UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934*
(Amendment No. 9)
GENENTECH, INC.
(Name of Issuer)
REDEEMABLE COMMON STOCK
$.02 PAR VALUE
(Title of Class of Securities)
368710208
(CUSIP Number)
Peter R. Douglas
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Tel. No.: (212) 450-4000
(Name, Address and Telephone Number of Person
Authorized
to Receive Notices and Communications)
April 30, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
Check the following box if a fee is being paid with this statement. [ ] (A
fee is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class
of securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of less than five percent of such
class). (See Rule 13d-7.)
Note: This document is being electronically filed with the Commission, using
the EDGAR system. Additionally, one paper copy of the filing will
subsequently be sent to the Commission. See Rule 13d-1(a) for other parties
to whom copies are to be sent.
*The remainder of this cover page should be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
CUSIP No. 368710208
____________________________________________________________________
(1) Names of Reporting Persons S.S. or I.R.S. Identification
Nos. of Above Persons
ROCHE HOLDINGS, INC.
51-0304944
_____________________________________________________________________
(2) Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [ ]
_____________________________________________________________________
(3) SEC Use Only
_____________________________________________________________________
(4) Source of Funds WC
_____________________________________________________________________
(5) Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e)
[ ]
______________________________________________________________________
(6) Citizenship or Place of Organization
United States of America
______________________________________________________________________
Number of (7) Sole Voting Power 9,487,600 Shares
Shares Bene- Redeemable Common Stock
ficially
Owned by- (8) Shared Voting Power 0 Shares
Each Report-
ing Person - (9) Sole Dispositive Power 9,487,600 Shares
With Redeemable Common Stock
(10) Shared Dispositive Power 0 Shares
______________________________________________________________________
(11) Aggregate Amount Beneficially Owned by Each Reporting
Person
9,487,600 Redeemable Common Stock
______________________________________________________________________
(12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares [ ]
______________________________________________________________________
(13) Percent of Class Represented by Amount in Row (11)
18.8% of Redeemable Common Stock
______________________________________________________________________
(14) Type of Reporting Person (See Instructions)
CO, HC
The following information amends and supplements the Schedule 13D
dated September 17, 1990, as previously amended (as so amended, the "Schedule
13D").
Item 1. Security and Issuer.
This statement relates to the Redeemable Common Stock, par value
$.02 per share (the "Redeemable Common Stock" and, together with the Common
Stock, par value $.02 per share (the "Common Stock"), the "Common Shares"), of
Genentech, Inc., a Delaware corporation (the "Company"). The principal
executive offices of the Company are located at 460 Point San Bruno Boulevard,
San Francisco, California 94080.
Item 2. Identity and Background.
This statement is filed by Roche Holdings, Inc., a Delaware
corporation ("Purchaser") and wholly owned subsidiary of Roche Finance Ltd, a
Swiss corporation ("Finance") and wholly owned subsidiary of Roche Holding
Ltd, a Swiss corporation ("Holding"). Dr. h.c. Paul Sacher, an individual and
citizen of Switzerland ("Dr. Sacher") has, pursuant to an agreement, the power
to vote a majority of the voting securities of Holding. Purchaser, Finance,
Holding and Dr. Sacher are herein referred to collectively as the "Reporting
Persons".
The address of the principal offices of Purchaser is 15 East North
Street, Dover, Delaware 19901. The address of the principal offices of
Finance is Grenzacherstrasse 122, Basel, Switzerland. The address of the
principal offices of Holding is Grenzacherstrasse 124, Basel 4002,
Switzerland. The business address of Dr. Sacher is Haus auf Burg,
Muensterplatz 4, Basel 4051, Switzerland.
Item 3. Source and Amount of Consideration
The aggregate purchase price for the 159,000 shares of Redeemable
Common Stock acquired by Purchaser between January 20, 1995 and April 28, 1995
as described in Item 4 was $7,433,125.00, excluding commissions, and was
financed from working capital of the Purchaser.
Item 4. Purpose of Transaction
On April 30, 1995, Purchaser and the Company entered into a
Transaction Agreement, a copy of which is attached hereto as Exhibit 7.1, and
on May 1, 1995 Holding and the Company issued press releases announcing the
Transaction Agreement. Copies of the press releases are attached hereto as
Exhibits 7.2 and 7.3. The Transaction Agreement and the press releases are
incorporated herein by reference.
Between January 20, 1995 and April 28, 1995, the Purchaser
purchased an aggregate of 159,000 shares of Redeemable Common Stock for an
aggregate purchase price of $7,433,125.00, excluding commissions. Certain
information with respect to purchases of Redeemable Common Stock within the 60
days preceding the date of this Amendment is set forth in Schedule D. Subject
to market conditions and other factors (including limits imposed by the
Governance Agreement between Purchaser and the Company), the Purchaser expects
that it or its affiliates may acquire additional Redeemable Common Stock from
time to time in the future in open-market, privately negotiated or other
transactions.
The purpose of the Purchaser, Finance and Holding in effecting the
purchases of Redeemable Common Stock referred to above was to increase their
aggregate equity interest in the Company.
Item 5. Interest in the Securities of the Issuer.
