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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 28, 1997
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
THE PERKIN-ELMER CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
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NEW YORK 3826 06-0490270
(State or other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
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------------------------
761 MAIN AVENUE
NORWALK, CONNECTICUT 06859-0001
(203) 762-1000
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
------------------------------
WILLIAM B. SAWCH
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
761 MAIN AVENUE
NORWALK, CONNECTICUT 06859-0001
(212) 762-1000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
------------------------------
COPIES TO:
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RICHARD A. GARVEY, ESQ. RUFUS C. KING, ESQ.
SIMPSON THACHER & BARTLETT TESTA, HURWITZ & THIBEAULT, LLP
425 LEXINGTON AVENUE 125 HIGH STREET
NEW YORK, NY 10017 HIGH STREET TOWER
BOSTON, MA 02110
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------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As promptly
as practicable after this Registration Statement is declared effective.
If the securities being registered on this form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED(1) REGISTERED(2) UNIT PRICE(3) FEE(3)
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Common Stock of the par value of one dollar
($1.00) per share (including Junior
Participating Preferred Stock Purchase
Rights)(4)..................................... 6,011,072 shares Not applicable Not applicable $29,052.62
</TABLE>
(1) This Registration Statement relates to securities of the Registrant issuable
to holders of common stock, par value $.01 per share ("PerSeptive Common
Stock"), of PerSeptive Biosystems, Inc., a Delaware corporation
("PerSeptive"), in the proposed merger of a wholly-owned subsidiary of the
Registrant with and into PerSeptive (the "Merger").
(2) The amount of Common Stock, par value $1.00 per share, of the Registrant
("Perkin-Elmer Common Stock") to be registered has been determined on the
basis of the maximum exchange ratio in the Merger (0.1926 of a share of
Perkin-Elmer Common Stock for each outstanding share of PerSeptive Common
Stock) and the maximum aggregate number of shares of PerSeptive Common Stock
(31,210,135) to be exchanged in the Merger for shares of Perkin-Elmer Common
Stock, assuming solely for the purpose of calculating the registration fee
that (i) all outstanding PerSeptive stock options are exercised prior to the
effective time of the Merger, (ii) all outstanding warrants exercisable into
shares of PerSeptive Common Stock are exercised prior to the effective time
of the Merger, (iii) all outstanding shares of Series A Redeemable
Convertible Stock of PerSeptive are converted prior to the effective time of
the Merger and (iv) all outstanding 8 1/4% Convertible Subordinated Notes
Due 2001 of PerSeptive are converted prior to the effective time of the
Merger.
(3) Calculated, pursuant to Rule 457(f)(1), based on the market value of shares
of PerSeptive Common Stock to be converted in the Merger, computed in
accordance with Rule 457(c) on the basis of the average of the high and low
prices per share of the PerSeptive Common Stock on the Nasdaq National
Market on October 27, 1997. In accordance with Rule 457(b), the total
registration fee of $106,102.64 has been reduced by $77,050.02, which was
paid on September 12, 1997, at the time of the filing under the Securities
Exchange Act of 1934, as amended, of preliminary copies of PerSeptive's
proxy materials included herein. Therefore, the registration fee payable
upon filing of this Registration Statement is $29,052.62.
(4) Includes associated rights (the "Rights") to purchase 1/100 of a share of
the Registrant's Participating Preferred Stock. Until the occurrence of
certain prescribed events, the Rights are not exercisable, are evidenced by
the certificates representing Perkin-Elmer Common Stock and will be
transferred only with such shares of Perkin-Elmer Common Stock.
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PERSEPTIVE BIOSYSTEMS, INC.
PROXY STATEMENT
------------------------
THE PERKIN-ELMER CORPORATION
PROSPECTUS
This Proxy Statement/Prospectus is being furnished to the stockholders of
PerSeptive BioSystems, Inc., a Delaware corporation ("PerSeptive"), in
connection with the solicitation of proxies by the Board of Directors of
PerSeptive (the "PerSeptive Board") for use at the special meeting of
stockholders of PerSeptive to be held on December 4, 1997, at 9:00 a.m., local
time, at the offices of Testa, Hurwitz & Thibeault, LLP, 125 High Street, 20th
Floor, Boston, Massachusetts 02110 (including any adjournments or postponements
thereof, the "Special Meeting").
