-----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, aBGgWnMy6OXcpxvAdJMx78JSifecoqVjJDvjCSsB+3d45gyPJtpl82F62737MZK3 NslQE4TcILKxwiBr445r2A== 0000950103-95-000254.txt : 199507110000950103-95-000254.hdr.sgml : 19950711 ACCESSION NUMBER: 0000950103-95-000254 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19950710 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: 95552773 BUSINESS ADDRESS: STREET 1: 460 POINT SAN BRUNO BLVD CITY: SOUTH SAN FRANCISCO STATE: CA ZIP: 94080 BUSINESS PHONE: 4152251000 MAIL ADDRESS: STREET 1: 460 POINT SAN BRUNO BLVD STREET 2: . CITY: SOUTH SAN FRANCISCO STATE: CA ZIP: 94080 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. 11) 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) July 7, 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 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) 65.2% 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"). 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, par value $.02 per share (the "Redeemable Common Stock") of the Company was automatically converted into one share of Common Stock of 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 or its predecessor Redeemable Common Stock were acquired by any of the Reporting Persons between May 25, 1995, on which date Amendment 10 to the Schedule 13D was filed, and July 7, 1995. Item 4. Purpose of Transaction On July 7, 1995, Purchaser, HLR (U.S.) II, Inc., a wholly-owned subsidiary of Purchaser, and the Company entered into an Amendment Agreement (the "Agreement"), which effects certain amendments to the Agreement and Plan of Merger (the "Merger Agreement") among Purchaser, H.L.R. (U.S.) II, Inc. and the Company, dated as of May 23, 1995, and the exhibits thereto. A copy of the Agreement is attached hereto as Exhibit 7.6. On July 10, 1995, the Company issued a press release announcing certain amendments effected by the Agreement and the settlement of certain shareholder litigation arising in connection with the Merger Agreement. A copy of the press release is attached hereto as Exhibit 7.7. Each of the Agreement and the press release are incorporated herein by reference. Between May 25, 1995, on which date Amendment 10 to the Schedule 13D was filed, and July 7, 1995, the Reporting Persons did not purchase any shares of Common Stock or its predecessor Redeemable Common Stock. Subject to market conditions and other factors (including limits imposed by the Governance Agreement between Purchaser and the Company), the Purchaser expects that it or its affiliates may acquire additional 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 June 30, 1995, the Purchaser was the beneficial owner of 67,133,409 shares of Common Stock (100% of the Common Stock then outstanding) and 9,487,600 shares of Redeemable Common Stock (18.8% of the 50,447,727 shares of Redeemable Common Stock outstanding as of March 31, 1995 according to the Company's Form 10-Q for the quarter ended March 31, 1995 (the "10-Q")). 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 65.2% of the 117,581,136 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 July 7, 1995, and 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 July 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 July 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 or its predecessor Redeemable 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 7.6 Amendment Agreement among Roche Holdings, Inc., HLR (U.S.) II, Inc. and Genentech, Inc. dated July 7, 1995. Exhibit 7.7 Press Release issued July 10, 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: July 10, 1995 ROCHE HOLDINGS, INC. By /s/ Henri B. Meier --------------------------------- Name: Henri B. Meier Title: Vice President, Finance, Accounting SCHEDULE A Executive Officers and Directors(*) of Roche Holdings, Inc. The names of the Directors and the names and titles of the Executive Officers of Roche Holdings, Inc. and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of Roche Holding Ltd. Unless otherwise indicated, each occupation set forth opposite an individual's name refer to Roche Holding Ltd and each individual is a Swiss citizen. Present Principal Name, Business Address Occupation - ---------------------- ----------------- *Mr. Fritz Gerber Chairman of the Board, (President) President and Chief Executive Officer *Dr. Henri B. Meier Chief Financial Officer (Vice President and Treasurer) Peter N. Schiller Attorney-at-Law Hoffstots Lane Sands Point, New York 11050 (Secretary) SCHEDULE B Executive Officers and Directors(*) of Roche Finance Ltd The names of the Directors and the names and titles of the Executive Officers of Roche Finance Ltd and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of Roche Holding Ltd. