UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934*
(Amendment No. 12)
GENENTECH, INC.
(Name of Issuer)
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)
September 6, 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. 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 76,621,009 Shares
Shares Bene- Common Stock
ficially
Owned by- (8) Shared Voting Power 0 Shares
Each Report-
ing Person - (9) Sole Dispositive Power 76,621,009 Shares
With Common Stock
(10) Shared Dispositive Power 0 Shares
______________________________________________________________________________
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
76,621,009 Shares of Common Stock
______________________________________________________________________________
(12) Check if the Aggregate Amount in Row (11) Excludes Certain
Shares [ ]
______________________________________________________________________________
(13) Percent of Class Represented by Amount in Row (11)
64.8% of 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 Common Stock, par value $.02 per
share (the "Common Stock") 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 Common Stock were acquired by any of the Reporting
Persons between July 10, 1995, on which date Amendment 11 to the Schedule 13D
was filed, and September 7, 1995.
Item 4. Purpose of Transaction
On September 6, 1995, Purchaser, HLR (U.S.) II, Inc., a
wholly-owned subsidiary of Purchaser, and the Company entered into an
Amendment Agreement (the "Amendment Agreement"), which effects certain
amendments to the Agreement and Plan of Merger among Purchaser, H.L.R. (U.S.)
II, Inc. and the Company, dated as of May 23, 1995, and subsequently amended
on July 7, 1995, and the exhibits thereto (collectively, the "Merger
Agreement"). A copy of the Amendment Agreement is attached hereto as Exhibit
7.8. Also on September 6, 1995, the Company, Citibank, N.A., and only for
limited purposes regarding indemnification, Holding, entered into the Agency
Agreement (the "Agency Agreement"), which, among other things, appoints
Citibank, N.A., as an agent (the "Agent") to enforce under certain
circumstances certain obligations of Purchaser with respect to stock of the
Company which may be issued pursuant to the Merger Agreement. The Agency
Agreement is attached hereto as Exhibit 7.9. Furthermore, also on September
6, 1995, Purchaser, Holding and the Company entered into the Letter Agreement
(the "Letter Agreement") in which, among other things, Purchaser and Holding
consent to the Company's appointment of the Agent pursuant to the Agency
Agreement. The Letter Agreement is attached hereto as Exhibit 7.10. Each of
the Amendment Agreement, Agency Agreement and Letter Agreement are
incorporated herein by reference.
Between July 10, 1995, on which date Amendment 11 to the Schedule
13D was filed, and September 7, 1995, the Reporting Persons did not purchase
any shares of 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 Genentech stock from time to time in the future in open-market,
privately negotiated or other transactions.
Item 5. Interest in the Securities of the Issuer.
(a) Prior to the close of business on June 30, 1995, the
Purchaser was 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, par value $.02 per share (the "Redeemable Common Stock") (18.6% of the
51,106,509 shares of Redeemable Common Stock outstanding as of June 30, 1995
according to the Company's Form 10-Q for the quarter ended June 30, 1995 (the
"10-Q")). Pursuant to the terms of the Company's Certificate of
Incorporation, at the close of business on June 30, 1995, each outstanding
share of Redeemable Common Stock was automatically converted into one share of
Common Stock. As a result of that conversion, the Purchaser currently is the
beneficial owner of 64.8% of the 118,239,918 shares of outstanding Common
Stock.
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 Stock, except that Prof. Jurgen Drews owns 200
shares of Common Stock and has been granted stock options by the Company to
purchase 15,000 shares of Common Stock at $25.50 per share, all of which are
issuable under currently exercisable stock options and options exercisable
within sixty days of September 7, 1995, 15,000 shares of Common Stock at
$26.50 per share, all of which are issuable under currently exercisable stock
options and options exercisable within sixty days of September 7, 1995, and
15,000 shares of Common Stock at $50.375, none of which are issuable under
currently exercisable stock options or options exercisable within sixty days
of September 7, 1995; and Dr. Franz B. Humer has been granted stock options by
the Company to purchase 15,000 shares of Common Stock at $48.875, none of which
are issuable under currently exercisable stock options or options exercisable
within sixty days of September 7, 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 Stock nor sole or shared power to dispose of or direct the disposition
of any Common Stock.
(c) No transactions in Common Stock 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 7.8 Amendment Agreement among Roche Holdings, Inc.,
HLR (U.S.) II, Inc. and Genentech, Inc., dated
September 6, 1995.
Exhibit 7.9 Agency Agreement by and among Genentech, Inc.,
Citibank, N.A. and Roche Holding Ltd, dated
September 6, 1995, dated September 6, 1995.
Exhibit 7.10 Letter Agreement among Roche Holdings, Inc.,
Roche Holding Ltd and Genentech, Inc., dated
September 6, 1995.
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: September 8, 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, except that Mr. Schiller is a citizen of the United States.
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, Switzerlan d 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. Franz B. Humer Member of the Executive
Committee, Head of
Pharmaceuticals Division
*Dr. Henri B. Meier Member of the Executive
Committee, Chief Financial
Officer
*Dr. Jakob Oeri Surgeon and retired
St. Alban - Vorstadt 71 Head Physician,
4052 Basel, Switzerland 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 Member of the Executive
Committee, Head of
Pharma Stammhaus Basel,
Group Informatics
Mr. Jean-Luc Belingard Member of the Executive
Committee, Head of
Diagnostics Division
Dr. Roland Bronnimann Member of the Executive
Committee, Head of Vitamin
and Fine Chemicals Division
Prof. Jurgen Drews Member of the Executive
Committee, Head of
Research and Development
[CONFORMED COPY]
AGREEMENT (the "Amendment Agreement"), dated as of September 6,
1995, among Roche Holdings, Inc., a Delaware corporation ("Roche"), HLR (U.S.)
