SC TO-T/A

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.  £

Items 1 through 9.

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

EX-99.A.5.II

EXHIBIT (a)(5)(ii)

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

ROCHE HOLDINGS, INC., a Delaware Corporation; and ROCKET ACQUISITION CORPORATION,  a Delaware Corporation,   Plaintiffs,    v.   CHRISTOPHER M. GLEESON; JACK W. SCHULER; JOHN PATIENCE; THOMAS M. GROGAN; THOMAS D. BROWN; ROD DAMMEYER; EDWARD M. GILES; MARK C. MILLER; JAMES R. WEERSING; and VENTANA MEDICAL SYSTEMS, INC., a Delaware Corporation,   Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )                 C.A. No.  _____-__

VERIFIED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs Roche Holdings, Inc. (“Roche Holdings”), an indirect, wholly owned subsidiary of Roche Holding Ltd (“Roche”), and Rocket Acquisition Corporation (“Rocket Acquisition”), an indirect, wholly owned subsidiary of Roche Holdings and Roche, by their undersigned attorneys, file this verified complaint (the “Complaint”) against Ventana Medical Systems, Inc. (“Ventana”), and Christopher M. Gleeson, Jack W. Schuler, John Patience, Thomas M. Grogan, Thomas D. Brown, Rod Dammeyer, Edward M. Giles, Mark C. Miller, and James R. Weersing (collectively, the “Director Defendants,” and together with Ventana, the “Defendants”), upon knowledge as to matters relating to themselves and upon information and belief as to all other matters, and allege as follows:

NATURE AND SUMMARY OF ACTION

1.This action seeks redress for breaches of fiduciary duty by the members of the board of directors of Ventana (the “Ventana Board”) in taking certain defensive measures to thwart, and refusing to give due consideration to, a bona fide, fully financed acquisition proposal by Rocket Acquisition.  In light of the Ventana Board’s continued refusal during the last five months to properly consider Roche’s proposal, Roche issued a press release on June 25, 2007 (the “Press Release”) announcing its intention to promptly commence a fully financed, non-coercive, non-discriminatory, all-cash offer for all of the outstanding shares of Ventana common stock (the “Tender Offer”).¹  On June 27, 2007, Rocket Acquisition formally commenced the Tender Offer.²  Specifically, this action seeks declaratory and injunctive relief requiring Ventana to dismantle its “poison pill” and exempt the Tender Offer from the Delaware business combination statute and enjoining the Defendants from taking any further action to frustrate the Tender Offer.

2.Under the terms of the Tender Offer, Ventana stockholders whose shares are purchased by Rocket Acquisition will receive $75 net per share in cash, resulting in a potential total purchase price of approximately $3 billion.  This offer represents a 44% premium above the average closing price of Ventana’s stock on the Nasdaq Global Select Market on the last full trading day before the first public announcement of Roche’s

¹ A copy of the Press Release is annexed hereto as Exhibit 1.

² A copy of the Offer to Purchase for Cash All Outstanding Shares of Common Stock (including the associated preferred stock purchase rights) of Ventana Medical Systems, Inc. at $75.00 Net Per Share by Rocket Acquisition Corporation, dated June 27, 2007 (the “Offer to Purchase”), is annexed hereto as Exhibit 2.

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intention to commence the Tender Offer, and a 55% premium over the average closing price of Ventana’s stock over the previous three months.  

3.The Tender Offer will be the initial step in a proposed two-step transaction pursuant to which Rocket Acquisition would acquire all of the outstanding shares of Ventana common stock.  If successful, the Tender Offer will be followed by a merger of Ventana and Rocket Acquisition or one of its affiliates (the “Proposed Merger,” and together with the Tender Offer, the “Proposed Acquisition”).  Pursuant to the Proposed Merger, each then-outstanding share of Ventana common stock (other than shares owned by Roche, any of Roche’s subsidiaries, or any stockholder who properly exercises appraisal rights) would be converted into the right to receive an amount in cash equal to the price paid in the Tender Offer.

4. Since January 2007, Roche has attempted to engage Ventana’s management and the Ventana Board in a discussion concerning the merits of a potential strategic transaction involving the companies.  In a series of telephone calls and letters directed to Ventana’s management and the Ventana Board, Roche outlined its view that the companies should consider pursuing a partnership model through which Roche would acquire a majority of Ventana’s stock in a negotiated transaction for cash at a premium to market (including an appropriate control premium), with Ventana retaining its management and continuing to be publicly traded and managed and headquartered in Arizona.  When Ventana purported to have no interest in such a transaction, or indeed any transaction (apparently without regard to price), Roche offered to acquire 100% of

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Ventana at the price, $75 per share, of the current Tender Offer and Proposed Merger.  When Ventana continued to refuse to engage in a discussion regarding a negotiated transaction — and, in fact, refused even to accept a call from the Chairman and Chief Executive Officer of Roche — Rocket Acquisition commenced the Tender Offer.  Over the past several months, and most recently in the Press Release and the Offer to Purchase, Roche has reiterated that it would strongly prefer to pursue a negotiated transaction with Ventana.  Notwithstanding this extraordinary, non-threatening opportunity for its stockholders, Ventana and the Ventana Board continue to refuse to engage in any meaningful dialogue with Roche on this matter.

5.On March 9, 1998, the Ventana Board adopted a stockholder rights plan (the “Rights Plan”), commonly referred to as a “poison pill,” which is designed to thwart any acquisition of Ventana, or of more than 20% of Ventana’s stock, that does not have the approval of the Ventana Board.  The economic impact of the Rights Plan provides the Ventana Board with the power to prevent summarily the consummation of the Tender Offer.  The Rights Plan was adopted without the approval of the Ventana stockholders, and if the Rights Plan remains in effect and applicable to Rocket Acquisition’s Tender Offer, it will deprive the Ventana stockholders of the opportunity and right to decide whether to accept the premium offered for their shares and will impose an insurmountable obstacle to Rocket Acquisition’s consummation of the Tender Offer and the Proposed Merger.

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6.In addition, the Ventana Board likely will be able to prevent Rocket Acquisition from consummating the Proposed Merger for at least three years unless the Ventana Board exempts the Tender Offer from certain restrictions imposed by section 203 of the Delaware General Corporation Law (“DGCL § 203”).

7.The Tender Offer thus will be conditioned upon, among other things, (i) there being validly tendered and not withdrawn prior to the expiration of the Tender Offer that number of Ventana shares (together with the associated preferred stock purchase rights) which, when combined with the Ventana shares owned by Roche, Rocket Acquisition, and their affiliates, represent at least a majority of the outstanding Ventana shares on a fully diluted basis; (ii) the redemption or inapplicability of the Rights Plan; and (iii) the inapplicability of DGCL § 203 to the Proposed Merger.

8.The Ventana Board owes the utmost fiduciary duties to the Ventana stockholders, including the duties of care and loyalty.  By failing to give good faith, reasonable consideration to Roche’s proposal and by prejudging the Tender Offer (and thereby suggesting they will fail to take action to satisfy the conditions of the Tender Offer), the Director Defendants have breached and continue to breach the fiduciary duties they owe to Ventana’s stockholders under Delaware law.

