SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[_] Confidential, for Use of the
[_] Preliminary Proxy Statement Commission Only (as Permitted by
Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[_] Definitive Additional Materials
[_] Soliciting Material Pursuant to (S)240.14a-11(c) or (S)240.14a-12
Sequenom, Inc.
(Name of Registrant as Specified In Its Charter)
_______________________________________________________________________________
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[_] No fee required.
[_] Fee computed below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
_______________________________________________________________________________
(2) Aggregate number of securities to which transaction applies:
_______________________________________________________________________________
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
_______________________________________________________________________________
(4) Proposed maximum aggregate value of transaction:
_______________________________________________________________________________
(5) Total fee paid:
_______________________________________________________________________________
[X] Fee paid previously with preliminary materials.
[_] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the form or schedule and the date of its filing.
(6) Amount Previously Paid:
_______________________________________________________________________________
(7) Form, Schedule or Registration Statement No.:
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(8) Filing Party:
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(9) Date Filed:
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Sequenom, Inc.
3595 John Hopkins Court
San Diego, California 92121
(858) 202-9000
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To Be Held On August 23, 2001
To the Stockholders of Sequenom, Inc.:
Notice is hereby given that a special meeting of Stockholders of Sequenom,
Inc., a Delaware corporation, will be held on August 23, 2001 at 10:00 a.m.,
Pacific time, at the offices of Sequenom located at 3595 John Hopkins Court,
San Diego, California 92121, for the following purposes:
1. To approve a transaction involving the issuance of up to 14,403,870
shares of common stock of Sequenom, pursuant to a Scheme of Arrangement
under Section 425 of the U.K. Companies Act 1985 to be implemented in
accordance with a Transaction Agreement, dated as of May 29, 2001, by and
between Sequenom and Gemini Genomics plc. Subject to the approval of the
High Court of Justice in England and Wales and the shareholders of Gemini
and the satisfaction (or waiver, if permitted) of the other conditions
contained in the Transaction Agreement, pursuant to the Scheme of
Arrangement: (a) all outstanding ordinary shares of Gemini will be
cancelled and new ordinary shares of Gemini will be issued to Sequenom; (b)
Gemini shareholders will receive 0.2 shares of Sequenom common stock for
each outstanding ordinary share of Gemini held, representing for holders of
Gemini American Depositary Shares 0.4 shares of Sequenom common stock for
each Gemini American Depositary Share held, subject to downward adjustment
in certain circumstances as provided in the Transaction Agreement; and (c)
Gemini will become a wholly-owned subsidiary of Sequenom (items (a) through
(c) are referred to in the proxy statement, collectively, as the
"Transaction").
2. To approve (a) an amendment to Sequenom's certificate of
incorporation to provide that the Sequenom board of directors will have the
exclusive right to set the authorized number of directors from time to time
and that 66 2/3% of the outstanding voting power of Sequenom common stock
will be required to amend, alter or repeal this provision, and (b) a
related amendment to Sequenom's bylaws to provide that the authorized
number of directors will be fixed as set forth in the certificate of
incorporation rather than the bylaws.
3. To transact such other business as may properly come before the
special meeting.
The foregoing items of business are more fully described in the proxy
statement accompanying this notice.
The board of directors has fixed the close of business on July 6, 2001, as
the record date for the determination of stockholders entitled to notice of and
to vote at this special meeting and at any adjournment or postponement thereof.
By Order of the Board of Directors
/s/ Stephen L. Zaniboni
Stephen L. Zaniboni
Senior Vice President, Chief Financial
Officer and Secretary
San Diego, California
July 19, 2001
All stockholders are cordially invited to attend the meeting in person.
Whether you expect to attend the meeting, please complete, date, sign and
return the enclosed proxy as promptly as possible to ensure your
representation at the meeting. A return envelope (which is postage prepaid
if mailed in the United States) is enclosed for that purpose. Even if you
have given your proxy, you may still vote in person if you attend the
meeting. Please note, however, that if your shares are held of record by a
broker, bank or other nominee and you wish to vote at the meeting, you must
obtain from the record holder a proxy issued in your name.
Sequenom, Inc.
3595 John Hopkins Court
San Diego, California 92121
(858) 202-9000
PROXY STATEMENT FOR SPECIAL MEETING OF STOCKHOLDERS
August 23, 2001
The enclosed proxy is solicited on behalf of the board of directors of
Sequenom, Inc., a Delaware corporation, for use at the special meeting of
stockholders to be held on August 23, 2001 at 10:00 a.m., Pacific time, at the
offices of Sequenom located at 3595 John Hopkins Court, San Diego, California
92121.
At the special meeting, you will be asked to approve the following:
. A transaction involving the issuance of up to 14,403,870 shares of common
stock of Sequenom pursuant to a Scheme of Arrangement under Section 425
of the U.K. Companies Act 1985 to be implemented in accordance with a
Transaction Agreement, dated as of May 29, 2001, by and between Sequenom
and Gemini Genomics plc. Subject to the approval of the High Court of
Justice in England and Wales and the shareholders of Gemini and the
satisfaction (or waiver if permitted) of the other conditions contained
in the Transaction Agreement, pursuant to the Scheme of Arrangement: (a)
all outstanding ordinary shares of Gemini will be cancelled and new
ordinary shares of Gemini will be issued to Sequenom; (b) Gemini
shareholders will receive 0.2 shares of Sequenom common stock for each
outstanding ordinary share of Gemini held, representing for holders of
Gemini American Depositary Shares 0.4 shares of Sequenom common stock for
each Gemini American Depositary Share held, subject to downward
adjustment in certain circumstances as provided in the Transaction
Agreement; and (c) Gemini will become a wholly-owned subsidiary of
Sequenom (items (a) through (c) are referred to in this proxy statement,
collectively, as the "Transaction").
. An amendment to Sequenom's certificate of incorporation to provide that
the Sequenom board of directors will have the exclusive right to set the
authorized number of directors from time to time and that 66 2/3% of the
outstanding voting power of Sequenom common stock will be required to
amend, alter or repeal this provision, and (b) a related amendment to
Sequenom's bylaws to provide that the authorized number of directors will
be fixed as set forth in the certificate of incorporation rather than the
bylaws.
Sequenom common stock is listed on the Nasdaq National Market under the
trading symbol "SQNM".
The board of directors of Sequenom has unanimously approved the matters
described in this document and recommends that the stockholders of Sequenom do
the same. Your vote is very important. Please take the time to complete and
mail the enclosed proxy card to Sequenom.
We strongly urge you to read and carefully consider this proxy statement in
its entirety, including the matters referred to under "Risk Factors" beginning
at page 7.
You may vote on the matters described in this document if you own shares of
Sequenom common stock as of the close of business on July 6, 2001.
The SEC allows us to "incorporate by reference", which means that we can
disclose important information to you by referring you to another document
filed separately with the SEC. The information incorporated by reference is
deemed to be part of this proxy statement, except for any information
superceded by information in this proxy statement. You may obtain this
information without charge from Sequenom by written or oral request as
described under "Where You Can Find More Information" on page 63. To obtain
timely delivery of the information, please make your request no later than
August 16, 2001.
Neither the Securities and Exchange Commission nor any state securities
regulators have approved the Sequenom common stock to be issued in the
Transaction or determined if this proxy statement is accurate or adequate.
Any representation to the contrary is a criminal offense.
The date of this proxy statement is July 19, 2001, and it is first being
mailed to Sequenom stockholders on or about July 20, 2001.
TABLE OF CONTENTS
Page
----
Questions and Answers About the Transaction and the Special Meeting....... 1
Summary................................................................... 3
Risk Factors.............................................................. 7
Risks Related to the Transaction........................................ 7
Risks Related to the Business of the Combined Company After the
Transaction............................................................ 8
The Special Meeting....................................................... 15
Date, Time and Place.................................................... 15
Purpose................................................................. 15
Board of Directors Recommendation....................................... 15
Quorum.................................................................. 15
Record Date............................................................. 15
Stockholders Entitled to Vote........................................... 15
Required Votes.......................................................... 16
Proxies................................................................. 16
Revocability of Proxies................................................. 16
Costs of Solicitation................................................... 16
Market Price Information.................................................. 17
Comparative Per Share Data ............................................... 18
Sequenom Summary Financial Information.................................... 19
Gemini Summary Financial Information...................................... 20
Unaudited Pro Forma Combined Condensed Financial Statements............... 21
The Transaction........................................................... 27
Background of the Transaction........................................... 27
Reasons for the Transaction............................................. 29
Stock Ownership Following the Transaction............................... 29
Opinion of Financial Advisor to Sequenom................................ 30
Stock Listing........................................................... 38
No Appraisal Rights..................................................... 38
Certain Terms of the Transaction Agreement................................ 39
Consideration to be Received in the Transaction......................... 39
Treatment of Gemini Options and Warrants................................ 39
Covenants............................................................... 40
Representation and Warranties........................................... 43
Conditions to the Transaction........................................... 44
Termination; Termination Fee............................................ 45
Expenses................................................................ 46
Interests Of Certain Persons In The Transaction And Related Agreements.... 47
Interests of Certain Persons............................................ 47
Registration Rights Agreement........................................... 47
Employment Agreements................................................... 48
i
TABLE OF CONTENTS--(Continued)
Page
----
Other Matters Related to the Transaction................................. 48
Federal Income Tax Consequences........................................ 48
Accounting Treatment................................................... 48
Certain Federal Securities Law Consequences............................ 48
United Kingdom Corporate and Regulatory Approvals Concerning the
Transaction............................................................. 49
The Scheme of Arrangement.............................................. 49
The Extraordinary General Meeting of Gemini............................ 49
The Court Meeting...................................................... 50
Business of Gemini....................................................... 51
Gemini Management's Discussion and Analysis of Financial Condition and
Results of Operations................................................... 53
Overview............................................................... 53
Operating Results...................................................... 54
Quantitative and Qualitative Disclosures About Market Risk............. 57
Sequenom Directors After the Transaction................................. 60
Experts.................................................................. 60
Other Matters and Proposals for the Sequenom Special Meeting............. 61
Where You Can Find More Information...................................... 63
Index to Gemini Financial Statements..................................... F-1
Attachment A -- Transaction Agreement dated 29 May 2001
Attachment B -- Fairness Opinion of Robertson Stephens, Inc.
Attachment C -- Certificate of Amendment of the Second Amended and Restated
Certificate of Incorporation of Sequenom, Inc.
Attachment D -- Amendment to Restated Bylaws of Sequenom, Inc.
Proxy Card
ii
QUESTIONS AND ANSWERS ABOUT THE TRANSACTION AND THE SPECIAL MEETING
Q. What do I need to do now?
A. Please mail your signed proxy card as soon as possible but in any event no
later than August 17, 2001. The special meeting will take place on August 23,
2001. The Sequenom board of directors unanimously recommends voting in favor of
the proposals to be considered at the special meeting.
Q. Should I send in my stock certificates?
A. No. The number of shares of Sequenom common stock that you own will not be
affected by the Transaction. Sequenom will be issuing shares of Sequenom common
stock only to the former shareholders of Gemini after the Transaction is
completed.
Q. Explain what stockholders will receive in the Transaction.
A. Sequenom Stockholders. Sequenom stockholders will not receive anything.
After the Transaction, each outstanding share of Sequenom common stock will
remain outstanding. Holders of Sequenom common stock will continue to hold the
same number of shares after the Transaction.
Gemini Shareholders. In the Transaction, each Gemini ordinary share will be
cancelled in exchange for 0.2 shares of Sequenom common stock, and each Gemini
American Depositary Share will be cancelled in exchange for 0.4 shares of
Sequenom common stock, subject in each case to downward adjustment in certain
circumstances as provided in the Transaction Agreement. See "Certain Terms of
the Transaction Agreement--Consideration to be Received in the Transaction".
Q. How does the Transaction impact overall stock ownership?
A. An aggregate of up to 14,403,870 shares of Sequenom common stock will be
issued to the shareholders, option holders and warrant holders of Gemini.
Immediately after the closing of the Transaction, assuming that all outstanding
options and warrants to purchase Gemini ordinary shares and American Depositary
Shares assumed by Sequenom in the Transaction are exercised, the shares of
Sequenom common stock issued in the Transaction will constitute approximately
35% of the then outstanding Sequenom common stock (using the treasury stock
method to calculate diluted shares outstanding). Michael Fitzgerald, the
Chairman of Gemini, together with three Gemini shareholders affiliated with Mr.
Fitzgerald, would beneficially own in the aggregate approximately 10.1% of the
then outstanding Sequenom common stock (assuming the exercise of all
outstanding Sequenom options and warrants). See "Risk Factors--Dilution of
Voting Interests of Sequenom Stockholders" and "The Transaction--Stock
Ownership Following the Transaction".
Q. Why has the Sequenom board of directors proposed the amendment of Sequenom's
certificate of incorporation and bylaws to allow the board to set the
authorized number of Sequenom's directors?
A. As an integral part of the Transaction, Sequenom has agreed to elect Mr.
Fitzgerald and a nominee of Mr. Fitzgerald who is a director of, or employed
by, a publicly held biotechnology or pharmaceutical company (other than Gemini)
and is reasonably acceptable to Sequenom's board of directors. The election of
these two additional directors would increase the number of Sequenom directors
from six to eight. Sequenom has further agreed that, for at least two years
following the completion of the Transaction (unless otherwise consented to by
at least 80% of the directors on the board), the Sequenom board will be
comprised of no more than eight directors. Sequenom's bylaws currently limit
the number of directors to any number between four and seven and require that
66 2/3% of the directors and the holders of at least 66 2/3% of the then
outstanding shares of Sequenom common stock approve any change to the range of
the number of directors. Sequenom's board of directors believes that it is in
the best interests of Sequenom and its stockholders (a) to allow the board of
directors to set the authorized number of directors from time to time without
making that number subject to a range pre-approved by the stockholders, (b) to
include that provision in Sequenom's certificate of incorporation rather than
Sequenom's bylaws and (c) to provide in Sequenom's certificate of incorporation
that 66 2/3% of the outstanding voting power of Sequenom common stock is
required to amend, alter or repeal this provision. See "Other Matters and
Proposals for the Sequenom Special Meeting".
1
It is a condition (which may be waived only by Gemini) to the completion of
the Transaction that Mr. Fitzgerald and a person selected by Mr. Fitzgerald be
appointed to the Sequenom board, and Sequenom has agreed to take all action
reasonably necessary to include these additional directors and cause their
nomination and election to the board. However, it is not a condition to the
completion of the Transaction that the proposed amendments be adopted by
Sequenom stockholders.
2
SUMMARY
This summary highlights selected information found in greater detail
elsewhere in this proxy statement. This summary does not contain all of the
information that is important to you. We urge you to read the entire proxy
statement (including the Transaction Agreement, which is attached as Attachment
A) before you decide how to vote on the proposals to be presented at the
special meeting. We have included page references parenthetically to direct you
to a more complete description of the topics presented in this summary. Unless
the context requires otherwise, references to "we", "us", "our" and "Sequenom"
refer to Sequenom, Inc. and references to "Gemini" refer to Gemini Genomics
plc.
The Companies
Sequenom, Inc.
3595 John Hopkins Court
San Diego, CA 92121
(858) 202-9000
Sequenom, a Delaware corporation, is a leader in the worldwide effort to
identify genes and genetic variations with significant impact on human health.
Using its innovative technologies, information and scientific strategy,
Sequenom is translating data generated from the Human Genome Project into
medically important applications. Breaking through the limitations of
traditional genomic research, Sequenom's MassARRAY(TM) product line, single
nucleotide polymorphism, or SNP, assay portfolio and disease gene discovery
program are generating results that position Sequenom to be a leader in the
race to develop genetics-based diagnostic and therapeutic products.
Gemini Genomics plc
162 Science Park
Milton Road
Cambridge CB4 0GH
England
011 44 1223 435 300
Gemini, a public limited company formed under the laws of England and Wales,
is a clinical genomics company focused on the discovery and commercialization
of novel gene-based drug discovery targets. Because it is clear that a
comprehensive understanding of disease depends on the integration of genetics,
proteomics, environmental factors and clinical and medical information from
human volunteers, Gemini's approach has been to collect and analyze that
information from a wide range of human population groups, including twins,
disease-affected families, isolated (founder) populations and drug trial
subjects. By investing in leading edge bioinformatics, molecular and
computational biology and other technologies, Gemini has been able to
effectively apply these technologies to the acceleration of disease gene
identification, target discovery, and drug development. See "Business of
Gemini".
Reasons for the Transaction (page 29)
The board of directors of Sequenom approved the Transaction based upon a
number of factors. The Transaction presents important scientific and commercial
opportunities through the creation of a company with the resources to expedite
disease gene identification, drug discovery and development. Gemini's extensive
collection of clinical genomics data and samples combined with Sequenom's
genetic analysis technology platform and disease gene discovery program means
that the combined company will have the capacity to perform millions of genetic
analyses with approximately 20 million clinical data points from more than
75,000 volunteer subjects. The combination of the clinical genomics data,
genetic technology platform and disease gene discovery program of the combined
company is expected to expedite its discovery activities and reduce the time
needed to identify and commercialize novel gene-based targets.
3
The combined company will attempt to identify genes involved in common human
diseases using bioinformatics and analytical tools. The Transaction will
significantly expand Sequenom's ability to perform disease gene association and
genetic marker validation studies. Sequenom believes this will help it develop
a pipeline of validated genes for downstream development of diagnostic and
therapeutic products. Each business unit of the combined company will
supplement the work of the other, with the goal of leveraging and optimizing
the value of each of the previously independent companies. See "The
Transaction--Reasons for the Transaction".
Opinion of Financial Advisor to Sequenom (page 30)
In deciding to approve the Transaction, the Sequenom board of directors
considered an opinion from its financial advisor, Robertson Stephens, Inc. On
May 25, 2001, Robertson Stephens delivered its oral opinion, subsequently
confirmed in writing, to the Sequenom board of directors that, as of that date
and based on the assumptions made, matters considered and limitations on the
review undertaken described in the written opinion, the exchange ratios of 0.2
shares of Sequenom common stock for each Gemini ordinary share and 0.4 shares
of Sequenom common stock for each Gemini American Depositary Share were fair
from a financial point of view to Sequenom. See Attachment B for a copy of the
full opinion. Sequenom encourages you to read this opinion carefully in its
entirety. The opinion of Robertson Stephens is directed to the Sequenom board
of directors and is not a recommendation to any stockholder on how to vote with
respect to the Transaction.
Required Votes (page 16)
The affirmative vote of the stockholders of Sequenom representing a majority
of the common stock voting in person or represented by proxy at the special
meeting is required to approve the Transaction.
The affirmative vote of a majority of the Sequenom common stock outstanding
on the record date is required to approve the amendment to Sequenom's
certificate of incorporation. The affirmative vote of 66 2/3% of the shares of
Sequenom common stock outstanding on the record date is required to approve the
amendment to Sequenom's bylaws. The approval of the amendment to Sequenom's
certificate of incorporation is subject to, and contingent upon, the approval
of the amendment to Sequenom's bylaws.
The Scheme of Arrangement (page 49)
Gemini will be acquired by Sequenom by way of a "Scheme of Arrangement". A
Scheme of Arrangement, or a "Scheme", is a U.K. statutory procedure whereby,
subject to the requisite approvals of Gemini shareholders and the sanction of
the High Court of Justice in England and Wales (the "High Court"), Gemini
ordinary shares will be cancelled and new Gemini shares will be issued to
Sequenom, leaving Sequenom as the sole shareholder of Gemini and Gemini as a
wholly owned subsidiary of Sequenom. In consideration for the cancellation of
Gemini ordinary shares, the Gemini shareholders will receive shares of Sequenom
common stock.
Conditions to the Transaction (page 44)
Sequenom and Gemini will complete the Transaction only if a number of
conditions set forth in Appendix IV and Section 7 of the Transaction Agreement
are either satisfied or waived, some of which include:
. The Scheme of Arrangement becoming effective by not later than November
30, 2001 or such later date as Sequenom and Gemini may agree and the High
Court shall approve, failing which the Scheme will lapse.
. Approval of the Scheme of Arrangement by a majority in number of Gemini
shareholders representing at least 75% of the Gemini ordinary shares,
present and voting, either in person or by proxy, at the meeting of
Gemini shareholders convened by the High Court.
4
. Sanction of the Scheme of Arrangement and confirmation of the reduction
of capital involved in the Scheme by the High Court (in both cases, with
or without modification agreed by Sequenom and Gemini).
. An office copy of the final court order being delivered for registration
to the Registrar of Companies in England and Wales and being registered
by him.
. Approval of the issuance of shares pursuant to the Scheme of Arrangement
by the stockholders of Sequenom.
. The appointment of Michael Fitzgerald and a nominee of Mr. Fitzgerald
with relevant industry experience and reasonably acceptable to Sequenom
as directors to the board of directors of Sequenom.
See "Certain Terms of the Transaction Agreement--Conditions to the
Transaction".
Federal Income Tax Consequences (page 48)
The Transaction is expected to qualify as a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code. No gain or loss will be
recognized for U.S. federal income tax purposes by Sequenom, Gemini or Sequenom
stockholders as a result of the Transaction. See "Other Matters Related to the
Transaction--Federal Income Tax Consequences".
Tax matters can be complicated, and the tax consequences of the Transaction
to you will depend on the facts of your own situation. You should consult your
own tax advisors to fully understand the tax consequences of the Transaction to
you.
Accounting Treatment (page 48)
The Transaction will be accounted for as a "purchase" for financial
reporting purposes. For more information, see "Other Matters Related to the
Transaction--Accounting Treatment".
Certain Federal Securities Law Consequences (page 48)
The Sequenom common stock to be issued in the Transaction will not be
registered under the Securities Act of 1933, in reliance upon the exemption
from registration provided by Section 3(a)(10) of the Securities Act. As a
result, no registration statement concerning the issuance of Sequenom common
stock in the Transaction has been or will be filed with the SEC, other than as
may be required after the completion of the Transaction pursuant to the new
registration rights agreement described below. See "Other Matters Related to
the Transaction--Certain Federal Securities Law Consequences" and "United
Kingdom Corporate and Regulatory Approvals Concerning the Transaction".
Registration Rights Agreement (page 47)
Michael Fitzgerald, the Chairman of Gemini, three other shareholders of
Gemini affiliated with Mr. Fitzgerald and Sequenom will, prior to the closing
of the Transaction, enter into a new registration rights agreement. Under the
new registration rights agreement, each shareholder who is a party to the
agreement will have rights, under certain circumstances, to cause Sequenom to
register the shares of Sequenom common stock to be received in the Transaction
for resale under the Securities Act of 1933. These registration rights are
similar to the rights granted by Sequenom to certain investors prior to
Sequenom becoming a public company. See "Interests of Certain Persons in the
Transaction and Related Agreements--Registration Rights Agreement".
Forward-Looking Statements May Prove Inaccurate
This proxy statement includes forward-looking statements that are subject to
risks and uncertainties. Forward-looking statements include the information
concerning the possible future results of operations of
5
Sequenom, Gemini or the combined company. When used in this proxy statement,
the words "may", "intend", "will", "should", "could", "potential", "expect",
"anticipate", "believe", "estimate", "plan", "predict", "help", "attempt",
"develop", "continue" or similar expressions are intended to identify forward-
looking statements, although not all forward-looking statements contain these
identifying words. You should note that the ownership of Sequenom common stock,
whether or not the Transaction is completed, involves certain risks and
uncertainties that could affect the future financial results of Sequenom. Some
of these risks include:
. risks related to the integration of the Sequenom and Gemini management
teams and organizations in the combined company;
. risks associated with integrating the businesses and technologies of
Sequenom and Gemini in the combined company;
. risks related to the businesses of Sequenom and Gemini; and
. other risks and uncertainties discussed under "Risk Factors" and
elsewhere in this proxy statement.
6
RISK FACTORS
In deciding whether to approve the Transaction and the proposal to amend
Sequenom's certificate of incorporation and bylaws, you should consider the
following risks related to the Transaction and to your investment in the
combined company following the Transaction. You should consider carefully these
risks along with other information in this proxy statement and the documents to
which we have referred. See "Where You Can Find More Information" on page 63.
Risks Related to the Transaction
When You Vote on the Transaction, You Will Not Know the Market Value of the
Sequenom Common Stock to be Issued in the Transaction
Upon completion of the Transaction, the shareholders, option holders and
warrant holders of Gemini will receive up to 14,403,870 shares of Sequenom
common stock based upon a fixed exchange ratio. Even if the market price of
Sequenom common stock changes, there will be no change in the amount of
securities to be issued to Gemini shareholders. There is no right to terminate
the Transaction Agreement based on a change in Sequenom's stock price. The
price of Sequenom common stock at the completion of the Transaction may vary
from its price on the date of this proxy statement and on the date of the
special meeting. Accordingly, stockholders will not know the specific value of
Sequenom common stock to be issued upon completion of the Transaction when they
vote on the Transaction.
Integration and Operation of the Combined Company
Sequenom and Gemini expect certain benefits to arise from the Transaction.
See "The Transaction-- Reasons for the Transaction". Achievement of these
anticipated benefits will depend in part upon when, and how effectively, the
management teams, businesses and technologies of Sequenom and Gemini are
integrated. The officers and employees of Gemini have operated as an
independent business until now and must adapt to functioning within a larger
organization under the management of a new group of officers and directors. The
integration process will be expensive and time consuming and may strain
Sequenom's management and other resources. The integration of operations will
require, among other things: coordinating or combining research and development
efforts, aligning the business models and technologies of the two previously
independent companies and addressing integration challenges associated with
Sequenom's and Gemini's existing collaborations and geographically dispersed
operations. Both companies have operations outside the United States that could
give rise to integration challenges that neither management team has
encountered before. The integration challenges could require significantly more
management time, attention and resources than presently contemplated. There can
be no assurance that the operations of Sequenom and Gemini will be successfully
combined or that any of the anticipated benefits will be achieved.
Shares Eligible for Future Sale
Sales of substantial amounts of Sequenom common stock in the public market
could adversely affect the market price of the Sequenom common stock. Up to
14,403,870 shares of Sequenom common stock will be issued as consideration
pursuant to the Transaction, including shares of Sequenom common stock that may
be issued after the completion of the Transaction upon the exercise of
currently outstanding Gemini options and warrants. Approximately 9.7 million
shares of Sequenom common stock to be issued in the Transaction (including
shares of Sequenom common stock issuable upon the exercise of Gemini options
and warrants) will be eligible for sale in the public market without
restriction or registration immediately following the completion of the
Transaction. The remaining shares will be subject to a new registration rights
agreement between Sequenom and certain Gemini shareholders. These shareholders
who might otherwise be restricted from selling their Sequenom shares due to
their status as affiliates of Sequenom have the right, under certain
circumstances, to cause Sequenom to register their Sequenom shares for resale.
Once registered, those shares would be eligible for sale in the public market
without restriction. See "The Transaction--Stock Ownership Following the
Transaction" and "Certain Terms of the Transaction Agreement--Treatment of
Gemini Options and Warrants".
7
Dilution of Voting Interests of Sequenom Stockholders
Existing holders of Sequenom common stock will own in the aggregate
approximately 65% of the voting power of the outstanding shares of Sequenom
common stock immediately following completion of the Transaction (assuming the
exercise of all outstanding Sequenom options and warrants and the exercise of
all outstanding Gemini options and warrants). See "The Transaction--Stock
Ownership Following the Transaction". Existing holders of Sequenom common stock
will not have the same voting power following completion of the Transaction.
Failure to Complete the Transaction Could Negatively Impact Sequenom's Price
and Future Business and Operations
If the Transaction is not completed for any reason, Sequenom may be subject
to a number of material adverse consequences, including the following:
. The price of Sequenom common stock may decline;
. Costs related to the Transaction, such as legal, accounting and financial
advisor fees, must be paid even if the Transaction is not completed; and
. Under certain circumstances, Sequenom may be required to pay a
termination fee. See "Certain Terms of the Transaction Agreement--
Termination; Termination Fee".
Risks Related to the Business of the Combined Company After the Transaction
History of Operating Losses
Both Sequenom and Gemini have experienced significant operating losses since
their inception. In each case, those losses resulted principally from costs
incurred in research and development and from selling, general and
administrative costs associated with operations. Sequenom expects operating
losses to continue for a number of years after the Transaction and is uncertain
if, and when, the combined company will ever become profitable.
New Risks Associated with Foreign Operations
Nearly all of Gemini's operations have been conducted outside the United
States, in countries in which Sequenom does not currently operate. As a result,
the combined company will be subject to increased risks of doing business
abroad, such as currency fluctuations, restrictions on transfer of funds and
transfer of technology and information, labor unrest, political instability and
compliance with employment and other laws and regulations in applicable
jurisdictions, as well as the related financial consequences of these risks.
The Combined Company's Operating Results May Fluctuate Significantly
The revenues and results of operations of the combined company may fluctuate
significantly, depending on a variety of factors, including the following:
. its success in selling, and changes in the demand for, its products and
services;
. variations in the timing of payments from customers and collaborative
partners and the recognition of these payments as revenues;
. higher than anticipated integration costs;
. the pricing of products and services;
. the timing of any new product or service offerings;
. changes in the research and development budgets of its customers and
partners;
. the introduction of new products and services by its competitors;
8
. the cost and timing of its adoption of new technologies;
. the cost, quality and availability of oligonucleotides, DNA samples,
reagents and related components and technologies;
. changes in the regulatory environment affecting healthcare and healthcare
providers; and
. expenses related to, and the results of, any litigation or other
proceedings, including litigation or other proceedings relating to
intellectual property rights.
In particular, the combined company's revenues and operating results will be
unpredictable because they will continue to depend largely on the number and
timing of MassARRAY system placements made during a quarter as well as the
revenue generated by license agreements and collaborative programs. Any delay
in generating revenues could cause significant variations in operating results
from quarter to quarter and could result in increased operating losses.
Sequenom believes that period-to-period comparisons of financial results
will not be meaningful. You should not rely on such comparisons as an
indication of the combined company's performance. If the combined company's
operating results in any future period falls below the expectations of
securities analysts and investors, its stock price will likely fall.
A Reduction in Revenues from Sales of MassARRAY Systems Would Harm the Combined
Company's Business
A decline in the demand for MassARRAY Systems would reduce the combined
company's total revenues and harm its business. Sequenom expects that MassARRAY
system sales will continue to account for a substantial portion of the combined
company's total revenues for the foreseeable future. The following factors may
reduce the demand for MassARRAY systems:
. competition from other products;
. failure of single nucleotide polymorphisms ("SNPs") to demonstrate
medical relevance;
. negative publicity or evaluation; or
. intellectual property claims or litigation.
The Combined Company May Need Additional Capital in the Future to Support Its
Growth
Based on current plans, Sequenom believes the combined cash, cash
equivalents and short-term investments of the two companies will be sufficient
to fund the combined company's operating expenses, debt obligations and capital
requirements through at least the next 12 months. The actual amount of funds
that the combined company will need will be determined by many factors, some of
which are beyond its control, and it may need funds sooner than currently
anticipated. These factors include:
. the level of its success in selling MassARRAY systems, consumables,
assays and services;
. the level of its sales and marketing expenses;
. the extent to which it enters into licensing arrangements, collaborations
or joint ventures;
. its progress with research and development;
. its ability to introduce and sell new products and services;
. the costs and timing of obtaining new patent rights;
. the extent to which it acquires additional technologies or companies;
. regulatory changes and competition and technological developments in its
markets;
9
. the level of its expenses associated with any litigation; and
. the level of its expenses associated with integrating the businesses of
Sequenom and Gemini.
If the combined company requires additional funds and is unable to obtain
them on favorable terms, it may be required to cease or reduce further
commercialization of its products and services, sell some or all of its
technology or assets or merge with another entity. If it raises additional
funds by selling additional shares of capital stock, your ownership interest
will be further diluted.
The Combined Company May Not Be Able to Successfully Adapt Its Products for
Commercial Applications
A number of potential applications of the MassARRAY technology could require
significant enhancements in the core technology, including adaptation of the
software, alternative chemistry and further miniaturization. If the combined
company is unable to complete the development, introduction or scale-up of the
manufacturing of any product or of any genotyping facility, or if any of its
products or services does not achieve a significant level of market acceptance,
the combined company's business, financial condition and results of operations
could be seriously harmed. Market acceptance will depend on many factors,
including demonstrating to customers that the technology is superior to other
technologies and products which are available now or which may become available
in the future. Sequenom believes that the combined company's revenue growth and
profitability will substantially depend on its ability to overcome significant
technological challenges and successfully introduce products and services into
the marketplace.
The Combined Company and Its Collaborative Partners May Not Be Successful in
Developing or Commercializing Therapeutic, Diagnostic or Other Products Using
Its Products, Services or Discoveries
Development of therapeutic, diagnostic and other products based on
discoveries or collaborative partners' discoveries will be subject to the risks
of failure in their development or commercial viability. These risks include
the possibility that any such products will:
. fail to receive necessary regulatory approvals;
. fail to be developed prior to the successful marketing of similar
products by competitors;
. be found to be ineffective;
. be difficult or impossible to manufacture on a commercial scale;
. be uneconomical to market;
. be found to be toxic; or
. be impossible to market because they infringe on the proprietary rights
of others or compete with products marketed by others that are superior.
If a partner or the combined company discovers therapeutic, diagnostic or
other products using the combined company's products, services or discoveries,
the combined company may rely on that partner for product development,
regulatory approval, manufacturing or marketing of those products before the
combined company can realize some of the milestone payments, royalties and
other payments it may be entitled to under the terms of its collaboration
agreements. Those agreements may allow the partner significant discretion in
electing whether to pursue any of these activities. The combined company will
not be able to control the amount and timing of resources its partners may
devote to its programs or potential products. As a result, Sequenom cannot be
certain that these partners will choose to develop or commercialize any
products or will be successful in doing so. If a partner is involved in a
business combination, such as a merger or acquisition, or changes its business
focus, its performance in its agreement with the combined company may suffer
and, as a result, the combined company may not generate any revenues from the
royalty, milestone and similar payment provisions of its agreement with that
partner.
10
If the Medical Relevance of SNPs Becomes Questionable, The Combined Company May
Have Less Demand for Its Products and Services
Some of the products the combined company will attempt to develop involve
new and unproven approaches. They are based on the assumption that information
about genes, including information about SNPs, may help scientists better
understand complex disease processes. Generally, there is a limited
understanding of the role of genes in diseases, and few products based on gene
discoveries have been developed. Sequenom cannot be certain that genetic
information will play a key role in the development of drugs and diagnostics in
the future. If the combined company is unable to generate valuable information
that can be used to develop these drugs and diagnostics, the demand for its
products and services will be reduced and its business will be harmed.
If the Combined Company Does Not Succeed in Obtaining Development and Marketing
Rights for Some of the Assays Developed in Collaboration with Others, Its
Revenue and Profitability Will Be Reduced
The combined company's business strategy will include the development of
assays in collaboration with others, and Sequenom intends to obtain
commercialization rights to those assays. If the combined company is unable to
obtain rights to those assays, its anticipated revenues will be reduced. Even
if the combined company obtains commercialization rights, commercialization of
products may require resources that it may not possess and may not be able to
develop or obtain.
If the Combined Company Does Not Have Adequate Access to Genetic Materials, It
Will Not Be Able to Develop Its Business
The combined company will continue to depend on third parties for the
collection of extensive and detailed proprietary clinical data and the
collection and storage of large quantities of genetic material and other
biological samples. It will need access to normal and diseased human DNA
samples, other biological materials and related clinical and other information
to develop its products and services. Agreements between the combined company
and clinical partners typically are renewable, but individual partners could
decide not to renew their agreements. While these agreements typically provide
that data collected in the past will remain available to the combined company,
the combined company might not be able to effectively enforce those terms in
the jurisdiction of the partners and enforcing those terms could be time-
consuming and expensive. In addition, the cost of entering into new clinical
collaborations is increasing because of the increased commercial interest in
genomics.
Furthermore, if the validity of the consents obtained from DNA sample
volunteers or partners' DNA sample volunteers is successfully challenged, the
combined company may lose access to genetic material. Government regulation in
the United States and foreign countries could result in restricted access to,
or use of, human and other DNA samples. If the combined company loses access to
sufficient numbers or sources of DNA samples, or if tighter restrictions are
imposed on its use of the information generated from DNA samples, its business
will suffer.
The Combined Company Will Depend on Sales of SpectroCHIPs and Other Consumables
for a Significant Portion of Its Revenues
Sales of SpectroCHIPs and other consumables are an important source of
revenue. Factors which may limit the use of SpectroCHIPs and other consumables
include: failure to achieve additional sales of MassARRAY systems, failure to
achieve acceptance of the combined company's technologies by its customers, the
extent of customers' level of utilization of their MassARRAY systems and the
training of customer personnel. If the combined company's customers do not
purchase sufficient quantities of SpectroCHIPs and other consumables, its
revenues will be lower than anticipated.
11
If the Combined Company Cannot Attract and Retain Highly-Skilled Personnel, the
Growth of Its Business Might Not Proceed as Rapidly as Intended
The success of the combined company's business will depend on its ability to
identify, attract, hire, train, retain and motivate highly skilled personnel,
in particular, management, scientific, medical and technical personnel.
Competition for highly skilled personnel is intense, and the combined company
may not succeed in attracting and retaining these personnel. If the combined
company cannot attract and retain the personnel it requires, it may not be able
to expand its business as rapidly as intended.
Current and prospective Sequenom and Gemini employees may experience
uncertainty about their future role with the combined company until integration
strategies are announced or executed. This may adversely affect the ability of
the combined company to attract and retain key management and technical
personnel.
If Ethical, Privacy or Other Concerns Surrounding the Use of Genetic
Information Becomes Widespread, the Combined Company May Have Less Demand for
its Products and Services
Genetic testing has raised ethical issues regarding privacy and the
appropriate uses of the resulting information. For these reasons, governmental
authorities may call for limits on or regulation of the use of genetic testing
or prohibit testing for genetic predisposition to certain conditions,
particularly for those that have no known cure. Similarly, such concerns may
lead individuals to refuse to use genetics tests even if permissible. Any of
these scenarios could reduce the potential markets for the combined company's
products and services, which could seriously harm its business, financial
condition and results of operations.
If the Combined Company Does Not Find Any Genes of Commercial Interest, It May
Not Generate Significant Additional Revenues and May Not Become Profitable
The combined company focuses its gene discovery approach on the search for
genes that affect common human diseases, many of which are affected by several
different genes and other factors. Scientific understanding about which genes
cause common diseases is limited. To be successful, the combined company must
not only discover genes that are related to these diseases, it must also
discover genes that might be suitable candidates for the development of
therapeutics or diagnostics. Even if the combined company successfully
identifies disease genes, if it does not find genes with commercially viable
uses, it may not generate significant revenues and may not become profitable.
The Combined Company May Not Have the Resources Required to Successfully
Compete in the Biotechnology Industry
The biotechnology industry is highly competitive. Sequenom expects the
combined company to compete with a broad range of companies in the United
States and other countries that are engaged in the development and production
of products, services and strategies to analyze and use genetic information.
They include:
. biotechnology, pharmaceutical, chemical and other companies;
. academic and scientific institutions;
. governmental agencies; and
. public and private research organizations.
Many of these competitors have much greater financial, technical, research,
marketing, sales, distribution, service and other resources than the combined
company will have. Moreover, its competitors may offer broader product lines,
services and have greater name recognition than it will. Several early stage
companies are currently making or developing products and services that may
compete with the combined company's products and services. Its competitors may
develop or market technologies or products that are more effective or
commercially attractive than the combined company's technologies or products
and services, or that may render
12
its technologies or products obsolete. The combined company may also compete
against some of its customers, which may adversely affect its relationships
with them.
The Combined Company's Ability to Compete May Decline If It Loses Some of Its
Intellectual Property Rights Due to Lawsuits to Protect or Enforce its Patents
The combined company success will depend on its ability to obtain and
protect patents on its technologies and to protect its trade secrets. Its
patents may not afford meaningful protection for its technologies and products.
Others may challenge those patents, and the patents could be narrowed,
invalidated or ruled unenforceable. The combined company's current and future
patent applications may not result in the issue of patents in the United States
or other countries. Competitors may develop similar products that do not
conflict with its patents. To protect or enforce patent rights, the combined
company may initiate interference proceedings, oppositions, or patent
litigation against others, such as infringement suits. Such activities could be
expensive, take significant time and divert management's attention from other
business concerns. The patent position of biotechnology firms generally is
highly uncertain, involves complex legal and factual questions and remains the
subject of much litigation. No consistent policy has emerged from the U.S.
Patent and Trademark Office, patent offices in other countries (including the
European Patent Office) or the courts (whether in the U.S. or elsewhere)
regarding the breadth of claims allowed or the degree of protection afforded
under biotechnology patents. There is a substantial backlog of biotechnology
patent applications at the U.S. Patent and Trademark Office and in other patent
offices (including the European Patent Office), and the approval or rejection
of patent applications may take several years.
The Combined Company's Success Will Depend on Its Ability to Operate Without
Infringing on or Misappropriating the Proprietary Rights of Others
The combined company may be accused of infringing on the patent rights of
others. Intellectual property litigation is costly, and, even if the combined
company prevails, the cost of such litigation could adversely affect its
business, financial condition and results of operations. Litigation is time
consuming and could divert management attention and resources away from the
business. If the combined company does not prevail in any litigation, in
addition to any damages it might have to pay, it could be required to stop the
infringing activity or obtain a license. Any required license may not be
available on acceptable terms. Some licenses may be non-exclusive, and
competitors may have access to the licensed technology. If the combined company
fails to obtain a required license or is unable to design around a patent, it
may be unable to sell some of its products or services, which could have a
material adverse affect on its business, financial condition and results of
operations.
Responding to Claims Relating to Improper Handling, Storage or Disposal of
Hazardous Chemicals and Radioactive and Biological Materials Could Be Time
Consuming and Costly
The combined company will use controlled hazardous and radioactive
materials. The risk of accidental contamination or injury from these materials
cannot be completely eliminated. If an accident with these substances occurs,
the combined company could be liable for any damages that result, which could
seriously harm its business. An accident could also damage its research and
manufacturing facilities and operations, resulting in delays and increased
costs. In addition, such damage and any expense resulting from delays,
disruptions or any claims may fall outside the scope of applicable insurance
policies.
The Performance of the Combined Company's Computer Systems is Critical to Its
Business and, if It Experiences System Failures, Its Gene Discovery Program
Could be Hindered
The performance of the combined company's computer systems is critical to
its ability to store and access data and to identify and determine the specific
function of genes. The combined company will have proprietary rights to the
clinical data that it collects through its clinical collaborators and to
genetic information derived from that clinical data. The combined company's
ability to use this data may be limited by data protection legislation in
Europe and elsewhere. The combined company will have access to other genetic
information from
13
its technology collaborators. Increasing amounts of genetic data (as opposed to
clinical data) are available in the public domain. Accordingly, the computer
systems must effectively handle large amounts of proprietary and non-
proprietary information. The performance of the computer systems may impact
whether the combined company discovers a disease gene, or how quickly it makes
a discovery.
The combined company attains and stores data using sophisticated computer
software and systems, which may contain undetected errors or failures. The
combined company may not succeed in upgrading its databases or other
technologies or integrating its current technology with other new or existing
technologies. To the degree it depends on third party suppliers of technology,
those suppliers might not provide useful services or their technologies might
not function as anticipated or be successfully integrated with the combined
company's own technology.
Furthermore, some locations in California have experienced sporadic periods
of electricity outages. This condition is expected to continue into the future
and may worsen during periods of peak energy consumption in summer months. An
interruption in power supplied to the combined company's facilities could
disrupt the performance of the combined company's computer systems and could
adversely affect its ability to store and use genetic data, identify the
specific function of genes and affect the combined company's ability to conduct
its normal operations.
14
THE SPECIAL MEETING
Date, Time and Place
The Special Meeting of Sequenom stockholders will be held at 10:00 a.m.,
Pacific time, on August 23, 2001, at the offices of Sequenom located at 3595
John Hopkins Court, San Diego, California 92121. Sequenom is sending this proxy
statement to you in connection with the solicitation of proxies by the Sequenom
board of directors for use at the special meeting or any adjournment or
postponement thereof.
Purpose
At the special meeting, you will be asked:
. to approve the Transaction; and
. to approve (a) an amendment to Sequenom's certificate of incorporation to
provide that the Sequenom board of directors will have the exclusive
right to set the authorized number of directors from time to time and
that 66 2/3% of the outstanding voting power of Sequenom common stock
will be required to amend, alter or repeal this provision, and (b) a
related amendment to Sequenom's bylaws to provide that the authorized
number of directors will be fixed as set forth in the certificate of
incorporation rather than the bylaws.
You may also be asked to transact additional business if it properly comes
before the special meeting.
Board of Directors Recommendation
The Sequenom board of directors has concluded that the proposals are
advisable and in the best interest of Sequenom and its stockholders and has
unanimously approved the proposals. The Sequenom board of directors unanimously
recommends that Sequenom stockholders vote "FOR" approval of both proposals.
Quorum
The presence at the special meeting, either in person or by proxy, of
holders of a majority of the issued and outstanding Sequenom common stock on
the record date is necessary to constitute a quorum to transact business at the
meeting. If a quorum is not present, it is expected that the special meeting
will be adjourned or postponed to solicit additional proxies. Shares of
Sequenom common stock represented at the special meeting but not voting,
including shares of Sequenom common stock for which proxy cards have been
received but for which the holders have abstained and broker non-votes, will be
treated as present at the special meeting for purposes of determining the
presence or absence of a quorum for the transaction of all business.
Record Date
The Sequenom board of directors has fixed the close of business on July 6,
2001 as the record date for the special meeting. Only record holders of
Sequenom common stock at the close of business on July 6, 2001 will be entitled
to notice of and to vote at the special meeting.
Stockholders Entitled to Vote
At the close of business on the record date, July 6 , 2001, there were
24,365,706 shares of Sequenom common stock outstanding and entitled to vote.
The holders of Sequenom common stock are entitled to cast one vote for each
share they hold on each matter submitted to the Sequenom stockholders for a
vote at the special meeting.
15
Required Votes
Approval of the Transaction requires the affirmative vote of the holders of
a majority of the Sequenom common stock voting in person or represented by
proxy at the special meeting. Failure to vote, broker non-votes and abstentions
will not be deemed to be cast either "FOR" or "AGAINST" the Transaction.
Approval of the proposed amendment to Sequenom's certificate of
incorporation requires the affirmative vote of the holders of a majority of the
Sequenom common stock outstanding on the record date.
Approval of the proposed amendment to Sequenom's bylaws requires the
affirmative vote of the holders of at least sixty-six and two-thirds percent
(66 2/3%) of the voting power of the Sequenom common stock outstanding on the
record date.
The approval of the amendment to Sequenom's certificate of incorporation is
subject to, and contingent upon, the approval of the amendment to Sequenom's
bylaws.
It is a condition that Sequenom stockholders approve the issuance of the
Sequenom common stock in the Transaction. However, it is not a condition to the
completion of the Transaction that the proposed amendments to Sequenom's
certificate of incorporation and bylaws be adopted by Sequenom stockholders.
Proxies
All shares represented by properly executed proxy cards received in time for
the special meeting will be voted at the special meeting in the manner
specified by the holders. Properly executed proxy cards that do not contain
voting instructions with respect to approval of the proposals will be voted as
recommended by the Sequenom board of directors. Accordingly, such proxies will
be voted "FOR" approval of the proposals.
Revocability of Proxies
You may revoke your proxy at any time before it is voted at the special
meeting. You may revoke your proxy:
. by filing with the Secretary of Sequenom at Sequenom's principal
executive office, 3595 John Hopkins Court, San Diego, California 92121, a
written notice of revocation or a duly executed proxy bearing a later
date, or
. by attending the meeting and voting in person.
Your attendance at the meeting will not, by itself, revoke a proxy.
Costs of Solicitation
Sequenom will bear the entire cost of solicitation of proxies, including
preparation, assembly, printing and mailing of this proxy statement, the proxy
card and any additional information furnished to you. Sequenom has retained
Georgeson Shareholder, at an estimated cost of $20,000 plus reimbursement of
expenses, to assist in the solicitation of proxies for the special meeting.
Copies of solicitation materials will be furnished to banks, brokerage houses,
fiduciaries and custodians holding in their names shares of common stock
beneficially owned by others to forward to such beneficial owners. Sequenom may
reimburse persons representing beneficial owners of common stock for their
costs of forwarding solicitation materials to such beneficial owners. Original
solicitation of proxies by mail may be supplemented by telephone, telegram or
personal solicitation by directors, officers or other regular employees of
Sequenom. No additional compensation will be paid to directors, officers or
other regular employees for such services.
16
MARKET PRICE INFORMATION
Sequenom common stock and Gemini American Depositary Shares are both listed
on the Nasdaq National Market. Sequenom began trading on the Nasdaq National
Market on February 1, 2000 and Gemini began trading on July 26, 2000.
Sequenom's ticker symbol is "SQNM" and Gemini's ticker symbol is "GMNI". The
tables below set forth for the fiscal quarters indicated, the reported high and
low sale prices of Sequenom common stock and Gemini American Depositary Shares
as reported by the Nasdaq National Market.
Sequenom Common Stock
Year ended
December 31,
2000
--------------
High Low
------- ------
First quarter (from February 1).............................. $191.25 $26.00
Second quarter............................................... $ 52.56 $17.00
Third quarter................................................ $ 50.00 $24.00
Fourth quarter............................................... $ 45.50 $12.13
Year ending
December 31,
2001
--------------
High Low
------- ------
First quarter................................................ $ 21.75 $ 7.63
Second quarter .............................................. $ 16.37 $10.18
Third quarter (through July 18, 2001)........................ $ 12.20 $11.61
Gemini American Depositary Shares
Fiscal year
ended March
31, 2001
--------------
High Low
------- ------
Second quarter (from July 26)................................ $ 22.36 $13.13
Third quarter................................................ $ 14.38 $ 5.38
Fourth quarter............................................... $ 8.25 $ 2.78
Fiscal year
ending March
31, 2002
--------------
High Low
------- ------
First quarter ............................................... $ 5.82 $ 3.72
Second quarter (through July 18, 2001)....................... $ 4.73 $ 4.55
At July 6, 2001, there were approximately 8,500 holders of record of
Sequenom common stock.
On July 18, 2001, the last full trading day for which it was practicable to
obtain market data before the printing of this document, the closing sale price
reported on the Nasdaq National Market for Sequenom's common stock was $11.28
per share. On May 25, 2001, the last full trading day prior to the announcement
of the signing of the Transaction Agreement, the closing sale price reported on
the Nasdaq National Market for Sequenom's common stock was $17.68 per share.
On July 18, 2001, the last full trading day for which it was practicable to
obtain market data before the printing of this document, the closing sale price
reported on the Nasdaq National Market for Gemini's American Depositary Shares
was $4.41 per share. On May 25, 2001, the last full trading day prior to the
announcement of the signing of the Transaction Agreement, the closing sale
price reported on the Nasdaq National Market for Gemini's American Depositary
Shares was $5.60 per share.
Neither Sequenom nor Gemini has paid any cash dividends in the past.
Sequenom intends to retain future earnings to fund the development and growth
of its business and not to pay any cash dividends in the foreseeable future.
17
COMPARATIVE PER SHARE DATA
The following table sets forth certain audited and unaudited historical per
share data of Sequenom and Gemini and unaudited pro forma combined per share
data. You should read the information below with the selected historical
financial information and the unaudited pro forma combined condensed financial
information included elsewhere in this proxy statement. The pro forma combined
condensed financial information is not necessarily indicative of the operating
results of future operations or the actual results that would have occurred
during the period presented.
Three months ended Year
March 31, 2001 ended (1)
------------------ ---------
Sequenom--Historical
Net loss per share (basic and diluted)...... $(0.29) $(1.46)
Book value per share(2)..................... $ 5.70 --
Gemini--Historical
Net loss per share (basic and diluted)...... $(0.02) $(0.22)
Net loss per ADS (basic and diluted)........ $(0.04) $(0.44)
Book value per share(3)..................... $ 1.26 --
Book value per ADS(3)....................... $ 2.52 --
Pro forma combined net loss per share (basic
and diluted)
Pro forma net loss per Sequenom share(4).... $(0.39) $(1.97)
Equivalent pro forma net loss per Gemini
share(5)................................... $(0.08) $(0.39)
Equivalent pro forma net loss per Gemini
ADS(5)..................................... $(0.16) $(0.79)
Pro forma combined net book value per share
Pro forma net book value per Sequenom
share(6)................................... $ 8.83 --
Equivalent pro forma net book value per
Gemini share(5)............................ $ 1.76 --
Equivalent pro forma net book value per
Gemini ADS(5).............................. $ 3.52 --
- --------
(1) The periods for which the net income per share data has been presented are
the year ended December 31, 2000 for Sequenom, and the year ended March
31, 2001 for Gemini.
(2) The Sequenom historical book value per share is calculated by dividing its
stockholders' equity at March 31, 2001, by the total number of outstanding
shares of common stock at March 31, 2001.
(3) The Gemini historical book value per share is calculated by dividing its
stockholders' equity at March 31, 2001 by the total number of outstanding
shares of its common stock at March 31, 2001. The Gemini historical book
value per Gemini American Depositary Share, or "ADS", is calculated by
dividing its stockholders' equity at March 31, 2001 by the total number of
outstanding ADSs at March 31, 2001.
(4) The pro forma combined net loss per share is calculated by dividing the
pro forma net loss by the pro forma number of shares outstanding.
(5) The equivalent pro forma combined amounts are calculated by multiplying
the pro forma combined per share amounts by the exchange ratio of 0.2 per
share of Sequenom common stock for each Gemini ordinary share and 0.4 per
share of Sequenom common stock for each ADS.
(6) The pro forma combined net book value per share is calculated by dividing
the pro forma stockholders' equity by the pro forma number of shares
outstanding.
18
SEQUENOM SUMMARY FINANCIAL INFORMATION
The following consolidated financial information is derived from the
Sequenom consolidated financial statements and should be read together with
such financial statements and the "Sequenom Management's Discussion and
Analysis of Financial Condition and Results of Operations" included in
Sequenom's annual and quarterly reports incorporated by reference in this proxy
statement.
