UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Amendment No. 4)
SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
Foundation Medicine, Inc.
(Name of Subject Company)
Foundation Medicine, Inc.
(Names of Persons Filing Statement)
COMMON STOCK, PAR VALUE $0.0001 PER SHARE
(Title of Class of Securities)
350465100
(CUSIP Number of Class of Securities)
Michael J. Pellini, M.D.
President and Chief Executive Officer
Foundation Medicine, Inc.
150 Second Street
Cambridge, MA 02141
(617) 418-2200
With copies to:
Stuart M. Cable, Esq. | Robert W. Hesslein, Esq. | |
Lisa R. Haddad, Esq. | Senior Vice President, General Counsel | |
Kingsley L. Taft, Esq. | and Secretary | |
Goodwin Procter LLP | Foundation Medicine, Inc. | |
Exchange Place | 150 Second Street | |
Boston, MA 02109 | Cambridge, MA 02141 | |
(617) 570-1000 | (617) 418-2200 |
(Name, address, and telephone numbers of person authorized to receive notices and communications
on behalf of the persons filing statement)
¨ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
This Amendment No. 4 to Schedule 14D-9 (this Amendment) amends and supplements the Schedule 14D-9 filed with the United States Securities and Exchange Commission (the SEC) on February 2, 2015 (as amended or supplemented from time to time, the Schedule 14D-9) by Foundation Medicine, Inc., a Delaware corporation (Foundation). The Schedule 14D-9 relates to the tender offer by Roche Holdings, Inc., a Delaware corporation (Offeror), to purchase up to 15,604,288 shares of Foundations common stock, par value $0.0001 per share (each, a Share), representing, when added to the Shares already owned by Roche Holding Ltd, an indirect parent of Offeror, and its subsidiaries, and together with the 5,000,000 newly issued Shares to be purchased by Offeror in consideration of Offerors primary investment in Foundation of $250 million in cash (the Issuance), up to approximately 56.3% of the outstanding Shares on a fully diluted basis at the closing of the Issuance, at a purchase price of $50.00 per Share, net to the seller in cash, without interest, less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated February 2, 2015 (as amended or supplemented from time to time, the Offer to Purchase), and in the related Letter of Transmittal (as amended or supplemented from time to time, the Letter of Transmittal, and which, together with the Offer to Purchase, constitutes the Offer). The Offer is described in a Tender Offer Statement on Schedule TO, as amended or supplemented from time to time, filed by Offeror with the SEC on February 2, 2015. The Offer to Purchase and the Letter of Transmittal are filed as Exhibits (a)(1) and (a)(2) to the Schedule 14D-9, respectively.
Capitalized terms used, but not otherwise defined, in this Amendment shall have the meanings ascribed to them in the Schedule 14D-9. The information in the Schedule 14D-9 is incorporated into this Amendment by reference to all applicable items in the Schedule 14D-9, except that such information is hereby amended and supplemented to the extent specifically provided herein.
ITEM 3. | PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS. |
Item 3 (Past Contacts, Transactions, Negotiations and Agreements) of the Schedule 14D-9 is hereby amended and supplemented by replacing the first paragraph in the section entitled Continuing Directors; Management with the following:
Under the terms of the Investor Rights Agreement, Foundation and Offeror agreed that, immediately following the Closing, the size of the Board of Directors would be increased to nine directors, consisting of: (a) three directors designated by Offeror, including Daniel ODay; (b) two of the current independent directors on the Board of Directors affiliated with the Existing VC Investors; (c) three additional independent directors, including current directors Evan Jones and David Schenkein, M.D., and a third director to be agreed upon by Foundation and Offeror prior to the Closing; and (d) Michael Pellini, M.D., the Chief Executive Officer of Foundation.