9.Absent the relief sought by Plaintiffs, Roche Holdings, Rocket Acquisition and the Ventana stockholders will be irreparably harmed.  Such relief is necessary to ensure that the Ventana stockholders are provided the opportunity to decide whether to

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take advantage of the substantial premium offered by the Tender Offer and to ensure that the benefits of the Tender Offer are not forever lost.

THE PARTIES

10.Plaintiff Rocket Acquisition is a corporation duly organized under the laws of the State of Delaware.  To date, Rocket Acquisition has engaged in no activities other than those incident to its formation and the commencement of the Tender Offer.  Rocket Acquisition is an indirect, wholly owned subsidiary of Roche Holdings and an indirect, wholly owned subsidiary of Roche.

11.Plaintiff Roche Holdings is a corporation duly organized under the laws of the State of Delaware.  Roche Holdings is an indirect, wholly owned subsidiary of Roche.

12.Roche is a joint stock company duly organized under the laws of Switzerland and the successor to a business that was founded more than 100 years ago.  Roche is a holding company which, through its subsidiaries and affiliates (collectively, the “Roche Group”), is a global leader in diagnostics and one of the world’s top ten pharmaceutical companies.  The Roche Group plays a leading role in various therapeutic areas, including cancer, virology, and transplantation.  The Roche Group is engaged in the discovery, development, manufacture, and marketing of pioneering therapeutic and diagnostic products and services.  The Roche Group employs approximately 74,000 individuals worldwide.

13.Roche Holdings is the beneficial owner of 2,000 shares of Ventana common stock.

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14.Defendant Ventana is a corporation duly organized under the laws of the State of Delaware, with its principal executive offices located at 1910 Innovation Park Drive, Tucson, Arizona, 85755.  According to its most recent Form 10-K, Ventana is engaged in the development, manufacture, and marketing of instrument-reagent systems that automate slide staining in anatomical pathology (tissue testing) and drug discovery laboratories worldwide.  Ventana also markets consumable products, including reagents and other accessories required to operate its products.

15.Defendant Christopher M. Gleeson (“Gleeson”) is the President and Chief Executive Officer of Ventana and a member of the Ventana Board, positions he has held since May 1999.  Gleeson joined Ventana in March 1999 as Executive Vice President and Chief Operating Officer.

16.Defendant Jack W. Schuler (“Schuler”) is the Chairman of the Ventana Board, a position he has held since November 1995.  Schuler has served as a member of the Ventana Board since April 1991.

17.Defendant John Patience (“Patience”) is the Vice Chairman of the Ventana Board, a position he has held since January 1999.  Patience has served as a member of the Ventana Board since July 1989.

18.Defendant Thomas M. Grogan (“Grogan”) is a member of the Ventana Board, a position he has held since the founding of Ventana in June 1985.  Dr. Grogan served as the Chairman of the Ventana Board from June 1985 to November 1995. 

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In addition, Dr. Grogan currently serves as the Chief Scientific Officer and Chief Medical Director of Ventana.

19.Defendants Thomas D. Brown, Rod Dammeyer, Edward M. Giles, Mark C. Miller, and James R. Weersing are members of the Ventana Board.

20.Each of the Director Defendants was a member of the Ventana Board and, upon information and belief, participated in the decisions challenged herein, including the Ventana Board’s continued refusal to give due consideration to Roche’s proposal and the Proposed Acquisition.  The Director Defendants, as directors of Ventana, owe the utmost fiduciary duties of care and loyalty to the Ventana stockholders.

FACTUAL BACKGROUND

A.           The Ventana Rights Plan

21.On March 9, 1998, the Ventana Board approved the adoption of the Rights Plan and declared a dividend of one preferred share purchase right (a “Right”) for each share of Ventana common stock outstanding as of the close of business on May 8, 1998.  The Rights are distributed and become exercisable for one five-hundredth of a share of Ventana’s Series A participating preferred stock at a price of $42.50 (the “Exercise Price”) upon the earlier of (i) 10 days after the first public announcement that any person has acquired beneficial ownership of 20% or more of Ventana’s common stock (an “Acquiring Person”); or (ii) 10 business days (or such later day as may be determined by the Ventana Board) after the commencement of, or announcement of the intention to make, a tender offer or exchange offer that, if successful, would result in the beneficial

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acquisition by any person of 20% or more of Ventana’s common stock.  The Rights expire on March 9, 2008, unless earlier redeemed or exchanged by action of the Ventana Board.

22.Under the Rights Plan, if and when a person (such as Rocket Acquisition) becomes an Acquiring Person, all Rights other than those held by the Acquiring Person will “flip in,” and each right will be converted into a right to acquire, upon payment of the Exercise Price, shares of Ventana common stock having a value equal to two times the Exercise Price.  Thus, with respect to the Tender Offer, any holder of a Right (other than the Acquiring Person), will be able to purchase shares of Ventana common stock at a 50% discount, thereby diluting the Acquiring Person’s interest in Ventana.

23.Similarly, under the Rights Plan, if and when Ventana engages in a merger or a sale of 50% or more of its assets (as is contemplated following the Tender Offer), the Rights will “flip-over” and be converted into the right to acquire, upon payment of the Exercise Price, shares of the acquirer’s or surviving corporation’s common stock having a value equal to two times the Exercise Price.  Thus, any holder of a Right (other than the Acquiring Person) will be able to purchase shares of the acquirer’s or surviving corporation’s stock at a 50% discount, thereby diluting the interest of the acquirer’s or surviving corporation’s existing stockholders.

24.At any time after a person becomes an Acquiring Person and prior to the acquisition by such person of 50% or more of Ventana’s outstanding common stock, the

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Ventana Board may exchange the Rights, other than those owned by the Acquiring Person, in whole or in part, at an exchange ratio of one share of common stock per Right.

25.Under the Rights Plan, the Ventana Board may redeem all of the Rights, at a price of $0.01 per Right, at any time prior to the close of business on the earlier of  (i) the tenth day following the date of public announcement of the fact than an Acquiring Person has become such; or (ii) the expiration of the Rights Plan on March 9, 2008.  In addition, the Ventana Board may exempt a potential acquisition of shares from the Rights Plan if the securities are to be acquired pursuant to a merger agreement between Ventana and the potential acquirer, provided such agreement has been approved by the Ventana Board prior to the potential acquirer’s becoming an Acquiring Person.

26.Rocket Acquisition’s acceptance of shares tendered pursuant to the Tender Offer will result in Rocket Acquisition’s becoming an Acquiring Person, which, in turn, will make the Rights exercisable for shares of Ventana’s common stock at a 50% discount of their market value for all stockholders other than Rocket Acquisition.

27.This event would render the Tender Offer economically unfeasible for Rocket Acquisition to accomplish and would deprive Ventana’s stockholders of the ability to tender their shares and receive the significant benefits of the Proposed Acquisition unless the Ventana Board redeems the Rights, amends the Rights Plan, or otherwise takes action to render the Rights Plan inapplicable to the Tender Offer.

