UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934*
(Amendment No. 10)
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)
May 23, 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 Powe 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
No shares of Redeemable Common Stock were acquired by any of the
Reporting Persons between May 1, 1995, on which date Amendment 9 to the
Schedule 13D was filed, and May 24, 1995.
Item 4. Purpose of Transaction
On May 23, 1995, Purchaser, HLR (U.S.) II, Inc., a wholly-owned
subsidiary of Purchaser, and the Company entered into an Agreement and Plan of
Merger (the "Merger Agreement"), a copy of which is attached hereto as Exhibit
7.4, and on May 25, 1995 the Company issued a press release announcing the
execution of the Merger Agreement. A copy of the press release is attached
hereto as Exhibit 7.5. Each of the Merger Agreement and the press release are
incorporated herein by reference.
Between May 1, 1995, on which date Amendment 9 to the Schedule 13D
was filed, and May 24, 1995, the Reporting Persons did not purchase any shares
of Redeemable Common Stock. 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
purchases of Redeemable Common Stock has been 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 50,447,727 shares of Redeemable Common
Stock outstanding as of March 31, 1995 according to the Company's Form 10-Q
for the quarter ended March 31, 1995 (the "10-Q")), which together represent
65.2% of the 117,581,136 Common Shares outstanding as of March 31, 1995
according to the 10-Q.
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 24, 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 24,
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 in previous amendments to this Schedule
13D, 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, in the Schedule 13D and previous amendments
thereto.
Item 7. Material Filed as Exhibits.
Exhibit 7.4 Agreement and Plan of Merger among Roche
Holdings, Inc., HLR (U.S.) II, Inc. and
Genentech, Inc. dated May 23, 1995 (exhibits
omitted).
Exhibit 7.5 Press Release issued May 25, 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 25, 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 of the Board,
(President) President and
Chief Executive Officer
*Dr. Henri B. Meier Chief Financial Officer
(Vice President and
Treasurer)
Peter N. Schiller Attorney-at-Law
Hoffstots Lane
Sands Point, New York 11050
(Secretary)
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 Director
*Dr. Henri B. Meier Chief Financial Officer
*Dr. Jakob Oeri Surgeon and retired
Director Head Physician,
St. Alban - Vorstadt 71 Kantonsspital Basel
(hospital)
*Prof. jur. Kurt Jenny Lawyer
Aeschengraben 18
4051 Basel, Switzerland
*Prof. Dr. Werner Stauffacher Head of Department of
Head of Department Research, University of
of Research Basel
University of Basel
Hebelstrasse 32
4056 Basel, Switzerland
*Prof. Charles Weissmann Professor, University of
Institut fur Zurich
Molekularbiologie I
1er Universitaet Zurich
Hoenggerberg
8093 Zurich, Switzerland
Dr. Markus Altwegg General Manager
Mr. Jean-Luc Belingard General Manager
Dr. Roland Bronnimann General Manager
Prof. Jurgen Drews General Manager
Dr. Franz B. Humer General Manager
Exhibit 7.4
AGREEMENT AND PLAN OF MERGER
AMONG
ROCHE HOLDINGS, INC.,
HLR (U.S.) II, INC.
AND
GENENTECH, INC.
