Merck Statement Regarding CUBICIN Patent Litigation


December 9, 2014 8:11 am ET

Company Reaffirms Transaction To Proceed as Planned;
Expected to Close in First Quarter of 2015

Merck, known as MSD outside the United States and Canada, issued the
following statement regarding the decision of the U.S. District Court
for the District of Delaware. The decision, which upheld the patent for
CUBICIN that expires on June 15, 2016 and invalidated four others, is
subject to appeal.

The company continues to believe the acquisition of Cubist will create
strong fundamental value for Merck’s shareholders. The combined strength
of both companies will provide both incremental and long-term value, and
Merck expects the transaction to add more than $1 billion of revenue to
its 2015 base, with strong growth potential thereafter.

The court’s decision does not change Merck’s expectation that the
transaction will be neutral to modestly accretive to 2015 non-GAAP EPS.
The company also continues to expect that the transaction will
contribute mid-single digit accretion on a percentage basis to non-GAAP
EPS in 2016, and will continue to be accretive thereafter.

Important Information about the Tender Offer

The tender offer for the outstanding shares of Cubist has not yet
commenced. This news release is for informational purposes only and is
neither an offer to purchase nor a solicitation of an offer to sell
shares, nor is it a substitute for the tender offer materials that Merck
and its subsidiary will file with the Securities and Exchange Commission
(SEC). At the time the planned tender offer is commenced, a tender offer
statement on Schedule TO will be filed by Merck with the SEC, and Cubist
will file a solicitation/recommendation statement on Schedule 14D-9 with
respect to the tender offer. The tender offer materials (including an
offer to purchase, a related letter of transmittal and other tender
offer documents) and the solicitation/recommendation statement will
contain important information that holders of Cubist common stock shares
are urged to read carefully when they become available, as each may be
amended or supplemented from time to time and because they will contain
important information that holders of shares of Cubist common stock
should consider before making any decision regarding tendering their
shares. The tender offer materials will be made available to Cubist’s
stockholders at no expense to them. In addition, all of those materials
(and other tender offer documents filed with the SEC) will be made
available at no charge on the SEC’s website at
Additional copies of the tender offer materials may be obtained at no
charge by contacting Merck at 2000 Galloping Hill Road, Kenilworth,
N.J., 07033 or by phoning (908) 740-4000. In addition, Merck and Cubist
file annual, quarterly and current reports and other information with
the SEC. You may read and copy any reports or other information filed by
Merck or Cubist at the SEC public reference room at 100 F Street, N.E.,
Washington, D.C., 20549. For further information on the SEC public
reference room, please call 1-800-SEC-0330. Merck’s and Cubist’s filings
with the SEC are also available to the public from commercial
document-retrieval services and at the SEC’s website at

About Merck

Today’s Merck is a global healthcare leader working to help the world be
well. Merck is known as MSD outside the United States and Canada.
Through our prescription medicines, vaccines, biologic therapies and
animal health products, we work with customers and operate in more than
140 countries to deliver innovative health solutions. We also
demonstrate our commitment to increasing access to healthcare through
far-reaching policies, programs and partnerships. For more information,
and connect with us on Twitter,
and YouTube.

Merck Forward-Looking Statement

This news release includes “forward-looking statements” within the
meaning of the safe harbor provisions of the United States Private
Securities Litigation Reform Act of 1995. Forward-looking statements
include statements regarding the timing and closing of the tender offer
and the merger transactions, the ability of Merck to complete the
transactions considering the various closing conditions, and any
assumptions underlying any of the foregoing. These statements are based
upon the current beliefs and expectations of Merck’s management and are
subject to significant risks and uncertainties. There can be no
guarantees with respect to pipeline products that the products will
receive the necessary regulatory approvals or that they will prove to be
commercially successful. If underlying assumptions prove inaccurate or
risks or uncertainties materialize, actual results may differ materially
from those set forth in the forward-looking statements.

Risks and uncertainties include but are not limited to, general industry
conditions and competition; general economic factors, including interest
rate and currency exchange rate fluctuations; the impact of
pharmaceutical industry regulation and health care legislation in the
United States and internationally; global trends toward health care cost
containment; technological advances, new products and patents attained
by competitors; challenges inherent in new product development,
including obtaining regulatory approval; Merck’s ability to accurately
predict future market conditions; manufacturing difficulties or delays;
financial instability of international economies and sovereign risk;
dependence on the effectiveness of Merck’s patents and other protections
for innovative products; the exposure to litigation, including patent
litigation, and/or regulatory actions; timing of the tender offer and
merger; uncertainties as to how many Cubist stockholders will tender
shares in the tender offer; the possibility that competing offer may be
made; the possibility that various closing conditions to transactions
may not be satisfied or waived, including that a governmental entity may
prohibit, delay or refuse to grant approval for the consummation of the
transactions; or that a material adverse effect occurs with respect to

Merck undertakes no obligation to publicly update any forward-looking
statement, whether as a result of new information, future events or
otherwise. Additional factors that could cause results to differ
materially from those described in the forward-looking statements can be
found in Merck’s 2013 Annual Report on Form 10-K and the company’s other
filings with the SEC available at the SEC’s Internet site (

Lainie Keller, 908-236-5036
Steve Cragle, 908-740-1801
Joe Romanelli, 908-740-1986
Justin Holko, 908-740-1879

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