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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13E-3
AMENDMENT NO. 3 -- FINAL AMENDMENT
RULE 13E-3 TRANSACTION STATEMENT
(Pursuant to Section 13(e) of the Securities Exchange Act of 1934)
GENENTECH, INC.
(Name of Issuer)
GENENTECH, INC.
ROCHE HOLDINGS, INC.
(Name of Persons Filing Statement)
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COMMON STOCK, $.02 PAR VALUE 368710208
(Title of Class of Securities) (CUSIP Number of Class of Securities)
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JOHN P. MCLAUGHLIN, ESQ.
SENIOR VICE PRESIDENT AND SECRETARY
GENENTECH, INC. ROCHE HOLDINGS, INC.
460 POINT SAN BRUNO BOULEVARD 15 EAST NORTH STREET
SOUTH SAN FRANCISCO, CALIFORNIA 94080 DOVER, DELAWARE 19901
(415) 225-1000
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(Name, Address and Telephone Number of Persons Authorized to Receive Notices and
Communications on Behalf of the Persons Filing Statement)
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COPIES TO:
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RICHARD D. KATCHER, ESQ. PETER R. DOUGLAS, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ DAVIS POLK & WARDWELL
51 WEST 52ND STREET 450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10019 NEW YORK, NEW YORK 10017
(212) 403-1000 (212) 450-4000
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JUNE 2, 1995
(Date Proxy Statement First Published, Sent or Given to Security Holders)
This statement is filed in connection with (check the appropriate box):
a. /X/ The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C, or Rule 13e-3(c) under
the Securities Exchange Act of 1934.
b. / / The filing of a registration statement under the Securities Act of
1933.
c. / / A tender offer.
d. / / None of the above.
Check the following box if the soliciting materials or information
statement referred to in checking box (a) are preliminary copies. / /
CALCULATION OF FILING FEE
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TRANSACTION VALUATION AMOUNT OF FILING FEE
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$2,976,632,664* $595,327
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* For purposes of calculation of fee only, this amount is based upon the sum of
(A) the product of (i) 57,198,521, the number of outstanding shares of
Redeemable Common Stock, par value $.02 per share ("Redeemable Common Stock")
of Genentech outstanding on June 2, 1995 (the original filing date of this
Schedule 13E-3), assuming the exercise of all Genentech warrants and stock
options (whether or not currently exercisable), not including shares of
Redeemable Common Stock then held by Roche Holdings, Inc. and its affiliates,
and (ii) $48.1875, the average of the high and low sales price of a share of
Redeemable Common Stock quoted on the New York Stock Exchange on May 26, 1995
as reported in published financial sources, and (B) the product of (i)
4,670,282 (the incremental number of outstanding shares for which a fee was
not paid in connection with the initial filing of this Schedule 13E-3 on June
2, 1995, which number assumes the exercise of all warrants and stock options,
whether or not currently exercisable) and (ii) $47.1875 (the average of the
high and low sales price of the Common Stock into which the Redeemable Common
Stock was converted automatically after June 30, 1995 on the New York Stock
Exchange on August 31, 1995). In accordance with Rule 0-11 under the
Securities Exchange Act of 1934, the filing fee is determined by multiplying
the amount calculated pursuant to the preceding sentence by 1/50th of one
percent.
/X/ Check box if any part of the fee is offset as provided by Rule 0-11(a)(2).
Amount Previously Paid: $555,000 Filing Party: Genentech, Inc.
Form or Registration No.: Schedule 14A
Date Filed: June 2, 1995
and
Amount Previously Paid: $75,993 Filing Party: Genentech, Inc.