Dated May 23, 1995
TABLE OF CONTENTS
RECITALS................................................................ 1
ARTICLE I DEFINITIONS.................................................. 1
ARTICLE II THE MERGER; EFFECTIVE TIME; CLOSING......................... 3
2.1 The Merger............................................... 3
2.2 Effective Time........................................... 4
2.3 Closing.................................................. 4
ARTICLE III TERMS OF MERGER............................................ 4
3.1. Certificate of Incorporation............................. 4
3.2. The By-Laws.............................................. 4
3.3 Directors................................................ 4
3.4. Officers................................................. 4
ARTICLE IV MERGER CONSIDERATION; CONVERSION OR
CANCELLATION OF SHARES IN THE MERGER................... 5
4.1. Share Consideration; Conversion or Cancellation
of Shares in the Merger.................................. 5
4.2. Exchange of Shares in the Merger......................... 6
4.3. Transfer of Shares after the Effective Time.............. 7
ARTICLE V ADDITIONAL COVENANTS AND AGREEMENTS.......................... 8
5.1. Stockholder Meeting; Proxy Material; Registration
Statement; Stock Exchange Listing........................ 8
5.2. Reasonable Efforts....................................... 8
5.3. Continued Applicability of the Governance
Agreement................................................ 9
5.4. Compliance with Securities Laws.......................... 9
5.5. Option Plans............................................. 9
5.6. Additional Agreements.................................... 10
5.7. Voting................................................... 10
5.8. Certain Proceedings...................................... 10
ARTICLE VI CONDITIONS.................................................. 10
6.1. Conditions to Each Party's Obligations................... 10
6.2. Condition to Obligations of Roche and Merger
Sub...................................................... 11
6.3. Conditions to Obligations of the Company................. 12
ARTICLE VII TERMINATION................................................ 12
7.1. Termination.............................................. 12
7.2. Effect of Termination and Abandonment.................... 12
ARTICLE VIII MISCELLANEOUS AND GENERAL................................. 12
8.1. Expenses................................................. 12
8.2. Notices, Etc............................................. 13
8.3. Amendments, Waivers, Etc................................. 13
8.4. No Assignment............................................ 14
8.5. Entire Agreement......................................... 14
8.6. No Third Party Beneficiaries............................. 14
8.7. Jurisdiction............................................. 14
8.8. Governing Law............................................ 14
8.9. Name, Captions, Etc...................................... 14
8.10.Counterparts.............................................. 15
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated May 23,
1995, among Roche Holdings, Inc., a Delaware corporation ("Roche"), HLR (U.S.)
II, Inc., a newly formed Delaware corporation which is a direct wholly-owned
subsidiary of Roche ("Merger Sub"), and Genentech, Inc., a Delaware
corporation (the "Company").
RECITALS
WHEREAS, the Boards of Directors of Roche, Merger Sub and the
Company each have determined that it is in the best interests of their
respective stockholders for Merger Sub to merge with and into the Company,
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, Merger Sub 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.
"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 Merger": The certificate of merger with
respect to the merger of Merger Sub with and into the Company, containing the
provisions required by, and executed in accordance with, Section 251 of the
DGCL.
"Certificates": As defined in Section 4.2(b).
"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 shares of Common Stock, par value $.02
per share, of the Company.
"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.
"Exchange Agent": As defined in Section 4.2(a).
"Exchange Fund": As defined in Section 4.2(a).
"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": As defined in Section 2.1.
"New Governance Agreement": The Amended and Restated
Governance Agreement between Roche and the Surviving Corporation, 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(d).
"Option Plans": As defined in Section 4.1(d).
"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.
"Roche Shares": The Common Shares held by Roche or any
Affiliate thereof.
"S-4 Registration Statement": As defined in Section 5.1(b).
"SEC": The Securities and Exchange Commission.
"Securities Act": The Securities Act of 1933, as amended,
including the rules and regulations promulgated thereunder.
"Share Consideration": The Special Common Shares which the
holders of Common Shares (other than Roche or any Affiliate of Roche) will be
entitled to receive in the Merger pursuant to Section 4.1(a) hereof.
"Shares": Collectively, the Common Shares and the Redeemable
Common Shares (other than Common Shares or Redeemable Common Shares owned by
Roche or any Affiliate of Roche).
"Special Common Shares": The shares of Special Common Stock,
par value $.02 per share, of the Surviving Corporation.
"Stockholder Meeting": As defined in Section 5.1.
"Surviving Corporation": The surviving corporation in the
Merger.
"Termination Date": As defined in Section 5.3.
ARTICLE II
THE MERGER; EFFECTIVE TIME; CLOSING
2.1 The Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time (as hereinafter defined), Merger Sub, which
at such time shall have no assets or business operations and shall exist solely
for the purpose of effecting the Merger, shall be merged (the "Merger") with
and into the Company in accordance with the provisions of Section 251 of the
DGCL and with the effect provided in Sections 259 and 261 of the DGCL. The
separate corporate existence of Merger Sub shall thereupon cease and the
Company shall be the Surviving Corporation and shall continue to be governed
by the laws of the State of Delaware.