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B.           The Delaware Business Combination Statute

28.DGCL § 203 applies to any Delaware corporation that has not opted out of the statute’s coverage.  See 8 Del. C. § 203(b).  Ventana has not opted out of the statute’s coverage.

29.DGCL § 203 was designed to impede coercive and inadequate tender and exchange offers.  DGCL § 203 provides that if a person acquires 15% or more of a corporation’s voting stock (thereby becoming an “interested stockholder” as defined by the Delaware statute), such interested stockholder may not engage in a “business combination” (defined to include a merger or consolidation) with the corporation for three years after becoming an interested stockholder, unless:

(i) prior to the 15% acquisition, the board of directors of the corporation has approved either the business combination or the share acquisition resulting in the stockholder becoming an interested stockholder;

(ii) the interested stockholder acquires 85% of the corporation’s voting stock in the same transaction in which it crosses the 15% threshold; or

(iii) at or subsequent to the 15% acquisition, the business combination is approved by the board of directors of the corporation and authorized at an annual or special meeting of the stockholders (and not by written consent), by the affirmative vote of at least 66⅔% of the outstanding voting stock which is not owned by the interested stockholder.

See 8 Del. C. § 203(a).

30.By its previous responses to Roche’s efforts to negotiate a transaction with Ventana, the Ventana Board has indicated its refusal to exempt the Tender Offer from the application of DGCL § 203, either by approving the Tender Offer or the Proposed Merger.  That refusal is continuing.  The application of DGCL § 203 to the Tender Offer

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thus would delay the Proposed Merger (the second step in the transaction) and deprive Ventana’s stockholders of the substantial premium being offered for their shares for at least three years.  In addition, three years of the substantial benefits of the Proposed Acquisition to Ventana would be lost, and any number of events could occur within those three years that would prevent the Proposed Merger altogether.

C. The Director Defendants Have Prejudged the Tender Offer Without a Good Faith, Reasonable Investigation into the Possible Benefits to the Ventana Stockholders

31.Since January 2007, Roche repeatedly has attempted to engage Ventana’s management and the Ventana Board in a meaningful discussion concerning the merits of a possible business combination involving Ventana.  Ventana has remained unwilling to engage in any meaningful dialogue on this matter, thereby demonstrating that Ventana has prejudged the Tender Offer.

32.On January 11, 2007, Dr. Severin Schwan, the Chief Executive Officer of Roche’s diagnostics division, called Gleeson to invite Gleeson to meet to discuss, generally, the histopathology business and, more specifically, potential collaborations between Roche and Ventana.

33.On January 15, 2007, Gleeson sent an e-mail to Dr. Schwan agreeing to meet Dr. Schwan to discuss the possibility of collaborating, but noted that he was not interested in discussing any transaction in which Ventana would not remain an independent entity.

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34.On January 18, 2007, Dr. Schwan had dinner with Gleeson.  During dinner, Dr. Schwan described Roche’s strategic interest in entering the broader histopathology market, Roche’s proposal to make an equity investment in Ventana, the structure of Roche’s proposed investment, and the synergies that would be created by a strategic partnership between Roche and Ventana.

35.As a follow-up to dinner, on January 26, 2007, Dr. Schwan e-mailed Gleeson to reiterate Roche’s belief that the proposed strategic partnership and equity investment would create value for both Roche’s and Ventana’s stockholders.  In addition, Dr. Schwan provided Gleeson with additional information regarding the topics discussed during dinner the previous week.

36.On January 31, 2007, Gleeson e-mailed Dr. Schwan to inform him that the Ventana Board was not interested in any partnership that would result in another company obtaining an equity position in Ventana.

37.On February 12, 2007, Dr. Franz Humer, the Chairman and Chief Executive Officer of Roche, sent a letter to Schuler again highlighting Roche’s strategic interest in entering the broader histopathology market and its desire to pursue a strategic partnership with Ventana.  In addition, Dr. Humer outlined Roche’s preliminary view that Roche and Ventana should pursue a partnership model similar to Roche’s relationship with Genentech.  Under such an arrangement, Roche would acquire a majority of the shares of Ventana at a premium to market (including an appropriate control premium), and Ventana would continue to be both publicly traded and managed and headquartered in

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Arizona.  Dr. Humer also expressed his belief that such a partnership would provide substantial benefits to Roche, Ventana, and their respective stockholders.

38.On March 6, 2007, Schuler sent a letter to Dr. Humer informing him that the Ventana Board was not interested in pursuing a strategic transaction with Roche.

39.On March 12, 2007, Dr. Humer sent a letter to Schuler expressing both his disappointment in Ventana’s response and Roche’s continued willingness to enter into a mutually beneficial transaction with Ventana.

40.On June 18, 2007, Dr. Humer called Schuler and asked to meet with him in the United States during that week to present Roche’s proposal to enter into a strategic transaction with Ventana.  Schuler informed Dr. Humer that he was unable to agree to a meeting or commit to responding to Dr. Humer’s request within any specific period of time until he had discussed the matter with the Ventana Board.

41.Following Dr. Humer’s call with Schuler, Dr. Humer sent a letter to Schuler (copying the Ventana Board), dated June 18, 2007, expressing his regret that Schuler was unable to confirm a meeting with Dr. Humer or to agree to respond to Dr. Humer’s request within any specific time frame.³  In his letter, Dr. Humer recounted the history of Roche’s attempts to engage Ventana’s management and the Ventana Board in a discussion on the merits of a possible business combination involving the companies. 

¹ The full text of Dr. Humer’s June 18 letter is included in section 11, “Background of the Offer” of the Offer to Purchase (annexed hereto as Exhibit 2).

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Given that Ventana had declined to engage in any meaningful dialogue on this matter, Dr. Humer presented a revised proposal for Roche to acquire all of the outstanding common stock of Ventana for a price of $75 per share in cash.  Dr. Humer expressed Roche’s belief that this price is a full and fair one, and that Roche expects that the Ventana stockholders would welcome the opportunity to sell their shares at a significant premium to both the current and historical market values.  Dr. Humer noted further that Roche’s proposal contemplates the continued employment of Ventana’s management and other employees following the consummation of a transaction, and Ventana’s headquarters remaining in Arizona.  Dr. Humer requested that Schuler respond to this letter at his earliest convenience and preferably no later than June 25, 2007.

42.On June 22, 2007, Dr. Humer sent an e-mail to Schuler reiterating his request that Schuler respond to Dr. Humer’s letter by June 25.  In addition, Dr. Humer informed Schuler that he planned to call him on the morning of June 25.

43.Later on June 22, 2007, Dr. Humer received a letter from Schuler, dated June 20, 2007, informing him that the Ventana Board planned to meet during the middle of the following week to consider the proposal made by Roche in the June 18 letter.  Schuler also indicated in his letter that Ventana would advise Roche of its decision following the meeting.