II, Inc., a Delaware corporation which is a direct wholly-owned subsidiary of
Roche ("Merger Sub"), and Genentech, Inc., a Delaware corporation (the
"Company").
WHEREAS, Roche, Merger Sub and the Company have entered into an
Agreement and Plan of Merger, dated May 23, 1995 (as amended to date, the
"Merger Agreement");
WHEREAS, it is a condition to each party's obligations to
consummate the transactions contemplated by the Merger Agreement that the form
of New Governance Agreement shall have been executed in substantially the form
attached as Exhibit A to the Merger Agreement;
WHEREAS, it is a condition to each party's obligations to
consummate the transactions contemplated by the Merger Agreement that the form
of New Guaranty shall have been executed in substantially the form attached as
Exhibit B to the Merger Agreement;
WHEREAS, it is a condition to each party's obligations to
consummate the transactions contemplated by the Merger Agreement that Article
THIRD of the Company's Certificate of Incorporation shall have been amended by
operation of the Merger in substantially the form attached as Exhibit C to the
Merger Agreement (such form of amendment, the "New Article THIRD");
WHEREAS, the Merger Agreement and related agreements were
previously amended by the parties on July 7, 1995 (the "First Amendment
Agreement"); and
WHEREAS, the parties hereto have determined it is in the best
interests of their respective stockholders to effect certain other amendments
to the New Governance Agreement, the New Guaranty and the New Article THIRD,
and to make certain other covenants and agreements as are set forth in this
Amendment 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
All terms used in this Amendment Agreement (including the
preamble hereto) which are not otherwise defined in this Amendment Agreement
shall have the meanings ascribed thereto in the Merger Agreement.
ARTICLE II
AMENDMENTS TO THE MERGER AGREEMENT AND RELATED DOCUMENTS
2.1 Amendment of New Governance Agreement.
(a) Section 2.03 of the New Governance Agreement is hereby
amended and restated to read in its entirety as follows:
"SECTION 2.03. Capital Contribution and Assumption of Put
Obligations. (a) Roche agrees to, or to cause one or more of its
Affiliates to, contribute to the Company, immediately prior to the
time that any amounts become due and payable to the holders of
Special Common Stock pursuant to Article THIRD, Section (c)(iii) of
the Company's Certificate of Incorporation, (i) funds in an amount
equal to the product of the number of shares of Special Common Stock
with respect to which the Put has been properly exercised multiplied
by the Put Price (as defined in Article THIRD of the Company's
Certificate of Incorporation) plus (ii) such additional funds, if
any, sufficient to permit the Company to redeem the shares of Special
Common Stock with respect to which the Put has been properly
exercised without violating Section 160 of the DGCL, any bankruptcy
or insolvency law or other law or regulation for the protection of
creditors. In exchange for such payment, the Company will issue to
Roche (or to its designated Affiliate) a number of duly authorized
and validly issued shares of Common Stock equal to the number of
shares of Special Common Stock acquired thereby by the Company.
Notwithstanding the foregoing, Roche's obligation to make any such
payment to the Company under this Section 2.03 shall be void and of
no further force and effect if, in lieu thereof, Roche shall (or
shall cause one of its Affiliates to) elect to purchase, and make all
arrangements necessary (including compliance by Roche, or any such
Affiliate or Affiliates, with the 1934 Act, the 1933 Act (as
hereinafter defined) and any other applicable Federal or state
securities laws) to purchase, at the expiration of the Put Period,
directly from the holders of Special Common Stock at the Put Price
the shares of Special Common Stock which such holders elect to have
purchased.
(b) Notwithstanding any other term or provision hereof or of
the Merger Agreement, the Marketing Agreement (as defined below),
the Guaranty dated as of the date hereof by Parent of Roche's
obligations under this Section 2.03, Article THIRD of the
Company's Certificate of Incorporation or any other agreement,
Roche agrees that it shall either (i) make (or cause one or more
of its Affiliates to make) the aggregate payments required to be
made under the first sentence of Section 2.03(a) hereof or (ii) if
such payments are not made for any reason, make (or cause one of
its Affiliates to make) the election to purchase referred to in
the third sentence of Section 2.03(a) hereof and comply (or cause
one of its Affiliates to comply) fully with such sentence;
provided, however, that if an Insolvency Event (as defined in
Article Third of the Company's Certificate of Incorporation)
occurs, Roche shall, within 10 days after the occurrence of such
Insolvency Event, either (x) contribute (or cause one or more of
its Affiliates to contribute) to the Company an amount equal to
the aggregate amount that would be required to be contributed to
the Company under the first sentence of Section 2.03(a) hereof
assuming (for purposes of clause (i) of such sentence) that the
holders of all of the then outstanding shares of Special Common
Stock (on a fully diluted basis) were to exercise the Put or (y)
elect (or cause one of its Affiliates to elect) to purchase, and
make all arrangements necessary (including compliance by Roche, or
any such Affiliate, with the 1934 Act, the 1933 Act and any other
Federal or state securities laws) to purchase, at the expiration
of the Put Period, directly from the holders of Special Common
Stock at the Put Price the shares of Special Common Stock which
such stockholders elect to have purchased. In exchange for the
payment by Roche of the amount specified in clause (x) of the
immediately preceding sentence (which amount shall be invested by
the Company in a money market fund which holds primarily U.S.