(a) The Purchaser is the beneficial owner of 67,133,409 shares of
Common Stock (100% of the Common Stock outstanding) and 9,487,600 shares of
Redeemable Common Stock (18.8% of the 50,427,615 shares of Redeemable Common
Stock outstanding as of March 13, 1995 according to the Company's Form 10-K
for the year ended December 31, 1994 (the "10-K")), which together represent
65.2% of the 117,561,024 Common Shares outstanding as of March 13, 1995
according to the 10-K.
Transactions by the Reporting Persons in Redeemable Common Stock
within the 60 days preceding the date of this Amendment are described in Item
4 and in Schedule D.
Except as set forth herein, neither the Reporting Persons nor any
other person controlling the Reporting Parties nor, to the best of their
knowledge, any of the persons named in Schedules A, B and C hereto
beneficially owns any Common Shares, except that Prof. Jurgen Drews owns 200
shares of Redeemable Common Stock and Prof. Drews and Dr. Armin M. Kessler
have each been granted employee stock options by the Company to purchase
15,000 shares of Redeemable Common Stock at $25.50 per share, all of which are
issuable under currently exercisable stock options and options exercisable
within sixty days of May 1, 1995, and 15,000 shares of Redeemable Common Stock
at $26.50 per share, all of which are issuable under currently exercisable
stock options and options exercisable within sixty days of May 1, 1995.
(b) Except as otherwise described herein, none of the Reporting
Persons has any sole or shared power to vote or to direct the vote of any
Common Shares nor sole or shared power to dispose of or direct the disposition
of any Common Shares.
(c) Except as set forth herein previous amendments to this
Schedule 13D and in Schedule D hereto, no transactions in the Common Shares
have been effected during the past 60 days by the Reporting Persons nor any
other person controlling the Reporting Persons nor, to the best of their
knowledge, any of the persons named in Schedules A, B and C hereto.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
There are no contracts, arrangements, understandings or
relationships among the persons named in Item 2 or between any of such persons
and any other person with respect to any securities of the Company except as
referred to or described herein or in the Schedule 13D.
Item 7. Material Filed as Exhibits.
Exhibit 7.1 Transaction Agreement between Roche Holdings, Inc.
and Genentech, Inc. dated April 30, 1995 (exhibits omitted).
Exhibit 7.2 Press Release issued May 1, 1995 by Roche Holding Ltd.
Exhibit 7.3 Press Release issued May 1, 1995 by Genentech, Inc.
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and accurate.
Dated: May 1, 1995
ROCHE HOLDINGS, INC.
By /s/ Henri B. Meier
-----------------------
Name: Henri B. Meier
Title: Vice President, Finance,
Accounting
SCHEDULE A
Executive Officers and Directors(*)
of
Roche Holdings, Inc.
The names of the Directors and the names and titles of the
Executive Officers of Roche Holdings, Inc. and their business addresses and
principal occupations are set forth below. If no address is given, the
Director's or Executive Officer's business address is that of Roche Holding
Ltd. Unless otherwise indicated, each occupation set forth opposite an
individual's name refer to Roche Holding Ltd and each individual is a Swiss
citizen.
Present Principal
Name, Business Address Occupation
- --------------------------- ------------------
*Mr. Fritz Gerber Chairman, President and
(President) Chief Executive Officer
*Dr. Henri B. Meier Chief Financial Officer
SCHEDULE B
Executive Officers and Directors(*)
of
Roche Finance Ltd
The names of the Directors and the names and titles of the
Executive Officers of Roche Finance Ltd and their business addresses and
principal occupations are set forth below. If no address is given, the
Director's or Executive Officer's business address is that of Roche Holding
Ltd. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to Roche Holding Ltd and each individual is a Swiss
citizen.
Present Principal
Name, Business Address Occupation
- ---------------------- -------------------
*Mr. Fritz Gerber Chairman of the Board,
(President) President and
Chief Executive Officer
*Dr. Andres F. Leuenberger Vice Chairman of the
Board
*Dr. Henri B. Meier Chief Financial Officer
SCHEDULE C
Executive Officers and Directors(*)
of
Roche Holding Ltd
The names of the Directors and the names and titles of the
Executive Officers of Roche Holding Ltd and their business addresses and
principal occupations are set forth below. If no address is given, the
Director's or Executive Officer's business address is that of Roche Holding
Ltd. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to Roche Holding Ltd and each individual is a Swiss
citizen, except that Dr. Drews is a German citizen and Mr. Belingard is a
French citizen.
