SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 22, 1999
GENENTECH, INC.
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(Exact name of registrant as specified in it charter)
Delaware 1-9813 94-2347624
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(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
1 DNA Way
South San Francisco, California 94080
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(Address or principal executive offices)
(650) 225-1000
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(Registrant's telephone number, including area code)
Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS.
Genentech, Inc. (the "Company") is hereby filing its Amended and Restated
Certificate of Incorporation, as filed with the Secretary of State of the
State of Delaware on July 22, 1999.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
Exhibit 99.1: Amended and Restated Certificate of Incorporation
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
GENENTECH, INC.
Registrant
By: /s/ Stephen G. Juelsgaard
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Stephen G. Juelsgaard.
Senior Vice President,
General Counsel and Secretary
Date: June 27, 1999
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EXHIBIT 99.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
GENENTECH, INC.
Genentech, Inc. (the "Corporation"), a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware, does hereby amend the Certificate of Incorporation of the
Corporation, which was originally filed on December 23, 1986 under the name
"Genentech Delaware, Inc.", and subsequently amended.
The Certificate of Incorporation of the Corporation is hereby
restated and further amended to read in its entirety as follows:
ARTICLE 1
The name of the Corporation is: Genentech, Inc.
ARTICLE 2
The address of the registered office of the Corporation in the State
of Delaware is Corporation Service Company, 1013 Centre Road, City of
Wilmington, County of New Castle, Delaware 19805. The name of its registered
agent at such address is Corporation Service Company.
ARTICLE 3
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended
("Delaware Law").
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ARTICLE 4
SECTION 4.01. Capital Stock. (a) The Corporation is authorized to
issue two classes of stock to be designated, respectively, preferred stock and
common stock. The total number of shares which the Corporation is authorized
to issue is four hundred million (400,000,000) shares. One hundred million
(100,000,000) shares shall be designated preferred stock, par value $0.02 per
share ("Preferred Stock"). Three hundred million (300,000,000) shares shall be
designated common stock, par value $0.02 per share ("Common Stock") The Common
Stock of the Corporation shall be all of one class.
(b) The number of authorized shares of any class or classes of stock
may be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of a majority in voting power of the
outstanding stock of the Corporation entitled to vote thereon irrespective of
the provisions of Section 242(b)(2) of Delaware Law.
SECTION 4.02. Common Stock. (a) Issuance and Consideration. Any
unissued or treasury shares of the Common Stock may be issued for such
consideration as may be fixed in accordance with applicable law from time to
time by the Board of Directors.
(b) Dividends. Subject to the rights of holders of the Preferred
Stock, the holders of the Common Stock shall be entitled to receive, when and
as declared by the Board of Directors, out of the assets of the Corporation
which are by law available therefor, dividends payable either in cash, in
property, or in shares of stock and the holders of the Preferred Stock shall
not be entitled to participate in any such dividends (unless otherwise
provided by the Board of Directors in any resolution providing for the issue
of a series of Preferred Stock).
SECTION 4.03. Preferred Stock.
(a) Series and Limits of Variations between Series. Any unissued or
treasury shares of the Preferred Stock may be issued from time to time in one
or more series for such consideration as may be fixed from time to time by the
Board of Directors. Before any shares of Preferred Stock of any particular
series shall be issued, a certificate shall be filed with the Secretary of
State of Delaware setting forth the designation, rights, privileges,
restrictions, and conditions to be attached to the Preferred Stock of such
series and such other matters as may be required, and the Board of Directors
shall fix and determine, and is hereby expressly empowered to fix and
determine, in the manner provided by law, the particulars of the shares of
such series (so far as not inconsistent
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with the provisions of this Article 4 applicable to all series of Preferred
Stock), including, but not limited to, the following:
(i) the distinctive designation of such series and the number of
shares which shall constitute such series, which number may be
increased (except where otherwise provided by the Board of Directors
in creating such series) or decreased (but not below the number of
shares thereof then outstanding) from time to time by like action of
the Board of Directors;
(ii) the annual rate of dividends payable on shares of such
series, the conditions upon which such dividends shall be payable and
the date from which dividends shall be cumulative in the event the
Board of Directors determines that dividends shall be cumulative;
(iii) whether such series shall have voting rights, in addition to
the voting rights provided by law and, if so, the terms of such
voting rights;
(iv) whether such series shall have conversion privileges and, if
so, the terms and conditions of such conversion, including, but not
limited to, provision for adjustment of the conversion rate upon such
events and in such manner as the Board of Directors shall determine;
(v) whether or not the shares of such series shall be redeemable
and, if so, the terms and conditions of such redemption, including
the date or dates upon or after which they shall be redeemable, and
the amount per share payable in case of redemption, which amount may
vary under different conditions and at different redemption dates;
(vi) whether such series shall have a sinking fund for the
redemption or purchase of shares of that series and, if so, the terms
and amount of such sinking fund;
(vii) the rights of the shares of such series in the event of
voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, and the relative rights of priority, if any, of
payment of shares of that series; and
(viii) any other relative rights, preferences and limitations of
such series.