44.On the morning of June 25, 2007, Dr. Humer called Schuler but was told that Schuler was unavailable, and that Schuler would not be available to speak with Dr. Humer.

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45.Later on June 25, 2007, after the close of the market, Roche issued the Press Release announcing its intention to commence the Tender Offer and reiterating its strong  and continued preference to pursue a negotiated transaction with Ventana.

46.The Press Release included the full text of a letter sent by Dr. Humer to Schuler (copying the Ventana Board), dated June 25, 2007, concerning Roche’s intention to commence the Tender Offer.  In the letter, Dr. Humer explained that, in light of Schuler’s unwillingness to agree to meet for a discussion concerning a possible business combination between Ventana and Roche, or even to take Dr. Humer’s call, Roche decided to publicly disclose its proposal.  Moreover, Dr. Humer explained that, in light of the unique opportunity and important stockholder interests at issue, Roche believes that it is imperative to continue to pursue this matter — notwithstanding Ventana’s refusal to engage with Roche concerning a possible negotiated transaction.  Dr. Humer outlined the terms of the Tender Offer and reiterated Roche’s intent to retain Ventana’s management team and employees and to maintain Ventana’s headquarters in Arizona.  Dr. Humer also reiterated that Roche continues to prefer a negotiated transaction with Ventana.  Lastly, Dr. Humer stated that Roche and its legal and financial advisors remain ready to meet with representatives from Ventana at any time to discuss the proposal and to answer any questions Ventana may have.

47.On June 26, 2007, Ventana issued a press release recommending that its shareholders take no action in response to the announcement by Roche that it intended to commence the Tender Offer.  In the June 26 press release, Ventana stated that “following

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the commencement of the tender offer,” the Ventana Board “will make a recommendation to shareholders within 10 business days.”

48.On June 27, 2007, Rocket Acquisition formally commenced the Tender Offer.

49.To date ― and notwithstanding Schuler’s statement in his June 20 letter that Ventana would advise Roche of its response to Roche’s proposal following the Ventana Board’s meeting during the middle of the week of June 25 ― Ventana has not engaged Roche in any discussion concerning the Tender Offer.  Ventana’s June 26 press release suggests that Ventana has no intention of doing so.

50.The Director Defendants have failed to discharge their fiduciary duties by refusing properly to consider Roche’s proposal and by prejudging the Tender Offer and the Proposed Merger.  Over the past five months, and despite the clear-cut and significant economic benefits for the Ventana stockholders, the Director Defendants repeatedly failed to give good faith, reasonable, and due consideration to Rocket Acquisition’s non-coercive, non-threatening proposal.  In fact, the Ventana Board summarily rejected Roche’s overtures without engaging Roche in any meaningful dialogue.  The Ventana Board thus deliberately refused to inform itself of crucial facts central to the welfare of Ventana and its stockholders, thereby depriving the Ventana stockholders of the opportunity to decide whether to accept the substantial premium offered by Rocket Acquisition in the Tender Offer.  And now, faced with the imminence of the Tender Offer, the Ventana Board seeks to manufacture the appearance of a process to consider

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the Tender Offer.  Such a “process” is illusory.  There is no legitimate purpose or justification for Schuler’s refusal on June 18 to schedule a meeting with Dr. Humer, Schuler’s refusal on June 25 to accept Dr. Humer’s telephone call, or Ventana’s failure to inform Roche of the Ventana Board’s reaction to Roche’s proposal (as Schuler indicated they would in his June 20 letter).   Ventana’s most recent statements that the Ventana Board will meet to discuss Roche’s proposal is nothing more than a stall tactic to provide the appearance of diligence in an effort to preempt a claim of fiduciary breach.

D. Additional Takeover Defenses Insulate the Unlawful Actions of the Ventana Board

51.Ventana’s corporate charter and bylaws contain certain additional takeover defenses that further insulate the decisions of the Ventana Board and will prevent Rocket Acquisition from consummating the Tender Offer.  Ventana’s bylaws provide for a classified board of directors, with directors divided into three classes with staggered terms and only one class standing for election each year.  The classified board may be removed only by an amendment to Ventana’s bylaws.  Furthermore, the Ventana corporate charter prohibits the Ventana stockholders from acting by written consent, and the Ventana bylaws prohibit the Ventana stockholders from calling a special meeting.  Therefore, the earliest Rocket Acquisition or the Ventana stockholders could seek to replace the Ventana Board or take other action concerning the Tender Offer, is at Ventana’s 2008 Annual Meeting, which, according to Ventana’s regulatory filings, is not expected to be held until May 2008.

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IRREPARABLE INJURY

52.The unlawful actions of the Director Defendants, including their continuing refusal to engage with Roche to discuss a possible business combination and failures to consider Roche’s proposal, to redeem the Rights or to render inapplicable the Rights Plan, and to exempt the Proposed Acquisition from DGCL § 203, will prevent the Ventana stockholders from deciding whether to accept the benefits of the Proposed Acquisition and thereby are causing and will cause Plaintiffs and the Ventana stockholders irreparable harm.

53.The unlawful actions of the Director Defendants further threaten to deprive Rocket Acquisition of the opportunity to proceed with its Tender Offer and the Proposed Acquisition.  The loss of these opportunities, which are unique, constitutes irreparable harm which cannot adequately be remedied later.

54.Because Ventana’s corporate charter and bylaws contain certain additional takeover defenses that insulate the decisions of the Ventana Board, including provisions for a classified board and prohibitions on Ventana’s stockholders from calling special meetings or acting by written consent, the earliest Plaintiffs or other Ventana stockholders could seek to replace the Ventana Board or take other action concerning the Tender Offer, is at Ventana’s 2008 Annual Meeting, which, according to Ventana’s regulatory filings, is not expected to be held until May 2008.

55.Unless the Ventana Board is restrained by this Court and ordered to remove the roadblocks to a potential transaction, the substantial benefits of the Proposed

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Acquisition will be forever lost.  The injury to Plaintiffs and the Ventana stockholders will not be compensable in money damages.  Plaintiffs have no adequate remedy at law.

COUNT I

(Breach of Fiduciary Duty:  The Rights Plan)

56.Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs 1 through 55 as if fully set forth herein.

57.The Director Defendants owe Ventana’s stockholders the utmost fiduciary duties of care and loyalty.

58.The Tender Offer is non-coercive and non-discriminatory, is fair to Ventana’s stockholders, and poses no threat to Ventana’s corporate policy and effectiveness.  Nonetheless, the Director Defendants prejudged the Tender Offer and summarily refused to engage Roche in a meaningful dialogue or to adequately inform themselves about the merits of the Proposed Acquisition.