Form or Registration No.: Form S-4, No. 33-59949
Date Filed: September 8, 1995
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Genentech, Inc., a Delaware corporation ("Genentech"), and Roche Holdings,
Inc., a Delaware corporation ("Roche") hereby amend and supplement their Rule
13e-3 Transaction Statement on Schedule 13E-3 (as amended, the "Statement"). The
Statement relates to an Agreement and Plan of Merger dated as of May 23, 1995,
as amended and restated (the "Merger Agreement") among Genentech, Roche and HLR
(U.S.) II, Inc. ("Merger Sub"), a Delaware corporation and a wholly-owned
subsidiary of Roche. The transactions contemplated by the Merger Agreement were
approved by the stockholders of Genentech and were consummated, in each case, on
October 25, 1995. The purpose of the Merger Agreement and resulting conversion
of Genentech Common Stock into Genentech Special Common Stock was to, among
other matters, (i) extend by four years the period during which the publicly
traded stock of Genentech is subject to redemption by Genentech at the option of
Roche, with such redemption during such four-year period being at specified
prices per share ranging from $62.50 during the quarter ending December 31, 1995
increasing $1.25 per share for the next six quarters and $1.50 per share for the
next eight quarters to $82.00 during the quarter ending June 30, 1999 (the "Call
Rights"), and (ii) provide holders thereof the right to require Genentech to
redeem all or a portion (at the election of the holder) of their shares of such
stock for a 30-business-day period beginning in July 1999 (unless such right is
accelerated following the occurrence of certain insolvency events of Genentech)
at a price of $60.00 per share in the event that Roche does not cause the
exercise of the Call Rights. (Upon final court approval of certain shareholder
class action and derivative complaints pending in the Court of Chancery of the
State of Delaware in and for New Castle County consolidated under the caption In
re Genentech, Inc. Shareholders Litigation, Cons. C.A. No. 14265, each of the
redemption prices set forth in clause (i) of the preceding sentence will be
increased by $0.50 per share of Special Common Stock, resulting in a final price
of $82.50. If such final court approval occurs after payment of the applicable
redemption price described above, such $0.50 increase will be promptly
thereafter paid by Genentech for each share of such publicly traded stock for
which payment of the redemption price had previously been paid.) This Statement
is intended to satisfy the reporting requirements of Section 13(e) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). Terms used but
not defined herein shall have the meanings set forth in the definitive proxy
materials of Genentech (the "Proxy Statement/Prospectus") filed with the
Securities and Exchange Commission (the "Commission") on September 21, 1995.
This final amendment to this Statement reports the consummation of the
transactions contemplated by the Merger Agreement following approval of thereof
by the stockholders of Genentech at a special meeting of such stockholders held
on October 25, 1995.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS.
At the Special Meeting held on October 25, 1995, the Merger was
approved by a majority of shares of Common Stock entitled to vote at the
meeting (including a majority of such shares not held by Roche or its
affiliates). A certificate of merger was filed with the Secretary of State
of Delaware on October 25, 1995. As a result, the Effective Time occurred
on October 25, 1995 and Merger Subsidiary was merged with and into
Genentech.
ITEM 5. PLANS OR PROPOSALS OF THE ISSUER OR AFFILIATE.
The Merger was consummated on October 25, 1995, and the Common Stock
became eligible for termination of registration pursuant to Section
12(g)(4) of the Exchange Act. In the Merger, (i) the Certificate of
Incorporation of Genentech was amended to authorize the issuance of the
Special Common Stock and (ii) each share of Common Stock of Genentech
(other than shares of Common Stock held by Roche and its affiliates) was
converted into one share of Special Common Stock), each outstanding share
of Common Stock held by Roche and its affiliates was canceled, and the
outstanding common stock of Merger Subsidiary was converted into shares of
Common Stock representing the same number of shares of Common Stock held by
Roche and its affiliates immediately prior to the Merger.
ITEM 10. INTEREST IN SECURITIES OF THE ISSUER.
As a result of the consummation of the Merger, Roche Holdings, Inc.
owns 76,621,009 shares of Common Stock (100% of the outstanding shares of
Common Stock) and no shares of Special Common Stock. The Special Common
Stock commenced trading on the NYSE and the PSE on October 26, 1995.
ITEM 11. CONTRACTS, ARRANGEMENTS OR UNDERSTANDINGS WITH RESPECT TO THE ISSUER'S
SECURITIES.