At the Special Meeting, the holders of shares of common stock, par value
$0.01 per share, of PerSeptive ("PerSeptive Common Stock") will consider and
vote upon the approval and adoption of the Agreement and Plan of Merger, dated
as of August 23, 1997 (the "Merger Agreement"), among The Perkin-Elmer
Corporation, a New York corporation ("Perkin-Elmer"), Seven Acquisition Corp., a
Delaware corporation and a wholly-owned subsidiary of Perkin-Elmer ("Merger
Sub"), and PerSeptive, with respect to the merger of Merger Sub with and into
PerSeptive upon the terms and subject to the conditions thereof (the "Merger").
Pursuant to the Merger Agreement, each share of PerSeptive Common Stock issued
and outstanding immediately prior to the effective time of the Merger (the
"Effective Time of the Merger"), together with the associated PerSeptive Right
(as defined herein), will be converted into the right to receive a fraction of a
share of Common Stock, par value $1.00 per share, of Perkin-Elmer ("Perkin-Elmer
Common Stock"), together with the associated fraction of a Perkin-Elmer Right
(as defined herein), equal to the amount obtained by dividing $13.00 by the
average of the closing sale prices per share of Perkin-Elmer Common Stock as
reported on the New York Stock Exchange Composite Transactions Tape for the 20
trading days immediately preceding the second trading day prior to the Effective
Time of the Merger and rounding to the nearest 1/10,000th, provided that such
amount shall not be less than 0.1486 nor more than 0.1926.
The PerSeptive Board is recommending that the stockholders of PerSeptive
vote for the approval and adoption of the Merger Agreement, pursuant to which
PerSeptive would become a wholly-owned subsidiary of Perkin-Elmer and
stockholders of PerSeptive would become stockholders of Perkin-Elmer.
This Proxy Statement/Prospectus also serves as a Prospectus of Perkin-Elmer
under the Securities Act of 1933, as amended (the "Securities Act"), relating to
the shares of Perkin-Elmer Common Stock issuable in connection with the Merger.
The Perkin-Elmer Common Stock is listed for trading on the New York Stock
Exchange, Inc. (the "NYSE") and the Pacific Stock Exchange (the "PSE"). On
October 27, 1997, the closing sale price of Perkin-Elmer Common Stock as
reported in the NYSE Composite Transactions Tape was $60 3/4.
HOLDERS OF PERSEPTIVE COMMON STOCK SHOULD CAREFULLY READ THIS PROXY
STATEMENT/ PROSPECTUS, INCLUDING THE MATERIALS IT INCORPORATES BY REFERENCE AND
THE MATERIAL UNDER THE HEADING "RISK FACTORS" BEGINNING ON PAGE 15.
This Proxy Statement/Prospectus and the accompanying form of proxy are first
being mailed to stockholders of PerSeptive on or about October 31, 1997.
------------------------
THE SECURITIES TO BE ISSUED IN THE MERGER HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROXY STATEMENT/ PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROXY STATEMENT/PROSPECTUS IS OCTOBER 30, 1997.
<PAGE>
TABLE OF CONTENTS
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AVAILABLE INFORMATION...................................................................................... 1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................................................ 1
DISCLOSURE REGARDING FORWARD LOOKING STATEMENTS............................................................ 3
SUMMARY.................................................................................................... 4
The Special Meeting.................................................................................... 4
The Parties............................................................................................ 5
The Merger............................................................................................. 5
Selected Historical and Unaudited Pro Forma Combined Financial Data.................................... 10
Comparative Stock Prices............................................................................... 12
Comparative Per Share Data............................................................................. 13
RISK FACTORS............................................................................................... 15
THE SPECIAL MEETING........................................................................................ 17
Date, Time and Place................................................................................... 17
Matters To Be Considered at the Special Meeting........................................................ 17
Vote Required.......................................................................................... 17
Voting of Proxies...................................................................................... 17
Revocability of Proxies................................................................................ 18
Record Date; Stock Entitled to Vote; Quorum............................................................ 18
Solicitation of Proxies................................................................................ 18
THE PARTIES................................................................................................ 19
The Perkin-Elmer Corporation........................................................................... 19
PerSeptive Biosystems, Inc............................................................................. 19
Seven Acquisition Corp................................................................................. 19
THE MERGER................................................................................................. 20
General................................................................................................ 20
Background of the Merger............................................................................... 20
Reasons for the Merger................................................................................. 23
Recommendation of the PerSeptive Board................................................................. 25
Opinion of Financial Advisor to PerSeptive............................................................. 25