government obligations until such time as any amounts are paid to
creditors or stockholders), the Company will issue to Roche (or
its designated Affiliate) a number of duly authorized and validly
issued shares of Common Stock equal to the number of then
outstanding shares of Special Common Stock (on a fully diluted
basis). Immediately following the expiration of the Put Period,
if the Put has not been exercised with respect to all of the then
outstanding shares of Special Common Stock (on a fully diluted
basis) and if Roche shall have complied with clause (x) of the
first sentence of this Section 2.03(b), (1) the Company shall
refund to Roche (or its designated Affiliate) an amount (together
with any interest actually earned thereon) equal to the product of
the Put Price times the number of outstanding shares of Special
Common Stock (on a fully diluted basis) with respect to which the
Put has not been exercised and (2) Roche (or its designated
Affiliate) shall, in exchange for such payment by the Company,
contribute to the Company a number of shares of Common Stock equal
to the number of outstanding shares of Special Common Stock (on a
fully diluted basis) with respect to which the Put has not been
exercised. In the event that Roche pays the amount specified in
clause (x) of the first sentence of this Section 2.03(b), none of
Roche, Parent or any of their respective Affiliates shall be
entitled to any payments or other distributions on or in respect
of any Equity Security unless and until the Company has redeemed
all of the shares of Special Common Stock with respect to which
the Put has been properly exercised. If (x) an Insolvency Event
occurs and (y) Roche does not timely comply with its obligations
under the proviso to the first sentence of this Section 2.03(b),
the amounts required to be paid by Roche pursuant to such proviso
shall be increased by $1,000,000, and the agent (the "Agent")
under the Agency Agreement dated as of September 6, 1995 between
the Company, the Agent and Parent shall have an undivided interest
in the aggregate amount payable under such proviso, which
undivided interest shall (i) be limited to, and shall in no event
exceed, $1,000,000 and (ii) be paid by Roche directly to the
Agent.
(c) It is understood and agreed that, if Roche so elects, the
obligation of Roche to purchase shares of Special Common Stock
pursuant to any of the provisions of this Section 2.03 may, at the
election of Roche, be assigned by Roche to Parent or any Affiliate of
Parent (other than the Company). No assignment pursuant to this
Section 2.03(c) shall relieve Roche of any of its obligations under
this Section 2.03 or otherwise.
(d) The Company shall take (and shall have no corporate power
or capacity to refuse to take) such actions as may be necessary to
enforce the obligations of Roche under this Section 2.03 and the
obligations of Parent under the Guaranty dated as of the date hereof
by Parent of Roche's obligations under this Section 2.03 (the
"Guaranty") directly against Roche and Parent, or in the event of
assignment by Roche, against Roche, Parent and any Affiliate of
Parent to which any assignment is made."
(b) Section 3.02(a) of the New Governance Agreement is hereby
amended by adding to the end thereof the following sentence:
"Roche shall not have the right to nominate or designate any
additional directors to the Board pursuant to this Section 3.02(a)
unless and until (i) the Depositary shall have received the Put Price
in respect of shares of Special Common Stock with respect to which
the Put has been properly exercised and shall have been irrevocably
instructed to pay the Put Price to stockholders that have exercised
the Put; (ii) Roche shall have made (or caused one of its Affiliates
to make) the election to purchase referred to in the third sentence
of Section 2.03(a) hereof and shall have complied (or caused one or
more of its Affiliates to comply) fully with such sentence; or (iii)
the obligations of Roche under the third sentence of Section 2.03(a)
hereof shall have otherwise been fully satisfied through Parent's
performance under the Guaranty."
(c) Section 3.07 of the New Governance Agreement is hereby
amended by adding "(the "Marketing Agreement")" after the word "hereof."
(d) The third sentence of Section 4.02 is hereby amended by
deleting the word "contingent".
2.2. Amendment of New Guaranty.
(a) The first sentence of Section 1 of the New Guaranty is
hereby deleted and replaced with the following:
"Roche Holding Ltd, a Swiss corporation ("Guarantor"), hereby
unconditionally and irrevocably guarantees to Genentech, Inc., a
Delaware corporation (the "Company"), the prompt and full discharge
by Roche Holdings, Inc., a Delaware corporation ("Roche"), of all of
Roche's covenants, agreements, obligations and liabilities under
Section 2.03 of the Amended and Restated Governance Agreement between
Roche and the Company (the "Amended and Restated Governance
Agreement") (collectively, the "Obligations"), in accordance with the
terms hereof and thereof."
(b) The second sentence of Section 1 of the New Guaranty is
hereby amended by deleting the words "Special Common Stock" and adding to the
end thereof the following:
"Callable Putable Common Stock, par value $.02 per share (the
"Special Common Stock"), of the Company."
(c) Section 5(c) of the New Guaranty is hereby amended by
adding the words "(i) as may be required by applicable Federal and state
securities laws or as may be required in connection with a tender offer or
(ii)" prior to the words "the failure" and by adding the words "prevent
performance hereof or" between the words "to" and "have".
(d) Section 5(d) of the New Guaranty is hereby amended by (i)
replacing the word "Company" with the word "Guarantor" and (ii) adding the
words "prevent performance hereof or" between the words "not" and "have".
(e) Section 7 of the New Guaranty is hereby amended and
restated to read in its entirety as follows:
"SECTION 7. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including
telecopy or similar writing) and shall be given,
if to Guarantor:
Roche Holdings, Inc.
c/o Roche Holding Ltd
Grenzacherstrasse 124
CH-4002 Basel
Switzerland
Attn: Dr. Felix Amrein
Telecopy: 011-41-61-688-1396
with a copy to:
Peter R. Douglas, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Telecopy: 212-450-4800
if to the Company to:
Genentech, Inc.
