UNITED STATES SECURITIES AND EXCHANGE COMMISSION 

Washington, D.C. 20549

________________

 

SCHEDULE TO

Tender Offer Statement Under Section 14(d)(1) or 13(e)(1) of

the Securities Exchange Act of 1934

(Amendment No. 3)

 

FOUNDATION MEDICINE, INC.

(Name of Subject Company)

 

062018 Merger Subsidiary, Inc.

(Offeror)

A Wholly Owned Subsidiary of

 

ROCHE HOLDINGS, INC.

(Parent of Offeror)

(Names of Filing Persons – Offeror)

 

Common Stock, Par Value $0.0001 Per Share

(Title of Class of Securities)

________________

 

350465100

(Cusip Number of Class of Securities)

 

Dr. Sean A. Johnston

Roche Holdings, Inc.

1 DNA, MS #24,

South San Francisco, CA 94080

Telephone: (650) 225-1000

(Name, Address and Telephone Number of Person Authorized to Receive Notices

and Communications on Behalf of Filing Persons)

 

Copies to:

 

Marc O. Williams, Esq.

Brian Wolfe, Esq.

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, New York 10017

Telephone: (212) 450-4000

 

CALCULATION OF FILING FEE

Transaction Valuation* Amount of Filing Fee**
$2,256,908,814.14 $280,985.15
 
*

A Estimated solely for purposes of calculating the filing fee pursuant to Rule 0-11(d) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Transaction Valuation was calculated by adding (i) the product of (A) 16,093,897, which is the difference between 37,113,008, the number of shares (“Shares”) of common stock of Foundation Medicine, Inc. outstanding as of June 18, 2018, and 21,019,111, the number of Shares beneficially owned by Roche Holding Ltd or its affiliates and (B) $137.00, which is the per Share tender offer price, and (ii) the product of (A) 440,089, which is the number of Shares subject to “in-the-money” options outstanding as of March 31, 2018, and (B) $118.26, which is the difference between the $137.00 per Share tender offer price and $18.74, the average weighted exercise price of such options. The number of Shares subject to “in-the-money” options and the average weighted exercise price for such options is contained in Foundation Medicine, Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2018.

 

The foregoing figures have been provided by Foundation Medicine, Inc. to the Offeror and Parent of Offeror and are as of June 29, 2018, the most recent practicable date.

 

** The amount of the filing fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act, by multiplying the Transaction Valuation by 0.0001245.
   

þCheck 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: $280,985.15   Filing Party: Roche Holdings, Inc.
Form or Registration No.: Schedule TO   Date Filed: July 2, 2018

 

o

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:

þthird-party tender offer subject to Rule 14d-1.

oissuer tender offer subject to Rule 13e-4.

þgoing-private transaction subject to Rule 13e-3.

oamendment 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. þ

 

 
 
 

This Amendment No. 3 to the Tender Offer Statement on Schedule TO amends and supplements the Schedule TO filed with the Securities and Exchange Commission (the “SEC”) on July 2, 2018, as amended by Amendment No. 1 filed with the SEC on July 2, 2018 and Amendment No. 2 filed with the SEC on July 17, 2018 (the “Schedule TO”) and relates to the offer by 062018 Merger Subsidiary, Inc. (“Purchaser”), a Delaware corporation and a wholly owned subsidiary of Roche Holdings, Inc. (“Holdings”), a Delaware corporation, to purchase all outstanding shares of common stock, par value $0.0001 per share of Foundation Medicine, Inc. (“FMI”), a Delaware corporation, not owned by Roche Holding Ltd (“Roche”) and its affiliates at $137.00 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 July 2, 2018, and in the related Letter of Transmittal, copies of which are incorporated by reference to Exhibits (a)(1)(i) and (a)(1)(ii), respectively, of the Schedule TO (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, is hereby expressly incorporated herein by reference in response to all of the items of this Schedule TO, including, without limitation, all of the information required by Schedule 13E-3 that is not included in or covered by the items in Schedule TO, and is supplemented by the information specifically provided herein, except as otherwise set forth below.

 

Items 1 through 9, Item 11 and Item 13.

 

Items 1 through 9, Item 11 and Item 13 of the Schedule TO are hereby amended and supplemented as follows:

 

The Offer and withdrawal rights expired at 12:00 midnight, New York City time, at the end of the day on Monday, July 30, 2018. The Depositary for the Offer has indicated that a total of 12,535,376 Shares were validly tendered and not validly withdrawn pursuant to the Offer as of the Expiration Date, representing approximately 77.3% of the outstanding Shares not owned by Roche and its affiliates. In addition, Notices of Guaranteed Delivery have been delivered for 1,342,573 Shares, representing approximately 8.3% of the outstanding Shares not owned by Roche and its affiliates. The number of Shares tendered (excluding Shares presented pursuant to Notices of Guaranteed Delivery for which certificates were not yet delivered) satisfies the Minimum Condition, and all Shares that were validly tendered and not validly withdrawn pursuant to the Offer have been accepted for payment by Purchaser.