Structure of the Merger................................................................................ 30
Merger Consideration................................................................................... 30
Effective Time of the Merger........................................................................... 30
Conversion of Shares; Procedures for Exchange of Certificates; Fractional Shares....................... 31
Representations and Warranties......................................................................... 31
Conduct of Business Pending Merger..................................................................... 32
No Solicitation........................................................................................ 33
Conditions to the Consummation of the Merger........................................................... 33
Stock Exchange Listings................................................................................ 35
Regulatory Approvals Required.......................................................................... 35
Termination............................................................................................ 36
Termination Fee........................................................................................ 36
Amendment and Waiver................................................................................... 36
Expenses............................................................................................... 37
Effect on Employee Benefits, Stock Plans and Stock Options............................................. 37
</TABLE>
i
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PAGE
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Effect on Warrants..................................................................................... 37
Effect on Convertible Notes............................................................................ 38
Certain United States Federal Income Tax Consequences.................................................. 38
Anticipated Accounting Treatment....................................................................... 40
Interests of Certain Persons in the Merger............................................................. 40
Stock Option Agreement................................................................................. 41
Amendment to PerSeptive Rights Agreement............................................................... 43
Resale of Perkin-Elmer Common Stock.................................................................... 43
No Appraisal Rights.................................................................................... 43
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS................................................ 44
DESCRIPTION OF PERKIN-ELMER CAPITAL STOCK.................................................................. 51
General................................................................................................ 51
Common Stock........................................................................................... 51
Preferred Stock........................................................................................ 51
COMPARISON OF STOCKHOLDER RIGHTS........................................................................... 52
Authorized Capital..................................................................................... 52
Directors.............................................................................................. 52
Charter and By-Law Amendments.......................................................................... 53
Cumulative Voting...................................................................................... 53
Stockholder Meeting Procedures......................................................................... 54
Voting by Stockholders................................................................................. 54
Affiliated Transactions................................................................................ 55
Rights Plans........................................................................................... 56
Indemnification and Limitation of Liability............................................................ 60
Appraisal Rights....................................................................................... 63
Right To Examine Stockholder List...................................................................... 64
Interested Director Transactions....................................................................... 64
EXPERTS.................................................................................................... 64
LEGAL OPINIONS............................................................................................. 64
STOCKHOLDER PROPOSALS...................................................................................... 65
ANNEXES
Annex I Agreement and Plan of Merger
Annex II Stock Option Agreement
Annex III Opinion of PaineWebber
</TABLE>
ii
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS PROXY STATEMENT/PROSPECTUS IN
CONNECTION WITH THE SOLICITATIONS OF PROXIES OR THE OFFERING OF SECURITIES MADE
HEREBY AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY PERKIN-ELMER OR PERSEPTIVE. THIS PROXY
STATEMENT/PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF
AN OFFER TO BUY, ANY SECURITIES, OR THE SOLICITATION OF A PROXY, IN ANY
JURISDICTION IN WHICH IT IS NOT LAWFUL TO MAKE ANY SUCH OFFER OR SOLICITATION OR
TO ANY PERSON TO WHOM IT IS NOT LAWFUL TO MAKE ANY SUCH OFFER OR SOLICITATION.
NEITHER THE DELIVERY OF THIS PROXY STATEMENT/PROSPECTUS NOR ANY DISTRIBUTION OF
SECURITIES MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF PERKIN-ELMER OR PERSEPTIVE SINCE
THE DATE HEREOF OR THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF.
AVAILABLE INFORMATION
Perkin-Elmer and PerSeptive are each subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith file reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission").