Present Principal
Name, Business Address Occupation
- ------------------------- ---------------------
*Mr. Fritz Gerber Chairman of the Board and
Chief Executive Officer
*Dr. Lukas Hoffmann Vice Chairman of the Board
Le petit Essert Vice Chairman of WWF
1147 Montricher, Switzerland International
(a nonprofit organization)
*Dr. Andres F. Leuenberger Vice Chairman and Delegate
of the Board
*Dr. h.c. Paul Sacher Conductor and Founder of
Haus auf Burg Paul Sacher Foundation
Muensterplatz 4 (a nonprofit organization)
4051 Basel, Switzerland
*Dr. Armin M. Kessler Chief Operating Officer
*Dr. Henri B. Meier Chief Financial Officer
*Dr. Jakob Oeri Surgeon and retired
Director Head Physician,
St. Alban - Vorstadt 71 Kantonsspital Basel
(hospital)
*Dr. Kurt Jenny Lawyer
Aeschengraben 18
4051 Basel, Switzerland
Prof. Dr. Werner Stauffacher Professor
Head of Department University of Basel
of Internal Medicine
Hebelstrasse 32
4056 Basel, Switzerland
*Prof. Charles Weissmann Professor
Director University of Zurich
Institut fur
Molekularbiologie I
1er Universitaet Zurich
Hoenggerberg
8093 Zurich, Switzerland
Dr. Markus Altwegg General Manager
Dr. Roland Bronnimann General Manager
Prof. Jurgen Drews General Manager
Mr. Jean-Luc Belingard General Manager
SCHEDULE D
Purchases of Redeemable
Common Stock
(all transactions effected on NYSE)
(all prices exclude commissions)
Date Number of Shares Price Per Share
3-30-95 12,400 $47.875
4-3-95 50,000 $46.50
4-3-95 17,600 $46.625
4-3-95 60,000 $46.75
4-3-95 1,000 $46.875
4-3-95 16,000 $47.00
EXHIBIT 7.1
CONFORMED COPY
TRANSACTION AGREEMENT
BETWEEN
ROCHE HOLDINGS, INC.
AND
GENENTECH, INC.
Dated April 30, 1995
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS.................................................... 1
ARTICLE II
THE AMENDMENT; EFFECTIVE TIME; CLOSING
2.1 The Amendment............................................ 3
2.2 Effective Time........................................... 3
2.3 Closing.................................................. 3
ARTICLE III
TERMS OF THE AMENDMENT
3.1 Certificate of Incorporation............................. 4
ARTICLE IV
EFFECT ON SHARES OF THE AMENDMENT
4.1 Treatment of Shares Pursuant to the
Amendment................................................ 4
4.2 Validity of Certificates Following the
Amendment................................................ 5
ARTICLE V
ADDITIONAL COVENANTS AND AGREEMENTS
5.1 Stockholder Meeting; Proxy Material...................... 5
5.2 Reasonable Efforts....................................... 6
5.3 Continuing Compliance with Governance
Agreement................................................ 6
5.4 Compliance with Securities Laws.......................... 6
5.5 Option Plans............................................. 7
5.6 Additional Agreements.................................... 7
5.7 Voting................................................... 7
5.8 Certain Proceedings...................................... 7
5.9 Merger Agreement......................................... 7
ARTICLE VI
CONDITIONS
6.1 Conditions to Each Party's Obligations................... 7
6.2 Condition to Obligations of Roche........................ 8
6.3 Conditions to Obligations of the Company................. 8
ARTICLE VII
TERMINATION
7.1 Termination.............................................. 9
7.2 Effect of Termination and Abandonment.................... 9
ARTICLE VIII
MISCELLANEOUS AND GENERAL
8.1 Expenses................................................. 10
8.2 Notices, Etc............................................. 10
8.3 Amendments, Waivers, Etc................................. 11
8.4 No Assignment............................................ 11
8.5 Entire Agreement......................................... 11
8.6 No Third Party Beneficiaries............................. 11
8.7 Jurisdiction............................................. 11
8.8 Governing Law............................................ 12
8.9 Name, Captions, Etc...................................... 12
8.10 Counterparts............................................. 12
TRANSACTION AGREEMENT
TRANSACTION AGREEMENT (this "Agreement"), dated April 30, 1995,
between Roche Holdings, Inc., a Delaware corporation ("Roche"), and Genentech,
Inc., a Delaware corporation (the "Company").
RECITALS
WHEREAS, the Boards of Directors of Roche and the Company each
have determined that it is in the best interests of their respective
stockholders for Article THIRD of the Company's Certificate of Incorporation
to be amended and restated upon the terms and subject to the conditions of
this Agreement;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein, Roche and the Company
hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the
respective meanings set forth below:
"Affiliate": As defined in Rule 12b-2 under the Exchange Act.
"Amendment": As defined in Section 2.1
"Authorization": Any consent, approval or authorization of,
expiration or termination of any waiting period requirement by, or filing,
registration, qualification, declaration or designation with, any Governmental
Body.
"Certificate of Amendment": The certificate of amendment with
respect to the amendment and restatement of Article THIRD of the Company's
Certificate of Incorporation, containing the provisions required by, and
executed in accordance with, Section 242 of the DGCL.
"Certificates": As defined in Section 4.2(a).
"Closing Date": The date on which the Effective Time occurs.
"Code": The Internal Revenue Code of 1986, as amended, and all
regulations promulgated thereunder, as in effect from time to time.
"Common Shares": The Common Stock, par value $.02 per share,
of the Company, which shall remain unchanged by the Amendment.
"DGCL": The General Corporation Law of the State of Delaware.
"Effective Time": As defined in Section 2.2.
"Exchange Act": The Securities Exchange Act of 1934, as
amended, including the rules and regulations promulgated thereunder.