2.2 Effective Time. The Merger shall become effective on the
date and at the time (the "Effective Time") that the Certificate of Merger
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 Merger), 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 MERGER
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 Surviving Corporation,
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 by operation of the Merger,
of this Agreement and of the DCGL in substantially the form attached hereto as
Exhibit C.
3.2. The By-Laws. The By-Laws of the Company in effect at the
Effective Time shall be the By-Laws of the Surviving Corporation, until duly
amended in accordance with the terms thereof, of the Certificate of
Incorporation of the Surviving Corporation, of the New Governance Agreement
and of the DGCL.
3.3 Directors. The directors of the Company at the Effective
Time shall, from and after the Effective Time, be the directors of the
Surviving Corporation until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation or removal in
accordance with the Surviving Corporation's Certificate of Incorporation and
By-Laws and the New Governance Agreement.
3.4. Officers. The officers of the Company at the Effective
Time shall, from and after the Effective Time, be the officers of the
Surviving Corporation until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation or removal in
accordance with the Surviving Corporation's Certificate of Incorporation and
By-Laws and the New Governance Agreement.
ARTICLE IV
MERGER CONSIDERATION; CONVERSION OR
CANCELLATION OF SHARES IN THE MERGER
4.1. Share Consideration; Conversion or Cancellation of Shares
in the Merger. Subject to the provisions of this Article IV, at the Effective
Time, by virtue of the Merger and without any action on the part of the
holders thereof, the shares of the constituent corporations and options issued
by any such corporation in respect of any such shares shall be treated as
follows:
(a) Each Common Share issued and outstanding immediately
prior to the Effective Time (other than the Roche Shares, which
Common Shares shall be cancelled, and thereupon the holders thereof
shall cease to have rights with respect thereto, and other than
shares held in the treasury of the Company) shall be converted into
one Special Common Share.
(b) All Common Shares converted into Special Common Shares
pursuant to Section 4.1(a) shall cease to be outstanding, shall be
cancelled and retired and shall cease to exist, and each holder of a
certificate theretofore representing any such Common Shares shall
thereafter cease to have any rights with respect to such Common
Shares, except the right to receive for each Common Share, upon the
surrender of such certificate in accordance with Section 4.2, the
Share Consideration.
(c) The common stock, par value $.02 per share, of Merger Sub
issued and outstanding immediately prior to the Effective Time shall
be converted into a number of Common Shares equal to, in the
aggregate, the number of Roche Shares.
(d) Each outstanding option to purchase Redeemable Common
Shares or Common Shares, as the case may be (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
or Common Shares, as the case may be, 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. Exchange of Shares in the Merger. The manner of
exchanging Shares converted in the Merger pursuant to Section 4.1(a) hereof
shall be as follows:
(a) At the Effective Time, the Company shall make available
to an exchange agent selected by the Company (the "Exchange Agent"),
for the benefit of those Persons who immediately prior to the
Effective Time were the holders of Shares, a sufficient number of
certificates representing Special Common Shares required to effect
the delivery of the aggregate Share Consideration required to be
issued pursuant to Section 4.1(a) (the certificates representing
Special Common Shares comprising such aggregate Share Consideration
being hereinafter referred to as the "Exchange Fund").
