UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Amendment No. 5)
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. 5 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 adding the following paragraph to the end of the section entitled Arrangements with Offeror and Certain of Its AffiliatesFoundation Charter Amendments:
On April 2, 2015, Foundation held a special meeting of stockholders, where Foundation stockholders approved the Transaction Agreement and the transactions contemplated thereby (including the Issuance), Offerors anti-dilution rights under the Investor Rights Agreement described below, and the Foundation Charter Amendments. The Foundation stockholder approval of these items satisfies the related closing condition for the Offer.
ITEM 8. | ADDITIONAL INFORMATION. |
Item 8 (Additional Information) of the Schedule 14D-9 is hereby amended and supplemented by adding the following paragraph to the end of the section entitled Required Stockholder Approval:
On April 2, 2015, Foundation held a special meeting of stockholders, where Foundation stockholders approved (a) the Transaction Agreement and the transactions contemplated thereby (including the Issuance), (b) Offerors anti-dilution rights under the Investor Rights Agreement, and (c) the Foundation Charter Amendments. The Foundation stockholder approval of these items satisfies the related closing condition for 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 No. |
Exhibit |
Form | File Date | Exhibit or File No. |
Filed Herewith |
Furnished Herewith | ||||||||||||
(a)(18) |
Press Release issued by Foundation Medicine, Inc. on April 2, 2015 | 8-K | 4/2/15 | 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: April 2, 2015 | By: | /s/ Robert W. Hesslein | ||||
Name: | Robert W. Hesslein | |||||
Title: | Senior Vice President, General Counsel and Secretary |