"Governance Agreement": The Governance Agreement dated as of
September 7, 1990 between Roche and the Company.
"Governmental Body": Any Federal, state, municipal, political
subdivision or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign.
"Marketing Agreement": The Agreement between F. Hoffmann -- La
Roche Ltd. and the Company, to be dated as of the Closing Date, in
substantially the form attached hereto as Exhibit D.
"Merger Agreement": the Merger Agreement among the Company,
Roche and a newly incorporated Delaware corporation which is a wholly owned
subsidiary of Roche ("Merger Sub"), to be entered into immediately prior to
termination of this Agreement pursuant to Section 7.1(b) hereof, the form of
which, together with all exhibits thereto, is attached hereto as Exhibit E.
"New Governance Agreement": The Amended and Restated
Governance Agreement between Roche and the Company, to be dated as of the
Closing Date, in substantially the form attached hereto as Exhibit A.
"New Guaranty": The Guaranty of Roche Holding Ltd, a Swiss
corporation, to be dated as of the Closing Date, in substantially the form
attached hereto as Exhibit B.
"NYSE": The New York Stock Exchange, Inc.
"Option": As defined in Section 4.1(b).
"Option Plans": As defined in Section 4.1(b).
"Person": Any individual or corporation, company, partnership,
trust, incorporated or unincorporated association, joint venture or other
entity of any kind.
"Redeemable Common Shares": The shares of Redeemable Common
Stock, par value $.02 per share, of the Company issued and outstanding prior
to the Effective Time.
"SEC": The Securities and Exchange Commission.
"Securities Act": The Securities Act of 1933, as amended,
including the rules and regulations promulgated thereunder.
"Special Common Shares": The shares of Special Common Stock,
par value $.02 per share, of the Company issued and outstanding after the
Effective Time.
"Stockholder Meeting": As defined in Section 5.1.
ARTICLE II
THE AMENDMENT; EFFECTIVE TIME; CLOSING
2.1 The Amendment. Subject to the terms and conditions of
this Agreement, at the Effective Time (as hereinafter defined), Article THIRD
of the Company's Certificate of Incorporation shall be amended and restated
(the "Amendment") substantially in the form attached hereto as Exhibit C, and
the Redeemable Common Stock shall thereafter be renamed "Special Common Stock"
as provided in such Article THIRD, as amended.
2.2 Effective Time. The Amendment shall become effective on
the date and at the time (the "Effective Time") that the Certificate of
Amendment shall have been accepted for filing by the Secretary of State of the
State of Delaware (or such later date and time as may be specified in the
Certificate of Amendment), which shall be the Closing Date or as soon as
practicable thereafter.
2.3 Closing. The consummation of the transactions
contemplated by this Agreement shall take place (i) at the offices of
Wachtell, Lipton, Rosen & Katz, New York, New York, at 10:00 a.m. on the
second business day following the date on which the last of the conditions set
forth in Article VI hereof is fulfilled or (subject to applicable law) waived
or (ii) at such other place and/or time and/or on such other date as Roche and
the Company may agree or as may be necessary to permit the fulfillment or
waiver of the conditions set forth in Article VI.
ARTICLE III
TERMS OF THE AMENDMENT
3.1 Certificate of Incorporation. The Certificate of
Incorporation of the Company as in effect immediately prior to the Effective
Time shall be the Certificate of Incorporation of the Company after the
Effective Time, until duly amended in accordance with the terms thereof, of
the New Governance Agreement and of the DGCL, except that at the Effective
Time Article THIRD of such Certificate of Incorporation shall be amended as
provided in this Agreement and the DCGL substantially in the form attached
hereto as Exhibit C.
ARTICLE IV
EFFECT ON SHARES OF THE AMENDMENT
4.1 Treatment of Shares Pursuant to the Amendment. Subject
to the provisions of this Article IV, at the Effective Time, by virtue of the
Amendment and without any action on the part of the holders thereof, the
Redeemable Common Shares and options issued by the Company in respect of any
such shares shall be treated as follows:
(a) Each Redeemable Common Share issued and outstanding
immediately prior to the Effective Time shall remain outstanding, shall be
amended as provided in the Amendment, and shall be known as a "Special Common
Share" immediately following the Effective Time.
(b) Each outstanding option to purchase Redeemable Common
Shares (each, an "Option"), issued pursuant to the Company's stock option
plans (collectively, the "Option Plans") (whether or not vested or exercisable)
shall, without any action by the holder thereof, constitute an option to
acquire, on the same terms and conditions as were applicable under such Option
immediately prior to the Effective Time, that number of Special Common Shares
equal to the number of Redeemable Common Shares subject to such Option
immediately prior to the Effective Time, at the price or prices per share in
effect pursuant to the terms of such Option immediately prior to the Effective
Time.
4.2 Validity of Certificates Following the Amendment. (a)
Each certificate which, immediately prior to the Effective Time, represented
outstanding Common Shares or Redeemable Common Shares (the "Certificates")
shall, following the Effective Time, continue, for all purposes to evidence
ownership of, and to represent, an equal number of Common Shares or Special
Common Shares (formerly known as Redeemable Common Shares), as the case may be.