(b) Promptly after the Effective Time, the Exchange Agent
shall mail to each holder of record of a certificate or certificates
which immediately prior to the Effective Time represented outstanding
Shares (the "Certificates") (i) a form of letter of transmittal
(which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon proper
delivery of the Certificates to the Exchange Agent) and (ii)
instructions for use in effecting the surrender of the Certificates
for exchange therefor. Upon surrender of Certificates to the
Exchange Agent, together with such letter of transmittal duly
executed and any other required documents, the holder of such
Certificates shall be entitled to receive for the Shares represented
by such Certificates the Share Consideration and the Certificates so
surrendered shall forthwith be canceled. Until so surrendered,
Certificates shall represent solely the right to receive the Share
Consideration. No dividends or other distributions that are declared
after the Effective Time on Special Common Shares and payable to the
holders of record thereof after the Effective Time will be paid to
Persons entitled by reason of the Merger to receive Special Common
Shares until such Persons surrender their Certificates. Upon such
surrender, there shall be paid to the Person in whose name the
Special Common Shares are issued any dividends or other distributions
having a record date after the Effective Time and payable with
respect to such Special Common Shares between the Effective Time and
the time of such surrender. After such surrender there shall be paid
to the Person in whose name the Special Common Shares are issued any
dividends or other distributions on such Special Common Shares which
shall have a record date after the Effective Time and prior to such
surrender and a payment date after such surrender; such payment shall
be made on such payment date. In no event shall the Persons entitled
to receive such dividends or other distributions be entitled to
receive interest on such dividends or other distributions. If any
certificate representing Special Common Shares is to be issued in a
name other than that in which the Certificate surrendered in exchange
therefor is registered, it shall be a condition of such exchange that
the Certificate so surrendered shall be properly endorsed and
otherwise in proper form for transfer and that the Person requesting
such exchange shall pay to the Exchange Agent any transfer or other
taxes required by reason of the issuance of certificates for such
Special Common Shares in a name other than that of the registered
holder of the Certificate surrendered, or shall establish to the
satisfaction of the Exchange Agent that such tax has been paid or is
not applicable. The Exchange Agent shall not be entitled to vote or
exercise any rights of ownership with respect to the Special Common
Shares held by it from time to time hereunder, except that it shall
receive and hold all dividends or other distributions paid or
distributed with respect to such Special Common Shares for the
account of the Persons entitled thereto.
(c) Any portion of the Exchange Fund which remains unclaimed
by the former holders of Shares for one year after the Effective
Time shall be delivered to the Surviving Corporation, upon demand of
the Surviving Corporation, and any former holders of Shares shall
thereafter look only to the Surviving Corporation for payment of
their claim for the Share Consideration for the Shares. If, after
the Effective Time, certificates representing Shares outstanding
prior to the Effective Time are presented to the Surviving
Corporation, they shall be cancelled and exchanged for the
consideration provided for, and in accordance with the procedures set
forth, in this Article IV.
4.3. Transfer of Shares after the Effective Time. No
transfers of Shares shall be made on the stock transfer books of the Company
after the close of business on the day prior to the date of the Effective Time.
ARTICLE V
ADDITIONAL COVENANTS AND AGREEMENTS
5.1. Stockholder Meeting; Proxy Material; Registration
Statement; Stock Exchange Listing. (a) 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 this Agreement and the Merger (including the amendments to the
Certificate of Incorporation of the Company to be effected by the Merger).
The directors of the Company shall, subject to their fiduciary duties,
recommend approval and adoption of this Agreement and the Merger (including
such amendments) 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/prospectus,
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 this Agreement and the transactions
contemplated hereby and (iii) will otherwise comply with all legal
requirements applicable to such meeting.
(b) The Company shall promptly prepare and file with the SEC
under the 1933 Act a registration statement on Form S-4 with respect to the
Special Common Stock (the "S-4 Registration Statement") and shall use all
reasonable efforts to cause the S-4 Registration Statement to be declared
effective as promptly as practicable. The Company shall take any action
required to be taken under foreign or state securities or Blue Sky laws in
connection with the issuance of Special Common Stock in the Merger.
(c) The Company shall use all reasonable efforts to cause the
Special Common Stock to be issued in connection with the Merger, and upon
exercise of Options which are exercised after the Effective Time to be listed
on the NYSE, subject to official notice of issuance and evidence of
satisfactory distribution.
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 Merger and the other
transactions contemplated hereby 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 Merger 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. Continued Applicability of the Governance Agreement. On
and after July 1, 1995, each of Roche and the Company shall continue to abide
by the terms of the Governance Agreement, except that the references (a) in
Section 2.01 to "June 30, 1996" shall be deemed to be replaced by the date
that is the first anniversary of the date, if any, upon which this Agreement
is terminated pursuant to Section 7.01 hereof (the "Termination Date"); (b) in
Sections 3.01 and 3.02(a) to "July 1, 1995" shall be deemed to be replaced by
the date that is the Termination Date; (c) in Section 4.01 to "June 30, 1995"
shall be deemed to be replaced by the Termination Date; and (d) in Section
4.01 to "June 30, 1996" shall be deemed to be replaced by the first
anniversary of the Termination Date.