In advance of the anticipated Closing, Offeror identified its three director designees: Daniel ODay, Roche Pharmaceuticals Division, Chief Operating Officer and member of the Roche corporate executive committee; Sandra J. Horning, M.D., FACP, FASCO, Senior Vice President, Global Head, Product Development and Chief Medical Officer for Roche/Genentech; and Michael D. Varney, Ph.D., Head Genentech Research and Early Development. Certain biographical information of the Roche director designees is set forth below:
Daniel ODay
Mr. ODay currently serves as chief operating officer for Roches Pharmaceutical Division and a member of the Roche corporate executive committee. Mr. ODay has nearly three decades of operating expertise at Roche having served previously in various executive leadership positions for Roche Pharmaceuticals and Diagnostics. Previously, and most recently, Mr. ODay served as president and chief executive officer of Roche Molecular Diagnostics USA and subsequently, chief operating officer of Roche Diagnostics Division. Mr. ODay received a B.S. degree in biology from Georgetown University and a masters degree in business administration from Columbia University.
Sandra Horning, M.D.
Dr. Horning currently serves as global head, product development and chief medical officer for Roche and Genentech. She joined Roche in late 2009 as global head of oncology product development. She is an emerita professor of medicine (oncology) at Stanford University where she served as a tenured professor, practicing oncologist and investigator for more than two decades. Dr. Horning received B.A. and M.D. degrees at the University of Iowa. She completed a post-doctoral fellowship at Stanford University.
Michael D. Varney, Ph.D.
Dr. Varney currently serves as head of Genentechs Research and Early Development. He joined Genentech nearly a decade ago and since, he has held various executive roles in small molecule drug discovery and research. Previous to his tenure at Roche/Genentech, Dr. Varney served as vice president, drug discovery for Pfizers Global Research and Development organization. Dr. Varney previously spent nearly ten years with Agouron Pharmaceuticals, Inc., eventually serving as its corporate vice president and head of research. Dr. Varney received a B.S. degree in chemistry from the University of California, Los Angeles and a Ph.D. in organic synthesis from the California Institute of Technology. He completed a post-doctoral research fellowship at Columbia University.
In connection with the Closing, it is also anticipated that Alexis Borisy and Krishna Yeshwant, M.D. will remain on the Board as the two independent directors affiliated with the Existing VC Investors, and Brook Byers will step off the Board. It is also anticipated that Alexis Borisy will remain as Chairman of the Board of Directors following the Closing. The parties also agreed that the vacant seat on the Board will be filled following (and not prior to) the Closing with an independent director to be agreed upon by Foundation and Offeror.
ITEM 6. | INTEREST IN SECURITIES OF THE SUBJECT COMPANY. |
Item 6 (Interest in Securities of the Subject Company) of the Schedule 14D-9 is hereby amended and supplemented by adding the following to the bottom of the table set forth in Item 6:
Jason Ryan |
February 27, 2015 | 2,750 | $ | 0.08 | Shares acquired pursuant to exercise of stock option | |||||||
Jason Ryan |
February 27, 2015 | 6,750 | $ | 0.84 | Shares acquired pursuant to exercise of stock option | |||||||
Jason Ryan |
February 27, 2015 | 10,750 | $ | 4.16 | Shares acquired pursuant to exercise of stock option | |||||||
Jason Ryan |
February 27, 2015 | 4,750 | $ | 7.12 | Shares acquired pursuant to exercise of stock option | |||||||
Jason Ryan |
February 27, 2015 | 25,000 | $ | 47.6106 | (1) | Sale of stock | ||||||
Robert W. Hesslein |