Perkin-Elmer has filed with the Commission a Registration Statement on Form S-4
(together with any amendments thereto, the "Registration Statement") under the
Securities Act with respect to the Perkin-Elmer Common Stock to be issued to
holders of PerSeptive Common Stock pursuant to the Merger Agreement. The
Registration Statement and the exhibits thereto, as well as the reports, proxy
statements and other information filed by Perkin-Elmer and PerSeptive with the
Commission, can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549 and the Commission's Regional Offices in New York (Suite 1300, Seven
World Trade Center, New York, New York 10048) and in Chicago (Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661). Copies of such
material also can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. Recent materials filed by Perkin-Elmer and PerSeptive also may be
accessed electronically by means of the Commission's homepage on the Internet at
http://www.sec.gov. In addition, the Perkin-Elmer Common Stock is listed on the
NYSE and the PSE, and material filed by Perkin-Elmer can be inspected at the
offices of the NYSE, 20 Broad Street, New York, New York 10005 and of the PSE,
301 Pine Street, San Francisco, California 94104. The PerSeptive Common Stock
and PerSeptive's Class G Warrants are quoted on the Nasdaq National Market and
the Nasdaq SmallCap Market, respectively, and material filed by PerSeptive can
be inspected at the offices of The Nasdaq Stock Market, Inc., Reports Section,
1735 K Street, N.W., Washington, D.C. 20006. This Proxy Statement/Prospectus
does not contain all the information set forth in the Registration Statement and
the exhibits thereto, a portion of which has been omitted in accordance with the
rules and regulations of the Commission.
Statements contained in this Proxy Statement/Prospectus, or in any document
incorporated in this Proxy Statement/Prospectus by reference, as to the contents
of any contract or other document referred to herein or therein are qualified in
all respects by reference to the copy of such contract or other document filed
as an exhibit to the Registration Statement or such other document incorporated
herein by reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Perkin-Elmer (File No.
1-4389) and PerSeptive (File No. 0-20032) pursuant to the Exchange Act are
incorporated by reference in this Proxy Statement/Prospectus:
1. Perkin-Elmer's Annual Report on Form 10-K for the fiscal year ended
June 30, 1997;
2. Perkin-Elmer's Current Report on Form 8-K dated August 23, 1997 and
filed on August 26, 1997;
1
<PAGE>
3. The descriptions of the Perkin-Elmer Common Stock and the rights to
purchase Participating Preferred Stock, par value $1.00 per share, of
Perkin-Elmer (the "Perkin-Elmer Rights"), set forth in Perkin-Elmer's
Registration Statements filed pursuant to Section 12 of the Exchange Act,
and any amendment or report filed for the purpose of updating any such
descriptions;
4. PerSeptive's Annual Report on Form 10-K for the fiscal year ended
September 30, 1996;
5. PerSeptive's Quarterly Reports on Form 10-Q for the fiscal quarters
ended December 28, 1996, March 29, 1997 and June 28, 1997;
6. PerSeptive's Current Report on Form 8-K dated April 16, 1997 and
filed on April 18, 1997;
7. PerSeptive's Current Report on Form 8-K dated August 22, 1997 and
filed on August 26, 1997;
8. PerSeptive's Current Report on Form 8-K dated August 23, 1997 and
filed on August 26, 1997;
9. The description of the PerSeptive Common Stock set forth in
PerSeptive's Registration Statement on Form 8-A dated May 29, 1992 filed
pursuant to Section 12 of the Exchange Act, and any amendment or report
filed for the purpose of updating such description.
10. The description of the PerSeptive's Series B Junior Participating
Preferred Stock Purchase Rights (the "PerSeptive Rights") contained in the
Registration Statement on Form 8-A dated March 2, 1995 filed pursuant to
Section 12 under the Exchange Act, and any amendment or report filed for the
purpose of updating such description.
All documents and reports filed by Perkin-Elmer or PerSeptive pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Proxy Statement/Prospectus and prior to the date of the Special Meeting shall be
deemed to be incorporated by reference in this Proxy Statement/Prospectus and to
be a part hereof from the dates of filing of such documents or reports. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Proxy Statement/Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Proxy Statement/ Prospectus.
The foregoing incorporation by reference shall not be deemed to incorporate
by reference the information referred to in Item 402(a)(8) of Regulation S-K.
THIS PROXY STATEMENT/PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH
ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS, UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED
THEREIN BY REFERENCE) ARE AVAILABLE, WITHOUT CHARGE, TO ANY PERSON, INCLUDING
ANY BENEFICIAL OWNER OF PERSEPTIVE COMMON STOCK TO WHOM THIS PROXY
STATEMENT/PROSPECTUS IS DELIVERED, ON WRITTEN OR ORAL REQUEST, IN THE CASE OF
DOCUMENTS RELATING TO PERKIN-ELMER, TO THE PERKIN-ELMER CORPORATION, 761 MAIN
AVENUE, NORWALK, CONNECTICUT 06859 (TELEPHONE NUMBER (203) 762-1000), ATTENTION:
SECRETARY OR, IN THE CASE OF DOCUMENTS RELATING TO PERSEPTIVE, TO PERSEPTIVE
BIOSYSTEMS, INC., 500 OLD CONNECTICUT PATH, FRAMINGHAM, MASSACHUSETTS 01701
(TELEPHONE NUMBER (508) 383-7700), ATTENTION: JEFFREY R. MOORE, VICE
PRESIDENT-TREASURY OPERATIONS. IN ORDER TO ENSURE DELIVERY OF THE DOCUMENTS
PRIOR TO THE SPECIAL MEETING, REQUESTS SHOULD BE RECEIVED BY NOVEMBER 26, 1997.
