-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, kK5CaPJuSdJhSdTlPuIDWe+j4DhJUPaBnoPDkF2z7Psr6hLya558ZLOWd2oyL58V ccKnNILWO0NUKu/7zSnAow== 0000950103-95-000145.txt : 19950502 0000950103-95-000145.hdr.sgml : 19950502 ACCESSION NUMBER: 0000950103-95-000145 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19950501 SROS: NONE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GENENTECH INC CENTRAL INDEX KEY: 0000318771 STANDARD INDUSTRIAL CLASSIFICATION: MEDICINAL CHEMICALS & BOTANICAL PRODUCTS [2833] IRS NUMBER: 942347624 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-32488 FILM NUMBER: 95533229 BUSINESS ADDRESS: STREET 1: 460 POINT SAN BRUNO BLVD CITY: SOUTH SAN FRANCISCO STATE: CA ZIP: 94080 BUSINESS PHONE: 4152251000 MAIL ADDRESS: STREET 1: * STREET 2: . FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ROCHE HOLDINGS INC CENTRAL INDEX KEY: 0000904566 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 510304944 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 15 EAST NORTH STREET CITY: DOVER STATE: DE ZIP: 19901 BUSINESS PHONE: 2124504336 MAIL ADDRESS: STREET 1: C/O DAVIS POLK & WARDWELL STREET 2: 450 LEXINGTON AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 SC 13D/A 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934* (Amendment No. 9) GENENTECH, INC. (Name of Issuer) REDEEMABLE COMMON STOCK $.02 PAR VALUE (Title of Class of Securities) 368710208 (CUSIP Number) Peter R. Douglas Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Tel. No.: (212) 450-4000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) April 30, 1995 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. Check the following box if a fee is being paid with this statement. [ ] (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of less than five percent of such class). (See Rule 13d-7.) Note: This document is being electronically filed with the Commission, using the EDGAR system. Additionally, one paper copy of the filing will subsequently be sent to the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page should be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 368710208 ____________________________________________________________________ (1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above Persons ROCHE HOLDINGS, INC. 51-0304944 _____________________________________________________________________ (2) Check the Appropriate Box if a Member of a Group (a) [ ] (b) [ ] _____________________________________________________________________ (3) SEC Use Only _____________________________________________________________________ (4) Source of Funds WC _____________________________________________________________________ (5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ] ______________________________________________________________________ (6) Citizenship or Place of Organization United States of America ______________________________________________________________________ Number of (7) Sole Voting Power 9,487,600 Shares Shares Bene- Redeemable Common Stock ficially Owned by- (8) Shared Voting Power 0 Shares Each Report- ing Person - (9) Sole Dispositive Power 9,487,600 Shares With Redeemable Common Stock (10) Shared Dispositive Power 0 Shares ______________________________________________________________________ (11) Aggregate Amount Beneficially Owned by Each Reporting Person 9,487,600 Redeemable Common Stock ______________________________________________________________________ (12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ] ______________________________________________________________________ (13) Percent of Class Represented by Amount in Row (11) 18.8% of Redeemable Common Stock ______________________________________________________________________ (14) Type of Reporting Person (See Instructions) CO, HC The following information amends and supplements the Schedule 13D dated September 17, 1990, as previously amended (as so amended, the "Schedule 13D"). Item 1. Security and Issuer. This statement relates to the Redeemable Common Stock, par value $.02 per share (the "Redeemable Common Stock" and, together with the Common Stock, par value $.02 per share (the "Common Stock"), the "Common Shares"), of Genentech, Inc., a Delaware corporation (the "Company"). The principal executive offices of the Company are located at 460 Point San Bruno Boulevard, San Francisco, California 94080. Item 2. Identity and Background. This statement is filed by Roche Holdings, Inc., a Delaware corporation ("Purchaser") and wholly owned subsidiary of Roche Finance Ltd, a Swiss corporation ("Finance") and wholly owned subsidiary of Roche Holding Ltd, a Swiss corporation ("Holding"). Dr. h.c. Paul Sacher, an individual and citizen of Switzerland ("Dr. Sacher") has, pursuant to an agreement, the power to vote a majority of the voting securities of Holding. Purchaser, Finance, Holding and Dr. Sacher are herein referred to collectively as the "Reporting Persons". The address of the principal offices of Purchaser is 15 East North Street, Dover, Delaware 19901. The address of the principal offices of Finance is Grenzacherstrasse 122, Basel, Switzerland. The address of the principal offices of Holding is Grenzacherstrasse 124, Basel 4002, Switzerland. The business address of Dr. Sacher is Haus auf Burg, Muensterplatz 4, Basel 4051, Switzerland. Item 3. Source and Amount of Consideration The aggregate purchase price for the 159,000 shares of Redeemable Common Stock acquired by Purchaser between January 20, 1995 and April 28, 1995 as described in Item 4 was $7,433,125.00, excluding commissions, and was financed from working capital of the Purchaser. Item 4. Purpose of Transaction On April 30, 1995, Purchaser and the Company entered into a Transaction Agreement, a copy of which is attached hereto as Exhibit 7.1, and on May 1, 1995 Holding and the