 

On July 31, 2018, Holdings completed its acquisition of FMI pursuant to the terms of the Merger Agreement. On such date, Purchaser merged with and into FMI in accordance with Section 251(h) of the DGCL, with FMI surviving as a wholly owned subsidiary of Holdings. Pursuant to the Merger Agreement, at the Effective Time, each Share issued and outstanding immediately prior to the Effective Time was converted into the right to receive $137.00 per Share in cash, without interest but subject to any required withholding of taxes (which is the same amount per Share paid in the Offer) other than (i) treasury Shares held by FMI and any Shares owned by Roche or any direct or indirect wholly owned subsidiary of Roche or FMI, and (ii) Shares held by any person who was entitled to and has properly demanded statutory appraisal of his or her Shares. Instructions outlining the steps to be taken to obtain the Merger Consideration will be mailed to FMI stockholders who did not tender their Shares in the Offer.

 

Promptly following consummation of the Merger, Holdings intends to cause all Shares to be delisted from NASDAQ and deregistered under the Exchange Act.

 

Item 12. Exhibits.

 

Item 12 of the Schedule TO is hereby amended and supplemented with the following:

 

(a)(5)(vii) Press Release issued by Roche on July 31, 2018

 

 

 

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: July 31, 2018

 

  062018 MERGER SUBSIDIARY, INC.  
       
  By:

/s/ Bruce Resnick

  
    Name: Bruce Resnick  
    Title: President  
         
  ROCHE HOLDINGS, INC.  
       
  By:

/s/ Bruce Resnick		  
    Name: Bruce Resnick  
    Title: Vice President  

 

 

 

EXHIBIT INDEX

 

Exhibit No.

  

Description

(a)(1)(i)*   Offer to Purchase, dated as of July 2, 2018.
     
(a)(1)(ii)*   Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on IRS Form W-9).
     
(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)*   Summary Advertisement as published in the Wall Street Journal on July 2, 2018.
     
(a)(5)(i)*   Joint Media Release issued by Roche Holdings, Inc., and Foundation Medicine, Inc. dated June 19, 2018. (incorporated by reference to Exhibit 99.1 of the Foundation Medicine, Inc. Current Report on Form 8-K (File No. 001-36086) filed with the Commission on June 19, 2018).
     
(a)(5)(ii)*   Email sent to FMI employees from Troy Cox, CEO of FMI, dated June 19, 2018. (incorporated by reference to the Foundation Medicine, Inc. Solicitation/Recommendation Statement on Form 14D-9 (File No. 005-87922) filed with the Commission on June 19, 2018).
     
(a)(5)(iii)*   Letter sent to Biopharma Partner, dated June 19, 2018. (incorporated by reference to the Foundation Medicine, Inc. Solicitation/Recommendation Statement on Form 14D-9 (File No. 005-87922) filed with the Commission on June 19, 2018).
     
(a)(5)(iv)*   Foundation Medicine, Inc. Current Report on Form 8-K dated June 18, 2018 (incorporated by reference to the Foundation Medicine, Inc. Current Report on Form 8-K (File No. 001-36086) filed with the Commission on June 19, 2018).
     
(a)(5)(v)*   Foundation Medicine, Inc. Current Report on Form 8-K dated June 21, 2018 (incorporated by reference to the Foundation Medicine, Inc. Current Report on Form 8-K (File No. 001-36086) filed with the Commission on June 21, 2018).
     
(a)(5)(vi)*   Roche Press Release announcing the commencement of the Offer, dated as of July 2, 2018 (incorporated by reference to Exhibit (a)(5)(vi) of the Roche Holdings, Inc. Schedule TO-T/A filed with the Commission on July 2, 2018).
     
(a)(5)(vii)   Press Release issued by Roche Holding Ltd on July 31, 2018.
     
(b)   Not applicable.
     
(c)   Not applicable.
     
(d)(1)*   Agreement and Plan of Merger, dated as of June 18, 2018, by and among Foundation Medicine, Inc., Roche Holdings, Inc. and 062018 Merger Subsidiary, Inc. (incorporated by reference to Exhibit 2.1 of the Foundation Medicine, Inc. Current Report on Form 8-K (File No. 001-36086) filed with the Commission on June 19, 2018).
     
(d)(2)*   Investor Rights Agreement dated January 11, 2015, by and between Foundation Medicine, Inc. and Roche Holdings, Inc. (incorporated by reference to Exhibit 4.1 of the Foundation Medicine, Inc. Current Report on Form 8-K (File No. 001-36086) filed with the Commission on January 12, 2015).
     
(d)(3)*   Credit Facility Agreement dated August 2, 2016, by and between Foundation Medicine, Inc. and Roche Finance Ltd (incorporated by reference to Exhibit 10.1 of the Foundation Medicine, Inc. Current Report on Form 8-K (File No. 001-36086) filed with the Commission on August 2, 2016).
     
(d)(4)*   Amendment Letter Agreement dated July 31, 2017, by and between Foundation Medicine, Inc. and Roche Finance Ltd (incorporated by reference to Exhibit 10.1 of the Foundation Medicine, Inc. Current Report on Form 8-K (File No. 001-36086) filed with the Commission on August 1, 2017).
 