2
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DISCLOSURE REGARDING FORWARD LOOKING STATEMENTS
Certain statements in this Proxy Statement/Prospectus (and the documents
incorporated herein by reference) and its attachments are forward-looking. These
may be identified by the use of forward-looking words or phrases such as
"believe," "expect," "anticipate," "should," "planned," "estimated," and
"potential," among others. These forward-looking statements are based on the
current expectations of Perkin-Elmer and PerSeptive. The Private Securities
Litigation Reform Act of 1995 provides a "safe harbor" for such forward-looking
statements. In order to comply with the terms of the safe harbor, Perkin-Elmer
and PerSeptive note that a variety of factors could cause Perkin-Elmer's and
PerSeptive's actual results and experience to differ materially from the
anticipated results or other expectations expressed in such forward-looking
statements. The risks and uncertainties that may affect the operations,
performance, development and results of Perkin-Elmer and PerSeptive include (1)
complexity and uncertainty regarding the development of new high-technology
products; (2) loss of market share through competition; (3) introduction of
competing products or technologies by other companies; (4) pricing pressures
from competitors and/or customers; (5) changes in the life science or analytical
instrument industries; (6) changes in the pharmaceutical, environmental,
research or chemical markets; (7) variable government funding in key
geographical regions; (8) the ability of Perkin-Elmer and PerSeptive to protect
proprietary information and technology or to obtain necessary licenses on
commercially reasonable terms; (9) the loss of key employees; (10) fluctuations
in foreign currency exchange rates; and (11) the matters discussed under "Risk
Factors" below and other factors that might be described from time to time in
filings of Perkin-Elmer and PerSeptive with the Commission.
3
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SUMMARY
THE FOLLOWING IS A SUMMARY OF CERTAIN INFORMATION CONTAINED ELSEWHERE IN
THIS PROXY STATEMENT/PROSPECTUS. REFERENCE IS MADE TO, AND THIS SUMMARY IS
QUALIFIED IN ITS ENTIRETY BY, THE MORE DETAILED INFORMATION CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROXY STATEMENT/PROSPECTUS AND THE ANNEXES
HERETO. STOCKHOLDERS ARE URGED TO READ THIS PROXY STATEMENT/PROSPECTUS AND THE
ANNEXES HERETO IN THEIR ENTIRETY.
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THE SPECIAL MEETING
DATE, TIME AND PLACE.... The Special Meeting will be held at 9:00 a.m., local time, on
December 4, 1997 at the offices of Testa, Hurwitz & Thibeault,
LLP, 125 High Street, 20th Floor, Boston, Massachusetts 02110.
MATTERS TO BE CONSIDERED
AT THE SPECIAL
MEETING............... At the Special Meeting, holders of PerSeptive Common Stock will
be asked to consider and vote upon a proposal to approve and
adopt the Merger Agreement.
RECORD DATE............. The record date for the Special Meeting is the close of business
in New York on October 9, 1997 (the "Record Date"). See "The
Special Meeting-- Record Date; Stock Entitled to Vote; Quorum."
VOTE REQUIRED........... The approval and adoption of the Merger Agreement will require
the affirmative vote of the holders of a majority of the shares
of PerSeptive Common Stock outstanding on the Record Date.
Holders of PerSeptive Common Stock as of the Record Date are
entitled to one vote per share on each matter to be voted on at
the Special Meeting. The approval and adoption of the Merger
Agreement does not require the approval of the holders of any
other outstanding securities of PerSeptive, including shares of
PerSeptive's preferred stock. See "The Special Meeting--Vote
Required."