(b) The registered owner on the books and records of the
Company or its transfer agents of any outstanding Certificate shall, until
such Certificate shall have been surrendered for transfer or otherwise
accounted for to the Company or its transfer agents, have and be entitled to
exercise any voting and other rights with respect to, and to receive any
dividends and other distributions upon, the Special Common Shares evidenced by
such outstanding Certificate as provided above.
(c) In addition to the provisions of paragraphs (a) and (b)
of this Section 4.2, as soon as practicable following the Effective Time, the
Company shall cause to be delivered to holders of record of Redeemable Common
Shares as of the Effective Time a transmittal letter or other appropriate
documentation such that such holders may exchange Certificates formerly
denominated "Redeemable Common Shares" for certificates representing Special
Common Shares held of record by such holder. The Company shall be under no
obligation to issue certificates representing Special Common Shares until it
shall have received Certificates representing an equivalent number of
Redeemable Common Shares surrendered to the Company in accordance with such
transmittal letter or other appropriate documentation.
ARTICLE V
ADDITIONAL COVENANTS AND AGREEMENTS
5.1 Stockholder Meeting; Proxy Material. The Company shall
cause a meeting of its stockholders (the "Stockholder Meeting") to be duly
called and held as soon as reasonably practicable for the purpose of voting on
the approval and adoption of the Amendment. The directors of the Company
shall, subject to their fiduciary duties, recommend approval and adoption of
the Amendment by the Company's stockholders. In connection with such meeting,
the Company (i) will promptly prepare and file with the SEC, will use all
reasonable efforts to have cleared by the SEC and will thereafter mail to its
stockholders as promptly as practicable a proxy statement, registration
statement and all other documents which may be required to be filed or mailed
in connection with such meeting and the consummation of the transactions
contemplated hereby, (ii) will, subject to the fiduciary duties of its board
of directors, use all reasonable efforts to obtain the necessary approvals by
its stockholders of the Amendment and (iii) will otherwise comply with all
legal requirements applicable to such meeting.
5.2 Reasonable Efforts. The Company and Roche shall and
shall use all reasonable efforts to cause their respective Subsidiaries to:
(i) promptly make all filings and seek to obtain all Authorizations required
under all applicable laws with respect to the Amendment and will cooperate
with each other with respect thereto; (ii) use all reasonable efforts to
promptly take, or cause to be taken, all other actions and do, or cause to be
done, all other things necessary, proper or appropriate to satisfy the
conditions set forth in Article VI and to consummate and make effective the
transactions contemplated by this Agreement on the terms and conditions set
forth herein as soon as practicable (including seeking to remove promptly any
injunction or other legal barrier that may prevent such consummation); and
(iii) not take any action which might reasonably be expected to impair the
ability of the parties to consummate the transactions contemplated hereby at
the earliest possible time (regardless of whether such action would otherwise
be permitted or not prohibited hereunder); provided that the foregoing shall
not require Roche to furnish, other than for itself and its United States
Affiliates, financial statements prepared in accordance with United States
generally accepted accounting principles or any reconciliation of financial
statements with United States generally accepted accounting principles.
5.3 Continuing Compliance with Governance Agreement. Roche
and the Company agree that they shall continue to abide by the provisions of
the Governance Agreement.
5.4 Compliance with Securities Laws. The parties hereto
agree to take, and to cause their respective Affiliates to take, all actions
necessary to comply with the Securities Act and the Exchange Act and the rules
and regulations promulgated under such statutes in connection with the
Amendment and the transactions contemplated by this Agreement, provided that
the foregoing shall not require Roche to furnish, other than for itself and
its United States Affiliates, financial statements prepared in accordance with
United States generally accepted accounting principles or any reconciliation
of financial statements with United States generally accepted accounting
principles.
5.5 Option Plans. The Company shall take all action
necessary to ensure that, as provided in Section 4.1(b) hereof, Options
outstanding immediately prior to the Effective Time shall represent, at and
after the Effective Time, Options to acquire Special Common Shares on the same
terms as in effect immediately prior to the effective time pursuant to such
Options (and the related Option Plans) with respect to such shares. The
Company shall take all corporate action necessary to reserve for issuance a
sufficient number of Special Common Shares for delivery upon exercise of the
Options.
5.6 Additional Agreements. The Company and Roche agree to
execute each of the New Governance Agreement and the Marketing Agreement in
the forms attached hereto as Exhibits A and D, respectively, immediately prior
to the Effective Time.
5.7 Voting. Roche agrees to vote (i) all Redeemable Common
Shares owned by it as required pursuant to Section 3.06(b) of the Governance
Agreement and (ii) all Common Shares owned by it in favor of the Amendment.
5.8 Certain Proceedings. In the event that any action, suit,
proceeding or investigation relating hereto or to the transactions
contemplated by this Agreement is commenced, whether before or after the
Closing Date, the parties hereto agree to cooperate and use their respective
reasonable efforts to vigorously defend against and respond thereto.
5.9 Merger Agreement. Immediately prior to the termination
of this Agreement pursuant to Section 7.1(b) of this Agreement, the Company
and Roche shall execute, and Roche shall cause Merger Sub to execute, the
Merger Agreement attached hereto as Exhibit E.