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 Merger
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 Surviving Corporation shall take all
action necessary to ensure that, as provided in Section 4.1(d) 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 Shares. The Surviving
Corporation shall take all corporate action necessary to reserve for issuance
a sufficient number of Special Common Shares for delivery upon exercise of the
Options. The Surviving Corporation shall file a registration statement on
Form S-8 (or any successor form) or another appropriate form, effective as of
the Effective Time, with respect to Special Common Shares subject to such
Options and shall use all reasonable efforts to maintain the effectiveness of
such registration statement or registration statements (and maintain the
current status of the prospectus or prospectuses contained therein) for so
long as such Options remain outstanding.
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 all Common Shares owned by
it or any of its affiliates in favor of the Merger.
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.
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. This Agreement and 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 by
operation of the Merger 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 Merger.
(e) Registration Statement. The S-4 Registration Statement
shall have been declared effective and shall be effective at the
Effective Time, and no stop order suspending effectiveness shall have
been issued, no action, suit, proceeding or investigation by the SEC
to suspend the effectiveness thereof shall have been initiated and be
continuing, and all necessary approvals under state securities laws
or the Securities Act or Exchange Act relating to the issuance or
trading of the Special Common Shares shall have been received.
(f) Listing of Special Common Shares on NYSE. The Special
Common Shares required to be issued hereunder (including upon
exercise of Options as referred to in Section 4.1(d)) shall have been
approved for listing on the NYSE, subject only to official notice of
issuance.
(g) 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 and Merger Sub. The
respective obligations of Roche and Merger Sub 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 and Merger Sub, as the case may be, 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 time of the Closing.
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 time of the Closing.
(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. This Agreement may be terminated and the
Merger may be abandoned at any time:
(a) 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;
(b) 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 the
Stockholder Meeting; or
(c) By either the Company or Roche if the Effective Time has
not occurred on or prior to September 30, 1995.
7.2. Effect of Termination and Abandonment. In the event of
termination of this Agreement and abandonment of the Merger 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 CEO
ROCHE HOLDINGS, INC.
By: /s/ Henri B. Meier
_________________________
Name: Henri B. Meier
Title: Vice President
HLR (U.S.) II, INC.
By: /s/ Felix Amrein
_________________________
Name: Felix Amrein
Title: Vice President
[Genentech, Inc. Logo] NEWS RELEASE
Media Contact: Laura Lieber (415) 225-5759
Investor Contact: Lisa Brock (415) 225-1034
GENENTECH AND ROCHE CHANGE FORM OF TRANSACTION
TO ACCOMMODATE NEW SCHEDULE FOR STOCKHOLDER VOTE
--All terms announced on May 1st remain the same;
stockholder vote to occur after June 30, 1995--
SOUTH SAN FRANCISCO, CA, May 25, 1995 -- Genentech, Inc. (NYSE; GNE) and Roche
Holdings, Inc. today announced an agreement to change the form of the
transaction announced earlier this month. The new "merger agreement," which
is identical in substance to the previous "transaction agreement," extends for
four years Roche's option to cause the purchase of the outstanding common
stock of Genentech at predetermined prices that escalate quarterly up to $82
per share. If Roche does not exercise that option, Genentech's stockholders
will have the option to "put" (insist on Genentech buying) some or all of
their shares at $60 per share within a thirty day period commencing July 1,
1999. The merger agreement continues the other terms previously announced.
The form of transaction was changed because neither company
expects the issue to come to a vote by Genentech's stockholders until after
the June 30, 1995 expiration of the current Roche buyout option. After June
30, Genentech's redeemable common stock automatically converts into common
stock. Because of that conversion, a merger form of transaction will be
technically necessary to consummate the transaction after June 30, 1995. The
changed form of transaction was provided for in the original agreement.
The approval of the merger agreement requires the favorable
vote of the majority or the shares not held by Roche. If the merger agreement
is not consummated by September 30, 1995, each party has the right to
terminate the agreement. The stockholder vote will be scheduled shortly after
SEC clearance, but will occur well in advance of September 30.
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.
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