Three months
ended March 31, Year ended December 31,
----------------- ----------------------------------------------
2001 2000 2000 1999 1998 1997 1996
------- -------- -------- -------- -------- ------- -------
(in thousands, except per share data)
Consolidated Statement
of Operations Data:
Revenues:
Product............... $ 3,710 $ 1,451 $ 8,254 $ -- $ -- $ -- $ --
Services.............. 1,471 1,447 -- -- -- --
Research and
development grants... 67 124 337 179 351 527 893
------- -------- -------- -------- -------- ------- -------
Total revenues....... 5,248 1,575 10,038 179 351 527 893
Costs and expenses:
Cost of product
revenue.............. 4,152 1,028 5,844 -- -- -- --
Research and
development.......... 5,290 4,237 19,163 10,291 6,188 3,532 3,136
Selling, general and
administrative....... 4,527 5,212 18,493 8,239 4,218 1,861 1,032
Amortization of
deferred stock
compensation......... 291 2,498 3,741 4,376 -- -- --
------- -------- -------- -------- -------- ------- -------
Total costs and
expenses............ 14,260 12,975 47,241 22,906 10,406 5,393 4,168
------- -------- -------- -------- -------- ------- -------
Loss from
operations.......... (9,012) (11,400) (37,203) (22,727) (10,055) (4,866) (3,275)
------- -------- -------- -------- -------- ------- -------
Other income (expense):
Interest income....... 2,088 1,539 8,925 1,578 397 57 73
Interest expense...... (73) (4,479) (4,683) (790) (613) (308) (275)
Other income, net..... (33) 15 75 169 -- -- --
------- -------- -------- -------- -------- ------- -------
Net Loss............. $(7,030) $(14,325) $(32,886) $(21,770) $(10,271) $(5,117) $(3,477)
------- -------- -------- -------- -------- ------- -------
Net loss per share,
basic and diluted...... $ (0.29) $ (0.85) $ (1.46) $ (26.23) $ (33.33) $(22.62) $(23.45)
Shares used in computing
net loss per share,
basic and diluted...... 24,317 16,804 22,454 830 308 226 148
As of December 31,
As of ----------------------------------------------
March 31, 2001 2000 1999 1998 1997 1996
----------------- -------- -------- -------- ------- -------
(in thousands, except per share data)
Sequenom Consolidated
Balance Sheet
Information:
Cash, cash equivalents
and short-term
investments............ $128,646 $138,424 $ 21,616 $ 28,497 $ 833 $ 1,326
Working capital......... 126,266 134,519 18,518 26,014 (125) 820
Total assets............ 160,593 166,262 29,753 32,777 2,273 2,714
Total long-term
obligations............ 1,132 1,827 7,326 7,408 3,772 2,872
Total stockholders'
equity (deficit)....... 138,545 144,939 17,539 22,635 (2,747) (1,206)
19
GEMINI SUMMARY FINANCIAL INFORMATION
The following consolidated financial information is derived from the Gemini
consolidated financial statements included elsewhere in this proxy statement
and should be read together with such financial statements and the "Gemini
Management's Discussion and Analysis of Financial Condition and Results of
Operations".
Year ended March 31,
----------------------------------------------
2001 2000 1999 1998 1997
-------- -------- -------- ------- -------
(in thousands, except per share data)
Consolidated Statement of
Operations Data:
Revenue........................ $ 1,579 $ 164 $ 198 $ -- $ --
Costs and expenses:
Cost of product revenue...... 71 25 -- -- --
Research and development..... 12,970 9,932 9,421 6,297 1,080
Selling, general and
administrative.............. 9,382 5,286 1,471 1,602 2,216
Amortization of goodwill and
other intangible assets..... 1,033 311 -- -- --
-------- -------- -------- ------- -------
Total costs and expenses....... 23,456 15,554 10,892 7,899 3,296
-------- -------- -------- ------- -------
Loss from operations........... (21,877) (15,390) (10,694) (7,899) (3,296)
Foreign currency gain.......... 4,472 -- -- -- --
Other income (expense)
Interest income.............. 3,841 478 269 164 18
Interest expense............. (477) (493) (320) (388) (185)
-------- -------- -------- ------- -------
Net loss before taxation..... (14,041) (15,405) (10,745) (8,123) (3,463)
Taxation credit.............. 880 -- -- -- --
-------- -------- -------- ------- -------
Net loss....................... $(13,161) $(15,405) $(10,745) $(8,123) $(3,463)
======== ======== ======== ======= =======
Net loss per share, basic and
diluted....................... $ (0.22) $ (0.73) $ (0.54) $ (0.41) $ (1.58)
======== ======== ======== ======= =======
Net loss per ADS, basic and
diluted....................... $ (0.44) $ (1.46) $ (1.08) $ (0.82) $ (3.16)
======== ======== ======== ======= =======
Shares used in calculation of
net loss per share and per
ADS, basic and diluted........ 60,140 21,182 20,000 20,000 2,197
As of March 31,
----------------------------------------------
2001 2000 1999 1998 1997
-------- -------- -------- ------- -------
Gemini Consolidated Balance
Sheet Information:
Cash and cash equivalents...... $ 79,576 $ 13,414 $ 12,165 $ 724 $ 2,158
Working capital................ 74,314 6,985 7,343 (1,903) 387
Total assets................... 92,460 22,236 14,766 2,735 3,316
Long-term obligations, less
current portion............... 1,862 2,987 636 1,281 765
Total shareholders' equity
(deficit)..................... 81,355 11,888 8,806 (1,488) 740
Ordinary share capital......... 5,238 4,192 1,646 1,646 16
20
UNAUDITED PRO FORMA COMBINED CONDENSED FINANCIAL STATEMENTS
The following unaudited pro forma combined condensed financial information
gives effect to the Transaction using the purchase method of accounting.
The unaudited pro forma combined condensed balance sheet is based on the
individual historical balance sheets of Sequenom and Gemini and has been
prepared to reflect the Transaction as if the Transaction had occurred as of
March 31, 2001.
The fiscal year end of Sequenom is December 31 and Gemini's fiscal year end
is March 31. The unaudited pro forma combined condensed statement of operations
for the year ended December 31, 2000 is based on the individual historical
statements of operations of Sequenom and Gemini and combines the results of
operations of Sequenom for the year ended December 31, 2000 with the results of
operations for Gemini for the year ended March 31, 2001 as if the Transaction
had occurred as of January 1, 2000. The unaudited pro forma combined condensed
statement of operations for the three months ended March 31, 2001 is based on
the individual historical statements of operations of Sequenom and Gemini and
combines the results of operations for Sequenom and Gemini for the three months
ended March 31, 2001, as if the Transaction had occurred as of the beginning of
the period. The results of operations of Gemini for the three months ended
March 31, 2001 are reflected in both the annual and quarterly pro forma results
of operations.
The pro forma combined condensed financial information is presented for
illustrative purposes only and is not necessarily indicative of the financial
position or operating results that would have been achieved if the Transaction
had been completed as of the beginning of the periods presented, nor are they
necessarily indicative of the future financial position or operating results of
Sequenom. The pro forma combined condensed financial information does not give
effect to any cost savings or restructuring and integration costs that may
result from the integration of Sequenom's and Gemini's operations. The costs
related to restructuring and integration have not yet been determined.
In February 2001, the Financial Accounting Standards Board, or FASB,
released a revised exposure draft for a proposed Statement of Financial
Accounting Standards, or SFAS, "Business Combinations and Intangible Assets--
Accounting for Goodwill". The proposed standard would, among other things,
require that goodwill not be amortized under any circumstance and require that
goodwill be tested for impairment annually or when events or circumstances
occur between annual tests indicating that goodwill of a reporting unit might
be impaired. The unaudited pro forma combined condensed financial statements do
not include any adjustments for the effects of the proposed statement.
The unaudited pro forma combined condensed financial information should be
read in conjunction with the audited and unaudited financial statements and
accompanying notes of Sequenom and Gemini included elsewhere in this proxy
statement or incorporated by reference herein.
21
SEQUENOM AND GEMINI
UNAUDITED PRO FORMA COMBINED CONDENSED BALANCE SHEET
March 31, 2001
--------------------------------------------------
Pro Forma Pro Forma
Sequenom Gemini Adjustments Notes Combined
-------- -------- ----------- -------- ---------
(in thousands)
Assets
Current assets:
Cash and cash
equivalents............. $ 44,987 $ 79,576 $ $ 124,563
Short-term investments,
available-for-sale...... 83,659 -- 83,659
Accounts receivable,
net..................... 5,750 1,399 7,149
Inventories, net......... 3,345 293 3,638
Other current assets and
prepaid expenses........ 9,441 1,414 10,855
Tax credit receivable.... -- 875 875
-------- -------- -------- ---------
Total current assets... 147,182 83,557 230,739
Equipment and leasehold
improvements, net......... 9,581 4,104 13,685
Other assets............... 3,830 -- 3,830
Restricted cash............ -- 1,127 1,127
Goodwill and other
intangible assets, net.... -- 3,672 117,170 (A) 120,842
-------- -------- -------- ---------
Total assets............... $160,593 $ 92,460 $117,170 $ 370,223
======== ======== ======== =========
Liabilities and
stockholders' equity
Current liabilities:
Accounts payable and
accrued expenses........ $ 10,647 $ 7,609 $ 9,010 (B) $ 27,266
Deferred revenue......... 9,276 100 (100) 9,276
Bank loans............... -- 139 139
Current portion of
capital lease
obligations............. 993 1,395 2,388
-------- -------- -------- ---------
Total current
liabilities........... 20,916 9,243 8,910 39,069
Deferred revenue, less
current portion........... 250 -- 250
Capital lease obligations,
less current portion...... 882 1,862 2,744
Stockholders' equity:
Common stock............. 24 5,238 (5,225) (C), (D) 37
Additional paid-in
capital................. 223,529 134,992 96,100 (C) 454,621
Notes receivable for
stock................... (599) -- (599)
Deferred compensation
related to stock
options................. (1,327) (1,490) (2,817)
Accumulated other
comprehensive income.... 339 (6,031) 6,031 (C) 339
Accumulated deficit...... (83,421) (51,354) 11,354 (C), (E) (123,421)
-------- -------- -------- ---------
Total stockholders'
equity................ 138,545 81,355 108,260 328,160
-------- -------- -------- ---------
Total liabilities and
stockholders' equity.. $160,593 $ 92,460 $117,170 $ 370,223
======== ======== ======== =========
See accompanying notes to the unaudited pro forma combined condensed financial
statements.
22
SEQUENOM AND GEMINI
UNAUDITED PRO FORMA COMBINED CONDENSED STATEMENT OF OPERATIONS
Sequenom Gemini
12 months 12 months
ended ended
December 31, March 31, Pro Forma Pro Forma
2000 2001 Adjustments Notes Combined
------------ --------- ----------- ----- ---------
(in thousands, except per share data)
Net revenues................ $ 10,038 $ 1,579 $ $ 11,617
Cost of revenues............ 5,844 71 5,915
-------- -------- -------- --------
Gross profit................ 4,194 1,508 5,702
Operating expenses
Research and development.. 19,163 12,970 32,133
Selling, general and
administrative........... 18,493 9,382 27,875
Amortization of deferred
stock compensation....... 3,741 -- 3,741
Amortization of goodwill
and other
intangible assets........ -- 1,033 23,434 (F) 24,467
-------- -------- -------- --------
Total operating
expenses............... 41,397 23,385 23,434 88,216
Loss from operations........ (37,203) (21,877) (23,434) (82,514)
Foreign currency gain....... -- 4,472 4,472
Interest income, net........ 4,242 3,364 7,606
Other income, net........... 75 -- 75
-------- -------- -------- --------
Loss before credit.......... (32,886) (14,041) (23,434) (70,361)
Tax credit.................. -- 880 880
-------- -------- -------- --------
Net loss.................... $(32,886) $(13,161) $(23,434) $(69,481)
======== ======== ======== ========
Loss per share, basic and
diluted
Historical net loss per
share, basic and
diluted.................. $ (1.46) $ (0.22) $ (1.97)
======== ======== ========
Weighted average shares
outstanding, basic and
diluted.................. 22,454 60,140 35,301
======== ======== ========
Historical net loss per
ADS, basic and diluted... $ (0.44)
========
Weighted average ADS
outstanding,
basic and diluted........ 60,140
========
The above pro forma combined condensed statement of operations does not
include an estimated $40 million in-process research and development charge to
be recorded by Sequenom in conjunction with the Transaction for the estimated
fair value of the in-process research and development of Gemini.
See accompanying notes to the unaudited pro forma combined condensed financial
statements.
23
SEQUENOM AND GEMINI
UNAUDITED PRO FORMA COMBINED CONDENSED STATEMENT OF OPERATIONS
Sequenom Gemini
Three months Three months
ended ended
March 31, March 31, Pro Forma Pro Forma
2001 2001 Adjustments Notes Combined
------------ ------------ ----------- ----- ---------
(in thousands, except per share data)
Net revenues............. $ 5,248 $ 1,505 $ $ 6,753
Cost of revenues......... 4,152 37 4,189
------- ------- ------- --------
Gross profit............. 1,096 1,468 2,564
Operating expenses
Research and
development........... 5,290 3,995 9,285
Selling, general and
administrative........ 4,527 4,005 8,532
Amortization of
deferred stock
compensation.......... 291 -- 291
Amortization of
goodwill and other
intangible assets..... -- 255 5,859 6,114
------- ------- ------- --------
Total costs and
expenses............ 10,108 8,255 5,859 24,222
Loss from operations..... (9,012) (6,787) (5,859) (21,658)
Foreign currency gain.... -- 4,129 4,129
Interest income, net..... 2,015 1,179 3,194
Other income, net........ (33) -- (33)
------- ------- ------- --------
Loss before credit....... (7,030) (1,479) (5,859) (14,368)
Tax credit............... -- (34) (34)
------- ------- ------- --- --------
Net loss................. $(7,030) $(1,513) $(5,859) $(14,402)
======= ======= ======= ========
Loss per share, basic and
diluted
Historical net loss per
share, basic and
diluted............... $ (0.29) $ (0.02) $ (0.39)
======= ======= === ========
Weighted average shares
outstanding, basic and
diluted............... 24,317 64,554 37,165
======= ======= === ========
Historical net loss per
ADS, basic and
diluted............... $ (0.04)
=======
Weighted average ADS
outstanding, basic and
diluted............... 64,554
=======
The above pro forma combined condensed statement of operations does not
include an estimated $40 million in-process research and development charge to
be recorded by Sequenom in conjunction with the Transaction for the estimated
fair value of the in-process research and development of Gemini.
See accompanying notes to the unaudited pro forma combined condensed financial
statements.
24
SEQUENOM AND GEMINI
NOTES TO UNAUDITED PRO FORMA COMBINED CONDENSED FINANCIAL STATEMENTS
1. Pro Forma Basis of Presentation and Adjustments
The unaudited pro forma combined condensed financial information assumes the
Transaction is to be accounted for as a purchase. The unaudited pro forma
combined condensed balance sheet is based on the individual balance sheets of
Sequenom and Gemini and has been prepared to reflect the Transaction as if the
Transaction had occurred as of March 31, 2001.
The unaudited pro forma combined condensed statement of operations for the
year ended December 31, 2000 is based on the individual historical statements
of operations of Sequenom and Gemini and combines the results of operations of
Sequenom for the year ended December 31, 2000 with the results of operations
for Gemini for the year ended March 31, 2001 as if the Transaction had occurred
as of January 1, 2000. The unaudited pro forma combined condensed statements of
operations for the three months ended March 31, 2001 is based on the individual
historical statements of operations of Sequenom and Gemini and combines the
results of operations for Sequenom and Gemini for the three months ended March
31, 2001, as if the Transaction had occurred as of the beginning of the period.
Under the terms of the Transaction Agreement, Sequenom will issue 0.2 shares
of Sequenom common stock for each outstanding Gemini ordinary share and 0.4
shares of Sequenom common stock for each Gemini American Depositary Share,
subject to downward adjustment in certain circumstances as provided in the
Transaction Agreement. Based on the exchange ratio, Sequenom will issue
approximately 12.8 million shares of Sequenom common stock and assume options
and warrants to purchase approximately 1.6 million shares of Sequenom common
stock.
Sequenom estimates the purchase price to be approximately $231.1 million.
For purposes of determining this estimated purchase price, Sequenom assumed
that the value of the Sequenom common stock issued in the Transaction is $16.80
per share based on the average closing price of Sequenom common stock for the
three days before and two days after the terms of the Transaction had been
agreed to and announced. The value of the options to be assumed is based on
their estimated fair value.
Sequenom is in the process of conducting an independent valuation of the
assets to be acquired in the Transaction in order to allocate the purchase
price in accordance with Accounting Principle Bulletin Opinion No. 16. Subject
to adjustments when the valuation is completed, the purchase price is allocated
as follows based upon management's best estimate of the fair value of the
tangible and intangible assets (in thousands):
Current assets acquired............................................ $ 83,557
Property and equipment............................................. 4,104
Other assets....................................................... 1,127
In-process research and development................................ 40,000
Deferred compensation.............................................. 1,490
Goodwill and other intangibles..................................... 120,842
Liabilities assumed................................................ (11,005)
Liabilities for merger-related costs............................... (9,010)
--------
$231,105
========
Adjustments will include changes in the value of the assets and liabilities
between April 1, 2001 and the date the Transaction is completed.
25
2. Pro Forma Adjustments to Pro Forma Combined Condensed Financial Information
(A) The residual amount of the purchase price over the fair value of the
assets acquired and liabilities assumed, including in-process research and
development, has been allocated to intangible assets. The intangible assets are
expected to consist of developed core technology, intellectual property,
assembled workforce and goodwill.
(B) To increase the accrued expenses by $9.0 million for Transaction-related
expenses such as investment banking, legal, accounting and miscellaneous fees.
(C) To eliminate the Gemini equity accounts.
(D) To reflect the value of the shares of Sequenom common stock to be issued
in connection with the Transaction.
(E) To reflect the charge for the Gemini in-process research and development
of approximately $40.0 million.
(F) To record amortization expense of the acquired intangibles related to
the Transaction based on a useful life of five years.
26
THE TRANSACTION
This section of the proxy statement describes material aspects of the
proposed Transaction. While Sequenom believes that the description covers the
material terms of the Transaction, this summary may not contain all of the
information that is important to you. You should read this entire proxy
statement and the other documents referred to herein for a more complete
understanding of the Transaction.
Background of the Transaction
Since Sequenom's initial public offering in February 2000, Sequenom's
management has been exploring opportunities to further develop Sequenom's
capabilities to develop therapeutic drugs and diagnostics. Sequenom and Gemini
entered into a research collaboration agreement dated as of March 31, 2000 to
discover and validate associations between SNPs in the human genome and
particular diseases, including disease risk traits.
During early March 2001, Toni Schuh, president and chief executive officer
of Sequenom, and Paul Kelly, president, chief executive officer and a director
of Gemini, began discussions over the telephone regarding possible scenarios
under which the companies could work together to expand upon their existing,
previously announced collaboration. As discussions progressed, Dr. Schuh and
Dr. Kelly determined that both companies were interested in discussing a
potential business combination.
On March 13, 2001, Dr. Schuh, Stephen Zaniboni, Sequenom's chief financial
officer and Charles Cantor, Sequenom's chief scientific officer, met with Dr.
Kelly and Jeremy Ingall, a director of Gemini, in Boston, Massachusetts. During
this meeting the parties continued discussions regarding expansion of their
relationship and possible business combination alternatives.
On March 23, 2001, Mr. Zaniboni contacted representatives of Robertson
Stephens, Inc. concerning Robertson Stephens' representation of Sequenom in
exploring a possible business combination with several companies, including
Gemini.
On March 28 and 29, 2001, Dr. Schuh and Mr. Zaniboni met with Dr. Kelly and
Mr. Ingall in Needham, Massachusetts and continued discussions regarding
expansion of the parties' relationship and possible business combination
alternatives.
On April 3, 2001, representatives of Robertson Stephens held a conference
call with Dr. Schuh and Mr. Zaniboni to discuss the preliminary financial
analyses with respect to several potential acquisition candidates.
Subsequently, representatives from Robertson Stephens and Lipe & Co. (financial
advisor to Gemini) held a conference call to introduce themselves and to
discuss the expectations of Gemini and Sequenom with respect to the structure
of a potential business combination. On April 5, 2001, Dr. Schuh, Mr. Zaniboni
and several representatives from Robertson Stephens held a meeting at
Sequenom's headquarters in San Diego, California to discuss the strategy,
valuation and consequences of a business combination with Gemini.
On April 10, 2001, Sequenom and Gemini entered into a confidentiality
agreement.
On April 16, 2001, representatives of Robertson Stephens held a conference
call with Dr. Schuh and Mr. Zaniboni to further discuss the valuation of Gemini
and preliminary due diligence matters.
On April 18, 2001, representatives of Sequenom, Gemini and their respective
financial advisors held a meeting at Sequenom's headquarters in San Diego,
California. The purpose of this meeting was to discuss in detail each company's
respective businesses as well as the overall strategic rationale for a
potential combination.
27
On April 26, 2001, Dr. Kelly, Mr. Ingall, Tony Ratcliffe, chief financial
officer of Gemini, and representatives from Robertson Stephens and Lipe & Co.
met in connection with Sequenom's financial due diligence investigation of
Gemini.
On May 2, Dr. Schuh, Mr. Zaniboni, Mr. Lucas and Dr. Cantor, met with
representatives of Robertson Stephens in Robertson Stephens' Boston,
Massachusetts office to discuss valuation, negotiating strategy and other terms
of the potential combination.
On May 3, 2001, representatives from Sequenom, Gemini and their respective
financial advisors held meetings in Gemini's office in Needham, Massachusetts.
Representing Sequenom at the meetings were Dr. Schuh, Mr. Zaniboni, Mr. Lucas,
and Helmut Schusler, chairman of the board. Among the personnel representing
Gemini at the meetings were Mr. Fitzgerald, Dr. Kelly, Mr. Ingall and Patrick
Kleyn, executive vice president, science, of Gemini. Also present for the
meetings were representatives from Robertson Stephens and Lipe & Co. During the
course of the meetings, management of Sequenom and Gemini negotiated with
respect to the principal terms of the Transaction, including the exchange
ratios.
The managements of Sequenom and Gemini continued to negotiate the terms of
the exchange ratio over several telephone conversations subsequent to the May 3
meeting.
From May 14 to May 18, 2001, representatives of Sequenom, Gemini and their
respective legal advisors and independent accountants met in connection with
Sequenom's due diligence investigation of Gemini at Gemini's headquarters in
Cambridge, United Kingdom. Part of this diligence included an analysis of
Gemini DNA samples. On May 14, 2001, additional representatives from Sequenom
met with additional representatives from Gemini at Gemini's offices in Needham,
Massachusetts to conduct further due diligence at that site.
On May 17, 2001, Sequenom's board of directors held a meeting in Munich,
Germany. At the meeting, management of Sequenom updated the board of directors
on the status of negotiations with Gemini. Sequenom's board of directors
instructed management to continue negotiations with Gemini.
From May 21 to May 23, 2001, Dr. Schuh, Mr. Zaniboni, Clarke Neumann, vice
president and general counsel of Sequenom, representatives from Cooley Godward
LLP (Sequenom's U.S. legal advisor) and representatives from Lovells
(Sequenom's U.K. legal advisor) met with Mr. Fitzgerald, Dr. Kelly, and
Mr. Ingall among other Gemini personnel, representatives from Skadden, Arps,
Slate, Meagher & Flom LLP (Gemini's legal advisor), and representatives from
Lipe & Co., at Gemini's office in Needham, Massachusetts. At the meeting the
parties continued to negotiate the terms of the Transaction Agreement and
conduct due diligence.
From May 23 through May 29, 2001, representatives of Sequenom, Gemini,
Cooley Godward LLP, Lovells and Skadden, Arps, Slate, Meagher & Flom LLP
continued negotiating the Transaction Agreement and the related agreements.
On May 25, 2001, Sequenom's board of directors held a special meeting to
consider the approval of the Transaction and the Transaction Agreement and
related agreements. At the meeting, Dr. Schuh again reviewed the strategic and
business rationale for the proposed Transaction. Representatives of Robertson
Stephens then reviewed financial analyses they had prepared in connection with
their evaluation of the proposed exchange ratios in the Transaction. Robertson
Stephens rendered its oral opinion, subsequently confirmed in writing, to the
effect that, as of May 25, 2001 and subject to various assumptions, limitations
and qualifications set forth in its written opinion and described to the
Sequenom board of directors, the exchange ratios were fair to Sequenom from a
financial point of view. For a more detailed discussion of Robertson Stephens'
analysis and opinion, you should review the section captioned "Opinion of
Financial Advisor to
28
Sequenom" beginning on page 30 and the text of Robertson Stephens' opinion
attached as Attachment B to this proxy statement. Representatives of Cooley
Godward LLP then reviewed for the board the principal terms of the Transaction
Agreement and the related agreements and the results of its legal due diligence
review of Gemini. After discussion and deliberation, the Sequenom board
unanimously:
. determined that the Transaction is in the best interests of Sequenom and
its stockholders;
. approved the Transaction, the Transaction Agreement and the related
agreements;
. resolved to call a special meeting of Sequenom's stockholders to approve
the Transaction as required by the rules of The Nasdaq National Market;
and
. resolved to recommend that the stockholders of Sequenom vote in favor of
the Transaction.
On May 29, 2001, Sequenom and Gemini finalized, executed and delivered the
Transaction Agreement and each company issued a press release announcing the
Transaction.
Reasons for the Transaction
The boards of directors of Gemini and Sequenom believe that the Transaction
presents important scientific and commercial opportunities through the creation
of a company with the resources to expedite disease gene identification, drug
discovery and development. Gemini's extensive collection of clinical genomics
data and samples combined with Sequenom's genetic analysis technology platform
and disease gene discovery program means that the combined company will have
the capacity to perform millions of genetic analyses with access to
approximately 20 million clinical data points from more than 75,000 volunteer
subjects. The combination of the clinical genomics data, genetic technology
platform and disease gene discovery program of the combined company is expected
to expedite discovery activities and reduce the time needed to identify and
commercialize novel gene-based targets.
The combined company will attempt to identify genes involved in common human
diseases using bioinformatics and analytical tools. The Transaction will
significantly expand Sequenom's ability to perform disease gene association and
genetic marker validation studies. Sequenom believes that this expanded
capability will help it develop a pipeline of validated genes for downstream
development of diagnostic and therapeutic products. Each business unit of the
combined company will supplement the work of the other, with the goal of
leveraging and optimizing the value of each of the previously independent
companies. The combined company will have:
. industrial-scale genotyping capacity at Sequenom's high throughput
MassARRAY facility;
. clinical and genetic information from diverse populations to identify
genes associated to disease;
. over 90 candidate disease genes under investigation;
. a disease gene patent portfolio of 11 issued patents with approximately
89 pending and a technology patent portfolio of approximately 59 issued
or allowed patents with approximately 96 pending;
. critical mass and resources for an aggressive biotherapeutic development
program; and
. consolidated cash and short-term investments of approximately $208
million (based on cash and short-term investments balances of both
companies as of March 31, 2001);
Gemini and Sequenom have an existing collaboration which they entered into
as of March 31, 2000, which seeks to discover candidate disease gene
association using Sequenom's MassARRAY technology platform and Gemini's
clinical resources. The combined technological capabilities, clinical data and
scientific expertise will give the combined company enhanced resources and the
ability to offer an enhanced suite of products.
Stock Ownership Following the Transaction
Assuming that there will be approximately 72 million ordinary shares of
Gemini outstanding immediately prior to the completion of the Transaction
(including ordinary shares issuable upon the exercise of options and warrants
to purchase Gemini ordinary shares and ordinary shares represented by American
Depositary Shares),
29
the number of shares of Sequenom common stock to be issued or issuable in the
Transaction would be approximately 14.4 million shares, or approximately 35% of
the total outstanding Sequenom common stock (using the treasury stock method to
calculate diluted shares outstanding). Michael Fitzgerald, the current Chairman
of Gemini, together with three Gemini shareholders affiliated with Mr.
Fitzgerald, would beneficially own in the aggregate 4,087,128 shares (including
options to purchase shares) of Sequenom common stock or approximately 10.1% of
the total outstanding Sequenom common stock (assuming the exercise of all
outstanding Sequenom options and warrants).
Opinion of Financial Advisor to Sequenom
Pursuant to an engagement letter dated May 23, 2001, Sequenom engaged
Robertson Stephens, Inc. to provide financial advisory and investment banking
services to it in connection with the Transaction, and to render an opinion as
to the fairness of the exchange ratios in the Transaction, from a financial
point of view, to Sequenom.
On May 25, 2001, at a meeting of the Sequenom board of directors held to
evaluate the Transaction, Robertson Stephens delivered to the Sequenom board of
directors its oral opinion, subsequently confirmed in a written opinion dated
as of May 25, 2001, that as of that date and based on the assumptions made,
matters considered and the limitations on the review undertaken described in
the written opinion, the exchange ratios of 0.2 shares of Sequenom common stock
for each Gemini ordinary share and 0.4 shares of Sequenom common stock for each
Gemini American Depositary Share were fair from a financial point of view to
Sequenom. See Attachment B for a copy of the full opinion. The exchange ratios
were determined through negotiations between the respective managements of
Sequenom and Gemini. Although Robertson Stephens did assist the management of
Sequenom in those negotiations, it was not asked by, and did not recommend to,
Sequenom whether any specific exchange ratios constituted the appropriate
exchange ratios for the Transaction.
You should consider the following when reading the discussion of the opinion
of Sequenom's financial advisor in this document:
. We urge you to read carefully the entire opinion of Robertson Stephens,
which is set forth in Attachment B to this proxy statement and is
incorporated by reference. The following description of the Robertson
Stephens opinion is qualified by reference to the full opinion located in
Attachment B. The full opinion sets forth, among other things, the
assumptions made, the matters considered and the limitations on the
review undertaken by Robertson Stephens.
. The Robertson Stephens opinion was prepared for the information of the
Sequenom board of directors in connection with its evaluation of the
Transaction and does not constitute a recommendation to the stockholders
of Sequenom or the holders of Gemini ordinary shares or Gemini American
Depositary Shares as to how they should vote, or take any other action,
with respect to the Transaction.
. The Robertson Stephens opinion did not address the relative merits of the
Transaction and the other business strategies that the Sequenom board of
directors has considered or may be considering, nor does it address the
decision of the Sequenom board of directors to proceed with the
Transaction.
. The Robertson Stephens opinion was necessarily based upon market,
economic and other conditions that were in effect on, and information
made available to Robertson Stephens as of, the date of the opinion. You
should understand that subsequent developments may affect the conclusion
expressed in the Robertson Stephens opinion, and that Robertson Stephens
disclaims any undertaking or obligation to advise any person of any
change in any matter affecting its opinion which may come or be brought
to Robertson Stephens' attention after the date of its opinion.
. The Robertson Stephens opinion was limited to the fairness to Sequenom,
from a financial point of view and as of the date thereof, of the
exchange ratios of 0.2 shares of Sequenom common stock for each Gemini
ordinary share and 0.4 shares of Sequenom common stock for each Gemini
American Depositary Share.
30
Opinion and Analysis of Robertson Stephens
In connection with the preparation of the Robertson Stephens opinion,
Robertson Stephens:
. reviewed certain publicly available financial statements and other
business and financial information of Gemini and Sequenom, respectively;
. reviewed certain internal financial statements and other financial and
operating data concerning Gemini and Sequenom prepared by the managements
of Gemini and Sequenom, respectively;
. reviewed with Gemini and Sequenom certain publicly available research
estimates of research analysts regarding Gemini and Sequenom;
. held discussions with the respective managements of Gemini and Sequenom
concerning the businesses, past and current operations, financial
condition and future prospects of both Gemini and Sequenom, independently
and combined, including discussions with the managements of Gemini and
Sequenom concerning cost savings and other synergies that are expected to
result from the Transaction as well as discussions with the managements
of Gemini and Sequenom concerning their views regarding the strategic
rationale for the Transaction;
. reviewed the financial terms and conditions set forth in a draft, dated
May 25, 2001, of the Transaction Agreement;
. reviewed the price and trading history of Gemini American Depositary
Shares and Sequenom common stock;
. compared the financial performance of Gemini and the prices and trading
activity of Gemini American Depositary Shares with that of certain other
publicly traded companies comparable with Gemini;
. compared the financial performance of Sequenom and the prices and trading
activity of Sequenom common stock with that of certain other publicly
traded companies comparable with Sequenom;
. compared the financial terms of the Transaction with the financial terms,
to the extent publicly available, of other transactions that Robertson
Stephens deemed relevant;
. compared the premium implied by the Transaction to the premiums paid, to
the extent publicly available, in other transactions Robertson Stephens
deemed relevant;
. prepared an analysis of the relative contributions of Gemini and Sequenom
to the combined company;
. prepared a discounted cash flow analysis of Gemini;
. participated in discussions and negotiations among representatives of
Gemini and Sequenom and their financial and legal advisors; and
. made such other studies and inquiries, and reviewed such other data, as
Robertson Stephens deemed relevant.
In its review and analysis, and in arriving at its opinion, Robertson
Stephens assumed and relied upon the accuracy and completeness of all of the
financial and other information provided to it, including information furnished
to it orally or otherwise discussed with it by the managements of Gemini and
Sequenom, or publicly available and neither attempted to verify, nor assumed
responsibility for verifying, any of such information. Robertson Stephens
relied upon the assurances of the managements of Gemini and Sequenom that they
were not aware of any facts that would make such information inaccurate or
misleading. Furthermore, Robertson Stephens did not obtain or make, or assume
any responsibility for obtaining or making, any independent evaluation or
appraisal of the properties, assets or liabilities, contingent or otherwise, of
Gemini or Sequenom, nor was it furnished with any such evaluation or appraisal.
With respect to the financial forecasts and projections, and the assumptions
and bases therefor, for each of Gemini and Sequenom that Robertson Stephens
reviewed, Robertson Stephens assumed that:
. such forecasts and projections were reasonably prepared in good faith on
the basis of reasonable assumptions;
31
. such forecasts and projections reflect the best currently available
estimates and judgments as to the future financial condition and
performance of Gemini and Sequenom, respectively; and
. such forecasts and projections will be realized in the amounts and in the
time periods currently estimated.
In addition, Robertson Stephens assumed that:
. the Transaction will be completed upon the terms set forth in the draft
of the Transaction Agreement dated May 25, 2001, without material
alteration thereof and that the Transaction will be accounted for as a
"purchase method" business combination in accordance with U.S. generally
accepted accounting principles;
. the Transaction will be treated as a tax-free reorganization pursuant to
the Internal Revenue Code and that neither Gemini nor Sequenom will be
subject to income tax or other material tax under United Kingdom law in
connection with the Transaction; and
. the historical financial statements of each of Gemini and Sequenom
reviewed by Robertson Stephens were prepared and fairly presented in
accordance with U.S. generally accepted accounting principles
consistently applied.
Robertson Stephens relied as to all legal matters relevant to rendering its
opinion on the advice of counsel.
Robertson Stephens expressed no opinion as to:
. the value of any employee agreement or other arrangement entered into in
connection with the Transaction;
. any tax or other consequences that might result from the Transaction; or
. what the value of Sequenom common stock will be when issued to Gemini
shareholders and holders of Gemini American Depositary Shares pursuant to
the Transaction or the price at which shares of Sequenom common stock may
be traded in the future.
The following is a summary of the material financial analyses performed by
Robertson Stephens in connection with rendering its opinion. The summary of the
financial analyses is not a complete description of all of the analyses
performed by Robertson Stephens. Certain of the information in this section is
presented in tabular form. In order to better understand the financial analyses
performed by Robertson Stephens, these tables must be read together with the
text accompanying each table. The opinion is based upon the totality of the
various analyses performed by Robertson Stephens and no particular portion of
the analyses has any value or merit standing alone. For the purposes of its
analyses, Robertson Stephens focused on the exchange ratio applicable to Gemini
American Depositary Shares.
Comparable Companies Analysis
Using publicly available information, Wall Street research reports and
information provided by FactSet Research Systems Inc., an independent financial
database provider, Robertson Stephens analyzed, among other things, the total
enterprise values and trading multiples of the following selected publicly
traded companies in the genomics databases/services industry which Robertson
Stephens believed to be reasonably comparable to Gemini:
. deCODE genetics, Inc.
. Deltagen, Inc.
. Genaissance Pharmaceuticals, Inc.
. Gene Logic Inc.
. Genset, S.A.
32
. Rosetta Inpharmatics, Inc.
. Variagenics, Inc
Total enterprise value means the diluted equity value of the company plus
the book value of all debt and preferred stock outstanding, if any, less cash
and equivalents. All multiples were based on closing stock prices as of May 24,
2001, except for Rosetta Inpharmatics, Inc. which was based on its closing
stock price one day prior to the announcement of its acquisition by Merck &
Co., Inc. As set forth in the following table, applying a range of multiples
for the selected publicly traded companies of total enterprise value to
estimated revenues for calendar years 2002 and 2003 to corresponding revenue
data for Gemini resulted in the following ranges of implied equity values,
prices per American Depositary Share and exchange ratios for Gemini:
Multiple Implied Equity Implied Price Implied ADS
Calendar Year Range Values (in millions) Per ADS Exchange Ratio
- ------------- ----------- -------------------- ------------- -----------------
2002 (estimated)........ 6.0x - 8.0x $122.4 - $137.8 $3.73 - $4.18 0.2080x - 0.2334x
2003 (estimated)........ 3.0x - 5.0x $131.2 - $167.9 $3.99 - $5.06 0.2227x - 0.2822x
Mean.................... $126.8 - $152.8 $3.86 - $4.62 0.2153x - 0.2578x
Value in the Transaction
....................... $242.0 $7.18 0.4000x
Revenue data for Gemini were obtained from published research analyst
estimates of SG Cowen Securities Corporation as of May 15, 2001. The implied
prices per American Depositary Share were calculated using the treasury stock
method assuming approximately 32.4 million Gemini American Depositary Shares
outstanding and approximately 3.6 million outstanding options and warrants to
buy Gemini American Depositary Shares with a weighted average exercise price of
$6.76. The implied exchange ratios were based on a share price of $17.92 for
Sequenom common stock as of May 24, 2001.
Control Premium on Comparable Companies Valuation
Based upon its review of the range of premiums to the acquired company's
closing market price one day prior to the announcement of the transaction that
have been paid in the precedent transactions listed in the "Selected Precedent
Transactions Analysis" section below, Robertson Stephens applied a range of
control premiums of 45.0% to 50.0% to the equity valuations implied by the
foregoing comparable companies analyses. The results of this analysis are
summarized below:
Control Implied Equity Implied Price Implied ADS
Calendar Year Premium Range Values (in millions) Per ADS Exchange Ratio
- ------------- ------------- -------------------- ------------- -----------------
2002 (estimated)........ 45.0% - 50.0% $177.4 - $206.6 $5.33 - $6.17 0.2974x - 0.3442x
2003 (estimated)........ 45.0% - 50.0% $190.3 - $251.9 $5.70 - $7.47 0.3180x - 0.4166x
Mean.................... $183.8 - $229.2 $5.51 - $6.82 0.3077x - 0.3804x
Value in the
Transaction............ 242.0 $7.18 0.4000x
The premium paid in the acquisition of LJL Biosystems Inc. by Molecular
Devices Corporation was calculated using the closing market price one week
prior to the announcement of the transaction due to an unusual and significant
run-up in LJL Biosystems' stock price in the week prior to the announcement.
Selected Precedent Transactions Analysis
Using publicly available information, Wall Street research reports and
information provided by FactSet Research Systems Inc., Robertson Stephens
reviewed and analyzed the consideration paid and the purchase price premiums
paid on the following selected acquisition transactions in the genomics
industry (listing the acquired company followed by the acquiror and with the
date these transactions were publicly announced in parenthesis) which Robertson
Stephens believed to be reasonably comparable to the Transaction:
. Rosetta Inpharmatics, Inc./Merck & Co., Inc. (May 11, 2001)
. Aurora Biosciences Corporation/Vertex Pharmaceuticals Incorporated (April
30, 2001)
33
. Proteome, Inc./Incyte Genomics, Inc. (December 21, 2000)
. Signal Pharmaceuticals, Inc./Celgene Corporation (July 3, 2000)
. LJL Biosystems Inc./Molecular Devices Corporation (June 9, 2000)
. Research Genetics, Inc./Invitrogen Corporation (December 10, 1999)
. Diatide, Inc./Schering AG (September 20, 1999)
. SIBIA Neurosciences, Inc./Merck & Co., Inc. (August 2, 1999)
In analyzing these "precedent transactions", Robertson Stephens compared,
among other things, the total enterprise value based on the implicit share
price in the precedent transaction as a multiple of the next twelve months', or
"NTM", estimated revenues. Based on this information and other publicly
available information, the following table illustrates the implied equity
values, prices per American Depositary Share and exchange ratios derived from
applying a range of multiples of total enterprise value that Robertson Stephens
derived from these precedent transactions to corresponding revenue data for
Gemini:
Multiple Implied Equity Implied Price Implied ADS
Range Values (in millions) Per ADS Exchange Ratio
------------- -------------------- ------------- -----------------
NTM Revenues............ 10.0x - 20.0x $204.9 - $333.6 $6.12 - $9.81 0.3414x - 0.5475x
Value in the
Transaction............ $242.0 $7.18 0.4000x
NTM revenues for Gemini were for the twelve month period ended December 31,
2002 and were obtained using SG Cowen published research analyst estimates. The
implied prices per American Depositary Share were calculated using the treasury
stock method assuming approximately 32.4 million Gemini American Depositary
Shares outstanding and approximately 3.6 million outstanding options and
warrants to buy Gemini American Depositary Shares with a weighted average
exercise price of $6.76. The implied exchange ratios were based on a share
price of $17.92 for Sequenom common stock as of May 24, 2001.
Premiums Paid Analysis
Based on the information presented in the prior "Selected Precedent
Transactions Analysis" section and other publicly available information,
Robertson Stephens reviewed and analyzed the purchase price premiums paid in
the foregoing precedent transactions, which it believed to be reasonably
comparable to the Transaction. The following table illustrates the ranges of
the implied equity values, prices per American Depositary Share and exchange
ratios, based on a share price of $17.92 for Sequenom common stock as of May
24, 2001, calculated by applying a range of one-day and one-month premiums
derived from the foregoing precedent transactions to corresponding closing
prices for Gemini American Depositary Shares:
Implied Equity
Values (in Implied Price Implied ADS
Premium Range millions) Per ADS Exchange Ratio
------------- --------------- ------------- -----------------
1 Day Premium to Gemini
ADS price ($5.55)....... 45.0% - 55.0% $272.1 - $291.5 $8.05 - $8.60 0.4491x - 0.4801x
1 Month Premium to
Gemini ADS price
($3.90)................. 65.0% - 75.0% $215.9 - $229.5 $6.44 - $6.83 0.3591x - 0.3809x
Mean ................... $244.0 - $260.5 $7.24 - $7.71 0.4041x - 0.4305x
Value in the
Transaction............ $242.0 $7.18 0.4000x
Discounted Cash Flow Analysis
Robertson Stephens performed a discounted cash flow analysis on the after-
tax free cash flows of Gemini for fiscal years 2002 through 2005 using
estimates for fiscal years 2002 through 2005 obtained from SG Cowen published
research analyst estimates as of February 15, 2001. These estimates do not
adhere to SAB 101
34
revenue recognition guidelines. However, Robertson Stephens believed that the
estimates calculated in this manner are more likely to accurately reflect the
actual cash flows of Gemini. Robertson Stephens first discounted the estimated
after-tax free cash flows through the fiscal year ending 2005 using discount
rates ranging from 30.0% to 40.0%. Robertson Stephens then added to the present
value of these after-tax free cash flows the exit value of Gemini based on a
multiple of its projected revenues in the fiscal year ending 2005, discounted
back to the present at the same discount rates. The exit value of Gemini in the
fiscal year ending 2005 was computed by multiplying estimated revenue for
fiscal year 2005 by exit revenue multiples ranging from 9.0x to 15.0x. The
estimated revenue for fiscal year 2005 was obtained from SG Cowen published
research analyst estimates as of May 15, 2001 and comply with SAB 101. The
ranges of exit revenue multiples were selected from the comparable companies
listed above and reflects Robertson Stephens' judgment as to an appropriate
range of multiples at the end of the referenced period. Applying the above
ranges of discount rates and exit multiples to the after-tax free cash flows of
Gemini yielded the following ranges:
Implied Equity Implied Price Implied ADS
Values (in millions) Per ADS Exchange Ratio
-------------------- ------------- -----------------
$152.0 - $280.6 $4.60 - $8.29 0.2567x - 0.4626x
Value in the Transaction
........................ $242.0 $7.18 0.4000x
The implied prices per American Depositary Share were calculated using the
treasury stock method assuming approximately 32.4 million Gemini American
Depositary Shares outstanding and approximately 3.6 million outstanding options
and warrants to buy Gemini American Depositary Shares with a weighted average
exercise price of $6.76. The implied exchange ratios were based on a share
price of $17.92 for Sequenom common stock as of May 24, 2001.
Contribution Analysis
Based upon publicly available information, estimates for Gemini obtained and
calendarized from SG Cowen published research analyst estimates and estimates
for Sequenom based on consensus Wall Street research estimates, Robertson
Stephens analyzed the respective contributions of Gemini and Sequenom to the
cash balance of the combined company based upon their respective cash balances
as of March 31, 2001 and their respective contributions to the estimated
revenues of the combined company for calendar years 2001, 2002 and 2003,
assuming no synergies. The results of this analysis are summarized below:
Implied Equity Implied Price Implied ADS
Values (in millions) Per ADS Exchange Ratio
-------------------- ------------- -----------------
Contribution Analysis... $58.0 - $271.8 $1.78 - $8.04 0.0994x - 0.4485x
Value in the
Transaction............ $242.0 $7.18 0.4000x
The implied prices per American Depositary Share were based on a share price
of $17.92 for Sequenom common stock as of May 24, 2001. The implied equity
values were calculated using the treasury stock method assuming approximately
32.4 million Gemini American Depositary Shares outstanding and approximately
3.6 million outstanding options and warrants to buy Gemini American Depositary
Shares with a weighted average exercise price of $6.76. The implied exchange
ratios were calculated using the gross diluted method assuming approximately
32.4 million Gemini American Depositary Shares outstanding and approximately
3.6 million outstanding options and warrants to buy Gemini American Depositary
Shares, and approximately 24.3 million shares of Sequenom common stock
outstanding and approximately 1.8 million outstanding options and warrants to
buy Sequenom common stock.
Sequenom Comparable Companies Analysis
Using publicly available information, Wall Street research reports and
information provided by FactSet Research Systems Inc., Robertson Stephens
analyzed the stock performance, total enterprise value and trading multiples of
Sequenom and two categories of comparable companies which Robertson Stephens
believed to be reasonably comparable to Sequenom.
35
Genomics Systems/Tools Industry
Robertson Stephens analyzed the stock performance, total enterprise value
and trading multiples of Sequenom and the following selected publicly traded
companies in the genomics systems/tools industry which Robertson Stephens
believed to be reasonably comparable to Sequenom:
. Caliper Technologies Corp.
. Genomic Solutions Inc.
. Molecular Devices Corporation
. Nanogen, Inc.
. Orchid Biosciences, Inc.
. Packard BioScience Company
In examining the comparable companies in the genomics systems/tools
industry, Robertson Stephens calculated the total enterprise value of each
company as a multiple of its respective estimated calendar year 2001 and 2002
revenues and compared such multiples to corresponding multiples for Sequenom.
Revenue data for Sequenom and the selected publicly traded companies were
consensus research estimates. Stock performances compared by Robertson Stephens
included the percentage below the highest intraday stock price and the
percentage above the lowest intraday stock price for each company for the
previous 52-week period, based upon the closing stock prices as of May 24,
2001. Robertson Stephens' analysis of these comparable companies resulted in
the following:
Stock
Performance Total Enterprise Value/
--------------- -------------------------------
% Above % Below CY 2001 Revenue CY 2002 Revenue
Low High (estimated) (estimated)
------- ------- --------------- ---------------
Maximum......................... 164.0% 88.6% 13.81x 6.94x
Minimum......................... 35.5% 60.1% 2.46x 2.13x
Sequenom........................ 135.0% 65.5% 10.66x 5.14x
Genomics Databases/Services Industry
Robertson Stephens analyzed the stock performance, total enterprise value
and trading multiples of Sequenom and the comparable companies listed in the
"Comparable Companies Analysis" section above which Robertson Stephens believed
to be reasonably comparable to Sequenom.
In examining the comparable companies in the genomics databases/services
industry, Robertson Stephens calculated the total enterprise value of each
company as a multiple of its respective estimated calendar year 2001, 2002 and
2003 revenues and compared such multiples to corresponding multiples for
Sequenom. Revenue data for Sequenom and the selected publicly traded companies
were obtained from research analysts estimates. Stock performances compared by
Robertson Stephens included the percentage below the highest intraday stock
price and the percentage above the lowest intraday stock price for each company
for the previous 52-week period, based upon the closing stock prices as of May
24, 2001. The stock price used for Rosetta Inpharmatics, Inc. was as of one day
prior to the announced acquisition by Merck & Co., Inc. Robertson Stephens'
analysis of these comparable companies resulted in the following:
Stock
Performance Total Enterprise Value/
--------------- -----------------------------------------------
% Above % Below CY 2001 Revenue CY 2002 Revenue CY 2003 Revenue
Low High (estimated) (estimated) (estimated)
------- ------- --------------- --------------- ---------------
Maximum........ 163.3% 85.6% 22.59x 7.73x 4.69x
Minimum........ 43.9% 48.9% 1.92x 1.38x 1.26x
Sequenom....... 135.0% 65.5% 10.66x 5.14x 2.93x
36
Other Factors
In rendering its opinion, Robertson Stephens considered other factors and
conducted other analyses, including a review of certain pro forma effects
resulting from the Transaction which took into account the impact of the
Transaction on the projected earnings per share of the combined company for
calendar years 2001 through 2003 based on SG Cowen published research analyst
estimates for both Sequenom and Gemini revenues and projected 2001 synergies as
estimated by the management of Sequenom.
No company, business or transaction compared in any of the above analyses is
identical to Sequenom, Gemini or the Transaction. Accordingly, an analysis of
the results of the foregoing is not entirely mathematical; rather it involves
complex considerations and judgments concerning differences in financial and
operating characteristics and other factors that could affect the public
trading, acquisition and other values of the comparable companies, precedent
transactions or the business segment, company or transaction to which they are
being compared. In addition, various analyses performed by Robertson Stephens
incorporate projections prepared by research analysts using only publicly
available information. These estimates may or may not prove to be accurate.
While this summary describes the analysis and factors that Robertson
Stephens deemed material in its presentation to the Sequenom board of
directors, it is not a comprehensive description of all analyses and factors
considered by Robertson Stephens. The preparation of a fairness opinion is a
complex process that involves various determinations as to the most appropriate
and relevant methods of financial analysis and the application of these methods
to the particular circumstances. Therefore, a fairness opinion is not readily
susceptible to partial analysis or summary description. In arriving at its
opinion, Robertson Stephens did not attribute any particular weight to any
analysis or factor considered by it, but rather made qualitative judgments as
to the significance and relevance of each analysis and factor. Accordingly,
Robertson Stephens believes that its analyses must be considered as a whole and
that selecting portions of its analyses and of the factors considered by it,
without considering all analyses and factors, could create a misleading or
incomplete view of the evaluation process underlying its opinion. Several
analytical methodologies were employed and no one method of analysis should be
regarded as critical to the overall conclusion reached by Robertson Stephens.
Each analytical technique has inherent strengths and weaknesses, and the nature
of the available information may further affect the value of particular
techniques. The conclusion reached by Robertson Stephens is based on all
analyses and factors taken as a whole and also on application of Robertson
Stephens' own experience and judgment. This conclusion may involve significant
elements of subjective judgment and qualitative analysis. Robertson Stephens
expresses no opinion as to the value or merit standing alone of any one or more
parts of the analysis it performed. In performing its analyses, Robertson
Stephens made numerous assumptions with respect to industry performance,
general business and other conditions and matters, many of which are beyond the
control of Sequenom, Gemini or Robertson Stephens. Any estimates contained in
these analyses are not necessarily indicative of actual values or predictive of
future results or values, which may be significantly more or less favorable
than those suggested by these analyses. Accordingly, analyses relating to the
value of businesses do not purport to be appraisals or to reflect the prices at
which these businesses actually may be sold in the future, and these estimates
are inherently subject to uncertainty.
The engagement letter between Robertson Stephens and Sequenom provides that,
for its services, Robertson Stephens is entitled to receive usual and customary
fees in connection with the Transaction and the delivery of the fairness
opinion, and with respect to the fee payable upon delivery of the fairness
opinion, such fee was payable without regard to the conclusion reached in the
opinion. The payment of Robertson Stephens' fees, other than the fee payable
upon the delivery of the opinion, is contingent upon the completion of the
Transaction. Sequenom has also agreed to reimburse Robertson Stephens for its
reasonable and customary out-of-pocket expenses related to this work and to
indemnify and hold harmless Robertson Stephens and its affiliates and any other
person, director, employee or agent of Robertson Stephens or any of its
affiliates, or any person controlling Robertson Stephens or its affiliates, for
certain losses, claims, damages, expenses and liabilities relating to or
arising out of services provided by Robertson Stephens as financial advisor to
Sequenom. The terms of the fee arrangement with Robertson Stephens, which
Sequenom and Robertson
37
Stephens believe are customary in transactions of this nature, were negotiated
at arm's length between Sequenom and Robertson Stephens, and the Sequenom board
of directors was aware of these fee arrangements.
In the past, Robertson Stephens has provided certain investment banking
services to Sequenom for which it has been compensated, including acting as co-
manager for Sequenom's initial public offering in February 2000. Robertson
Stephens maintains a market in the shares of Sequenom common stock. In the
ordinary course of its business, Robertson Stephens may trade in Sequenom's
securities and Gemini securities for its own account and the account of its
customers and, accordingly, may at any time hold a long or short position in
Sequenom securities or Gemini securities.
Robertson Stephens is an internationally recognized investment banking firm
and was retained based on its experience as a financial advisor in connection
with mergers and acquisitions and in securities valuations generally. As part
of its investment banking business, Robertson Stephens is frequently engaged in
the valuation of businesses and their securities in connection with mergers and
acquisitions, negotiated underwritings, secondary distributions of securities,
private placements and other purposes.
Stock Listing
The shares of Sequenom common stock to be issued in the Transaction will be
listed on the Nasdaq National Market under the symbol "SQNM". Upon the
completion of the Scheme of Arrangement, a request will be made for the Gemini
American Depositary Shares to cease to be listed on the Nasdaq National Market.