ARTICLE VI
CONDITIONS
6.1 Conditions to Each Party's Obligations. The respective
obligations of each party to consummate the transactions contemplated by this
Agreement are subject to the fulfillment at or prior to the Effective Time of
each of the following conditions, any or all of which may be waived in whole
or in part by the party being benefitted thereby, to the extent permitted by
applicable law:
(a) Stockholder Approval. The amendments to Article THIRD
Company's Certificate of Incorporation shall have been duly approved or
ratified by the requisite vote of holders of Common Shares and Redeemable
Common Shares in accordance with applicable law, the Certificate of
Incorporation (including Article ELEVENTH thereof) and By-Laws of the Company
and the Governance Agreement.
(b) Additional Agreements. The New Governance Agreement and
the Marketing Agreement shall have been executed in substantially the forms
attached hereto as Exhibits A and D, respectively, and shall be in full force
and effect.
(c) Amendment of Certificate of Incorporation. Article THIRD
of the Certificate of Incorporation shall have been amended in substantially
the form attached hereto as Exhibit C.
(d) No Injunction. No provision of any applicable law or
regulation and no judgment, injunction, order or decree shall prohibit the
consummation of the Amendment.
(e) Listing of Special Common Shares on NYSE. The Special
Common Shares outstanding after the Effective Time (including upon exercise of
Options as referred to in Section 4.1(b)) shall continue to be listed on the
NYSE.
(f) Third Party Consents. All required authorizations,
consents or approvals of any third party, the failure to obtain which would
have a material adverse effect on the Company and its subsidiaries taken as a
whole, shall have been obtained.
6.2 Condition to Obligations of Roche. The obligations of
Roche to consummate the transactions contemplated by this Agreement are
subject to the fulfillment at or prior to the Effective Time of the condition,
which may be waived in whole or part by Roche, to the extent permitted by
applicable law, that the Company shall have performed or complied in all
material respects with all agreements and conditions contained herein required
to be performed or complied with by it prior to or at the Effective Time.
6.3 Conditions to Obligations of the Company. The
obligations of the Company to consummate the transactions contemplated by this
Agreement are subject to the fulfillment at or prior to the Effective Time of
the following conditions, which may be waived in whole or in part by the
Company to the extent permitted by applicable law:
(a) Performance. Roche shall have performed or complied in
all material respects with all agreements and conditions contained herein
required to be performed or complied with by it prior to or at the Effective
Time.
(b) New Guaranty. The New Guaranty shall have been executed
in substantially the form attached as Exhibit B hereto and shall be in full
force and effect.
ARTICLE VII
TERMINATION
7.1 Termination. (a) This Agreement may be terminated and
the Amendment may be abandoned at any time:
(i) Prior to the Effective Time, before or after the approval
by holders of Common Shares or Redeemable Common Shares, by the
mutual written consent of Roche and the Company; or
(ii) By either the Company or Roche, upon written notice to
the other parties hereto, if the stockholder approval contemplated by
Section 6.1(a) hereof is not obtained by the Company at a Stockholder
Meeting held prior to June 30, 1995.
(b) This Agreement shall terminate if (i) as of the close of
business on June 5, 1995, (x) the proxy statement referred to in Section 5.1
hereof has not been mailed to the Company's stockholders or (y) the date for
the Stockholder Meeting has not been set for a date prior to June 30, 1995 or
(ii) any of the conditions to the parties obligations set forth in Article VI
hereof shall not have been satisfied or waived prior to the close of business
on June 30, 1995; provided that no termination of this Agreement pursuant to
this Section 7.1(b) shall become effective until the Merger Agreement attached
hereto as Exhibit E shall have been executed by the Company, Roche and Merger
Sub pursuant to the covenant set forth in Section 5.9 hereof.
7.2 Effect of Termination and Abandonment. In the event of
termination of this Agreement and abandonment of the Amendment pursuant to
this Article VII, no party hereto (or any of its directors or officers) shall
have any liability or further obligation to any other party to this Agreement,
except that nothing herein will relieve any party from liability for any
breach of this Agreement.
ARTICLE VIII
MISCELLANEOUS AND GENERAL
8.1 Expenses. Each party shall bear its own expenses,
including the fees and expenses of any attorneys, accountants, investment
bankers, brokers, finders or other intermediaries or other Persons engaged by
it, incurred in connection with this Agreement and the transactions
contemplated hereby.
8.2 Notices, Etc. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall
be in writing and shall be deemed to have been duly given to any party when
delivered personally (by courier service or otherwise), when delivered by
telecopy and confirmed by return telecopy, or seven days after being mailed by
first-class mail, postage prepaid and return receipt requested in each case to
the applicable addresses set forth below:
If to the Company:
Genentech, Inc.
490 Point San Bruno Boulevard
South San Francisco, California 94080
Attn.: John P. McLaughlin
Telecopy: 415-952-9881
Richard D. Katcher, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Telecopy: 212- 403-2000
If to Roche:
Roche Holdings, Inc.
c/o Roche Holding Ltd
Grenzacherstrasse 124
CH-4002 Basel
Switzerland
Telecopy: 011-41-61-688-1396
Attn.: Dr. Felix Amrein
with a copy to:
Peter R. Douglas, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Telecopy: 212-450-4800
or to such other address as such party shall have designated by notice so
given to each other party.