59.The Director Defendants’ failure to redeem the Rights or to render the Rights Plan inapplicable to the Proposed Acquisition has no economic justification, serves no legitimate purpose, and is not a reasonable response to Roche’s proposal and/or the Proposed Acquisition, which pose no threat to the interests of Ventana’s stockholders or to Ventana’s corporate policy and effectiveness.  The Director Defendants’ failure to redeem the Rights or to render the Rights Plan inapplicable to the Proposed Acquisition will deprive Ventana’s stockholders of the right to decide whether to maximize their wealth by selling their Ventana shares at the premium offered by the Proposed

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Acquisition.  Accordingly, the actions of the Director Defendants are in breach of the fiduciary duties the Director Defendants owe to Ventana’s stockholders under applicable Delaware law.

60.The unlawful actions of the Director Defendants will prevent the Ventana stockholders from deciding whether to accept the benefits of the Proposed Acquisition and thereby are causing and will cause Plaintiffs and the Ventana stockholders irreparable harm.

61.The unlawful actions of the Director Defendants further threaten to deprive Rocket Acquisition of the opportunity to proceed with its Tender Offer and the Proposed Acquisition.  The loss of these opportunities, which are unique, constitutes irreparable harm which cannot be adequately remedied later.

62.Because Ventana’s corporate charter and bylaws contain certain additional takeover defenses that insulate the decisions of the Ventana Board, including provisions for a classified board and prohibitions on Ventana’s stockholders from calling special meetings or acting by written consent, the earliest Plaintiffs or the Ventana stockholders could seek to replace the Ventana Board or take other action concerning the Tender Offer, is at Ventana’s 2008 Annual Meeting, which, according to Ventana’s regulatory filings, is not expected to be held until May 2008.

63.Unless the Ventana Board is restrained by this Court and ordered to remove the roadblocks to a potential transaction, the substantial benefits of the Proposed

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Acquisition will be forever lost.  The injury to Plaintiffs and the Ventana stockholders will not be compensable in money damages.  Plaintiffs have no adequate remedy at law.

COUNT II

(Breach of Fiduciary Duty:  DGCL § 203)

64.Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs 1 through 63 as if fully set forth herein.

65.The Director Defendants owe Ventana’s stockholders the utmost fiduciary duties of care and loyalty.

66.The Ventana Board is empowered by DGCL § 203 to render the statute inapplicable to the Proposed Acquisition by approving the Tender Offer or the Proposed Merger.

67.The Director Defendants’ failure to approve the Tender Offer or otherwise render DGCL § 203 inapplicable to the Proposed Acquisition has no economic justification, serves no legitimate purpose, and is not a reasonable response to Roche’s proposal and/or the Proposed Acquisition, which pose no threat to the interests of Ventana’s stockholders or to Ventana’s corporate policy and effectiveness.  The Director Defendants’ failure will deprive Ventana’s stockholders of the right to decide whether to maximize their wealth by selling their Ventana shares at the premium offered by the Proposed Acquisition.  Accordingly, the actions of the Director Defendants are in breach of the fiduciary duties the Director Defendants owe to Ventana’s stockholders under applicable Delaware law.

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68.The unlawful actions of the Director Defendants will prevent the Ventana stockholders from deciding whether to accept the benefits of the Proposed Acquisition and thereby are causing and will cause Plaintiffs and the Ventana stockholders irreparable harm.

69.The unlawful actions of the Director Defendants further threaten to deprive Rocket Acquisition of the opportunity to proceed with its Tender Offer and the Proposed Acquisition.  The loss of these opportunities, which are unique, constitutes irreparable harm which cannot adequately be remedied later.

70.Because Ventana’s corporate charter and bylaws contain certain additional takeover defenses that insulate the decisions of the Ventana Board, including provisions for a classified board and prohibitions on Ventana’s stockholders from calling special meetings or acting by written consent, the earliest Rocket Acquisition or the Ventana stockholders could seek to replace the Ventana Board or take other action concerning the Tender Offer, is at Ventana’s 2008 Annual Meeting, which, according to Ventana’s regulatory filings, is not expected to be held until May 2008.

71.Unless the Ventana Board is restrained by this Court and ordered to remove the roadblocks to a potential transaction, the substantial benefits of the Proposed Acquisition will be forever lost.  The injury to Plaintiffs and the Ventana stockholders will not be compensable in money damages.  Plaintiffs have no adequate remedy at law.

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COUNT III

(Declaratory and Injunctive Relief:  Anti-Takeover Devices)

72.Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs 1 through 71 as if fully set forth herein.

73.The Director Defendants owe Ventana’s stockholders the utmost fiduciary duties of care and loyalty.

74.The adoption of any defensive measures against the Tender Offer or the Proposed Merger, or that would prevent a future board of directors from exercising its fiduciary duties — including, but not limited to, amendments to the Rights Plan, amendments to Ventana’s bylaws, pursuit of alternative transactions with substantial breakup fees and/or lockups, “White Knight” stock issuances, changes to licensing agreements, or executive compensation agreements with substantial payments triggered by a change in control — would itself be a breach of the Director Defendants’ fiduciary duties to Ventana’s stockholders.

75.The adoption of any such defensive measures would prevent the Ventana stockholders from deciding whether to accept the benefits of the Proposed Acquisition and would thereby cause Plaintiffs and the Ventana stockholders irreparable harm.

76.Unless the Ventana Board is restrained by this Court and ordered to remove the roadblocks to a potential transaction, the substantial benefits of the Proposed Acquisition will be forever lost.  The injury to Plaintiffs and the Ventana stockholders will not be compensable in money damages.  Plaintiffs have no adequate remedy at law.

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WHEREFORE, for the reasons set forth above, Plaintiffs respectfully request that this Court:

a.declare that the Director Defendants have breached their fiduciary duties to the Ventana stockholders under Delaware law by failing to redeem the Rights or to render the Rights Plan inapplicable to the Tender Offer;

b.compel the Defendants to redeem the Rights or to render the Rights Plan inapplicable to the Proposed Acquisition;

c.declare that the Director Defendants have breached their fiduciary duties to the Ventana stockholders under Delaware law by failing to render DGCL § 203 inapplicable to the Proposed Acquisition;

d.compel the Defendants to approve the Tender Offer and Proposed Merger for purposes of DGCL § 203 and to enjoin Defendants, their officers, agents, servants, employees, attorneys, stockholders, and persons acting in concert or in participation with them from taking any action to enforce or apply DGCL § 203 that would impede, thwart, frustrate, or interfere with the Proposed Acquisition;

e.declare that the adoption of any further measure that has the effect of impeding, thwarting, frustrating, or interfering with the Tender Offer or the Proposed Merger constitutes a breach of the Director Defendants’ fiduciary duties;

f.enjoin the Defendants, their officers, agents, servants, employees, attorneys, stockholders, and persons acting in concert or in participation with them from

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adopting any measure that has the effect of impeding, thwarting, frustrating, or interfering with the Tender Offer or the Proposed Merger;

g.award Plaintiffs their costs and disbursements in this action, including reasonable attorneys’ and experts’ fees; and

h.grant Plaintiffs such other and further relief as this Court may deem just and proper.