No Appraisal Rights
English law does not provide for appraisal rights in a Scheme of
Arrangement. Once a Scheme of Arrangement has been approved by the shareholders
and the High Court, and the final court order sanctioning the Scheme of
Arrangement and confirming the reduction of Gemini share capital has been
registered by the Registrar of Companies in England and Wales, all shareholders
of the relevant class are bound by the terms of the Scheme of Arrangement. A
dissenting shareholder would have no rights comparable to dissenters' rights.
38
CERTAIN TERMS OF THE TRANSACTION AGREEMENT
The following is a summary of the material provisions of the Transaction
Agreement. The following is not a complete statement of all provisions of the
Transaction Agreement. Sequenom urges you to read the entire Transaction
Agreement, which is attached as Attachment A to this proxy statement. This
summary is qualified in its entirety by reference to the full text of the
Transaction Agreement.
Consideration to be Received in the Transaction
Under the terms of the Transaction Agreement, Sequenom will issue shares of
common stock upon the completion of the Transaction to Gemini shareholders on
the day immediately preceding the completion of the Transaction. For each
outstanding Gemini ordinary share, Sequenom will issue 0.2 of a share of
Sequenom common stock. For each outstanding Gemini American Depositary Share,
which in turn represents two Gemini ordinary shares, Sequenom will issue 0.4 of
a share of Sequenom common stock. In no event will Sequenom issue more than
14,403,870 shares of its common stock pursuant to the Scheme without its
consent. In the event that the calculations set forth above would result in the
issuance by Sequenom of more than 14,403,870 shares of Sequenom common stock,
the exchange ratios for each Gemini ordinary share and Gemini ADS will be
reduced to the greatest fraction of a share of Sequenom common stock that would
result in no more than 14,403,870 shares of Sequenom common stock being issued
pursuant to the Scheme. Under the Transaction Agreement, Sequenom may consent
to the issuance of additional Gemini ordinary shares, including the grant of
additional options to purchase Gemini ordinary shares, without reducing the
exchange ratios for the outstanding Gemini ordinary shares and Gemini American
Depositary Shares.
No fraction of a share of Sequenom common stock will be issued pursuant to
the Scheme of Arrangement. Instead, Gemini shareholders who would otherwise be
entitled to a fraction of a share of Sequenom common stock will receive cash,
without interest, as if such fraction of a share of Sequenom common stock had
been sold at the closing price of Sequenom common stock on the Nasdaq National
Market.
If at any time during the period between May 29, 2001 and the completion of
the Scheme of Arrangement any change in the outstanding shares of capital stock
of Sequenom or Gemini occurs as a result of any capital reorganization,
reclassification, stock split, readjustment of shares, or any stock dividend
with a record date during such period, the number of shares of Sequenom common
stock to be issued in the Transaction will be adjusted equitably.
The shares of Sequenom common stock to be issued in the Transaction will be
validly issued, fully paid, non-assessable and free of all encumbrances (other
than encumbrances created by Gemini shareholders) and will rank pari passu in
all respects with the Sequenom common stock held by you.
Treatment of Gemini Options and Warrants
Gemini ordinary shares issued upon the exercise of options prior to the
close of business on the business day before the date of the final court order
sanctioning the Scheme of Arrangement will be treated as outstanding for
purposes of the exchange ratio. Gemini shares will not be issued upon the
exercise of options after that time. Instead, Sequenom shares will be issued in
accordance with the exchange ratio.
All outstanding options to purchase Gemini ordinary shares will accelerate
and become fully vested and will be exercisable for a limited period of time
after the court order sanctioning the Scheme of Arrangement. Gemini's Articles
of Association will be amended to provide that Gemini ordinary shares issued
after the court order to any person other than Sequenom or its nominee will be
exchanged for Sequenom common stock on the same terms as provided in the
Transaction Agreement. As a result, any person exercising options to purchase
Gemini ordinary shares after the court order will receive Sequenom common stock
in place of Gemini ordinary shares on the same terms as provided in the
Transaction Agreement.
39
Sequenom will offer Gemini option holders the opportunity to replace their
existing unexercised options with equivalent options to purchase shares of
Sequenom common stock on the terms contained in the applicable Gemini option
plan, or, where no such terms are provided, on a similar basis. The number of
shares of Sequenom common stock subject to a replacement option will be
calculated by multiplying the exchange ratio of a share of Sequenom common
stock by the number of Gemini ordinary shares to which the replaced option
related, rounding to the nearest whole number of shares of Sequenom common
stock after aggregating fractions. The exercise price of each replacement
option will be calculated by applying the exchange ratio accordingly by
reference to the exercise price of the replaced option.
Holders of Gemini options will be notified about the effect of the
Transaction on their options and of the opportunity to replace their options as
described above.
In connection with the Transaction, the warrant to purchase 40,000 Gemini
ordinary shares held by Hewlett-Packard International Bank Limited, and any
additional warrants to purchase up to an additional 80,000 Gemini ordinary
shares issuable to Hewlett-Packard International Bank Limited under certain
circumstances, will be replaced by warrants to purchase the appropriate number
of shares of Sequenom common stock based upon the exchange ratio. The exercise
price of the new warrant will be calculated by dividing the exchange ratio into
the exercise price of the original warrant. The terms and conditions of the
warrant will otherwise remain the same.
Covenants
Conduct of the Parties Prior to the Closing of the Transaction
Sequenom and Gemini have agreed under the Transaction Agreement that, until
the completion of the Transaction, except as otherwise contemplated by the
Transaction Agreement, required by law, or with the written consent of the
other party, they will, and will cause their affiliates to, conduct their
respective businesses in the ordinary course of business in accordance with
past practices and in compliance with applicable law and their respective
material agreements, and to use all reasonable efforts to preserve their
respective business organization and maintain all material third-party
relationships.
In addition, Sequenom and Gemini have agreed that, until the completion of
the Transaction, they will not, without the other party's prior written
consent, and they will not permit their affiliates to:
. declare or pay dividends or make any other distribution with respect to
any shares of capital stock or repurchase, redeem or reacquire any shares
of capital stock or other securities;
. sell, issue or authorize the issuance of, any equity, convertible or
other securities (other than issuances of shares upon the exercise of
previously issued stock options under any stock option plan in the
ordinary course of business and consistent with past practices);
. amend or waive any of their rights under, or permit the acceleration of
vesting of, outstanding options;
. except as required to effect the Transaction, amend their organizational
documents;
. become a party to any merger, consolidation, share exchange, business
combination, recapitalization or reclassification;
. conduct a stock split, reverse stock split or similar transaction with
respect to the shares of their capital stock;
. make any capital expenditure outside of the ordinary course of business
or make any single capital expenditure in excess of $500,000;
. enter into or materially modify any contract or agreement which is
material to their business taken as a whole;
40
. with certain exceptions, acquire, sell, lease or license any right or
other asset from or to any other entity;
. with certain exceptions, lend money to any entity, or incur or guarantee
any indebtedness for borrowed money (other than in the ordinary course of
business and consistent with past practices or in accordance with
existing agreements);
. with certain exceptions, establish or adopt any collective bargaining
agreement, stock option or other employee benefit plan, pay bonuses, or
increase compensation payable to, any director, officer or employee who
earns $100,000 or more;
. hire any new employee having an annual salary in excess of $100,000;
. change any of their methods of accounting in any material respect except
as required by law or generally accepted accounting principles;
. make any material tax election except as required by law or generally
accepted accounting principles;
. commence or settle any material legal proceeding;
. form any subsidiary or acquire any equity interest or other interest in
any other entity; and
. enter into any material transaction or take any material action outside
the ordinary course of business or inconsistent with past practice.
Limitation on Discussing and Encouraging Other Takeover Proposals; Board
Recommendations
Sequenom and Gemini have agreed that, until the earliest to occur of the
completion of the Transaction, the termination of the Transaction Agreement and
November 30, 2001, they will not (and they will not permit any of their
affiliates or representatives to):
. solicit, initiate or knowingly encourage (including by furnishing
information), or enter into discussions or negotiations regarding, any
Takeover Proposal from any person; or
. enter into any acquisition or disposition of assets other than in the
ordinary course of business.
A "Takeover Proposal" is any proposal (or publicly announced intention to
make a bona fide proposal) by a third party to enter into any merger, exchange
offer, consolidation, partnership, joint venture or other business combination
involving Sequenom or Gemini, as the case may be, or the purchase of all or
substantially all of the assets of, or more than 50% of the voting capital
stock of, Sequenom or Gemini, as the case may be, which is substantially
inconsistent with the implementation of the Transaction.
Sequenom and Gemini may, however, engage in discussions or negotiations
with, and furnish information to, any third party which has approached it if
the board of the approached company concludes in good faith, after consultation
with and based upon the advice of its outside counsel at a meeting of such
board, that the failure to take such action would be in breach of the
directors' fiduciary duties or would violate applicable law or stock exchange
rules. In such a case, the party must promptly provide a copy of the minutes of
the board meeting reflecting the board's conclusion. Sequenom and Gemini have
agreed to promptly (but in any event within 24 hours) notify the other party of
the receipt of any Takeover Proposal, including the material terms and
conditions of, and the identity of the person making, the Takeover Proposal.
Sequenom and Gemini also have each agreed, subject to the terms of the
Transaction Agreement, to recommend to its respective shareholders the approval
of the Transaction Agreement and the Transaction, and they have each agreed to
use their reasonable efforts to solicit such approval. The boards of Sequenom
and Gemini are each prohibited under the Transaction Agreement from making a
"Subsequent Determination," which means each is prohibited from:
. withdrawing or adversely modifying its recommendation(s) of the
Transaction or making any public statement or filing inconsistent with
its recommendation(s) of the Transaction;
41
. approving or recommending, or proposing publicly to approve or recommend,
any Takeover Proposal; and
. entering into any acquisition agreement related to any Takeover Proposal.
The foregoing prohibition does not apply, however, to any Subsequent
Determination if, prior to the completion of the Transaction, the applicable
board determines in good faith, after consultation with and based upon the
advice of its outside counsel at a meeting of such board, that the failure to
make such Subsequent Determination would be in breach of the directors'
fiduciary duties or would violate applicable law or stock exchange rules or any
requirement of the U.K. City Code on Takeovers and Mergers or the U.K.
Companies Act 1985. In such a case, the party must promptly provide a copy of
the minutes of the board meeting reflecting the board's conclusion.
If a party is in breach of its obligations described above, such party will
pay to the non-breaching party damages equal to the non-breaching party's
reasonable costs and expenses incurred in connection with the Transaction up to
the date of the breach. Each party agrees that this amount represents a genuine
pre-estimate of damages suffered by the other. The maximum amount so payable is
not to exceed the amount determined below.
If an announcement is made by a third party with respect to a Takeover
Proposal (unconditional in all respects or otherwise effective), the party
subject to the Takeover Proposal will pay to the other party a termination fee.
The termination fee will be an amount equal to the lesser of:
. $2,290,000, and
. the largest sum as would not materially reduce the net assets of Gemini
as defined in Section 152(2) of the U.K. Companies Act 1985.
However, if Gemini has no net assets, this sum will not be payable. Under
the Transaction Agreement, it is agreed that, if a payment is made under any of
the provisions described above or under the heading "Termination; Termination
Fee", no payment will be required to be made under any other provision.
Additional Covenants
The Proxy Statement, the Offering Circular and the Meetings
Under the Transaction Agreement, Sequenom has agreed to:
. take all action reasonably necessary to convene a special meeting of its
stockholders for the purpose of voting on the issuance of the shares of
Sequenom common stock in the Transaction;
. prepare, file and mail a proxy statement in connection with the special
meeting, and cooperate with Gemini in the preparation of the circular to
be mailed to Gemini shareholders in connection with the Scheme of
Arrangement;
. represent and warrant to Gemini that the information to be supplied by
Sequenom for inclusion in the proxy statement or the circular will be
accurate;
. obtain in a timely fashion all necessary state securities law or "Blue
Sky" approvals; and
. indemnify Gemini (for itself and on behalf of its directors and officers)
up to a maximum amount equal to the termination fee (as described above)
from and against all losses arising from Sequenom's breach of its
obligations relating to the preparation of the proxy statement and the
circular.
Under the Transaction Agreement, Gemini agreed to:
. subject to obtaining leave from the High Court, convene the meeting for
purposes of approving the Scheme of Arrangement (the "court meeting"),
take all action reasonably necessary to convene the extraordinary general
meeting of Gemini shareholders and the court meeting at which resolutions
will be proposed to approve the Transaction;
42
. prepare and mail the circular, and cooperate with Sequenom in the
preparation of its proxy statement;
. represent and warrant to Sequenom that the information to be supplied by
Gemini for inclusion in the circular or the proxy statement will be
accurate; and
. indemnify Sequenom (for itself and on behalf of its directors and
officers) up to a maximum amount equal to the termination fee (as
described above) from and against all losses arising from Gemini's breach
of its obligations relating to the preparation of the circular and the
proxy statement.
Management-Related Covenants
Sequenom has agreed to cause Michael Fitzgerald, the Chairman of Gemini, and
a nominee of Mr. Fitzgerald who is a director of, or employed by, a publicly
held biotechnology or pharmaceutical company (other than Gemini) and reasonably
acceptable to Sequenom, to be nominated and elected to the Sequenom board of
directors. Sequenom has further agreed that, for at least two years following
the completion of the Transaction (unless otherwise consented to by at least
80% of the directors on the board), the Sequenom board will be comprised of no
more than eight directors.
Gemini has agreed to cause all non-executive directors on the Gemini board
as of the date of the Transaction Agreement to resign from the Gemini board
(effective after the Scheme of Arrangement becomes effective and in accordance
with the directors' contractual entitlements).
The parties have agreed that Paul Kelly, Jeremy Ingall and Patrick Kleyn
from Gemini, and Andreas Braun, Charles R. Cantor, Delbert F. Foit, Antonius
Schuh and Stephen L. Zaniboni from Sequenom, will constitute the Gemini board
following the completion of the Transaction for so long as the Sequenom board
determines that the Gemini board should be so constituted.
Tax-Free Transaction
Sequenom and Gemini have each agreed to use their reasonable endeavors to
cause the Transaction to qualify as a tax-free reorganization within the
meaning of Section 368(a) of the Internal Revenue Code, and not to take any
action or fail to take any action that would or would reasonably be likely to
adversely affect the treatment of the Transactions as such a tax-free
reorganization.
Exemption Under the Securities Act
In connection with the implementation of the Scheme of Arrangement and the
related court hearings, Gemini has agreed to take all reasonable steps to
preserve the availability of the exemption from registration under the
Securities Act provided by Section 3(a)(10) of the Securities Act.
New Registration Rights Agreement
Sequenom has agreed to use its reasonable endeavors to obtain, prior to the
shareholder meetings, any consents required (including any consents required
under Sequenom's existing registration rights agreement) in order to enter into
the new registration rights agreement contemplated by the Transaction Agreement
and to perform its obligations under the new registration rights agreement. See
"Interests of Certain Persons in the Transaction and Related Agreements--
Registration Rights Agreement".
Representation and Warranties
The Transaction Agreement includes customary representations and warranties
made by Sequenom and Gemini relating to the respective businesses of the
parties. The representations and warranties of Sequenom and Gemini expire upon
the completion of the Transaction.
43
The representations made by each party include, among others,
representations relating to:
. its due organization, good standing and subsidiaries;
. its authority to own its assets and carry on its business;
. its capital structure;
. the accuracy of all its filings with the SEC;
. the completeness, preparation and compliance of its financial statements
in accordance with generally accepted accounting principles;
. the absence of certain changes in its business since March 31, 2001;
. its intellectual property and other assets;
. tax, insurance, employee and environmental matters;
. the enforceability of its material contracts;
. absence of material litigation; and
. the authority to enter into the Transaction Agreement and to consummate
the Transaction.
Conditions to the Transaction
Neither Sequenom nor Gemini will be obligated to complete the Transaction
unless the conditions set forth in Appendix IV and Section 7 of the Transaction
Agreement are satisfied or waived. These conditions include, among other
things:
. approval by a majority in number of Gemini shareholders representing at
least 75% of the Gemini ordinary shares present and voting, either in
person or by proxy, at the court meeting;
. the passing of the special resolution required to implement the Scheme of
Arrangement and amend Gemini's articles of association by Gemini
shareholders at an extraordinary general meeting;
. approval of the issuance of Sequenom shares by Sequenom stockholders at
the special meeting;
. sanction of the Scheme of Arrangement and confirmation of the reduction
of capital involved in the Scheme of Arrangement by the High Court;
. an office copy of the final court order being delivered for registration
to the Registrar of Companies in England and Wales and being registered
by him;
. approval of the Sequenom common stock to be issued in the Transaction for
trading upon notice of issuance on the Nasdaq National Market;
. termination of existing employment agreements with Gemini and the
execution and delivery of new employment agreements with Sequenom by Paul
Kelly, Jeremy Ingall and Patrick Kleyn in accordance with previously-
agreed term sheets attached as Appendix V to the Transaction Agreement;
. execution and delivery of the new registration rights agreement by
Sequenom and each of Michael Fitzgerald, Genelink Holdings Ltd., Radisson
Trustees Ltd. and Cloverleaf Holdings Limited;
. the absence of: (A) material adverse investigations or legal proceedings
(either threatened or instituted) or new material liabilities or
contingencies involving Sequenom or Gemini; (B) adverse legal
proceedings, statutes, regulations or investigations affecting the
Transaction; and (C) any material adverse change in the business,
financial position or trading position of either party taken as a whole,
in each case, other than as publicly disclosed or fairly disclosed in
writing to the other party on or prior to May 28, 2001;
. satisfaction of all regulatory requirements, including the receipt of all
necessary consents, approvals, authorizations and orders necessary to
complete the Transaction;
44
. effectiveness of the Scheme of Arrangement by November 30, 2001 or such
later date as Sequenom and Gemini may agree and the High Court shall
approve;
. the appointment of Michael Fitzgerald and a nominee of Mr. Fitzgerald as
directors to the board of Sequenom;
. the compliance by Sequenom and Gemini with the terms of the Transaction
Agreement in all material respects;
. the engagement letter between Lipe & Co., financial advisors to Gemini,
and Gemini, as amended as of May 27, 2001, remaining in full force and
effect without further amendment;
. receipt by Sequenom, immediately prior to the hearing of the petition to
sanction the Scheme of Arrangement, of a certificate signed by an officer
of Gemini stating that (a) the representations and warranties given by
Gemini that are qualified as to materiality in the Transaction Agreement
were true and correct on the date of the Transaction Agreement, and
except to the extent they speak of an earlier date, remain true and
correct on the date the certificate is delivered and (b) the
representations and warranties given by Gemini that are not qualified as
to materiality were true and correct in all material respects as at the
date of this Agreement and, except to the extent that the same speak as
at an earlier date, remain true and correct at the time of delivery of
such certificate;
. receipt by Gemini, immediately prior to the hearing of the petition to
sanction the Scheme of Arrangement, of a certificate signed by an officer
of Sequenom stating that (a) the representations and warranties given by
Sequenom that are qualified as to materiality in the Transaction
Agreement were true and correct on the date of the Transaction Agreement,
and except to the extent they speak of an earlier date, remain true on
the date the certificate is delivered and (b) the representations and
warranties given by Sequenom that are not qualified as to materiality
were true and correct in all material respects as at the date of this
Agreement and, except to the extent that the same speak as at an earlier
date, remain true and correct at the time of delivery of such
certificate; and
. the qualification of the Transaction as a tax-free reorganization within
the meaning of Section 368(a) of the Internal Revenue Code (provided that
neither party may assert that this condition has not been satisfied if
(1) the asserting party is in breach of its obligations described under
"--Additional Covenants--Tax-Free Transaction" or (2) if Skadden, Arps,
Slate, Meagher & Flom LLP, counsel to Gemini, provides an opinion to the
parties to the effect that the Transaction will qualify as a
reorganization under Section 368(a) of the Internal Revenue Code).
Some of the above conditions may be waived by either Sequenom or Gemini as
described in Appendix IV of the Transaction Agreement.
Termination; Termination Fee
The Transaction Agreement may be terminated as follows:
(a) By the mutual written consent of Sequenom and Gemini.
(b) By either Sequenom or Gemini, by written notice, if the Transaction has
not become effective on or before November 30, 2001 and the party seeking to
terminate the Transaction Agreement has not materially breached its obligations
thereunder in a manner that proximately contributed to the parties' failure to
consummate the Transaction on or before such date.
(c) By either Sequenom or Gemini, by written notice, if the board of the
other party (through its own action or through any agency, or otherwise) makes
a "Subsequent Determination" (as defined under "--Limitations on Discussing and
Encouraging Other Takeover Proposals; Board Recommendations").
(d) By either Sequenom or Gemini, by written notice, if the board of such
party (through its own action or through any agency, or otherwise) makes a
"Subsequent Determination" in material compliance with the covenants described
under "--Limitations on Discussing and Encouraging Other Takeover Proposals;
Board Recommendations".
45
(e) By either Sequenom or Gemini, by written notice, if:
(1) the stockholders of the other party fail to approve a resolution
required to be approved for purposes of the Transaction;
(2) any of the conditions to the Transaction cease to be capable of
being satisfied for any reason and the party entitled to waive satisfaction
of such condition fails to confirm its waiver of satisfaction of the
relevant condition;
(3) there shall have been a breach by the other party of the covenants
described under "--Covenants--Limitations on Discussing and Encouraging
Other Takeover Proposals; Board Recommendations"; or
(4) there shall have been a breach by the other party of the obligations
set forth in the Transaction Agreement with respect to any of the
conditions to the Transaction which, if not cured, would cause the
conditions not to be satisfied, and such breach shall not have been cured
within 15 days after notice of the breach has been received by the party
alleged to be in breach subject in all cases to compliance with the U.K.
City Code on Takeovers and Mergers and the requirements of the U.K. Panel
on Takeovers and Mergers.
(f) By Gemini if there shall have been an uncured breach by Sequenom of its
obligations under "--Covenants--Additional Covenants--Tax-Free Transaction".
(g) By Sequenom if there shall have been an uncured breach by Gemini of its
obligations described under "--Covenants--Additional Covenants--Exemption Under
the Securities Act".
If the Transaction Agreement is terminated by either party pursuant to the
provisions described above in paragraph (c) or paragraph (e)(4), the non-
terminating party must pay the terminating party the termination fee described
under "--Covenants--Limitations on Discussing and Encouraging Other Takeover
Proposals; Board Recommendations". If the Transaction Agreement is terminated
by either party pursuant to the provisions described above in paragraph (d),
the terminating party must pay the other party the termination fee.
Expenses
Generally, each party will bear all legal, accountancy and other costs and
expenses incurred by it in connection with the Transaction Agreement and the
implementation of the Scheme of Arrangement and the Transaction.
46
INTERESTS OF CERTAIN PERSONS IN THE TRANSACTION AND RELATED AGREEMENTS
Interests of Certain Persons
Neither Sequenom, nor any of its directors or executive officers, nor so far
as Sequenom is aware any person acting in concert with Sequenom, owns or
controls any Gemini ordinary shares or any Gemini American Depositary Shares,
has any option to acquire any Gemini ordinary shares or any Gemini American
Depositary Shares or has entered into any transaction involving derivative
securities of Gemini which remains outstanding, other than Andreas Braun,
Ph.D., M.D., an executive officer of Sequenom. Dr. Braun owns 200 Gemini
American Depositary Shares. Robertson Stephens has traded in Gemini American
Depositary Shares but is not a market-maker in Gemini American Depositary
Shares. Fleet Securities, Inc., an affiliate of Robertson Stephens, has acted
as a market-maker in Gemini American Depositary Shares but is not currently a
market-maker in Gemini American Depositary Shares.
For technical reasons associated with the Scheme and to ensure Gemini and
Sequenom comply with the U.K. Companies Act 1985, Gemini intends to seek
shareholder approval, at the extraordinary general meeting of Gemini
shareholders in connection with the Transaction, for the creation of a new
class of share, namely the non-voting deferred share, to be allotted and issued
to Sequenom in connection with the Transaction.
Registration Rights Agreement
As a condition to the completion of the Transaction, Sequenom is required to
enter into the new registration rights agreement with Michael Fitzgerald and
three entities affiliated with Mr. Fitzgerald, Genelink Holdings Ltd.,
Raddisson Trustee Ltd., and Cloverleaf Holdings Limited. The form of the new
registration rights agreement is attached as Appendix VI to the Transaction
Agreement.
Following the closing, Mr. Fitzgerald and these affiliated entities will
hold approximately 10.1% of the outstanding Sequenom common stock (assuming the
exercise of all outstanding Sequenom options and warrants). The rights under
the new registration rights agreement will be similar to the rights contained
in the Amended and Restated Registration Rights Agreement dated as of December
21, 1998 by and among Sequenom and certain investors. Under the original
registration rights agreement, Sequenom is required to obtain the consent of
the holders of at least a majority of the outstanding registrable securities
under the original registration rights agreement to grant the registration
rights provided in the new registration rights agreement. Sequenom intends to
solicit this consent prior to the special meeting.
Under the new registration rights agreement, Mr. Fitzgerald and three
entities affiliated with him will be granted "piggyback" registration rights on
all registrations initiated by Sequenom on its behalf or on behalf of others
(other than registrations relating to employee benefit plans or transactions
specified in SEC Rule 145) solely for cash and on a form that would also permit
the registration of the registrable securities under the new registration
rights agreement. In underwritten offerings, the managing underwriter may
reduce the number of shares proposed to be registered pro rata in the manner
and with the priority set forth in the new registration rights agreement. The
holders of registrable securities under the new registration rights agreement
are also entitled, under certain circumstances, to cause Sequenom to register
their registrable securities on Form S-3 or any similar short form registration
statement, upon initiation by any holder of then outstanding registrable
securities so long as the price of the securities to be offered is reasonably
anticipated to be not less than $2,000,000.
Sequenom will bear the registration expenses (other than underwriting
discounts and commissions) of all registrations under the new registration
rights agreement (including fees and expenses of one special counsel for the
selling stockholders in connection with the first two Form S-3 registrations).
The registration rights terminate as to any holder of registrable securities
under the new registration rights agreement when the registrable securities
held by such holder are no longer subject to the limitation on resale under SEC
Rule 144 or SEC Rule 145.
47
Employment Agreements
It is a condition to the completion of the Transaction that Paul Kelly,
Jeremy Ingall and Patrick Kleyn enter into new employment agreements with
Sequenom in accordance with the term sheets attached in Appendix V to the
Transaction Agreement (attached to this proxy statement as Attachment A).
OTHER MATTERS RELATED TO THE TRANSACTION
Federal Income Tax Consequences
The Transaction is expected to qualify as a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code. No gain or loss will be
recognized for U.S. federal income tax purposes by Sequenom, Gemini or the
Sequenom stockholders as a result of the Transaction.
The discussion does not purport to be a complete analysis or description of
all potential federal income tax consequences of the Transaction. This
discussion does not address tax consequences with respect to individual
circumstances. This discussion does not address any non-income tax or any
foreign, state or local tax consequences of the Transaction. You should consult
with your tax advisor if you have any questions about the particular United
States federal, state, local or foreign income or other tax consequences
associated with the Transaction.
Accounting Treatment
Sequenom will account for the Transaction using the purchase method of
accounting, which means that the assets and liabilities of Gemini, including
intangible assets, will be recorded at their fair value and the results of
operations of Gemini, will be included in Sequenom's results from the date of
acquisition.
Certain Federal Securities Law Consequences
In light of the fact that the Scheme of Arrangement will be sanctioned by
the High Court, the Sequenom common stock to be issued in the Transaction will
not be registered under the Securities Act of 1933, in reliance upon the
exemption from registration provided by Section 3(a)(10) of the Securities Act.
See "United Kingdom Corporate and Regulatory Approvals Concerning the
Transaction".
As a result, no registration statement concerning the issuance of Sequenom
common stock in the Transaction has been or will be filed with the SEC, other
than as may be required after the completion of the Transaction pursuant to the
new registration rights agreement. See "Interests of Certain Persons in the
Transaction and Related Agreements--Registration Rights Agreement". Shares of
Sequenom common stock issued to a Gemini shareholder deemed to be an
"affiliate" (as the term is defined in SEC Rule 144), will not be freely
tradable under the Securities Act. Those affiliates may not resell the shares
of Sequenom common stock that they acquire in the Transaction except pursuant
to:
. an effective registration statement under the Securities Act covering
such shares;
. the resale provisions of SEC Rule 145; or
. any other applicable exemption from the registration requirements of the
Securities Act.
Shares of Sequenom common stock issued in the Transaction to persons that
are not affiliates will be freely tradeable under the Securities Act.
48
UNITED KINGDOM CORPORATE AND REGULATORY APPROVALS CONCERNING THE TRANSACTION
The Scheme of Arrangement
A Scheme of Arrangement is a U.K. statutory procedure under Section 425 of
the U.K. Companies Act 1985. It permits a company to make an arrangement with
its members which, if agreed to by the requisite majority and sanctioned by the
High Court, will be binding on all the members concerned whether they voted in
favor of the Scheme or not.
The essential statutory requirements for the Scheme of Arrangement are:
. the Scheme of Arrangement has to be agreed to at the meeting convened by
order of the High Court for purposes of approving the Scheme of
Arrangement;
. the Scheme of Arrangement has to be agreed to at the court meeting by a
majority in number of Gemini shareholders representing at least 75% of
the Gemini shares, present and voting at the meeting, whether in person
or by proxy;
. the notice convening the court meeting has to be accompanied by a
statement under Section 426 of the U.K. Companies Act 1985 explaining the
effect of the Scheme of Arrangement and stating any material interests of
the directors of Gemini and the effect on those interests of the Scheme
of Arrangement in so far as it is different from the effect on the
interests of other shareholders;
. the Scheme of Arrangement has to be sanctioned, and the reduction of
capital involved therein has to be confirmed, by the High Court; and
. an office copy of the order of the High Court sanctioning the Scheme and
confirming the reduction of capital involved therein has to be delivered
to the Registrar of Companies for registration and be registered by him,
upon which the Scheme of Arrangement becomes effective.
In addition to the statutory requirements for the Scheme of Arrangement:
. the reduction of capital involved in the Scheme of Arrangement has to
comply with the statutory procedures of Sections 135-141 of the U.K.
Companies Act 1985; and
. Gemini is required to hold an extraordinary general meeting of its
shareholders to consider and, if thought fit, pass a special resolution
to implement the Scheme of Arrangement, including the reduction of
capital involved therein and the issue of new Gemini shares to Sequenom.
This resolution requires approval by Gemini shareholders holding at least
75% of Gemini shares present and voting in person or by proxy at the
extraordinary general meeting of its shareholders.
The Extraordinary General Meeting of Gemini
Time, Place and Date. The extraordinary general meeting of Gemini
shareholders will be held on August 23, 2001 at 29th Floor, One Canada Square,
Canary Wharf, London E14 5DY, England, commencing at 10:00 a.m., London time.
Purpose. At the extraordinary general meeting, the Gemini shareholders will
be asked to consider and vote upon a proposal to reduce the share capital of
Gemini by the cancellation of the existing Gemini shares and upon the reduction
taking effect for the share capital of Gemini to be increased to its former
amount by the creation of such number of new Gemini shares as equals the number
of Gemini shares so cancelled and the issue thereof to Sequenom, in
consideration of the Sequenom shares being issued, in accordance with the
Scheme of Arrangement and to alter the Articles of Association of Gemini with
the result that Gemini will become a wholly owned subsidiary of Sequenom.
Record Date; Shares Entitled to Vote. Only Gemini shareholders of record 48
hours before the time fixed for the extraordinary general meeting or any
adjournment thereof (as the case may be), will be entitled to vote at the
extraordinary general meeting. On June 28, 2001, there were 64,742,260 Gemini
ordinary shares in issue. The holders of Gemini ordinary shares are entitled to
one vote per share on each matter to come before the meeting.
49
Vote Required. The affirmative vote of Gemini shareholders representing at
least 75% of the Gemini shares, present and voting, either in person or by
proxy at the extraordinary general meeting is required to pass the resolutions
to implement the Transaction and to amend the Articles of Association of Gemini
in connection with the Transaction.
The Court Meeting
Time, Place and Date. The court meeting will be held on August 23, 2001 at
29th Floor, One Canada Square, Canary Wharf, London E14 5DY, England,
commencing at 10:05 a.m., London time (or as soon thereafter as the
extraordinary general meeting is concluded or adjourned).
Purpose. At the court meeting, Gemini shareholders will be asked to consider
and vote upon a proposal to approve the Scheme of Arrangement.
Record Date; Shares Entitled to Vote. Only Gemini shareholders of record 48
hours before the time fixed for the court meeting or any adjournment thereof
(as the case may be) will be entitled to vote at the court meeting. On June 28,
2001, there were 64,742,260 Gemini ordinary shares in issue. The holders of
Gemini ordinary shares are entitled to one vote per share on each matter to
come before the court meeting.
Vote Required. The affirmative vote of a majority in number of Gemini
shareholders representing at least 75% of the existing Gemini shares present
and voting either in person or by proxy at the court meeting is required to
approve the Scheme of Arrangement.
50
BUSINESS OF GEMINI
Gemini is a clinical genomics company. It identifies relationships between
human genes and human health and disease. Gemini uses clinical and medical
information as the starting point in its search for disease genes. Gemini
believes that the collection and analysis of both detailed clinical and genetic
data relating to the presence or risk of disease is more effective in
discovering these disease genes than analyzing genetic data alone. Gemini
expects that discoveries arising from its research will provide it with
products which can be licensed to pharmaceutical, diagnostic, genomics and
biotechnology companies for drug discovery or gene-based diagnostic
applications. As current efforts by others to determine the identity and
location of all human genes (which Gemini refers to as mapping of the human
genome) nears completion, the objective of genomics is shifting from
determining the sequence of genes to understanding the role of genes in human
health and disease. Gemini believes that it is well positioned to take
advantage of the opportunities created by the mapping of the human genome due
to its disease gene discovery process and the clinical data and samples Gemini
has already collected, as well as the additional resources provided by Gemini's
technology collaborators. Gemini's technology collaborators include Celera
Genomics (a division of Applera Corporation), Qiagen Genomics, Large Scale
Proteomics, CuraGen, Sequenom, Rosetta Inpharmatics and Genmab.
Gemini focuses on identifying disease genes through a three-step process:
. Gemini's network of clinical collaborators and its Canadian subsidiary
collect extensive, high quality clinical measurements and related genetic
and other biological samples from human volunteers from a number of
different groups, comprising twin populations, disease-affected
populations, geographically isolated populations and patients in clinical
trials. Generally, Gemini has the exclusive right to use this clinical
and biological data for commercial purposes and has proprietary rights to
any genetic and other information derived from these resources. Gemini
also obtains genetic information from the growing amount available in the
public domain and from its technology alliances;
. Gemini integrates this data into its databases and other biological
information management and analysis, or bioinformatic, systems, as well
as technologies Gemini accesses through alliances, to identify
relationships between clinical measurements that are used to define a
disease and genes or proteins; and
. Gemini verifies its findings by using clinical and genetic data from its
different clinical populations to efficiently confirm its discoveries.
Gemini believes that the comprehensive and diverse nature of its clinical
and genetic resources gives it a significant competitive advantage. Gemini's
acquisition of Eurona Medical AB (subsequently renamed Gemini Genomics AB), a
Swedish genomics company, and its establishment of Newfound Genomics in Canada
have significantly expanded its access to clinical and genetic resources.
Because Gemini's clinical and genetic information would be time consuming and
expensive to replicate, Gemini believes this resource makes it an attractive
collaborator for companies possessing complementary technologies which enable
Gemini to discover disease genes more rapidly.
Gemini is a development stage company. Since inception, it has incurred
significant losses and, as of March 31, 2001, Gemini had an accumulated deficit
of $51.4 million. Gemini's only revenues to date have been license fees and
royalty receipts from the licensing of its first disease gene patent for use in
diagnostic applications, service fees from a gene validation program and
payments in relation to two non-exclusive agreements with CuraGen focused on
the discovery of genes that affect diabetes, obesity and osteoarthritis.
Competition
Gemini competes with a number of companies performing similar activities in
more targeted areas. A number of companies are involved in discovering genes
using human populations, which is similar to Gemini's approach. These companies
include deCode Genetics, Genset, Myriad Genetics, Millennium Pharmaceuticals
and Oxagen. Some of these companies collect data from siblings or large
families affected with disease,
51
including families affected with rare forms of genetic disease or families from
geographically isolated populations, which typically require replication in
general population samples. A number of companies, such as Celera Genomics,
CuraGen, Human Genome Sciences, Incyte Pharmaceuticals and Millennium
Pharmaceuticals, are involved in discovering genes using gene sequencing
technologies and equipment and other technologies.
Government Regulation
Government regulation in the United States, the European Union and other
countries significantly affects the collection and use of the DNA samples used
in Gemini's research programs as well as in the development and
commercialization by its customers of drugs and diagnostics based on its gene
discoveries.
Gemini obtains DNA samples through clinical collaborators and from its
Canadian subsidiary. The collection of genetic samples and genetic testing has
already raised concerns regarding confidentiality and the appropriate uses of
the resulting information. For these reasons, governmental authorities may
decide to restrict or regulate the use of genetic information or prohibit
testing for a genetic predisposition to certain conditions, particularly for
those that have no known cure. The programs of Gemini's clinical collaborators
and its Canadian subsidiary are subject to the review of procedures by the
ethics committees of the institutions associated with these collaborators.
These ethics committees are typically subject to national or local regulations.
In general, these regulations follow International Committee on Harmonization
guidelines for good clinical practice regarding the conduct of clinical
research programs and require (1) informing the volunteers in those programs of
the risks of the procedures to be performed as part of the program; and (2)
obtaining consent to participate in the program from all volunteers.
The relevant ethics committees approve the protocols and other operating
procedures to be followed in the programs and require the volunteers' consent
to the intended use of the samples and the protection of the individual
identities of the volunteers. Gemini's ability to collect samples and data
depends on its clinical collaborators' and its Canadian subsidiary's ability to
obtain ethics committee approvals.
Gemini's ultimate commercial success will depend on the ability of its
customers to successfully develop and market products based on its discoveries.
Gemini's customers will require the approval of the U.S. Food and Drug
Administration and similar regulatory authorities in other countries to
manufacture and market in those countries any drugs and diagnostics they
develop based on Gemini's discoveries. The United States and most other
countries impose high standards of review by their regulatory authorities
before drugs or diagnostics are approved for use. The regulatory authorities
typically require evidence of the product's safety and usefulness from pre-
clinical and clinical studies showing the effects and side effects of the
product before they will grant approval. This process typically takes a number
of years depending on the type, complexity and novelty of the product. These
authorities also typically demand ongoing oversight of the product for safety
and usefulness after it has been approved and is marketed. In addition, the
United States and most European countries have strict regulations which control
the testing, manufacturing, labeling, marketing, supplying, and selling of
drugs and diagnostics.
Property
Gemini currently leases a facility of approximately 19,600 square feet in
Needham, Massachusetts, for its North American headquarters. The lease expires
in December 2010. Gemini also leases approximately 12,600 square feet in two
premises in Cambridge, England for use as its U.K. headquarters and as the base
of its clinical analysis, research and development and support functions. The
space is held under two leases that expire in December 2002 and June 2010.
Gemini has entered into an agreement to enter a new lease for 35,600 square
feet of premises being constructed in Cambridge with effect from May 2002. This
lease will expire in May 2022. Gemini anticipates vacating its existing
premises in Cambridge on possession of the newly constructed premises. Gemini
leases approximately 20,300 square feet of mixed laboratory and office space in
Uppsala, Sweden. The space is held under four leases that expire in September
2002. Gemini owns freehold premises of 5,850 square feet in St. John's,
Newfoundland, Canada of mixed laboratory and office space to support clinical
collections in the province.
52
GEMINI MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Overview
Gemini is a clinical genomics company that identifies relationships between
human genes and common human diseases. Since commencing operations in 1995,
Gemini has focused on creating and developing its clinical information and
genetic sample resources together with its bioinformatics, information
technology and laboratory capabilities.
Gemini is a development stage company. Since inception, Gemini has incurred
significant losses and, as of March 31, 2001, it had an accumulated deficit of
$51.4 million. As Gemini continues to develop its business, it anticipates
incurring additional losses. Gemini also expects that the cash required to
support its operating activities will continue to increase as it expands its
clinical resources and acquires further complementary technologies.
Since inception, Gemini has received modest amounts of revenues, comprising
royalty and milestone payments from the licensing of its first disease gene
patent for use in diagnostic applications, fees in relation to agreements with
CuraGen and service fees from a gene validation program. Gemini expects that it
will derive future revenues primarily from the licensing of disease gene and
protein discoveries for drug discovery and diagnostic applications and, to a
lesser extent, from the provision of gene validation services. Gemini expects
to generate greater revenues from licensing its discoveries to pharmaceutical
companies for drug development programs than from licensing for diagnostic
applications. When licensing a gene or protein discovery, Gemini expects that
it will receive milestone payments and product royalties. Milestone payments
are typically paid over five to seven years upon the occurrence of specific
events, or milestones, as Gemini's product is used in the drug discovery or
diagnostics process. These payments are dependent upon the success of the
development program. Accordingly, Gemini intends to ensure that rights to
development revert to Gemini if a development program does not proceed on the
agreed timetable. Product royalties would typically give Gemini a percent of
the revenues derived from the sales of products using Gemini's discoveries and
often specify minimum annual payments. Gemini does not anticipate significant
future revenues from the provision of gene validation services.
Gemini has entered into a number of clinical collaborations with academic
and other institutions to acquire the commercial rights to gene discoveries
arising from the clinical data and samples they collect. Gemini has also sought
to capitalize on its expanding data resources and bioinformatics and other
technological capabilities by entering into collaborations with providers of
complementary technologies in order to discover disease genes more rapidly. For
example, Gemini has established technology alliances with Celera Genomics (a
division of Applera Corporation), Qiagen Genomics, Large Scale Proteomics,
CuraGen, Sequenom, Rosetta Inpharmatics and Genmab.
In December 1999, Gemini acquired Eurona Medical AB, a Swedish genomics
company. Gemini paid $4.9 million for Eurona, in the form of 1,820,180 newly
issued preferred ordinary shares, $19,000 in cash, and $186,000 in direct costs
relating to the acquisition. Gemini has successfully restructured Eurona to
focus on gene discovery and has fully integrated it with its operations. As a
result of this acquisition, Gemini significantly expanded its access to
clinical and genetic resources which enables Gemini to conduct its gene
discovery process more rapidly. In addition Gemini streamlined its combined
operations and reduced its total number of employees, significantly reducing
its overall operating expenses, and therefore, its cash requirements. Following
the Eurona acquisition, Gemini's existing shareholders provided Gemini with
$11.1 million in cash by subscribing for new preferred ordinary shares in a
rights offering.
In June 2000, Gemini incorporated Newfound Genomics in Newfoundland, Canada,
now a wholly owned subsidiary. In collaboration with local parties, Gemini
established a local facility and commenced clinical and genetic data collection
from the geographically isolated population in Newfoundland, where there tend
to be very large families with well-defined family origins and with higher than
normal incidences of a number of diseases.
53
In July 2000, Gemini completed an initial public offering of its ordinary
shares, in the form of American Depositary Shares, and in August 2000, its
underwriters exercised their option to purchase additional shares to cover
over-allotments in connection with the initial public offering. In total,
Gemini received net proceeds of approximately $86.2 million from the sale of
13,800,000 ordinary shares. Since inception, Gemini has raised $127.1 million
of equity from its shareholders, net of expenses.
Gemini expects its costs to increase with continued growth. A significant
portion of its historical cost has been related to its clinical collaborators,
and Gemini expects this to continue. Gemini pays its clinical collaborators for
recruitment of volunteers, performance of clinical measurements, collection and
storage of clinical samples and certain analysis of the clinical data. Gemini
records the costs of its clinical collaborations as research and development
costs. Gemini expects that an increasing proportion of its costs will reflect
its investment in new technologies to analyze its growing data resources and to
increase the speed of its gene discovery process. Gemini also expects to incur
charges relating to the future exercise of warrants and share options, which
Gemini is currently unable to quantify. In the year ended March 31, 2001,
Gemini incurred $1.9 million of share option based compensation charges and as
of March 31, 2001 had a deferred compensation balance of $1.5 million.
Amortization of this balance will be approximately $1.5 million for the year
ending March 31, 2002, and there will be no amortization for this balance in
the year ended March 31, 2003.
Gemini has a limited history of operations, and it anticipates that its
quarterly results of operations will fluctuate for the foreseeable future due
to several factors, including the timing and extent to which it can secure
further commercial relationships and the timing and extent of its research and
development efforts. Gemini's limited operating history and the fast pace of
developments in the genomics sector make it difficult for Gemini to accurately
predict its future operations.
Operating Results
Year ended March 31, 2001 compared to the year ended March 31,2000
Revenues. Revenues increased by $1,415,000 to $1,579,000 in the year ended
March 31, 2001 from $164,000 in the year ended March 31, 2000. The increase in
revenue resulted primarily from payments received under two non-exclusive
agreements with CuraGen, which commenced during the year ended March 31, 2001.
Research and Development Expenses. Research and development expenses
increased by $3.1 million to $13.0 million in the year ended March 31, 2001
from $9.9 million in the year ended March 31, 2000. These expenses primarily
relate to Gemini's clinical collaborators and, to a lesser extent, salaries for
research and development personnel, external scientific advisors and laboratory
costs. The increase in spending primarily reflects an increase in the number of
research personnel as well as accelerated clinical and research efforts in a
number of gene and target discovery activities.
Marketing, General and Administrative Expenses. Marketing, general and
administrative expenses increased by $4.1 million to $9.4 million in the year
ended March 31, 2001 from $5.3 million in the year ended March 31, 2000. These
expenses consisted primarily of employment and facilities costs and other
expenses incurred by Gemini in business development, information technology,
finance and various support functions. The increase reflects investment in
business development and intellectual property management activities and
Gemini's increased infrastructure resulting from the expansion of its business.
Gemini refurbished and opened a new U.S. headquarters during the year ended
March 31, 2001.
Interest Expense (Net). Net interest income increased by $3,379,000 to
$3,364,000 in the year ended March 31, 2001 from a net interest expense of
$15,000 in the year ended March 31, 2000. Interest income increased by
$3,363,000 to $3,841,000 in the year ended March 31, 2000 from $478,000 in the
year ended March 31, 2000 due to higher balances of interest bearing cash
deposits. Interest payable decreased by $16,000 to $477,000 in the year ended
March 31, 2001 from $493,000 in the year ended March 31, 2000 due to changes in
Gemini's capital lease obligations.
54
Foreign Currency Gain. Foreign currency gain increased by $4.5 million to
$4.5 million in the year ended March 31, 2001. Gemini had no foreign currency
gain or loss in the year ended March 31, 2000. This $4.5 million gain arose
from the difference between translating U.S. dollar cash proceeds from
Gemini's initial public offering into British pounds, Gemini's functional
currency, at receipt and translating the remaining U.S. dollar denominated
cash balances into British pounds at March 31, 2001.
Taxes. Gemini's taxation credit increased by $880,000 to $880,000 in the
year ended March 31, 2001. Gemini had no taxation credit in the year ended
March 31, 2000. This $880,000 increase arose from a change in U.K. corporation
tax law with effect from April 1, 2000 allowing companies engaged in research
and development and which meet certain criteria to surrender ongoing
corporation tax losses in return for a cash refund of employee and payroll
taxes.
Year Ended March 31, 2000 Compared To The Year Ended March 31, 1999
Revenues. Revenues decreased by $34,000 to $164,000 in the year ended March
31, 2000 from $198,000 in the year ended March 31, 1999. This decrease related
both to the completion of a gene validation program during the year and
reflects the fact that revenues were received for a lesser amount of work than
in the previous year.
Research and Development Expenses. Research and development expenses
increased by $0.5 million to $9.9 million in the year ended March 31, 2000
from $9.4 million in the year ended March 31, 1999. These expenses primarily
relate to Gemini's clinical collaborators and, to a lesser extent, salaries
for research and development personnel, external scientific advisors and
laboratory costs. The increase reflected costs of $0.5 million incurred in
order to streamline the analysis of genetic samples taken from volunteers in
China by establishing a gene analysis center at the Anhui Meizhong Institute
of Biomedical Sciences and Environmental Health.
Marketing, General And Administrative Expenses. Marketing, general and
administrative expenses increased by $3.8 million to $5.3 million in the year
ended March 31, 2000 from $1.5 million in the year ended March 31, 1999. These
expenses consisted primarily of employment and facilities costs and other
expenses incurred by Gemini's business development, information technology,
finance and various support functions. This increase included $2.2 million of
additional costs relating to increased sales and marketing activities, which
primarily consisted of additional personnel, travel and material costs
incurred in business development and administrative functions. Also included
in the increase is a $1.3 million charge relating to the issuance of 500,000
preferred ordinary shares under agreements reached in the period with a number
of ex-employees and approximately $0.3 million related to share option
compensation.
Interest Expense (Net). Net interest expense decreased by $36,000 to
$15,000 in the year ended March 31, 2000 from $51,000 in the year ended March
31, 1999. Interest income increased by $209,000 to $478,000 in the year ended
March 31, 2000 from $269,000 in the year ended March 31, 1999 due to higher
balances of interest bearing cash deposits. Interest payable increased by
$173,000 to $493,000 in the year ended March 31, 2000 from $320,000 in the
year ended March 31, 1999 due to increased capital lease obligations and the
inclusion of a charge relating to the issuance of warrants to a debt provider.
Taxes. Gemini had no taxation charge or credit in either of the years ended
March 31, 2000 or 1999.
Impact of Inflation
The impact of inflation and changing prices on operations was not
significant during the periods presented.
55
Foreign Currency Rate Fluctuations
The functional currency of Gemini operating subsidiaries are British pounds,
U.S. dollars, Swedish kronor and Canadian dollars. In accordance with SFAS No.
52, Foreign Currency Translation, Gemini translates other currencies to British
pounds for balance sheet accounts using the exchange ratio in effect at the
balance sheet date and for revenues and expense accounts at the average
exchange ratio during the period. The effects of translation are recorded as a
separate component of shareholders' equity. Gemini translates its consolidated
financial statements from British pounds, Gemini's functional currency, to U.S.
dollars, for reporting purposes. Fluctuations in the rate of exchange of the
British pound relative to the U.S. dollar will affect period-to-period
comparisons of Gemini's reported results.
During the year ended March 31, 2001, Gemini's foreign currency gains
amounted to $4.5 million. No gains or losses were recorded during prior years.
Gemini's foreign currency gain arose from the foreign currency effects of
translating the funds received from Gemini's initial public offering in U.S.
dollars into British pounds, Gemini's functional currency.
Gemini has not taken any action to reduce its exposure to changes in foreign
currency exchange ratios, such as options or futures contracts, either with
respect to any individual transactions or in general.
Recent Accounting Pronouncements
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133,
Accounting for Derivative Instruments. This statement changes the previous
definition of derivative, which focused on freestanding contracts such as
options and forwards, including futures and swaps, expanding it to include
embedded derivatives and many commodity contracts. Under the statement, every
derivative is recorded in the balance sheet as either an asset or a liability
measured at its fair value. The statement requires that changes in the
derivatives fair value be recognized currently in earnings unless specific
hedge accounting criteria are met. SFAS No. 133 is effective for fiscal years
beginning after June 15, 2000. Gemini does not anticipate that the adoption of
SFAS No. 133 will have a material impact on its financial position or results
of operations in future accounting periods.
Liquidity and Capital Resources
Gemini has financed its operations since inception primarily through the
private placement of equity securities. Since inception, Gemini has raised
$127.1 million of equity from its shareholders, net of issuance costs. In
addition, Gemini has entered into a number of capital lease agreements totaling
$8.7 million to finance the acquisition of its scientific and computer
equipment. As of March 31, 2001, Gemini has made capital repayments on these
leases totaling $4.9 million.
As of March 31, 2001 Gemini had cash and cash equivalents of $79.6 million
compared to cash and cash equivalents of $13.4 million at March 31, 2000. This
increase reflects receipt of the net offering proceeds from the initial public
offering of Gemini's ordinary shares, in the form of American Depositary
Shares, in July 2000. As of March 31, 2000, Gemini had cash and cash
equivalents of $13.4 million compared to cash and cash equivalents of $12.2
million at March 31, 1999. This increase reflects receipts of the proceeds from
Gemini's equity financing completed in March 1999 and December 1999. Gemini's
funds are invested in U.S. dollars and British pounds, in liquidity funds and
short-term deposits, with periods varying from one day to one year, with a
variety of institutions.
Gemini expects its cash and cash equivalents, together with its operational
and interest income earned, to be sufficient to fund operations for at least
the next 12 months. The adequacy of available funds will depend on many
factors, including scientific progress in research and development programs,
the magnitude of those programs, commitments to existing and new clinical
collaborators, ability to establish commercial and licensing arrangements,
capital expenditures, market developments and any future acquisitions.
Accordingly, Gemini may
56
require additional funds and may attempt to raise additional funds through
equity or debt financings, collaborative agreements with commercial partners or
from other sources.
In February 2000, Gemini established a $5.0 million line of credit for
capital equipment financings with Hewlett-Packard International Bank Limited.
Gemini has drawn a total of $1.3 million against this line of credit. Interest
is repayable quarterly at 11.0% per annum over the four- year period of the
lease, which has a capital repayment holiday for the first 18 month period.
Gemini has no commitments for any additional financings. In connection with
entering into this line of credit, Gemini granted Hewlett-Packard International
Bank Limited warrants to purchase 40,000 ordinary shares and has agreed to
grant them additional warrants to purchase up to 80,000 additional ordinary
shares in the event that Gemini draws further against this line of credit.
Hewlett-Packard International Bank Limited has until February 21, 2003 to
exercise its outstanding warrants and may do so by providing notice to Gemini
of its intention to exercise the warrants as well as by paying an exercise
price of (Pounds)0.05 ($0.07) per ordinary share. Any excess of the market
value over the exercise price of the ordinary shares will have an adverse
impact on Gemini's statement of operations. In February 2001, Gemini undertook
a sale and leaseback transaction with Investec. Gemini sold scientific and
information technology equipment Gemini had recently acquired for $0.7 million
and has entered into a three-year lease arrangement. No gain or loss was
recognized on this transaction. Repayments are quarterly and interest is
payable at 9.8% per annum.