460 Point San Bruno Boulevard
South San Francisco, California 94080
Attn: John P. McLaughlin
Telecopy: 415-952-9881
with a copy to:
Richard D. Katcher, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Telecopy: 212-403-2000
or such other address or telecopier number as such party may
hereafter specify in writing. Each such notice, request or other
communication shall be effective (i) if given by telecopier, when
such telecopy is transmitted to the telecopier number specified in
this Section or (ii) if given by any other means, when delivered
at the address specified in this Section."
(f) The first sentence of Section 8 of the New Guaranty is
hereby amended by adding the words "Davis Polk & Wardwell" after the word
"appoints".
(g) Section 9 of the New Guaranty is hereby amended by
deleting the second sentence thereof.
(h) The New Guaranty is hereby amended by deleting the
corporate acknowledgement at the end thereof.
2.3. Amendment of New Article THIRD.
(a) The first sentence of Section (a) of New Article Third is
hereby amended by replacing the word "special" with the words "callable
putable".
(b) The third sentence of Section (a) of New Article Third is
hereby amended by replacing the words "special common stock, par value $.02
per share" with the words "callable putable common stock, par value $.02 per
share".
(c) New Article Third is hereby amended by adding the
following after Section (c)(iii)(C) thereof:
"(D) Condition to the Corporation's Obligations.
Notwithstanding any other provision of this Article THIRD, the
corporation's obligation to pay the Put Price in respect of shares of
Special Common Stock with respect to which the Put has been properly
exercised (and to deposit with the Depositary funds pursuant to
Section (c)(iv)(A)(2) of this Article THIRD) shall be conditioned
upon the corporation's having received from Roche, or any affiliate
of Roche, (i) funds in an amount equal to the product of the number
of shares of Special Common Stock with respect to which the Put has
been properly exercised multiplied by the Put Price plus (ii) such
additional funds, if any, sufficient to permit the Corporation to
redeem the shares of Special Common Stock with respect to which the
Put has been properly exercised without violating Section 160 of the
Delaware General Corporation Law, any bankruptcy or insolvency law or
other law or regulation for the protection of creditors.
(E) Enforcement of Roche Obligations. The corporation shall
take (and shall have no corporate power or capacity not to take)
such action as may be necessary to enforce the obligations of
Roche and its affiliates to pay the Put Price (and any other
amounts payable pursuant to Section 2.03 of the Governance
Agreement), including, without limitation, all actions required to
cause Roche and its affiliates to perform their respective
obligations under Section 2.03 of the Governance Agreement and
under the Guaranty, dated _______, __, 1995, by Roche Holding Ltd,
a Swiss corporation, of the obligations of Roche under Section
2.03 of the Governance Agreement."
(d) Section (c)(iv)(A)(2) of New Article Third is hereby
amended by deleting the third and fourth sentences thereof and by amending and
restating the last sentence thereof to read as follows:
"In the event of the exercise of the Put for less than all of the
shares of Special Common Stock represented by a certificate, a new
certificate representing the shares of Common Stock into which the
shares of Special Common Stock not redeemed pursuant to exercise of
the Put have been converted pursuant to Section (c)(vi) of this
Article THIRD shall be issued to the holder of such shares."
(e) The legend set forth in subsection (c)(x) of New Article
Third is hereby amended by replacing all three occurrences of the word
"Special" with the words "Callable Putable".
(f) Section (e) of the New Article THIRD is hereby amended by
inserting the following as new subsection (1) and appropriately renumbering
each of the other subsections of such Section (e):
"(1) "Business Day" means any day which is not a Saturday,
Sunday or a federal holiday."
(g) Section (e) of the New Article Third is hereby amended by
replacing the reference in the definition of "Put Period" to paragraph (A) of
subsection (c)(iii) with a reference to paragraph (B) of subsection (c)(iii).
(h) New Article Third is hereby amended by adding the following
Section (f) at the end thereof:
"(f) Put and Call Not Business Combinations. Notwithstanding
any other provision of this Article THIRD or of Article ELEVENTH of
this Certificate of Incorporation, the transactions to be consummated
pursuant to exercise of the Put or the Call shall not be deemed to be
"Business Combinations" for purposes of Article ELEVENTH of this
Certificate of Incorporation."
ARTICLE III
MISCELLANEOUS AND GENERAL
3.1. 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 Amendment Agreement and the transactions
contemplated hereby.
3.2. Notices, Etc. All notices, requests, demands or other
communications required by or otherwise with respect to this Amendment
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.
460 Point San Bruno Boulevard
South San Francisco, California 94080
Attn.: John P. McLaughlin
Telecopy: 415-952-9881
with a copy to:
Richard D. Katcher, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Telecopy: 212-403-2000
If to Roche or Merger Sub:
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.
3.3 Amendments, Waivers, Etc. This Amendment 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.
3.4 No Assignment. This Amendment 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 Amendment Agreement, neither the rights nor the
obligations of any party may be assigned or delegated without the prior
written consent of the other party.
3.5 Entire Agreement. Except as otherwise provided herein,
this Amendment Agreement, the First Amendment Agreement, and the Merger
Agreement and the exhibits thereto embody the entire agreement and
understanding between the parties relating to the subject matter hereof and
this Amendment Agreement supplements 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 Amendment Agreement and any writings
expressly required hereby.
3.6 No Third Party Beneficiaries. This Amendment 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.
3.7 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 Amendment 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 3.7 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.
3.8 Governing Law. This Amendment 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.
3.9 Name, Captions, Etc. The name assigned this Amendment
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 Amendment Agreement as a whole and (b)
references herein to Articles or Sections refer to articles or sections of
this Amendment Agreement.
3.10 Counterparts. This Amendment 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 Amendment Agreement has been executed
and delivered by the parties set forth below.