 

Exhibit No.

  

Description

(d)(5)*   Transaction Agreement, dated January 11, 2015, by and between Foundation Medicine, Inc. and Roche Holdings, Inc. (incorporated by reference to Exhibit 2.1 of the Foundation Medicine, Inc. Current Report filed on Form 8-K (File No. 001-36086) filed with the Commission on January 12, 2015).
     
(d)(6)*   Collaboration Agreement, dated January 11, 2015, by and among Foundation Medicine, Inc., F. Hoffman-La Roche Ltd and Hoffman La-Roche Inc. (incorporated by reference to Exhibit 10.2 of the Foundation Medicine, Inc. Current Report on Form 8-K/A (File No. 001-36086) filed with the Commission on February 2, 2015).
     
(d)(7)*   First Amendment to Collaboration Agreement, by and among Foundation Medicine, Inc., F. Hoffman-La Roche Ltd and Hoffman-La Roche Inc., dated April 6, 2016 (incorporated by reference to Exhibit 10.2 of Foundation Medicine, Inc. Form 10-Q (File No. 001-36086) filed with the Commission on August 3, 2016).
     
(d)(8)*   Second Amendment to Collaboration Agreement, by and among Foundation Medicine, Inc., F. Hoffman-La Roche Ltd and Hoffman-La Roche Inc., dated June 16, 2016 (incorporated by reference to Exhibit 10.3 of the Foundation Medicine, Inc. Form 10-Q (File No. 001-36086) filed with the Commission on August 3, 2016).
     
(d)(9)*   Third Amendment to Collaboration Agreement, by and among Foundation Medicine, Inc., F. Hoffmann-La Roche Ltd and Hoffman-La Roche Inc., dated July 25, 2016 (incorporated by reference to Exhibit 10.2 of the Foundation Medicine, Inc. Form 10-Q (File No. 001-36086) filed with the Commission on November 2, 2016).
     
(d)(10)*   Fourth Amendment to Collaboration Agreement, by and among Foundation Medicine, Inc., F. Hoffmann-La Roche Ltd and Hoffman-La Roche Inc., dated December 20, 2016 (incorporated by reference to Exhibit 10.24 of the Foundation Medicine, Inc. Form 10-K (File No. 001-36086) filed with the Commission on March 3, 2017).
     
(d)(11)*   Fifth Amendment to Collaboration Agreement, by and among Foundation Medicine, Inc., F. Hoffmann-La Roche Ltd and Hoffman-La Roche Inc., dated September 8, 2017 (incorporated by reference to Exhibit 10.1 of the Foundation Medicine, Inc. Form 8-K (File No. 001-36086) filed with the Commission on September 13, 2017).
     
(d)(12)*   Sixth Amendment to Collaboration Agreement, by and among Foundation Medicine, Inc., F. Hoffmann-La Roche Ltd and Hoffman-La Roche Inc., dated November 1, 2017 (incorporated by reference to Exhibit 10.27 of the Foundation Medicine, Inc. Form 10-K (File No. 001-36086) filed with the Commission on March 7, 2018).
     
(d)(13)*   US Education Collaboration Agreement, by and between Foundation Medicine, Inc. and Genentech, dated January 11, 2015 (incorporated by reference to Exhibit 10.4 of the Foundation Medicine, Inc. Form 8-K/A (File No. 001-36086) filed with the Commission on August 24, 2015).
     
(d)(14)*   Amended and Restated Ex-U.S. Commercialization Agreement by and between Foundation Medicine, Inc. and F. Hoffmann-La Roche Ltd, dated February 28, 2018 (incorporated herein by reference to Exhibit 10.1 of the Foundation Medicine, Inc. Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2018 (File No. 001-36086) filed with the Commission on May, 2 2018).
     
(d)(15)*   Master IVD Collaboration Agreement, by and among the Foundation Medicine, Inc., Roche Basel and Roche Molecular Systems, Inc., dated April 6, 2016 (incorporated by reference to Exhibit 10.5 of the Foundation Medicine, Inc. Form 10-Q/A (File No. 001-36086) filed with the Commission on November 16, 2016).
     
(d)(16)*   Tax Sharing Agreement, by and between Foundation Medicine, Inc., and Roche Holdings, Inc., dated January 11, 2015 (incorporated by reference to Exhibit 10.1 of the Foundation Medicine, Inc. Form 8-K (File No. 001-36086) filed with the Commission on January 12, 2015).
     
(d)(17)*   Waiver and Consent by and between Foundation Medicine, Inc. and Roche Holdings, Inc., dated January 5, 2017 (incorporated by reference to Exhibit 10.4 of the Foundation Medicine, Inc. Form 8-K (File No. 001-36086) filed with the Commission on January 6, 2017).
   
     
 
 

Exhibit No.

  

Description

(e)   Not applicable.
     
(f)*   Section 262 of the Delaware General Corporation Law (included as Schedule II to the Offer to Purchase filed previously as Exhibit (a)(1)(i)).
     
(g)   Not applicable.
     
(h)   Not applicable.

  

 

*Previously filed