Gemini's capital expenditures totaled $1.1 million, $0.7 million and $2.3
million, in the years ended March 31, 1999, 2000 and 2001, respectively. In
each period these expenditures consisted principally of the purchase of
laboratory equipment, information technology and refurbishing its premises.
In the year ended March 31, 2001, Gemini signed a ten-year operating lease
for approximately 19,600 square feet of office space in Boston, Massachusetts
at a cost of $648,000 per year. Gemini has approval from the landlords to
sublet half of this space. The landlords required a stand-by letter of credit
amounting to $1,127,000 to secure the lease. This letter of credit is supported
by a charge over an equivalent amount held in an interest-bearing bank account
shown as restricted cash in Gemini's consolidated balance sheet.
As of March 31, 2001 Gemini was still completing the refurbishment of its
freehold premises in Newfoundland, Canada. Gemini expects the refurbishment to
be completed by June 2001, at a total cost of around $0.2 million, which Gemini
expects to finance from existing cash resources.
Trend Information
Gemini's total expenses increased by $7.9 million to $23.5 million in the
year ended March 31, 2001 from $15.6 million in the year ended March 31, 2000.
This increase arose from accelerated activity in research programs and costs
associated with building Gemini's business development and support functions,
which have both occurred following Gemini's initial public offering in July
2000. Gemini expects this trend of increasing activity to continue in the
current fiscal year and, together with the full-year effect of the expenditure
related to the enlarged organization, to cause a further increase in its level
of total expenses.
In the continuing absence of significant revenues, there will be an increase
in Gemini's loss from operations and a decrease in its current level of cash
resources.
Quantitative and Qualitative Disclosures About Market Risk
The primary objective of Gemini's investment activities is to preserve
capital while at the same time maximizing the income it receives from its
investments without significantly increasing risk. Gemini currently maintains
its portfolio of cash and cash equivalents by investing in term deposits of
varying lengths, between one day and one year, and in diversified institutional
liquidity funds offering immediate access and variable interest rates. Some of
the securities that Gemini invests in may have market risk. This means that a
change in prevailing interest rates may cause the fair value of the principal
amount of the investment to fluctuate. For
57
example, if Gemini holds a security that was issued with a fixed interest rate
at the then-prevailing rate and the prevailing interest rate later rises, the
fair value of the principal amount of Gemini's investment will probably
decline. Due to the short-term nature of Gemini's current investments, Gemini
believes it has no material exposure to interest rate risk arising from its
investments.
Currency Risk
The funds raised in U.S. dollars from Gemini's initial public offering are
held in U.S. dollar denominated investments. As Gemini's functional currency is
the British pound, Gemini translates the U.S. dollar denominated investments
into British pounds and records a gain or loss in its consolidated statement of
operations. A strengthening of the British pound against the U.S. dollar could
result in a material increase in Gemini's losses for any given financial
period. Gemini has made net foreign currency gains in the year ended March 31,
2001, but you should not view this gain as an indicator of future financial
performance in this area.
The table below sets forth Gemini's currency exposure (i.e., those
transactional exposures that give rise to the net currency gains and losses
recognized in the income and expenditure account) on Gemini's net monetary
assets and liabilities. These exposures consist of Gemini's monetary assets and
liabilities that are not denominated in the currency used by Gemini or its
subsidiary or affiliate having the asset or liability.
As of March 31, 2001
----------------------------
Net Foreign Currency
Monetary
Assets/(Liabilities)
----------------------------
Swedish
Functional Currency of Operations Pounds Kronor Dollars Other
--------------------------------- ------ ------- ------- -----
($ In Millions)
British pound............................... n/a (0.2) 79.2 (0.6)
Gemini had no off balance sheet, or unrecognized, gains and losses in
respect of financial instruments used as hedges at the beginning or end of the
year ended March 31, 2001. Gemini had no deferred gains or losses during the
year covered.
Interest Rate Risk
The following table analyzes the interest rate composition of Gemini's
financial liabilities, comprising borrowings and other contractual obligations
to deliver cash or other financial assets to another entity, by currency. As of
March 31, 2001, Gemini had not entered into any interest rate swaps or any
other interest rate hedging instruments. Gemini's fixed rate financial
liabilities are comprised mainly of finance leases.
The following table summarizes the nominal and fair values, maturity and
contract terms of Gemini's financial liabilities as of March 31, 2001:
Interest
-----------------------------------------------------------
Financial Liabilities Floating Rate Fixed Rate
------------------------ --------------- -------------------------------------------
Weighted
Average
Period For
Weighted Average Which Rate
Interest Rate(%) Is Fixed
---------------- ----------
($ In Millions) ($ In Millions)
Currency
--------
British pound........... -- 3.3 11% 3 years
Swedish krona........... 0.1 -- -- --
------ -------
At March 31, 2001....... 0.1 3.3
====== =======
58
The table below sets forth the interest rate risk profile of Gemini's
financial assets as of March 31, 2001, by currency. As of March 31, 2001,
Gemini had no assets on which it received fixed rates of interest. Gemini
received only variable rates of interest on both its short-term deposits, which
consist of investments in institutional liquidity funds and term deposits, and
cash at banks and in hand.
Cash at
Bank and Liquidity Term
In Hand Funds Deposits Total
-------- --------- -------- -----
($ In Millions)
Currency
--------
U.S. dollar................................ -- 79.2 1.1 80.3
British pound.............................. 0.2 -- -- 0.2
Other currencies........................... 0.2 -- -- 0.2
--- ---- --- ----
0.4 79.2 1.1 80.7
=== ==== === ====
Floating rate.............................. 0.4 79.2 -- 79.6
Fixed rate................................. -- -- 1.1 1.1
--- ---- --- ----
As of December 31, 1999.................... 0.4 79.2 1.1 80.7
=== ==== === ====
Fair Values of Financial Instruments
There is no difference between the book value and fair value of all of
Gemini's financial instruments as of March 31, 2001.
Financing and Liquidity Risk
Gemini maintains unutilized banking and capital leasing facilities to
mitigate any liquidity risk Gemini may face. As of March 31, 2001, Gemini had
total borrowing and capital leasing facilities of $6.4 million, of which $3.4
million was utilized. The maximum utilization of these facilities during the
year ended March 31, 2001 was $4.2 million.
59
SEQUENOM DIRECTORS AFTER THE TRANSACTION
It is anticipated that all current members of the Sequenom board of
directors will continue their service on the board after the completion of the
Transaction. Two additional persons will be nominated and elected to the board
after the completion. These persons are:
. Michael Fitzgerald, the current Chairman of Gemini; and
. one additional person to be selected by Mr. Fitzgerald who is a director
of, or employed by, a publicly held biotechnology or pharmaceutical
company other than Gemini and is reasonably acceptable to Sequenom.
For at least two years following the completion of the Transaction, the
board of directors will include no more than eight directors unless otherwise
consented to by directors representing 80% of the voting power of the board.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K for the year
ended December 31, 2000, as set forth in their report, which is incorporated by
reference in this proxy statement. Our financial statements are incorporated by
reference in reliance on Ernst & Young LLP's report, given on their authority
as experts in accounting and auditing.
Ernst & Young LLP, independent auditors, have audited the consolidated
financial statements of Gemini Genomics plc at March 31, 2001 and 2000, and for
each of the three years in the period ended March 31, 2001, as set forth in
their report. Such consolidated financial statements are included in this proxy
statement in reliance on Ernst & Young LLP's report, given on their authority
as experts in accounting and auditing.
60
OTHER MATTERS AND PROPOSALS FOR THE SEQUENOM SPECIAL MEETING
To approve Amendments to Sequenom's Certificate of Incorporation and Bylaws to
Provide that the Board of Directors may exclusively set the Authorized Number
of Directors from Time to Time.
On May 25, 2001, Sequenom's board of directors unanimously adopted, subject
to stockholder approval, an amendment to Sequenom's certificate of
incorporation and a related amendment to Sequenom's bylaws, as set forth in
Attachment C and Attachment D to this proxy statement, respectively. In
general, the amendments provide that the Sequenom board of directors will have
the exclusive right to set the authorized number of directors to serve on the
board of directors. The proposed amendments to Sequenom's certificate of
incorporation and bylaws will provide Sequenom's board of directors the ability
to fix the size of the board from time to time by the affirmative vote of a
majority of Sequenom's directors.
Pursuant to the Transaction Agreement, we have agreed to appoint Michael
Fitzgerald and an additional individual to be selected by Mr. Fitzgerald with
relevant industry experience and reasonably acceptable to Sequenom as members
of Sequenom's board of directors effective immediately prior to the completion
of the Transaction. The election of these two additional directors would
increase the number of Sequenom directors from six to eight. Sequenom's bylaws
currently limit the number of directors to any number between four and seven.
Accordingly, in order to appoint these two additional directors, the maximum
authorized number of directors will need to be increased by at least one
member. The proposed amendments to Sequenom's bylaws and certificate of
incorporation will permit Sequenom's board of directors to fix the size of the
board to allow for the nomination of these additional directors.
Stockholders are requested to approve the amendments to Articles VI and X of
Sequenom's certificate of incorporation as set forth in Attachment C to this
proxy statement. These amendments provide that the Sequenom board of directors
will have the exclusive right to set the authorized number of directors from
time to time and that, subject to applicable law and any other provision of the
certificate of incorporation, the affirmative vote of at least 66 2/3% of the
outstanding voting power of Sequenom common stock will be required to alter,
amend or repeal these provisions. The affirmative vote of the holders of at
least a majority of the outstanding shares of Sequenom's common stock are
required to approve these proposed amendments.
Additionally, stockholders are requested to approve an amendment to Section
1 of Article III of Sequenom's bylaws as set forth in Attachment D to this
proxy statement. The amendment to Sequenom's bylaws eliminates the existing
requirement that the board of directors obtain the approval of holders of at
least 66 2/3% of the outstanding shares of Sequenom's common stock to change
the size of the board to more than seven or less than four members and provides
that the authorized number of directors will be fixed as set forth in the
certificate of incorporation. Under Sequenom's current bylaws, the affirmative
vote of at least 66 2/3% of Sequenom's directors and the affirmative vote of
the holders of at least 66 2/3% of the outstanding shares of Sequenom's common
stock are required for approval of an amendment to Section 1 of Article III of
the bylaws.
If approved, these amendments will have the effect of preventing Sequenom's
stockholders from modifying the size of the board of directors without the
approval of a majority of Sequenom's board of directors. In addition to
permitting the size of Sequenom's board of directors to be increased to allow
for the appointment of the two additional directors to be nominated pursuant to
the Transaction Agreement, these amendments also provide additional anti-
takeover protection to Sequenom. The board of directors believes that takeover
attempts that have not been negotiated or approved by the board of directors
could seriously disrupt the business and management of Sequenom and result in
terms which may be less favorable to the stockholders as a group than would be
available in a board-approved transaction. Since the effect of anti-takeover
measures is to make management more difficult to remove involuntarily, anti-
takeover measures may force those seeking to assume control of Sequenom to
negotiate with management which may lead to a more favorable price for
stockholders in any transaction to assume control.
The amendments may be disadvantageous to stockholders because they may
render more difficult the accomplishment of mergers or the assumption of
control by a principal stockholder without board approval and
61
may limit Sequenom stockholders' flexibility to determine the composition of
the board of directors or to make other changes even in circumstances where a
majority of the stockholders may be dissatisfied with the performance of the
incumbent directors or otherwise desire to make changes. The board of directors
has considered the potential disadvantages and has unanimously concluded that
the potential benefits of the proposed changes outweigh the possible
disadvantages. The board of directors believes the amendments to the
certificate of incorporation and the bylaws to be in the best interests of
Sequenom and its stockholders and recommends a vote in favor of the proposed
amendments.
The approval of the amendment to the certificate of incorporation by the
Sequenom stockholders is subject to, and contingent upon, the approval of the
bylaw amendment. Accordingly, if the bylaw amendment is not approved by the
requisite affirmative vote of 66 2/3% of the outstanding shares of Sequenom
common stock, then the amendment to the certificate of incorporation will not
be implemented.
62
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may inspect and copy such material at the public
reference facilities maintained by the SEC at Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549, as well as at the SEC's regional offices at 500
West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade
Center, Suite 1300, New York, New York 10048.
Please call the SEC at 1-800-SEC-0330 for more information on the public
reference rooms. You also can find our SEC filings at the SEC's website at
www.sec.gov.
The SEC allows us to incorporate by reference, which means that we can
disclose important information to you by referring you to another document
filed separately with the SEC. The information incorporated by reference is
deemed to be part of this proxy statement, except for any information
superseded by information in this proxy statement. This proxy statement
incorporates by reference the documents set forth below that we have
previously filed with the SEC. These documents contain important information
about Sequenom and its finances.
1. Sequenom's Proxy Statement on Schedule 14A (filing date April 25, 2001).
2. Sequenom's Annual Report on Form 10-K for the year ended December 31,
2000.
3. Sequenom's Quarterly Report on Form 10-Q for the quarter ended March 31,
2001.
4. Sequenom's Current Report on Form 8-K, dated May 29, 2001.
5. The description of Sequenom's common stock on Form 8-A, filed January
25, 2000, including all amendments and reports filed for the purpose of
updating such description.
We are also incorporating by reference additional documents that we may
file with the SEC between the date of this proxy statement and the date of the
special meeting.
Documents specifically incorporated into this document by reference are
available without charge, excluding all exhibits unless an exhibit has been
specifically incorporated by reference into this document. You may obtain
documents incorporated into this document by reference by requesting them in
writing or by telephone from Sequenom at the following address:
Sequenom, Inc.
3595 Johns Hopkins Court
San Diego, California 92121
Attention: Investor Relations
(858) 202-9000
In order to obtain timely delivery of this information, you should request
it no later than August 16, 2001.
----------------
You should rely only on the information provided in this proxy statement
(including the Transaction Agreement attached as Attachment A of this proxy
statement) in considering how to vote your shares on the proposals discussed
herein. We have authorized no one to provide you with different information.
You should not assume that the information in this proxy statement is accurate
as of any date other than the date on the front of this document.
63
INDEX TO GEMINI FINANCIAL STATEMENTS
Page
----
Report of Independent Auditors............................................ F-2
Consolidated Balance Sheets at March 31, 2000 and 2001.................... F-3
Consolidated Statements of Operations for the years ended March 31, 1999,
2000 and 2001 and from September 11, 1995 (inception) to March 31, 2001.. F-4
Consolidated Statement of Shareholders' Equity (Deficit) for the period
from September 11, 1995 (inception) to March 31, 2001.................... F-5
Consolidated Statements of Cash Flow for the years ended March 31, 1999,
2000 and 2001 and the period from September 11, 1995 (inception) to
March 31, 2001........................................................... F-8
Notes to the Consolidated Financial Statements............................ F-9
F-1
REPORT OF INDEPENDENT AUDITORS
To: The Board of Directors and Shareholders
Gemini Genomics plc
We have audited the accompanying consolidated balance sheets of Gemini
Genomics plc (a development stage company) as of March 31, 2000 and 2001 and
the related consolidated statements of operations, shareholders' equity and
cash flows for each of the three years in the period ended March 31, 2001 and
the period from September 11, 1995 (inception) to March 31, 2001. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with United Kingdom auditing standards
and United States generally accepted auditing standards. Those standards
require that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by management, as
well as evaluating the overall financial statement presentation. We believe
that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Gemini Genomics plc (a
development stage company) at March 31, 2000 and 2001 and the consolidated
results of its operations and its consolidated cash flows for each of the three
years in the period ended March 31, 2001 and the period from September 11, 1995
(inception) to March 31, 2001, in conformity with accounting principles
generally accepted in the United States.
Ernst & Young
Cambridge, England
22 May 2001
F-2
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED BALANCE SHEETS
(In Thousands)
March 31
------------------
2001 2000
-------- --------
ASSETS
------
Current assets:
Cash and cash equivalents................................ $ 79,576 $ 13,414
Accounts receivable...................................... 1,399 88
Inventories.............................................. 293 179
Prepaid expenses and other current assets................ 1,414 665
Tax credit receivable.................................... 875 --
-------- --------
Total current assets..................................... 83,557 14,346
Property, plant and equipment, net....................... 4,104 2,641
Restricted cash.......................................... 1,127 --
Goodwill and other intangible assets, net................ 3,672 5,249
-------- --------
Total assets........................................... $ 92,460 $ 22,236
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
------------------------------------
Current liabilities:
Bank loans............................................... $ 139 $ 243
Accounts payable......................................... 3,020 2,487
Collaborative accruals................................... 1,567 1,288
Accrued liabilities and other current liabilities........ 3,022 2,338
Deferred income.......................................... 100 --
Current portion of capital lease obligations............. 1,395 1,005
-------- --------
Total current liabilities................................ 9,243 7,361
Capital lease obligations................................ 1,862 2,912
Other noncurrent liabilities............................. -- 75
-------- --------
Total liabilities...................................... 11,105 10,348
-------- --------
Ordinary shares, $0.05 par value, 120,000,000 authorized
and 64,742,260 shares and 50,895,220 shares outstanding at
March 31, 2001 and March 31, 2000, respectively........... 5,238 4,192
Additional paid-in capital................................. 134,992 48,954
Deferred compensation...................................... (1,490) (2,611)
Notes receivable from shareholders......................... -- (40)
Accumulated other comprehensive loss....................... (6,031) (414)
Deficit accumulated during the development stage........... (51,354) (38,193)
-------- --------
Total shareholders' equity............................. 81,355 11,888
-------- --------
Total liabilities and shareholders' equity............. $ 92,460 $ 22,236
======== ========
See Accompanying Notes.
F-3
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENTS OF OPERATIONS
(In Thousands, Except Share and Per Share Amounts)
Period from
September 11
1995
Year Ended March 31 (Inception)
---------------------------------- to March 31
2001 2000 1999 2001
---------- ---------- ---------- ------------
Revenue....................... $ 1,579 $ 164 $ 198 $ 1,941
---------- ---------- ---------- ----------
Costs and expenses:
Costs of revenue............ 71 25 -- 96
Research and development.... 12,970 9,932 9,421 39,946
Marketing, general and
administrative............. 9,382 5,286 1,471 20,163
Amortization of goodwill and
other intangible assets.... 1,033 311 -- 1,344
---------- ---------- ---------- ----------
Total costs and expenses.. 23,456 15,554 10,892 61,549
---------- ---------- ---------- ----------
Loss from operations.......... (21,877) (15,390) (10,694) (59,608)
Foreign currency gain......... 4,472 -- -- 4,472
Interest income............... 3,841 478 269 4,770
Interest expense.............. (477) (493) (320) (1,868)
---------- ---------- ---------- ----------
Net loss before taxation...... (14,041) (15,405) (10,745) (52,234)
Taxation credit............... 880 -- -- 880
---------- ---------- ---------- ----------
Net loss...................... $ (13,161) $ (15,405) $ (10,745) $ (51,354)
========== ========== ========== ==========
Net loss per share--basic and
diluted...................... $ (0.22) $ (0.73) $ (0.54) $ (2.31)
========== ========== ========== ==========
Net loss per ADS--basic and
diluted...................... $ (0.44) $ (1.46) $ (1.08) $ (4.62)
========== ========== ========== ==========
Pro-forma net loss per share--
basic and diluted
(unaudited).................. $ (0.35) $ (1.65)
========== ==========
Pro-forma net loss per ADS--
basic and diluted
(unaudited).................. $ (0.70) $ (3.30)
========== ==========
Shares used in calculation of
net loss per share and
per ADS...................... 60,140,117 21,182,195 20,000,000 22,267,346
========== ========== ========== ==========
Shares used in calculation of
pro-forma net loss per share
and per ADS (unaudited)...... 45,959,745 31,189,754
========== ==========
See Accompanying Notes.
F-4
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY (DEFICIT)
PERIOD FROM SEPTEMBER 11, 1995 (INCEPTION) TO MARCH 31, 2001
(In Thousands, Except Share Amounts)
Gemini International Holdings Plc
---------------------------------------------------
Redeemable
Convertible
Preference
Ordinary Shares Shares Additional
------------------- ------------------- Paid In
Shares Amount Shares Amount Capital
----------- ------ ----------- ------ ----------
Issuance of
Ordinary Shares
for $0.0008 per
share in
September 1995.. 4,000 $ -- -- $ -- $ --
Issuance of
Ordinary Shares
for $0.0008 per
share in March
1996............ 1,996,000 2 -- -- --
Net loss and
comprehensive
net loss from
inception
through March
31, 1996........ -- -- -- -- --
----------- ----- ----------- ---- -------
Balances at
March 31, 1996.. 2,000,000 2 -- -- --
Issuance of
redeemable
Convertible
Preferred shares
for $0.0008 per
share in March
1997............ -- -- 5,840,000 5 4,635
Issuance of
Ordinary Shares
for $0.0008 per
share in March
1997............ 18,000,000 14 -- -- --
Translation
adjustment...... -- -- -- -- --
Net loss........ -- -- -- -- --
Total
comprehensive
loss............ -- -- -- -- --
----------- ----- ----------- ---- -------
Balances at
March 31, 1997.. 20,000,000 16 5,840,000 5 4,635
Issuance of
redeemable
convertible
preferred shares
for $0.96 per
share in April,
July and
September 1997.. -- -- 5,349,560 4 5,210
Exchange of
shares to effect
reorganization
on December 5,
1997............ (20,000,000) (16) (11,189,560) (9) (9,845)
Issuance of
Series C
convertible
preferred
ordinary shares
for $1.21 per
share in March
1998............ -- -- -- -- --
Deferred share
compensation.... -- -- -- -- --
Amortization of
deferred share
compensation.... -- -- -- -- --
Translation
adjustment...... -- -- -- -- --
Net loss........ -- -- -- -- --
Total
comprehensive
loss............ -- -- -- -- --
----------- ----- ----------- ---- -------
Balances at
March 31, 1998.. -- -- -- -- --
Gemini Genomics Plc
-----------------------------------------------------------------------------------------------
Deficit
Accum-
ulated Accum-
Convertible Deferred Notes During ulated Total
Preferred Share Receivable The Other Share
Ordinary Shares Ordinary Share Additional Based From Develop- Compre- Holders'
----------------- ------------------ Paid In Compen - Share- ment hensive Equity
Shares Amount Shares Amount Capital sation holders Stage Income (Deficit)
---------- ------ ----------- ------ ---------- -------- ---------- --------- ------- ---------
Issuance of
Ordinary Shares
for $0.0008 per
share in
September 1995.. -- $ -- -- $ -- $ -- $ -- $ -- $ -- $ -- $ --
Issuance of
Ordinary Shares
for $0.0008 per
share in March
1996............ -- -- -- -- -- -- -- -- -- 2
Net loss and
comprehensive
net loss from
inception
through March
31, 1996........ -- -- -- -- -- -- -- (457) -- (457)
---------- ------ ----------- ------ ---------- -------- ---------- --------- ------- ---------
Balances at
March 31, 1996.. -- -- -- -- -- -- -- (457) -- (455)
Issuance of
redeemable
Convertible
Preferred shares
for $0.0008 per
share in March
1997............ -- -- -- -- -- -- -- -- -- 4,640
Issuance of
Ordinary Shares
for $0.0008 per
share in March
1997............ -- -- -- -- -- -- -- -- -- 14
Translation
adjustment...... -- -- -- -- -- -- -- -- 4 4
Net loss........ -- -- -- -- -- -- -- (3,463) -- (3,463)
---------
Total
comprehensive
loss............ -- -- -- -- -- -- -- -- -- (3,459)
---------- ------ ----------- ------ ---------- -------- ---------- --------- ------- ---------
Balances at
March 31, 1997.. -- -- -- -- -- -- -- (3,920) 4 740
Issuance of
redeemable
convertible
preferred shares
for $0.96 per
share in April,
July and
September 1997.. -- -- -- -- -- -- -- -- -- 5,214
Exchange of
shares to effect
reorganization
on December 5,
1997............ 20,000,000 1,646 11,275,560 937 7,287 -- -- -- -- --
Issuance of
Series C
convertible
preferred
ordinary shares
for $1.21 per
share in March
1998............ -- -- 545,360 45 619 -- -- -- -- 664
Deferred share
compensation.... -- -- -- -- 384 (384) -- -- -- --
Amortization of
deferred share
compensation.... -- -- -- -- -- 52 -- -- -- 52
Translation
adjustment...... -- -- -- -- -- -- -- -- (35) (35)
Net loss........ -- -- -- -- -- -- -- (8,123) -- (8,123)
---------
Total
comprehensive
loss............ -- -- -- -- -- -- -- -- -- (8,158)
---------- ------ ----------- ------ ---------- -------- ---------- --------- ------- ---------
Balances at
March 31, 1998.. 20,000,000 1,646 11,820,920 982 8,290 (332) -- (12,043) (31) (1,488)
F-5
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY (DEFICIT)
PERIOD FROM SEPTEMBER 11, 1995 (INCEPTION) TO MARCH 31, 2001--(Continued)
(In Thousands, Except Share Amounts)
Gemini International Holdings Plc
--------------------------------------
Redeemable
Convertible
Ordinary Preference
Shares Shares Additional
------------- ------------- Paid In
Shares Amount Shares Amount Capital
------ ------ ------ ------ ----------
Issuance of
Series C
convertible
preferred
ordinary shares
for $1.22 per
share in May
1998............ -- -- -- -- --
Issuance of
Series C
convertible
preferred
ordinary shares
for $2.21 per
share in March,
1999............ -- -- -- -- --
Deferred share
compensation.... -- -- -- -- --
Amortization of
deferred share
compensation.... -- -- -- -- --
Translation
adjustment...... -- -- -- -- --
Net loss........ -- -- -- -- --
Total
comprehensive
loss............ -- -- -- -- --
--- --- --- --- ---
Balances at
March 31, 1999.. -- -- -- -- --
Payment of notes
receivable from
shareholders.... -- -- -- -- --
Issuance of
Series C
convertible
preferred
ordinary shares
for $2.59 per
share in
exchange for all
the outstanding
ordinary and
preferred shares
of Eurona on
December 17,
1999............ -- -- -- -- --
Issuance of
Series C
convertible
preferred
ordinary shares
for $2.59 per
share in
December, 1999 -- -- -- -- --
Issuance of
Series C
convertible
preferred
ordinary shares
for $2.59 per
share for
services and
cash on December
31, 1999........ -- -- -- -- --
Issuance of
Series C
convertible
preferred shares
for services.... -- -- -- -- --
Deferred share
compensation.... -- -- -- -- --
Amortization of
deferred share
compensation.... -- -- -- -- --
Gemini Genomics Plc
----------------------------------------------------------------------------------------------
Deficit
Accum-
ulated Accum-
Convertible Deferred Notes During ulated Total
Preferred Share Receivable The Other Share
Ordinary Shares Ordinary Shares Additional Based From Develop- Compre- Holders'
----------------- ----------------- Paid In Compen - Share- ment hensive Equity
Shares Amount Shares Amount Capital sation holders Stage Income (Deficit)
---------- ------ ---------- ------ ---------- -------- ---------- --------- ------- ---------
Issuance of
Series C
convertible
preferred
ordinary shares
for $1.22 per
share in May
1998............ -- -- 5,472,460 453 6,240 -- -- -- -- 6,693
Issuance of
Series C
convertible
preferred
ordinary shares
for $2.21 per
share in March,
1999............ -- -- 6,776,660 560 14,447 -- (664) -- -- 14,343
Deferred share
compensation.... -- -- -- -- 17 (17) -- -- -- --
Amortization of
deferred share
compensation.... -- -- -- -- -- 194 -- -- -- 194
Translation
adjustment...... -- -- -- -- -- -- -- -- (191) (191)
Net loss........ -- -- -- -- -- -- -- (10,745) -- (10,745)
---------
Total
comprehensive
loss............ -- -- -- -- -- -- -- -- -- (10,936)
---------- ------ ---------- ------ ---------- -------- ---------- --------- ------- ---------
Balances at
March 31, 1999.. 20,000,000 1,646 24,070,040 1,995 28,994 (155) (664) (22,788) (222) 8,806
Payment of notes
receivable from
shareholders.... -- -- -- -- -- -- 664 -- -- 664
Issuance of
Series C
convertible
preferred
ordinary shares
for $2.59 per
share in
exchange for all
the outstanding
ordinary and
preferred shares
of Eurona on
December 17,
1999............ -- -- 1,820,180 147 4,573 -- -- -- -- 4,720
Issuance of
Series C
convertible
preferred
ordinary shares
for $2.59 per
share in
December, 1999 -- -- 4,281,360 345 10,756 -- -- -- -- 11,101
Issuance of
Series C
convertible
preferred
ordinary shares
for $2.59 per
share for
services and
cash on December
31, 1999........ -- -- 500,000 40 1,256 -- (40) -- -- 1,256
Issuance of
Series C
convertible
preferred shares
for services.... -- -- 51,640 5 129 -- -- -- -- 134
Deferred share
compensation.... -- -- -- -- 2,923 (2,923) -- -- -- --
Amortization of
deferred share
compensation.... -- -- -- -- -- 467 -- -- -- 467
F-6
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY (DEFICIT)
PERIOD FROM SEPTEMBER 11, 1995 (INCEPTION) TO MARCH 31, 2001--(Continued)
(In Thousands, Except Share Amounts)
Gemini International Holdings Plc Gemini Genomics Plc
-------------------------------------- --------------------------------------------------------------------
Redeemable
Convertible Convertible Deferred Notes
Ordinary Preference Preferred Ordinary Addit- Share Receivable
Shares Shares Additional Ordinary Shares Shares ional Based From
------------- ------------- Paid In ----------------- ------------------- Paid In Compen - Share-
Shares Amount Shares Amount Capital Shares Amount Shares Amount Capital sation holders
------ ------ ------ ------ ---------- ---------- ------ ----------- ------ -------- -------- ----------
Issuance of
warrants for
40,000 Series C
convertible
preferred
ordinary shares
in connection
with capital
lease financing
in February 2000
at $0.08........ -- -- -- -- -- -- -- -- -- 218 -- --
Exercise of
share options in
March 2000...... -- -- -- -- -- 172,000 14 -- -- 105 -- --
Conversions of
all convertible
preferred
ordinary........
Shares at a one-
for-one rate.... -- -- -- -- -- 30,723,220 2,532 (30,723,220) (2,532) -- -- --
Translation
adjustment...... -- -- -- -- -- -- -- -- -- -- -- --
Net loss........ -- -- -- -- -- -- -- -- -- -- -- --
Total
comprehensive
loss............ -- -- -- -- -- -- -- -- -- -- -- --
--- ---- --- ---- ---- ---------- ------ ----------- ------ -------- ------- ----
Balances at
March 31, 2000.. -- -- -- -- -- 50,895,220 4,192 -- -- 48,954 (2,611) (40)
Issuance of
ordinary shares
in connection
with Initial
Public Offering
(net of
expenses)....... -- -- -- -- -- 13,800,000 1,042 -- -- 85,252 -- --
Exercise of
share options... -- -- -- -- -- 47,040 4 -- -- 39 -- --
Deferred share
compensation.... -- -- -- -- -- -- -- -- -- 747 (747) --
Amortization of
deferred share
compensation.... -- -- -- -- -- -- -- -- -- -- 1,868 --
Payment of notes
receivable from
shareholders.... -- -- -- -- -- -- -- -- -- -- -- 40
Translation
adjustment...... -- -- -- -- -- -- -- -- -- -- -- --
Net loss........ -- -- -- -- -- -- -- -- -- -- -- --
Total
comprehensive
loss............ -- -- -- -- -- -- -- -- -- -- -- --
--- ---- --- ---- ---- ---------- ------ ----------- ------ -------- ------- ----
Balances at
March 31, 2001.. -- $ -- -- $ -- $ -- 64,742,260 $5,238 -- $ -- $134,992 $(1,490) $ --
=== ==== === ==== ==== ========== ====== =========== ====== ======== ======= ====
Deficit
Accum-
ulated Accum-
During ulated Total
The Other Share
Develop- Compre- Holders'
ment hensive Equity
Stage Income (Deficit)
--------- -------- ----------
Issuance of
warrants for
40,000 Series C
convertible
preferred
ordinary shares
in connection
with capital
lease financing
in February 2000
at $0.08........ -- -- 218
Exercise of
share options in
March 2000...... -- -- 119
Conversions of
all convertible
preferred
ordinary........
Shares at a one-
for-one rate.... -- -- --
Translation
adjustment...... -- (192) (192)
Net loss........ (15,405) -- (15,405)
----------
Total
comprehensive
loss............ -- -- (15,597)
--------- -------- ----------
Balances at
March 31, 2000.. (38,193) (414) 11,888
Issuance of
ordinary shares
in connection
with Initial
Public Offering
(net of
expenses)....... -- -- 86,294
Exercise of
share options... -- -- 43
Deferred share
compensation.... -- -- --
Amortization of
deferred share
compensation.... -- -- 1,868
Payment of notes
receivable from
shareholders.... -- -- 40
Translation
adjustment...... -- (5,617) (5,617)
Net loss........ (13,161) -- (13,161)
----------
Total
comprehensive
loss............ -- -- (18,778)
--------- -------- ----------
Balances at
March 31, 2001.. $(51,354) $(6,031) $ 81,355
========= ======== ==========
F-7
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In Thousands)
Period From
September 11,
1995
Year Ended March 31, (Inception)
---------------------------- To March 31,
2001 2000 1999 2001
-------- -------- -------- -------------
OPERATING ACTIVITIES:
Net loss......................... $(13,161) $(15,405) $(10,745) $(51,354)
Adjustments to reconcile net loss
to net cash used in operating
activities:
Amortization of deferred
compensation and non-cash
interest charge................ 1,868 473 194 2,587
Amortization of goodwill and
other intangible assets........ 1,097 311 -- 1,408
Depreciation.................... 1,202 928 598 3,195
Non-cash consideration.......... -- 1,360 648 2,736
Changes in operating assets and
liabilities.................... (897) 612 1,082 2,408
-------- -------- -------- -----------
Net cash used in operating
activities................... (9,891) (11,721) (8,223) (39,020)
-------- -------- -------- -----------
INVESTING ACTIVITIES:
Purchases of plant, property and
equipment....................... (2,281) (700) (1,068) (6,224)
Acquisition of Eurona and
Newfound Genomics............... (40) (19) -- (59)
-------- -------- -------- -----------
Net cash used in investing
activities................... (2,321) (719) (1,068) (6,283)
-------- -------- -------- -----------
FINANCING ACTIVITIES:
Proceeds of capital lease
obligations..................... -- 3,991 1,392 8,005
Payments of capital lease
obligations..................... (987) (1,993) (1,293) (4,923)
Deposit of restricted cash....... (1,173) -- -- (1,173)
Proceeds from issuance of
ordinary and preferred ordinary
shares, net of issuance costs... 85,007 11,695 20,560 127,115
Loans (repaid) received.......... (150) 243 (163) 93
-------- -------- -------- -----------
Net cash provided by financing
activities................... 82,697 13,936 20,496 129,117
-------- -------- -------- -----------
Effects of exchange rate changes on
cash.............................. (4,323) (247) 236 (4,238)
Net increase in cash and cash
equivalents....................... 66,162 1,249 11,441 79,576
Cash and cash equivalents,
beginning of period............... 13,414 12,165 724 --
-------- -------- -------- -----------
Cash and cash equivalents, end of
period............................ $ 79,576 $ 13,414 $ 12,165 $ 79,576
======== ======== ======== ===========
SUPPLEMENTAL DISCLOSURE OF CASH
FLOW INFORMATION:
Interest paid.................... $ 427 $ 487 $ 320 $ 1,643
SCHEDULE OF NON-CASH TRANSACTIONS:
Fixed assets financed through
capital lease obligations....... $ 738 $ 3,991 $ 1,392 $ 8,743
Issuance of preferred ordinary
shares in connection with the
acquisition of Eurona........... $ -- $ 4,720 $ -- $ 4,720
See Accompanying Notes.
F-8
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1 Summary of Significant Accounting Policies
Nature of Business
Gemini International Holdings Limited ("GIHL"), was incorporated on
September 11, 1995 and, until its acquisition by Gemini Genomics plc (the
"Company", formerly Gemini Holdings plc) on December 4, 1997, was the holding
company of Gemini Research Limited, Genos Limited and Gemini Gene Data Limited.
The Company was capitalized by the issue of 50,000 Class B preferred ordinary
shares of (Pounds)1 each which were issued to Raddison Trustee Limited.
Raddison Trustee Limited was the majority shareholder of both GIHL and the
Company, thus resulting in the companies being under common control. The
Company acquired all of the issued shares in GIHL in consideration of an issue
of shares in the same number and class to the same shareholders as then held
shares in GIHL. The class rights of shares in GIHL and the Company were
essentially identical. By reason of the fact that it acquired 50,000 Class B
preferred ordinary shares, Raddison Trustee Limited waived its entitlement of
45,700 Class B preferred ordinary shares to which it would otherwise have been
entitled. The shareholders in GIHL and the Company were accordingly the same.
The acquisition was accounted for as a combination of entities under common
control at historical costs and consequently consolidated financial information
is presented as if Gemini International Holdings Limited had been owned by the
Company since inception. As at March 31, 2001, Gemini Genomics plc is the
holding company for Gemini Genomics UK (formerly Gemini Research Limited),
Genos Limited, Gemini GeneData Limited, Gemini Genomics AB (formerly Eurona
Medical AB) Gemini Genomics Inc., and Newfound Genomics Inc.
The Company is a clinical genomics company that identifies relationships
between human genes and common human diseases. It has not yet generated
substantial revenues from its commercial operations. Accordingly, through the
date of these financial statements, the Company is considered to be in the
development stage. The accompanying financial statements have been prepared
assuming the Company will continue as a going concern. The Company has
sustained operating losses since inception and expects such losses to continue
as it furthers its research and development programs. Since inception, the
Company has incurred significant losses and, as of March 31, 2001, has an
accumulated deficit of $51.4 million. Management believes sufficient funds will
be available to support operations through at least May 31, 2002. The Company
may seek to fund its operations thereafter through collaborative arrangements
and through public and private financings.
Uncertainties
Gemini is subject to risks common to companies in the biotechnology sector
including, but not limited to, the ability to discover and commercialise
genetic links to diseases, departure of key personnel, protection of
intellectual property, ability to obtain additional financing, ability to
negotiate collaborative agreements, effects of foreign currency movements, and
compliance with government and other regulations.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reported period. Actual results could differ from those estimates.
F-9
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Foreign Currency and Currency Translation
The functional currency of the Company is the British pound. The Company's
foreign subsidiaries, Gemini Genomics AB (formerly Eurona Medical AB
("Eurona")), Gemini Genomics, Inc., and Newfound Genomics Inc., use the Swedish
kronor, US dollar, and Canadian dollar, respectively, as their functional
currency, and translate those currencies to British pounds in accordance with
Statement of Financial Accounting Standards ("SFAS") No. 52, FOREIGN CURRENCY
TRANSLATION. Foreign exchange differences are recorded as a component of "other
comprehensive income". The financial statements herein are presented in U.S.
dollars for the convenience of the user. Translation of balance sheet data from
British pounds to the U.S. dollar is made at the exchange rate ruling at the
balance sheet date. Translation of income statement and cash flow amounts is
made at the average exchange rate for the year.
Foreign currency transaction gains and losses are reported according to the
exchange rates prevailing on the transaction date and are included in the
consolidated statement of operations.
Basis of Consolidation
The consolidated financial statements include the accounts of the Company
and its subsidiaries, all of which are wholly owned. All inter-company accounts
and transactions are eliminated on consolidation. Acquisitions are accounted
for from their date of acquisition.
Share-Based Compensation
The Company accounts for employee share options in accordance with
Accounting Principles Board Opinion No. 25, ACCOUNTING FOR STOCK ISSUED TO
EMPLOYEES ("APB 25") using the intrinsic value method. Share compensation
expense for options granted to non-employees has been determined in accordance
with SFAS No. 123 and Emerging Issues Task Force ("EITF") 96-18 as the fair
value of the consideration received. The Company has provided the pro forma
disclosures of net loss and net loss per share in accordance with SFAS No. 123
using the fair value method.
Revenue Recognition
Revenues are earned from services pursuant to customer licensing agreements
and collaborative research and development agreements for periodic license
fees, research payments, additional payments and milestone payments. License
fees, research payments, and additional payments are recognized rateably over
the term of the agreement or as milestones are achieved. Payments received in
advance of work performed are recorded as deferred revenue.
In fiscal 2001, the Company changed its method of accounting for non-
refundable upfront product license fees and certain other related fees to be
recognized over the periods of continuing involvement. The Company historically
recognized these fees as revenue when all of the conditions to payment had been
met and there were no further performance contingencies or conditions to the
Company's receipt of payment. These fees were not creditable against future
payments. The Company believes the change in accounting principles is
consistent with guidance provided in the SEC Staff Accounting Bulletin No.
101--"Revenue Recognition in Financial Statements" released in December 1999.
The change in accounting principle has no effect on prior year results.
Research and Development
Research and development costs, including costs associated with the
development of computer software to be used in the Company's research and
development activities, are expensed in the period incurred.
F-10
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Advertising Costs
Advertising costs are charged to operations as incurred. Advertising costs
in the years ended March 31, 1999, 2000 and 2001 were nil, $23,000 and
$64,000, respectively.
Patent Costs
Patent costs and costs related to patent prosecution are expensed as
incurred as recoverability of such expenditure is uncertain.
Income Taxes
In accordance with SFAS No. 109, ACCOUNTING FOR INCOME TAXES, a deferred
tax asset or liability is determined based on the difference between the
financial statement and tax basis of assets and liabilities as measured by the
enacted tax rates, which will be in effect when these differences reverse. The
Company provides a valuation allowance against net deferred tax assets unless,
based upon the available evidence, it is more likely that the deferred tax
assets will be realized.
Cash and Cash Equivalents
Cash equivalents consist of highly liquid term deposits and investments in
institutional liquidity funds.
Fair Value of Financial Instruments
Financial instruments, including cash and cash equivalents, accounts
receivable, accounts payable, and accrued liabilities, are carried at cost,
which management believes approximates fair value because of the short-term
maturity of these instruments. The carrying value of long-term debt
approximates fair value based on the market interest rates available to the
Company for debt of similar risk and maturities.
Property, Plant and Equipment
Property, plant and equipment is stated at cost less accumulated
depreciation and amortization. Maintenance and repairs are expensed as
incurred. Depreciation and amortization is provided using the straight-line
method over the estimated useful life of the related assets, as follows:
Useful Lives
In Years
-------------
Leasehold improvements..................................... Life of lease
Laboratory equipment....................................... 4 to 5 years
Office equipment........................................... 4 to 5 years
Freehold building.......................................... 20 years
Capital Leases
Assets acquired under capital lease agreements are recorded at the present
value of the future minimum rental payments using interest rates appropriate
at the inception of the lease, which approximates the cost of the leased
assets. Property and equipment subject to capital lease agreements are
amortized over the shorter of the life of the lease or the estimated useful
life of the asset, in accordance with the Company's normal depreciation
policies, unless the lease transfers ownership or contains a bargain purchase
option, in which case the leased asset is amortized over the estimated useful
life of such assets.
F-11
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Goodwill and Other Intangible Assets
Goodwill represents the excess of purchase price over the fair value of
identifiable tangible and intangible assets acquired and is amortized using the
straight-line method over its estimated useful life. The Group reviews the
carrying amount of goodwill if facts and circumstances suggest that it may be
impaired. If this review indicates that goodwill will not be recoverable, as
determined based on the estimated undisclosed cash flows of the entity acquired
over the remaining amortisation period, the carrying amount of the goodwill is
reduced by the estimated shortfall of cash flows.
Impairment of Long-Lived Assets
In accordance with SFAS No. 121, ACCOUNTING FOR THE IMPAIRMENT OF LONG-LIVED
ASSETS AND FOR LONG-LIVED ASSETS TO BE DISPOSED OF, if indicators of impairment
exist, the Company assesses the recoverability of the affected long-lived
assets by determining whether the carrying value of such assets can be
recovered through undiscounted future operating cash flows. If impairment is
indicated, the Company will measure the amount of such impairment by comparing
the carrying value of the asset to the present value of the expected future
cash flows associated with the use of the asset. To date, no such indicators of
impairment have been identified.
Inventories
Inventories are stated at the lower of actual cost or market value. Cost is
determined by the first-in, first-out method. At March 31, 2000 and 2001,
inventories consisted entirely of research supplies.
Software Costs
The Company expenses purchased and internally developed software costs,
except those costs required to be capitalized under Statement of Position 98-1,
ACCOUNTING FOR THE COSTS OF COMPUTER SOFTWARE DEVELOPED OR OBTAINED FOR
INTERNAL USE. To date, the amount of software capitalized is insignificant.
Loss Per Share and Pro Forma Loss Per Share
In accordance with SFAS No. 128, the Company calculates basic net loss per
share based on the weighted-average number of ordinary shares outstanding
during the period and diluted earnings per share based on the dilutive effect
of ordinary share equivalents consisting of share options and warrants
(calculated using the treasury stock method). Potentially dilutive securities
have been excluded from the diluted net loss per share calculation as they have
an anti-dilutive effect due to the Company's net loss.
The computation of pro forma net loss per share includes ordinary shares
issuable on the conversion of outstanding shares of convertible preferred
ordinary shares (using the as-if converted method from the original date of
issuances.
F-12
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Potential ordinary shares excluded from the calculation of diluted net loss
per share as their inclusion would have been anti-dilutive were:
March 31
------------------------------
2001 2000 1999
--------- --------- ----------
Convertible preferred ordinary shares in
ordinary shares........................... -- -- 24,070,040
Warrants to purchase ordinary shares....... 40,000 40,000 --
Options to purchase ordinary shares........ 7,578,872 3,561,420 2,512,440
--------- --------- ----------
Total potential ordinary shares.......... 7,618,872 3,601,420 26,582,480
========= ========= ==========
Other Comprehensive Income
On June 1997, the FASB issued SFAS No.130, REPORTING COMPREHENSIVE INCOME,
which establishes standards for the reporting and disclosing of comprehensive
income and its components in the financial statements. The only item of other
comprehensive income (loss) which the Company currently reports is foreign
currency translation adjustments.
Short-Term Investments and Concentration of Credit Risk
The Company has no investment securities that would be subject to
classification in accordance with SFAS No. 115, ACCOUNTING FOR CERTAIN
INVESTMENTS IN DEBT AND EQUITY SECURITIES. The Company invests its surplus cash
in bank term deposits, having a maturity period of between one day and one
year, or in institutional liquidity funds. The term deposits can be terminated
early at a nominal cost and the liquidity funds provide for immediate access.
Accordingly, all cash resources have been disclosed under cash and cash
equivalents.
Segment Reporting
Effective January 1998, the Company adopted SFAS No. 131, DISCLOSURE ABOUT
THE SEGMENTS OF AN ENTERPRISE AND RELATED INFORMATION. The Company has
determined it operates in only one segment for the following reasons: the
Company's principle product offering is the discovery of disease genes, and all
other product offerings are ancillary to this; the Company's chief operating
decision maker reviews the Company's results as a single entity; to date,
essentially all of the Company's efforts have been directed towards discovery
of disease genes and this is expected to remain the Company's focus for the
foreseeable future.
Recent Accounting Pronouncements
In June 1998, the Financial Accounting Standards Board ("FASB") issued SFAS
No. 133, "Accounting for Derivative Instruments and Hedging Activities",
amended in June 2000 by SFAS No. 138, "Accounting for Certain Derivative
Instruments and Certain Hedging Activities." These Statements establish a new
model for accounting for derivatives and hedging activities and supersede and
amend a number of existing standards. Upon the standard's initial application,
all derivatives are required to be recognized in the balance sheet as either
assets or liabilities and measured at fair value. In addition, all hedging
relationships must be designated, reassessed and documented. The Company is
required to implement the Statements in the first quarter of the fiscal year
ended March 31, 2002. Considering the Company's current activities, there will
be no significant impact on its financial position or results of operations
upon adoption of SFAS No. 133.
F-13
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
2 Significant Contracts
Technology Alliances
In February 1999, the Company entered into a collaboration agreement with
Large Scale Proteomics, Inc. Under this agreement, the Company provides samples
and clinical data from selected identical twin pairs and Large Scale
Proteomics, Inc. conducts protein analysis. Each company is responsible for its
own costs under the project. When, and if, discoveries made under the
collaboration are commercialized, each company is required to make payments to
the other according to the nature of the product and its commercialization. The
agreement terminates when neither party is required to make further payments
thereunder. Large Scale Proteomics, Inc. may terminate the agreement if it
provides notice within 120 days of its decision not to proceed with the
project. Either party may terminate the collaboration agreement if there is a
material breach by the other that is not cured. No payments have been received
or made to date.
In September 1999, the Company entered into a collaboration agreement with
Celera Genomics, Inc. ("Celera") to jointly search for novel gene discoveries.
Under this agreement, the Company provides fine-mapped regions and Celera
performs high-throughput sequencing of these regions. Each company is
responsible for its own research costs. The Company will jointly own with
Celera any gene discoveries from this collaboration and will share equally with
Celera revenues received from licensing of such gene discoveries. All costs of
exploitation of gene discoveries will be shared equally by the Company and
Celera. The agreement terminates in September 2001.
In March 2000, the Company entered into separate collaboration agreements
with CuraGen, Inc. and Sequenom, Inc. Under these agreements, the Company
provides clinical data and DNA samples and CuraGen, Inc. and Sequenom, Inc.
provide genetic analysis of the samples. Each company is responsible for its
own costs, although the Company will reimburse CuraGen, Inc. and Sequenom, Inc.
for a portion of their costs. No cost reimbursement has been made by the
Company to date and this is not expected to be material in future years. No
minimum funding commitments are defined in the agreements. Revenues arising
from the agreements will be shared between the Company and CuraGen, Inc. or
Sequenom Inc. The agreements with both CuraGen, Inc. and Sequenom, Inc. are
each for an initial term of two years.
In October 2000, the Company entered into a further collaboration agreement
with CuraGen, Inc. Under this agreement, the Company provides disease
associated genes it discovers and CuraGen, Inc. provides its PathCalling(TM)
proteomic technology in order to rapidly ascertain the biological context of
the disease associated genes. Revenues arising from the agreement will be
shared between the Company and CuraGen, Inc. The agreement is for an initial
term of two years. No revenues have yet been recognised under this agreement.
In November 2000, the Company entered into a collaboration agreement with
Rosetta Inpharmatics, Inc. Under this agreement, the Company provides clinical
data and DNA samples, from which RNA, the translator of DNA, is collected and
Rosetta Inpharmatics, Inc. will screen many thousands of genes with the
intention of identifying and characterising sets of genes associated with
common human diseases. Each company is responsible for its own costs. Revenues
arising from the agreements will be shared between the Company and Rosetta
Inpharmatics, Inc. The agreement is for an initial term of two years. No
revenues have yet been recognised under this agreement.
In December 2000, the Company entered into a collaboration agreement with
Genmab A/S. Under this agreement, the Company provides novel disease targets it
discovers and Genmab A/S will provide its fully human antibody technology to
create and develop new products. Each company is responsible for its own costs.
Revenues arising from the agreements will be shared between the Company and
Genmab A/S. The agreement is for an initial term of two years. No revenues have
yet been recognised under this agreement.
F-14
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
In March 2001, the Company entered into two further agreements with CuraGen,
Inc. Under these agreements, the Company has provided CuraGen, Inc. with DNA
samples and clinical data and will provide genotyping and analysis services
under one of the agreements. The Company will own the intellectual property
rights arising and have granted CuraGen, Inc. an exclusive, indefinite
worldwide license to commercially exploit any discoveries arising. The Company
has received an up-front payment and may generate additional revenues over the
next three years.
License Agreements
The Company has entered into license agreements for the use of the Company's
patents and patent applications relating to the COL1A1 disease gene with
Affymetrix, Inc. and Axis Shield plc. Under these agreements, the Company
receives license fees and will potentially receive royalties. Through March 31,
2001, the Company has received license fees of $150,000 under the agreement
with Affymetrix, Inc. and $152,000 under the agreement with Axis-Shield plc.
The license agreements terminate upon the expiration of the patents relating to
the COL1A1 disease gene. In addition, the Company may terminate the Affymetrix,
Inc. license agreement for an uncured material breach and may terminate the
Axis-Shield plc agreement for an uncured material breach or if Axis-Shield plc
does not pay royalties within 90 days of their being due.
Services Agreement
The Company has performed gene validation services for Kyowa Hakko Kogyo,
Inc. The services were successfully concluded in March 2000, and aggregate
revenues of $184,000 have been received.
Clinical Collaborations
The Company has entered into a number of agreements with clinical
collaborators, based at various universities and hospitals. Under these
agreements, the Company pays either an amount per item of clinical data
provided, or an annual fee. The maximum annual amount payable on any of the
existing contracts is approximately $1.1 million and the annual aggregate cost
is approximately $4.2 million. The contracts vary in length with the last to
expire in February 2005.
3 Cash and Cash Equivalents
The following is a summary of cash and cash equivalents at March 31, 2000
and 2001:
March 31
---------------
2001 2000
------- -------
(In Thousands)
Cash....................................................... $ 393 $ 678
Cash on interest bearing short term deposits and invested
in institutional liquidity funds.......................... 79,183 12,736
------- -------
$79,576 $13,414
======= =======
4 Restricted Cash
In addition to the above, there is restricted cash of $1,127,000 held in
term deposits with restrictions of access, in support of a number of capital
lease obligations and operational leases.
F-15
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
5 Property, Plant and Equipment
Property, plant and equipment consist of the following:
March 31
----------------
2001 2000
------- -------
(In thousands)
Land and buildings......................................... $ 192 $ --
Leasehold improvements..................................... 711 367
Laboratory equipment....................................... 4,762 3,758
Office equipment........................................... 1,248 435
------- -------
6,913 4,560
Less accumulated depreciation.............................. (2,809) (1,919)
------- -------
$ 4,104 $ 2,641
======= =======
The depreciation expense on property, plant and equipment amounted to
$598,000, $928,000 and $1,202,000 for the years ended March 31, 1999, 2000 and
2001, respectively. Depreciation expense for the period from inception
(September 11, 1995) through March 31, 2001 was $3,195,000. Included in
property, plant and equipment are assets under capital lease obligations with
an original cost of approximately $3,535,000 and $3,642,000, as of March 31,
2000 and 2001, respectively. Accumulated depreciation on assets under capital
leases was $1,969,000 and $2,221,000, as of March 31, 2000 and 2001,
respectively.