GENENTECH, INC.
By: /s/ Arthur D. Levinson
--------------------------
Name: Arthur D. Levinson
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
[CONFORMED COPY]
AGENCY AGREEMENT
AGENCY AGREEMENT (the "Agency Agreement"), dated as of
September 6, 1995, by and among GENENTECH, INC., a Delaware corporation (the
"Company"), CITIBANK, N.A. (the "Agent") and, solely for purposes of Section 9
hereof, ROCHE HOLDING LTD, a Swiss corporation ("Roche Holding").
WHEREAS, the Company and Roche Holdings, Inc., a Delaware
corporation ("Roche"), have entered into an Amended and Restated Governance
Agreement dated as of the date hereof (the "Governance Agreement");
WHEREAS, Roche Holding has guaranteed the obligations of Roche
under Section 2.03 of the Governance Agreement (the "Guaranty");
WHEREAS, the Company desires that there be established an
alternative enforcement mechanism for Roche's and Roche Holding's respective
obligations under Section 2.03 of the Governance Agreement and the Guaranty;
WHEREAS, the Company and the Agent also desire to set forth the
terms and conditions under which the Enforcement Amount (as defined below)
shall be held and disbursed by the Agent; and
WHEREAS, the Company desires that the Agent be appointed as
enforcement agent to act in accordance with the terms hereof and acknowledges
the receipt of good and valuable consideration;
NOW THEREFORE, it is agreed as follows:
1. Deposit of Enforcement Amount. (a) The Company hereby
agrees that, on the effective date of the merger (the "Merger") of HLR (U.S.)
II, Inc., a Delaware corporation ("Merger Sub"), with and into the Company
pursuant to the Merger Agreement dated as of May 23, 1995, as amended to date,
by and among the Company, Merger Sub and Roche (the "Merger Agreement"), the
Company shall unconditionally and irrevocably convey to the Agent all of its
right, title and interest in and to the sum of US$1,000,000.00 in immediately
available funds (together with all investment or interest income earned with
respect thereto, the "Enforcement Amount"), such Enforcement Amount to be used
by the Agent in accordance with Section 5 hereof.
(b) The Company hereby authorizes the Agent to receive and
hold any additional funds contributed at any time by any other person or
persons to the Enforcement Amount, and any such additional funds shall, for
all intents and purposes of this Agency Agreement, be deemed thereafter to be
included in the Enforcement Amount.
2. Creation of Irrevocable Agency. The Company hereby
irrevocably constitutes and appoints the Agent, its true and lawful agent
to act as enforcement agent in accordance with the terms hereof, and the
Agent hereby accepts such appointment. The Company and the Agent agree
that the irrevocable agency created under this Agency Agreement shall be
coupled with the undivided interest of the Agent set forth in Section 2.03
of the Governance Agreement, which interest the Company hereby irrevocably
and unconditionally conveys to the Agent. The agency powers granted to the
Agent hereunder shall vest in the Agent full power and authority to carry
out the intents and purposes set forth in Section 4 of this Agency
Agreement. The Agent agrees to serve until its successor, if any, shall
have been appointed pursuant to Section 8 of this Agency Agreement.
3. Investment of the Enforcement Amount. The Enforcement
Amount shall be held by the Agent in a separate account maintained for this
purpose (the "Account") on the terms and subject to the conditions of this
Agreement. The Account shall not be subject to lien or attachment by any
creditor of any party hereto and shall be used solely for the purpose set
forth in this Agency Agreement. The Enforcement Amount shall not be available
to, and shall not be used by, the Agent, except as permitted by Section 7
hereof, to set off any obligations of any of the Company or Roche Holding owed
to the Agent in any capacity. The Agent shall invest and reinvest from time
to time the Enforcement Amount in Class B Shares of the Dreyfus Treasury Prime
Cash Management Money Market Fund or a successor money market fund with
similar investment objectives and criteria.
4. Purposes of Appointment. If the Agent has been notified
by the Company or by any person who is then an officer or a director of the
Company (which person may notify the Agent in his or her individual capacity
and not as an officer or director of the Company) that (x) an Insolvency Event
(as defined in Article Third of the Company's Certificate of Incorporation)
shall have occurred and (y) Roche and Roche Holding have failed to timely
perform their respective obligations under Section 2.03 of the Governance
Agreement and under the Guaranty within 10 days after the occurrence of such
Insolvency Event (the events referred to in clauses (x) and (y) of this
sentence, together being referred to as the "Triggering Events"), the Agent
shall take all steps necessary (including the commencement and prosecution of
legal action) to seek to enforce performance of such obligations, in the right
of and as the agent of the Company, by (i) retaining counsel of reputation and
standing from among the law firms listed on the attached Schedule I or other
counsel of reputation and standing, (ii) instructing such counsel to use best
efforts to seek to cause Roche and Roche Holding to perform such obligations,
(iii) disbursing all or such portion of the Enforcement Amount as may be
necessary in connection with the foregoing, and (iv) taking any such other
action as it may be advised by such counsel is necessary and appropriate to
seek to enforce such obligations. The Company shall have no right or
authority to direct the Agent with respect to the performance of the Agent's
duties under this Section 4. Upon receipt of the notice specified in the
first sentence of this Section 4, the Agent shall forward a copy of such
notice to Roche at the address specified in Section 12 of this Agency
Agreement.