Company issued press releases announcing the Transaction Agreement. Copies of the press releases are attached hereto as Exhibits 7.2 and 7.3. The Transaction Agreement and the press releases are incorporated herein by reference. Between January 20, 1995 and April 28, 1995, the Purchaser purchased an aggregate of 159,000 shares of Redeemable Common Stock for an aggregate purchase price of $7,433,125.00, excluding commissions. Certain information with respect to purchases of Redeemable Common Stock within the 60 days preceding the date of this Amendment is set forth in Schedule D. Subject to market conditions and other factors (including limits imposed by the Governance Agreement between Purchaser and the Company), the Purchaser expects that it or its affiliates may acquire additional Redeemable Common Stock from time to time in the future in open-market, privately negotiated or other transactions. The purpose of the Purchaser, Finance and Holding in effecting the purchases of Redeemable Common Stock referred to above was to increase their aggregate equity interest in the Company. Item 5. Interest in the Securities of the Issuer. (a) The Purchaser is the beneficial owner of 67,133,409 shares of Common Stock (100% of the Common Stock outstanding) and 9,487,600 shares of Redeemable Common Stock (18.8% of the 50,427,615 shares of Redeemable Common Stock outstanding as of March 13, 1995 according to the Company's Form 10-K for the year ended December 31, 1994 (the "10-K")), which together represent 65.2% of the 117,561,024 Common Shares outstanding as of March 13, 1995 according to the 10-K. Transactions by the Reporting Persons in Redeemable Common Stock within the 60 days preceding the date of this Amendment are described in Item 4 and in Schedule D. Except as set forth herein, neither the Reporting Persons nor any other person controlling the Reporting Parties nor, to the best of their knowledge, any of the persons named in Schedules A, B and C hereto beneficially owns any Common Shares, except that Prof. Jurgen Drews owns 200 shares of Redeemable Common Stock and Prof. Drews and Dr. Armin M. Kessler have each been granted employee stock options by the Company to purchase 15,000 shares of Redeemable Common Stock at $25.50 per share, all of which are issuable under currently exercisable stock options and options exercisable within sixty days of May 1, 1995, and 15,000 shares of Redeemable Common Stock at $26.50 per share, all of which are issuable under currently exercisable stock options and options exercisable within sixty days of May 1, 1995. (b) Except as otherwise described herein, none of the Reporting Persons has any sole or shared power to vote or to direct the vote of any Common Shares nor sole or shared power to dispose of or direct the disposition of any Common Shares. (c) Except as set forth herein previous amendments to this Schedule 13D and in Schedule D hereto, no transactions in the Common Shares have been effected during the past 60 days by the Reporting Persons nor any other person controlling the Reporting Persons nor, to the best of their knowledge, any of the persons named in Schedules A, B and C hereto. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. There are no contracts, arrangements, understandings or relationships among the persons named in Item 2 or between any of such persons and any other person with respect to any securities of the Company except as referred to or described herein or in the Schedule 13D. Item 7. Material Filed as Exhibits. Exhibit 7.1 Transaction Agreement between Roche Holdings, Inc. and Genentech, Inc. dated April 30, 1995 (exhibits omitted). Exhibit 7.2 Press Release issued May 1, 1995 by Roche Holding Ltd. Exhibit 7.3 Press Release issued May 1, 1995 by Genentech, Inc. After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and accurate. Dated: May 1, 1995 ROCHE HOLDINGS, INC. By /s/ Henri B. Meier ----------------------- Name: Henri B. Meier Title: Vice President, Finance, Accounting SCHEDULE A Executive Officers and Directors(*) of Roche Holdings, Inc. The names of the Directors and the names and titles of the Executive Officers of Roche Holdings, Inc. and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of Roche Holding Ltd. Unless otherwise indicated, each occupation set forth opposite an individual's name refer to Roche Holding Ltd and each individual is a Swiss citizen. Present Principal Name, Business Address Occupation - --------------------------- ------------------ *Mr. Fritz Gerber Chairman, President and (President) Chief Executive Officer *Dr. Henri B. Meier Chief Financial Officer SCHEDULE B Executive Officers and Directors(*) of Roche Finance Ltd The names of the Directors and the names and titles of the Executive Officers of Roche Finance Ltd and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of Roche Holding Ltd. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to Roche Holding Ltd and each individual is a Swiss citizen. Present Principal Name, Business Address Occupation - ---------------------- ------------------- *Mr. Fritz Gerber Chairman of the Board, (President) President and Chief Executive Officer *Dr. Andres F. Leuenberger Vice Chairman of the Board *Dr. Henri B. Meier Chief Financial Officer SCHEDULE C Executive Officers and Directors(*) of Roche Holding Ltd The names of the Directors and the names and titles of the Executive Officers of Roche Holding Ltd and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of Roche Holding Ltd. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to Roche Holding Ltd and each individual is a Swiss citizen, except that Dr. Drews is a German citizen and Mr. Belingard is a French citizen. Present Principal Name, Business Address Occupation - ------------------------- --------------------- *Mr. Fritz Gerber Chairman of the Board and Chief Executive Officer *Dr. Lukas Hoffmann Vice Chairman of the Board Le petit Essert Vice Chairman of WWF 1147 Montricher, Switzerland International (a nonprofit organization) *Dr. Andres F. Leuenberger Vice Chairman and Delegate of the Board *Dr. h.c. Paul Sacher Conductor and Founder of Haus auf Burg Paul Sacher Foundation Muensterplatz 4 (a nonprofit organization) 4051 Basel, Switzerland *Dr. Armin M. Kessler Chief Operating Officer *Dr. Henri B. Meier Chief Financial Officer *Dr. Jakob Oeri Surgeon and retired Director Head Physician, St. Alban - Vorstadt 71 Kantonsspital Basel (hospital) *Dr. Kurt Jenny Lawyer Aeschengraben 18 4051 Basel, Switzerland Prof. Dr. Werner Stauffacher Professor Head of Department University of Basel of Internal Medicine Hebelstrasse 32 4056 Basel, Switzerland *Prof. Charles Weissmann Professor Director University of Zurich Institut fur Molekularbiologie I 1er Universitaet Zurich Hoenggerberg 8093 Zurich, Switzerland Dr. Markus Altwegg General Manager Dr. Roland Bronnimann General Manager Prof. Jurgen Drews General Manager Mr. Jean-Luc Belingard General Manager SCHEDULE D Purchases of Redeemable Common Stock (all transactions effected on NYSE) (all prices exclude commissions) Date Number of Shares Price Per Share 3-30-95 12,400 $47.875 4-3-95 50,000 $46.50 4-3-95 17,600 $46.625 4-3-95 60,000 $46.75 4-3-95 1,000 $46.875 4-3-95 16,000 $47.00 EX-7.1 2 EXHIBIT 7.1 CONFORMED COPY TRANSACTION AGREEMENT BETWEEN ROCHE HOLDINGS, INC. AND GENENTECH, INC. Dated April 30, 1995 TABLE OF CONTENTS ARTICLE I DEFINITIONS.................................................... 1 ARTICLE II THE AMENDMENT; EFFECTIVE TIME; CLOSING 2.1 The Amendment............................................ 3 2.2 Effective Time........................................... 3 2.3 Closing.................................................. 3 ARTICLE III TERMS OF THE AMENDMENT 3.1 Certificate of Incorporation............................. 4 ARTICLE IV EFFECT ON SHARES OF THE AMENDMENT 4.1 Treatment of Shares Pursuant to the Amendment................................................ 4 4.2 Validity of Certificates Following the Amendment................................................ 5 ARTICLE V ADDITIONAL COVENANTS AND AGREEMENTS 5.1 Stockholder Meeting; Proxy Material...................... 5 5.2 Reasonable Efforts....................................... 6 5.3 Continuing Compliance with Governance Agreement................................................ 6 5.4 Compliance with Securities Laws.......................... 6 5.5 Option Plans............................................. 7 5.6 Additional Agreements.................................... 7 5.7 Voting................................................... 7 5.8 Certain Proceedings...................................... 7 5.9 Merger Agreement......................................... 7 ARTICLE VI CONDITIONS 6.1 Conditions to Each Party's Obligations................... 7 6.2 Condition to Obligations of Roche........................ 8 6.3 Conditions to Obligations of the Company................. 8 ARTICLE VII TERMINATION 7.1 Termination.............................................. 9 7.2 Effect of Termination and Abandonment.................... 9 ARTICLE VIII MISCELLANEOUS AND GENERAL 8.1 Expenses................................................. 10 8.2 Notices, Etc............................................. 10 8.3 Amendments, Waivers, Etc................................. 11 8.4 No Assignment............................................ 11 8.5 Entire Agreement......................................... 11 8.6 No Third Party Beneficiaries............................. 11 8.7 Jurisdiction............................................. 11 8.8 Governing Law............................................ 12 8.9 Name, Captions, Etc...................................... 12 8.10 Counterparts............................................. 12 TRANSACTION AGREEMENT TRANSACTION AGREEMENT (this "Agreement"), dated April 30, 1995, between Roche Holdings, Inc., a Delaware corporation ("Roche"), and Genentech, Inc., a Delaware corporation (the "Company"). RECITALS WHEREAS, the Boards of Directors of Roche and the Company each have determined that it is in the best interests of their respective stockholders for Article THIRD of the Company's Certificate of Incorporation to be amended and restated upon the terms and subject to the conditions of this Agreement; NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements set forth herein, Roche and the Company hereby agree as follows: ARTICLE I DEFINITIONS As used in this Agreement, the following terms shall have the respective meanings set forth below: "Affiliate": As defined in Rule 12b-2 under the Exchange Act. "Amendment": As defined in Section 2.1 "Authorization": Any consent, approval or authorization of, expiration or termination of any waiting period requirement by, or filing, registration, qualification, declaration or designation with, any Governmental Body. "Certificate of Amendment": The certificate of amendment with respect to the amendment and restatement of Article THIRD of the Company's Certificate of Incorporation, containing the provisions required by, and executed in accordance with, Section 242 of the DGCL. "Certificates": As defined in Section 4.2(a). "Closing Date": The date on which the Effective Time occurs. "Code": The Internal Revenue Code of 1986, as amended, and all regulations promulgated thereunder, as in effect from time to time. "Common Shares": The Common Stock, par value $.02 per share, of the Company, which shall remain unchanged by the Amendment. "DGCL": The General Corporation Law of the State of Delaware. "Effective Time": As defined in Section 2.2. "Exchange Act": The Securities Exchange Act of 1934, as amended, including the rules and regulations promulgated thereunder. "Governance