	/s/ Allen M. Terrell, Jr.
OF COUNSEL: DAVIS POLK & WARDWELL Arthur F. Golden Lawrence Portnoy Scott B. Luftglass Brian M. Burnovski 450 Lexington Avenue New York, New York  10017 (212) 450-4000	Allen M. Terrell, Jr. (#709) Lisa A. Schmidt (#3019) Rudolf Koch (#4947) Blake K. Rohrbacher (#4750) RICHARDS LAYTON & FINGER, P.A. One Rodney Square 920 North King Street Wilmington, Delaware  19801 (302) 651-7700 Attorneys for Plaintiffs Roche Holdings, Inc. and Rocket Acquisition Corporation
Dated:  June 29, 2007

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EX-99.A.5.III

EXHIBIT (a)(5)(iii)

William J. Maledon, State Bar No. 003670

David B. Rosenbaum, State Bar No. 009819

Maureen Beyers, State Bar No. 017134

OSBORN MALEDON, P.A.

2929 North Central Avenue

Phoenix, Arizona 85012-2794

Telephone:   (602) 640-9000

Facsimile:    (602) 664-2053

E-mail:  drosenbaum@omlaw.com

E-mail:  mbeyers@omlaw.com

Arthur F. Golden (Pro Hac Vice Application to be filed)

Lawrence Portnoy (Pro Hac Vice Application to be filed)

Scott B. Luftglass (Pro Hac Vice Application to be filed)

Brian M. Burnovski (Pro Hac Vice Application to be filed)

DAVIS POLK & WARDWELL

450 Lexington Avenue

New York, New York 10017

Telephone:   (212) 450-4000

Facsimile:    (212) 450-3000

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Rocket Acquisition Corporation, a Delaware Corporation,   Plaintiff,   vs.   Ventana Medical Systems, Inc., a Delaware Corporation; and Terry Goddard, Attorney General of the State of Arizona,   Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No.     COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

Plaintiff Rocket Acquisition Corporation, by its undersigned attorneys, files this complaint (the “Complaint”) against Ventana Medical Systems, Inc. and Terry Goddard, Attorney General for the State of Arizona (collectively, the “Defendants”),

upon knowledge as to matters relating to itself and upon information and belief as to all other matters, and alleges as follows:

PARTIES, JURISDICTION AND VENUE

1.  Plaintiff Rocket Acquisition Corporation (“Rocket Acquisition”) is a corporation duly organized under the laws of the State of Delaware, which has been formed for the purpose of making a tender offer for all of the common stock of Ventana Medical Systems, Inc.  Rocket Acquisition is an indirect, wholly owned subsidiary of Roche Holding Ltd (“Roche”), a joint stock company duly organized under the laws of Switzerland, and the successor to a business that was founded over 100 years ago.  Roche is a holding company which, through its subsidiaries and affiliates (collectively, the “Roche Group”), is a global leader in diagnostics and one of the world’s top ten pharmaceutical companies.  The Roche Group plays a leading role in various therapeutic areas, including cancer, virology, and transplantation.  The Roche Group is engaged in the discovery, development, manufacture, and marketing of pioneering therapeutic and diagnostic products and services.  The Roche Group employs over 74,000 individuals worldwide.

2.  Defendant Ventana Medical Systems, Inc. (“Ventana”) is a corporation duly organized under the laws of the State of Delaware, with its principal executive offices located at 1910 Innovation Park Drive, Tucson, Arizona, 85755.  According to its most recent Form 10-K, Ventana is engaged in the development, manufacture, and marketing of instrument-reagent systems that automate slide staining in anatomical pathology (tissue testing) and drug discovery laboratories worldwide.  In addition, Ventana markets consumable products, including reagents and other accessories required to operate its products.

3.  Defendant Terry Goddard (the “Attorney General”) is the Attorney General of the State of Arizona, whose principal office is located at 1275 West

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Washington Street, Phoenix, Arizona, 85007.  The Attorney General is the chief legal officer of the State of Arizona and has taken an oath to support and defend the Constitution of the United States and the Constitution and laws of the State of Arizona.  See Ariz. Rev. Stat. Ann. §§ 41-192, 38-231.

4.  This action seeks a declaration that certain provisions of Chapter 23 of Title 10 of the Arizona Revised Statutes violate Article I, Section 8, Clause 3 of the United States Constitution (the “Commerce Clause”) and injunctive relief enjoining Defendants from seeking to apply or enforce these provisions with respect to Ventana or the Tender Offer (as defined herein).  This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 2201.

5.  Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b)(1), (b)(2) and 1391(c) because Defendants reside, transact business, are found, and/or have agents in this District, and because a substantial portion of events giving rise to the claim occurred in this District.

SUMMARY OF ACTION

6.  Rocket Acquisition has commenced a nationwide cash tender offer for all of the shares of Ventana, a Delaware corporation with its principal executive offices located in Arizona.  This action seeks a declaration and corresponding injunctive relief that under well-settled Supreme Court and other federal precedent, 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 Ventana, which are incorporated under the laws of states other than the State of Arizona.  The provisions of the statutes will apply automatically to the proposed tender offer and, in the absence of the relief sought herein, will derail the tender offer and irreparably injure Rocket Acquisition and the stockholders of Ventana.

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FACTUAL ALLEGATIONS

Rocket Acquisition Commences a

Cash Tender Offer for the Shares of Ventana

7.  On June 25, 2007, Rocket Acquisition issued a press release announcing its intention to commence a nationwide, all-cash offer to purchase all of the shares of Ventana common stock for $75 net per share (the “Tender Offer”), representing a 44% premium above the closing price of Ventana’s stock on the Nasdaq Global Select Market on the last full trading day before the first public announcement of the Tender Offer, and a 55% premium above the average closing price of Ventana’s stock over the previous three months, and with a potential total purchase price of approximately $3 billion (annexed hereto as Exhibit 1).

8.  On June 27, 2007, Rocket Acquisition formally commenced the Tender Offer.  The terms and conditions of the Tender Offer are set forth in the Offer to Purchase for Cash All Outstanding Shares of Common Stock (including the associated preferred stock purchase rights) of Ventana Medical Systems, Inc. at $75.00 Net Per Share by Rocket Acquisition Corporation, dated June 27, 2007 (annexed hereto as Exhibit 2).  The Tender Offer currently is scheduled to expire at 12:00 midnight, New York City time, on July 26, 2007.

9.  The Tender Offer is the initial step in a proposed two-step transaction pursuant to which Rocket Acquisition would acquire all of the outstanding shares of Ventana common stock.  If successful, the Tender Offer will be followed by a merger of Ventana and Rocket Acquisition or one of its affiliates (the “Proposed Merger”).  Pursuant to the Proposed Merger, each then-outstanding share of Ventana common stock (other than shares owned by Roche or any of its subsidiaries) would be converted into the right to receive an amount in cash equal to the price paid in the Tender Offer.

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10.  The Tender Offer is conditioned on, among other things, the acquisition of a majority of Ventana’s shares and satisfaction by Rocket Acquisition as to the inapplicability of certain provisions of the Arizona Anti-Takeover Act.