5. Payment of Enforcement Amount. (a) The Agent shall pay
the Enforcement Amount only in accordance with the following (and shall have
no obligation to pay or disburse any amounts in excess of the Enforcement
Amount):
(i) At any time and from time to time after the Agent has
received the notice referred to in Section 4 of this Agency
Agreement of the occurrence of the Triggering Events, the
Enforcement Amount (or any portion thereof) shall be paid in
such a manner as to carry out the purposes set forth in Section
4 of this Agency Agreement; and
(ii) After receipt of written notice from the Company to the
effect that either (x) the redemption of all of the then
outstanding shares of the Company's Callable Putable Common
Stock, par value $.02, pursuant to Section (c)(ii) of Article
Third of the Company's Certificate of Incorporation (as
proposed to be amended in connection with the Merger) has been
consummated; (y) Roche and Roche Holding have fully complied
with their respective obligations under Section 2.03 of the
Governance Agreement and under the Guaranty; or (z) the rights
of the Company's stockholders under Section (c)(iii) of Article
Third of the Company's Certificate of Incorporation (as
proposed to be amended in connection with the Merger) have been
eliminated pursuant to the vote of such stockholders required
to be obtained under such Certificate of Incorporation and
under the Governance Agreement, the Agent shall pay the
Enforcement Amount (minus any amounts paid pursuant to the
immediately preceding subparagraph (i) of this Section 5 or
retained by the Agent pursuant to Section 7 hereof), to the
Company and (to the extent instructions have been provided to
the Agent as contemplated by subsection (d) of this Section 5)
to any other person which has contributed to the Enforcement
Amount, in proportion to their respective contributions.
(b) All investment or interest income earned with respect to
the Enforcement Amount shall be added to the Enforcement Amount.
(c) Title to the Enforcement Amount and the Account shall be
vested in the Agent, and the Company shall not have any beneficial interest or
ownership interest whatsoever in the Enforcement Amount or the Account and,
other than as set forth in subparagraph (a)(ii) of this Section 5, the Company
shall have no right to receive all, or any portion of, the Enforcement Amount.
(d) The person or persons entitled to receive funds pursuant
to subsection (a) of this Section 5 shall provide instructions to the Agent
for the payment of such funds. The Agent shall not bear any responsibility
for income tax withholding with respect to the payment of such funds.
6. Termination of Agency Agreement. Once all amounts owed
to the Agent have been paid and the entire Enforcement Amount has been
disbursed pursuant to Section 5 of this Agency Agreement, this Agency
Agreement and the Agent's duties hereunder shall terminate. This Agency
Agreement shall also terminate if the Merger Agreement is terminated pursuant
to Section 7.1 thereof without the Merger having been consummated, and the
parties shall notify the Agent of such termination.
7. Agent's Fees and Expenses. The fees and expenses of the
Agent described on the attached Schedule II shall be retained by the Agent
out of the Enforcement Amount. The Agent shall have no duties or
liabilities under this Agency Agreement unless and until full payment by
the Company of the Start-Up Fee set forth on such Schedule II. The Agent
shall be entitled to retain out of the Enforcement Amount all expenses,
disbursements and advances reasonably incurred or made by the Agent in the
preparation, administration and enforcement of this Agency Agreement,
including but not limited to reasonable legal fees and expenses of outside
counsel and related expenses.
8. Resignation of Agent. The Agent may resign as such at
any time by giving written notice thereof to the Company and Roche Holding
and, at the same time, appointing its successor, which shall be a financially
responsible person reasonably able to perform the duties of the Agent under
this Agency Agreement. The Agent shall continue to serve until its successor
accepts appointment as successor agent and receives the Enforcement Amount.
If a successor agent has not accepted such appointment within thirty days
after such notice of a resignation has been given, the Agent may apply, but
shall have no obligation to do so, to a court of competent jurisdiction for
the appointment of a successor agent or for other appropriate relief. The
terms and conditions of this Agency Agreement will remain unaffected by
resignation of the Agent or the appointment of a successor agent. Following
the acceptance of appointment of a successor agent, such person shall for all
intents and purposes of this Agency Agreement be the "Agent" hereunder, with
all of the benefits and obligations of the Agent hereunder. The Agent's
resignation shall take effect upon delivery of the Enforcement Amount to a
successor agent and the Agent shall thereupon be discharged from all further
obligations under this Agency Agreement, and shall have no further duties or
responsibilities in connection herewith. The obligations of Roche Holding to
the Agent and the rights of the Agent under Sections 7, 9 and 10 hereof shall
survive termination of this Agency Agreement or the resignation or removal of
the Agent.
9. Liability of Agent. The Agent assumes no responsibility
or liability to the Company, Roche Holding or any other person, other than to
invest and disburse the Enforcement Amount held and received by it pursuant to
the terms of this Agency Agreement and to perform its duties set forth in
Section 4 hereof. The Agent shall not be liable for anything which it may do
or refrain from doing in connection herewith, except for actions or omissions
to act that constitute gross negligence or willful misconduct. Roche Holding
agrees to indemnify and hold the Agent harmless for all claims, liability,
loss and expense (including reasonable fees and expenses of outside counsel
and related expenses) with respect to anything done by it in good faith in
connection with any and all matters covered by this Agency Agreement and in
accordance with the terms hereof (provided that such actions do not evidence
gross negligence or willful misconduct on the part of the Agent). The
obligations of Roche Holding to the Agent and the rights of the Agent under
this Section 9 and Section 10 of this Agency Agreement shall survive
termination of this Agency Agreement or the resignation or removal of the
Agent.
10. Responsibilities and Rights of the Agent.
(a) The Agent undertakes to perform only such duties as are
expressly set forth herein. Without limiting the generality of the foregoing
and other than as specifically set forth in this Agency Agreement, the Agent
shall have no duty or responsibility as regards any: (i) security as to which
a default in the payment of principal or interest has occurred, to give notice
of default, make demand for payment or take any other action with respect to
such default; and (ii) loss occasioned by delay in the actual receipt of
notice of any payment, redemption or other transaction regarding any item in
the Account as to which it is authorized to take action hereunder. The Agent
may consult with counsel and shall be fully protected with respect to any
action taken in good faith in accordance with the advice of such counsel.
