2015 at the election of Parent or Cubist if the Regulatory Condition is not satisfied but all
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other conditions to the Offer shall have been satisfied or waived. Purchaser has agreed that it will terminate the Offer promptly upon any termination of the Merger Agreement (and in any event within 24 hours of such termination).
Subject to the terms and conditions of the Merger Agreement and applicable law, Purchaser expressly reserves the right (but will not be obligated) at any time or from time to time, in its sole discretion, to waive any Offer Condition or amend the terms of the Offer, including the Offer Price; provided, however, that, without the prior written consent of Cubist, Purchaser shall not be permitted to (i) decrease the Offer Price or change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought to be purchased in the Offer, (iii) amend or waive the Minimum Tender Condition, (iv) add to the Offer Conditions, (v) modify the Offer Conditions in a manner that is adverse to the holders of Shares, (vi) extend or otherwise change the Expiration Date in a manner other than pursuant to and in accordance with the terms of the Merger Agreement or (vii) increase the Offer Price by an increment of less than $0.25. Any extension, delay, termination or amendment of the Offer will be followed as promptly as practicable by public announcement thereof, and such announcement in the case of an extension will be made no later than 9:00 a.m., Eastern time, on the next business day after the previously scheduled Expiration Date.
Because the Merger will be governed by Section 251(h) of the DGCL, Purchaser does not expect there to be a significant period of time between the consummation of the Offer and the consummation of the Merger.
On the terms of and subject to the Offer Conditions, promptly after the Expiration Date of the Offer, Purchaser will accept for payment, and pay for, all Shares validly tendered to Purchaser in the Offer and not properly withdrawn prior to the Expiration Date. For purposes of the Offer, Purchaser will be deemed to have accepted for payment, and thereby purchased, Shares validly tendered and not properly withdrawn as, if and when Purchaser gives oral or written notice to the Depositary of its acceptance for payment of such Shares pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the Offer Price for such Shares with the Depositary, which will act as paying agent for tendering stockholders for the purpose of receiving payments from Purchaser and transmitting such payments to tendering stockholders whose Shares have been accepted for payment. If Purchaser extends the Offer, is delayed in its acceptance for payment of Shares or is unable to accept Shares for payment pursuant to the Offer for any reason, then, without prejudice to Purchaser’s rights under the Offer and the Merger Agreement, the Depositary may retain tendered Shares on Purchaser’s behalf, and such Shares may not be withdrawn except to the extent that tendering stockholders are entitled to withdrawal rights as described in the Offer to Purchase and as otherwise required by Rule 14e-1(c) under the Exchange Act.Under no circumstances will Parent or Purchaser pay interest on the purchase price for Shares by reason of any extension of the Offer or any delay in making such payment for Shares.
No alternative, conditional or contingent tenders will be accepted. In all cases, payment for Shares accepted for payment pursuant to the Offer will only be made after timely receipt by the Depositary of (i) certificates evidencing such Shares (the “Certificates”) or confirmation of a book-entry transfer of such Shares (a “Book-Entry Confirmation”) into the Depositary’s account at The Depository Trust Company (“DTC”) pursuant to the procedures set forth in the Offer to Purchase, (ii) the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees or, in the case of a book-entry transfer, an Agent’s Message (as described in the Offer to Purchase) in lieu of the Letter of Transmittal and (iii) any other documents required by the Letter of Transmittal. Accordingly, tendering stockholders may be paid at different times depending upon when Certificates or Book-Entry Confirmations with respect to Shares are actually received by the Depositary.
Shares tendered pursuant to the Offer may be withdrawn at any time prior to the Expiration Date and, unless theretofore accepted for payment by Purchaser pursuant to the Offer, may also be withdrawn at any time after February 16, 2015, which is the 60th day after the date of the commencement of the Offer.
For a withdrawal to be proper and effective, a written, telegraphic or facsimile transmission notice of withdrawal must be timely received by the Depositary at one of its addresses set forth on the back cover page of
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the Offer to Purchase. Any such notice of withdrawal must specify the name of the person who tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the name in which the Certificates are registered if different from that of the person who tendered such Shares. If Certificates evidencing Shares to be withdrawn have been delivered or otherwise identified to the Depositary, then, prior to the physical release of such Share Certificates, the serial numbers shown on such Certificates must be submitted to the Depositary and the signature(s) on the notice of withdrawal must be guaranteed by an Eligible Institution (as described in the Offer to Purchase), unless such Shares have been tendered for the account of an Eligible Institution. If Shares have been tendered pursuant to the procedure for book-entry transfer as set forth in the Offer to Purchase, any notice of withdrawal must also specify the name and number of the account at DTC to be credited with the withdrawn Shares.
Withdrawals of Shares may not be rescinded. Any Shares properly withdrawn will thereafter be deemed not to have been validly tendered for purposes of the Offer. However, withdrawn Shares may be re-tendered by again following one of the procedures described in the Offer to Purchase at any time prior to the Expiration Date.
Purchaser will determine, in its sole discretion, all questions as to the form and validity (including time of receipt) of any notice of withdrawal and Purchaser’s determination will be final and binding. None of Purchaser, the Depositary, the Information Agent, the Dealer Manager or any other person will be under any duty to give notice of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification.
The information required to be disclosed by paragraph (d)(1) of Rule 14d-6 of the General Rules and Regulations under the Exchange Act is contained in the Offer to Purchase and is incorporated herein by reference.
Cubist has provided Purchaser with Cubist’s stockholder list and security position listings for the purpose of disseminating the Offer to Purchase, the related Letter of Transmittal and other related materials to holders of Shares. The Offer to Purchase and related Letter of Transmittal will be mailed to record holders of Shares whose names appear on Cubist’s stockholder list and will be furnished to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the stockholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing for subsequent transmittal to beneficial owners of Shares.
The exchange of Shares for cash pursuant to the Offer or the Merger will be a taxable transaction to U.S. Holders for United States federal income tax purposes. See the Offer to Purchase for a more detailed discussion of the tax treatment of the Offer.Each holder of Shares should consult with its tax advisor as to the particular tax consequences to such holder of exchanging Shares for cash in the Offer or the Merger.
The Offer to Purchase and the related Letter of Transmittal contain important information. Holders of Shares should carefully read both documents in their entirety before any decision is made with respect to the Offer.
Questions and requests for assistance may be directed to the Information Agent at its address and telephone numbers set forth below. Requests for copies of the Offer to Purchase, the Letter of Transmittal, the notice of guaranteed delivery and other tender offer materials may be directed to the Information Agent or the Dealer Manager at their respective addresses and telephone numbers listed below. Such copies will be furnished promptly at Purchaser’s expense. Stockholders may also contact brokers, dealers, commercial banks or trust companies for assistance concerning the Offer. Except as set forth in the Offer to Purchase, neither Purchaser nor Parent will pay any fees or commissions to any broker or dealer or any other person for soliciting tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks, trust companies or other nominees will, upon request, be reimbursed by Purchaser for customary mailing and handling expenses incurred by them in forwarding the Offer materials to their customers.
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The Information Agent for the Offer is:
105 Madison Avenue
New York, New York 10016
(212) 929-5500 (Call Collect)
or
Call Toll-Free (800) 322-2885
Email:tenderoffer@mackenziepartners.com
The Dealer Manager for the Offer is:
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
(877) 371-5947
December 19, 2014
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