The Arizona Anti-Takeover Act

11.  On July 13, 1987, the Arizona Senate Commerce and Labor Committee and the Arizona House Commerce Committee jointly considered proposed legislation to regulate corporate takeovers of corporations that are incorporated in Arizona or that maintain their principal place of business in Arizona and have certain additional contacts with Arizona.  See Journal of the House, H.R. 2002, 38th Leg., 3d Spec. Sess. (Ariz. 1987).  On July 22, 1987, just nine days later, the Governor of Arizona signed into law what is currently Chapter 23 of Title 10 of the Arizona Revised Statutes (the “Arizona Anti-Takeover Act”).  Id.; see also Ariz. Rev. Stat. Ann. §§ 10-2701–2743.¹

12.  The Arizona Anti-Takeover Act regulates the activities of “issuing public corporations” and certain corporate attempts to acquire control over those corporations.  The Arizona Anti-Takeover Act defines an “issuing public corporation” to include any corporation that has a class of equity securities registered pursuant to the federal securities laws and which either:

(a) is incorporated under the laws of the State of Arizona; or

(b) has its principal place of business or its principal executive office located in Arizona, owns or controls assets located within Arizona that have a fair market value of at least $1 million, and employs more than 500 Arizona residents.

See Ariz. Rev. Stat. Ann. § 10-2701(11)(a)–(b).

¹ The Arizona Anti-Takeover Act originally was codified at Ariz. Rev. Stat. Ann. §§ 10-1201–1223 by Ariz. Laws 1987, 3d Spec. Sess., Ch. 3 (effective July 22, 1987).  The Arizona Anti-Takeover Act was renumbered and amended by Ariz. Laws 1994, Ch. 223 (effective Jan. 1, 1996).

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13.  The Arizona Anti-Takeover Act thus purports to apply to target corporations that are incorporated under the laws of states other than the State of Arizona (“foreign corporations”) if they satisfy the requirements set forth in § 10-2701(11)(b).

14.  The Arizona Anti-Takeover Act automatically applies to corporations satisfying the statutory definition of “issuing public corporations” — in other words, an issuing public corporation does not need to elect to be governed by the Arizona statute.  See Ariz. Rev. Stat. Ann. § 10-2706.  Rather, an issuing public corporation may elect to opt out of certain provisions of the Arizona Anti-Takeover Act by an amendment to its articles of incorporation or bylaws approved by a majority of the shareholder voting power, excluding shares beneficially owned by the acquiring person and their affiliates and associates.  See Ariz. Rev. Stat. Ann. §§ 10-2721(A)(2), 10-2743(A)(2).

15.  Although Ventana is a Delaware corporation, the company maintains its principal executive offices in Arizona, and, upon information and belief, Ventana owns or controls assets located in Arizona that have a fair market value of at least $1 million and employs more than 500 Arizona residents.  Upon information and belief, Ventana satisfies the definition of an “issuing public corporation,” and because Ventana has not opted out of the statute, the Arizona Anti-Takeover Act thus purports to apply to both Ventana and the Tender Offer.  See Ariz. Rev. Stat. Ann. §§ 10-2701(11)(b), 10-2706.

The Arizona Control Share Act

16.  Sections 10-2721 through 10-2727 of the Arizona Anti-Takeover Act (collectively, the “Arizona Control Share Act”) regulate and restrict the voting rights of shares acquired in a control share acquisition.²

² Generally, a “control share acquisition” means an acquisition of an issuing public corporation’s shares, which, when added to all other shares beneficially owned by the acquirer, would entitle the acquiring stockholder to exercise at least 20%, at least (continued)

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17.  Specifically, § 10-2725 provides:

Shares of an issuing public corporation that are acquired by an acquiring person in a control share acquisition and that exceed the threshold of voting power of any of the ranges prescribed . . . have the same voting rights as other shares of the same class or series for all elections of directors but do not have the right to vote on other matters unless approved by a resolution of shareholders of the issuing public corporation at a special or annual meeting of shareholders pursuant to section 10-2723.

Ariz. Rev. Stat. Ann. § 10-2725(A) (emphasis added).

18.  To reinstate full voting rights to the control shares, the resolution must be approved by a majority of the shareholder voting power, excluding all shares beneficially owned by the acquiring person or its affiliates or associates or by any officer or director of the issuing public corporation.  See Ariz. Rev. Stat. Ann.

§ 10-2725(B).

19.  The Arizona Control Share Act by its terms applies to Ventana and the Tender Offer.  As a result, the Arizona Control Share Act would prohibit Rocket Acquisition from exercising the full, unfettered rights attendant to beneficial ownership for the vast majority of Ventana shares it acquires pursuant to the Tender Offer, including, among other things, the rights to participate in the management of Ventana and to vote its shares in favor of the Proposed Merger.  The Tender Offer is conditioned upon the acquisition of a majority of Ventana’s shares and upon Rocket Acquisition being satisfied that the Arizona Control Share Act will not apply to the Tender Offer.

The Arizona Business Combination Act

20.  Sections 10-2741 through 10-2743 of the Arizona Anti-Takeover Act (collectively, the “Arizona Business Combination Act”) regulate and restrict an issuing

    ^{(continued from previous page)}

^{33⅓%, or more than 50% of the voting power of the issuing public corporation.  See Ariz. Rev. Stat. Ann. §§ 10-2701(9), 10-2722.}

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public corporation or its subsidiaries from engaging in certain transactions with an “interested shareholder.”³

21.  Specifically, § 10-2741 provides that, subject to certain exemptions:

[A]n issuing public corporation may not engage in any business combination or vote, consent or otherwise act to authorize a subsidiary of the issuing public corporation to engage in any business combination with respect to, proposed by or on behalf of or pursuant to any agreement, arrangement or understanding, whether or not in writing, with any interested shareholder of the issuing public corporation or any affiliate or associate of the interested shareholder for a period of three years after the interested shareholder’s share acquisition date . . . .

Ariz. Rev. Stat. Ann. § 10-2741(A).

22.  The restrictions on business combinations with an interested shareholder may be waived if either the contemplated business combination or the acquisition of shares made by the interested shareholder is approved by a committee comprised of disinterested directors from the issuing public corporation before the date of the share acquisition.  Seeid.

23.  The Arizona Business Combination Act by its terms applies to Ventana and the Tender Offer.  As a result, the Arizona Business Combination Act would prevent Rocket Acquisition from proceeding with the Proposed Merger (the second step in the transaction) for at least three years.  The Tender Offer is conditioned upon the acquisition of a majority of Ventana’s shares and upon Rocket Acquisition being satisfied that the Arizona Business Combination Act will not apply to the Tender Offer.

³ Generally, an “interested shareholder” is any person, other than the issuing public corporation or any of its subsidiaries, that beneficially owns, directly or indirectly, 10% or more of the voting power of the issuing public corporation.  See Ariz. Rev. Stat. Ann. § 10-2701(10).

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State Anti-Takeover Statutes Purporting to Regulate

Foreign Corporations Have Been Held Unconstitutional

24.  The Commerce Clause of the United States Constitution provides that Congress shall have the power “[t]o regulate Commerce . . . among the several States.”  U.S. Const. art I, § 8, cl. 3.