During January 2001, Newfound Genomics, Inc., a subsidiary of the Company,
purchased a freehold property of 5,850 sq ft in St John's, Newfoundland for
$192,000. This property is under refurbishment and will provide facilities for
sample collection, office space and laboratory facilities for the Company's
Newfoundland operations.
6 Commitments and Contingencies
Debt Facility
In February 2000, the Company secured a $5.0 million line of credit with
Hewlett Packard International Bank Limited ("HPIB Limited"), to utilize against
capital equipment financings over the following 18-month period. In February
2000, the Company drew $2.0 million against this line of credit as a capital
lease to support capital expenditure. Interest is repayable quarterly at 11%
per annum over the four-year period of the lease, which has a capital repayment
holiday for the first 18 month period. In the event that the Company draws
further funds, it has agreed to issue warrants to purchase up to an additional
80,000 ordinary shares, each at an exercise price of (Pounds)0.05 ($0.07) per
ordinary share. The Company has no commitments for any additional financings.
The Company issued warrants to HPIB Limited for 40,000 ordinary shares at an
exercise price of (Pounds)0.05 per share ($0.07 per share). The fair value of
each warrant was estimated at approximately $5.53. The aggregate fair value of
the warrants is approximately $218,000 and has been recorded in additional
paid-in capital and treated as a discount to the capital lease obligation. The
discount is being accreted on a straight-line basis (which materially
approximates to the actuarial method) to interest expense over the four-year
period of the lease. For the years ended March 31, 2000 and 2001, additional
interest expense of $6,000 and $52,000, respectively, was recorded related to
these warrants.
Purchase Commitments
At March 31, 2001 the Company was committed to complete the refurbishment of
their freehold premises in Newfoundland, Canada. This refurbishment is expected
to be completed by June 2001, at a total cost of approximately $200,000, which
the Company expect to finance from its existing cash resources.
F-16
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Leases
In February 2001, the Company undertook a sale and leaseback transaction
with Investec Asset Finance PLC. The Company sold scientific and IT equipment
recently acquired for $0.7 million and have entered into a three-year lease
arrangement. No gain or loss was recognized on this transaction. Repayments are
quarterly and interest is payable at 9.8% per annum.
As of March 31, 2001, the Company had $3.6 million of property, plant and
equipment financed through long-term obligations. The obligations under the
equipment leases are secured by the equipment financed, bear interest at a
weighted-average rate of between 5.3% and 11% and are due in monthly and
quarterly installments through September 2003. Under the terms of the
agreements, the financed equipment may be purchased by the Company at a nominal
value at the end of the financing term. As of March 31, 2001, future minimum
lease payments under operating and capital leases are as follows:
Operating Capital
Leases Leases
--------- -------
(In Thousands)
Years Ending March 31,
2002...................................................... $1,183 $1,815
2003...................................................... 999 1,284
2004...................................................... 835 882
2005...................................................... 679 --
Amounts thereafter........................................ 3,293 --
------ ------
Total minimum lease and principal payments................ $6,989 3,981
====== ======
Less amount representing interest......................... (724)
------
Present value of minimum capital lease obligation......... 3,257
Less current portion of future payments................... 1,395
------
Capital lease obligation, less current portion............ $1,862
======
Rent expense relating to operating leases was approximately $178,000,
$242,000 and $565,000 in the years ended March 31, 1999, 2000 and 2001,
respectively.
During the year ended March 31, 2001 the Company extended a 10-year
operating lease of 19,600 square feet of laboratory and office space in Newton,
Massachusetts, to house the senior management, business development,
intellectual property and investor relations activities of the Company. Costs
incurred in refurbishing this property are capitalized within Leasehold
Improvements, see note 5.
Contingencies
In the ordinary course of business the Company may be subject to legal
proceedings and claims. The Company is not currently subject to any material
legal proceedings.
7 Long-Term Debt
Of the total bank loans, the non-current amounts outstanding are as follows:
March 31
----------------
2001 2000
-------- -------
(In Thousands)
Loans, repayable by quarterly installments to March 31,
2002.....................................................
The interest rate is 4.85%................................ $ -- $ 75
======== ======
F-17
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
In accordance with the above bank loans, of which $63,000 is classified
within current liabilities, the bank has a floating charge over the assets of
Eurona up to a value of $318,000. There are no covenants attached to the loans.
8 Establishment of Newfoundland Genomics Inc.
In June 2000, the Company formed Newfound Genomics Inc. in Newfoundland,
Canada, a joint-venture with Lineage Biomedical. In February 2001, the Company
acquired the outstanding share capital it did not then own from Lineage
Biomedical for Can $60,000. The Can $60,000 (US$40,000) was recorded as
goodwill since the joint-venture had no identifiable assets. Newfound Genomics
Inc. has established local facilities and commenced clinical and genetic data
collection from the geographically isolated population in Newfoundland.
9 Shareholders' Equity
Initial Public Offering
On July 26, 2000, the Company completed a public offering of its ordinary
shares by issuing 13,800,000 ordinary shares in the form of American Depositary
Shares ("ADSs"). Each ADS represents two ordinary shares. The aggregate value
was $96.6 million, or $14 per ADS. Issuance costs for the offering amounted to
approximately $10.4 million. The Company received net proceeds of $86.2
million.
Ordinary Shares
On March 17, 2000, the Company effected a conversion of all its outstanding
convertible preferred ordinary shares into ordinary shares and a 20-for-one
ordinary share split. All shares and per share amounts have been retroactively
restated to give effect to the share split.
Each ordinary share entitles the holder to one vote on all matters submitted
to a vote of the Company's shareholders. Ordinary shareholders are entitled to
receive dividends, if any, as may be declared by the Board of Directors. At
March 31, 2000 and 2001, the Company had 120,000,000 ordinary shares authorized
and 50,895,220 and 64,742,260 shares issued and outstanding, respectively.
Issuance of Shares to Ex-Employees
In December 1999, the Company issued 500,000 shares at par ($0.08) to ex-
employees of Gemini Research Limited. The fair value of the shares was
determined as $1,296,000 and a marketing, general and administrative expense of
$1,256,000 was recorded in the year, reflecting the difference between the fair
value of the shares and the amount payable. At March 31, 2000 an amount of
$40,000 receivable for the shares remained outstanding and is presented in the
balance sheet for that year as a deduction from shareholders' equity. The
amount was received during the year ended March 31, 2001.
Share Option Plans
Under the terms of the Gemini Genomics plc Company Share Option Plan Part A
("Plan A"), the Board of Directors may grant U.K. Inland Revenue approved share
options to employees, directors and consultants of the Company at an exercise
price approved by the U.K. Inland Revenue. Share options granted under plan A
generally vest and become exercisable on the third anniversary date of the
grant. Options expire 10 years from the date of grant. Under the terms of the
Gemini Genomics plc Company.
F-18
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Share Options Plan Part B ("Plan B"), the Board of Directors may grant
unapproved share options to employees or executive directors of the Company.
Options granted under Plan B generally vest over a two-year period; one-third
vest on date of grant, one-third vest one year from date of grant, and one-
third vest two years from date of grant. Options become exercisable as soon as
they have vested and expire ten years from the date of grant, except options
granted on December 19, 1997, which expire seven years from the date of grant.
Under both Plan A and Plan B ("the Plans"), share option grants are generally
made at an exercise price equal to the fair value of the ordinary shares on the
date of grant, as determined by the Company's Board of Directors and (in the
case of Plan A) as agreed with the UK Inland Revenue. The Company may also
issue share options outside the Plans. There are 7,741,950 ordinary shares
reserved for issuance upon the exercising of share options. Plan A and Plan B
were adopted by the Board of Directors on December 19, 1997.
Under the terms of the International Executive Share Option Plan, the Board
of Directors may grant share options to subscribe for newly issued or purchase
existing ordinary shares (which may be in the form of ADSs) to our directors
and employees who devote almost all of their working time to us. When the
options are granted, our board will determine when they are exercisable, but
they have to be exercised within ten years of being granted.
Share Option Activity
At March 31, 1999, 2000 and 2001, options to purchase 964,560, 2,037,060 and
4,236,643 ordinary shares were exercisable at a weighted average exercise price
of $0.80, $1.67 and $2.84, respectively. The weighted average fair value of
options granted in the years ended March 31, 1999, 2000 and 2001 was $0.11,
$1.16 and $4.77, respectively.
A summary of share option activity under the Plans is as follows:
Options
Options Outstanding
Available Number of Weighted Average
for Grant Options Exercise Price
---------- --------- ----------------
Inception of the plans (December 19,
1997)
Initial authorized................. 2,203,500 -- --
Granted............................. (1,861,400) 1,861,400 0.81
Cancelled........................... 480,140 (480,140) 0.94
---------- ---------
Balance at March 31, 1998........... 822,240 1,381,260 0.77
Granted............................. (158,620) 158,620 1.55
Cancelled........................... 27,440 (27,440) 1.20
---------- ---------
Balance at March 31, 1999........... 691,060 1,512,440 0.84
Additional authorized............... 2,886,022 -- --
Granted............................. (2,420,980) 2,420,980 2.15
Cancelled........................... 200,000 (200,000) 1.98
Exercised........................... -- (172,000) 0.69
---------- ---------
Balance at March 31, 2000........... 1,356,102 3,561,420 1.67
Additional authorized............... 5,041,684 -- --
Granted............................. (4,298,086) 4,298,086 5.54
Cancelled........................... 70,516 (70,516) 5.80
Exercised........................... -- (47,040) 0.88
---------- ---------
Balance at March 31, 2001........... 2,170,216 7,741,950 4.22
========== =========
F-19
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The following table summarizes information concerning current outstanding
and exercisable options at March 31, 2001:
Options Outstanding
Weighted-Average
Options
Remaining Exercisable
Exercise Number Contractual Number
Prices Outstanding Life Exercisable
-------- ----------- ----------- -----------
$0.71 804,220 3.72 804,220
$0.96 452,240 4.05 452,240
$1.22 168,400 7.82 168,400
$1.79 172,000 8.42 114,667
$2.16 1,498,100 8.58 960,780
$2.25 1,266,274 9.92 422,091
$2.57 562,020 8.92 374,680
$7.00 2,818,696 9.33 939,565
--------- ---------
7,741,950 8.92 4,236,643
========= =========
The Company has elected to follow APB 25 and related interpretations in
accounting for its share options issued to employees. Compensation expense is
determined using the intrinsic value method based on the difference between the
exercise price and the deemed fair value of the Company's ordinary shares on
the date the share options were granted.
Share options granted to non-employees are valued using the Black-Scholes
option valuation method and the following assumptions for the years ended March
31, 1999, 2000 and 2001: risk-free interest rate of 5.5%, 6.2% and 6.0%,
respectively, volatility of 0.01 for 1999 and 2000 and 1.402 for 2001, zero
dividend yield and an expected life of four years. The value of the options is
recorded as deferred compensation and amortized using the straight-line method
over the vesting period.
Share option compensation expense was recorded as follows:
Non-
Employee Employee
Related Related Total
Expenses Expenses Expenses
-------- -------- --------
(In Thousands)
Period Ending
March 31, 1997.................................... $ -- $ -- $ --
March 31, 1998.................................... 1 51 52
March 31, 1999.................................... 3 191 194
March 31, 2000.................................... 281 192 473
March 31, 2001.................................... 1,407 461 1,868
------ ----- ------
Since Inception (September 11, 1995).............. $1,692 $ 895 $2,587
====== ===== ======
Amortization of the deferred compensation balance of $1,490,000 at March 31,
2001 will be approximately $1,485,000 and $5,000 for the fiscal years ending
March 31, 2002 and 2003, respectively.
F-20
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Pro-Forma Disclosure Under SFAS No. 123
Pro-forma information regarding employee stock options is required under
SFAS No. 123, and has been determined as if the Company had accounted for its
employee stock options under the fair value method. The fair value of these
options was estimated at the date of grant using the Black-Scholes option
valuation method and the following assumptions for the years ended 1999, 2000
and 2001: volatility of 0.01 for 1999 and 2000 and 1.402 for 2001, risk-free
interest rate of 5.5%, 6.2% and 6.0%, respectively, zero dividend yield and an
expected life of four years.
For the purposes of pro-forma disclosures, the estimated fair value of the
options is amortized to expense over the vesting period of the options. The
Company's pro-forma information is as follows:
Year Ended March 31,
-------------------------
2001 2000 1999
------- ------- -------
(In Thousands, Except
Per Share Data)
Net loss:
As reported.................................... $12,843 $15,405 $10,746
SFAS No. 123 pro forma......................... $19,254 $15,515 $10,766
Loss per share:
As reported--basic and diluted................. $ (0.32) $ (0.73) $ (0.54)
SFAS No. 123 pro forma......................... $ (0.64) $ (0.73) $ (0.54)
The effects of applying SFAS No. 123 for recognizing compensation expense
and for pro forma disclosures are not likely to be representative of the
effects on reported net loss for future years.
Warrants
In February 2000 the Company granted warrants to purchase 40,000 ordinary
shares at an exercise price of (Pounds)0.05 ($0.07) per share (see note 6). The
warrant remains outstanding at March 31, 2001.
10 Income Taxes
The Company has no provision for payment of U.K., Swedish or Canadian income
taxes for any period as it has incurred operating losses since inception.
The taxation credit consists of the following:
March 31
---------------
2001 2000 1999
---- ---- ----
(In Thousands)
UK taxation on current year................................. $910 $ -- $ --
Overseas taxation........................................... (30) -- --
---- ---- ----
$880 $ -- $ --
==== ==== ====
The UK taxation on the current year arose as a result of a change in the UK
corporation tax legislation. With effect from April 2000 companies engaged in
research and development which meet certain criteria are permitted to surrender
corporation tax losses in return for a cash refund of employee and payroll
taxes.
F-21
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components
of the Company's deferred tax assets are as follows:
March 31
-----------------
2001 2000
-------- -------
(In Thousands)
Deferred tax assets:......................................
Net operating loss carryforwards........................ $ 13,596 $ 8,594
Book reserves in excess of tax.......................... 25 35
Short-term timing differences........................... 12 (2)
-------- -------
Total deferred tax assets............................... 13,633 8,627
Valuation allowance..................................... (13,633) (8,627)
-------- -------
Total................................................. $ -- $ --
======== =======
For the year ended March 31, 2000, the Company had, subject to agreement
with the U.K. Inland Revenue, corporation tax losses amounting to $10.4
million, resulting in a total loss carry-forward at March 31, 2000 of
approximately $28.6 million. As of March 31, 2001, the Company has accumulated
losses, subject to agreement with the U.K. Inland Revenue, amounting to a
further $11.4 million, resulting in total loss carried forward at March 31,
2001 of $40.0 million which under U.K. and Swedish tax law do not expire.
Because of the Company's lack of earnings history, the deferred tax assets have
been fully offset by a valuation allowance. As of March 31, 2001, Eurona
Medical AB has, subject to agreement with the Swedish tax authorities, income
tax losses that are at least $3.9 million. These are available for offset
against profits from future Swedish operations.
11 Acquisition of Eurona Medical AB
On December 17, 1999, the Company completed the acquisition of Eurona
Medical AB, a Swedish pharmacogenetics company. The Company assumed all the
liabilities of Eurona and acquired all of its ordinary shares in exchange for
1,820,180 preferred ordinary shares and $19,000 in cash. Including direct
acquisition costs of $186,000, the total purchase price was $4.9 million.
The acquisition was accounted for using the purchase method. Under the
purchase method of accounting, the aggregate acquisition cost is allocated to
the acquired company's assets and liabilities, based on the fair values on the
date of acquisition. Included within the liabilities assumed is $600,000
relating to termination costs of a number of employees.
In purchasing Eurona, the Company obtained access to clinical collaborators.
The total spent by Eurona since inception on research and development at the
date of acquisition was approximately $8.9 million. Eurona has raised a total
of approximately $13.3 million in equity finance prior to acquisition by the
Company, but had not succeeded to commercialising its business model.
The Company has performed a review of the research projects being undertaken
by Eurona and determined that none of the projects have economic value, as none
of the research projects undertaken by Eurona will be pursued. Consequently, in
allocating the acquired assets and liabilities, no value has been assigned to
acquired in-process research and development.
F-22
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
A summary of the purchase price for the acquisition is as follows (in
thousands):
Preferred ordinary shares........................................... $ 4,720
Cash paid to shareholders........................................... 19
Accrued direct acquisition costs.................................... 186
-------
Total purchase price............................................ $ 4,925
=======
The purchase price was allocated as follows (in thousands):
Assets acquired................................................... $ 1,587
Liabilities assumed............................................... (2,284)
Intangible assets acquired:
Assembled workforce............................................... 350
Goodwill.......................................................... 5,272
-------
Total purchase price............................................ $ 4,925
=======
The above intangible assets are being amortized over their estimated useful
life of five years.
Had the acquisition of Eurona been consummated at the beginning of the years
below, the unaudited pro forma results would have been as follows:
Year Ended March
31,
------------------
2000 1999
-------- --------
(In Thousands,
Except Per Share
Data)
Revenue................................................. $ 1,238 $ 295
Net loss for the period................................. (22,933) (20,506)
Net loss per ordinary share--basic and diluted.......... $ (1.00) $ (0.94)
The Company made a $0.6 million provision in respect of the termination
costs of 35 employees (largely executive, managerial and support staff) under
an integration plan approved in December 1999. These costs all related to
salaries and benefits due, and employment costs arising within these 35
employees' notice periods. A total of $0.3 million of termination benefits were
paid in the period ended March 31, 2000, leaving a $0.3 million provision at
March 31, 2000, all remaining liabilities related to these termination costs
were paid by March 31, 2001. The Company also realigned the research focus for
Eurona although the only activities terminated were those of the executive
functions.
The assembled workforce and goodwill are being amortized over their
estimated useful life of 5 years. Amortization of assembled workforce and
goodwill was $373,000 and $1,604,000 for the years ended March 31, 2000 and
2001, respectively.
12 Pension Plans
The Company operates a defined contribution group personal pension plan for
substantially all its employees in the United Kingdom and contributes to a
state scheme and a defined contribution scheme for its employees in Sweden. The
Company contributions to the U.K. defined contribution scheme totaled $60,000,
$81,000 and $106,000 in the years ended March 31, 1999, 2000 and 2001,
respectively and $305,000 in the period from September 11, 1995 (inception)
through March 31, 2001.
The Company operates a 401-K pension plan for substantially all its
employees in the US. This plan commenced during fiscal year 2001, and the
Company contributions to the US plan amounted to $5,000.
F-23
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
13 Related Party Transactions
Cloverleaf Holdings Limited, a company controlled by Michael Fitzgerald,
provided consulting services to the Company for which it received $140,000 per
annum, payable in equal monthly installments, through November 1999 when the
arrangement was terminated and replaced with a contract under which
Michael Fitzgerald received fees for services as a non-executive director. No
balances were outstanding at March 31, 1999, 2000 or 2001. There were no other
related party transactions in the years ending March 31, 1999, 2000 or 2001.
14 Segment Information--Geographic
The Company reports operating results based on geographic areas. A summary
of the key financial data by segment is as follows:
United North
Kingdom Sweden America Total
-------- ------- ------- --------
(In Thousands)
Year Ended, and at March 31, 1999:
Revenue............................... $ 198 $ -- $ -- $ 198
Loss from operations.................. (10,694) -- -- (10,694)
Property, plant and equipment......... 2,099 -- -- 2,099
Total assets.......................... 14,766 -- -- 14,766
Year Ended, and at March 31, 2000:....
Revenue............................... 164 -- -- 164
Loss from operations.................. (12,716) (2,674) -- (15,390)
Property, plant and equipment......... 1,933 708 -- 2,641
Total assets.......................... 21,049 1,187 -- 22,236
Year Ended, and at March 31, 2001:....
Revenue............................... 1,579 -- -- 1,579
Loss from operations.................. (16,357) (3,718) (1,802) (21,877)
Property, plant and equipment......... 2,029 825 1,250 4,104
Total assets.......................... $ 89,882 $ 1,095 $ 1,483 $ 92,460
15 Subsequent Events
The Company has entered into an agreement to enter a new lease for 35,600
square feet of premises being constructed in Cambridge, England with effect
from May 2002. This lease will expire in May 2020.
F-24
GEMINI GENOMICS PLC
(A DEVELOPMENT STAGE COMPANY)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
16 Quarterly Financial Data (Unaudited)
Fiscal 2001 Quarter Ended
------------------------------------------
June 30 September 30 December 31 March 31
------- ------------ ----------- --------
(In Millions, Except Per Share Amounts)
Net revenues.................... $ -- $ -- $ 72 $ 1,484
Gross margin.................... -- -- 39 1,447
Operating loss.................. (4,979) (4,743) (5,450) (6,764)
Net loss........................ (4,975) (2,569) (4,183) (1,546)
Net loss per share--basic and
diluted........................ $ (0.10) $ (0.04) $ (0.06) $ (0.02)
Net loss per ADS--basic and
diluted........................ $ (0.20) $ (0.08) $ (0.12) $ (0.04)
Fiscal 2000 Quarter Ended
------------------------------------------
June 30 September 30 December 31 March 31
------- ------------ ----------- --------
Net revenues.................... $ 115 $ -- $ -- $ 49
Gross margin.................... 90 -- -- 49
Operating loss.................. (2,586) (2,244) (5,272) (5,340)
Net loss........................ (2,532) (2,262) (5,319) (5,345)
Net loss per share--basic and
diluted........................ $ (0.13) $ (0.11) $ (0.27) $ (0.27)
Net loss per ADS--basic and
diluted........................ $ (0.26) $ (0.22) $ (0.54) $ (0.54)
F-25
ATTACHMENT A
Dated 29 May 2001
Sequenom, Inc.
and
Gemini Genomics PLC
----------------
TRANSACTION AGREEMENT
----------------
TABLE OF CONTENTS
Page No.
--------
1. Interpretation................................................... A-1
2. The Transaction.................................................. A-5
3. Special Share Issue.............................................. A-5
4. Share Exchange................................................... A-5
5. Consideration.................................................... A-6
6. Options and Warrants............................................. A-6
7. Representations and Warranties and Conditions.................... A-6
8. Undertakings..................................................... A-7
9. Announcement..................................................... A-13
10. Assignment....................................................... A-13
11. Variation........................................................ A-13
12. Time of the Essence.............................................. A-13
13. Costs............................................................ A-13
14. Termination: Termination Fee..................................... A-14
15. Notices.......................................................... A-15
16. Miscellaneous.................................................... A-15
17. Governing Law.................................................... A-16
18. Third Party Rights............................................... A-16
APPENDIX I............................................................ A-18
APPENDIX II SHARE OPTION PROPOSAL..................................... A-20
APPENDIX III REPRESENTATIONS AND WARRANTIES........................... A-21
PART 1 REPRESENTATIONS AND WARRANTIES OF OFFEREE.................... A-21
PART 2 REPRESENTATIONS AND WARRANTIES OF OFFEROR.................... A-32
APPENDIX IV CONDITIONS................................................ A-41
APPENDIX V EMPLOYMENT AGREEMENT TERMS................................. A-49
APPENDIX VI FORM OF NEW REGISTRATION RIGHTS AGREEMENT................. A-55
TRANSACTION AGREEMENT
This Agreement is made on 29 May 2001.
Between:
(1) Sequenom, Inc., a US corporation organised under the laws of
Delaware, having its principal executive offices at 3595 John Hopkins
Court, San Diego, CA 92121 (Offeror);
(2) Gemini Genomics PLC, a company registered in England with number
3377251 and whose registered office is at 162 Science Park, Milton Road,
Cambridge CB4 0GH, England (Offeree).
Whereas:
(1) The parties desire to effect the Transaction.
(2) The parties intend to effect the Transaction by means of a scheme of
arrangement under Section 425 of the Act to be proposed by Offeree to its
shareholders under which the whole of the Offeree Scheme Shares will be
cancelled and reissued to Offeror and Offeror will issue solely
Consideration Stock to the former shareholders of Offeree.
(3) The parties wish to make certain representations, warranties,
covenants and agreements in connection with the Transaction and the
Transaction is subject to the Conditions.
(4) The parties intend that (i) the Transaction will qualify as a tax-
free reorganization for U.S. federal income tax purposes under Section
368(a) of the Internal Revenue Code, as amended (the "Code") and the
Treasury Regulations thereunder and (ii) the Consideration Stock to be
issued pursuant to the Transaction shall be issued without registration
under the Securities Act in reliance on the exemption from registration
provided by Section 3(a)(10) of the Securities Act.
(5) The holder of the Warrants (as defined herein) has agreed to vary
the terms under which the Warrants are held so that, subject to the Scheme
becoming effective, the Warrants will be converted to warrants to purchase
the appropriate number of shares of Offeror Stock at the Exchange
Proportion.
IT IS AGREED in consideration of the mutual commitments contained in this
Agreement and other good and valuable consideration as follows:
1. Interpretation
1.1 Definitions
In this Agreement, including the Appendices, the headings shall not affect
its interpretation and, unless the context otherwise requires, the provisions
in this Clause 1 apply;
Act means the Companies Act 1985 of Great Britain, as amended;
Advisers in relation to Offeror means Robertson Stephens Inc. (as financial
advisor), Cooley Godward LLP, (as U.S. legal advisor), Lovells (as English
legal advisor) and Ernst & Young LLP (as accountants), and in relation to
Offeree means Lipe & Co. and Seymour Pierce Limited (as financial advisors),
Skadden, Arps, Slate, Meagher & Flom LLP (as legal advisor) and Ernst & Young
(as accountants), including (unless the context requires otherwise) partners in
and directors and employees of such advisers;
Affiliate means, in relation to a party, any person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, the party or who otherwise falls within the
definition of affiliate for purposes of Rule 145 of the Securities Act. A party
shall be deemed to control a person if such party owns directly or indirectly,
50% or more of the voting rights of such person;
A-1
Agreed Form means, in relation to the documents listed in Appendix I hereto,
such documents in the terms agreed between the parties, whether before or after
the date hereof, and signed by them or on their behalf for the purposes of
identification, such agreement not to be unreasonably withheld or delayed;
Agreed Terms means the terms set out in Appendix I hereto, the employment
terms set out in Appendix V and the terms set out in the New Registration
Rights Agreement a form of which is attached as Appendix VI;
Announcement means the joint press announcement in the Agreed Form;
Announcement Date means 29 May 2001;
Board means the board of directors of any relevant person;
Business Day means a day (other than a Saturday or Sunday) on which banks
are generally open for business in New York, San Diego and London;
Circular means the circular in the Agreed Form to be issued by Offeree to
Offeree Shareholders containing an explanatory statement and the Scheme
regarding, inter alia, the cancellation of the Offeree Scheme Shares, the
allotment of New Offeree Shares to Offeror (or as it may direct) pursuant to
the Scheme and the allotment of Consideration Stock to Offeree Scheme
Shareholders;
City Code means the City Code on Takeovers and Mergers;
Conditions means the conditions to the Transaction set out in Appendix IV
hereto and in the Announcement;
Consideration Stock means the fully paid and non-assessable Offeror Stock to
be issued to Offeree Scheme Shareholders as sole consideration under the Scheme
on the terms referred to in the Announcement;
Court means the High Court of Justice in England and Wales;
Court Meeting means the meeting of Offeree Shareholders convened by the
Court, notice of which will be contained in the Circular (or any adjournment
thereof);
Final Court Order means the order of the Court sanctioning the Scheme under
Section 425 of the Act and confirming the cancellation of the share capital in
connection therewith under Section 137 of the Act;
Effective Date means the date on which the Scheme becomes effective;
Effective Time means the time on the Effective Date at which the Scheme
becomes effective;
Employee Share Option Schemes means, together, the Offeree Share Option
Plan, Parts A and B, the Savings Related Share Option Scheme, the International
Executive Share Option Plan of Offeree and any option deeds under which Offeree
has granted options to employees, consultants or others.
Encumbrance means any charge, mortgage, lien, hypothecation, judgement,
encumbrance, easement, security, title retention, preferential right, trust
arrangement, or any other security interest or any other agreement or
arrangement having a commercial effect analogous to the conferring of security
or similar right in favour of any person;
Exchange Act means the United States Securities Exchange Act of 1934, as
amended;
Exclusivity Period means the period between the date hereof and the earliest
of (1) the Effective Date, (2) 5.00 p.m. (London time) on 30 November 2001, and
(3) the date of termination of this Agreement pursuant to Clause 14;
Extraordinary General Meeting means the extraordinary general meeting of
Offeree Shareholders, notice of which will be contained in the Circular or any
adjournment thereof;
Exchange Proportion means the amount of Offeror Stock to be issued in
exchange for each Offeree Scheme Share determined as provided in Clause 4;
A-2
Group means the Offeree Group or the Offeror Group as the context requires;
H-P means Hewlett-Packard International Bank Limited.
Knowledge means the actual knowledge of the applicable party's board of
directors or officers engaged primarily in the management of the party's
business, after due inquiry.
Maximum Liability has the meaning ascribed thereto in Clause 8.5.5;
Meetings means the Court Meeting and the Extraordinary General Meeting;
NASDAQ means the Nasdaq National Market System operated by the Nasdaq Stock
Market, Inc.;
New Offeree Shares means the ordinary shares of 5p each in the capital of
Offeree to be issued fully paid to Offeror pursuant to the Scheme;
Offeree ADSs means the American Depositary Shares of Offeree subject to the
Deposit Agreement, by and among Offeree, The Bank of New York, as depositary,
and each holder and beneficial owner from time to time of American Depositary
Receipts issued thereunder, each of which represents two Offeree Shares;
Offeree Group means Offeree and its subsidiary undertakings;
Offeree Scheme Shareholders means holders of Offeree Scheme Shares;
Offeree Scheme Shares means the Offeree Shares in issue on the date of the
Scheme together with any further Offeree Shares;
(a) in issue up to 48 hours prior to the time of the Court Meeting; and
(b) issued thereafter and prior to the close of business on the Business
Day before the date of the Final Court Order either on terms that the
original or any subsequent holders thereof shall be bound by the Scheme or
in respect of which the holders thereof shall have agreed to be bound by
the Scheme;
other than any such Offeree Shares held or to be held by any member of the
Offeror Group;
Offeree Shareholders means the holders of Offeree Shares;
Offeree Shares means ordinary shares of 5p each in the capital of Offeree;
Offeror Employee Stock Option Plan means the Offeror 1999 Stock Option Plan.
Offeror Group means Offeror and its subsidiary undertakings;
Offeror Stock means shares of common stock of US$0.001 par value each in the
capital of Offeror;
Offeror Stockholder Approval means the affirmative vote of the holders of a
majority of the outstanding Offeror Stock as of the record date for the Special
Meeting for the purpose of approving the issuance of the Consideration Stock by
Offeror pursuant to the Scheme;
Offeror Takeover Proposal means any publicly announced intention to make any
bona fide proposal or offer by any third party or any proposal or offer so made
for a merger, exchange offer, consolidation, partnership, joint venture or
other business combination involving, or any purchase of, all or substantially
all of the assets of Offeror Group or more than 50% of the voting share capital
of Offeror which in any such case is conditioned on the Transaction not being
completed;
Panel means the UK Panel on Takeovers and Mergers;
Pre-Closing Period has the meaning ascribed to it in Clause 8.1.1 of this
Agreement;
Proxy Statement means the letter to stockholders, notice of meeting, proxy
statement and the form of proxy to be distributed to the holders of Offeror
Stock in connection with the issuance of the Consideration Stock by Offeror
pursuant to the Scheme and any schedules or other documents required to be
filed with the SEC in connection therewith or any revisions or supplements
thereto in the Agreed Form;
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Record Date means close of business on the Business Day immediately
preceding the Effective Date;
Registration Rights Agreement has the meaning ascribed thereto in Clause
8.19 hereto;
Representatives means in relation to each party, the directors, employees,
consultants of, and any individuals seconded to work for, such party
(including persons who, at the relevant time, occupied such position);
Resolutions means the resolution to be proposed at the Court Meeting and
the resolutions to be proposed at the Extraordinary General Meeting;
Scheme means the scheme of arrangement under Section 425 of the Act to be
contained in the Circular;
SEC means the United States Securities and Exchange Commission;
Securities Act means the United States Securities Act of 1933, as amended;
Special Meeting means the meeting of Offeror's stockholders being held in
connection with the approval of the issuance of the Consideration Stock;
Takeover Proposal means any publicly announced intention to make any bona
fide proposal or offer by any third party (other than a proposal or offer by
any member of the Offeror Group in respect of Offeree) or any proposal or
offer so made for a merger, scheme of arrangement, exchange offer,
consolidation, partnership, joint venture or other business combination
involving, or any purchase of, all or substantially all of the assets of
Offeree Group or more than 50% of the voting share capital of Offeree or other
similar transaction that is substantially inconsistent with the implementation
of the Transaction;
Timetable means the timetable for the Transaction substantially in the
Agreed Form;
Transaction means the acquisition of Offeree by Offeror Group pursuant to
the Scheme;
Warrants mean the warrants issued to H-P to subscribe for 40,000 Offeree
Shares at an exercise price of 5p, together with warrants to subscribe for an
additional 60,000 Offeree Shares (issuable to H-P in the event Offeree draws
funds from the line of credit with H-P); and
Warrant Variance means the warrant variation entered into with H-P in the
Agreed Form.
1.2 Subordinate Legislation
Any reference to a statutory provision shall include any subordinate
legislation made from time to time under that provision which is in force at
the date of this Agreement;
1.3 Modification etc. of Statutes
Any reference to a statutory provision shall include such provision as from
time to time modified or re-enacted or consolidated whether before or after
the date of this Agreement so far as such modification, re-enactment or
consolidation applies or is capable of applying to any transactions entered
into under this Agreement prior to the Effective Date and (so far as liability
thereunder may exist or can arise) shall include also any past statutory
provision (as from time to time modified, re-enacted or consolidated) which
such provision has directly or indirectly replaced except to the extent that
any statutory provision made or enacted after the date of this Agreement would
create or increase a liability of any party under this Agreement.
1.4 Companies Act 1985
The words holding company, subsidiary and subsidiary undertaking shall have
the same meanings in this Agreement as their respective definitions in the
Act.
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1.5 Interpretation Act 1978
The Interpretation Act 1978 shall apply to this Agreement in the same way
as it applies to an enactment.
1.6 Appendices etc.
References to this Agreement shall include the Appendices to it and
references to Clauses are to clauses of this Agreement and references to
Appendices mean the appendices to this Agreement unless otherwise stated. The
headings to the clauses and any italicized text to this Agreement and in the
Appendices are for ease of reference only and shall not form any part of this
Agreement for the purposes of construction
1.7 Currency
References in this Agreement to $, cents or US dollars shall be deemed to
be references to the lawful currency of the US.
2. The Transaction
Subject to the satisfaction or waiver (if permitted) of the Conditions, the
Transaction shall be effected by way of the Scheme. The parties shall use all
reasonable endeavours to comply with the Timetable and (so far as they each
may be able) to achieve satisfaction of the Conditions provided that this
Clause 2 shall not oblige either party to (1) waive satisfaction of any
Condition or (2) take any action if, at the time when such action would
otherwise have been required pursuant to this Clause 2, the Board of the other
shall have withdrawn (or modified in a manner adverse to the prospects of
implementation of the Transaction) its approval or recommendation of the
transactions contemplated by this Agreement (whether before or after the Court
Meeting or the Extraordinary General Meeting or the Special Meeting) and the
relevant party shall, at such time, have paid any amounts which are due to be
paid at that time under Clauses 8.5 or 14.2.
3. Special Share Issue
3.1 Offeror agrees with and undertakes to Offeree that it will subscribe at
par for one Offeree Non-voting Deferred Share directly from Offeree prior to
the Effective Date. The only entitlement of a holder of such share shall be to
receive the nominal value thereof in the event of liquidation of Offeree and
to rank pari passu to such extent with holders of ordinary shares in respect
of any amount available for distribution to shareholders in the event of
liquidation of Offeree.
3.2 Offeree agrees that it will procure the issue to Offeror of the share
referred to in Clause 6.1 prior to the Effective Date.
4. Share Exchange
4.1 Unless the Board of Offeree shall, at the time when such action would
otherwise have been required pursuant to this Clause 4.1, have made a
Subsequent Determination (as defined in Clause 8) (whether before or after the
Court Meeting or the Extraordinary General Meeting) and Offeree shall, at such
time, have paid any amounts which are due to be paid at that time under
Clauses 8.5 or 14.2, Offeree agrees to seek the earliest appropriate dates for
the relevant Court hearings, to instruct its registrars to despatch the
Circular, appropriate forms of proxy for use at the Court Meeting and the
Extraordinary General Meeting and, in the event of the Resolutions being
passed by the requisite majorities, promptly to apply to the Court for and
diligently to seek its sanction of the Scheme.
4.2 Offeror shall, subject to the Scheme becoming effective, issue on the
Effective Date to Offeree Scheme Shareholders on the Record Date, the
Consideration Stock. For each Offeree Scheme Share held by an Offeree Scheme
Shareholder as at the Record Date the holder will receive the Exchange
Proportion of shares of Offeror Stock.
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In this Clause 4.2 the following definitions shall apply:
Exchange Proportion means:
For each Offeree Share 0.2 of a share of Offeror Stock
representing for each Offeree ADS 0.4 of a share of Offeror
Stock
provided, however, that in no event shall Offeror issue more than 14,403,870
shares of Offeror Stock pursuant to the Scheme and in the event that the
Exchange Proportion would (absent the application of this proviso) result in
the issuance by Offeror of more than 14,403,870 shares of Offeror Stock, the
Exchange Proportion for each Offeree Share (and for each Offeree ADS) will be
reduced to the greatest fraction of a share of Offeror Stock that would result
in no more than 14,403,870 shares of Offeror Stock being issued pursuant to the
Scheme.
No fraction of a share of Offeror Stock shall be issued to Offeree Scheme
Shareholders but in lieu thereof, each Offeree Scheme Shareholder on the Record
Date who would otherwise be entitled to such a fraction of a share of Offeror
Stock (after aggregating all fractions of shares of Offeror Stock to which such
Offeree Scheme Shareholder would otherwise be entitled) shall instead receive
cash (without interest) from Offeror as if any entitlement to a fraction of a
share of Offeror Stock to which such Offeree Scheme Shareholder would otherwise
have been entitled had been sold at the closing price of Offeror Stock on
NASDAQ on the Effective Date.
4.3 If at any time during the period between the date of this Agreement and
the time for the calculation of the amount of Consideration Stock to be issued
under the Scheme any change in the outstanding shares of capital stock of
Offeror or Offeree shall occur as a result of any capital reorganisation,
reclassification, stock split (including a reverse stock split) readjustment of
shares, or any stock dividend with a record date during such period (other than
in any such case any such event pursuant to or in conjunction with the Scheme)
the Consideration Stock shall be adjusted equitably.
5. Consideration
The Consideration Stock shall be validly issued, fully paid, non-assessable
and free of Encumbrance (other than any Encumbrance created by Offeree Scheme
Shareholders) and shall rank pari passu in all respects with the Offeror Stock
then in issue, including the right to receive and retain any dividends and
other distributions declared, made or paid after the Effective Date.
6. Options and Warrants
6.1 Offeree and Offeror agree that, subject to the requirements of the
Inland Revenue and the Panel (where applicable), each option over Offeree
Shares granted prior to the Record Date under the terms of the Employee Share
Option Schemes shall (if the Scheme becomes effective) be dealt with in
accordance with the proposals to be made to optionholders in the Employee Share
Option Schemes in accordance with the Agreed Terms.
6.2 At Offeree's request, H-P has executed the Warrant Variance pursuant to
which the Warrants will be converted into warrants over Offeror Stock on the
terms and conditions set out in the Warrant Variance.
7. Representations and Warranties and Conditions
7.1 Offeree hereby makes the representations and warranties contained in
Part 1 of Appendix III .
7.2 The obligations of Offeror to give effect to the Scheme are subject to
Offeree having caused to be delivered to Offeror immediately prior to the
hearing of the petition to sanction the Scheme a certificate signed on behalf
of Offeree by a duly authorized officer to the effect that (i) its
representations and warranties given in
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this Agreement that are qualified as to materiality were true and correct as at
the date of this Agreement and, except to the extent that the same speak as at
an earlier date, remain true and correct at the time of delivery of such
certificate and (ii) its representations and warranties given in this Agreement
that are not so qualified were true and correct in all material respects as at
the date of this Agreement and, except to the extent that the same speak as at
an earlier date, remain true and correct at the time of delivery of such
certificate provided that Offeror reserves the right, in its absolute
discretion, to waive the provisions of this Clause 7.2 and agrees to do so if
so required by the Panel.
7.3 Offeror hereby makes the representations and warranties contained in
Part 2 of Appendix III.
7.4 The obligations of Offeree to give effect to the Scheme are subject to
Offeror having caused to be delivered to Offeree immediately prior to the
hearing of the petition to sanction the Scheme a certificate signed on behalf
of Offeror by a duly authorized officer to the effect that (i) its
representations and warranties given in this Agreement that are qualified as to
materiality were true and correct as at the date of this Agreement and, except
to the extent that the same speak as at an earlier date, remain true and
correct at the time of delivery of such certificate and (ii) its
representations and warranties given in this Agreement that are not so
qualified were true and correct in all material respects as at the date of this
Agreement and, except to the extent that the same speak as at an earlier date,
remain true and correct at the time of delivery of such certificate provided
that Offeree reserves the right, in its absolute discretion, to waive the
provisions of this Clause 7.4 and agrees to do so if so required by the Panel.
7.5 The obligations of Offeree to give effect to the Scheme are subject to
the receipt by Michael Fitzgerald, Genelink Holdings Ltd., Raddison Trustee
Ltd. and Cloverleaf Holdings Limited of rights to register their Consideration
Stock (and any securities of Offeror that may subsequently be issued to them)
under the Securities Act pursuant to the registration rights agreement, to be
executed and delivered as of the Effective Date, the form of which is attached
as Appendix VI hereto (the New Registration Rights Agreement).
7.6 The obligations of Offeree and Offeror to give effect to the Scheme are
subject to the Transaction qualifying as a tax-free reorganization within the
meaning of Section 368(a) of the Code; provided that neither Offeree nor
Offeror may otherwise assert that this condition has not been satisfied if such
asserting party is in breach of its obligations under Clause 8.15; provided,
further, that neither Offeree nor Offeror may otherwise assert that this
condition has not been satisfied if Skadden, Arps, Slate, Meagher & Flom LLP
provides an opinion to Offeree and Offeror to the effect that the Transaction
will qualify as a reorganization under Section 368(a) of the Code.
7.7 The obligations of Offeree and Offeror to give effect to the Scheme are
subject to the satisfaction or waiver (if permitted) of the Conditions
applicable to each of them, which are attached hereto as Appendix IV.
7.8 The obligations of Offeror to give effect to the Scheme are subject to
each of Paul Kelly, Jeremy Ingall and Patrick Kleyn terminating their existing
employment and consulting agreements with Offeree, releasing Offeree and
Offeror from any claims in connection with said agreements and entering into
new employment agreements with Offeror as of the Effective Time, all in
accordance with the terms and conditions set forth in the term sheets attached
as Appendix V hereto.
8. Undertakings
8.1.1 Except as otherwise contemplated by this Agreement, required by
applicable law, or with the written consent of the other party, during the
period from the date hereof through the Effective Date (the Pre-Closing
Period), each party shall (and shall cause each of its Affiliates to): (i)
conduct its respective business and operations (A) in the ordinary course and
in accordance with past practices, and (B) in compliance with all applicable
laws and the requirements of all material contracts to which it or any of its
Affiliates is party; and (ii) use all reasonable efforts to preserve intact its
current business organization and maintain its relations and goodwill with all
material suppliers, customers, landlords, creditors, licensors, licensees,
employees and others having business relationships with it and any of its
Affiliates.
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8.1.2 During the Pre-Closing Period, each party shall not (without the prior
written consent of the other party), and shall not permit any of its Affiliates
to:
(a) declare, accrue, set aside or pay any dividend or make any other
distribution in respect of any shares of capital stock (other than
dividends from wholly-owned Affiliates) or repurchase, redeem or otherwise
reacquire any shares of capital stock or other securities;
(b) sell, issue, grant or authorize the issuance or grant of (A) any
capital stock or other security, (B) any option, call, warrant or right to
acquire any capital stock or other security, or (C) any instrument
convertible into or exchangeable for any capital stock or other security
(except that such party may issue shares upon the exercise of previously
issued stock options under any existing share option scheme of such party
in the ordinary course of business and consistent with past practices);
(c) except as required to effect the transactions contemplated by this
Agreement, amend or waive any of its rights under, or accelerate the
vesting under, any provision of any share option scheme, any provision of
any agreement evidencing any outstanding stock option or any restricted
stock purchase agreement, or otherwise modify in any material respect any
of the terms of any outstanding option;
(d) except as required to effect the transactions contemplated by this
Agreement, amend or permit the adoption of any amendment to its certificate
of incorporation or bylaws or equivalent documents (including Offeree's
Memorandum of Association and Articles of Association), or effect or become
a party to any merger, consolidation, share exchange, business combination,
recapitalization, reclassification of shares, stock split, reverse stock
split or similar transaction;
(e) make any capital expenditure outside the ordinary course of business
or make any single capital expenditure in excess of $500,000;
(f) other than as set forth in Section 8.1.2(f) of the Offeree
Disclosure Schedule, sell or otherwise dispose of, or acquire, lease or
license, any right or other asset to any other person (except in each case
for assets leased, licensed or disposed of in the ordinary course of
business and consistent with past practices or in accordance with the terms
of agreements in effect as of the date hereof and previously disclosed to
Offeror);
(g) other than as set forth in Section 8.1.2(g) of the Offeree
Disclosure Schedule, lend money to any person, or incur or guarantee any
indebtedness (other than intercompany indebtedness in the ordinary course
of business and consistent with past practice, and except that either party
may make borrowings in the ordinary course of business (other than
Offeree's existing lines of credit with H-P which Offeree agrees not to
draw on or extend in any way) and in accordance with past practices or in
accordance with the terms of agreements in effect as of the date hereof);
(h) other than as set forth in Section 8.1.2(h) of the Offeree
Disclosure Schedule, establish or adopt any stock option or other employee
benefit plan or collective bargaining agreement, materially amend or modify
any such plan or agreement, or increase the amount of the wages, salary,
commissions, fringe benefits or other compensation or remuneration payable
to, any of its directors, officers or employees who earn $100,000 or more;
(i) hire any new employee having an annual salary in excess of $100,000;
(j) change any of its methods of accounting or accounting practices in
any material respect except as required by law or generally accepted
accounting principles;
(k) enter into or materially modify any contract, commitment or
agreement (whether written or oral) which is material to the applicable
party's business and operations, taken as a whole;
(l) make any material tax election except as required by law or
generally accepted accounting principles;
(m) commence or settle any material legal proceeding;
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(n) form any subsidiary or acquire any equity interest or other interest
in any other entity; or
(o) enter into any material transaction or take any material action
outside the ordinary course of business or inconsistent with past practice.
8.2 Offeror agrees to instruct counsel of its choice to appear on its behalf
at the hearing of the petition to sanction the Scheme and to undertake to the
Court to be bound thereby.
8.3 Offeror and Offeree undertake promptly to notify each other (and supply
copies of all relevant information) of any event or circumstance of which they
become aware that would be likely to have a significant impact on the
satisfaction of the Conditions.
8.4 Each of the parties shall promptly provide such assistance and
information as may reasonably be required by any of the others for the purposes
of or in connection with the Circular and the Proxy Statement including,
without limitation, any that may be required by any regulatory authority.
8.5
8.5.1 Each of Offeror and Offeree represents, warrants and undertakes to the
other that, during the Exclusivity Period, it will not and will procure that
none of its Affiliates, Advisers or Representatives, or those of any member of
its Group, will solicit, initiate or knowingly encourage (including by way of
furnishing information), or enter into discussions or negotiations regarding,
any Takeover Proposal or Offeror Takeover Proposal as the case may be from any
person or, other than in the ordinary course of its existing business, any
acquisition or disposal of assets by Offeree or Offeror as the case may be;
provided that a party may engage in discussions or negotiations with, and
furnish information concerning itself, its Group, or their businesses,
properties or assets to, any third party which has made an approach if, and
only to the extent that, the Board of such party concludes, in good faith,
after consultation with, and based upon the advice of, its outside counsel at a
meeting of such Board, that the failure to take such action would be in breach
of the fiduciary duties of the directors of such party or would violate the
obligations of such Board under the provisions of the City Code and/or the Act
and/or other applicable law or regulation and/or the rules and regulations of
any applicable recognized stock exchange and on the basis that (i) a copy of
the minutes of such Board meeting reflecting the Board's conclusion, shall
promptly be provided to the other party and (ii) such party shall promptly (but
in any event within 24 hours) notify the other of the receipt of any Takeover
Proposal or Offeror Takeover Proposal as the case may be, including the
material terms and conditions thereof (to the extent known) (and any changes in
the material terms and conditions thereof of which it becomes aware) and the
identity of the person making such Takeover Proposal or Offeror Takeover
Proposal as the case may be.
8.5.2 Subject to the terms of this Agreement (including the next sentence),
Offeree and Offeror each represents, warrants and undertakes to the other that,
during the Exclusivity Period, such party's Board shall recommend to its
respective shareholders the approval of this Agreement, the Transaction and the
other transactions contemplated hereby (as applicable) and shall use reasonable
efforts to solicit such approval. Neither the Board of Offeree or Offeror nor
any committee thereof shall (i) withdraw, qualify, modify or amend, in a manner
adverse to the other party hereto, such recommendation(s) or make any public
statement, filing or release inconsistent with such recommendation(s), (ii)
approve or recommend, or propose publicly to approve or recommend, any Takeover
Proposal or Offeror Takeover Proposal, as applicable, or (iii) cause Offeree or
Offeror (as applicable) to enter into any acquisition agreement or other
similar agreement related to any Takeover Proposal or Offeror Takeover Proposal
(as applicable) (each, a Subsequent Determination), provided that the foregoing
restrictions in this Clause shall not apply in relation to any Subsequent
Determination if prior to the completion of the Transaction such Board
determines in good faith, after consultation with, and based upon the advice
of, its outside counsel at a meeting of such Board, that the failure to make
such Subsequent Determination would be in breach of the fiduciary duties of the
directors of such Board or would violate the obligations of such Board under
the provisions of the City Code and/or the Act and/or other applicable law or
regulation and/or the rules and regulations of any applicable recognized stock
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exchange and on the basis that (i) a copy of the minutes of such Board meeting
reflecting the Board's conclusion, shall promptly be provided to the other
party and (ii) such party shall promptly (but in any event within 24 hours)
notify the other of the receipt of any prospective or actual Takeover Proposal
or Offeror Takeover Proposal, as the case may be, including the material terms
and conditions thereof (to the extent known) (and any changes in the material
terms and conditions thereof of which it becomes aware) and the identity of the
person making or proposing to make such Takeover Proposal or Offeror Takeover
Proposal as the case may be.
8.5.3 If a party is in breach of Clause 8.5.1 or Clause 8.5.2, such party
will pay to the other damages equal to such other's reasonable costs and
expenses incurred in investigating and making the Transaction up to the date of
the breach, each party agreeing such amount to be a genuine pre-estimate of
damages suffered by the other. The maximum amount so payable shall not exceed
the amount determined under Clause 8.5.4(1); such amount shall be paid within 5
Business Days of receipt of notice of any such breach.
8.5.4 In consideration of the commitment of time, costs, expenses and
personnel by the parties, if on or before the expiry of the Exclusivity Period
any announcement is made by any third party with respect to a Takeover Proposal
or Offeror Takeover Proposal (which Takeover Proposal or Offeror Takeover
Proposal is made and becomes unconditional in all respects or otherwise
effective), the party subject to such proposal will pay to the other, within 7
days of demand, a fee of the lesser of:
(1) $2,290,000; and
(2) the largest sum as would not reduce the net assets of Offeree as
defined in Section 152(2) of the Act to a material extent,
provided that, if Offeree has no net assets (as so defined), no such sum shall
be payable.
8.5.5 It is agreed that the maximum aggregate amount payable by either party
under the terms of Clauses 8.5 and 14 (the Maximum Liability) shall not exceed
$2,290,000 or in relation to any liability of the Offeree that constitutes
financial assistance for the purposes of Part V of the Act the largest amount
as would not reduce the net assets of Offeree as defined in Section 152(2) of
the Act to a material extent provided that, if Offeree has no net assets (as so
defined), such amount shall be nil.
8.6 Each of Offeree and Offeror shall cooperate and reasonably promptly
prepare and Offeror shall file with the SEC as soon as practicable after the
date hereof the Proxy Statement under the Exchange Act, and any amendment or
supplement thereto, with respect to the Offeror Stockholder Approval. Offeror
will cause the Proxy Statement to comply as to form in all material respects
with the applicable provisions of the Exchange Act. Offeror shall use its
reasonable efforts to obtain, in a timely fashion, all necessary state
securities law or "Blue Sky" permits or approvals required to carry out the
transactions contemplated by this Agreement. No filing of, or amendment or
supplement to, the Proxy Statement will be made by Offeror or Offeree without
providing the other party with a reasonable opportunity to review and comment
thereon. Offeror will advise Offeree, promptly after it receives notice
thereof, of the suspension of the qualification of the Consideration Stock
issuable in connection with the Transaction for offering or sale in any
jurisdiction, or any request by the SEC for amendment of the Proxy Statement or
comments thereon and responses thereto or requests by the SEC for additional
information.
8.7 Each of Offeree and Offeror agrees, as to itself and its Subsidiaries,
and represents and warrants that none of the information to be supplied by it
or its Subsidiaries for inclusion or incorporation by reference in the Circular
or the Proxy Statement, or any amendment or supplement thereto, will, at the
date of mailing the Circular or the of Proxy Statement, as the case may be, to
shareholders and at the time or times of the Court Meeting or the Special
Meeting, as the case may be, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading. If at any time prior to
the Effective Date any information relating to Offeree or Offeror should be
discovered by Offeree or Offeror which should be set forth in an amendment or a
supplement to the Circular or
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the Proxy Statement, as the case may be, so that such document would not
include any misstatement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, the
party which discovers such information shall promptly notify the other and, to
the extent required by law, an appropriate amendment or supplement describing
such information shall be promptly filed with the SEC and, to the extent
required by law, disseminated to shareholders.
