Unassociated Document
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
________________
Amendment
No. 1
to
SCHEDULE TO
(Rule
14d-100)
Tender
Offer Statement under Section 14(d)(1) or 13(e)(1) of
the
Securities Exchange Act of 1934
VENTANA
MEDICAL SYSTEMS, INC.
(Name
of Subject Company)
ROCKET
ACQUISITION CORPORATION
ROCHE
HOLDING LTD
(Names
of Filing Persons — Offeror)
Common
Stock, Par Value $0.001 Per Share
(including
the associated preferred stock purchase rights)
(Title
of Class of Securities)
________________
92276H106
(Cusip
Number of Class of Securities)
Beat
Kraehenmann
Roche
Holding Ltd
Grenzacherstrasse
124
CH-4070
Basel
Switzerland
Telephone:
+41-61-688-1111
(Name,
Address and Telephone Number of Person Authorized to
ReceiveNotices
and
Communications on Behalf of Filing Persons)
Copies
to:
Christopher
Mayer
Davis
Polk & Wardwell
450
Lexington Avenue
New
York, New York 10017
Telephone:
(212) 450-4000
CALCULATION
OF FILING FEE
Transaction
Valuation*
|
Amount
of Filing Fee**
|
$2,978,902,500
|
$91,452.31
|
*
|
Estimated
for purposes of calculating the filing fee only. This amount assumes
the
purchase of all 33,668,000 shares of common stock of Ventana Medical
Systems, Inc. outstanding as of March 31, 2007, all options outstanding
as
of March 31, 2007 with respect to 6,022,000 shares of common stock
of
Ventana, and all restricted stock and restricted stock units outstanding
as of March 31, 2007 with respect to 28,700 shares of common stock
of
Ventana. The number of outstanding shares, options, and restricted
stock
and restricted stock units is contained in Ventana’s Quarterly Report on
Form 10-Q for the quarter ended March 31,
2007.
|
**
|
The
amount of the filing fee is
calculated in accordance with Rule 0-11 of the Securities Exchange
Act of
1934, as amended, by multiplying the transaction valuation by
0.0000307.
|
R
|
Check
box if any part of the fee
is offset as provided by Rule 0-11(a)(2) and identify the filing
with
which the offsetting fee was previously paid. Identify the previous
filing
by registration statement number, or the Form or Schedule and the
date of
its filing.
|
Amount
Previously Paid:
|
$91,452.31
|
|
Filing
Party:
|
Roche
Holding Ltd
|
Form
or Registration No.:
|
SC
TO-T
|
|
Date
Filed:
|
June
27, 2007
|
£
|
Check
the box if the filing
relates solely to preliminary communications made before the commencement
of a tender offer.
|
Check
the
appropriate boxes below to designate any transactions to which the statement
relates:
R
|
third-party
tender offer subject
to Rule 14d-1.
|
£
|
issuer
tender offer subject to
Rule 13e-4.
|
£
|
going-private
transaction subject
to Rule 13e-3.
|
£
|
amendment
to Schedule 13D under
Rule 13d-2.
|
Check
the following box if the filing is
a final amendment reporting the results of the tender
offer. £
This
Amendment No. 1 to Tender Offer Statement on Schedule TO (the “Schedule
TO”) amends and supplements the statement originally filed on June 27,
2007 by Roche Holding Ltd, a joint stock company organized under the laws of
Switzerland (“Parent”), and Rocket Acquisition Corporation (the “Purchaser”), a
Delaware corporation and an indirect wholly owned subsidiary of Parent. This
Schedule TO relates to the offer by the Purchaser to purchase all outstanding
shares of common stock, par value $0.001 per share (together with the associated
preferred stock purchase rights, the “Shares”), of Ventana
Medical Systems, Inc., a Delaware corporation (the “Company”),
at $75.00 per Share, net to the seller in cash, without interest and less
applicable withholding taxes, upon the terms and subject to the conditions
set
forth in the Offer to Purchase, dated June 27, 2007 (the “Offer to
Purchase”), and in the related Letter of Transmittal (which, together
with any amendments or supplements thereto, collectively constitute the
“Offer”).
The
information set forth in the Offer to Purchase, including all schedules thereto,
and the related Letter of Transmittal is expressly incorporated herein by
reference with respect to all of the items of this Schedule TO, except as
otherwise set forth below.
All
capitalized terms used in this Amendment No. 1 without definition have the
meanings ascribed to them in the Schedule TO.
Item
10. Financial Statements.
Not
applicable.
Item
11. Additional Information
On
June
29, 2007, Roche Holdings, Inc. and the Purchaser filed a Verified Complaint
for
Declaratory and Injunctive Relief in the Court of Chancery of the State of
Delaware against the Company and the members of the board of directors of the
Company. The Complaint alleges that the defendant directors have breached their
fiduciary duties to the shareholders of the Company in connection with the
Offer. The Complaint seeks declaratory relief that the defendant
directors have breached their fiduciary duties and injunctive relief compelling
the defendants to redeem the Rights or to render the Rights Agreement
inapplicable to the Offer and the Merger and to approve the Offer and Merger
for
purposes of Section 203 of the Delaware General Corporation Law and enjoining
defendants from adopting any measure that has the effect of impeding, thwarting,
frustrating, or interfering with the Offer or the Merger. A copy of the
Complaint is filed herewith as Exhibit (a)(5)(ii).