25.  The Supreme Court of the United States has held that state anti-takeover statutes violate the Commerce Clause insofar as they purport to regulate the internal affairs of foreign corporations, or tender offers for the shares of foreign corporations, even where such foreign corporations maintain their principal executive offices and control substantial assets in those states.  SeeCTS Corp. v. Dynamics Corp., 481 U.S. 69 (1987); Edgar v. MITE, 457 U.S. 624 (1982).

26.  In MITE, the Supreme Court held that the Illinois Business Takeover Act imposed a substantial burden on interstate commerce that outweighed its putative local benefits and thus was unconstitutional.  The Illinois statute purported to regulate tender offers for foreign target corporations with certain contacts with Illinois.  The Court declared, “Illinois has no interest in regulating the internal affairs of foreign corporations.”  MITE, 457 U.S. at 645–46.

27.  Five years later, in CTS, the Supreme Court upheld the Indiana Control Share Acquisitions Act, which applied only to target corporations that were incorporated under the laws of the State of Indiana, against a Commerce Clause challenge.  481 U.S. at 72–73.  The Court distinguished the Indiana statute from the Illinois statute considered in MITE on the grounds that the Indiana statute did not purport to regulate tender offers for foreign target companies and thus did not risk subjecting such activities to inconsistent regulation.  The Court reasoned:

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So long as each State regulates voting rights only in the corporations it has created, each corporation will be subject to the law of only one State.  No principle of corporation law and practice is more firmly established than a State’s authority to regulate domestic corporations, including the authority to define the voting rights of shareholders.

CTS, 481 U.S. at 89.

28.  Following the teachings of MITE and CTS, federal courts consistently have held that state control share acquisition and business combination statutes are unconstitutional insofar as they purport to apply to foreign target corporations and tender offers for the shares of foreign target corporations.  These courts have reasoned that the extraterritorial reach of such state anti-takeover statutes creates an impermissible risk of inconsistent regulation and imposes substantial burdens on interstate commerce that outweigh their putative local benefits.  See, e.g., Tyson Foods, Inc. v. McReynolds, 865 F.2d 99 (6th Cir. 1989) (holding that Tennessee’s control share and business combination statutes violate the Commerce Clause as applied to foreign corporations); Grand Metropolitan PLC v. Butterworth, No. 88-40317WS, 1988 WL 1045191 (N.D. Fla. Nov. 28, 1988) (same with respect to Florida’s control share and business combination statutes); TLX Acquisition Corp. v. Telex Corp., 679 F. Supp. 1022 (W.D. Okla. 1987) (same with respect to Oklahoma’s control share statute).

IRREPARABLE HARM

29.  Absent the injunctive relief sought, Rocket Acquisition will suffer irreparable harm either by losing the unique opportunity to acquire Ventana, as permitted by the federal securities laws, or by being denied the full rights and benefits of ownership of the shares that it would acquire pursuant to the Tender Offer.  Moreover, Ventana’s stockholders will be denied the opportunity to receive a substantial premium for their shares.

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CLAIM FOR RELIEF

(Declaratory and Injunctive Relief)

30.  Rocket Acquisition incorporates by reference the foregoing paragraphs 1 through 29 of this Complaint as if set forth here again in full.

31.  This action seeks a declaratory judgment and preliminary and permanent injunctive relief pursuant to 28 U.S.C. § 2201 and Rules 57 and 65 of the Federal Rules of Civil Procedure.

32.  There at present exists an actual controversy between Plaintiff and Defendants as to whether the Arizona Control Share Act and the Arizona Business Combination Act are constitutional to the extent that they purport to regulate Ventana, a foreign corporation duly organized under the laws of the State of Delaware, and the Tender Offer.  The Arizona Control Share Act and the Arizona Business Combination Act are by their own terms applicable to Ventana and the Tender Offer; no invocation or enforcement is required.  SeeGrand Metropolitan, 1998 WL 1045191, at *4; TLX, 679 F. Supp. at 1031.

33.  The nationwide Tender Offer constitutes a transaction in interstate commerce.

34.  The Arizona Control Share Act and the Arizona Business Combination Act will subject Ventana and the Tender Offer to inconsistent regulation in violation of the Commerce Clause.

35.  The Arizona Control Share Act and the Arizona Business Combination Act constitute an indirect regulation of interstate commerce that imposes excessive burdens on interstate commerce in relation to the putative local benefits.

36.  In order to complete the Tender Offer, as permitted by federal securities law and Delaware law, Rocket Acquisition requires a judicial determination that the Arizona Control Share Act and the Arizona Business Combination Act, which could

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impose substantial restrictions on Rocket Acquisition’s rights as a shareholder of a Delaware corporation and on its ability to consummate the Tender Offer and the Proposed Merger, are unconstitutional as applied to foreign corporations, and tender offers for such foreign corporations, including Ventana and the Tender Offer.

  37.  Absent the relief requested, Rocket Acquisition will be irreparably harmed.

38.  A judicial declaration is necessary and appropriate under these circumstances in order to allow Rocket Acquisition fairly to present its offer to the stockholders of Ventana and to allow Rocket Acquisition to proceed with the Tender Offer and Proposed Merger.

39.  Rocket Acquisition has no adequate remedy at law.

WHEREFORE, for the reasons set forth above, Rocket Acquisition respectfully prays for the following relief:

1.  a judgment and declaration that sections 10-2721 through 10-2727 and sections 10-2741 through 10-2743 of the Arizona Revised Statutes are unconstitutional as applied to corporations incorporated under the laws of states other than the State of Arizona.

2.  a judgment and declaration that sections 10-2721 through 10-2727 and sections 10-2741 through 10-2743 of the Arizona Revised Statutes do not apply to Ventana and/or the Tender Offer.

3.  an order preliminarily and permanently enjoining Defendants, their officers, agents, servants, employees, attorneys, stockholders, and persons acting in concert or in participation with Defendants, from taking action to apply or enforce sections 10-2721 through 10-2727 and sections 10-2741 through 10-2743 of the Arizona Revised Statutes with respect to Ventana and/or the Tender Offer.

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4.  a judgment for such other and further relief in law or in equity as this Court deems just and proper.

Dated this 29^th day of June, 2007.

OSBORN MALEDON P.A.
By:	/s/ Maureen Beyers
	William J. Maledon David B. Rosenbaum Maureen Beyers 2929 North Central Avenue Phoenix, AZ  85012
DAVIS POLK & WARDWELL Arthur F. Golden (Pro Hac Vice Application to be filed) Lawrence Portnoy (Pro Hac Vice Application to be filed) Scott B. Luftglass (Pro Hac Vice Application to be filed) Brian M. Burnovski (Pro Hac Vice Application to be filed) 450 Lexington Avenue New York, New York 10017 Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I certify that on June 29, 2007, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to all CM/ECF registrants.

/s/ L. Smock                                                                

1656236

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