8.3 Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified except by an
instrument in writing signed by the party against whom enforcement is sought.
8.4 No Assignment. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties and their
respective successors and assigns; provided that, except as otherwise expressly
set forth in this Agreement, neither the rights nor the obligations of any
party may be assigned or delegated without the prior written consent of the
other party.
8.5 Entire Agreement. Except as otherwise provided herein,
this Agreement and the exhibits hereto embody the entire agreement and
understanding between the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter. There are no representations, warranties or covenants by the parties
hereto relating to such subject matter other than those expressly set forth in
this Agreement and the exhibits hereto and any writings expressly required
hereby or thereby.
8.6 No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of and shall not be enforceable by any Person
or entity who or which is not a party hereto.
8.7 Jurisdiction. Each party hereby irrevocably submits to
the exclusive jurisdiction of the United States District Court for the
Southern District of New York or any court of the State of New York located in
the City of New York in any action, suit or proceeding brought by either party
hereto and arising in connection with this Agreement, and agrees that any such
action, suit or proceeding shall be brought only in such court (and waives any
objection based on forum non conveniens or any other objection to venue
therein); provided, however, that such consent to jurisdiction is solely for
the purpose referred to in this Section 8.7 and shall not be deemed to be a
general submission to the jurisdiction of said Courts or in the State of New
York other than for such purpose. Roche and the Company hereby waive any
right to a trial by jury in connection with any such action, suit or
proceeding.
8.8 Governing Law. This Agreement and all disputes hereunder
shall be governed by and construed and enforced in accordance with the
internal laws of the State of Delaware, without regard to principles of
conflict of laws.
8.9 Name, Captions, Etc. The name assigned this Agreement
and the section captions used herein are for convenience of reference only and
shall not affect the interpretation or construction hereof. Unless otherwise
specified, (a) the terms "hereof," "herein" and similar terms refer to this
Agreement as a whole and (b) references herein to Articles or Sections refer
to articles or sections of this Agreement.
8.10 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one instrument. Each counterpart may
consist of a number of copies each signed by less than all, but together
signed by all, the parties hereto.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered by the parties set forth below.
GENENTECH, INC.
By: /s/ G. Kirk Raab
------------------------
Name: G. Kirk Raab
Title: President and Chief
Executive Officer
ROCHE HOLDINGS, INC.
By: /s/ Henri B. Meier
------------------------
Name: Dr. Henri B. Meier
Title: Vice President and
Treasurer
EXHIBIT 7.2
Basel, 1 May 1995
Extension of Roche's Buyout option for outstanding Genentech shares.
Genentech retains Independence with closer marketing ties to Roche.
Roche and Genentech have agreed to extend Roche's call option on outstanding
Genentech stock for a four year period at a predetermined price that escalates
quarterly ending on 30 June 1999 with a strike price of US$82 per share.
Genentech shareholders will have a put option at a price of US$60 per share,
exercisable only during a 30 day period following the termination of the four
year call option. In addition and independent of the redemption right Roche
has the right to purchase in the open market up to a maximum of 79.9 percent
of Genentech stock. Under the agreement Genentech is granting Roche an option
on exclusive worldwide commercial rights to all of its new products outside
the US.
The new agreement underlines Roche's commitment for Genentech and it's
employees to maintain independent operations in a climate of entrepreneurial
and intellectual creativity. Genentech's innovative products will
increasingly benefit from Roche's global marketing development and sales
resources.
The agreement was signed with the approval of the boards of both companies but
is still subject to approval by Genentech shareholders and regulatory
authorities.
Roche acquired a majority stake (60 percent) of Genentech in 1990 under an
agreement which also gave Roche the option to redeem all outstanding Genentech
shares by 30 June 1995. The agreement foresaw the redemption price per share
rising to US$60 per share on 1 April 1995. It also allowed Roche to acquire
on the open market a further 15 percent of Genentech stock beyond the initial
60 percent holding. Currently Roche holds approximately 66 percent of
Genentech shares outstanding.
Roche now has the right to exercise its option, providing it does so for all
Genentech's outstanding shares, at US$ 61.25 per share from 1 July 1995 to 30
September 1995. Thereafter the redemption price increases by US$1.25 per
share every three months to US$70 on 1 April, 1997. From 1 July to 30
September 1997 the redemption price is US$71.50 per share and thereafter
increases by US$1.50 per share every three months to reach US$82 on 1 April
1999.