Agreement": The Governance Agreement dated as of September 7, 1990 between Roche and the Company. "Governmental Body": Any Federal, state, municipal, political subdivision or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign. "Marketing Agreement": The Agreement between F. Hoffmann -- La Roche Ltd. and the Company, to be dated as of the Closing Date, in substantially the form attached hereto as Exhibit D. "Merger Agreement": the Merger Agreement among the Company, Roche and a newly incorporated Delaware corporation which is a wholly owned subsidiary of Roche ("Merger Sub"), to be entered into immediately prior to termination of this Agreement pursuant to Section 7.1(b) hereof, the form of which, together with all exhibits thereto, is attached hereto as Exhibit E. "New Governance Agreement": The Amended and Restated Governance Agreement between Roche and the Company, to be dated as of the Closing Date, in substantially the form attached hereto as Exhibit A. "New Guaranty": The Guaranty of Roche Holding Ltd, a Swiss corporation, to be dated as of the Closing Date, in substantially the form attached hereto as Exhibit B. "NYSE": The New York Stock Exchange, Inc. "Option": As defined in Section 4.1(b). "Option Plans": As defined in Section 4.1(b). "Person": Any individual or corporation, company, partnership, trust, incorporated or unincorporated association, joint venture or other entity of any kind. "Redeemable Common Shares": The shares of Redeemable Common Stock, par value $.02 per share, of the Company issued and outstanding prior to the Effective Time. "SEC": The Securities and Exchange Commission. "Securities Act": The Securities Act of 1933, as amended, including the rules and regulations promulgated thereunder. "Special Common Shares": The shares of Special Common Stock, par value $.02 per share, of the Company issued and outstanding after the Effective Time. "Stockholder Meeting": As defined in Section 5.1. ARTICLE II THE AMENDMENT; EFFECTIVE TIME; CLOSING 2.1 The Amendment. Subject to the terms and conditions of this Agreement, at the Effective Time (as hereinafter defined), Article THIRD of the Company's Certificate of Incorporation shall be amended and restated (the "Amendment") substantially in the form attached hereto as Exhibit C, and the Redeemable Common Stock shall thereafter be renamed "Special Common Stock" as provided in such Article THIRD, as amended. 2.2 Effective Time. The Amendment shall become effective on the date and at the time (the "Effective Time") that the Certificate of Amendment shall have been accepted for filing by the Secretary of State of the State of Delaware (or such later date and time as may be specified in the Certificate of Amendment), which shall be the Closing Date or as soon as practicable thereafter. 2.3 Closing. The consummation of the transactions contemplated by this Agreement shall take place (i) at the offices of Wachtell, Lipton, Rosen & Katz, New York, New York, at 10:00 a.m. on the second business day following the date on which the last of the conditions set forth in Article VI hereof is fulfilled or (subject to applicable law) waived or (ii) at such other place and/or time and/or on such other date as Roche and the Company may agree or as may be necessary to permit the fulfillment or waiver of the conditions set forth in Article VI. ARTICLE III TERMS OF THE AMENDMENT 3.1 Certificate of Incorporation. The Certificate of Incorporation of the Company as in effect immediately prior to the Effective Time shall be the Certificate of Incorporation of the Company after the Effective Time, until duly amended in accordance with the terms thereof, of the New Governance Agreement and of the DGCL, except that at the Effective Time Article THIRD of such Certificate of Incorporation shall be amended as provided in this Agreement and the DCGL substantially in the form attached hereto as Exhibit C. ARTICLE IV EFFECT ON SHARES OF THE AMENDMENT 4.1 Treatment of Shares Pursuant to the Amendment. Subject to the provisions of this Article IV, at the Effective Time, by virtue of the Amendment and without any action on the part of the holders thereof, the Redeemable Common Shares and options issued by the Company in respect of any such shares shall be treated as follows: (a) Each Redeemable Common Share issued and outstanding immediately prior to the Effective Time shall remain outstanding, shall be amended as provided in the Amendment, and shall be known as a "Special Common Share" immediately following the Effective Time. (b) Each outstanding option to purchase Redeemable Common Shares (each, an "Option"), issued pursuant to the Company's stock option plans (collectively, the "Option Plans") (whether or not vested or exercisable) shall, without any action by the holder thereof, constitute an option to acquire, on the same terms and conditions as were applicable under such Option immediately prior to the Effective Time, that number of Special Common Shares equal to the number of Redeemable Common Shares subject to such Option immediately prior to the Effective Time, at the price or prices per share in effect pursuant to the terms of such Option immediately prior to the Effective Time. 4.2 Validity of Certificates Following the Amendment. (a) Each certificate which, immediately prior to the Effective Time, represented outstanding Common Shares or Redeemable Common Shares (the "Certificates") shall, following the Effective Time, continue, for all purposes to evidence ownership of, and to represent, an equal number of Common Shares or Special Common Shares (formerly known as Redeemable Common Shares), as the case may be. (b) The registered owner on the books and records of the Company or its transfer agents of any outstanding Certificate shall, until such Certificate shall have been surrendered for transfer or