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to Roche Holding Ltd and each individual is a Swiss citizen. Present Principal Name, Business Address Occupation - ---------------------- ----------------- *Mr. Fritz Gerber Chairman of the Board, (President) President and Chief Executive Officer *Dr. Andres F. Leuenberger Vice Chairman of the Board *Dr. Henri B. Meier Chief Financial Officer SCHEDULE C Executive Officers and Directors(*) of Roche Holding Ltd The names of the Directors and the names and titles of the Executive Officers of Roche Holding Ltd and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of Roche Holding Ltd. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to Roche Holding Ltd and each individual is a Swiss citizen, except that Dr. Drews is a German citizen and Mr. Belingard is a French citizen. Present Principal Name, Business Address Occupation - ---------------------- ----------------- *Mr. Fritz Gerber Chairman of the Board and Chief Executive Officer *Dr. Lukas Hoffmann Vice Chairman of the Board Le petit Essert Vice Chairman of WWF 1147 Montricher, Switzerland International (a nonprofit organization) *Dr. Andres F. Leuenberger Vice Chairman and Delegate of the Board *Dr. h.c. Paul Sacher Conductor and Founder of Haus auf Burg Paul Sacher Foundation Muensterplatz 4 (a nonprofit organization) 4051 Basel, Switzerland *Dr. Franz B. Humer General Manager, Head of Pharmaceuticals Division *Dr. Henri B. Meier 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 General Manager, Head of Pharma Stammhaus Basel, Group Informatics Mr. Jean-Luc Belingard General Manager, Head of Diagnostics Division Dr. Roland Bronnimann General Manager, Head of Vitamin and Fine Chemicals Division. Prof. Jurgen Drews General Manager, Head of Research and Development EX-7.6 2 CONFORMED COPY AGREEMENT (the "Amendment Agreement"), dated as of July 7, 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 (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 Marketing Agreement shall have been executed in substantially the form attached as Exhibit D 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"); and WHEREAS, the parties hereto have determined it is in the best interests of their respective stockholders to effect certain amendments to the Merger Agreement, the New Governance Agreement, the Marketing Agreement 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 Article I or elsewhere 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 Merger Agreement. Section 7.1(c) of the Merger Agreement is hereby amended and restated to read in its entirety as follows: "(c) By either the Company or Roche if the Effective Time has not occurred on or prior to October 31, 1995." 2.2. Amendment of Marketing Agreement. Section 3(b) of Article VII of the Marketing Agreement is hereby amended and restated to read in its entirety as follows: "Within ninety (90) days of the Effective Date of this Agreement, information regarding the real estate property leases of Genentech Canada Ltd., Genentech Europe Limited and Genentech Ltd. (Japan) shall be made available to ROCHE and such leases shall promptly be assumed by ROCHE as well as any other liabilities of these entities which have arisen in the ordinary course of business except for (i) a line of credit to Genentech Canada Ltd. used to purchase Activase rights and (ii) severance costs relating to not more than six (6) employees of Genentech Europe Limited." 2.3. Amendment of New Article THIRD. (a) The first sentence of Section (c)(ii) of the New Article THIRD is hereby amended and restated to read in its entirety as follows: "Subject to the provisions of the Amended and Restated Governance Agreement dated as of , 1995* between Roche Holdings, Inc., a Delaware corporation ("Roche"), and the Company, as such agreement may be amended from time to time (such agreement, as amended from time to time, the "Governance Agreement"), the Special Common Stock may, and, where the Governance Agreement so requires, shall be redeemed, in whole but not in part (the "Call") during the periods and at the prices and upon the terms and conditions set forth below." - ----------------- * To be appropriately completed prior to filing. (b) Section (c)(ii)(C) of the New Article THIRD is hereby amended by inserting the following language immediately prior to the first sentence of such section: "Upon "final Court approval of the Settlement", as defined in the Memorandum of Understanding dated July 7, 1995 relating to the consolidated action pending in the Delaware Chancery Court entitled In re Genentech, Inc. Shareholders Litigation, Cons. C.A. No. 14265 (or in any superseding stipulation of settlement accepted by the corporation and the Roche defendants in that action), each Redemption Price set forth in paragraph (A) above shall be increased by $0.50 per share of Special Common Stock. If such "final Court approval of Settlement" occurs after payment of the Redemption Price pursuant to the Call, such $0.50 increase shall be promptly thereafter paid by the corporation pursuant to section (C)(IV)(A)(1) of this Article THIRD for each share of Special Common Stock for which payment of the Redemption Price had previously been paid pursuant to such Call." (c) The second sentence of Section (c)(ii)(C) of the New Article THIRD is hereby amended and restated to read in its entirety as follows: "If the corporation shall at any time after the initial issuance of any Special Common Stock declare or pay any dividend on Special Common Stock in cash, securities or other property other than Special Common Stock, the Redemption Prices in effect for each period after such event shall each be reduced by the per share value of such dividend multiplied by a fraction the numerator of which equals the Redemption Price which would otherwise be in effect for such period and the denominator of which equals the Redemption Price in effect at the time of such event; provided that such adjustment shall not be made with respect to cash dividends determined by the majority of the Board of Directors to be in the ordinary course and approved by the majority of the Investor Directors (as defined in the Governance Agreement.)" 2.4. Amendment of New Governance Agreement. (a) The last sentence of Section 1.01(a) of the New Governance Agreement is hereby deleted and replaced with the following: "The calculation of the Redemption Price per share of Special Common Stock, which shall be made in accordance with paragraphs (A) and (C) of Article THIRD, Section (c)(ii) of the Certificate of Incorporation, shall be verified with Roche prior to the mailing of such notice. In the event that additional amounts become payable, pursuant to the second sentence of Article THIRD, Section (c)(ii)(C) of the Certificate of Incorporation in connection with a redemption of the Special Common Stock pursuant to this Section 1.01(a), Roche shall promptly make available to the Depositary the aggregate additional amount required to be paid pursuant to such second sentence of Article THIRD, Section (c)(ii)(C)." 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. 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 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 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/John P. McLaughlin ---------------------------------- Name: John P. McLaughlin Title: Senior Vice President and Secretary ROCHE HOLDINGS, INC. By: /s/Fritz Gerber ---------------------------------- Name: Fritz Gerber Title: President HLR (U.S.) II, INC. By: /s/Felix Amrein ---------------------------------- Name: Felix Amrein Title: Vice President EX-7.7 3 NEWS RELEASE Genentech, Inc. Media Contact: Laura Leber (415) 225-5759 Investor Contact: Lisa Brock (415) 225-1034 GENENTECH BOARD NAMES LEVINSON PRESIDENT & CEO; ROCHE MERGER AGREEMENT ENHANCED, STOCKHOLDER SUITS SETTLED --Head of R&D assumes top post after Board accepts resignation of Kirk Raab-- SOUTH SAN FRANCISCO, Calif., July 10, 1995 - Genentech, Inc. (NYSE: GNE) today announced the appointment of Arthur D. Levinson, Ph.D. as the company's new president and chief executive officer. Levinson also was named to the Board of Directors. The Board of Directors made the appointment July 7, 1995 after requesting and accepting the resignation of G. Kirk Raab from the post the same day. Genentech and Roche also announced that they have an agreement in principle to settle the consolidated class action lawsuits that were filed against Genentech, Genentech's Directors, and Roche following the announcement of the proposed transaction between the two companies announced May 1. The agreement was reached in return for changes in the terms of the proposed transaction between companies, including an increase in the call prices by 50 cents per share. The "put" price of $60 per share remains unchanged. The leadership change for Genentech follows an inquiry by the Board of Directors. At the June 22 meeting of the Board, it was disclosed that during the period of negotiations with Roche concerning the proposed transaction, Mr. Raab, at his request, discussed with Roche a guarantee by Roche of a $2 million personal bank loan to Mr. Raab. Although no guarantee was provided, the Board decided to appoint a special committee of four independent directors to review the fairness of the terms of the proposed transaction with Roche, to review Mr. Raab's conduct, and to supervise settlement discussions with lawyers representing plaintiffs. Following its extensive review of Mr. Raab's leadership over the past few years, the special committee recommended that the Board request and accept Raab's resignation. The Board unanimously followed that recommendation. The Board did note, however, that Mr. Raab had made significant contributions to the company during his ten years of service, first as chief operating officer and president and then as president and CEO. In the last five years, the company's revenues have almost doubled, earnings have almost