8.8 Offeree and Offeror shall cooperate and Offeree shall reasonably
promptly prepare the Circular to be sent to Offeree shareholders in connection
with the Meetings, containing (i) a notice convening the Meetings, (ii) such
other information (if any) as may be required by the City Code or the Court,
and (iii) such other information as Offeree reasonably determines to include
therein. Each of Offeror (solely to the extent such information is provided by
Offeror for inclusion therein) and Offeree agrees that the Circular and any
supplements thereto and any other circulars or documents issued to
shareholders, employees or debentureholders of Offeree, will contain all
particulars required to comply in all material respects with all applicable
United Kingdom statutory and other legal provisions (including, without
limitation, the Act, the U.K. Financial Services Act 1986 (as amended) and the
rules and regulations made thereunder, and the City Code) and all such
information contained in such documents will be substantially in accordance
with the facts and will not omit anything material likely to affect the import
of such information.
8.9 Each of Offeree and Offeror will use reasonable efforts to cause the
Circular and the Proxy Statement, respectively, to be mailed to its
shareholders as promptly as reasonably practicable after the date of the
Announcement.
8.10 Offeror will take all action reasonably necessary to convene the
Special Meeting at which the holders of Offeror Stock shall consider the
Offeror Stockholder Approval as promptly as reasonably practicable (subject to
applicable law). Subject to obtaining leave from the Court to convene the Court
Meeting, Offeree will take all action reasonably necessary to convene the
Extraordinary General Meeting and the Court Meeting at which resolutions will
be proposed to approve the Transaction (and any other related matters) as
promptly as reasonably practicable (but subject to applicable law) after
publication of the Proxy Statement. Offeror and Offeree shall each use
reasonable efforts such that, to the extent reasonably practicable, the
Meetings and the Special Meeting shall be held on the same day and as promptly
as reasonably practicable (subject to applicable law) after the conditions
precedent to holding such meetings have been fulfilled.
8.11 Offeror agrees to indemnify and hold Offeree (for itself and on behalf
of its directors and officers) harmless up to a maximum amount equal to the
Maximum Liability from and against any and all losses, damages, liabilities,
costs and expenses to which Offeree may become subject arising from Offeror's
breach of Clauses 8.6, 8.7 and 8.8.
8.12 Offeree agrees to indemnify and hold Offeror (for itself and on behalf
of its directors and officers) harmless up to a maximum amount equal to the
Maximum Liability from and against any and all losses, damages, liabilities,
costs and expenses to which Offeror may become subject arising from Offeree's
breach of Clauses 8.6, 8.7 and 8.8.
8.13 From and after the Effective Date, for so long as the Board of Offeror
determines that it is in the best interests of Offeror, Offeree's business will
be included in the Biotherapeutics business unit of Offeror which will conduct
target discovery, functional target validation and lead discovery and lead
validation (the DDDU). The day to day management of the DDDU shall be primarily
managed by the following members of management: Paul Kelly as the head of the
DDDU, Jeremy Ingall as head of commercial operations of the DDDU and Patrick
Kleyn as head of research and development of the DDDU. Offeror has no current
plan or intention to liquidate or merge Offeree with and into Offeror or merge
or combine Offeree with any other entity.
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8.14 Offeror shall take all action reasonably necessary to include two (2)
new directors on its Board and shall cause the nomination and election of
Michael Fitzgerald, the Chairman of Offeree, and a nominee to be selected by
Mr. Fitzgerald (which nominee shall be (i) an individual who is a director of,
or employed by, a publicly held biotechnology or pharmaceutical company (other
than Offeree) and (ii) reasonably acceptable to Offeror) to such Board. From
and after the Effective Date, for so long as such Board determines that it is
in the best interest of Offeror (but for at least two years from and after the
Effective Date unless otherwise consented to by directors representing 80% of
the voting power on such Board), such Board shall include no more than eight
(8) directors.
8.15 The parties intend that the Transaction shall qualify as a tax-free
reorganization within the meaning of Section 368(a) of the Code and shall use
their reasonable endeavors and shall cause their respective Affiliates to use
their reasonable endeavors (including by providing customary representations to
counsel in the circumstances described in the second proviso to Clause 7.6) to
cause the Transaction to so qualify and shall promptly notify the other if it
(or its respective Affiliates) has Knowledge of facts or circumstances under
which the Transaction would not so qualify. Neither Offeror nor Offeree, or any
of their respective Affiliates, shall take any action, or fail to take any
action, that would or would be reasonably likely to adversely affect the
treatment of the Transaction as a tax-free reorganization within the meaning of
Section 368(a) of the Code.
8.16 Subject as herein provided, when implementing the Scheme, complying
with all procedures directed by the Court and conducting all hearings before
the Court, Offeree shall take all reasonable steps to do so in a manner that
shall preserve the availability of the exemption from registration under the
Securities Act provided by Section 3(a)(10) of the Securities Act, including,
without limitation:
(a) conducting a hearing on the fairness of the Scheme to the Offeree
shareholders;
(b) advising the Court before the hearing on the fairness of the Scheme
that, if the terms and conditions of the Scheme are approved, its
sanctioning of the Scheme will constitute the basis for the Offeror Shares
offered pursuant to the Scheme to be issued without registration under the
Securities Act in reliance on the exemption from registration provided by
Section 3(a)(10); and
(c) providing adequate notice of the hearing and an opportunity to
attend the hearing and be heard to all persons to whom Offeror Shares are
proposed to be issued pursuant to the Scheme.
8.17 Offeree shall procure that:
(a) all non-executive directors on the Board of Offeree at the date of
this Agreement shall resign from the Board of Offeree, such resignations to
take effect after the Scheme becomes effective and in accordance with the
directors' contractual entitlements.
(b) Messrs. Kelly, Ingall and Kleyn from the Offeree, and Andreas Braun,
Charles R. Cantor, Delbert F. Foit, Antonius Schuh and Stephen L. Zaniboni
shall constitute the Board of Offeree, with effect from and after the
Effective Time for so long as the Board of Offeror determines that the
Board of Offeree shall be so constituted.
8.18 During the Pre-Closing Period, each party, subject to applicable laws
and regulations (including antitrust laws and regulations), shall (i) provide
the other party and its Representatives with reasonable access to its personnel
and assets and to all existing books, records, tax returns, work papers and
other documents and information relating to it and any of its Affiliates (other
than Trade Secrets); and (ii) provide the other party and its Representatives
with such copies of the existing books, records, tax returns, work papers and
other documents and information relating to it and any of its Affiliates (other
than Trade Secrets as defined in Appendix III, Part 1, Section 1.11), and with
such additional financial, operating and other data and information regarding
it and any of its Affiliates, as the other party may reasonably request;
provided that no investigation pursuant to this Clause 8.17 shall affect or be
deemed to modify any representation or warranty made by such party hereunder
and provided, further, that the foregoing shall not require either party to
permit any inspection, or to disclose any information, that in the reasonable
judgment of such party would result in the disclosure of
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any trade secrets of third parties or violate any of its obligations with
respect to confidentiality. All requests for information made pursuant to this
Clause shall be directed to a senior executive officer of the relevant party or
such person as may be designated by such officers. All such information shall
be governed by the terms of the confidentiality agreement entered into by the
parties, including all such information disclosed in the Offeree Disclosure
Schedule and the Offeror Disclosure Schedule.
8.19 Offeror shall use its reasonable endeavors to obtain, prior to the
Meetings, any consents required (including, without limitation, the consents
required under Section 11 of the Amended and Registration Rights Agreement,
dated as of December 21, 1998 (the Registration Rights Agreement, by and among
Offeror and the other parties thereto, or any other registration rights
agreement) in order to execute and deliver the New Registration Rights
Agreement and perform its obligations thereunder, including, without
limitation, the granting of certain registration rights to Michael Fitzgerald,
Genelinks Holdings Ltd., Raddison Trustee Ltd. and Cloverleaf Holdings Limited.
8.20 During the Pre-Closing Period, Offeree agrees that, except with respect
to a Takeover Proposal or Offeror Takeover Proposal, neither Offeree nor any
member of Offeree Group will enter into any agreement (oral, written or
otherwise) with any investment bank, financial advisor or other similar entity
whatsoever, without Offeror's prior written consent, which consent shall not be
unreasonably withheld.
9. Announcement
9.1 Offeree and Offeror agree that the Announcement shall be released at or
about 07.00 hours (New York time) on the Announcement Date and that a copy will
be delivered to the Panel at or about that time.
9.2 During the Exclusivity Period, Offeree and Offeror shall, subject to the
requirements of law or any regulatory body or the rules, regulations or
requirements of any recognized stock exchange or the City Code or the Panel,
consult together as to the terms of, the timetable for and manner of
publication of, any formal announcement, circular or publication to
shareholders, employees, customers, suppliers, distributors and sub-contractors
and to any recognized stock exchange or other authorities or to the media or
otherwise which either may desire or be obliged to make regarding this
Agreement or any matter referred to herein. Any other communication which
Offeree or Offeror may make concerning such matters shall, subject to the
requirements of law or any regulatory body or such rules, regulations or
requirements, be consistent with any such formal announcement or circular as
aforesaid.
10. Assignment
This Agreement is personal to the parties to it and may not be assigned in
whole or in part.
11. Variation
No variation of this Agreement shall be effective unless in writing and
signed by or on behalf of Offeree and by Offeror.
12. Time of the Essence
Any time, date or period referred to in any provision of this Agreement may
be extended by mutual agreement between Offeree and Offeror but as regards any
time, date or period originally fixed or any time, date or period so extended
time shall be of the essence.
13. Costs
Save as provided in this Agreement, each party shall bear all legal,
accountancy and other costs and expenses incurred by it in connection with this
Agreement and the implementation of the Scheme and the Transaction. Neither the
Offeror nor any Affiliate of Offeror shall pay any costs or expenses of any
Offeree
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shareholder incurred in connection with this Agreement, the implementation of
the Scheme or the Transaction or otherwise.
14. Termination: Termination Fee
14.1 Notwithstanding anything contained in this Agreement to the contrary,
this Agreement may be terminated as follows:
14.1.1 by the mutual written consent of Offeror and Offeree; or
14.1.2 by either Offeror or Offeree, by written notice, if the Effective
Date shall not have occurred on or before 30 November 2001 and the party
seeking to terminate this Agreement pursuant to this Clause 14.1.2 shall not
have breached in any material respect its obligations under this Agreement in
any manner that shall have proximately contributed to the failure to consummate
the Transaction on or before such date;
14.1.3
(1) by either Offeror or Offeree, by written notice, if the Board of the
other party (through its own action or through any agency, or otherwise)
shall have made a Subsequent Determination; or
(2) by either Offeree or Offeror, by written notice, if the Board of
such party (through its own action or through any agency, or otherwise)
shall have made a Subsequent Determination in material compliance with
Clause 8.5 hereof; or
(3) by either Offeree or Offeror, by written notice, if upon a vote at a
duly held meeting of the shareholders of the other or any adjournment
thereof, a resolution required to be approved at such meeting for the
purposes of the Transaction shall be proposed and not approved by the
requisite majority; or
(4) subject in all cases to compliance with the City Code and the
requirements of the Panel, by either Offeror or Offeree, by written notice,
if any of the Conditions shall cease to be capable of being satisfied for
any reason provided that notice in writing of an intention to terminate
this Agreement pursuant to this provision giving details of the relevant
Condition and such reason shall be given to any party entitled to waive
satisfaction thereof whereupon such party shall be entitled within 14 days
of such notification to confirm its waiver of satisfaction of the relevant
Condition by reference to such reason, save that if the breach of such
condition is capable of remedy, such party shall be entitled to reserve its
rights in respect thereof and the other shall not be entitled to terminate
this Agreement by reason thereof;
14.1.4 by either Offeror or Offeree if there shall have been a breach by the
other of the obligations referred to in Clause 2 with respect to any of the
Conditions, which if not cured would cause the Conditions not to be satisfied,
and such breach shall not have been cured within 15 days after notice thereof
shall have been received by the party alleged to be in breach, subject in all
cases to compliance with the City Code and the requirements of the Panel.
14.1.5 by either Offeror or Offeree if there shall have been breach by the
other of the obligations referred to in Clause 8.5, by Offeree if there shall
have been a breach by Offeror of the provisions of Clause 8.15 and by Offeror
if there shall have been a breach by Offeree of the provisions of Clause 8.16
and, in each such case, such breach shall not have been cured within 15 days
after notice thereof shall have been received by the party alleged to be in
breach, subject in all cases to compliance with the City Code and the
requirements of the Panel.
If this Agreement is terminated pursuant to this Clause 14.1, this Agreement
shall terminate (except for Clauses 8.5.5, 8.11, 8.12, 9.2, 10, 11, 13, 14, 15,
16 and 17), and there shall be no other liability on the part of Offeree (on
the one hand) and Offeror (on the other hand) to the other. None of the
representations and warranties set forth in Appendix III of this Agreement
shall survive the Effective Time or the termination of this Agreement.
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14.2 Subject to the provisions of this Agreement which are expressly
provided to survive termination, if this Agreement is terminated by (a) either
party pursuant to Clauses 14.1.3(1) or 14.1.4, the other party shall pay to the
first party a fee equal to the Maximum Liability in cash or (b) by either party
pursuant to Clause 14.1.3(2), the terminating party shall pay to the other
party a fee equal to the Maximum Liability in cash, such payment in each case
to be made promptly, but in no event later than the fifth Business Day
following such termination pursuant to Clauses 14.1.3(1), 14.1.3(2) or 14.1.4
as the case may be less any payment previously made under Clause 8.5.
15. Notices
15.1 Any notice or other communication requiring to be given or served under
or in connection with this Agreement shall be in writing and may be delivered
by hand or by courier or sent by fax or by post to the party to be served at
its address stated in this Agreement or at such other address as it may have
notified to the other parties in accordance with this Clause 15.1. Any notice
or other document sent by post shall be sent by registered airmail, return
receipt requested (or any substantially equivalent service).
15.2 Any notice or document delivered or sent in accordance with Clause 15.1
shall be deemed to have been served:
15.2.1 if delivered by hand or by courier or by registered airmail post, at
the time of delivery; or
15.2.2 if sent by fax, at 10.00 am (local time at the destination) on the
Business Day at the destination after its transmission has been confirmed.
16. Miscellaneous
16.1 If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the maximum extent possible.
16.2 If a party defaults in the payment when due of any sum payable under
this Agreement, it's liability shall be increased to include interest on such
sum from the date when such payment is due until the date of actual payment at
a rate per annum of 2% above the base lending rate from time to time of
Barclays Bank PLC. Such interest shall accrue from day to day and shall be
included within the maximum amount determined under Clause 8.5.4.
16.3 The parties shall cooperate with each other and use (and shall cause
their respective Affiliates to use) all reasonable efforts to take or cause to
be taken all actions, and do or cause to be done all things, necessary, proper
or advisable on its part under this Agreement and applicable laws to consummate
and make effective the Transaction and the other transactions contemplated by
this Agreement as soon as reasonably practicable, including preparing and
filing as promptly as reasonably practicable all documentation to effect all
necessary notices, reports, applications and other filings and to obtain as
promptly as reasonably practicable all consents, registrations, approvals,
permits and authorizations necessary or advisable to be obtained from any third
party and/or any governmental entity in order to consummate the Transaction or
any of the other transactions contemplated by this Agreement.
16.4 This Agreement may be entered into in any number of counterparts and by
the parties to it on separate counterparts, each of which when so executed and
delivered shall be an original, but all the counterparts shall together
constitute one and the same instrument.
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16.5 This Agreement (including any Appendices hereto), the Offeree
Disclosure Schedule, the Offeror Disclosure Schedule, and the Confidentiality
Agreement, dated as of April 10, 2001, between the parties hereto, constitute
the entire agreement, and supersede and extinguish all other prior agreements,
draft agreements, undertakings, representations, warranties, promises,
assurances, understandings or arrangements of any nature whatsoever (both oral
and written), with respect to the subject matter hereof.
17. Governing Law
17.1 This Agreement shall be governed by and construed in accordance with
the laws of England. Each party irrevocably agrees that the courts of England
are to have non-exclusive jurisdiction to settle any dispute which may arise
out of or in connection with this Agreement.
17.2 Each party irrevocably submits to the jurisdiction of such courts and
waives any objection to proceedings in any such court on the ground of venue or
on the ground that the proceedings have been brought in an inconvenient forum.
This Clause 17.2 is for the benefit of each party and shall not limit its
rights to take proceedings in any other court of competent jurisdiction.
18. Third Party Rights
No person other than a party to this Agreement may enforce this Agreement by
virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise.
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IN WITNESS whereof this Agreement has been duly executed on the date first
mentioned on page 1.
/s/ Toni Schuh, Ph.D.
SIGNED by -------------------------
on behalf of
Sequenom, Inc.
/s/ Paul Kelly
SIGNED by -----------------------
on behalf of
Gemini Genomics PLC
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APPENDIX I
1. Timetable.
PROJECT COLOUR
- --------------------------------------------------------------------------------
Summary Timetable
(All dates are indicative only.)
May 2001 June 2001 July 2001
S M T W Th F S S M T W Th F S S M T W Th F S
1 2 3 4 5 1 2 1 2 3 4 5 6 7
6 7 8 9 10 11 12 3 4 5 6 7 8 9 8 9 10 11 12 13 14
13 14 15 16 17 18 19 10 11 12 13 14 15 16 15 16 17 18 19 20 21
20 21 22 23 24 25 26 17 18 19 20 21 22 23 22 23 24 25 26 27 28
27 28 29 30 31 24 25 26 27 28 29 30 29 30 31
Week Date UK Action US Action
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
Week 1 May 29 Merger agreement signed and Merger Agreement signed and
announced announced
- ----------------------------------------------------------------------------------------
Week As soon as First filing with the SEC
reasonably
practicable
- ----------------------------------------------------------------------------------------
Week June 27 SEC comments/confirmation of no
Thereafter ("S review
Day")
- ----------------------------------------------------------------------------------------
Week June 29 File Claim Form with court to
S Day + up to commence UK court process
7
- ----------------------------------------------------------------------------------------
Week July 6 Hearing of Leave to Convene
S Day + up to court meeting
28
- ----------------------------------------------------------------------------------------
Week July 16 Finalise Scheme Document post Finalise and post Proxy
As soon as final SEC comments and post Statement and Circular
reasonably Scheme Document
practicable
thereafter ("D
Day")
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PROJECT COLOUR
- --------------------------------------------------------------------------------
Summary Timetable
(continued)
(All dates are indicative only.)
August 2001 September 2001 October 2001
S M T W Th F S S M T W Th F S S M T W Th F S
1 2 3 4 30 1 1 2 3 4 5 6
5 6 7 8 9 10 11 2 3 4 5 6 7 8 7 8 9 10 11 12 13
12 13 14 15 16 17 18 9 10 11 12 13 14 15 14 15 16 17 18 19 20
19 20 21 22 23 24 25 16 17 18 19 20 21 22 21 22 23 24 25 26 27
26 27 28 29 30 31 23 24 25 26 27 28 29 28 29 30 31
Week Date UK Action US Action
- ---------------------------------------------------------------------------------------
Week August 16 UK EGM and court meeting US Shareholder Meeting (assumed
D Day + (additional time to cover ADR to be 30 days period between
required distribution and response) posting of the proxy Statement
notice periods and the shareholder meeting)
Thereafter Lodge court documents for
hearing of Application Notice
- ---------------------------------------------------------------------------------------
Week September 10 Petition hearing
As soon as
reasonably
practicable
thereafter
- ---------------------------------------------------------------------------------------
September 12 Final Court Order registered
As soon as with Companies Registrar
reasonably
practicable Scheme effective
thereafter
The specific dates shown above are indicative only, being dependent on the
timing of responses from the SEC, court availability and other logistical
issues to which the process will be subject that are outside the control of the
parties.
2. Announcement.
3. Undertakings of the directors of Offeree.
4. Warrant Variance
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APPENDIX II
SHARE OPTION PROPOSAL
The Scheme will extend to Offeree Shares issued upon exercise of options
under the Employee Share Option Schemes where the Offeree Shares are in issue
at or prior to the close of business on the Business Day before the date of the
Final Court Order. The Scheme will not extend to Offeree Shares issued on
exercise of options under the Employee Share Option Schemes after that time.
Options under the Employee Share Option Schemes will become exercisable for a
limited period after the Final Court Order. It is proposed that the Articles of
Association of Offeree will be amended so that Offeree Shares issued after that
time to any person other than Offeror or its nominee will be exchanged for
Offeror Stock on the same terms as provided for in the Scheme. As a result, any
person exercising options under the Employee Share Option Schemes in respect of
Offeree Shares after that time, whether as a result of the those options
becoming exercisable because the Court sanctions the Scheme or otherwise, will
receive Offeror Stock in place of those Offeree Shares on the same terms as
provided in the Scheme.
Offeror intends to offer optionholders under the Employee Share Option
Schemes the opportunity to elect to replace their existing unexercised options
with equivalent options over shares of Offeror Stock either under the exchange
of options terms of the Employee Share Option Schemes or, where no such terms
are provided, on a similar basis. The number of shares of Offeror Stock over
which option holders who make such an election will receive a replacement
option will be calculated by multiplying the Exchange Proportion of a share of
Offeror Stock by the number of Offeree Shares to which the replaced option
related, rounding to the nearest whole number of shares of Offeror Stock after
aggregating fractions. (For options under the UK Inland Revenue Approved Share
Option Scheme of Offeree, the number of shares over which option holders will
receive a replacement option and the exercise price for those options will be
determined by agreement with the UK Inland Revenue. The terms applicable to
such options are expected to be substantially similar to those applicable to
other options under these arrangements). The exercise price of each replacement
option will be calculated by applying the Exchange Proportion accordingly by
reference to the exercise price of the replaced option. The directors of
Offeree who hold options under the Offeree Share Option Schemes have undertaken
to elect to replace their existing options under these proposals.
Holders of options under the Employee Share Option Schemes will be notified
in due course about the effect of the Scheme on their options and of any
proposals which may made by Offeror in respect of their options.
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APPENDIX III
REPRESENTATIONS AND WARRANTIES
PART 1
REPRESENTATIONS AND WARRANTIES OF OFFEREE
Except as disclosed with appropriate Section references in a document dated
as of the date of this Agreement and delivered by Offeree to Offeror prior to
the execution and delivery of this Agreement (the "Offeree Disclosure
Schedule"), each of which exceptions shall be deemed to relate to and to
qualify only the particular representation or warranty set forth in the
corresponding Section reference and any other representation or warranty to
which the relevance of any such exception is reasonably apparent, and in order
to induce Offeror to enter into and perform this Agreement and the other
agreements and certificates that are required to be completed and executed
pursuant to this Agreement, Offeree represents and warrants to Offeror as
follows in this Part 1:
Section 1.1 Organization; Subsidiaries.
(a) Offeree and each Subsidiary of Offeree (i) is a corporation duly
organized, validly existing and in good standing (with respect to
jurisdictions that recognize such concept) under the laws of its
jurisdiction of incorporation, (ii) has the requisite corporate or other
power and authority and all necessary government approvals to own, lease
and operate its assets and property and to carry on its business as now
being conducted, and (iii) is duly qualified or licensed as a foreign
corporation to do business, and is in good standing (with respect to
jurisdictions that recognize such concept), in each jurisdiction where the
character of the properties owned, leased or operated by it or the nature
of its business makes such qualification or licensing necessary.
(b) A true and complete list of all the Subsidiaries of Offeree is set
forth in Section 1.1(b) of the Offeree Disclosure Schedule. Offeree is the
owner of all outstanding shares of capital stock of each Subsidiary of
Offeree and all such shares are duly authorized, validly issued, fully paid
and nonassessable. All of the outstanding shares of capital stock of each
Subsidiary of Offeree are owned by Offeree free and clear of all
Encumbrances. There are no outstanding subscriptions, options, warrants,
puts, calls, rights, exchangeable or convertible securities or other
commitments or agreements of any character relating to the issued or
unissued capital stock or other securities of any Subsidiary of Offeree, or
otherwise obligating Offeree or any Subsidiary of Offeree to issue,
transfer, sell, purchase, redeem or otherwise acquire any such securities.
(c) Neither Offeree nor any Subsidiary of Offeree directly or indirectly
owns any equity or similar interest in, or any interest convertible into or
exchangeable or exercisable for, any equity or similar interest in, any
corporation, partnership, limited liability company, joint venture or other
business association or entity (other than the Subsidiaries of Offeree).
Section 1.2 Memorandum of Association and Articles of Association. Offeree
has delivered or otherwise made available to Offeror a true and correct copy of
the Memorandum of Association, Articles of Association and other charter
documents, as applicable, of Offeree and each Subsidiary of Offeree, each as
amended to date and as currently in force full and effect. Neither Offeree nor
any Subsidiary of Offeree is in violation of any of the provisions of its
Memorandum of Association, Articles of Association or equivalent organizational
documents.
Section 1.3 Capital Structure.
(a) The share capital of Offeree is (Pounds)6,000,000, comprised of
120,000,000 Offeree Shares, of which 64,742,260 shares were issued as of
the date of this Agreement. As of the date of this Agreement, other than
the Warrants, there are no other outstanding shares of capital stock or
voting securities of Offeree and no outstanding commitments to issue any
shares or voting securities of Offeree other than pursuant to the exercise
of options outstanding as of the date hereof under the Offeree Employee
Share Option Schemes.
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(b) All outstanding Offeree Shares are duly authorized, validly issued,
fully paid and nonassessable and are free of any Encumbrances other than
any Encumbrances created by or imposed upon the holders thereof, and are
not subject to preemptive rights or rights of first refusal created by
statute, the Memorandum of Association or the Articles of Association of
Offeree or any agreement to which Offeree is a party or by which it is
bound. All outstanding Offeree Shares were issued in compliance with all
applicable laws.
(c) As of the date of this Agreement, Offeree had issued (on a post-
split basis) an aggregate of 3,905,420 options to purchase Offeree Shares
and 2,063,043 options to purchase Offeree ADSs pursuant to the Share Option
Plan of Offeree, Parts A and B, the Savings Related Share Option Scheme of
Offeree, the International Executive Share Option Plan of Offeree and
individual option deeds, of which 3,653,980 and 2,041,556 are outstanding,
respectively. Section 1.3 of the Offeree Disclosure Schedule sets forth, as
of the date of this Agreement, the number of outstanding options to acquire
Offeree Shares pursuant to the Offeree Employee Share Option Schemes and
the applicable exercise prices. Section 1.3 of the Offeree Disclosure
Schedule sets forth a true and complete list as of the date of this
Agreement of all holders of outstanding options under each of the Offeree
Employee Share Option Schemes, including the number of Offeree Shares
subject to each such option, the exercise or vesting schedule, the exercise
price per share and the term of each such option. On the Effective Date,
Offeree shall deliver to Offeror an updated Section 1.3 of the Offeree
Disclosure Schedule that contains information of the type referred to in
the preceding sentence that is current as of a date as close to the
Effective Date as is reasonably practicable. All outstanding options to
purchase Offeree Shares have been duly authorized by the Offeree Board or a
committee thereof, are validly issued, and were issued in compliance with
all applicable securities laws.
(d) Offeree has not taken any action that would result in the
accelerated vesting, exercisability or payment of any options to purchase
Offeree Shares as a consequence of the execution of, or consummation of the
transactions contemplated by, this Agreement.
(e) Except (i) for the rights created pursuant to this Agreement, (ii)
for or with respect to rights granted under the Offeree Employee Share
Option Schemes, (iii) as set forth in this Section 1.3, as of the date of
this Agreement, other than the Warrants, there are no options, warrants,
calls, rights, commitments, agreements or arrangements of any character to
which Offeree or any Subsidiary of Offeree is a party or by which Offeree
or any Subsidiary of Offeree is bound relating to the issued or unissued
capital stock of Offeree or any Subsidiary of Offeree or obligating Offeree
or any Subsidiary of Offeree to issue, deliver, sell, repurchase or redeem,
or cause to be issued, delivered, sold, repurchased or redeemed, any shares
of Offeree or any Subsidiary of Offeree or obliging Offeree or any
Subsidiary of Offeree to grant, extend, accelerate the vesting of, change
the price of, or otherwise amend or enter into any such option, warrant,
call, right, commitment or agreement.
(f) Except as set forth on Section 1.3(f) of the Offeree Disclosure
Schedule, as of the date of this Agreement, there are no contracts,
commitments or agreements relating to rights of refusal, co-sale rights or
registration rights granted by Offeree with respect to any Offeree Shares.
(g) As of the date of this Agreement, there are no contracts,
commitments or agreements relating to voting of Offeree Shares (i) between
or among Offeree and any of the Offeree Shareholders and (ii) to the
Knowledge of Offeree, between or among any of the Offeree Shareholders.
True and complete copies of all Offeree Employee Share Option Schemes and
forms of stock option agreements thereunder have been made available to
Offeror and such Offeree Employee Share Option Schemes and agreements have
not been amended, modified or supplemented, and there are no agreements to
amend, modify or supplement such Offeree Employee Share Option Schemes and
agreements in any case from the form made available to Offeror.
Section 1.4 Authority and Enforceability. Offeree has all requisite
corporate power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby, subject, in the case of consummation of
the Transaction, to the approval of the Transaction (and related resolutions)
by the Offeree Shareholders. The execution and delivery of this Agreement and
the consummation by Offeree of the
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transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Offeree, subject only to the approval of the
Transaction (and related resolutions) by the Offeree Shareholders. The
affirmative vote of the holders of a majority in number representing three-
fourths in value of the Offeree Shares present and voting, either in person or
by proxy at the Court Meeting and the affirmative vote of the Offeree
Shareholders required to pass any resolutions required to implement the
Transaction and to amend the Articles of Association of Offeree in connection
therewith at the Extraordinary General Meeting, are the only votes of the
holders of any of Offeree's capital stock necessary to adopt this Agreement and
approve the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Offeree and, assuming due authorization, execution
and delivery by Offeror, constitutes the valid and binding obligation of
Offeree enforceable against Offeree in accordance with its terms, except as
enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium and similar laws, both state and federal, affecting
the enforcement of creditors' rights or remedies in general as from time to
time in effect or (b) the exercise by courts of equity powers (regardless of
whether enforceability is considered in a proceeding at law or in equity).
Section 1.5 No Conflicts; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Offeree does not,
and the consummation by Offeree of the transactions contemplated hereby
will not, conflict with, or result in a violation of, any provision of the
Memorandum of Association or Articles of Association of Offeree or any
Subsidiary of Offeree, as amended to date and as currently in full force
and effect. The execution and delivery of this Agreement by Offeree does
not, and the consummation by Offeree of the transactions contemplated
hereby will not, conflict with, or result in a material violation of, or
material default under (with or without notice or lapse of time, or both),
or give rise to a right of termination, cancellation or acceleration of any
obligation or loss of any material benefit under, any material mortgage,
indenture, lease, contract or other material agreement or instrument,
permit, concession, franchise, license, judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to Offeree or any Subsidiary
of Offeree or any of their properties or assets. Section 1.5 of the Offeree
Disclosure Schedule lists all consents, waivers and approvals under any of
Offeree's or any of its Subsidiaries' material agreements, contracts,
licenses, leases or other obligations in effect as of the date of this
Agreement required to be obtained in connection with the consummation of
the transactions contemplated hereby.
(b) No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission
or other governmental authority or instrumentality, foreign or domestic
("Governmental Entity"), is required to be obtained or made, at or prior to
the Effective Date, by or with respect to Offeree or any Subsidiary of
Offeree in connection with the execution and delivery of this Agreement by
Offeree or the consummation by Offeree of the transactions contemplated
hereby, except for (i) the Final Court Order, (ii) such consents,
approvals, orders, authorizations, registrations, declarations and filings
as may be required under Exchange Act, the Securities Act, applicable state
securities laws and the securities (or related) laws of any foreign
country, (iii) such filings as may be required under the rules and
regulations of NASDAQ, (iv) such filings as may be required under the Hart-
Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and any non-U.S. competition laws and (v) such filings as may be
required pursuant to the City Code, the Registrar of Companies and the
Companies Court.
Section 1.6 SEC Filings; Offeree Consolidated Financial Statements.
(a) The Registration Statement on Form F-1 filed by Offeree with the SEC
on July 20, 2000 (the "Form F-1") and each registration statement, report
and accounts, proxy statement or information statement prepared by it or
its Subsidiaries, each in the form (including exhibits, annexes and any
amendments thereto) filed with the SEC thereafter (collectively, including
any such reports filed subsequent to the date hereof, the "Offeree
Reports") did not, and any Offeree Reports filed with the SEC subsequent to
the date hereof will not, contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements made therein, in light of the circumstances in which
they were made, not misleading; provided, that Offeree makes no
representation or
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warranty with respect to any information with respect to Offeror provided
to it by Offeror in writing for inclusion in any Offeree Report filed after
the date of this Agreement. As of their respective dates, the Offeree
Reports (i) were or will be prepared in all material respects in accordance
with the requirements of the Securities Act and/or the Exchange Act, as the
case may be, and the rules and regulations thereunder, (ii) did not at the
time they were filed, or will not at the time they are filed, contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
made therein, in the light of the circumstances under which they were made,
not misleading, and (iii) did not at the time they were filed, or will not
at the time they are filed, omit any documents required to be filed as
exhibits thereto.
(b) No Subsidiary of Offeree is required to file any form, report or
other document with the SEC.
(c) Each of the consolidated financial statements (including, in each
case, any notes thereto) contained in the Offeree Reports (collectively,
the "Offeree Financials") was or will be prepared in accordance with the
United States generally accepted accounting principles ("GAAP") applied on
a consistent basis throughout the periods indicated (except as may be
indicated in the notes thereto) and each fairly presented or will fairly
present the consolidated financial position, results of operations and cash
flows of Offeree and its consolidated Subsidiaries as of the respective
dates thereof and for the respective periods indicated therein in
accordance with GAAP (subject, in the case of unaudited financial
statements, to normal and recurring year-end adjustments and the absence of
certain footnote disclosures in accordance with GAAP).
Section 1.7 Absence of Undisclosed Liabilities. Except as disclosed in the
Offeree Reports filed prior to the date of this Agreement, neither Offeree nor
any Subsidiary had at March 31, 2001 or between that date and the date hereof
has incurred, any obligations or liabilities of any nature (matured or un-
matured, fixed or contingent) other than those (a) set forth or adequately
provided for in the Balance Sheet as at March 31, 2001 (including the notes
thereto, the "Offeree Balance Sheet"), (b) not required to be set forth in the
Offeree Balance Sheet under GAAP, (c) incurred in the ordinary course of
business since the date of the Offeree Balance Sheet and consistent with past
practice, and (d) incurred in connection with the execution of this Agreement.
Section 1.8 Absence of Certain Changes. Except as contemplated by this
Agreement or as disclosed in the Offeree Reports filed prior to the date of
this Agreement, between March 31, 2001 (the "Offeree Balance Sheet Date") and
the date of this Agreement, there has not been, occurred or arisen any of the
events specified in Conditions 3(a), (c), (e), (f) or (g) in relation to
Offeree or any member of the Offeree Group.
Section 1.9 Litigation. Except as disclosed in the Offeree Reports filed
prior to the date of this Agreement, there is no private or governmental
action, suit, proceeding or arbitration (or to the Knowledge of Offeree a
governmental investigation) pending before any agency, court or tribunal,
foreign or domestic, or, to the Knowledge of Offeree, threatened, against
Offeree or any Subsidiary of Offeree or any of their respective properties or
any of their respective officers or directors (in their capacities as such)
which would reasonably be expected to result in an injunction or damages
payable by Offeree or any Subsidiary of Offeree in excess of $100,000. There
is no judgment, decree or order against Offeree or any Subsidiary of Offeree
or any of their respective directors or officers (in their capacities as such)
that would reasonably be expected to prevent, enjoin, alter or delay any of
the transactions contemplated by this Agreement.
Section 1.10 Property.
(a) Offeree and each Subsidiary of Offeree has good and marketable title
to all of its respective material real and personal property reflected in
the Offeree Balance Sheet or acquired after the Offeree Balance Sheet Date
(except real and personal property sold or otherwise disposed of since the
Offeree Balance Sheet Date in the ordinary course of business), or with
respect to leased real or personal property, valid leasehold interests in
such leased real or personal property, free and clear of all Encumbrances,
except (i) Encumbrances related to current taxes not yet due and payable,
(ii) such imperfections of title,
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Encumbrances and easements as do not and will not detract from or interfere
with the use of the properties subject thereto or affected thereby, or
otherwise impair business operations involving such properties, and (iii)
Encumbrances securing debt that is reflected on the Offeree Balance Sheet.
The plants, property and equipment of Offeree and its Subsidiaries that are
used in the operations of their businesses are in good operating condition
and repair. All properties used in the operations of Offeree and its
Subsidiaries are reflected in the Offeree Balance Sheet to the extent GAAP
require the same to be reflected. Section 1.10(a) of the Offeree Disclosure
Schedule sets forth a true, correct and complete list of all real property
owned or leased by Offeree and by each Subsidiary of Offeree. Such leases
are in good standing and are valid and effective in accordance with their
respective terms (except as enforcement thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium and similar laws,
both state and federal, affecting the enforcement of creditors' rights or
remedies in general as from time to time in effect or (ii) the exercise by
courts of equity powers), and there is not under any such leases any
existing material default or material event of default (or event that with
notice or lapse of time, or both, would constitute a material default).
(b) All material equipment owned or leased by Offeree and its
Subsidiaries is, taken as a whole, (i) adequate for the conduct of
Offeree's business, consistent with its past practice, and (ii) in good
operating condition (except for ordinary wear and tear).
Section 1.11 Intellectual Property.
(a) Section 1.11 of the Offeree Disclosure Schedule lists (i) all
patents and patent applications, all applications for trademarks, trade
names and service marks, and all material registered trademarks, trade
names, service marks, and copyrights that are owned or purported to be
owned by Offeree or any Subsidiary of Offeree, and such list specifies, as
applicable, the jurisdictions by or in which each such patent, trademark,
trade name, service mark or copyright has been issued or registered or in
which any application for such issuance and registration has been filed,
(ii) all material licenses, sub-licenses and other agreements as to which
Offeree or any Subsidiary of Offeree is a party and pursuant to which any
person is authorized to use any Offeree Intellectual Property, and (iii)
all material licenses, sub-licenses and other agreements to which Offeree
or any Subsidiary of Offeree is a party and pursuant to which Offeree or
any Subsidiary of Offeree is authorized to use any third-party Intellectual
Property that is included in the Offeree Intellectual Property (third-party
Intellectual Property included in the Offeree Intellectual Property being
referred to in this Agreement as "Offeree Third-Party Intellectual Property
Rights"). All agreements described in Section 1.11 of the Offeree
Disclosure Schedule as they relate to Sections 1.11(a)(ii) and (iii) are
valid, enforceable and legally binding, subject to the effect or
availability of rules of law governing specific performance, injunctive
relief or other equitable remedies (regardless of whether any such remedy
is considered in a proceeding at law or in equity), and to Offeree's
Knowledge, neither the Offeree nor any Subsidiary of Offeree and no third
party is in material breach of any such agreement described in Section 1.11
of the Offeree Disclosure Schedule. For purposes of this Section 1.11,
"Intellectual Property" means all United States, state and foreign
intellectual property, including, but not limited to all (1) patents,
inventions, discoveries, processes and designs; copyrights and works of
authorship in any media; trademarks, service marks, domain names, trade
names, trade dress and other source indicators; trade secrets, ideas,
algorithms, samples, media and/or cell lines, formulae, processes, data,
database rights, computer software applications (in both source code and
object code form) and other confidential or proprietary information, as
more fully described in Schedule 1.11 (the "Trade Secrets"); (2)
registrations, applications and recordings related thereto; (3) rights to
obtain renewals, extensions, continuations or similar legal protections
related thereto; and (4) rights to bring an action at law or in equity for
the infringement or other impairment thereof. "Offeree Intellectual
Property" means the Intellectual Property that is material to the business
of Offeree or any Subsidiary of Offeree as currently conducted by Offeree
or any Subsidiary of Offeree.
(b) To the Knowledge of Offeree and except as otherwise set forth in
Section 1.11 of the Offeree Disclosure Schedule, Offeree and each of its
Subsidiaries own all right, title and interest in and to (free
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and clear of any Encumbrances other than Encumbrances related to taxes not
yet due and payable), or are licensed to use, or otherwise possess legally
enforceable rights in the Offeree Intellectual Property, subject only to
the license agreements to which Offeree is a party and pursuant to which
Offeree licenses others to use any such Offeree Intellectual Property as
set forth in Schedule 1.11 of the Offeree Disclosure Schedule.
(c) To the Knowledge of Offeree and except as otherwise set forth in
Section 1.11 of the Offeree Disclosure Schedule, there is no unauthorized
use, disclosure, infringement or misappropriation of any Offeree
Intellectual Property rights, by any third party, including any employee or
former employee of Offeree or any Subsidiary of Offeree. To the Knowledge
of Offeree, except as otherwise set forth in Section 1.11 of the Offeree
Disclosure Schedule, neither Offeree nor any Subsidiary of Offeree has
entered into any agreement to indemnify any other person against any charge
of infringement of any Intellectual Property, other than indemnification
provisions contained in purchase orders or agreements for the sale, license
or distribution of any Offeree Intellectual Property or products containing
Offeree Intellectual Property arising in the ordinary course of business.
(d) The execution and delivery of this Agreement by Offeree and the
consummation by Offeree of the transactions contemplated hereby will not,
except as disclosed in Section 1.11 of the Offeree Disclosure Schedule with
respect to third party consents, cause Offeree or any Subsidiary of Offeree
to breach any material license, sub-license or other agreement relating to
the Offeree Intellectual Property, and will not entitle any other party to
any such license, sub-license or agreement to terminate or modify such
license, sub-license or agreement.
(e) All issued patents and registered trademarks, service marks and
copyrights held by Offeree or any Subsidiary of Offeree are valid and
subsisting and there is no assertion or pending claim challenging the
validity or effectiveness of any Offeree Intellectual Property, and to the
Knowledge of Offeree, no such challenge is being threatened. Neither
Offeree nor any of its Subsidiaries is a party to any suit, action or
proceeding that involves a claim against Offeree or any of its Subsidiaries
of infringement or violation of any Intellectual Property of any third
party, nor, to the Knowledge of Offeree, is any such suit, action or
proceeding being threatened against Offeree or any of its Subsidiaries. To
the Knowledge of Offeree, the conduct of the business of Offeree and each
Subsidiary of Offeree as such business is described in Offeree's latest
Offeree Report filed prior to the date of this Agreement does not conflict
with or infringe, and no one has asserted to Offeree that such conduct of
the business conflicts with or infringes any Intellectual Property rights
of any third party. To the Knowledge of Offeree, there are no facts or
alleged facts which would reasonably serve as a basis for any claim that
Offeree or any Subsidiary of Offeree does not have the right to use and to
transfer the right to use, free of any rights or claims of others, all
Offeree Intellectual Property rights in the development, manufacture, sale,
licensing, use or provision of any material products or services of Offeree
or any Subsidiary of Offeree as presently being developed, manufactured,
sold, licensed or used in the business of Offeree as such business is
described in Offeree's latest Offeree Report filed prior to the date of
this Agreement. Neither Offeree nor any Subsidiary of Offeree nor any
licensor of Offeree or any Subsidiary of Offeree is bringing any action,
suit or proceeding for infringement of Offeree Intellectual Property or
breach of any license or agreement involving Offeree Intellectual Property
against any third party. There are no pending or threatened interference,
re-examinations, oppositions or nullities involving any patents, patent
rights or applications therefor included in the Offeree Intellectual
Property, except such as may have been commenced by Offeree or any
Subsidiary of Offeree as disclosed in Section 1.11 of the Offeree
Disclosure Schedule.
(f) Each Offeree Participating Developer (as defined below) has signed
an employment and confidentiality agreement, including an intellectual
property assignment, transferring to Offeree or any Subsidiary of Offeree
any and all right, title and interest that the named Offeree Participating
Developer may have or acquire in and to the Offeree Intellectual Property.
"Offeree Participating Developer" means any employee of Offeree or a
Subsidiary of Offeree who contributed and/or is contributing to the
creation or development of Offeree Intellectual Property. Offeree has made
available to Offeror the standard form of such employment and
confidentiality agreement used by Offeree and its Subsidiaries with Offeree
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Participating Developers, and any employment and confidentiality agreement
entered into by Offeree or any of its Subsidiaries with any Offeree
Participating Developer that differs from the standard form of such
agreement in any material way. No Offeree Participating Developer has any
right, claim or interest in or with respect to any Offeree Intellectual
Property.
(g) Offeree has taken all commercially reasonable steps to protect and
preserve the confidentiality of all Trade Secrets and has taken all
measures it deems reasonable and appropriate to protect and preserve the
confidentiality of all other Offeree Intellectual Property not otherwise
protected by patents, patent applications or copyright ("Offeree
Confidential Information"). Each of Offeree and its Subsidiaries has a
policy requiring each employee to execute an employment and confidentiality
agreement substantially in Offeree's standard form. Each employee of
Offeree or any of its Subsidiaries has signed an employment and
confidentiality agreement with Offeree or its Subsidiaries.
Section 1.12 Environmental Matters.
(a) Except as set forth in Section 1.12 of the Offeree Disclosure
Schedule, (i) Offeree and its Subsidiaries have complied in all material
respects with all applicable Environmental Laws; (ii) to the Knowledge of
Offeree, the properties currently owned, leased or operated by Offeree and
its Subsidiaries (including soils, and land under and/or around any
building or other structure, groundwater, surface water, buildings or other
structures) are not contaminated with any Hazardous Substance which is
likely to result in any material liability; (iii) to the Knowledge of
Offeree, neither Offeree nor any of its Subsidiaries is subject to material
liability for any Hazardous Substance disposal or contamination on any
property owned, leased or operated or formerly owned, leased or operated by
Offeree or any of its Subsidiaries or on any third party property or as a
result of any Hazardous Substance having been transported from any of the
properties owned or operated or formerly owned and operated by Offeree or
any of its Subsidiaries; (iv) to the Knowledge of Offeree, neither Offeree
nor any of its Subsidiaries has received any notice, demand, letter, claim
or request for information from a Governmental Entity indicating that
Offeree or any of its Subsidiaries may be in violation of or subject to
liability under any Environmental Law; and (v) neither Offeree nor any of
its Subsidiaries is subject to any material orders, decrees, injunctions or
other arrangements with any Governmental Entity or any material indemnity
or other agreement with any third party relating to any material liability
in relation to] Environmental Law or Hazardous Substances.
(b) As used herein, the term "Environmental Law" means any Law relating
to: (i) the protection, investigation or restoration of the environment,
health and safety, or natural resources, (ii) the handling, use, presence,
disposal, release or threatened release of any Hazardous Substance, or
(iii) noise, odor, wetlands, pollution or contamination to persons or
property.
(c) As used herein, the term "Hazardous Substance" means any substance
that is: (i) listed, classified or regulated pursuant to any Environmental
Law; (ii) any petroleum product or by-product, asbestos-containing
material, lead-containing paint or plumbing, polychlorinated biphenyls,
radioactive materials or radon; or (iii) any other substance which may be
the subject of regulatory action by any Government Authority pursuant to
any Environmental Law.
Section 1.13 Taxes; Tax Treatment of Transaction.
(a) Except as would not, individually or in the aggregate, have a
material adverse effect on Offeree, (i) all Offeree Tax Returns required to
be filed with any Taxing Authority by, or with respect to, Offeree and its
Subsidiaries have been filed in accordance with all applicable laws; (ii)
Offeree and its Subsidiaries have timely paid all Taxes shown to be due on
such returns, (iii) all net operating losses and all net operating carry
forwards shown on the Tax Returns of Offeree and its subsidiaries are true
and correct in all material respects, and (iv) as of the date or time of
filing, the Offeree Tax Returns filed were true, correct and complete in
all material respects; (v) Offeree and its Subsidiaries have made an
adequate provision (determined in accordance with GAAP) for all Taxes
payable by Offeree and its Subsidiaries for which no Offeree Tax Return has
yet been filed; (vi) there is no action, suit, proceeding, audit or claim
now proposed or pending against or with respect to Offeree or any of its
Subsidiaries in respect of any Tax
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(other than Taxes which are being contested in good faith and for which
adequate reserves (determined in accordance with GAAP) are reflected on the
Offeree Balance Sheet); (vii) no waiver or extension of any statute of
limitations is in effect with respect to any Tax Return of Offeree or any
of its Subsidiaries; and (viii) to the best of Offeree's Knowledge and
belief, neither Offeree nor any of its Subsidiaries is liable for any Tax
imposed on any entity other than such Person. Offeree has made available to
Offeror accurate and complete copies of all material Offeree Tax Returns
for the years ending March 31, 1998, 1999 and 2000.
(b) None of the Offeree, or any of its Affiliates, has taken any action
or knows of any fact, arrangement, agreement, plan or other circumstance
that would be reasonably likely to prevent the Transaction from qualifying
as a tax-free reorganization within the meaning of Section 368(a) of the
Code.
(c) As used in this Agreement, (i) the term "Tax" shall mean, with
respect to any person, (a) all taxes, domestic or foreign, including
without limitation any income (net, gross or other, including recapture of
any tax items such as investment tax credits), alternative or add-on
minimum tax, gross income, gross receipts, gains, sales, use, leasing,
lease, user, ad valorem, transfer, recording, franchise, profits, property
(real or personal, tangible or intangible), fuel, license, withholding on
amounts paid to or by such Person, payroll, employment, unemployment,
social security, excise, severance, stamp, occupation, premium,
environmental or windfall profit tax, custom, duty, value added or other
tax, or other like assessment or charge of any kind whatsoever, together
with any interest, levies, assessments, charges, penalties, additions to
tax or additional amounts imposed by any Taxing Authority, (b) any joint or
several liability of such Person with any other Person for the payment of
any amounts of the type described in (a) of this definition, and (c) any
liability of such Person for the payment of any amounts of the type
described in (a) as a result of any express or implied obligation to
indemnify any other Person; (ii) the term "Tax Return(s)" shall mean all
returns, consolidated or otherwise, report or statement (including without
limitation informational returns), required to be filed with any Taxing
Authority; and (iii) the term "Taxing Authority" shall mean any authority
of competent jurisdiction responsible for the imposition of any Tax.
Section 1.14 Employee Benefit Plans.
(a) Section 1.14 of the Offeree Disclosure Schedule contains a true and
complete list of each (i) deferred compensation and each incentive
compensation, equity compensation plan, "welfare" plan, fund or program
(within the meaning of section 3(1) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) or any similar welfare benefit
plan under the laws of any foreign jurisdiction, whether or not excluded
from coverage under specific titles or subtitles of ERISA; (ii) plan or
arrangement in the United Kingdom providing "relevant benefits" (within the
meaning of section 612 of the Income and Corporation Taxes Act 1988
("ICTA"), ignoring the exception contained in that section) (a "UK Benefit
Plan") including any arrangement for the making by Offeree of any payment
of contributions to, or remuneration specifically referable to
contributions to, any personal pension scheme, retirement annuity contract
or similar arrangement; (iii) "pension" plan, fund or program (within the
meaning of section 3(2) of ERISA) or any similar pension benefit plan under
the laws of any foreign jurisdiction, whether or not excluded from coverage
under specific titles or subtitles of ERISA; (iv) employment, consulting,
termination or severance agreement; and (v) other employee benefit plan,
fund, program, agreement or arrangement, in each case, that is, or has been
within the last 5 years, sponsored, maintained or contributed to or
required to be contributed to by Offeree or by any trade or business,
whether or not incorporated (an "Offeree ERISA Affiliate"), that together
with Offeree would be deemed a "single employer" within the meaning of
section 4001(b) of ERISA or section 414(b), (c), (m) or (o) of the Code, or
to which Offeree or an Offeree ERISA Affiliate is party, whether written or
oral, for the benefit of any employee or former employee of Offeree or any
Subsidiary of Offeree (collectively, the "Offeree Plans").
(b) With respect to each Offeree Plan, the Offeree has heretofore
delivered or made available to Offeror true and complete copies of the
Offeree Plan and any amendments thereto, any related trust or other funding
vehicle, any reports or summaries required under ERISA or the Code, any
related contracts,
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including service provider agreements, insurance contracts, minimum premium
contracts, stop-loss agreements, subscription and participation agreements
and recordkeeping agreements and the most recent determination letter
received from the Internal Revenue Service with respect to each Offeree
Plan intended to qualify under Section 401 of the Code.
(c) Each UK Benefit Plan is an exempt approved scheme within the meaning
of section 592(1) of ICTA. Each Offeree Plan has been operated and
administered in all material respects in accordance with its terms and
applicable law, including but not limited to ERISA and the Code and each
Offeree Plan intended to be "qualified" within the meaning of section
401(a) of the Code is so qualified and the trusts maintained thereunder are
exempt from taxation under section 501(a) of the Code.
(d) Except as contemplated by this Agreement, Offeree does not have any
plan or commitment to create any plan, fund or program (within the meaning
of section 3(1) of ERISA) or to modify or change any existing Offeree Plan
and there has been no amendment to, written interpretation or announcement
(whether or not written) by Offeree relating to, or change in participation
or coverage, under any Offeree Plan which would materially increase the
expense of maintaining such Offeree Plan above the level of expense
incurred with respect to that Offeree Plan for the most recent fiscal year.
(e) No liability under Title IV or section 302 of ERISA has been
incurred by Offeree or any Offeree ERISA Affiliate that has not been
satisfied in full, and no condition exists that presents a material risk to
Offeree or any Offeree ERISA Affiliate of incurring any such liability,
other than liability for premiums due the Pension Benefit Guaranty
Corporation (which premiums have been paid when due).
(f) There are no pending, threatened or anticipated claims by or on
behalf of any Offeree Plan, by any employee or beneficiary covered under
any such Offeree Plan, or otherwise involving any such Offeree Plan (other
than routine claims for benefits).
(g) With respect to each Offeree Plan constituting a group health plan
within the meaning of Section 4980B(g)(2) of the Code, the provisions of
section 4980B of the Code and Sections 601-609 of ERISA have been complied
with in all material respects.