On October 25, 1995, (i) the Company and Roche executed the Amended
Governance Agreement, (ii) the Company and Roche Holding executed the
Guaranty, (iii) the Company, HLR and certain subsidiaries of the Company
executed the Licensing Agreement and (iv) the Company deposited $1 million
with Citibank, N.A. under the Agency Agreement.
ITEM 17. MATERIAL TO BE FILED AS EXHIBITS.
(d)(2) Letter of Transmittal for exchange of stock certificates.
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SIGNATURE
After due 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: November 3, 1995 GENENTECH, INC.
By: /s/ John P. McLaughlin
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Name: John P. McLaughlin
Title: Senior Vice President and Secretary
ROCHE HOLDINGS, INC.
By: /s/ Henri B. Meier
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Name: Henri B. Meier
Title: Vice President
2
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EXHIBIT INDEX
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Exhibit No. Description
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Exhibit (d)(2) Letter of Transmittal for exchange of stock certificates.
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LETTER OF TRANSMITTAL
TO ACCOMPANY CERTIFICATE(S) FORMERLY REPRESENTING SHARES
OF COMMON STOCK OR REDEEMABLE COMMON STOCK OF
GENENTECH, INC.
To: THE FIRST NATIONAL BANK OF BOSTON, EXCHANGE AGENT
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By Mail: By Overnight Courier:
The First National Bank of Boston The First National Bank of Boston
P.O. Box 1889 Shareholder Services Division
Mail Stop 45-01-19 150 Royall Street, Mail Stop 45-01-19
Boston, Massachusetts 02105 Canton, Massachusetts 02021
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By Hand:
BancBoston Trust Company of New York
55 Broadway, 3rd Floor
New York, New York 10006
DO NOT SEND STOCK CERTIFICATES TO GENENTECH
For Information Call: (617) 575-3400
Delivery of this instrument to an address other than as set forth above does
not constitute valid delivery.
Ladies and Gentlemen:
In connection with the Agreement and Plan of Merger dated as May 23, 1995
(as amended to date, the "Agreement") among Genentech, Inc. ("Genentech"), Roche
Holdings, Inc. ("Roche") and HLR (U.S.) II, Inc., the undersigned hereby
transmits to you for exchange, on the terms and conditions of the Agreement and
this Transmittal Letter, certificate(s) formerly representing shares of
Genentech Common Stock, $0.02 par value per share (the "Genentech Common Stock")
or Genentech Redeemable Common Stock, $0.02 par value per share (the "Genentech
Redeemable Common Stock"), as follows:
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Name and Address of Registered Owner Certificate(s) Surrendered
(Please correct any errors) (Attach additional list if necessary)
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<S> <C> <C>
Number of
Certificate Shares Represented
Number(s) by Certificate
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TOTAL SHARES
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/ / If any of the Genentech stock certificates which you own have been lost or
destroyed, check this box and see Instruction 4. Please fill out the
remainder of this Letter of Transmittal and indicate here the number of
shares of Genentech Common Stock or Genentech Redeemable Common Stock
represented by the lost or destroyed certificates. (Number of
Shares)
ON JUNE 30, 1995, THE THEN OUTSTANDING GENENTECH REDEEMABLE COMMON STOCK WAS
AUTOMATICALLY CONVERTED INTO GENENTECH COMMON STOCK. NO ACTION ON THE PART OF
STOCKHOLDERS WAS REQUIRED TO EFFECT SUCH CONVERSION, AND THE CERTIFICATES
REPRESENTING GENENTECH REDEEMABLE COMMON STOCK AUTOMATICALLY REPRESENTED
GENENTECH COMMON STOCK AFTER SUCH DATE. PURSUANT TO THE AGREEMENT AND FOLLOWING
THE AFFIRMATIVE VOTE OF THE STOCKHOLDERS OF GENENTECH, ON OCTOBER 25, 1995, THE
GENENTECH COMMON STOCK HELD BY PERSONS OTHER THAN ROCHE AND ITS AFFILIATES WAS
CONVERTED INTO GENENTECH CALLABLE PUTABLE COMMON STOCK, $0.02 PAR VALUE PER
SHARE (THE "GENENTECH SPECIAL COMMON STOCK"). THUS, STOCK CERTIFICATES FORMERLY
REPRESENTING GENENTECH REDEEMABLE COMMON STOCK OR GENENTECH COMMON STOCK NOW
REPRESENT THE RIGHT TO RECEIVE AN EQUIVALENT NUMBER OF SHARES OF GENENTECH
SPECIAL COMMON STOCK PURSUANT TO THE INSTRUCTIONS SET FORTH IN THIS LETTER OF
TRANSMITTAL. YOU MUST SURRENDER THE CERTIFICATE(S) CURRENTLY HELD BY YOU IN
ORDER TO RECEIVE NEW CERTIFICATES REPRESENTING SPECIAL COMMON STOCK.