SECURITY OWNERSHIP
OF MANAGEMENT
AND OTHERS............ As of the Record Date, directors and executive officers of
PerSeptive and their affiliates beneficially owned and were
entitled to vote 641,260 shares of PerSeptive Common Stock, which
represented approximately 2.83% of the shares of PerSeptive
Common Stock outstanding on the Record Date. Each PerSeptive
director and executive officer has indicated his or her present
intention to vote, or cause to be voted, the PerSeptive Common
Stock so owned by him or her for approval and adoption of the
Merger Agreement. See "The Special Meeting--Vote Required."
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4
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THE PARTIES
THE PERKIN-ELMER
CORPORATION........... Perkin-Elmer is a New York corporation engaged primarily in the
development, manufacturing and marketing on a worldwide basis of
life science and analytical instruments and consumables used in
markets such as pharmaceuticals, biotechnology, environmental
testing, food, agriculture and chemical manufacturing.
Perkin-Elmer's operations are organized in two industry segments:
life sciences and analytical instruments. The life science
segment is comprised of biochemical instrument systems and
associated consumable products for life science research and
related applications. These automated systems are used for
synthesis, amplification, purification, isolation, analysis and
sequencing of nucleic acids, proteins and other biological
molecules. The analytical instruments segment is comprised of
equipment and systems used for determining the composition and
molecular structure of chemical substances (both organic and
inorganic), data handling devices and real time process analysis
systems to monitor process quality and environmental purity.
Perkin-Elmer had revenues of $1.28 billion in fiscal year 1997.
Perkin-Elmer's principal executive offices are located at 761
Main Avenue, Norwalk, Connecticut 06859-0001 and its telephone
number is (203) 762-1000.
PERSEPTIVE BIOSYSTEMS,
INC................... PerSeptive is a Delaware corporation that develops, manufactures,
and markets proprietary consumable products and instrumentation
systems for the purification, analysis and synthesis of
biomolecules. PerSeptive's enabling products are used in the life
science industry to reduce the time and cost required for the
discovery, development and manufacture of pharmaceutical
products. PerSeptive's product lines are based on its patented
core technologies in the fields of chromatography, immunoassay,
solid-phase synthesis, biological mass spectrometry and
microfluidic assay devices. PerSeptive had revenues of $86
million in fiscal year 1996.
PerSeptive's principal executive offices are located at 500 Old
Connecticut Path, Framingham, Massachusetts 01701 and its
telephone number is (508) 383-7700.
SEVEN ACQUISITION
CORP.................. Merger Sub is a Delaware corporation and a wholly-owned
subsidiary of Perkin-Elmer that was formed solely for the purpose
of entering into the Merger Agreement and consummating the
Merger.
THE MERGER
RECOMMENDATION OF THE
PERSEPTIVE BOARD;
REASONS FOR THE
MERGER................ The PerSeptive Board has determined that the terms of the Merger
Agreement and the Stock Option Agreement (as defined herein) and
the transactions contemplated thereby, including the Merger, are
fair to and in the best interests of the stockholders of
PerSeptive. The PerSeptive Board has, by unanimous vote of all
directors, approved the Merger Agreement and the Stock Option
Agreement and the transactions contemplated thereby and
recommends that PerSeptive's stockholders vote to approve and
adopt the Merger Agreement. See "The Merger--Recommendation of
the PerSeptive Board."
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5
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In making its determination to approve the Merger Agreement, the
Stock Option Agreement and the transactions contemplated thereby,
the PerSeptive Board considered a number of factors described
under "The Merger--Reasons for the Merger--PerSeptive." In making
its determination to approve the Merger Agreement, the Stock
Option Agreement and the transactions contemplated thereby, the
Perkin-Elmer Board considered a number of factors described under
"The Merger-- Reasons for the Merger--Perkin-Elmer."
OPINION OF FINANCIAL
ADVISOR TO
PERSEPTIVE............ PaineWebber Incorporated ("PaineWebber"), the financial advisor
to PerSeptive, delivered to the PerSeptive Board its written
opinion, dated August 23, 1997, to the effect that, as of the
date of such opinion, the Merger Consideration (as defined in the
Merger Agreement) is fair, from a financial point of view, to the
holders of PerSeptive Common Stock (other than Perkin-Elmer and
its affiliates). The full text of the opinion of PaineWebber,
which sets forth the assumptions made, the procedures followed,
matters considered and limitations on the review undertaken, is
attached to this Proxy Statement/Prospectus as Annex III. HOLDERS
OF PERSEPTIVE COMMON STOCK ARE URGED TO READ THIS OPINION
CAREFULLY IN ITS ENTIRETY.