Section 1.15 Material Contracts. Except as otherwise set forth in the
Offeree Reports filed prior to the date of this Agreement or Section 1.15 of
the Offeree Disclosure Schedule, neither Offeree nor any of its Subsidiaries is
a party to or is bound by any of the following as of the date of this
Agreement:
(a) any agreement under which Offeree or any of its Subsidiaries have
continuing obligations to market, distribute, develop, license or
collaborate in respect of, any product (proprietary or otherwise),
technology or service and that may not be canceled without material penalty
upon ninety (90) days' or less notice, or any agreement pursuant to which
Offeree or any of its Subsidiaries have continuing obligations to jointly
develop any intellectual property that will not be owned by Offeree or any
of its Subsidiaries and that may not be canceled without material penalty
upon ninety (90) days' or less notice;
(b) any agreement, contract or commitment providing for the disposition
or acquisition (by license or otherwise) by Offeree or any of its
Subsidiaries after the date of this Agreement of any assets not in the
ordinary course of business or pursuant to which Offeree has any ownership
interest in any corporation, partnership, joint venture or other business
enterprise other than its Subsidiaries;
(c) any agreement, contract or commitment to license any third party to
manufacture or reproduce any Offeree or Subsidiary product, service or
technology; or
(d) any employment or consulting agreement, contract or commitment with
any employee, consultant or member of the Offeree Board, other than those
that are terminable by Offeree or any of its Subsidiaries on no more than
one calendar month's notice without liability or financial obligation,
except to the extent general principles of wrongful termination law may
limit Offeree's or any of its Subsidiaries' ability to terminate employees
at will;
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(e) any agreement or plan, including any stock option plan, stock
appreciation right plan or stock purchase plan, any of the benefits of
which will be increased, or the vesting of benefits of which will be
accelerated, by the occurrence of any of the transactions contemplated by
this Agreement or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated by this
Agreement;
(f) other than as set forth in Offeree's organizational documents (or
those of its Affiliates), any agreement of indemnification or any guaranty
with or for the benefit of any officer or director of Offeree;
(g) any agreement, contract or commitment that has or could reasonably
be expected to have the effect of prohibiting or materially impairing any
current or future business practice of Offeree or any Subsidiary of
Offeree, any acquisition of property by Offeree or any Subsidiary of
Offeree or the overall conduct of business by Offeree or any Subsidiary of
Offeree as currently conducted or as proposed to be conducted by Offeree or
by any Subsidiary, or under which Offeree or any Subsidiary of Offeree is
restricted from selling, licensing or otherwise distributing any of its
products to any class of customers, in any geographic area, during any
period of time or in any segment of the market; and
(h) any other agreement, contract or commitment that would constitute a
"material contract" under Item 601 of Regulation S-K.
Neither Offeree nor any of its Subsidiaries nor, to the Knowledge of Offeree
any other party to an Offeree Contract (as defined below) is in breach,
violation or default under, and neither Offeree nor any of its Subsidiaries has
received notice that it is in material breach, violation or default under, any
of the material terms or conditions of any of the agreements, contracts or
commitments to which Offeree or any of its Subsidiaries is a party or by which
it is bound that are required to be disclosed in the Offeree Disclosure
Schedule pursuant to clauses (a) through (h) above or pursuant to Section 1.11
(any such agreement, contract or commitment, an "Offeree Contract") in such a
manner as would permit any other party to cancel or terminate any such Offeree
Contract, or would reasonably be expected to entitle any other party to obtain
material damages or other material remedies. Section 1.15 of the Offeree
Disclosure Schedule sets forth a true and complete list of all Offeree
Contracts that are either material to its business or involve dollar amounts
greater than $100,000.
Section 1.16 Interested Party Transactions. Other than as set forth on
Section 1.16 of the Offeree Disclosure Schedule, neither Offeree nor any
Subsidiary of Offeree is indebted to any director, officer, employee or agent
of Offeree or any Subsidiary of Offeree (except for amounts due as normal
salaries and bonuses and other employee benefits and in reimbursement of
ordinary expenses), and no such person is indebted to Offeree or any Subsidiary
of Offeree.
Section 1.17 Compliance with Laws. Each of Offeree and its Subsidiaries has
complied in all material respects with, is not in material violation of, and,
since January 1, 1998, has not received any notices of material violation with
respect to, any federal, state, local or foreign statute, law or regulation
with respect to the conduct of its business or the ownership or operation of
its business.
Section 1.18 Sales and Assets in the United States. Offeree, together with
all of its Subsidiaries and any other entities controlled by it for purposes of
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (i) holds
assets in the United States with an aggregate book value of less than $15
million (as determined by reference to its most recent regularly prepared
balance sheet or the most recent regularly prepared balance sheets of it and
all controlled entities if not all results are consolidated) and (ii) made
aggregate sales in or into the United States of less than $25 million in its
most recent fiscal year.
Section 1.19 Insurance.
(a) Section 1.19 of the Offeree Disclosure Schedule accurately sets
forth, with respect to each insurance policy maintained by or at the
expense of, or for the direct or indirect benefit of, Offeree or any
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of its Subsidiaries: (i) the name of the insurance carrier that issued such
policy and the policy number of such policy; (ii) whether such policy is a
"claims made" or an "occurrences" policy; (iii) a description of the
coverage provided by such policy and the material terms and provisions of
such policy (including all applicable coverage limits, deductible amounts
and co-insurance arrangements and any non-customary exclusions from
coverage); (iv) the annual premium payable with respect to such policy, and
the cash value (if any) of such policy; and (v) a description of any claims
pending, and any claims that have been asserted in the past, with respect
to such policy. Section 1.19 of the Offeree Disclosure Schedule also
identifies (1) each pending application for insurance that has been
submitted by or on behalf of Offeree or any of its Subsidiaries, and (2)
each self-insurance or risk-sharing arrangement affecting Offeree or any of
its Subsidiaries or any of its assets. Offeree has made available to the
Offeror accurate summaries of all of the insurance policies identified in
Section 1.19 of the Offeree Disclosure Schedule (including all renewals
thereof and endorsements thereto) and all of the pending applications
identified in Section 1.19 of the Offeree Disclosure Schedule.
(b) Each of the policies identified in Section 1.19 of the Offeree
Disclosure Schedule is valid, enforceable and in full force and effect.
(c) Except as set forth in Section 1.19 of the Offeree Disclosure
Schedule, there is no pending claim under or based upon any of the policies
identified in Section 1.19 of the Offeree Disclosure Schedule; and no event
has occurred, and no condition or circumstance exists, that might (with or
without notice or lapse of time) directly or indirectly give rise to or
serve as a basis for any such claim.
(d) Neither Offeree nor any of its Subsidiaries has received: (i) any
notice or other communication (in writing or otherwise) regarding the
actual or possible cancellation or invalidation of any of the policies
identified in Section 1.19 of the Offeree Disclosure Schedule or regarding
any actual or possible adjustment in the amount of the premiums payable
with respect to any of said policies; or (ii) any notice or other
communication regarding any actual or possible refusal of coverage under,
or any actual or possible rejection of any claim under, any of the policies
identified in Section 1.19 of the Offeree Disclosure Schedule.
Section 1.20 Financial Advisors
Other than as set forth in Section 1.20 of the Offeree Disclosure Schedule,
neither Offeree, nor any member of the Offeree Group have entered into or are
bound by any agreements or understandings with any investment bank, financial
advisor or other similar entity whatsoever.
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PART 2
REPRESENTATIONS AND WARRANTIES OF OFFEROR
Except as disclosed with appropriate Section references in a document dated
as of the date of this Agreement and delivered by Offeror to Offeree prior to
the execution and delivery of this Agreement (the "Offeror Disclosure
Schedule"), each of which exceptions shall be deemed to relate to and to
qualify only the particular representation or warranty set forth in the
corresponding Section reference and any other representation or warranty to
which the relevance of any such exception is reasonably apparent, and in order
to induce Offeree to enter into and perform this Agreement and the other
agreements and certificates that are required to be completed and executed
pursuant to this Agreement, Offeror represents and warrants to Offeree as
follows in this Part 2:
Section 2.1 Organization; Subsidiaries.
(a) Offeror and each Subsidiary of Offeror (i) is a corporation duly
organized, validly existing and in good standing (with respect to
jurisdictions that recognize such concept) under the laws of its
jurisdiction of incorporation, (ii) has the requisite corporate or other
power and authority and all necessary government approvals to own, lease
and operate its assets and property and to carry on its business as now
being conducted, and (iii) is duly qualified or licensed as a foreign
corporation to do business, and is in good standing (with respect to
jurisdictions that recognize such concept), in each jurisdiction where the
character of the properties owned, leased or operated by it or the nature
of its business makes such qualification or licensing necessary.
(b) A true and complete list of all the Subsidiaries of Offeror is set
forth in Section 2.1(b) of the Offeror Disclosure Schedule. Offeror is the
owner of all outstanding shares of capital stock of each Subsidiary of
Offeror and all such shares are duly authorized, validly issued, fully paid
and nonassessable. All of the outstanding shares of capital stock of each
Subsidiary of Offeror are owned by Offeror free and clear of all
Encumbrances. There are no outstanding subscriptions, options, warrants,
puts, calls, rights, exchangeable or convertible securities or other
commitments or agreements of any character relating to the issued or
unissued capital stock or other securities of any Subsidiary of Offeror, or
otherwise obligating Offeror or any Subsidiary of Offeror to issue,
transfer, sell, purchase, redeem or otherwise acquire any such securities.
(c) Neither Offeror nor any Subsidiary of Offeror directly or indirectly
owns any equity or similar interest in, or any interest convertible into or
exchangeable or exercisable for, any equity or similar interest in, any
corporation, partnership, limited liability company, joint venture or other
business association or entity (other than the Subsidiaries of Offeror).
Section 2.2 Certificate of Incorporation and Bylaws. Offeror has delivered
or otherwise made available to Offeree a true and correct copy of the
Certificate of Incorporation, Bylaws and other charter documents, as
applicable, of Offeror and each Subsidiary of Offeror, each as amended to date
and as currently in force full and effect. Neither Offeror nor any Subsidiary
of Offeror is in violation of any of the provisions of its Certificate of
Incorporation, Bylaws or equivalent organizational documents.
Section 2.3 Capital Structure.
(a) The authorized capital stock of Offeror consists of (i) 75,000,000
shares of Offeror Stock, par value $0.001 per share, of which there were
24,546,644 shares issued and outstanding as of the date of this Agreement
and (ii) 5,000,000 shares of Offeror Preferred Stock, none of which were
issued and outstanding as of the date of this Agreement. As of the date of
this Agreement, there are no other outstanding shares of capital stock or
voting securities of Offeror and no outstanding commitments to issue any
shares of capital stock or voting securities of Offeror other than (i)
warrants to purchase 34,633 shares of Offeror Stock and (ii) pursuant to
the exercise of options outstanding as of the date hereof under the
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Offeror Employee Stock Option Plans and the issuance of Offeror Stock
pursuant to Offeror's 1999 Employee Stock Purchase Plan.
(b) All outstanding shares of Offeror Stock are duly authorized, validly
issued, fully paid and nonassessable and are free of any Encumbrances other
than any Encumbrances created by or imposed upon the holders thereof, and
are not subject to preemptive rights or rights of first refusal created by
statute, the Certificate of Incorporation or the Bylaws of Offeror or any
agreement to which Offeror is a party or by which it is bound. All
outstanding shares of Offeror Stock were issued in compliance with all
applicable federal and state securities laws.
(c) As of the date hereof, Offeror had reserved (i) 5,722,474 shares of
Offeror Stock for issuance to non-employee directors, executive officers,
employees and consultants pursuant to the Offeror 1999 Stock Incentive
Plan, and (ii) 493,118 shares of Offeror Stock for issuance to employees
pursuant to the Offeror 1999 Employee Stock Purchase Plan ("ESPP"). Section
2.3 of the Offeror Disclosure Schedule sets forth, as of the date of this
Agreement, the aggregate number of outstanding options to purchase Offeror
Stock and all other rights to acquire shares of Offeror Stock pursuant to
the Offeror Employee Stock Option Plans. Section 2.3 of the Offeror
Disclosure Schedule sets forth a true and complete list as of the date of
this Agreement of all holders of outstanding options under the Offeror
Employee Stock Option Plans who are either directors or officers of
Offeror, including the number of shares of Offeror Stock subject to each
such option, the exercise or vesting schedule, the exercise price per share
and the term of each such option. On the Effective Date, Offeror shall
deliver to Offeree an updated Section 2.3 of the Offeror Disclosure
Schedule that contains information of the type referred to in the preceding
sentence that is current as of a date as close to the Effective Date as is
reasonably practicable. All outstanding options to purchase Offeror Stock
have been duly authorized by the Offeror Board or a committee thereof, are
validly issued, and were issued in compliance with all applicable
securities laws.
(d) Offeror has not taken any action that would result in the
accelerated vesting, exercisability or payment of any options to purchase
Offeror Stock as a consequence of the execution of, or consummation of the
transactions contemplated by, this Agreement.
(e) Except (i) for the rights created pursuant to this Agreement, (ii)
for or with respect to rights granted under the Offeror Employee Stock
Option Plans, (iii) for Offeree's right to repurchase any unvested shares
under the Offeror Employee Stock Option Plans, (iv) as set forth in this
Section 2.3, as of the date of this Agreement, other than warrants to
purchase 34,633 shares of Offeror Stock, there are no options, warrants,
calls, rights, commitments, agreements or arrangements of any character to
which Offeror or any Subsidiary of Offeror is a party or by which Offeror
or any Subsidiary of Offeror is bound relating to the issued or unissued
capital stock of Offeror or any Subsidiary of Offeror or obligating Offeror
or any Subsidiary of Offeror to issue, deliver, sell, repurchase or redeem,
or cause to be issued, delivered, sold, repurchased or redeemed, any shares
of capital stock of Offeror or any Subsidiary of Offeror or obligating
Offeror or any Subsidiary of Offeror to grant, extend, accelerate the
vesting of, change the price of, or otherwise amend or enter into any such
option, warrant, call, right, commitment or agreement.
(f) As of the date of this Agreement, there are no contracts,
commitments or agreements relating to rights of refusal, co-sale rights or
registration rights granted by Offeror with respect to any shares of
Offeror capital stock.
(g) As of the date of this Agreement, there are no contracts,
commitments or agreements relating to voting of Offeree's capital stock (i)
between or among Offeror and any of its stockholders and (ii) to the
Knowledge of Offeror, between or among any of Offeree Shareholders. True
and complete copies of all Offeror Employee Stock Option Plans and forms of
stock option agreements thereunder have been made available to Offeror and
such Offeror Employee Stock Option Plans and agreements have not been
amended, modified or supplemented, and there are no agreements to amend,
modify or supplement such Offeror Employee Stock Option Plans and
agreements in any case from the form made available to Offeror.
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Section 2.4 Authority and Enforceability. Offeror has all requisite
corporate power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby, subject, in the case of consummation of
the Transaction, to the Offeror Stockholder Approval. The execution and
delivery of this Agreement and the consummation by Offeror of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Offeror, subject only to the Offeror Stockholder Approval. The
Offeror Stockholder Approval as well as the vote of holders of more than 50% in
voting power of registration rights under the Registration Rights Agreement are
the only votes or consents of the holders of any of Offeror's capital stock
necessary to adopt this Agreement and approve the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Offeror and,
assuming due authorization, execution and delivery by Offeree, constitutes the
valid and binding obligation of Offeror enforceable against Offeror in
accordance with its terms, except as enforcement thereof may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium and similar laws, both state
and federal, affecting the enforcement of creditors' rights or remedies in
general as from time to time in effect or (b) the exercise by courts of equity
powers (regardless of whether enforceability is considered in a proceeding at
law or in equity).
Section 2.5 No Conflicts; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Offeror does not,
and the consummation by Offeror of the transactions contemplated hereby
will not, conflict with, or result in a violation of, any provision of the
Certificate of Incorporation or Bylaws of Offeror or any Subsidiary of
Offeror, as amended to date and as currently in full force and effect. The
execution and delivery of this Agreement by Offeror does not, and the
consummation by Offeror of the transactions contemplated hereby will not,
conflict with, or result in a material violation of, or material default
under (with or without notice or lapse of time, or both), or give rise to a
right of termination, cancellation or acceleration of any obligation or
loss of any material benefit under, any material mortgage, indenture,
lease, contract or other material agreement or instrument, permit,
concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Offeror or any Subsidiary of
Offeror or any of their properties or assets. Section 2.5 of the Offeror
Disclosure Schedule lists all consents, waivers and approvals under any of
Offeror's or any of its Subsidiaries' material agreements, contracts,
licenses, leases or other obligations in effect as of the date of this
Agreement required to be obtained in connection with the consummation of
the transactions contemplated hereby.
(b) No consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Entity is required to be
obtained or made, at or prior to the Effective Date, by or with respect to
Offeror or any Subsidiary of Offeror in connection with the execution and
delivery of this Agreement by Offeror or the consummation by Offeror of the
transactions contemplated hereby, except for (i) the Final Court Order,
(ii) such consents, approvals, orders, authorizations, registrations,
declarations and filings as may be required under the Exchange Act, the
Securities Act, applicable state securities laws and the securities (or
related) laws of any foreign country, including the filing of the
Registration Statement with the SEC in accordance with the Securities Act,
(iii) such filings as may be required under the rules and regulations of
NASDAQ; (iv) such filings as may be required under the HSR Act, and any
non-U.S. competition laws; and (v) such filings as may be required pursuant
to the City Code, the Registrar of Companies and the Companies Court.
Section 2.6 SEC Filings; Offeror Consolidated Financial Statements.
(a) The Registration Statement on Form S-1 filed by Offeror with the SEC
on January 31, 2000 (the "Form S-1") and each registration statement,
report and accounts, proxy statement or information statement prepared by
it or its Subsidiaries, each in the form (including exhibits, annexes and
any amendments thereto) filed with the SEC thereafter (collectively,
including any such reports filed subsequent to the date hereof, the
"Offeror Reports") did not, and any Offeror Reports filed with the SEC
subsequent to the date hereof will not, contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances in which they were made, not misleading; provided, that
Offeror makes no representation or
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warranty with respect to any information with respect to Offeree provided
to it by Offeree in writing for inclusion in any Offeror Report filed after
the date hereof. As of their respective dates, the Offeror Reports (i) were
or will be prepared in all material respects in accordance with the
requirements of the Securities Act and/or the Exchange Act, as the case may
be, and the rules and regulations thereunder, (ii) did not at the time they
were filed, or will not at the time they are filed, contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading, and (iii) did not at the time they were filed, or will not at
the time they are filed, omit any documents required to be filed as
exhibits thereto.
(b) No Subsidiary of Offeror is required to file any form, report or
other document with the SEC.
(c) Each of the consolidated financial statements (including, in each
case, any notes thereto) contained in the Offeror Reports (collectively,
the "Offeror Financials") was or will be prepared in accordance with the
United States generally accepted accounting principles ("GAAP") applied on
a consistent basis throughout the periods indicated (except as may be
indicated in the notes thereto) and each fairly presented or will fairly
present the consolidated financial position, results of operations and cash
flows of Offeror and its consolidated Subsidiaries as of the respective
dates thereof and for the respective periods indicated therein in
accordance with GAAP (subject, in the case of unaudited financial
statements, to normal and recurring year-end adjustments and the absence of
certain footnote disclosures in accordance with GAAP).
Section 2.7 Absence of Undisclosed Liabilities. Except as disclosed in the
Offeror Reports filed prior to the date of this Agreement, neither Offeror nor
any Subsidiary had at December 31, 2000 or between that date and the date
hereof has incurred, any obligations or liabilities of any nature (matured or
un-matured, fixed or contingent) other than those (a) set forth or adequately
provided for in the Balance Sheet as at December 31, 2000 (including the notes
thereto, the "Offeror Balance Sheet"), (b) not required to be set forth in the
Offeror Balance Sheet under GAAP, (c) incurred in the ordinary course of
business since the date of the Offeror Balance Sheet and consistent with past
practice, and (d) incurred in connection with the execution of this Agreement.
Section 2.8 Absence of Certain Changes. Except as contemplated by this
Agreement or as disclosed in the Offeror Reports filed prior to the date of
this Agreement, between March 31, 2001 (the "Offeror Balance Sheet Date") and
the date of this Agreement, there has not been, occurred or arisen any of the
events specified in Conditions 3(b), (c), (e), (f) or (g) in relation to
Offeror or any member of the Offeror Group.
Section 2.9 Litigation. Except as disclosed in the Offeror Reports and in
Section 2.9 of the Offeror Disclosure Schedule, there is no private or
governmental action, suit, proceeding or arbitration (or to the Knowledge of
Offeror a governmental investigation) pending before any agency, court or
tribunal, foreign or domestic, or, to the Knowledge of Offeror, threatened,
against Offeror or any Subsidiary of Offeror or any of their respective
properties or any of their respective officers or directors (in their
capacities as such) which is reasonably likely to result in an injunction or
damages payable by Offeror or any Subsidiary of Offeror in excess of $100,000.
There is no judgment, decree or order against Offeror or any Subsidiary of
Offeror or any of their respective directors or officers (in their capacities
as such) that would reasonably be expected to prevent, enjoin, alter or delay
any of the transactions contemplated by this Agreement.
Section 2.10 Intellectual Property.
(a) Section 2.10 of the Offeror Disclosure Schedule lists (i) all
patents and patent applications, all applications for trademarks, trade
names and service marks, and all material registered trademarks, trade
names, service marks, and copyrights that are owned or purported to be
owned by Offeror or any Subsidiary of Offeror, and such list specifies, as
applicable, the jurisdictions by or in which each such patent, trademark,
trade name, service mark or copyright has been issued or registered or in
which any application for such issuance and registration has been filed,
(ii) all material licenses, sub-licenses and
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other agreements as to which Offeror or any Subsidiary of Offeror is a
party and pursuant to which any person is authorized to use any Offeror
Intellectual Property, and (iii) all material licenses, sub-licenses and
other agreements to which Offeror or any Subsidiary of Offeror is a party
and pursuant to which Offeror or any Subsidiary of Offeror is authorized to
use any third-party Intellectual Property that is included in the Offeror
Intellectual Property (third-party Intellectual Property included in the
Offeror Intellectual Property being referred to in this Agreement as
"Offeror Third-Party Intellectual Property Rights"). All agreements
described in Section 2.10 of the Offeror Disclosure Schedule as they relate
to Sections 2.10(a)(ii) and (iii) are valid, enforceable and legally
binding, subject to the effect or availability of rules of law governing
specific performance, injunctive relief or other equitable remedies
(regardless of whether any such remedy is considered in a proceeding at law
or in equity), and to Offeror's Knowledge, neither the Offeror nor any
Subsidiary of Offeror and no third party is in material breach of any such
agreement described in Section 2.10 of the Offeror Disclosure Schedule. For
purposes of this Section 2.10, "Intellectual Property" means all United
States, state and foreign intellectual property, including, but not limited
to all (1) patents, inventions, discoveries, processes and designs;
copyrights and works of authorship in any media; trademarks, service marks,
domain names, trade names, trade dress and other source indicators; trade
secrets, ideas, algorithms, samples, media and/or cell lines, formulae,
processes, data, database rights, computer software applications (in both
source code and object code form) and other confidential or proprietary
information; (2) registrations, applications and recordings related
thereto; (3) rights to obtain renewals, extensions, continuations or
similar legal protections related thereto; and (4) rights to bring an
action at law or in equity for the infringement or other impairment
thereof. "Offeror Intellectual Property" means the Intellectual Property
that is material to the business of Offeror or any Subsidiary of Offeror as
currently conducted by Offeror or any Subsidiary of Offeror.
(b) To the Knowledge of Offeror and except as otherwise set forth in
Section 2.10 of the Offeror Disclosure Schedule, Offeror and each of its
Subsidiaries own all right, title and interest in and to (free and clear of
any Encumbrances), or are licensed to use, or otherwise possess legally
enforceable rights in the Offeror Intellectual Property, subject only to
the license agreements to which Offeror is a party and pursuant to which
Offeror licenses others to use any such Offeror Intellectual Property as
set forth in Schedule 2.10 of the Offeror Disclosure Schedule.
(c) To the Knowledge of Offeror and except as otherwise set forth in
Section 2.10 of the Offeror Disclosure Schedule, there is no unauthorized
use, disclosure, infringement or misappropriation of any Offeror
Intellectual Property rights, by any third party, including any employee or
former employee of Offeror or any Subsidiary of Offeror. To the Knowledge
of Offeror, except as otherwise set forth in Section 2.10 of the Offeror
Disclosure Schedule neither Offeror nor any Subsidiary of Offeror has
entered into any agreement to indemnify any other person against any charge
of infringement of any Intellectual Property, other than indemnification
provisions contained in purchase orders or agreements for the sale, license
or distribution of any Offeror Intellectual Property or products containing
Offeror Intellectual Property arising in the ordinary course of business.
(d) The execution and delivery of this Agreement by Offeror and the
consummation by Offeror of the transactions contemplated hereby will not,
except as disclosed in Section 2.10 of the Offeror Disclosure Schedule with
respect to third party consents, cause Offeror or any Subsidiary of Offeror
to breach any material license, sub-license or other agreement relating to
the Offeror Intellectual Property, and will not entitle any other party to
any such license, sub-license or agreement to terminate or modify such
license, sub-license or agreement.
(e) All issued patents and registered trademarks, service marks and
copyrights held by Offeror or any Subsidiary of Offeror are valid and
subsisting and there is no assertion or pending claim challenging the
validity or effectiveness of any Offeror Intellectual Property, and to the
Knowledge of Offeror, no such challenge is being threatened. Neither
Offeror nor any of its Subsidiaries is a party to any suit, action or
proceeding that involves a claim against Offeror or any of its Subsidiaries
of infringement or violation of any Intellectual Property of any third
party, nor, to the Knowledge of Offeror, is any such suit, action or
proceeding being threatened against Offeror or any of its Subsidiaries. To
the Knowledge of Offeror, the
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conduct of the business of Offeror and each Subsidiary of Offeror as
currently conducted does not conflict with or infringe, and no one has
asserted to Offeror that such conduct of the business conflicts with or
infringes any Intellectual Property rights of any third party. To the
Knowledge of Offeror, there are no facts or alleged facts which would
reasonably serve as a basis for any claim that Offeror or any Subsidiary of
Offeror does not have the right to use and to transfer the right to use,
free of any rights or claims of others, all Offeror Intellectual Property
rights in the development, manufacture, sale, licensing or use of any
material products of Offeror or any Subsidiary of Offeror as presently
being developed, manufactured, sold, licensed or used in the business of
Offeror as currently conducted. Neither Offeror nor any Subsidiary of
Offeror nor any licensor of Offeror or any Subsidiary of Offeror is
bringing any action, suit or proceeding for infringement of Offeror
Intellectual Property or breach of any license or agreement involving
Offeror Intellectual Property against any third party. There are no pending
or threatened interference, re-examinations, oppositions or nullities
involving any patents, patent rights or applications therefor included in
the Offeror Intellectual Property, except such as may have been commenced
by Offeror or any Subsidiary of Offeror as disclosed in Section 2.10 of the
Offeror Disclosure Schedule.
(f) Each Offeror Participating Developer (as defined below) has signed
an employment and confidentiality agreement, including an intellectual
property assignment, transferring to Offeror or any Subsidiary of Offeror
any and all right, title and interest that the named Offeror Participating
Developer may have or acquire in and to the Offeror Intellectual Property.
"Offeror Participating Developer" means any employee of Offeror or a
Subsidiary of Offeror who contributed and/or is contributing to the
creation or development of Offeror Intellectual Property. Offeror has made
available to Offeree the standard form of such employment and
confidentiality agreement used by Offeror and its Subsidiaries with Offeror
Participating Developers, and any employment and confidentiality agreement
entered into by Offeror or any of its Subsidiaries with any Offeror
Participating Developer that differs from the standard form of such
agreement in any material way. No Offeror Participating Developer has any
right, claim or interest in or with respect to any Offeror Intellectual
Property.
(g) Offeror has taken all commercially reasonable steps to protect and
preserve the confidentiality of all Trade Secrets and has taken all
measures it deems reasonable and appropriate to protect and preserve the
confidentiality of all other Offeror Intellectual Property not otherwise
protected by patents, patent applications or copyright ("Offeror
Confidential Information"). Each of Offeror and its Subsidiaries has a
policy requiring each employee to execute an employment and confidentiality
agreement substantially in Offeror's standard form. Each employee of
Offeror or any of its Subsidiaries has signed an employment and
confidentiality agreement with Offeror or its Subsidiaries.
(g) Offeror has taken all commercially reasonable steps to protect and
preserve the confidentiality of all Trade Secrets and has taken all
measures it deems reasonable and appropriate to protect and preserve the
confidentiality of all other Offeror Intellectual Property not otherwise
protected by patents, patent applications or copyright ("Offeror
Confidential Information"). Each of Offeror and its Subsidiaries has a
policy requiring each employee to execute an employment and confidentiality
agreement substantially in Offeror's standard form. Each employee of
Offeror or any of its Subsidiaries has signed an employment and
confidentiality agreement with Offeror or its Subsidiaries.
Section 2.11 Environmental Matters. Except as set forth in Section 2.11 of
the Offeror Disclosure Schedule, (i) Offeror and its Subsidiaries have complied
in all material respects with all applicable Environmental Laws; (ii) to the
Knowledge of Offeror, the properties currently owned, leased or operated by
Offeror and its Subsidiaries (including soils, and land under and/or around any
building or other structure, groundwater, surface water, buildings or other
structures) are not contaminated with any Hazardous Substance which is likely
to result in any material liability; (iii) to the Knowledge of Offeror, neither
Offeror nor any of its Subsidiaries is subject to material liability for any
Hazardous Substance disposal or contamination on any property owned, leased or
operated or formerly owned, leased or operated by Offeror or any of its
Subsidiaries or on any third party property or as a result of any Hazardous
Substance having been transported from any of the properties owned or operated
or formerly owned and operated by Offeror or any of its Subsidiaries; (iv) to
the Knowledge of Offeror, neither Offeror nor any of its Subsidiaries has
received any notice, demand, letter,
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claim or request for information from a Governmental Entity indicating that
Offeror or any of its Subsidiaries may be in violation of or subject to
liability under any Environmental Law; and (v) neither Offeror nor any of its
Subsidiaries is subject to any material orders, decrees, injunctions or other
arrangements with any Governmental Entity or any material indemnity or other
agreement with any third party relating to any material liability in relation
to Environmental Law or Hazardous Substances.
Section 2.12 Taxes; Tax Treatment of the Transaction.
(a) Except as would not, individually or in the aggregate, have a
material adverse effect on Offeror, (i) all Offeror Tax Returns required to
be filed with any Taxing Authority by, or with respect to, Offeror and its
Subsidiaries have been filed in accordance with all applicable laws; (ii)
Offeror and its Subsidiaries have timely paid all Taxes shown to be due on
such returns, and, (iii) as of the date or time of filing, the Offeror Tax
Returns filed were true, correct and complete in all material respects;
(iv) Offeror and its Subsidiaries have made an adequate provision
(determined in accordance with GAAP) for all Taxes payable by Offeror and
its Subsidiaries for which no Offeror Tax Return has yet been filed; (v)
there is no action, suit, proceeding, audit or claim now proposed or
pending against or with respect to Offeror or any of its Subsidiaries in
respect of any Tax (other than Taxes which are being contested in good
faith and for which adequate reserves (determined in accordance with GAAP)
are reflected on the Offeror Balance Sheet); (vi) no waiver or extension of
any statute of limitations is in effect with respect to any Tax Return of
Offeror or any of its Subsidiaries; and (vii) to the best of Offeror's
Knowledge and belief, neither Offeror nor any of its Subsidiaries is liable
for any Tax imposed on any entity other than such Person.
(b) None of the Offeror, or any of its Affiliates, has taken any action
or knows of any fact, arrangement, agreement, plan or other circumstance
that would be reasonably likely to prevent the Transaction from qualifying
as a tax-free reorganization within the meaning of Section 368(a) of the
Code.
Section 2.13 Employee Benefit Plans.
(a) Section 2.13 of the Offeror Disclosure Schedule contains a true and
complete list of each deferred compensation and each incentive
compensation, equity compensation plan, "welfare" plan, fund or program
(within the meaning of section 3(1) of ERISA; "pension" plan, fund or
program (within the meaning of section 3(2) of ERISA); each employment,
consulting, termination or severance agreement; and each other employee
benefit plan, fund, program, agreement or arrangement, in each case, that
is sponsored, maintained or contributed to or required to be contributed to
by Offeror or by any trade or business, whether or not incorporated (an
"Offeror ERISA Affiliate"), that together with Offeror would be deemed a
"single employer" within the meaning of section 4001(b) of ERISA, or to
which Offeror or an Offeror ERISA Affiliate is party, whether written or
oral, for the benefit of any employee or former employee of Offeror or any
Subsidiary of Offeror (the "Offeror Plans").
(b) With respect to each Offeror Plan, Offeror has heretofore delivered
or made available to Offeree true and complete copies of the Offeror Plan
and any amendments thereto, any related trust or other funding vehicle, any
reports or summaries required under ERISA or the Code and the most recent
determination letter received from the Internal Revenue Service with
respect to each Offeror Plan intended to qualify under Section 401 of the
Code.
(c) Each Offeror Plan has been operated and administered in all material
respects in accordance with its terms and applicable law, including but not
limited to ERISA and the Code and each Offeror Plan intended to be
"qualified" within the meaning of section 401(a) of the Code is so
qualified and the trusts maintained thereunder are exempt from taxation
under section 501(a) of the Code.
(d) No liability under Title IV or section 302 of ERISA has been
incurred by Offeror or any Offeror ERISA Affiliate that has not been
satisfied in full, and no condition exists that presents a material risk to
Offeror or any Offeror ERISA Affiliate of incurring any such liability,
other than liability for premiums due the Pension Benefit Guaranty
Corporation (which premiums have been paid when due).
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(e) There are no pending, threatened or anticipated claims by or on
behalf of any Offeror Plan, by any employee or beneficiary covered under
any such Offeror Plan, or otherwise involving any such Offeror Plan (other
than routine claims for benefits).
Section 2.14 Material Contracts. Except as otherwise set forth in the
Offeror Reports filed prior to the date of this Agreement, neither Offeror nor
any of its Subsidiaries is a party to or is bound by any of the following as of
the date of this Agreement:
(a) any agreement under which Offeror or any of its Subsidiaries have
continuing obligations to market, distribute, develop, license or
collaborate in respect of, any product (proprietary or otherwise),
technology or service and that may not be canceled without material penalty
upon ninety (90) days' or less notice, or any agreement pursuant to which
Offeror or any of its Subsidiaries have continuing obligations to jointly
develop any intellectual property that will not be owned by Offeror or any
of its Subsidiaries and that may not be canceled without material penalty
upon ninety (90) days' or less notice;
(b) any agreement, contract or commitment providing for the disposition
or acquisition (by license or otherwise) by Offeror or any of its
Subsidiaries after the date of this Agreement of any assets not in the
ordinary course of business or pursuant to which Offeror has any ownership
interest in any corporation, partnership, joint venture or other business
enterprise other than its Subsidiaries;
(c) any agreement, contract or commitment to license any third party to
manufacture or reproduce any Offeror or Subsidiary product, service or
technology; or
(d) any employment or consulting agreement, contract or commitment with
any employee, consultant or member of the Offeror Board, other than those
that are terminable by Offeror or any of its Subsidiaries on no more than
thirty (30) days' notice without liability or financial obligation, except
to the extent general principles of wrongful termination law may limit
Offeror's or any of its Subsidiaries' ability to terminate employees at
will;
(e) any agreement or plan, including any stock option plan, stock
appreciation right plan or stock purchase plan, any of the benefits of
which will be increased, or the vesting of benefits of which will be
accelerated, by the occurrence of any of the transactions contemplated by
this Agreement or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated by this
Agreement;
(f) any agreement of indemnification or any guaranty with or for the
benefit of any officer or director of Offeror;
(g) any agreement, contract or commitment that has or could reasonably
be expected to have the effect of prohibiting or materially impairing any
current or future business practice of Offeror or any Subsidiary of
Offeror, any acquisition of property by Offeror or any Subsidiary of
Offeror or the overall conduct of business by Offeror or any Subsidiary of
Offeror as currently conducted or as proposed to be conducted by Offeror or
by any Subsidiary, or under which Offeror or any Subsidiary of Offeror is
restricted from selling, licensing or otherwise distributing any of its
products to any class of customers, in any geographic area, during any
period of time or in any segment of the market; and
(h) any other agreement, contract or commitment that would constitute a
"material contract" under Item 601 of Regulation S-K.
Neither Offeror nor any of its Subsidiaries nor, to the Knowledge of Offeror
any other party to a Offeror Contract (as defined below) is in breach,
violation or default under, and neither Offeror nor any of its Subsidiaries has
received notice that it is in material breach, violation or default under, any
of the material terms or conditions of any of the agreements, contracts or
commitments to which Offeror or any of its Subsidiaries is a party or by which
it is bound that are required to be disclosed in the Offeror Disclosure
Schedule pursuant to clauses (a) through (h) above or pursuant to Section 2.10
(any such agreement, contract or commitment, a "Offeror Contract") in such a
manner as would permit any other party to cancel or terminate
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any such Offeror Contract, or would reasonably be expected to entitle any other
party to obtain material damages or other material remedies. Section 2.14 of
the Offeror Disclosure Schedule sets forth a true and complete list of all
Offeror Contracts that are either material to its business or involve dollar
amounts greater than $100,000.
Section 2.15 Interested Party Transactions. Neither Offeror nor any
Subsidiary of Offeror is indebted to any director, officer, employee or agent
of Offeror or any Subsidiary of Offeror (except for amounts due as normal
salaries and bonuses and other employee benefits and in reimbursement of
ordinary expenses), and no such person is indebted to Offeror or any Subsidiary
of Offeror.
Section 2.16 Compliance with Laws. Each of Offeror and its Subsidiaries has
complied in all material respects with, is not in material violation of, and,
since January 1, 1998, has not received any notices of material violation with
respect to, any federal, state, local or foreign statute, law or regulation
with respect to the conduct of its business or the ownership or operation of
its business.
Section 2.17 Insurance.
(a) Section 2.17 of the Disclosure Schedule accurately sets forth, with
respect to each insurance policy maintained by or at the expense of, or for
the direct or indirect benefit of, Offeror or any of its Subsidiaries: (i)
the name of the insurance carrier that issued such policy and the policy
number of such policy; (ii) whether such policy is a "claims made" or an
"occurrences" policy; (iii) a description of the coverage provided by such
policy and the material terms and provisions of such policy (including all
applicable coverage limits, deductible amounts and co-insurance
arrangements and any non-customary exclusions from coverage); (iv) the
annual premium payable with respect to such policy, and the cash value (if
any) of such policy; and (v) a description of any claims pending, and any
claims that have been asserted in the past, with respect to such policy.
Section 2.17 of the Offeror Disclosure Schedule also identifies (1) each
pending application for insurance that has been submitted by or on behalf
of Offeror or any of its Subsidiaries, and (2) each self-insurance or risk-
sharing arrangement affecting Offeror or any of its Subsidiaries or any of
its assets. Offeror has made available to Offeree accurate copies of
summaries of all of the insurance policies identified in Section 2.17 of
the Offeror Disclosure Schedule (including all renewals thereof and
endorsements thereto) and all of the pending applications identified in
Section 2.17 of the Offeror Disclosure Schedule.
(b) Each of the policies identified in Section 2.17 of the Offeror
Disclosure Schedule is valid, enforceable and in full force and effect.
(c) Except as set forth in Section 2.17 of the Offeror Disclosure
Schedule, there is no pending claim under or based upon any of the policies
identified in Section 2.17 of the Offeror Disclosure Schedule; and no event
has occurred, and no condition or circumstance exists, that might (with or
without notice or lapse of time) directly or indirectly give rise to or
serve as a basis for any such claim.
Neither Offeror nor any of its Subsidiaries has received: (i) any notice or
other communication (in writing or otherwise) regarding the actual or possible
cancellation or invalidation of any of the policies identified in Section 2.17
of the Offeror Disclosure Schedule or regarding any actual or possible
adjustment in the amount of the premiums payable with respect to any of said
policies; or (ii) any notice or other communication regarding any actual or
possible refusal of coverage under, or any actual or possible rejection of any
claim under, any of the policies identified in Section 2.17 of the Offeror
Disclosure Schedule.
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APPENDIX IV
CONDITIONS
1. The Transaction is conditional upon the Scheme becoming effective by not
later than November 30, 2001 or such later date as Offeree and Offeror may
agree and the Court shall approve.
2. The Scheme will become effective and binding following:
(a) approval by a majority in number representing three-fourths in value
of the holders of the Offeree Shares, present and voting, either in person
or by proxy, at the Court Meeting (or any adjournment thereof);
(b) the passing of any resolutions required to implement the Scheme and
to amend the articles of association of Offeree in the manner indicated in
the paragraph headed "Structure of the Transaction" in the Announcement at
the Extraordinary General Meeting (or any adjournment thereof);
(c) the approval by the requisite majorities of votes of the holders of
Offeror Shares at the Special Meeting called for the purpose of approving
the issuance of the Offeror Shares pursuant to the Scheme; and
(d) sanction of the Scheme and confirmation of the reduction of capital
involved therein by the Court (in both cases, with or without modification
agreed by Offeror and Offeree), an office copy of the Final Court Order
being delivered for registration to the Registrar of Companies in England
and Wales and, in the case of reduction of capital, registered by him.
3. Offeree and Offeror have agreed, subject as stated in paragraph 4 of this
Appendix, that the Transaction will also be conditional upon the following
matters, and, accordingly, an office copy of the Final Court Order will only be
delivered for registration to the Registrar of Companies in England and Wales
if:
(a) except as disclosed in the Offeree Annual Report for the fiscal year
ended March 31, 2001 on Form 20-F (filed with the SEC on or about May 23,
2001) or as otherwise publicly disclosed in any filings required to be made
with the SEC pursuant to the Securities Act or the Exchange Act prior to
the date of this Announcement ("publicly disclosed") by Offeree, or as
fairly disclosed in writing to Offeror prior to the date of this
Announcement (each and collectively "Offeree Disclosed Matters"), since
March 31, 2001:
(i) no investigation or enquiry by any Third Party (as defined in
paragraph (c) below) having statutory or regulatory competence other
than in relation to the Scheme and no litigation, arbitration
proceedings, prosecution or other legal proceedings to which any member
of the Offeree Group is or may become a party (whether as plaintiff or
defendant or otherwise) other than in relation to the Scheme has been
threatened in writing, announced or instituted by or remains
outstanding against or in respect of any member of the Offeree Group
which, in any such case, is material and adverse in the context of the
Offeree Group taken as a whole;
(ii) there has been no material adverse change in the business,
financial position, or trading position of the Offeree Group taken as a
whole;
(iii) no contingent or other liability of any member of the Offeree
Group has arisen or has become apparent or has increased which would or
could reasonably be expected materially and adversely to affect the
Offeree Group taken as a whole;
(iv) Offeror has not discovered regarding the Offeree Group that:
(1) any written financial, business or other information which
has been publicly disclosed at any time by any member of the Offeree
Group is misleading or contains misrepresentations of fact or omits
to state a fact necessary to make the information contained therein
not misleading in any case which has not subsequently and prior to
the date of this Announcement been corrected by such disclosure,
and, in any event, which is material in the context of the
Offeree Group taken as a whole; or
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(2) any written financial, business or other information (except
for forecasts, statements of opinion, projections, budgets or
estimates) disclosed by or on behalf of any member of the Offeree
Group privately to any member of the Offeror Group or its advisers
is misleading or contains a misrepresentation of fact or omits to
state a fact necessary to make the information contained therein not
misleading in any case which has not subsequently and prior to the
date of this Announcement been corrected by such disclosure and, in
any event, which is material in the context of the Offeree Group
taken as a whole;
(b) except as disclosed in Offeror's Annual Report for the fiscal year
ended December 31, 2000 on Form 10-K (filed with the SEC on or about April
2, 2001) and Offeror's Quarterly Report for the period ended March 31, 2001
on Form 10-Q (filed with the SEC on or about May 15, 2001) or as otherwise
publicly disclosed by Offeror, or as fairly disclosed in writing to Offeree
prior to the date of this Announcement (each and collectively "Offeror
Disclosed Matters"), since December 31, 2000:
(i) no investigation or enquiry by any Third Party (as defined in
paragraph (c) below) having statutory or regulatory competence other
than in relation to the Scheme and no litigation, arbitration
proceedings, prosecution or other legal proceedings to which any member
of the Offeror Group is or may become a party (whether as plaintiff or
defendant or otherwise) other than in relation to the Scheme has been
threatened in writing, announced or instituted by or remains
outstanding against or in respect of any member of the Offeror Group
which, in any such case, is material and adverse in the context of the
Offeror Group taken as a whole;
(ii) there has been no material adverse change in the business,
financial position or trading position of the Offeror Group taken as a
whole;
(iii) no contingent or other liability of any member of the Offeror
Group has arisen or has become apparent or has increased which would or
could reasonably be expected materially and adversely to affect the
Offeror Group taken as a whole;
(iv) Offeree has not discovered regarding the Offeror Group that:
(1) any written financial, business or other information which
has been publicly disclosed at any time by any member of the Offeror
Group is misleading or contains misrepresentations of fact or omits
to state a fact necessary to make the information contained therein
not misleading in any case which has not subsequently and prior to
the date of this Announcement been corrected by such disclosure,
and, in any event, which is material in the context of the Offeror
Group taken as a whole; or
(2) any written financial, business or other information (except
for forecasts, statements of opinion, projections, budgets or
estimates) disclosed by or on behalf of any member of the Offeror
Group privately to any member of the Offeree Group or its advisers
is misleading or contains a misrepresentation of fact or omits to
state a fact necessary to make the information contained therein not
misleading in any case which has not subsequently and prior to the
date of this Announcement been corrected by such disclosure and, in
any event, which is material in the context of the Offeror Group
taken as a whole;
(c) no government or governmental, quasi-governmental, supranational,
statutory or regulatory body, or court, or trade agency, or association, or
institutional or professional body (or other person or body having
statutory or regulatory competence) in any jurisdiction (each and
collectively a "Third Party") has instituted, implemented or threatened to
take any action, proceeding, suit, investigation or inquiry, or has made,
proposed or enacted any statute, regulation or order, or taken any other
steps, which would or could reasonably be expected to:
(i) make the Transaction or Scheme or their respective
implementation or the acquisition of any shares in, or control of,
Offeree by Offeror or any member(s) of the Offeror Group void, illegal
or unenforceable under the laws of any jurisdiction or otherwise
directly or indirectly restrain, prohibit, restrict, delay or interfere
with the implementation or performance thereof or impose additional
A-42
conditions or obligations with respect thereto, or otherwise challenge
or interfere therewith, in each case in a manner or to an extent that
is material in the context of the Transaction; or
(ii) require, prevent or delay the divestiture or alter the terms of
any proposed divestiture by any member of the Offeree Group or (in
connection with the Scheme) any member of the Offeror Group of all or
any portion of their respective businesses, assets or property, or
impose any limitation on the ability of any of them to conduct their
respective businesses or own their assets or property or any part
thereof and which in any such case is material in the context of the
Offeree Group or the Offeror Group (in each case taken as a whole),
being the group on which such requirement or imposition is made, as the
case may be; or
(iii) impose any limitation on, or result in any delay in the
ability of any member of the Offeror Group to acquire, directly or
indirectly, or to hold or exercise effectively all or any rights of
ownership of any Offeree Shares held by any member of the Offeror Group
or on the ability of any member of the Offeror Group to exercise
management control over Offeree or any member of the Offeree Group or
on the ability of Offeree or any member of the Offeree Group or Offeror
to hold or exercise effectively any rights of ownership of shares or
other securities (or the equivalent) in any member of the Offeree Group
held or owned by it, in each case, in a manner or to an extent which
would be material in the context of the Transaction, the Offeror Group
or the Offeree Group, as the case may be; or
(iv) require any member of the Offeror Group or the Offeree Group to
offer to acquire any shares or other securities (or the equivalent)
owned by any third party in the capital of any member of the Offeree
Group or the Offeror Group, in each case, in a manner or to an extent
which would be material in the context of the Offeror Group or the
Offeree Group taken as a whole, as the case may be; or
(v) impose any limitation on the ability of any member of the
Offeror Group or any member of the Offeree Group to integrate or co-
ordinate its business, or any part of it, with the businesses of any
other member of the wider Offeror Group or the wider Offeree Group in
each case in a manner or to an extent which would be material in the
context of the Offeror Group or the Offeree Group, as the case may be;
or
(vi) otherwise affect the business, financial position or trading
position of the Offeror Group or the Offeree Group, in each case taken
as a whole, in a manner which is material and adverse;
and all applicable waiting and other periods during which any relevant
authority could have intervened, in respect of the Transaction or the
implementation of the Scheme or the acquisition or proposed acquisition of
any shares or other securities (or the equivalent) in, or control of,
Offeree by Offeror or any member(s) of the Offeror Group, have expired,
lapsed or terminated;
(d) all necessary notifications and filings in any jurisdiction have
been made, all regulatory and statutory obligations in any jurisdiction
have been complied with, all necessary waiting and other time periods
(including any extension(s) thereof) under any applicable legislation or
regulations in any jurisdiction have expired, lapsed or terminated, in each
case in respect of the Transaction and the implementation of the Scheme and
the acquisition or proposed acquisition of any shares or other securities
(or the equivalent) in, or control of, Offeree by Offeror or any member(s)
of the Offeror Group and the acquisition of Sequenom Shares pursuant to the
Scheme or in relation to the affairs of any member of the Offeree Group and
all authorisations, orders, recognitions, grants, consents, licences,
confirmations, clearances, permissions and approvals necessary or
appropriate in any jurisdiction (collectively "Consents") (in terms and a
form satisfactory to Offeror, acting reasonably) in respect of the
Transaction and the implementation of the Scheme or the acquisition or
proposed acquisition of any shares or other securities (or the equivalent)
in, or control of, Offeree by Offeror or any member(s) of the Offeror Group
or in relation to the affairs of any member of the Offeree Group, have been
obtained from appropriate Third Parties together with those (without
prejudice to the generality of the foregoing) from any persons or
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bodies with whom any member of the Offeror Group or any member of the
Offeree Group has entered into contractual arrangements (and which are in
any event material in the context of the Offeror Group or the Offeree Group
taken as a whole (as the case maybe)) and all such Consents, together with
all Consents necessary for Offeree to carry on its business, remain in full
force and effect and all filings necessary for such purpose have been made
or received and there has not been received any notice or indication of any
intention to revoke, suspend, restrict, modify or not to renew the same in
any such case in a manner or to an extent that is material and adverse in
the context of the relevant group;
(e) save as disclosed in Offeree Disclosed Matters, there is no
provision of any arrangement, agreement, licence, permit, franchise or
other binding instrument to which any member of the Offeree Group is a
party or by or to which any member of the Offeree Group or any part of its
assets may be bound, entitled or subject (which is material in the context
of the Offeree Group taken as a whole) (collectively, "Material
Agreements") and which, in consequence of the Transaction or the Scheme or
the acquisition or proposed acquisition of any shares or other securities
(or the equivalent) in or control or management of Offeree or any member of
the Offeree Group by Offeror or any member(s) of the Offeror Group, would
or might reasonably be expected to (to an extent which is material and
adverse in the context of the Offeree Group taken as a whole) result in:
(i) any monies borrowed by or other indebtedness or liability,
actual or contingent, of or grant available to, any member of the
Offeree Group being or becoming repayable or being capable of being
declared repayable immediately or prior to its stated maturity, or the
ability of any such member of the Offeree Group, to borrow monies or
incur any indebtedness being withdrawn or materially inhibited; or
(ii) the creation or enforcement of any liabilities or any mortgage,
charge or other security interest over the whole or any part of the
business, property or assets of any member of the Offeree Group or any
such security interest (whenever and wherever arising or having arisen)
becoming enforceable; or
(iii) any such Material Agreement being terminated or adversely
modified or any unduly onerous obligation or liability arising under or
any action being taken pursuant to such Material Agreement; or
(iv) any assets or interests of any member of the Offeree Group
being or falling to be disposed of or charged or any right arising
under which any such asset or interest could be required to be disposed
of or charged otherwise than in the ordinary course of business; or
(v) any member of the Offeree Group ceasing to be able to carry on
its business under any name which it at present uses; or
(vi) any interest or business of any member of the Offeree Group in
or with any other person, firm or body (or any arrangements relating to
any such interest or business) being terminated, or adversely affected
or modified; or
(vii) the business, financial position or trading position of any
member of the Offeree Group being prejudiced or adversely affected;
and no event has occurred which, under any such Material Agreement, could
reasonably be expected to result in any event or circumstance referred to
in paragraphs 3(e)(i) to (vii);
(f) since March 31, 2001 and except as publicly disclosed or disclosed
pursuant to Offeree Disclosed Matters or as would be disclosed by a search
at the Companies Registry for England and Wales against Offeree made as at
the Business Day immediately preceding the date of this Announcement:
(i) (save as between a wholly-owned Subsidiary of Offeree and
Offeree or another wholly-owned Subsidiary of Offeree) no member of the
Offeree Group has issued or agreed to issue or authorised or proposed
the issue of additional shares of any class, or securities convertible
into, or rights, warrants or options to subscribe for or acquire, any
such shares or convertible securities (save
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for any options granted, and Offeree Shares unconditionally issued upon
or pursuant to the exercise of options granted, prior to the date of
this Announcement under the Gemini Share Option Schemes and disclosed
in writing to Offeror prior to such date);
(ii) no member of the Offeree Group has recommended, declared, paid,
made or proposed to recommend, declare, pay or make any bonus, dividend
or other distribution (save as between a wholly-owned Subsidiary of
Offeree and Offeree or another wholly-owned Subsidiary of Offeree);
(iii) no member of the Offeree Group has made or authorised or
proposed or announced any material change in its share or loan capital,
outside the ordinary course of business;
(iv) (save for transactions between a wholly-owed Subsidiary of
Offeree and Offeree or another wholly-owned Subsidiary of Offeree) no
member of the Offeree Group has merged with or demerged or acquired any
body corporate or acquired or disposed of or transferred, mortgaged or
charged or created any security interest over any assets or any right,
title or interest in any assets (other than in the ordinary course of
business) which is material to the Offeree Group taken as a whole or
authorised or proposed or announced any intention to propose any such
merger, demerger, acquisition, disposal or transfer or other event as
aforesaid;
(v) no member of the Offeree Group has authorised, issued or
proposed the issue of any debentures, or (save in the ordinary course
of business) incurred or increased any indebtedness or contingent
liability of an aggregate amount which is material in the context of
the Offeree Group taken as a whole;
(vi) no member of the Offeree Group has purchased, redeemed or
repaid or announced any proposal to purchase, redeem or repay any of
its own shares or other securities or reduced or made any other change
to any part of its share capital;
(vii) no member of the Offeree Group has entered into or varied any
contract (including any guarantee), arrangement, transaction or binding
commitment (whether in respect of capital expenditure or otherwise),
which is of a long-term, unduly onerous or unusual nature or magnitude
or which is or would be restrictive of the business of any member of
the Offeree Group or which involves or would involve an obligation of
such a nature or magnitude and which is other than in the ordinary
course of business and which in each case is material in the context of
the Offeree Group taken as a whole;
(viii) except as referred to in this Announcement, neither Offeree
nor any of its Subsidiaries has entered into or changed or made any
offer (which remains open for acceptance) to enter into or change the
terms of any contract (including any service contract) with any of the
directors of Offeree which is material in the context of the Offeree
Group taken as a whole;
(ix) no member of the Offeree Group has taken any corporate action
or had any legal proceedings instituted against it for its winding-up
(voluntarily or otherwise), dissolution or reorganisation or for the
appointment of a receiver, administrator, administrative receiver,
trustee or similar officer of all or any of its assets or revenues or
any analogous proceedings in any jurisdiction or appointed any
analogous person in any jurisdiction (in each case in a manner which
could reasonably be expected to have a material and adverse effect on
the Offeree Group taken as a whole);
(x) no member of the Offeree Group has been unable or has admitted
in writing that it is unable to pay its debts or has stopped or
suspended (or threatened to stop or suspend) payment of its debts
generally or ceased or threatened to cease carrying on all or a
substantial part of its business;
(xi) no member of the Offeree Group has waived or compromised any
claim which is material in the context of the Offeree Group, taken as a
whole;
(xii) the Offeree has not made any alteration to its Memorandum or
Articles of Association (other than the alterations agreed with the
Offeror to be proposed at the Extraordinary General Meeting); and
A-45
(xiii) no member of the Offeree Group has entered into any contract,
commitment, agreement or arrangement or passed any resolution with
respect to, or announced an intention to, or to propose to effect any
of the transactions, matters or events referred to in this paragraph
3(f);
(g) since December 31, 2000 and except as publicly disclosed or
disclosed pursuant to Offeror Disclosed Matters or as would be disclosed in
any publicly available certificate relating to the Offeror issued by the
Secretary of State for the State of Delaware as at the Business Day
immediately preceding the date of this Announcement:
(i) (save as between a wholly-owned Subsidiary of Offeror and
Offeror or another wholly-owned Subsidiary of Offeror) no member of the
Offeror Group has issued or agreed to issue or authorised or proposed
the issue of additional shares of any class, or securities convertible
into, or rights, warrants or options to subscribe for or acquire, any
such shares or convertible securities (save for any options granted,
and Offeror Shares unconditionally issued upon or pursuant to the
exercise of options granted, prior to the date of this Announcement
under the Sequenom Share Option Plan and disclosed in writing to
Offeree prior to such date);
(ii) no member of the Offeror Group has recommended, declared, paid,
made or proposed to recommend, declare, pay or make any bonus, dividend
or other distribution (save as between a wholly-owned Subsidiary of
Offeror and Offeror or another wholly-owned Subsidiary of Offeror);
(iii) no member of the Offeror Group has made or authorised or
proposed or announced any material change in its share or loan capital,
outside the ordinary course of business;
(iv) (save for transactions between a wholly-owed Subsidiary of
Offeror and Offeror or another wholly-owned Subsidiary of Offeror) no
member of the Offeror Group has merged with or demerged or acquired any
body corporate or acquired or disposed of or transferred, mortgaged or
charged or created any security interest over any assets or any right,
title or interest in any assets (other than in the ordinary course of
business) which is material to the Offeror Group taken as a whole or
authorised or proposed or announced any intention to propose any such
merger, demerger, acquisition, disposal or transfer or other event as
aforesaid;
(v) no member of the Offeror Group has authorised, issued or
proposed the issue of any debentures, or (save in the ordinary course
of business) incurred or increased any indebtedness or contingent
liability of an aggregate amount which is material in the context of
the Offeror Group taken as a whole;
(vi) no member of the Offeror Group has purchased, redeemed or
repaid or announced any proposal to purchase, redeem or repay any of
its own shares or other securities or reduced or made any other change
to any part of its share capital;
(vii) no member of the Offeror Group has entered into or varied any
contract (including any guarantee), arrangement, transaction or binding
commitment (whether in respect of capital expenditure or otherwise),
which is of a long-term, unduly onerous or unusual nature or magnitude
or which is or would be restrictive of the business of any member of
the Offeror Group or which involves or would involve an obligation of
such a nature or magnitude and which is other than in the ordinary
course of business and which in each case is material in the context of
the Offeror Group taken as a whole;
(viii) except as referred to in this Announcement, neither Offeror
nor any of its Subsidiaries has entered into or changed or made any
offer (which remains open for acceptance) to enter into or change the
terms of any contract (including any service contract) with any of the
directors of Offeror which is material in the context of the Offeror
Group taken as a whole;
(ix) no member of the Offeror Group has taken any corporate action
or had any legal proceedings instituted against it for its winding-up
(voluntarily or otherwise), dissolution or reorganisation or for the
appointment of a receiver, administrator, administrative receiver,
trustee or
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similar officer of all or any of its assets or revenues or any analogous
proceedings in any jurisdiction or appointed any analogous person in any
jurisdiction (in each case in a manner which could reasonably be
expected to have a material and adverse effect on the Offeror Group
taken as a whole);
(x) no member of the Offeror Group has been unable or has admitted in
writing that it is unable to pay its debts or has stopped or suspended
(or threatened to stop or suspend) payment of its debts generally or
ceased or threatened to cease carrying on all or a substantial part of
its business;
(xi) no member of the Offeror Group has waived or compromised any
claim which is material in the context of the Offeror Group, taken as a
whole;
(xii) Offeror has not made any alteration to its Certificate of
Incorporation and By-Laws; and
(xiii) no member of the Offeror Group has entered into any contract,
commitment, agreement or arrangement or passed any resolution with
respect to, or announced an intention to, or to propose to effect any of
the transactions, matters or events referred to in this paragraph 3(g);
(h) the Offeror Shares to be issued pursuant to the Scheme have been
approved for trading upon notice of issuance on NASDAQ;
(i) Offeror has not discovered that, save for Offeree Disclosed Matters:
(i) any past or present member of the Offeree Group has not complied
with all applicable legislation or regulations of any jurisdiction with
regard to the storage, carriage, disposal, discharge, spillage, leakage
or emission of any waste or hazardous substance or any substance likely
to impair the environment or harm human health, which non-compliance or
any other disposal, discharge, spillage, leakage or emission which has
occurred would be likely to give rise to any liability (whether actual
or contingent) on the part of any member of the Offeree Group and which
is material and adverse in the context of the Offeree Group taken as a
whole; or
(ii) there is or is likely to be any liability (whether contingent or
otherwise) to make good, repair, reinstate or clean up any property now
or previously owned, occupied or made use of by any past or present
member of the Offeree Group, or in which any such member may now or
previously have had or be deemed to have or have had an interest, under
any environmental legislation, notice, circular or order of any relevant
authority or to contribute to the cost thereof or associated therewith
or indemnify any person in relation thereto, in any such case to an
extent which is material and adverse in the context of the Offeree Group
taken as a whole; or
(iii) circumstances exist whereby a person or class of persons would
be likely to have a claim or claims in respect of any product or process
of manufacture or materials used therein now or previously manufactured,
sold or carried out by any past or present member of the Offeree Group
which, in any such case, would or could reasonably be expected to be
material and adverse in the context of the Offeree Group taken as a
whole;
(j) Offeree has not discovered that, save for Offeror Disclosed Matters:
(i) any past or present member of the Offeror Group has not complied
with all applicable legislation or regulations of any jurisdiction with
regard to the storage, carriage, disposal, discharge, spillage, leakage
or emission of any waste or hazardous substance or any substance likely
to impair the environment or harm human health, which non-compliance or
any other disposal, discharge, spillage, leakage or emission which has
occurred would be likely to give rise to any liability (whether actual
or contingent) on the part of any member of the Offeror Group and which
is material and adverse in the context of the Offeror Group taken as a
whole; or
(ii) there is or is likely to be any liability (whether contingent or
otherwise) to make good, repair, reinstate or clean up any property now
or previously owned, occupied or made use of by any past or present
member of the Offeror Group, or in which any such member may now or
previously have had or be deemed to have or have had an interest, under
any environmental legislation, notice,
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circular or order of any relevant authority or to contribute to the cost
thereof or associated therewith or indemnify any person in relation
thereto, in any such case to an extent which is material and adverse in
the context of the Offeror Group taken as a whole; or
(iii) circumstances exist whereby a person or class of persons would
be likely to have a claim or claims in respect of any product or process
of manufacture or materials used therein now or previously manufactured,
sold or carried out by any past or present member of the Offeror Group
which, in any such case, would or could reasonably be expected to be
material and adverse in the context of the Offeror Group taken as a
whole;
(k) each of Paul Kelly, Jeremy Ingall and Patrick Kleyn and having
before the Effective Date entered into agreements with Offeree to terminate
their existing service agreements with Offeree and having entered into or
agreed to enter into new service agreements with Offeror, in each case on
terms reflecting the terms agreed with them on or prior to May 29, 2001 and
otherwise in the terms agreed from time to time between such persons,
Offeror and Offeree, in each case subject to the Scheme becoming effective;
(l) each of Offeror and Michael Fitzgerald, Genelink Holdings Ltd,
Radisson Trustees Ltd and Cloverleaf Holdings Limited has executed and
delivered on or prior to the Effective Date the new registration rights
agreement in the Agreed Terms;
(m) Michael Fitzgerald and his nominee have been appointed as directors
to the board of the Offeror;
(n) each of Offeree and Offeror has not breached the terms of and has
performed its obligations pursuant to the Transaction Agreement, in any
such case in all material respects; and
(o) the engagement letter between Lipe & Co. and Offeree, as amended as
of May 27, 2001, remaining in full force and effect, without further
amendment.