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The undersigned represents and warrants that the undersigned has full power
and authority to surrender the certificate(s) for the shares of Genentech Common
Stock or Genentech Redeemable Common Stock surrendered herewith, free and clear
of any liens, claims, charges or encumbrances whatsoever.
Certificate(s) must be endorsed or accompanied by appropriate stock powers
and signatures guaranteed if the new certificate representing shares of
Genentech Special Common Stock is to be registered in the name of anyone other
than the registered holder or mailed to any person(s) other than the person(s)
signing this Transmittal Letter. (See Instruction 3)
Please mail to the undersigned as instructed below, a new certificate
representing the number of shares of Genentech Special Common Stock equal to the
number of shares formerly represented by the enclosed certificate(s).
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SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 2, 3 AND 7)
Fill in ONLY if the Genentech Special Common Stock is to be issued in a
name other than the undersigned.
Name:
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(Please Print: First, Middle & Last Name)
Address:
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(Number and Street)
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(City, State & Zip Code)
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(Tax Identification or Social Security Number)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 2, 3 AND 7)
Fill in ONLY if the Genentech Special Common Stock is to be delivered to
someone other than the undersigned or to the undersigned at an address other
than that shown above.
Deliver certificate(s) to:
Name:
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(Please Print: First, Middle & Last Name)
Address:
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(Number and Street)
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(City, State & Zip Code)
Is this a permanent address change?
/ / YES / / NO (Check one box)
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All authority herein conferred shall survive the death or incapacity of the
undersigned and all obligations of the undersigned hereunder shall be binding on
the heirs, personal representatives, successors, or assigns of the undersigned.
PLEASE SIGN HERE
X DATED: , 199
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(Signature(s) of Stockholder(s))
(Must be signed by registered holder(s) exactly as name(s) appear(s) on
certificate(s) or by person(s) to whom the shares of Genentech Common Stock or
Genentech Redeemable Common Stock surrendered have been assigned and transferred
as evidenced by endorsements or stock powers transmitted herewith, with
signatures guaranteed. (See Instruction 3) If signing is by a trustee, executor,
administrator, guardian, officer of a corporation, attorney-in-fact or other
person acting in a fiduciary or representative capacity, please set forth full
title and enclose proper evidence of authority to so act.) (See Instruction 2)
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(Area Code and Telephone Number)
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(Tax Identification or Social Security Number)
Signature(s) Guaranteed by
(Only if required. See Instruction 3)
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(Title of Officer Signing this Guarantee)
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(Name of Guaranteeing Firm-Please Print)
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(Address of Guaranteeing Firm)
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INSTRUCTIONS FOR SURRENDERING SHARES OF
GENENTECH COMMON STOCK OR GENENTECH REDEEMABLE COMMON STOCK
FOR SHARES OF GENENTECH SPECIAL COMMON STOCK
1. GENERAL. PLEASE DO NOT SEND YOUR STOCK CERTIFICATE(S) DIRECTLY TO
GENENTECH. The Genentech Common Stock certificate(s) or Genentech Redeemable
Common Stock certificate(s), together with this Letter of Transmittal, properly
signed and completed, or a facsimile hereof, and any supporting documents (see
Instruction 2), should be mailed in the enclosed addressed envelope, or
otherwise delivered, to the Exchange Agent at any of the addresses listed on the
front side. The method of transmitting the Genentech stock certificate(s) is at
your option and risk, but IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN
RECEIPT REQUESTED, PROPERLY INSURED, IS SUGGESTED.