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ARTICLE 5
SECTION 5.01. Amendment of Bylaws by Directors. (a) In furtherance
and not in limitation of the powers conferred by statute, the Board of
Directors is expressly authorized to make, alter, amend, repeal and rescind
the bylaws of the Corporation, subject to Sections 5.01(b) and 5.01(c) hereof.
(b) Sections 2.02, 3.02, 3.03(a), 3.03(b), 3.04, 3.05, 3.14, and
5.06 of the bylaws may only be altered, amended, repealed, or rescinded by the
affirmative vote of holders of capital stock entitled to vote thereon
representing more than 60% of the shares entitled to be voted thereon.
(c) Sections 3.03(c) and 3.15 of the bylaws may only be altered,
amended, repealed, or rescinded by the affirmative vote of holders of capital
stock entitled to vote thereon representing more than 90% of the shares
entitled to be voted thereon.
SECTION 5.02. Amendment of Certificate of Incorporation. Section
5.01(b) of this Certificate of Incorporation may only be altered, amended,
repealed, or rescinded by the affirmative vote of holders of capital stock
entitled to vote thereon representing more than 60% of the shares entitled to
be voted thereon. Section 5.01(c) and Articles 8 and 9 of this Certificate of
Incorporation may only be altered, amended, repealed, or rescinded by the
affirmative vote of holders of capital stock entitled to vote thereon
representing more than 90% of the shares entitled to be voted thereon.
ARTICLE 6
SECTION 6.01. Election of Directors by Holders of Preferred Stock.
During any period when the holders of any Preferred Stock or any one or more
series thereof, voting as a class, shall be entitled to elect a specified
number of directors, by reason of dividend arrearages or other provisions
giving them the right to do so, then and during such time as such right
continues (i) the then otherwise authorized number of directors shall be
increased by such specified number of directors, and the holders of such
Preferred Stock or such series thereof, voting as a class, shall be entitled
to elect the additional directors so provided for, pursuant to the provisions
of such Preferred Stock or series; (ii) each such additional director shall
serve for such term, and have such voting powers, as shall be stated in the
provisions pertaining to such Preferred Stock or series; and (iii) whenever
the holders of any such Preferred Stock or series thereof are divested of such
rights to elect a specified number of directors, voting as a class, pursuant
to the provisions of such Preferred Stock or series, the terms of office of
all directors elected by the holders of such Preferred Stock or series, voting
as a class pursuant to such provisions or elected to fill
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any vacancies resulting from the death, resignation or removal of directors so
elected by the holders of such Preferred Stock or series, shall forthwith
terminate and the authorized number of directors shall be reduced accordingly.
SECTION 6.02. Ballots. Elections of directors at an annual or
special meeting of stockholders need not be by written ballot unless the bylaws
of the Corporation shall provide otherwise.
SECTION 6.03. Elimination of Certain Personal Liability of Directors.
(a) A director of the Corporation shall not be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director to the fullest extent permitted by Delaware Law.
(b) Each person (and the heirs, executors or administrators of such
person) who was or is a party or is threatened to be made a party to, or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the
fact that such person is or was a director of the Corporation or is or was
serving at the request of the Corporation as a director of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified and held harmless by the Corporation to the fullest extent
permitted by Delaware Law. The right to indemnification conferred in this
Section 6.03 shall also include the right to be paid by the Corporation the
expenses incurred in connection with any such proceeding in advance of its
final disposition to the fullest extent authorized by Delaware Law. The right
to indemnification conferred in this Section 6.03 shall be a contract right.
(c) The Corporation may, by action of its Board of Directors,
provide indemnification to such of the officers, employees and agents of the
Corporation to such extent and to such effect as the Board of Directors shall
determine to be appropriate and authorized by Delaware Law.
(d) The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss incurred by such person in any such capacity or arising out
of his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under Delaware Law.
(e) The rights and authority conferred in this Section 6.03 shall
not be exclusive of any other right which any person may otherwise have or
hereafter acquire.