4. Offeror reserves the right and shall be entitled, in its absolute
discretion, to waive all or any of the conditions set out in paragraph 3 above
other than conditions (b), (g), (h), (j) and (m) provided that it will waive
conditions (c), (d) and (l) only with Offeree's prior written approval and
condition (n) only to the extent that it relates to Offeree or the Offeree's
Group. Offeree reserves the right and shall be entitled, in its absolute
discretion, to waive all or any of the conditions set out in paragraph 3 above
other than conditions (a), (e), (f), (i), (k) and (o) provided that it will
waive conditions (c) and (d) only with Offeror's prior written approval and
condition (n) only to the extent that it relates to Offeror or the Offeror's
Group.
5. Offeree and Offeror have agreed, subject as stated in paragraph 6 of
this Appendix, that the Transaction will also be conditional upon and,
accordingly, an office copy of the Final Court Order will only be delivered
for registration to the Registrar of Companies in England and Wales if (i)
clearances have been received, in a form reasonably acceptable to the
Directors of Offeree, from the Inland Revenue under section 138 of the
Taxation of Chargeable Gains Act 1992 and under section 707 of the Income and
Corporation Taxes Act 1988 for transactions involved in the Scheme and (ii)
the Transaction qualifies as a tax-free reorganization for U.S. federal income
tax purposes under Section 368(a) of the Internal Revenue Code, provided that
neither Offeree nor Offeror may otherwise assert that the condition under
clause (ii) of this paragraph 5 has not been satisfied if such asserting party
is in breach of its obligations under Clause 8.15 of the Transaction
Agreement; provided, further, that neither Offeree nor Offeror may otherwise
assert that the condition under clause (ii) of this paragraph 5 has not been
satisfied if Skadden, Arps, Slate, Meagher & Flom LLP provides an opinion to
Offeree and to Offeror to the effect that the Transaction will qualify as a
reorganization under Section 368(a) of the Internal Revenue Code.
6. Offeree reserves the right, in its absolute discretion, to waive the
condition set out in paragraph 5. Each of Offeror and Offeree reserves the
right in its absolute discretion to waive the condition set out in paragraph
5(ii) subject as therein provided.
The Scheme will not proceed if the proposed Transaction is referred to the
Competition Commission before the date of the Court Meeting. In such event,
neither Offeror nor any holder of Offeree Shares will be bound by any term of
the Scheme.
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APPENDIX V
EMPLOYMENT AGREEMENT TERMS
SUMMARY OF
EMPLOYMENT AGREEMENT TERMS
Paul Kelly
General
Dr. Kelly has agreed to enter into an employment agreement with Sequenom,
Inc. (the "Agreement"), to become effective as of the closing of Gemini
Genomics PLC's proposed transaction with Sequenom (the "Closing"). Until the
Closing, Dr. Kelly's current Employment Agreement will remain in effect. Dr.
Kelly further agrees to terminate his existing Employment Agreement with Gemini
immediately prior to the Closing and release all employment related claims
under U.K. and U.S. law.
Position and Duties
Dr. Kelly will serve as an Officer of Sequenom and Executive Vice-President
of Sequenom's Biotherapeutics Division with duties that are customarily
assigned to such position. Dr. Kelly will serve on the Executive Management
Team of Sequenom and will serve on the board of directors of Sequenom's
Biotherapeutics Division.
Location
Dr. Kelly's principal place of employment will be based in Newton,
Massachusetts.
Initial Payments
At the Closing, Sequenom will make a non-refundable payment to Dr. Kelly in
the aggregate of $200,000, one-half of which represents a relocation payment
and one-half of which represents a sign-on bonus.
Annual Salary and Bonus
During employment, Dr. Kelly will earn an annual base salary of $270,000 and
will be entitled to an annual bonus of up to 50% of his annual base salary. Dr.
Kelly will be entitled to a guaranteed minimum bonus of $67,500 for the year
ended June 30, 2002. Bonus amounts will be paid to Dr. Kelly on June 30 of each
year.
Stock Options
Sequenom will grant Dr. Kelly an option to purchase 75,000 shares of
Sequenom Common Stock (the "Sequenom Shares"), at an exercise price per share
equal to the closing price of a share of Sequenom Common Stock as reported on
Nasdaq on the Effective Date. Such option will vest in equal monthly
installments over a four year period, or earlier upon the completion of
milestones to be agreed upon by Sequenom and Dr. Kelly. A portion of the
Sequenom Shares will vest upon the completion of each milestone. Assuming all
milestones are completed by Dr. Kelly within the first year, 100% of the
Sequenom Shares subject to the option will be vested one year from the
Effective Date.
Other Benefits
During his employment, Dr. Kelly will be eligible to participate in all
employee benefit, welfare and other plans, practices, policies and programs and
fringe benefits of Sequenom on a basis no less favorable than those provided to
other similarly situated executives of Sequenom and Sequenom's subsidiaries.
A-49
Effect of Termination of Employment
Dr. Kelly's employment may be terminated by Sequenom without cause only upon
12 months notice (or by making payment in lieu of notice described below). If
Sequenom wishes to make payment in lieu of notice, or if Dr. Kelly terminates
his employment due to a constructive dismissal (e.g., relocation; diminution in
authority, responsibilities, status, etc.; material breach of agreement by
Sequenom), Dr. Kelly will be entitled to a severance payment equal to 100% of
his then annual base salary.
Other Customary Provisions
The Agreement will include other customary provisions, such as restrictive
covenants and indemnification, substantially similar to the provisions
contained in existing employment agreements between Sequenom and its executive
officers.
A-50
SUMMARY OF
EMPLOYMENT AGREEMENT TERMS
Jeremy Ingall
General
Mr. Ingall has agreed to enter into an employment agreement with Sequenom,
Inc. (the "Agreement"), to become effective as of the closing of Gemini
Genomics PLC's proposed transaction with Sequenom (the "Closing"). Until the
Closing, Mr. Ingall's current Consultancy Agreement will remain in effect. Mr.
Ingall further agrees to terminate his existing Consultancy Agreement with
Gemini immediately prior to the Closing and release all employment related
claims under U.K. and U.S. law.
Position and Duties
Mr. Ingall will serve as Senior Vice President, Commercial Operations of
Sequenom's Biotherapeutics Division with duties that are customarily assigned
to such position. Mr. Ingall will serve on the board of directors of Sequenom's
Biotherapeutics Divisions.
Location
Mr. Ingall's principal place of employment will be based in Newton,
Massachusetts.
Initial Payments
At the Closing, Sequenom will make a non-refundable payment to Mr. Ingall in
the aggregate of $200,000, one-half of which represents a relocation payment
and one-half of which represents a sign-on bonus.
Annual Salary and Bonus
During employment, Mr. Ingall will earn an annual base salary of $225,000
and will be entitled to an annual bonus of up to 50% of his annual base salary.
Mr. Ingall will be entitled to a guaranteed minimum bonus of $56,250 for the
year ended June 30, 2002. Bonus amounts will be paid to Mr. Ingall on June 30
of each year.
Stock Options
Sequenom will grant Mr. Ingall an option to purchase 37,500 shares of
Sequenom Common Stock (the "Sequenom Shares"), at an exercise price per share
equal to the closing price of a share of Sequenom Common Stock as reported on
Nasdaq on the Effective Date. Such option will vest in equal monthly
installments over a four year period, or earlier upon the completion of
milestones to be agreed upon by Sequenom and Mr. Ingall. A portion of the
Sequenom Shares will vest upon the completion of each milestone. Assuming all
milestones are completed by Mr. Ingall within the first year, 100% of the
Sequenom Shares subject to the option will be vested one year from the
Effective Date.
Other Benefits
During his employment, Mr. Ingall will be eligible to participate in all
employee benefit, welfare and other plans, practices, policies and programs and
fringe benefits of Sequenom on a basis no less favorable than those provided to
other similarly situated executives of Sequenom and Sequenom's subsidiaries.
Effect of Termination of Employment
Mr. Ingall's employment may be terminated by Sequenom without cause only
upon 12 months notice (or by making payment in lieu of notice described below).
If Sequenom wishes to make payment in lieu of notice,
A-51
or if Mr. Ingall terminates his employment due to a constructive dismissal
(e.g., relocation; diminution in authority, responsibilities, status, etc.;
material breach of agreement by Sequenom), Mr. Ingall will be entitled to a
severance payment equal to 100% of his then annual base salary.
Other Customary Provisions
The Agreement will include other customary provisions, such as restrictive
covenants and indemnification, substantially similar to the provisions
contained in existing employment agreements between Sequenom and its executive
officers.
G Co PLC Options
Mr. Ingall's option to purchase 250,000 ADRs of G Co PLC stock at a cost of
$14.00 each and granted in November, 2000 will be canceled effective as of the
Closing and Mr. Ingall will agree to waive his right to a rollover of such
option pursuant to Appendix II of the Transaction Agreement between G Co PLC
and Sequenom.
A-52
SUMMARY OF
EMPLOYMENT AGREEMENT TERMS
Patrick Kleyn
General
Dr. Kleyn has agreed to enter into an employment agreement with Sequenom,
Inc. (the "Agreement"), to become effective as of the closing of Gemini
Genomics PLC's proposed transaction with Sequenom (the "Closing"). Until the
Closing, Dr. Kleyn's current Employment Agreement will remain in effect. Dr.
Kleyn further agrees to terminate his existing Employment Agreement with Gemini
immediately prior to the Closing and release all employment related claims
under U.K. and U.S. law.
Position and Duties
Dr. Kleyn will serve as Senior Vice President, Research and Development of
Sequenom's Biotherapeutics Division with duties that are customarily assigned
to such position. Dr. Kleyn will serve on the board of directors of Sequenom's
Biotherapeutics Division.
Location
Dr. Kleyn's principal place of employment will be based in Newton,
Massachusetts.
Initial Payments
At the Closing, Sequenom will make a non-refundable payment to Dr. Kleyn in
the aggregate of $50,000, which represents a sign-on bonus.
Annual Salary and Bonus
During employment, Dr. Kleyn will earn an annual base salary of $195,000 and
will be entitled to an annual bonus of up to 50% of his annual base salary.
Bonus amounts will be paid to Dr. Kleyn on June 30 of each year.
Stock Options
Sequenom will grant Dr. Kleyn an option to purchase 37,500 shares of
Sequenom Common Stock (the "Sequenom Shares"), at an exercise price per share
equal to the closing price of a share of Sequenom Common Stock as reported on
Nasdaq on the Effective Date. Such option will vest in equal monthly
installments over a four year period, or earlier upon the completion of
milestones to be agreed upon by Sequenom and Dr. Kleyn. A portion of the
Sequenom Shares will vest upon the completion of each milestone. Assuming all
milestones are completed by Dr. Klein within the first year, 100% of the
Sequenom Shares subject to the option will be vested one year from the
Effective Date.
Other Benefits
During his employment, Dr. Kleyn will be eligible to participate in all
employee benefit, welfare and other plans, practices, policies and programs and
fringe benefits of Sequenom on a basis no less favorable than those provided to
other similarly situated executives of Sequenom and Sequenom's subsidiaries.
Effect of Termination of Employment
Dr. Kleyn's employment may be terminated by Sequenom without cause only upon
6 months notice (or by making payment in lieu of notice described below). If
Sequenom wishes to make payment in lieu of notice, or
A-53
if Dr. Kleyn terminates his employment due to a constructive dismissal (e.g.,
relocation; diminution in authority, responsibilities, status, etc.; material
breach of agreement by Sequenom), Dr. Kleyn will be entitled to a severance
payment equal to 50% of his then annual base salary.
Other Customary Provisions
The Agreement will include other customary provisions, such as restrictive
covenants and indemnification, substantially similar to the provisions
contained in existing employment agreements between Sequenom and its executive
officers.
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APPENDIX VI
FORM OF NEW REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as of
the day of , 2001, by and among Sequenom, Inc., a Delaware
corporation (the "Company") and Michael Fitzgerald, Genelink Holdings Ltd.,
Raddison Trustee Ltd., and Cloverleaf Holdings Limited (each an "Investor" and
collectively, the "Investors").
Recitals
Whereas, in connection with the Company's acquisition of Gemini Genomics PLC
("Gemini") by means of a Scheme of Arrangement (the "Transaction") under
Section 425 of the Companies Act 1985 of Great Britain, as amended, pursuant to
that certain Transaction Agreement dated May , 2001 between the Company and
Gemini (the "Transaction Agreement"), the Investors will acquire an aggregate
of shares of the Company's Common Stock as set forth on Schedule A
hereto;
Whereas, in furtherance of the Transaction and in satisfaction of a
condition under the Transaction Agreement, the parties desire to enter into
this Agreement to grant certain registration rights to the Investors; and
Whereas, the Company has obtained the requisite written consent from the
Existing Holders (as defined herein) to grant the registration rights set forth
herein to the Investors.
Now, Therefore, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree hereto as follows:
Section 1. General
1.1 Definitions. As used in this Agreement the following terms shall have
the following respective meanings:
(a) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(b) "Existing Holders"means any person owning of record Existing
Registrable Securities (as defined herein) or any permitted transferee of
such Existing Registrable Securities under that certain Amended and
Restated Registration Rights Agreement dated as of December 21, 1998
between the Company and certain stockholders of the Company (the "Existing
Registration Rights Agreement").
(c) "Existing Registrable Securities" means "Registrable Securities" as
such term is defined in the Existing Registration Rights Agreement.
(d) "Form S-3" means such form under the Securities Act as in effect on
the date hereof or any successor or similar registration form under the
Securities Act subsequently adopted by the SEC which permits inclusion or
incorporation of substantial information by reference to other documents
filed by the Company with the SEC.
(e) "Holder" means any person owning of record Registrable Securities
that have not been sold to the public or any assignee of record of such
Registrable Securities in accordance with Section 2.7 hereof.
(f) "Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance
with the Securities Act, and the declaration or ordering of effectiveness
of such registration statement or document.
(g) "Registrable Securities" means (a) the shares of Common Stock of the
Company issued to the Investors in connection with the consummation of the
Transaction and any of such shares subsequently
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transferred to any permitted assigns (b) any Common Stock of the Company
issued as a dividend or other distribution with respect to, or in exchange
for or in replacement of, such above-described securities. Notwithstanding
the foregoing, Registrable Securities shall not include any securities sold
by a person to the public either pursuant to a registration statement, Rule
144 or Rule 145 or sold in a private transaction in which the transferor's
rights under Section 2 of this Agreement are not assigned.
(h) "Registrable Securities then outstanding" shall be the number of
shares determined by calculating the total number of shares of the
Company's Common Stock that are Registrable Securities hereunder and then
issued and outstanding.
(i) "Registration Expenses" shall mean all expenses (excluding Selling
Expenses) incurred by the Company in connection with registrations under
Sections 2.1 and 2.2 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, reasonable fees and disbursements of special
counsel for the Holders together with the holders of any other securities
of the Company entitled to inclusion in any such registration, blue sky
fees and expenses and the expense of any special audits incident to or
required by any such registration (but excluding the compensation of
regular employees of the Company which shall be paid in any event by the
Company).
(j) "SEC" or "Commission" means the Securities and Exchange Commission.
(k) "Securities Act" shall mean the Securities Act of 1933, as amended.
(l) "Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale.
(m) "Special Registration Statement" shall mean (i) a registration
statement relating to any employee benefit plan or (ii) with respect to any
corporate reorganization or transaction under Rule 145 of the Securities
Act, including any registration statements related to the resale of
securities issued in such a transaction.
Section 2. Registration.
2.1 Piggyback Registrations.
(a) The Company shall notify all Holders in writing at least thirty (30)
days prior to the filing of any registration statement under the Securities
Act for purposes of a public offering of securities of the Company
(including, but not limited to, registration statements relating to
secondary offerings of securities of the Company, but excluding Special
Registration Statements) for its own account or for the account of other
stockholders, solely for cash on a form that would also permit the
registration of the Registrable Securities, and will afford each such
Holder an opportunity to include in such registration statement all or part
of such Registrable Securities held by such Holder. Each Holder desiring to
include in any such registration statement all or any part of the
Registrable Securities held by it shall, within thirty (30) days after the
above-described notice from the Company, so notify the Company in writing.
Such notice shall state the intended method of disposition of the
Registrable Securities by such Holder. If a Holder decides not to include
all of its Registrable Securities in any registration statement thereafter
filed by the Company, such Holder shall nevertheless continue to have the
right to include any Registrable Securities in any subsequent registration
statement or registration statements as may be filed by the Company with
respect to offerings of its securities, all upon the terms and conditions
set forth herein.
(b) If the registration statement under which the Company gives notice
under this Section 2.1 is for an underwritten offering, the Company shall
so advise the Holders. In such event, the right of any such Holder to be
included in a registration pursuant to this Section 2.1 shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to
the extent provided herein. All Holders proposing to distribute their
Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company. Notwithstanding
any other
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provision of this Agreement, if the total amount of securities that all
Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, request to be included in an
underwritten offering exceeds the amount of securities that the
underwriters reasonably believe compatible with the success of the
offering, the number of shares that may be included in the underwriting
shall be allocated, first, to the Company; second, to the Holders together
with the Existing Holders on a pro rata basis based on the total number of
Registrable Securities and Existing Registrable Securities held by such
Holders and Existing Holders; and third, to any other stockholder of the
Company on such terms as the Company determines.
(c) The Company shall have the right to terminate or withdraw any
registration initiated by it under this Section 2.1 prior to the
effectiveness of such registration whether or not any Holder has elected to
include securities in such registration. The Registration Expenses of such
withdrawn registration shall be borne by the Company in accordance with
Section 2.3 hereof.
(d) In connection with the preparation and filing of each registration
statement under the Securities Act pursuant to this Agreement, the Company
will give the Holders of Registrable Securities registered under such
registration statement, and their respective counsel and accountants, the
opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission,
and each amendment thereof or supplement thereto, and will give each of
them such access to its books and records and such opportunities to discuss
the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be
necessary, in the opinion of such Holders' and such underwriters'
respective counsel, to conduct a reasonable investigation within the
meaning of the Securities Act.
2.2 Form S-3 Registration. In case the Company shall receive from any
Holder or Holders of Registrable Securities a written request or requests
that the Company effect a registration on Form S-3 (or any successor to
Form S-3) or any similar short-form registration statement and any related
qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company will
use its best efforts to:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of
any other Holder or Holders (or a holder of any other security of the
Company entitled to inclusion in such registration) joining in such request
as are specified in a written request given within fifteen (15) days after
receipt of such written notice from the Company; provided, however, that
the Company shall not be obligated to effect any such registration,
qualification or compliance pursuant to this Section 2.2:
(i) if Form S-3 is not available for such offering by the Holders,
or
(ii) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if
any) at a reasonably anticipated aggregate price to the public of less
than two million dollars ($2,000,000), or
(iii) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or
compliance.
(c) Subject to the foregoing, the Company shall use its best efforts to
file a Form S-3 registration statement covering the Registrable Securities
and other securities so requested to be registered as soon as practicable
after receipt of the requests of the Holders.
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2.3 Expenses of Registration. Except as specifically provided herein, all
Registration Expenses incurred in connection with any registration under
Section 2.1 or Section 2.2 herein shall be borne by the Company; provided,
however, that, after the first two registrations under Section 2.2, all
Registration Expenses shall be borne by the Company, except that all fees and
disbursements of a special counsel, if any, shall be borne by the selling
Holders, together with any selling Existing Holders. All Selling Expenses
incurred in connection with any registrations hereunder, shall be borne by the
holders of the securities so registered pro rata on the basis of the number of
shares so registered.
2.4 Obligations of the Company. Whenever required to effect the registration
of any Registrable Securities, the Company shall use its best efforts to:
(a) Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and cause such registration statement to
become effective, and keep such registration statement effective for up to
one hundred eighty (180) days or, if earlier, until the Holder or Holders
have completed the distribution related thereto.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by such registration statement for the period set forth in
paragraph (a) above.
(c) Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by
them.
(d) Register and qualify the securities covered by such registration
statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders; provided
that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions; and provided
further that (anything in this Agreement to the contrary notwithstanding
with respect to the bearing of expenses) if any jurisdiction in which the
securities shall be qualified shall require that expenses incurred in
connection with the qualification of the securities in that jurisdiction be
borne by selling stockholders, then such expenses shall be payable by
selling stockholders pro rata, to the extent required by such jurisdiction.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. Each
Holder participating in such underwriting shall also enter into and perform
its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing. The Company will use its best efforts to amend
or supplement such prospectus in order to cause such prospectus not to
include any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
2.5 Delay of Registration; Furnishing Information.
(a) No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of
any controversy that might arise with respect to the interpretation or
implementation of this Section 2.
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(b) It shall be a condition precedent to the obligations of the Company
to take any action pursuant to Section 2.1 or 2.2 that the holders selling
securities in such registration shall furnish to the Company such
information regarding themselves, the securities held by them and the
intended method of disposition of such securities as shall be required to
effect the registration of such securities.
2.6 Indemnification. In the event any Registrable Securities are included in
a registration statement under Sections 2.1 or 2.2:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Holder requesting or joining in a registration, any
underwriter (as defined in the Securities Act) for such Holder and each
person, if any, who controls such Holder or underwriter within the meaning
of the Securities Act or the Exchange Act, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Securities Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation") by the
Company: (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including, without
limitation, any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or
alleged omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities
Act, the Exchange Act, any state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state
securities law in connection with the offering covered by such registration
statement; and the Company will reimburse each such Holder, such
underwriter or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided however, that
the indemnity agreement contained in this Section 2.6(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company,
which consent shall not be unreasonably withheld, nor shall the Company be
liable in any such case for any such loss, claim, damage, liability or
action to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by such
Holder, underwriter or controlling person of such Holder.
(b) To the extent permitted by law, each Holder joining in a
registration will, if Registrable Securities held by such Holder are
included in the securities as to which such registration qualifications or
compliance is being effected, indemnify and hold harmless the Company, each
of its directors, its officers and each person, if any, who controls the
Company within the meaning of the Securities Act, and any underwriter,
against any losses, claims, damages or liabilities (joint or several) to
which the Company or any such director, officer, controlling person,
underwriter may become subject under the Securities Act, the Exchange Act
or other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon
any Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with
such registration; and each such Holder will reimburse the Company or any
such director, officer, controlling person or underwriter for any legal or
other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action if it is
judicially determined that there was such a Violation; provided, however,
that the indemnity agreement contained in this Section 2.6(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
the Holder, which consent shall not be unreasonably withheld; provided
further, that in no event shall any indemnity under this Section 2.6 exceed
the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
2.6 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim
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in respect thereof is to be made against any indemnifying party under this
Section 2.6, notify the indemnifying party in writing of the commencement
thereof and the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly with any
other indemnifying party similarly noticed, to assume the defense thereof
with counsel mutually satisfactory to the parties. The failure to notify an
indemnifying party promptly of the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
Section 2.6, but the omission so to notify the indemnifying party will not
relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 2.6.
(d) If the indemnification provided for in this Section 2.6 is
unavailable to or insufficient to hold harmless an indemnified party
hereunder in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and the indemnified party in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or by such
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 2.6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the preceding sentence. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligations of the
Holders in this Section 2.6(d) to contribute shall be several in proportion
to the percentage of the total Registrable Securities registered by them
and not joint.
2.7 Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Section 2 may be assigned by a
Holder to a transferee or assignee of Registrable Securities that (a) is a
subsidiary, parent, general partner, limited partner, retired partner, member
or retired member, stockholder or shareholder of a Holder, (b) is a Holder's
family member or trust for the benefit of an individual Holder, or (c) acquires
at least twenty thousand (20,000) shares of Registrable Securities (as adjusted
for stock splits and combinations); or (d) is an entity affiliated by common
control (or other related entity) with such Holder; provided, however, that (i)
the transferor shall, within ten (10) days after such transfer, furnish to the
Company written notice of the name and address of such transferee or assignee
and the securities with respect to which such registration rights are being
assigned and (ii) such transferee shall agree to be subject to all restrictions
set forth in this Agreement.
2.8 Mergers, Etc. The Company shall not, directly or indirectly, enter into
any merger, consolidation or reorganization in which the Company shall not be
the surviving corporation unless the proposed surviving corporation shall,
prior to such merger, consolidation or reorganization, agree in writing to
assume the obligations of the Company under this Agreement, and for that
purpose references hereunder to "Registrable Securities" shall be deemed to be
references to the securities which the Holders would be entitled to receive in
exchange for Registrable Securities under any such merger, consolidation or
reorganization; provided, however, that the provisions of this Agreement shall
not apply in the event of any merger, consolidation or reorganization in which
the Company is not the surviving corporation if the Holders of Registrable
Securities are entitled to receive in exchange therefore (i) cash, or (ii)
securities of the acquiring corporation which may be immediately sold to the
public without registration under the Securities Act.
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2.9 Amendment of Registration Rights. Any provision of this Section 2 may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Holders of at least a majority of the
Registrable Securities then outstanding. Any amendment or waiver effected in
accordance with this Section 2.9 shall be binding upon each Holder and the
Company.
2.10 Limitation on Subsequent Registration Rights. After the date of this
Agreement, the Company shall not, without the prior written consent of the
holders of at least a majority of the Registrable Securities and the Existing
Registrable Securities (considered as a single class), enter into any agreement
with any holder or prospective holder of any securities of the Company that
would grant such holder registration rights pari passu or senior to those
granted to the Holders hereunder, other than the right to a Special
Registration Statement.
2.11 Rule 144 Reporting. With a view to making available to the Holders the
benefits of certain rules and regulations of the SEC which may permit the sale
of the Registrable Securities to the public without registration, the Company
agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times;
(b) File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act; and
(c) So long as a Holder owns any Registrable Securities, furnish to such
Holder forthwith upon request: a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 of the
Securities Act, and of the Exchange Act (at any time after it has become
subject to such reporting requirements); a copy of the most recent annual
or quarterly report of the Company; and such other reports and documents as
a Holder may reasonably request in availing itself of any rule or
regulation of the SEC allowing it to sell any such securities without
registration.
Section 3. Miscellaneous.
3.1 No Violation of Existing Registration Rights Agreement. The Company
hereby represents that this Agreement does not violate in any manner the
Existing Registration Rights Agreement and that the Company has received all
necessary consents pursuant to the terms of the Existing Registration Rights
Agreement to enter into this Agreement and to grant the Holders any and all
rights hereunder.
3.2 Governing Law. This Agreement shall be governed by and construed under
the laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely within California.
3.3 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors, and administrators of the parties hereto
and shall inure to the benefit of and be enforceable by each person who shall
be a holder of Registrable Securities from time to time; provided, however,
that prior to the receipt by the Company of adequate written notice of the
transfer of any Registrable Securities specifying the full name and address of
the transferee, the Company may deem and treat the person listed as the holder
of such shares in its records as the absolute owner and holder of such shares
for all purposes, including the payment of dividends or any redemption price.
3.4 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
hereof and no party shall be liable or bound to any other in any manner by any
representations, warranties, covenants and agreements except as specifically
set forth herein and therein.
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3.5 Severability. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
3.6 Amendment and Waiver.
(a) Except as otherwise expressly provided, this Agreement may be
amended or modified only upon the written consent of the Company and a
majority of the Registrable Securities.
(b) Except as otherwise expressly provided, the obligations of the
Company and the rights of the Holders under this Agreement may be waived
only with the written consent of the holders of at least a majority of the
Registrable Securities.
(c) For the purposes of determining the number of Holders entitled to
vote or exercise any rights hereunder, the Company shall be entitled to
rely solely on the list of record holders of its stock as maintained by or
on behalf of the Company.
3.7 Termination of Agreement. A Holder's registration rights shall expire
and this Agreement shall terminate if and only to the extent that such Holder
or Registrable Securities held by such Holder are no longer subject to
limitation on the sale of such Registrable Securities under Rule 144 or Rule
145.
3.8 Delays or Omissions. It is agreed that no delay or omission to exercise
any right, power, or remedy accruing to any Holder, upon any breach, default or
noncompliance of the Company under this Agreement shall impair any such right,
power, or remedy, nor shall it be construed to be a waiver of any such breach,
default or noncompliance, or any acquiescence therein, or of any similar
breach, default or noncompliance thereafter occurring. It is further agreed
that any waiver, permit, consent, or approval of any kind or character on any
Holder's part of any breach, default or noncompliance under the Agreement or
any waiver on such Holder's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to Holders, shall be cumulative and
not alternative.
3.9 Notices. All notices required or permitted hereunder shall be in writing
and shall be deemed effectively given: (a) upon personal delivery to the party
to be notified, (b) when sent by confirmed electronic mail or facsimile if sent
during normal business hours of the recipient; if not, then on the next
business day, (c) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (d) one (1) day
after deposit with a nationally recognized overnight courier, specifying next
day delivery, with written verification of receipt. All communications shall be
sent to the Company at the address set forth below and to Investor at the
address set forth on Schedule A hereto or at such other address as the Company
or Investor may designate by ten (10) days advance written notice to the other
parties hereto:
If to the Company, to:
SEQUENOM, Inc.
3595 John Hopkins Court
San Diego, California 92121
Fax: (858) 202-9205
Attn: General Counsel
3.10 Attorneys' Fees. In the event that any suit or action is instituted to
enforce any provision in this Agreement, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
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3.11 Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
3.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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In Witness Whereof, the parties hereto have executed this Registration
Rights Agreement as of the date set forth in the first paragraph hereof.
COMPANY: INVESTORS:
SEQUENOM, INC.
By: ________________________
Antonius Schuh, Ph.D.
President and Chief
Executive Officer
By: __________________________________
Michael Fitzgerald
GENELINK HOLDINGS LTD.
By: __________________________________
Michael Fitzgerald
RADDISON TRUSTEE LTD.
By: __________________________________
Michael Fitzgerald
CLOVERLEAF HOLDINGS LIMITED
By: __________________________________
Michael Fitzgerald
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SCHEDULE A TO FORM OF NEW REGISTRATION RIGHTS AGREEMENT
SCHEDULE OF INVESTORS
Name and Address Registrable Securities
---------------- ----------------------
Michael Fitzgerald
Genelink Holdings Ltd.
Raddison Trustee Ltd.
Cloverleaf Holdings Limited
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ATTACHMENT B
[Letterhead of Robertson Stephens]
May 25, 2001
Board of Directors
SEQUENOM, Inc.
3595 John Hopkins Court
San Diego, CA 92121
Members of the Board:
We understand that Gemini Genomics PLC (the "Company") and SEQUENOM, Inc.
("Acquiror") are proposing to enter into a Transaction Agreement (the
"Agreement") which will provide, among other things, for the acquisition (the
"Transaction") by Acquiror of all outstanding Company Ordinary Shares (as
defined below) and Company ADSs (as defined below) pursuant to a scheme of
arrangement under Section 425 of the Companies Act 1985 of Great Britain, as
amended. Upon consummation of the Transaction, the Company will become a wholly
owned subsidiary of Acquiror.
Under the terms, and subject to the conditions, set forth in a draft of the
Agreement dated May 25, 2001 (the "Draft Agreement"), at the effective time of
the Transaction, (i) each outstanding ordinary share of the Company (a "Company
Ordinary Share") which is not represented by a Company ADS will be converted
into the right to receive 0.2 shares (the "Ordinary Share Exchange Ratio") of
the common stock of Acquiror, par value $0.001 per share ("Acquiror Common
Stock"), and (ii) each outstanding American Depositary Share of the Company (a
"Company ADS") subject to the Deposit Agreement, by and among the Company, The
Bank of New York, as depositary, and each holder and beneficial owner from time
to time of American Depositary Receipts issued thereunder, which represents two
Company Ordinary Shares, will be converted into the right to receive 0.4 shares
(the "ADS Exchange Ratio") of Acquiror Common Stock. The Ordinary Share
Exchange Ratio and the ADS Exchange Ratio are collectively referred to herein
as the "Exchange Ratios". The Draft Agreement further provides that the
Exchange Ratios will be subject to adjustment such that in no event will the
Acquiror issue more than 14,403,870 shares of Acquiror Common Stock in the
Transaction. The terms and conditions of the Transaction are set out more fully
in the Draft Agreement.
You have asked us whether, in our opinion, the Exchange Ratios are fair from
a financial point of view and as of the date hereof to Acquiror.
For purposes of this opinion we have, among other things:
(i) reviewed certain publicly available financial statements and other
business and financial information of the Company and Acquiror,
respectively;
(ii) reviewed certain internal financial statements and other
financial and operating data concerning the Company and Acquiror
prepared by the managements of the Company and Acquiror,
respectively;
(iii) reviewed with the Company and Acquiror certain publicly
available research estimates of research analysts regarding the
Company and Acquiror;
(iv) held discussions with the respective managements of the Company
and Acquiror concerning the businesses, past and current
operations, financial condition and future prospects of both the
Company and Acquiror, independently and combined, including
discussions with the management of Acquiror concerning cost
savings and other synergies that are expected to result from the
Transaction as well as discussions with the managements of the
Company and Acquiror concerning their views regarding the
strategic rationale for the Transaction;
(v) reviewed the financial terms and conditions set forth in the Draft
Agreement;
B-1
(vi) reviewed the price and trading history of Company ADSs and
Acquiror Common Stock;
(vii) compared the financial performance of the Company and the prices
and trading activity of Company ADSs with that of certain other
publicly traded companies comparable with the Company;
(viii) compared the financial performance of Acquiror and the prices
and trading activity of Acquiror Common Stock with that of
certain other publicly traded companies comparable with
Acquiror;
(ix) compared the financial terms of the Transaction with the
financial terms, to the extent publicly available, of other
transactions that we deemed relevant;
(x) compared the premium implied by the Transaction to the premiums
paid, to the extent publicly available, in other transactions that
we deemed relevant;
(xi) prepared an analysis of the relative contributions of the Company
and Acquiror to the combined company;
(xii) prepared a discounted cash flow analysis of the Company;
(xiii) participated in discussions and negotiations among
representatives of the Company and Acquiror and their financial
and legal advisors; and
(xiv) made such other studies and inquiries, and reviewed such other
data, as we deemed relevant.
In our review and analysis, and in arriving at our opinion, we have assumed
and relied upon the accuracy and completeness of all of the financial and other
information provided to us (including information furnished to us orally or
otherwise discussed with us by the managements of the Company and Acquiror) or
publicly available and have neither attempted to verify, nor assumed
responsibility for verifying, any of such information. We have relied upon the
assurances of the managements of the Company and Acquiror that they are not
aware of any facts that would make such information inaccurate or misleading.
Furthermore, we did not obtain or make, or assume any responsibility for
obtaining or making, any independent evaluation or appraisal of the properties,
assets or liabilities (contingent or otherwise) of the Company or Acquiror, nor
were we furnished with any such evaluation or appraisal. With respect to the
financial forecasts and projections (and the assumptions and bases therefor)
for each of the Company and Acquiror that we have reviewed, we have assumed
that such forecasts and projections have been reasonably prepared in good faith
on the basis of reasonable assumptions and reflect the best currently available
estimates and judgments as to the future financial condition and performance of
the Company and Acquiror, respectively, and we have further assumed that such
projections and forecasts will be realized in the amounts and in the time
periods currently estimated. We have assumed that the Transaction will be
consummated upon the terms set forth in the Draft Agreement without material
alteration thereof and that the Transaction will be accounted for as a
"purchase method" business combination in accordance with U.S. generally
accepted accounting principles ("GAAP"). We have further assumed that the
Transaction will be treated as a tax-free reorganization pursuant to the
Internal Revenue Code of 1986, as amended and that neither the Company nor the
Acquiror will be subject to income tax or other material tax under United
Kingdom law in connection with the Transaction. In addition, we have assumed
that the historical financial statements of each of the Company and Acquiror
reviewed by us have been prepared and fairly presented in accordance with U.S.
GAAP consistently applied. We have relied as to all legal matters relevant to
rendering our opinion on the advice of counsel.
This opinion is necessarily based upon market, economic and other conditions
as in effect on, and information made available to us as of, the date hereof.
It should be understood that subsequent developments may affect the conclusion
expressed in this opinion and that we disclaim any undertaking or obligation to
advise any person of any change in any matter affecting this opinion which may
come or be brought to our attention after the date of this opinion. Our opinion
is limited to the fairness, from a financial point of view and as to the date
hereof, to Acquiror of the Exchange Ratios. We do not express any opinion as to
(i) the value of any employee agreement or other arrangement entered into in
connection with the Transaction, (ii) any tax or other consequences that might
result from the Transaction or (iii) what the value of Acquiror Common Stock
B-2
will be when issued to the holders of the Company Ordinary Shares and the
holders of the Company ADSs pursuant to the Transaction or the price at which
shares of Acquiror Common Stock may be traded in the future. Our opinion does
not address the relative merits of the Transaction and the other business
strategies that Acquiror's Board of Directors has considered or may be
considering, nor does it address the decision of Acquiror's Board of Directors
to proceed with the Transaction.
We are acting as financial advisor to Acquiror in connection with the
Transaction and will receive (i) a fee contingent upon the delivery of this
opinion and (ii) an additional fee contingent upon the consummation of the
Transaction. In addition, Acquiror has agreed to indemnify us for certain
liabilities that may arise out of our engagement. In the past, we have
provided, and may continue to provide, certain financial advisory and
investment banking services to the Acquiror for which we have been, and expect
to be, compensated, including acting as co-manager for the Acquiror's initial
public offering in February 2000. We maintain a market in the shares of
Acquiror Common Stock. In the ordinary course of business, we may trade in
Acquiror's securities and the Company's securities for our own account and the
account of our customers and, accordingly, may at any time hold a long or short
position in Acquiror's securities or the Company's securities.
Our opinion expressed herein is provided for the information of the Board of
Directors of Acquiror in connection with its evaluation of the Transaction. Our
opinion is not intended to be and does not constitute a recommendation to any
shareholder of Acquiror or the Company or any holder of Company ADSs as to how
such shareholder or holder of Company ADSs should vote, or take any other
action, with respect to the Transaction. This opinion may not be summarized,
described or referred to or furnished to any party except with our express
prior written consent.
Based upon and subject to the foregoing considerations, it is our opinion
that, as of the date hereof, the Exchange Ratios are fair to Acquiror from a
financial point of view.
Very truly yours,
ROBERTSON STEPHENS, INC.
/s/ Robertson Stephens, Inc.
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ATTACHMENT C
CERTIFICATE OF AMENDMENT OF THE
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF SEQUENOM, INC.
SEQUENOM, INC., a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware (the "Corporation"), Does
Hereby Certify:
First: The name of this Corporation is SEQUENOM, Inc.
Second: The date on which the Second Amended and Restated Certificate of
Incorporation of the Corporation was originally filed with the Secretary of
State of the State of Delaware is February 1, 2000.
Third: This Certificate of Amendment amends certain provisions of the
Certificate of Incorporation of the Corporation and has been duly adopted by
the Board of Directors in accordance with the provisions of Sections 141 and
242 of the Delaware General Corporation Law ("DGCL"), and further adopted in
accordance with the provisions of Sections 228 and 242 of the DGCL by the
stockholders of the Corporation.
Fourth: Article VI of the Second Amended and Restated Certificate of
Incorporation shall be amended to add the following sentence at the end of
Article VI:
"The number of Directors which shall constitute the Board of Directors
shall be fixed exclusively by resolutions adopted by a majority of the
authorized number of Directors constituting the Board of Directors."
Fifth: Article X of the Second Amended and Restated Certificate of
Incorporation shall be amended to to add the following sentences at the end of
Article X:
"Notwithstanding any other provisions of this Second Amended and Restated
Certificate of Incorporation or any provision of law which might otherwise
permit a lesser vote or no vote, but in addition to any affirmative vote of the
holders of any particular class or series of the corporation required by law or
by this Second Amended and Restated Certificate of Incorporation or any
certificate of designation filed with respect to a series of Preferred Stock,
the affirmative vote of the holders of at least sixty-six and two-thirds
percent (66 2/3%) of the voting power of all of the then-outstanding shares of
capital stock of the corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to alter, amend
or repeal Articles VI and X."
C-1
In Witness Whereof, SEQUENOM, Inc. has caused this Certificate of Amendment
of the Second Amended and Restated Certificate of Incorporation to be signed by
its President and attested to by its Secretary this of 2001.
SEQUENOM, INC.
By: _________________________________
Antonius Schuh
Chief Executive Officer and
President
Attest:
_____________________________________
Stephen L. Zaniboni
Senior Vice President, Chief
Financial Officer
and Secretary
C-2
ATTACHMENT D
AMENDMENT TO
RESTATED BYLAWS
OF
SEQUENOM, INC.
The undersigned, being the duly appointed and acting Secretary of SEQUENOM,
INC., a Delaware corporation, hereby attests and verifies that the following
resolution was duly approved by the Board of Directors and by the stockholders
of the corporation on , 2001, as required under the Restated Bylaws of
the corporation:
Resolved, that Section 1 of Article III of the corporation's Bylaws be, and
it hereby is, amended to read as follows:
1. The fourth, fifth and sixth sentences of Section 1 of Article III, which
read as follows, are to be deleted in their entirety:
"The number of directors that shall constitute the whole board shall not
be less than four (4) nor more than seven (7). The number of Directors
which shall constitute the whole Board shall be fixed by resolution of the
Board of Directors, with the number initially fixed at five (5). The number
of Directors shall be determined by resolution of sixty-six and two-thirds
percent (66 2/3%) of the Directors then in office or by sixty-six and two-
thirds percent (66 2/3%) of the stockholders at the annual meeting of the
stockholders, and each Director elected shall hold office until his or her
successor is elected and qualified."
2. The following sentence should be added after the third sentence of
Section 1 of Article III as a replacement of the text set forth above:
"The authorized number of directors of the corporation shall be fixed in
accordance with the Certificate of Incorporation."
CERTIFICATE OF SECRETARY
I, the undersigned, certify that I am the presently elected and acting
Secretary of SEQUENOM, INC., a Delaware corporation, and the above amendment to
the corporation's Restated Bylaws was adopted at a duly called meeting of the
Board of Directors held on May 25, 2001 and by the stockholders of the
corporation on , 2001.
_____________________________________
Stephen L. Zaniboni
Senior Vice President, Chief
Financial Officer and Secretary
D-1
SEQUENOM, INC.
PROXY FOR THE SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON AUGUST 23, 2001
The undersigned hereby appoints Antonius Schuh, Ph.D. and Stephen L.
Zaniboni, and each of them, as attorneys and proxies of the undersigned, with
full power of substitution, to vote all of the shares of stock of Sequenom,
Inc. ("Sequenom") which the undersigned may be entitled to vote at the Special
Meeting of Stockholders of Sequenom to be held at the offices of Sequenom
located at 3595 John Hopkins Court, San Diego, California 92121, on August 23,
2001 at 10:00 a.m., local time, and at any and all postponements, continuations
and adjournments thereof, with all powers that the undersigned would possess if
personally present, upon and in respect of the following matters and in
accordance with the following instructions, with discretionary authority as to
any and all other matters that may properly come before the meeting.
Unless a contrary direction is indicated, this proxy will be voted for
proposals 1 and 2, as more specifically described in the proxy statement. If
specific instructions are indicated, this proxy will be voted in accordance
therewith.
Management recommends a vote for proposals 1 and 2.
Proposal 1: To approve a transaction involving the issuance of up to
14,403,870 shares of common stock of Sequenom, pursuant to a Scheme of
Arrangement under Section 425 of the U.K. Companies Act 1985 to be implemented
in accordance with a Transaction Agreement, dated as of May 29, 2001, by and
between Sequenom and Gemini Genomics PLC.
[_] FOR [_] AGAINST [_] ABSTAIN
Proposal 2: To approve (a) an amendment to Sequenom's certificate of
incorporation to provide that the Sequenom board of directors will have the
exclusive right to set the authorized number of directors from time to time and
that 66 2/3% of the outstanding voting power of Sequenom common stock will be
required to amend, alter or repeal this provision, and (b) a related amendment
to Sequenom's bylaws to provide that the authorized number of directors will be
fixed as set forth in the certificate of incorporation rather than the bylaws.
[_] FOR [_] AGAINST [_] ABSTAIN
Please vote, date and promptly return this proxy in the enclosed return
envelope which is postage prepaid if mailed in the United States.
Dated: _______________
----------------------
Print Name of
Stockholder
----------------------
----------------------
Signature(s)
Please sign exactly
as your name appears
on the stockholder
register of the
corporation. If the
stock is registered
in the names of two
or more persons, each
should sign.
Executors,
administrators,
trustees, guardians
and attorneys-in-fact
should add their
titles. If signer is
a corporation, please
give full corporate
name and have a duly
authorized officer
sign, stating title.
If signer is a
partnership, please
sign in partnership
name by authorized
person.