Media contact:
Max W. Gurtner +41/61/699 55 54 or +41/77/45 62 96
Investor contact:
M.F. Rutimeyer +41/61/688 80 56 or +41/77/45 82 93
EXHIBIT 7.3
NEWS RELEASE
Genentech, Inc. Media Contact: Laura Leber (415) 225-5759
Investor Contact: Lisa Brock (415) 225-1034
GENENTECH AGREES TO EXTEND ROCHE'S BUYOUT OPTION
FOR 4 YEARS AT ESCALATING PRICE PER SHARE UP TO $82
-- GNE stockholders can "put" at $60/share
if Roche does not consummate purchase; Roche to
receive ex-U.S. GNE product rights --
SOUTH SAN FRANCISCO, CA, May 1, 1995 -- Genentech, Inc. (NYSE: GNE) today
announced an agreement with Roche Holding, Ltd. of Basel, Switzerland, to
extend for four years Roche's option to purchase the outstanding redeemable
common stock of the company at a predetermined price that escalates quarterly
up to $82/share. If Roche does not consummate the purchase as of June 30,
1999, Genentech's stockholders will have the option to exercise a "put" on
some or all of their shares at the stockholder's discretion at $60 per share
within a thirty-day period commencing July 1, 1999. The extension must be
approved by a vote of Genentech stockholders, including the affirmative vote of
holders of a majority of the redeemable common stock not owned by Roche.
The parties' agreement also provides Roche may increase its GNE
ownership up to 79.9 percent through purchases on the open market (vs. the 75
percent currently allowed). Roche also will receive an option to market
Genentech's products outside of the United States.
The agreement will provide Roche an option period to purchase
the outstanding redeemable common stock beginning July 1, 1995 through June
30, 1999. The redemption price per share will increase quarterly at $1.25 for
the first eight quarters, and at $1.50 for the last eight quarters. This will
result in a $61.25 redemption price per share in the quarter beginning July 1,
1995, and peak at an $82.00 redemption price per share in the quarter
beginning April 1, 1999. Roche will be able to redeem the redeemable common
stock through June 30, 1995 at the current redemption price of $60/share.
As part of the agreement, Roche will be granted at commercial
terms an option for ten years on rights for Genentech products in non-U.S.
markets. At the conclusion of phase II clinical trials or earlier, Roche may
decide to co-develop a Genentech drug. If so, Genentech and Roche will split
approximately equally all U.S. development expenses (including preclinical,
clinical, process development, and related expenses). Roche will pay for
non-U.S. development expenses. Roche will pay a royalty of 12.5% until a
product reaches $100 million in sales, when the royalty for that product's
full sales becomes 15%.
As part of the agreement, Roche will have exclusive rights and
pay Genentech a 20% royalty on Canadian sales of ProtropinTrademark,
NutropinTrademark, ActivaseTrademark, and PulmozymeTrademark, as well as
European sales of Pulmozyme.
According to the terms of the agreement, Roche will continue to
have two of thirteen seats on Genentech's Board of Directors.
Also under the terms of the agreement, Genentech will supply
its relevant products for ex-U.S. sales to Roche at cost plus a 20 percent
margin.
"The agreement and its financial aspects present Genentech with
exciting opportunities, and they build further value for stockholders by
preserving our continued independent operations; supporting our aggressive drug
research and development efforts; and increasing our successful utilization of
Roche's existing worldwide development, marketing and sales network," said G.
Kirk Raab, president and CEO of Genentech, Inc. "Our Board believes, and I
expect our stockholders and employees will agree, that a put price of $60 in
four years and a call price of $82 protects against downside risk while
creating ample upside opportunity."
"We are even more enthusiastic today about Genentech than we
were in 1990 when we made our first key investment," said Fritz Gerber,
chairman of Roche Holding Ltd. "We are committed to continuing Genentech's
success, and to bringing the full force of Roche's global resources to
Genentech's international opportunities."
Extension builds on 1990 agreement
Roche originally purchased 60 percent of Genentech in 1990.
Under the terms of the agreement, Roche was given the right to increase its
holdings up to 75 percent of Genentech stock by purchases on the open market,
and to acquire the entire company at predetermined prices which increased each
quarter until reaching its plateau of $60 per share in the quarter beginning
April 1st of this year. Roche currently holds an approximately 66 percent
equity position in Genentech.
Genentech, Inc. is a leading biotechnology company that
discovers, develops, manufactures and markets human pharmaceuticals for
significant unmet medical needs. The company is headquartered in South San
Francisco, California and is traded on the New York and Pacific Stock Exchanges
under the symbol GNE.
# # #
QUARTERLY CALL PRICE
GENENTECH, INC.
CALL PERIOD PRICE
- ----------- --------
July 1, 1995 through September 30, 1995 $61.25
October 1, 1995 through December 31, 1995 $62.50
January 1, 1996 through March 31, 1996 $63.75
April 1, 1996 through June 30, 1996 $65.00
July 1, 1996 through September 30, 1996 $66.25
October 1, 1996 through December 31, 1996 $67.50
January 1, 1997 through March 31, 1997 $68.75
April 1, 1997 through June 30, 1997 $70.00
July 1, 1997 through September 30, 1997 $71.50
October 1, 1997 through December 31, 1997 $73.00
January 1, 1998 through March 31, 1998 $74.50
April 1, 1998 through June 30, 1998 $76.00
July 1, 1998 through September 30, 1998 $77.50
October 1, 1998 through December 31, 1998 $79.00
January 1, 1999 through March 31, 1999 $80.50
April 1, 1999 through June 30, 1999 $82.00
PUT PERIOD PRICE
- ---------- --------
July 1, 1999 through July 30, 1999 $60.00
# # #