(b) The Agent is hereby authorized to comply with any
judicial order or legal process which stays, enjoins, directs or otherwise
affects the transfer or delivery of the Enforcement Amount or any party hereto
and shall incur no liability for any delay or loss which may occur as a result
of such compliance.
(c) The Agent shall have no duty or responsibility with
regard to any loss resulting from the investment, reinvestment, sale or
liquidation of the Enforcement Amount in accordance with the terms of this
Agency Agreement.
(d) The Agent is authorized to register securities in the
name of its nominee or nominees or, where securities are eligible for deposit
in a central depository, such as The Depository Trust Company, the Federal
Reserve Bank of New York or the Participants Trust Company, the Agent may
utilize any such depository and permit the registration of registered
securities in the name of its nominee or nominees. The Agent may return or
deliver securities of the same class and denomination as those deposited with
it hereunder or otherwise received by it for the Account, and the Agent need
not retain the particular certificates so deposited or received.
(e) Except as otherwise expressly provided herein, the Agent
is authorized to execute instructions and take other actions pursuant to this
Agency Agreement in accordance with its customary processing practices of
similar customers and, in accordance with such practices the Agent may retain
agents, including its own subsidiaries or affiliates, to perform certain of
such functions. The Agent shall have no liability under this Agency Agreement
for any loss or expense other than those occasioned by the Agent's gross
negligence or willful misconduct and in any event its liability shall be
limited to direct damages and shall not include any special or consequential
damages. All collection and receipt of funds or securities and all payment
and delivery of funds or securities under this Agency Agreement shall be made
by the Agent as agent, at the risk of the other parties hereto with respect to
their actions or omissions and those of any person other than the Agent. In
no event shall the Agent be responsible or liable for any loss due to forces
beyond its control, including, but not limited to, acts of God, flood, fire,
nuclear fusion, fission or radiation, war (declared or undeclared), terrorism,
insurrection, revolution, riot, strikes or work stoppages for any reason,
embargo, government action, including any laws, ordinances, regulations or the
like which restrict or prohibit the providing of the services contemplated by
this Agency Agreement, inability to obtain equipment or communications
facilities, or the failure of equipment or interruption of communications
facilities, and other causes whether or not of the same class or kind as
specifically named above. In the event that the Agent is unable substantially
to perform, for any of the reasons described in the immediately preceding
sentence, it shall so notify the Company as soon as reasonably practicable.
(f) The Agent shall be protected in acting upon any written
notice, request, waiver, consent, certificate, receipt, authorization, power
of attorney, or other paper or document that the Agent in good faith
reasonably believes to be genuine and what it purports to be. The Agent is
not a party to, and is not bound by or (other than as set forth in this Agency
Agreement with respect to Section 2.03 of the Governance Agreement) charged
with notice of any, other agreement out of which this Agency Agreement may
arise.
11. Successors and Assigns. This Agency Agreement shall be
binding upon the parties and their respective successors, heirs and assigns.
This Agency Agreement is assignable only with the written consent of all
parties hereto; provided, however, that Roche Holding may assign its
obligations under this Agency Agreement to a wholly-owned subsidiary of Roche
Holding; provided, further, that no such assignment shall relieve Roche
Holding of any of its obligations under this Agency Agreement.
12. Notices. All notices hereunder shall be sufficiently
given for all purposes hereunder if in writing and delivered personally, by
telecopy or sent by registered mail or certified mail, postage prepaid, or
overnight courier, to the appropriate address as set forth below. All such
notices which are mailed shall be deemed delivered upon receipt. Notices to
the Company shall be addressed to:
Genentech, Inc.
460 Point San Bruno Boulevard
South San Francisco, CA 94080
Attention: General Counsel
Telecopy Number: (415) 952-9881
Telephone Number: (415) 225-1000
with a required copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Richard D. Katcher, Esq.
Telecopy Number: (212) 403-2000
Telephone Number: (212) 403-1000
or at such other address and to the attention of such other person as the
Company may designate by written notice to Roche Holding and the Agent.
Notices to Roche Holding shall be addressed to:
Roche Holding Ltd
Grenzacherstrasse 124
CH-4002 Basel
Switzerland
Attn.: Dr. Felix Amrein
Telecopy: 011-41-61-688-1396
with a required copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attn: Peter R. Douglas, Esq.
Telecopy: 212-450-4800
or at such other address and to the attention of such other person as Roche
Holding may designate by written notice to the Company and the Agent. Notices
to the Agent shall be addressed to:
Citibank, N.A.
120 Wall Street
13th Floor
New York, N.Y. 10043
Attn: Bryan Gartenberg, V.P.
Escrow Administration
Telephone: (212) 412-6257
Telecopy: (212) 480-1614
or at such other address and to the attention of such other person as the
Agent may designate by written notice to the Company and Roche Holding.
13. Amendment and Modification. This Agency Agreement may be
amended, modified or supplemented only by written agreement of the parties
hereto.
14. Governing Law; Counterparts. This Agency Agreement shall
be constructed under and governed by the internal substantive laws of the
State of New York. The parties to this Agreement hereby agree that
jurisdiction over such parties and over the subject matter of any action or
proceeding arising under this Agency Agreement shall be exercised in the
Borough of Manhattan by a competent Court of the State of New York or by a
United States Court sitting in the Southern District of New York and hereby
consent to venue in such jurisdiction; provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this Section 14 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. This Agency
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement, and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties.