2. SIGNATURES. The signature (or signatures, in the case of certificates
owned by two or more joint holders) on this Letter of Transmittal should
correspond exactly with the name(s) as written on the face of the Genentech
stock certificate(s) surrendered unless the shares described on this Letter of
Transmittal have been assigned by the registered holder(s), in which event this
Letter of Transmittal should be signed in exactly the same form as the name(s)
of the last transferee(s) indicated on the transfers attached to or endorsed on
the certificate(s). If the "Special Issuance Instructions" or the "Special
Delivery Instructions" box is completed, then the signature(s) on this Letter of
Transmittal must be guaranteed as specified in Instruction 3 below.
If this Letter of Transmittal, or any endorsement or stock power required
by Instruction 3, is signed by a trustee, executor, administrator, guardian,
officer of a corporation, attorney-in-fact or other person acting in a fiduciary
or representative capacity, the person signing must give his full title in such
capacity and enclose appropriate evidence of his authority to so act. If
additional documents are required by the Exchange Agent, you will be so advised.
3. ENDORSEMENT OF CERTIFICATE(S); MEDALLION GUARANTEES. IF THE GENENTECH
SPECIAL COMMON STOCK CERTIFICATE IS TO BE ISSUED IN THE SAME NAME AS THE
REGISTERED HOLDER(S) OF THE SURRENDERED GENENTECH STOCK CERTIFICATE(S), SUCH
CERTIFICATE(S) NEED NOT BE ENDORSED OR ACCOMPANIED BY SEPARATE STOCK POWERS AND
THE SIGNATURE(S) NEED NOT BE GUARANTEED. If, however, any Genentech Special
Common Stock certificate is to be issued in a name different from that of the
registered holder(s) or sent to any person(s) other than the person(s) who sign
this Transmittal Letter, then (i) the Genentech certificate(s) must be duly
endorsed or accompanied by appropriate stock powers, in either case, signed
exactly as the name(s) of the registered holder(s) appear(s) on such
certificate(s); (ii) the signature of endorsement for transfer on such
certificate or separate stock powers must be guaranteed by a financial
institution that is a member of the Securities Transfer Association approved
medallion program such as STAMP, SEMP or MSP; and (iii) the person surrendering
such certificate(s) must remit to the Exchange Agent the amount of any transfer
or other taxes payable by reason of the delivery to a person other than the
registered holder(s) of the certificate(s) surrendered, or establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
applicable. In such case the "Special Issuance Instructions" box and/or the
"Special Delivery Instructions" box must be completed and the signature(s) on
this Letter of Transmittal must be guaranteed as specified above.
4. LOST OR DESTROYED STOCK CERTIFICATES. If any Genentech stock
certificates have been lost, stolen or destroyed, please check the box on the
front of this Transmittal Letter and fill in the blank to show the number of
shares represented by lost, stolen or destroyed stock certificates. You will be
instructed as to the steps you must take in order to receive a Genentech Special
Common Stock certificate in accordance with the Agreement.
5. INQUIRIES. All questions regarding appropriate procedures for
surrendering Genentech stock certificate(s) should be directed to the Exchange
Agent at the address set forth on the front side or by telephone at (617)
575-3400.
6. ADDITIONAL COPIES. Additional copies of this Letter of Transmittal may
be obtained from the Exchange Agent at the address set forth on the front side.
7. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. Indicate in Special
Issuance Instructions the name and address of the person in whose name a new
Genentech Special Common Stock certificate is to be issued if it is to be issued
in the name of someone other than the person(s) signing this Letter of
Transmittal. Indicate in Special Delivery Instructions the name and address to
which the new certificate is to be sent if it is to be sent (i) to someone other
than the person(s) signing this Letter of Transmittal, or (ii) to the person(s)
signing this Letter of Transmittal at an address other than that appearing on
the label on the face of this Transmittal Letter.