tripled, and twice as many drugs are in Phase III development. After reviewing the proposed merger transaction again, the non-Roche directors, having previously received a fairness opinion from Lehman Brothers and after receiving a second fairness opinion from Morgan Stanley, unanimously concluded that the transaction with Roche is fair, and should continue to be recommended to Genentech stockholders for their approval. In announcing Levinson's appointment, Robert A. Swanson, Chairman of the Board of Directors of Genentech, said: "As one of the very early members of the Genentech team, Art not only knows Genentech's culture, he is part of it and a significant driving force of it. Under his leadership, the product pipeline has become one of the richest in the biotechnology industry. The Board of Directors is confident that with his new leadership as CEO, and with the full support of Genentech's very strong management team, the company will fully capitalize on the promise of that pipeline." Levinson, 45, joined Genentech in 1980 as a senior scientist and became a vice president in 1989. He was named a Sr. Vice President in 1993. Levinson has a doctorate in biochemistry from Princeton and his undergraduate degree from the University of Washington. "The opportunity to lead Genentech is most exciting," said Levinson. "I bring a passion for our science and a strong commitment to the highest business standards. Working with a very strong management team, I look forward to helping Genentech realize its maximum growth potential." The proposed transaction announced May 1st gives Roche the right to cause the redemption of Genentech stock at a predetermined price that increases quarterly through the quarter beginning April 1, 1999. The same transaction gives Genentech stockholders the right to "put" (cause Genentech to redeem) some or all of their stock at $60/share within a 30 business-day period commencing July 1, 1999. In settlement of lawsuits filed, Genentech and Roche agreed to increase the redemption prices for Genentech's stock as outlined in the initial transaction by 50 cents per share. The put price of the new proposed transaction remains as in the original transaction at $60/share. Initially, the transaction provided that the price at which Roche could cause Genentech's stock to be redeemed be $61.25 per share beginning in the third quarter of 1995 and increasing by $1.25 per share per quarter for the next seven quarters and $1.50 per share per quarter for the next eight quarters with a final redemption price of $82.00 per share in the second quarter of 1999. The new redemption prices begin at $61.75 per share and increases at the same rate noted above with a final redemption price of $82.50. A table of the previous and new redemption prices is attached. The increase in the call prices and the overall settlement are subject to the approval of the Delaware Chancery Court. Absent final court approval, the call prices will remain unchanged. In addition, the parties extended the September 30, 1995 cut off date for stockholder approval of the proposed transaction to October 31, 1995. The proposed transaction must be approved by a majority of non-Roche stockholders. The Company is in the process of responding to SEC comments on its preliminary proxy statement. When the SEC review process is completed, the proxy will be mailed to shareholders and a vote scheduled, probably in early September. Genentech, Inc. is a leading biotechnology company that discovers, develops, manufactures and markets human pharmaceuticals for significant medical needs. Ten of the currently marketed biotechnology products stem from Genentech research, five of which are marketed directly by Genentech. The company has six products in Phase III development. Genentech is headquartered in South San Francisco, California, and is traded on the New York and Pacific Stock Exchanges under the symbol GNE. # # # GENENTECH, INC. CALL AND PUT PRICES Call Period Old Price New Price - ----------- --------- --------- July 1, 1995 to September 30, 1995 $61.25 $61.75 October 1, 1995 to December 31, 1995 $62.50 $63.00 January 1, 1996 to March 31, 1996 $63.75 $64.25 April 1, 1996 to June 30, 1996 $65.00 $65.50 July 1, 1996 to September 30, 1996 $66.25 $66.75 October 1, 1996 to December 31, 1996 $67.50 $68.00 January 1, 1997 to March 31, 1997 $68.75 $69.25 April 1, 1997 to June 30, 1997 $70.00 $70.50 July 1, 1997 to September 30, 1997 $71.50 $72.00 October 1, 1997 to December 31, 1997 $73.00 $73.50 January 1, 1998 to March 31, 1998 $74.50 $75.00 April 1, 1998 to June 30, 1998 $76.00 $76.50 July 1, 1998 to September 30, 1998 $77.50 $78.00 October 1, 1998 to December 31, 1998 $79.00 $79.50 January 1, 1999 to March 31, 1999 $80.50 $81.00 April 1, 1999 to June 30, 1999 $82.00 $82.50 Put Period - ---------- 30 business days after June 30, 1999 $60.00 $60.00 (unchanged) -----END PRIVACY-ENHANCED MESSAGE-----