15. Entire Agreement. The terms and conditions set forth
herein constitute the sole and exclusive agreement of the Company and Roche
Holding with the Agent with respect to the subject matter hereof.
IN WITNESS WHEREOF, this Agency Agreement has been signed by or
on behalf of each of the parties hereto as of the day first above written.
GENENTECH, INC.
By: /s/ John P. McLaughlin
------------------------------
Name: John P. McLaughlin
Title: Senior Vice President
CITIBANK, N.A.
By: /s/ Jeffrey Zeiler
------------------------------
Name: Jeffrey Zeiler
Title: Assistant Vice President
ROCHE HOLDING LTD, solely for purposes of
Section 9 hereof
By: /s/ Henri B. Meier
------------------------------
Name: Henri B. Meier
Title: Chief Financial Officer
SCHEDULE I
The following is a non-exclusive list of counsel of reputation
and standing which the Agent may retain pursuant to Section 4 of the Agency
Agreement:
1. Cravath, Swaine & Moore
2. Gibson, Dunn & Crutcher
3. Latham & Watkins
4. O'Melveny & Myers
5. Paul, Weiss, Rifkind, Wharton & Garrison
6. Simpson, Thacher & Bartlett
7. Skadden, Arps, Slate, Meagher & Flom
8. Sullivan & Cromwell
9. White & Case
SCHEDULE II
The Agent shall be entitled to retain out of the Enforcement
Amount the following fees under Section 7 of this Agency Agreement:
$6,000 on September 6 of each year during which this Agency
Agreement is in effect, which shall represent the annual fee for the
following twelve-month period.
The Agent acknowledges receipt on the date hereof from the
Company of (i) the $6,000 Start-Up Fee (which shall constitute the first
annual payment hereunder) and (ii) $1,000, which represents the legal fees
incurred by the Agent in connection with the negotiation and execution of this
Agency Agreement.
CITIBANK, N.A.
By: /s/ Jeffrey Zeiler
-------------------------------
Name: Jeffrey Zeiler
Title: Assistant Vice President
[CONFORMED COPY]
Roche Holdings, Inc.
Roche Holding Ltd
124 Grenzacherstrasse
CH-4002 Basel
Switzerland
September 6, 1995
Genentech, Inc.
460 Point San Bruno Blvd.
South San Francisco, CA 94080
Gentlemen:
Reference is made to the Merger Agreement, dated May 23, 1995 (as
amended from time to time, the "Merger Agreement"), among Genentech, Inc.
("Genentech"), Roche Holdings, Inc. ("Roche") and HLR (U.S.) II, Inc., a
direct wholly-owned subsidiary of Roche and an indirect wholly-owned
subsidiary of Roche Holding Ltd, a Swiss corporation ("Roche Holding"),
pursuant to which, among other things, (i) Roche and Genentech have
agreed, subject to certain conditions, to enter into an Amended and
Restated Governance Agreement, a form of which is attached as Exhibit A to
the Merger Agreement (as amended from time to time, the "Amended Governance
Agreement") and (ii) Roche Holding has agreed to execute a Guaranty, a
form of which is attached as Exhibit B to the Merger Agreement (as amended
from time to time, the "Guaranty").
Roche and Roche Holding hereby agree that, in the event of the
occurrence of an Insolvency Event (as defined in Article Third of
Genentech's Certificate of Incorporation as proposed to be amended pursuant
to the Merger Agreement), the respective obligations of Roche and Roche
Holding under Section 2.03 of the Amended Governance Agreement and under
the Guaranty are and shall be independent, separately enforceable
obligations of each of them and, as such, are and shall be unconditional
and not dependent upon the existence or performance (or assumption or
rejection by or on behalf of Genentech or its estate) of the Amended
Governance Agreement, the Guaranty, the Marketing Agreement (as defined in
the Amended Governance Agreement), Genentech's Certificate of Incorporation
or any other contractual (or other) terms, provisions or relationships
between or among the parties to such agreements.
In order to provide another mechanism for enforcement of Roche's and
Roche Holding's obligations under Section 2.03 of the Amended Governance
Agreement and the Guaranty in the event of an Insolvency Event, Roche and
Roche Holding hereby consent to Genentech's establishment of an agency
arrangement in the form attached to this letter as Exhibit A (the "Agency
Agreement"). Genentech agrees that, upon the occurrence of the events
specified in clauses (x) and (y) of Section 4 of the Agency Agreement, it
shall give the notice specified in the first sentence of such Section 4.
Roche and Roche Holding acknowledge and agree that the Agent (as
defined in the Agency Agreement) is a proper party to seek such
enforcement. Each of Roche and Roche Holding agrees that it will not
assert, in any enforcement action brought by the Agent in accordance with
the terms of Section 4 of the Agency Agreement, any defense to the effect
that (1) the Agent does not have standing to seek enforcement of the
obligations of Roche or Roche Holding in such circumstances or (2) the
Agent is not a real party in interest in any such enforcement action.
Roche and Roche Holding do not waive any defense to any enforcement action
brought by the Agent, and hereby reserve their respective rights to assert
any and all defenses to such an enforcement action, other than those
referred to in this letter.
Please indicate your agreement with and acceptance of the foregoing by
signing below where indicated.
Very truly yours,
ROCHE HOLDING LTD ROCHE HOLDINGS, INC.
By: /s/ Henri B. Meier By: /s/ Henri B. Meier
---------------------- ---------------------
Henri B. Meier Henri B. Meier
Agreed and accepted:
GENENTECH, INC.
BY: /s/ John P. McLaughlin
-------------------------
John P. McLaughlin