March 2, 2015 | 10,934 | $ | 4.16 | Shares acquired pursuant to exercise of stock option* | |||||||
Robert W. Hesslein |
March 2, 2015 | 3,125 | $ | 7.12 | Shares acquired pursuant to exercise of stock option* | |||||||
Robert W. Hesslein |
March 2, 2015 | 1,424 | $ | 48.35 | Sale of stock in a sell-to-cover transaction to cover the exercise price of stock options | |||||||
Steven J. Kafka |
March 3, 2015 | 20,656 | $ | 4.16 | Shares acquired pursuant to exercise of stock option | |||||||
Steven J. Kafka |
March 3, 2015 | 20,656 | $ | 47.6834 | (1) | Sale of stock | ||||||
Steven J. Kafka |
March 3, 2015 | 3,124 | $ | 4.16 | Shares acquired pursuant to exercise of stock option | |||||||
Steven J. Kafka |
March 3, 2015 | 3,124 | $ | 47.693 | (1) | Sale of stock | ||||||
Steven J. Kafka |
March 3, 2015 | 9,344 | $ | 7.12 | Shares acquired pursuant to exercise of stock option | |||||||
Steven J. Kafka |
March 3, 2015 | 9,344 | $ | 47.5659 | (1) | Sale of stock | ||||||
Vincent Miller |
March 3, 2015 | 14,058 | $ | 0.84 | Shares acquired pursuant to exercise of stock option* | |||||||
Vincent Miller |
March 3, 2015 | 3,000 | $ | 0.84 | Shares acquired pursuant to exercise of stock option* | |||||||
Vincent Miller |
March 3, 2015 | 17,058 | $ | 47.8143 | (1) | Shares sold to satisfy tax obligations in connection with the exercise of stock option | ||||||
Vincent Miller |
March 3, 2015 | 4,813 | $ | 0.84 | Shares acquired pursuant to exercise of stock option* | |||||||
Vincent Miller |
March 3, 2015 | 5,467 | $ | 4.16 | Shares acquired pursuant to exercise of stock option* | |||||||
Vincent Miller |
March 3, 2015 | 3,125 | $ | 7.12 | Shares acquired pursuant to exercise of stock option* | |||||||
Vincent Miller |
March 3, 2015 | 2,348 | $ | 29.94 | Shares acquired pursuant to exercise of stock option* | |||||||
Michael J. Pellini |
March 4, 2015 | 118,516 | $ | 0.84 | Shares acquired pursuant to exercise of stock option* | |||||||
Michael J. Pellini |
March 4, 2015 | 66,539 | $ | 47.4067 | (1) | Shares sold to satisfy tax obligations in connection with the exercise of stock option | ||||||
Michael J. Pellini |
March 5, 2015 | 22,693 | $ | 0.84 | Shares acquired pursuant to exercise of stock option* | |||||||
Michael J. Pellini |
March 5, 2015 | 67,200 | $ | 0.84 | Shares acquired pursuant to exercise of stock option* | |||||||
Michael J. Pellini |
March 5, 2015 | 38,276 | $ | 4.16 | Shares acquired pursuant to exercise of stock option* | |||||||
Michael J. Pellini |
March 5, 2015 | 21,875 | $ | 7.12 | Shares acquired pursuant to exercise of stock option* | |||||||
Michael J. Pellini |
March 5, 2015 | 86,761 | $ | 47.1042 | (1) | Shares sold to satisfy tax obligations in connection with the exercise of stock option | ||||||
Robert W. Hesslein |
March 5, 2015 | 4,635 | $ | 47.24 | (1) | Shares sold to satisfy tax obligations in connection with the exercise of stock option on March 2, 2015 | ||||||
Evan Jones |
March 16, 2015 | 6,248 | $ | 4.16 | Shares acquired pursuant to exercise of stock option | |||||||
Evan Jones |
March 16, 2015 | 3,828 | $ | 7.12 | Shares acquired pursuant to exercise of stock option |
* | Such executive officer has informed Foundation that he exercised this stock option in order to participate in the Offer. |
ITEM 9. | EXHIBITS. |
Item 9 (Exhibits) of the Schedule 14D-9 is hereby amended and supplemented by adding the following exhibit to the exhibit index:
Incorporated by Reference |
||||||||||||
Exhibit |
Exhibit |
Form |
File Date |
Exhibit or File |
Filed |
Furnished | ||||||
(a)(17) | Press Release issued by Foundation Medicine, Inc. on March 23, 2015 | 8-K | 3/23/15 | 99.1 |
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule 14D-9 is true, complete and correct.
FOUNDATION MEDICINE, INC. | ||||||
Dated: March 23, 2015 | By: | /s/ Robert W. Hesslein | ||||
Name: | Robert W. Hesslein | |||||
Title: | Senior Vice President, General Counsel and Secretary |