otherwise accounted for to the Company or its transfer agents, have and be entitled to exercise any voting and other rights with respect to, and to receive any dividends and other distributions upon, the Special Common Shares evidenced by such outstanding Certificate as provided above. (c) In addition to the provisions of paragraphs (a) and (b) of this Section 4.2, as soon as practicable following the Effective Time, the Company shall cause to be delivered to holders of record of Redeemable Common Shares as of the Effective Time a transmittal letter or other appropriate documentation such that such holders may exchange Certificates formerly denominated "Redeemable Common Shares" for certificates representing Special Common Shares held of record by such holder. The Company shall be under no obligation to issue certificates representing Special Common Shares until it shall have received Certificates representing an equivalent number of Redeemable Common Shares surrendered to the Company in accordance with such transmittal letter or other appropriate documentation. ARTICLE V ADDITIONAL COVENANTS AND AGREEMENTS 5.1 Stockholder Meeting; Proxy Material. The Company shall cause a meeting of its stockholders (the "Stockholder Meeting") to be duly called and held as soon as reasonably practicable for the purpose of voting on the approval and adoption of the Amendment. The directors of the Company shall, subject to their fiduciary duties, recommend approval and adoption of the Amendment by the Company's stockholders. In connection with such meeting, the Company (i) will promptly prepare and file with the SEC, will use all reasonable efforts to have cleared by the SEC and will thereafter mail to its stockholders as promptly as practicable a proxy statement, registration statement and all other documents which may be required to be filed or mailed in connection with such meeting and the consummation of the transactions contemplated hereby, (ii) will, subject to the fiduciary duties of its board of directors, use all reasonable efforts to obtain the necessary approvals by its stockholders of the Amendment and (iii) will otherwise comply with all legal requirements applicable to such meeting. 5.2 Reasonable Efforts. The Company and Roche shall and shall use all reasonable efforts to cause their respective Subsidiaries to: (i) promptly make all filings and seek to obtain all Authorizations required under all applicable laws with respect to the Amendment and will cooperate with each other with respect thereto; (ii) use all reasonable efforts to promptly take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or appropriate to satisfy the conditions set forth in Article VI and to consummate and make effective the transactions contemplated by this Agreement on the terms and conditions set forth herein as soon as practicable (including seeking to remove promptly any injunction or other legal barrier that may prevent such consummation); and (iii) not take any action which might reasonably be expected to impair the ability of the parties to consummate the transactions contemplated hereby at the earliest possible time (regardless of whether such action would otherwise be permitted or not prohibited hereunder); provided that the foregoing shall not require Roche to furnish, other than for itself and its United States Affiliates, financial statements prepared in accordance with United States generally accepted accounting principles or any reconciliation of financial statements with United States generally accepted accounting principles. 5.3 Continuing Compliance with Governance Agreement. Roche and the Company agree that they shall continue to abide by the provisions of the Governance Agreement. 5.4 Compliance with Securities Laws. The parties hereto agree to take, and to cause their respective Affiliates to take, all actions necessary to comply with the Securities Act and the Exchange Act and the rules and regulations promulgated under such statutes in connection with the Amendment and the transactions contemplated by this Agreement, provided that the foregoing shall not require Roche to furnish, other than for itself and its United States Affiliates, financial statements prepared in accordance with United States generally accepted accounting principles or any reconciliation of financial statements with United States generally accepted accounting principles. 5.5 Option Plans. The Company shall take all action necessary to ensure that, as provided in Section 4.1(b) hereof, Options outstanding immediately prior to the Effective Time shall represent, at and after the Effective Time, Options to acquire Special Common Shares on the same terms as in effect immediately prior to the effective time pursuant to such Options (and the related Option Plans) with respect to such shares. The Company shall take all corporate action necessary to reserve for issuance a sufficient number of Special Common Shares for delivery upon exercise of the Options. 5.6 Additional Agreements. The Company and Roche agree to execute each of the New Governance Agreement and the Marketing Agreement in the forms attached hereto as Exhibits A and D, respectively, immediately prior to the Effective Time. 5.7 Voting. Roche agrees to vote (i) all Redeemable Common Shares owned by it as required pursuant to Section 3.06(b) of the Governance Agreement and (ii) all Common Shares owned by it in favor of the Amendment. 5.8 Certain Proceedings. In the event that any action, suit, proceeding or investigation relating hereto or to the transactions contemplated by this Agreement is commenced, whether before or after the Closing Date, the parties hereto agree to cooperate and use their respective reasonable efforts to vigorously defend against and respond thereto. 