(f) Neither the alteration, amendment, repeal or recission of this
Section 6.03, nor the adoption of any provision of this Certificate of
Incorporation or the bylaws of the
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Corporation, nor, to the fullest extent permitted by Delaware Law, any
modification of law, shall eliminate or reduce the effect of this Section 6.03
in respect of any acts or omissions occurring prior to such alteration,
amendment, repeal, recission, adoption or modification.
ARTICLE 7
SECTION 7.01. Section 203 of Delaware Law. The Corporation hereby
elects not to be governed by Section 203 of Delaware Law.
ARTICLE 8
SECTION 8.01. Relationship With Roche. In anticipation that the
Corporation will cease to be a wholly owned subsidiary of Roche Holdings,
Inc., but that Roche (as defined in Section 8.05) will remain a stockholder of
the Corporation, and in anticipation that the Corporation (as defined in
Section 8.05) and Roche may engage in the same or similar activities or lines
of business and have an interest in the same areas of corporate opportunities,
and in recognition of (i) the benefits to be derived by the Corporation
through its continued contractual, corporate and business relations with Roche
(including service of officers and directors of Roche as directors of the
Corporation) and (ii) the difficulties attendant to any director, who desires
and endeavors fully to satisfy such director's fiduciary duties, in
determining the full scope of such duties in any particular situation, the
provisions of this Article 8 are set forth to regulate, define and guide the
conduct of certain affairs of the Corporation as they may involve Roche and
its officers and directors, and the powers, rights, duties and liabilities of
the Corporation and its officers, directors and stockholders in connection
therewith.
SECTION 8.02. Similar Business Activities. Except as Roche Holdings,
Inc. may otherwise agree in writing,
(a) Roche shall not have a duty to refrain from engaging directly or
indirectly in the same or similar business activities or lines of business as
the Corporation, and
(b) neither Roche nor any officer or director thereof shall be
liable to the Corporation or its stockholders for breach of any fiduciary duty
by reason of any such activities of Roche or of such person's participation
therein.
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In the event that Roche acquires knowledge of a potential transaction
or matter that may be a corporate opportunity for both Roche and the
Corporation, Roche shall have no duty to communicate or offer such corporate
opportunity to the Corporation and shall not be liable to the Corporation or
its stockholders for breach of any fiduciary duty as a stockholder of the
Corporation or controlling person of a stockholder by reason of the fact that
Roche pursues or acquires such corporate opportunity for itself, directs such
corporate opportunity to another person or entity, or does not communicate
information regarding, or offer, such corporate opportunity to the
Corporation.
SECTION 8.03. Corporate Opportunities. In the event that a director,
officer or employee of the Corporation who is also a director, officer or
employee of Roche acquires knowledge of a potential transaction or matter that
may be a corporate opportunity for the Corporation and Roche (whether such
potential transaction or matter is proposed by a third-party or is conceived
of by such director, officer or employee of the Corporation), such director,
officer or employee shall be entitled to offer such corporate opportunity to
the Corporation or Roche as such director, officer or employee deems
appropriate under the circumstances in his sole discretion, and no such
director, officer or employee shall be liable to the Corporation or its
stockholders for breach of any fiduciary duty or duty of loyalty or failure to
act in (or not opposed to) the best interests of the Corporation or the
derivation of any improper personal benefit by reason of the fact that (i)
such director, officer or employee offered such corporate opportunity to Roche
(rather than the Corporation) or did not communicate information regarding
such corporate opportunity to the Corporation or (ii) Roche pursues or
acquires such corporate opportunity for itself or directs such corporate
opportunity to another person or does not communicate information regarding
such corporate opportunity to the Corporation.
SECTION 8.04. Deemed Consent of Stockholders. Any person or entity
purchasing or otherwise acquiring any interest in any shares of capital stock
of the Corporation shall be deemed to have notice of and to have consented to
the provisions of this Article 8.
SECTION 8.05. Definitions. For purposes of this Article 8 and Article
9 only, (i) the term "Corporation" shall mean the Corporation and all
corporations, partnerships, joint ventures, associations and other entities in
which the Corporation beneficially owns (directly or indirectly) fifty percent
or more of the outstanding voting stock, voting power or similar voting
interests, and (ii) the term "Roche" shall mean Roche Holdings, Inc. and all
corporations, partnerships, joint ventures, associations and other entities
(other than the Corporation, defined in accordance with clause (i) of this
Section 8.05) that are "affiliates" (as defined in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended) of Roche Holdings, Inc.