On
June
29, 2007, the Purchaser filed a Complaint for Declaratory Judgment and
Injunctive Relief in the United States District Court for the District of
Arizona against the Company and the Attorney General of the State of Arizona
alleging that sections 10-2721 through 10-2727 and sections 10-2741 through
10-2743 of the Arizona Revised Statutes are unconstitutional insofar as they
purport to regulate certain target corporations (and tender offers for such
target corporations), such as the Company, which are incorporated under the
laws
of states other than the State of Arizona. The Complaint seeks a declaration
that these sections of the Arizona Revised Statutes are unconstitutional as
applied to corporations incorporated under the laws of states other than the
State of Arizona and a preliminary and permanent injunction enjoining the
defendants from taking action to apply or enforce these sections of the Arizona
Revised Statutes with respect to the Company and/or the Offer. Also on June
29,
2007, the Purchaser filed a Motion for Preliminary Injunction seeking a
preliminary injunction precluding the enforcement of these provisions of the
Arizona Revised Statutes with respect to the Company and/or the Offer. A copy
of
the Complaint is filed herewith as Exhibit (a)(5)(iii).
Item
12. Exhibits.
Exhibit
No.
|
Description
|
(a)(1)(i)
|
Offer
to Purchase dated June 27, 2007.*
|
(a)(1)(ii)
|
Letter
of Transmittal.*
|
(a)(1)(iii)
|
Notice
of Guaranteed Delivery.*
|
(a)(1)(iv)
|
Letter
to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.*
|
(a)(1)(v)
|
Letter
to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.*
|
(a)(1)(vi)
|
Guidelines
for Certification of Taxpayer Identification Number on Substitute
Form
W-9.*
|
(a)(1)(vii)
|
Summary
Advertisement dated June 27, 2007.*
|
(a)(5)(i)
|
Press
Release issued by Roche Holding Ltd, dated June 25,
2007.*
|
(a)(5)(ii)
|
Complaint
filed in the Court of Chancery of the State of Delaware in and for
New
Castle County on June 29, 2007.
|
(a)(5)(iii)
|
Complaint
filed in the United States District Court for the District of Arizona
on
June 29, 2007.
|
(b)
|
Not
applicable.
|
(c)
|
Not
applicable.
|
(d)
|
Not
applicable.
|
(f)
|
Not
applicable.
|
(g)
|
Not
applicable.
|
(h)
|
Not
applicable.
|
________________
*
Previously filed
SIGNATURES
After
due
inquiry and to the best knowledge and belief of the undersigned, each of the
undersigned certify that the information set forth in this statement is true,
complete and correct.
Date:
June
29, 2007
|
ROCKET
ACQUISITION CORPORATION |
|
|
|
|
|
By: |
/s/
Beat Kraehenmann |
|
|
|
|
|
Name: |
Beat
Kraehenmann |
|
|
Title: |
Secretary |
|
ROCHE
HOLDING LTD |
|
|
|
|
|
By: |
/s/
Bruno Maier |
|
|
|
|
|
Name: |
Bruno
Maier |
|
|
Title: |
Authorized
Signatory |
|
|
|
|
|
By: |
/s/
Beat Kraehenmann |
|
|
|
|
|
Name: |
Beat
Kraehenmann |
|
|
Title: |
Authorized
Signatory |
EXHIBIT INDEX
Exhibit
No.
|
Description
|
(a)(1)(i)
|
Offer
to Purchase dated June 27, 2007*
|
(a)(1)(ii)
|
Letter
of Transmittal*
|
(a)(1)(iii)
|
Notice
of Guaranteed Delivery*
|
(a)(1)(iv)
|
Letter
to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees*
|
(a)(1)(v)
|
Letter
to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees*
|
(a)(1)(vi)
|
Guidelines
for Certification of Taxpayer Identification Number on Substitute
Form
W-9*
|
(a)(1)(vii)
|
Summary
Advertisement dated June 27, 2007*
|
(a)(5)(i)
|
Press
Release issued by Roche Holding Ltd, dated June 25,
2007*
|
(a)(5)(ii)
|
Complaint
filed in the Court of Chancery of the State of Delaware in and for
New
Castle County on June 29, 2007
|
(a)(5)(iii)
|
Complaint
filed in the United States District Court for the District of Arizona
on
June 29, 2007
|
(b)
|
Not
applicable
|
(c)
|
Not
applicable
|
(d)
|
Not
applicable
|
(f)
|
Not
applicable
|
(g)
|
Not
applicable
|
(h)
|
Not
applicable
|
________________
*
Previously filed