5.9 Merger Agreement. Immediately prior to the termination of this Agreement pursuant to Section 7.1(b) of this Agreement, the Company and Roche shall execute, and Roche shall cause Merger Sub to execute, the Merger Agreement attached hereto as Exhibit E. ARTICLE VI CONDITIONS 6.1 Conditions to Each Party's Obligations. The respective obligations of each party to consummate the transactions contemplated by this Agreement are subject to the fulfillment at or prior to the Effective Time of each of the following conditions, any or all of which may be waived in whole or in part by the party being benefitted thereby, to the extent permitted by applicable law: (a) Stockholder Approval. The amendments to Article THIRD Company's Certificate of Incorporation shall have been duly approved or ratified by the requisite vote of holders of Common Shares and Redeemable Common Shares in accordance with applicable law, the Certificate of Incorporation (including Article ELEVENTH thereof) and By-Laws of the Company and the Governance Agreement. (b) Additional Agreements. The New Governance Agreement and the Marketing Agreement shall have been executed in substantially the forms attached hereto as Exhibits A and D, respectively, and shall be in full force and effect. (c) Amendment of Certificate of Incorporation. Article THIRD of the Certificate of Incorporation shall have been amended in substantially the form attached hereto as Exhibit C. (d) No Injunction. No provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the consummation of the Amendment. (e) Listing of Special Common Shares on NYSE. The Special Common Shares outstanding after the Effective Time (including upon exercise of Options as referred to in Section 4.1(b)) shall continue to be listed on the NYSE. (f) Third Party Consents. All required authorizations, consents or approvals of any third party, the failure to obtain which would have a material adverse effect on the Company and its subsidiaries taken as a whole, shall have been obtained. 6.2 Condition to Obligations of Roche. The obligations of Roche to consummate the transactions contemplated by this Agreement are subject to the fulfillment at or prior to the Effective Time of the condition, which may be waived in whole or part by Roche, to the extent permitted by applicable law, that the Company shall have performed or complied in all material respects with all agreements and conditions contained herein required to be performed or complied with by it prior to or at the Effective Time. 6.3 Conditions to Obligations of the Company. The obligations of the Company to consummate the transactions contemplated by this Agreement are subject to the fulfillment at or prior to the Effective Time of the following conditions, which may be waived in whole or in part by the Company to the extent permitted by applicable law: (a) Performance. Roche shall have performed or complied in all material respects with all agreements and conditions contained herein required to be performed or complied with by it prior to or at the Effective Time. (b) New Guaranty. The New Guaranty shall have been executed in substantially the form attached as Exhibit B hereto and shall be in full force and effect. ARTICLE VII TERMINATION 7.1 Termination. (a) This Agreement may be terminated and the Amendment may be abandoned at any time: (i) Prior to the Effective Time, before or after the approval by holders of Common Shares or Redeemable Common Shares, by the mutual written consent of Roche and the Company; or (ii) By either the Company or Roche, upon written notice to the other parties hereto, if the stockholder approval contemplated by Section 6.1(a) hereof is not obtained by the Company at a Stockholder Meeting held prior to June 30, 1995. (b) This Agreement shall terminate if (i) as of the close of business on June 5, 1995, (x) the proxy statement referred to in Section 5.1 hereof has not been mailed to the Company's stockholders or (y) the date for the Stockholder Meeting has not been set for a date prior to June 30, 1995 or (ii) any of the conditions to the parties obligations set forth in Article VI hereof shall not have been satisfied or waived prior to the close of business on June 30, 1995; provided that no termination of this Agreement pursuant to this Section 7.1(b) shall become effective until the Merger Agreement attached hereto as Exhibit E shall have been executed by the Company, Roche and Merger Sub pursuant to the covenant set forth in Section 5.9 hereof. 7.2 Effect of Termination and Abandonment. In the event of termination of this Agreement and abandonment of the Amendment pursuant to this Article VII, no party hereto (or any of its directors or officers) shall have any liability or further obligation to any other party to this Agreement, except that nothing herein will relieve any party from liability for any breach of this Agreement. ARTICLE VIII MISCELLANEOUS AND GENERAL 8.1 Expenses. Each party shall bear its own expenses, including the fees and expenses of any attorneys, accountants, investment bankers, brokers, finders or other intermediaries or other Persons engaged by it, incurred in connection with this Agreement and the transactions contemplated hereby. 8.2 Notices, Etc. All notices, requests, demands or other communications required by or otherwise with respect to this Agreement shall be in writing and shall be deemed to have been duly given to any party when delivered personally (by courier service or otherwise), when delivered by telecopy and confirmed by return telecopy, or seven days after being mailed by first-class mail, postage prepaid and return receipt requested in each case to the applicable addresses set forth below: If to the Company: Genentech, Inc. 490 Point San Bruno Boulevard South San Francisco, California 94080 Attn.: John P. McLaughlin Telecopy: 415-952-9881 Richard D. Katcher, Esq. Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 Telecopy: 212- 403-2000 If to Roche: Roche Holdings, Inc. c/o Roche Holding Ltd Grenzacherstrasse 124 CH-4002 Basel Switzerland Telecopy: 011-41-61-688-1396 Attn.: Dr. Felix Amrein with a copy to: Peter R. Douglas, Esq. Davis Polk & Wardwell 450 Lexington Avenue New York, New York 10017 Telecopy: 212-450-4800 or to such other address as such party shall have designated by notice so given to each other party. 8.3 Amendments, Waivers, Etc. This Agreement may not be amended, changed, supplemented, waived or otherwise modified except by an instrument in writing signed by the party against whom enforcement is sought. 8.4 No Assignment. This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties and their respective successors and assigns; provided that, except as otherwise expressly set forth in this Agreement, neither the rights nor the obligations of any party may be assigned or delegated without the prior written consent of the other party. 8.5 Entire Agreement. Except as otherwise provided herein, this Agreement and the exhibits hereto embody the entire agreement and understanding between the parties relating to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter. There are no representations, warranties or covenants by the parties hereto relating to such subject matter other than those expressly set forth in this Agreement and the exhibits hereto and any writings expressly required hereby or thereby. 8.6 No Third Party Beneficiaries. This Agreement is not intended to be for the benefit of and shall not be enforceable by any Person or entity who or which is not a party hereto. 8.7 Jurisdiction. Each party hereby irrevocably submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York or any court of the State of New York located in the City of New York in any action, suit or proceeding brought by either party hereto and arising in connection with this Agreement, and agrees that any such action, suit or proceeding shall be brought only in such court (and waives any objection based on forum non conveniens or any other objection to venue therein); provided, however, that such consent to jurisdiction is solely for the purpose referred to in this Section 8.7 and shall not be deemed to be a general submission to the jurisdiction of said Courts or in the State of New York other than for such purpose. Roche and the Company hereby waive any right to a trial by jury in connection with any such action, suit or proceeding. 8.8 Governing Law. This Agreement and all disputes hereunder shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to principles of conflict of laws. 8.9 Name, Captions, Etc. The name assigned this Agreement and the section captions used herein are for convenience of reference only and shall not affect the interpretation or construction hereof. Unless otherwise specified, (a) the terms "hereof," "herein" and similar terms refer to this Agreement as a whole and (b) references herein to Articles or Sections refer to articles or sections of this Agreement. 8.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies each signed by less than all, but together signed by all, the parties hereto. IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties set forth below. GENENTECH, INC. By: /s/ G. Kirk Raab ------------------------ Name: G. Kirk Raab Title: President and Chief Executive Officer ROCHE HOLDINGS, INC. By: /s/ Henri B. Meier ------------------------ Name: Dr. Henri B. Meier Title: Vice President and Treasurer EX-7.2 3 EXHIBIT 7.2 Basel, 1 May 1995 Extension of Roche's Buyout option for outstanding Genentech shares. Genentech retains Independence with closer marketing ties to Roche. Roche and Genentech have agreed to extend Roche's call option on outstanding Genentech stock for a four year period at a predetermined price that escalates quarterly ending on 30 June 1999 with a strike price of US$82 per share. Genentech shareholders will have a put option at a price of US$60 per share, exercisable only during a 30 day period following the termination of the four year call option. In addition and independent of the redemption right Roche has the right to purchase in the open market up to a maximum of 79.9 percent of Genentech stock. Under the agreement Genentech is granting Roche an option on exclusive worldwide commercial rights to all of its new products outside the US. The new agreement underlines Roche's commitment for Genentech and it's employees to maintain independent operations in a climate of entrepreneurial and intellectual creativity. Genentech's innovative products will increasingly benefit from Roche's global marketing development and sales resources. The agreement was signed with the approval of the boards of both companies but is still subject to approval by Genentech shareholders and regulatory authorities. Roche acquired a majority stake (60 percent) of Genentech in 1990 under an agreement which also gave Roche the option to redeem all outstanding Genentech shares by 30 June 1995. The agreement foresaw the redemption price per share rising to US$60 per share on 1 April 1995. It also allowed Roche to acquire on the open market a further 15 percent of Genentech stock beyond the initial 60 percent holding. Currently Roche holds approximately 66 percent of Genentech shares outstanding. Roche now has the right to exercise its option, providing it does so for all Genentech's outstanding shares, at US$ 61.25 per share from 1 July 1995 to 30 September 1995. Thereafter the redemption price increases by US$1.25 per share every three months to US$70 on 1 April, 1997. From 1 July to 30 September 1997 the redemption price is US$71.50 per share and thereafter increases by US$1.50 per share every three months to reach US$82 on 1 April 1999. Media contact: Max W. Gurtner +41/61/699 55 54 or +41/77/45 62 96 Investor contact: M.F. Rutimeyer +41/61/688 80 56 or +41/77/45 82 93 EX-7.3 4 EXHIBIT 7.3 NEWS RELEASE Genentech, Inc. Media Contact: Laura Leber (415) 225-5759 Investor Contact: Lisa Brock (415) 225-1034 GENENTECH AGREES TO EXTEND ROCHE'S BUYOUT OPTION FOR 4 YEARS AT ESCALATING PRICE PER SHARE UP TO $82 -- GNE stockholders can "put" at $60/share if Roche does not consummate purchase; Roche to receive ex-U.S. GNE product rights -- SOUTH SAN FRANCISCO, CA, May 1, 1995 -- Genentech, Inc. (NYSE: GNE) today announced an agreement with Roche Holding, Ltd. of Basel, Switzerland, to extend for four years Roche's option to purchase the outstanding redeemable common stock of the company at a predetermined price that escalates quarterly up to $82/share. If Roche does not consummate the purchase as of June 30, 1999, Genentech's stockholders will have the option to exercise a "put" on some or all of their shares at the stockholder's discretion at $60 per share within a thirty-day period commencing July 1, 1999. The extension must be approved by a vote of Genentech stockholders, including the affirmative vote of holders of a majority of the redeemable common stock not owned by Roche. The parties' agreement also provides Roche may increase its GNE ownership up to 79.9 percent through purchases on the open market (vs. the 75 percent currently allowed). Roche also will receive an option to market Genentech's products outside of the United States. The agreement will provide Roche an option period to purchase the outstanding redeemable common stock beginning July 1, 1995 through June 30, 1999. The redemption price per share will increase quarterly at $1.25 for the first eight quarters, and at $1.50 for the last eight quarters. This will result in a $61.25 redemption price per share in the quarter beginning July 1, 1995, and peak at an $82.00 redemption price per share in the quarter beginning April 1, 1999. Roche will be able to redeem the redeemable common stock through June 30, 1995 at the current redemption price of $60/share. As part of the agreement, Roche will be granted at commercial terms an option for ten years on rights for Genentech products in non-U.S. markets. At the conclusion of phase II clinical trials or earlier, Roche may decide to co-develop a Genentech drug. If so, Genentech and Roche will split approximately equally all U.S. development expenses (including preclinical, clinical, process development, and related expenses). Roche will pay for non-U.S. development expenses. Roche will pay a royalty of 12.5% until a product reaches $100 million in sales, when the royalty for that product's full sales becomes 15%. As part of the agreement, Roche will have exclusive rights and pay Genentech a 20% royalty on Canadian sales of ProtropinTrademark, NutropinTrademark, ActivaseTrademark, and PulmozymeTrademark, as well as European sales of Pulmozyme. According to the terms of the agreement, Roche will continue to have two of thirteen seats on Genentech's Board of Directors. Also under the terms of the agreement, Genentech will supply its relevant products for ex-U.S. sales to Roche at cost plus a 20 percent margin. "The agreement and its financial aspects present Genentech with exciting opportunities, and they build further value for stockholders by preserving our continued independent operations; supporting our aggressive drug research and development efforts; and increasing our successful utilization of Roche's existing worldwide development, marketing and sales network," said G. Kirk Raab, president and CEO of Genentech, Inc. "Our Board believes, and I expect our stockholders and employees will agree, that a put price of $60 in four years and a call price of $82 protects against downside risk while creating ample upside opportunity." "We are even more enthusiastic today about Genentech than we were in 1990 when we made our first key investment," said Fritz Gerber, chairman of Roche Holding Ltd. "We are committed to continuing Genentech's success, and to bringing the full force of Roche's global resources to Genentech's international opportunities." Extension builds on 1990 agreement Roche originally purchased 60 percent of Genentech in 1990. Under the terms of the agreement, Roche was given the right to increase its holdings up to 75 percent of Genentech stock by purchases on the open market, and to acquire the entire company at predetermined prices which increased each quarter until reaching its plateau of $60 per share in the quarter beginning April 1st of this year. Roche currently holds an approximately 66 percent equity position in Genentech. Genentech, Inc. is a leading biotechnology company that discovers, develops, manufactures and markets human pharmaceuticals for significant unmet medical needs. The company is headquartered in South San Francisco, California and is traded on the New York and Pacific Stock Exchanges under the symbol GNE. # # # QUARTERLY CALL PRICE GENENTECH, INC. CALL PERIOD PRICE - ----------- -------- July 1, 1995 through September 30, 1995 $61.25 October 1, 1995 through December 31, 1995 $62.50 January 1, 1996 through March 31, 1996 $63.75 April 1, 1996 through June 30, 1996 $65.00 July 1, 1996 through September 30, 1996 $66.25 October 1, 1996 through December 31, 1996 $67.50 January 1, 1997 through March 31, 1997 $68.75 April 1, 1997 through June 30, 1997 $70.00 July 1, 1997 through September 30, 1997 $71.50 October 1, 1997 through December 31, 1997 $73.00 January 1, 1998 through March 31, 1998 $74.50 April 1, 1998 through June 30, 1998 $76.00 July 1, 1998 through September 30, 1998 $77.50 October 1, 1998 through December 31, 1998 $79.00 January 1, 1999 through March 31, 1999 $80.50 April 1, 1999 through June 30, 1999 $82.00 PUT PERIOD PRICE - ---------- -------- July 1, 1999 through July 30, 1999 $60.00 # # # -----END PRIVACY-ENHANCED MESSAGE-----