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SECTION 8.06. Termination; Binding Effect. Notwithstanding anything
in this Certificate of Incorporation to the contrary, the foregoing provisions
of this Article 8 shall expire on the date that Roche ceases to own
beneficially Common Stock representing at least 5% of the number of
outstanding shares of Common Stock of the Corporation and no person who is a
director or officer of the Corporation is also a director or officer of Roche.
Neither such expiration, nor the alteration, amendment, change or repeal of
any provision of this Article 8 nor the adoption of any provision of this
Amended and Restated Certificate of Incorporation inconsistent with any
provision of this Article 8 shall eliminate or reduce the effect of this
Article 8 in respect of any matter occurring, or any cause of action, suit or
claim that, but for this Article 8, would accrue or arise, prior to such
expiration, alteration, amendment, repeal or adoption.
SECTION 8.07. Article 9. The provisions of this Article 8 are in
addition to the provisions of Article 9.
ARTICLE 9
SECTION 9.01. Contracts Not Void. No contract, agreement, arrangement
or transaction (or any amendment, modification or termination thereof) between
the Corporation and Roche shall be void or voidable solely for the reason that
Roche is a party thereto, or solely because any directors or officers of the
Corporation who are affiliated with Roche are present at or participate in the
meeting of the Board of Directors or committee thereof which authorizes the
contract, agreement, arrangement, transaction, amendment, modification or
termination or solely because his or their votes are counted for such purpose,
but any such contract, agreement, arrangement or transaction (or any
amendment, modification or termination thereof) shall be governed by the
provisions of this Amended and Restated Certificate of Incorporation, the
Corporation's Bylaws, Delaware Law and other applicable law. For purposes of
this Article 9, the terms the "Corporation" and "Roche" have the meanings set
forth in Section 8.05.
SECTION 9.02. Quorum. Directors of the Corporation who are also
directors or officers of Roche may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee that
authorizes or approves any such contract, agreement, arrangement or
transaction (or amendment, modification or termination thereof). Outstanding
shares of Common Stock owned by Roche may be counted in determining the
presence of a quorum at a meeting of stockholders that authorizes or approves
any such contract, agreement, arrangement or transaction (or amendment,
modification or termination thereof).
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SECTION 9.03. No Liability For Good Faith Actions. Neither Roche nor
any officer or director thereof shall be liable to the Corporation or its
stockholders for breach of any fiduciary duty or duty of loyalty or failure to
act in (or not opposed to) the best interests of the Corporation or the
derivation of any improper personal benefit by reason of the fact that Roche
or an officer of director thereof in good faith takes any action or exercises
any rights or gives or withholds any consent in connection with any agreement
or contract between Roche and the Corporation. No vote cast or other action
taken by any person who is an officer, director or other representative of
Roche, which vote is cast or action is taken by such person in his capacity as
a director of this Corporation, shall constitute an action of or the exercise
of a right by or a consent of Roche for the purpose of any such agreement or
contract.
SECTION 9.04. Deemed Consent by Stockholders. Any person or entity
purchasing or otherwise acquiring any interest in any shares of capital stock
of the Corporation shall be deemed to have notice of and to have consented to
the provisions of this Article 9.
SECTION 9.05. Contracts Covered. For purposes of this Article 9, any
contract, agreement, arrangement or transaction with the Corporation or any
corporation, partnership, joint venture, association or other entity in which
the Corporation beneficially owns (directly or indirectly) fifty percent or
more of the outstanding voting stock, voting power or similar voting interests
shall be deemed to be a contract, agreement, arrangement or transaction with
the Corporation.
SECTION 9.06. Binding Effect. Neither the alteration, amendment,
change or repeal of any provision of this Article 9 nor the adoption of any
provision inconsistent with any provision of this Article 9 shall eliminate or
reduce the effect of this Article 9 in respect of any matter occurring, or any
cause of action, suit or claim that, but for this Article 9, would accrue or
arise, prior to such alteration, amendment, change, repeal or adoption.
SECTION 9.07. Article 8. The provisions of this Article 9 are in
addition to the provisions of Article 8.
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IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation, having been duly adopted in accordance with Sections 242 and
245 of the General Corporation Law of the State of Delaware and by the written
consent of the sole stockholder of the Corporation in accordance with Section
228 of the General Corporation Law of the State of Delaware, has been executed
this 22nd day of July, 1999.
GENENTECH, INC.
By: /s/ Stephen G. Juelsgaard
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Name: Stephen G. Juelsgaard
Title: Senior Vice President,
General Counsel and Secretary
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