For information on the assumptions made, matters considered and
limits of the review by PaineWebber, see "The Merger--Opinion of
Financial Advisor to PerSeptive."
EFFECTS OF THE MERGER... At the Effective Time of the Merger, Merger Sub will merge with
and into PerSeptive, with PerSeptive surviving the Merger as a
wholly-owned subsidiary of Perkin-Elmer (PerSeptive, as the
surviving corporation in the Merger, the "Surviving
Corporation").
At the Effective Time of the Merger, subject to certain
exceptions as described herein with respect to shares owned by
Perkin-Elmer, PerSeptive or their respective subsidiaries, each
outstanding share of PerSeptive Common Stock (including shares of
Common Stock issuable upon conversion of the Series A Redeemable
Convertible Preferred Stock of PerSeptive (the "Series A
Preferred Stock") as described under "The Merger--Merger
Consideration") will be automatically converted into a fraction
of a share of Perkin-Elmer Common Stock equal to the Exchange
Ratio (as defined below), together with the appropriate fraction
of a Perkin-Elmer Right attached thereto, except that cash will
be paid in lieu of fractional shares of Perkin-Elmer Common
Stock. The "Exchange Ratio" means $13.00 divided by the average
of the closing sale prices of Perkin-Elmer Common Stock on the
NYSE Composite Transactions Tape on each of the 20 consecutive
trading days immediately preceding the second trading day prior
to the Effective Time of the Merger, PROVIDED that the Exchange
Ratio will not be less than 0.1486 nor more than 0.1926. For so
long as the foregoing 20-trading day average price per share of
Perkin-Elmer Common Stock is not more than $87.50 nor less than
$67.50, the application of the Exchange Ratio will result in an
adjustment of the fraction of a share of Perkin-Elmer Common
Stock to be received for each share of PerSeptive Common Stock.
However, the fraction of a share of Perkin-Elmer Common Stock to
be received for each share of PerSeptive Common Stock shall not
be increased above 0.1926 if such 20-trading day
</TABLE>
6
<PAGE>
<TABLE>
<S> <C>
average is less than $67.50, nor shall such fraction be decreased
below 0.1486 if such 20-trading day average is more than $87.50.
See "The Merger--Merger Consideration" and "--Conversion of
Shares; Procedures for Exchange of Certificates; Fractional
Shares."
CONDITIONS TO THE
MERGER................ The obligations of Perkin-Elmer and Merger Sub, on the one hand,
and PerSeptive, on the other hand, to consummate the Merger are
subject to various conditions, including obtaining PerSeptive
stockholder approval of the Merger Agreement at the Special
Meeting; the termination or expiration of the waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended (the "HSR Act"), and the receipt of regulatory
approvals under the laws of certain foreign jurisdictions; the
effectiveness of the Registration Statement; approval for listing
on the NYSE and the PSE, subject to official notice of issuance,
of the shares of Perkin-Elmer Common Stock to be issued pursuant
to the Merger; receipt of opinions of counsel dated the date of
the closing of the Merger (the "Closing Date") in respect of
certain federal income tax consequences of the Merger; and
receipt of accountants' letters to the effect that the Merger
qualifies for "pooling of interests" accounting treatment. See
"The Merger--Conditions to the Consummation of the Merger."
REGULATORY APPROVALS
REQUIRED.............. The Merger is subject to expiration of the waiting period under
the HSR Act. Certain aspects of the Merger will require
notifications to, and/or approvals from, certain other foreign
governmental authorities. Each of Perkin-Elmer and PerSeptive
filed a premerger notification under the HSR Act with the Federal
Trade Commission (the "FTC") and the Antitrust Division of the
Department of Justice (the "DOJ"). On October 24, 1997
Perkin-Elmer and PerSeptive received a request from the DOJ for
additional information, in connection with which the waiting
period under the HSR Act was extended until the twentieth day
following the provision of such information. See "The
Merger--Regulatory Approvals Required."
TERMINATION............. The Merger Agreement may be terminated at any time prior to the
Effective Time of the Merger, whether before or after approval
and adoption by the stockholders of PerSeptive, (i) by mutual
written consent of Perkin-Elmer and PerSeptive, (ii) by either
party if (A) any governmental authority shall have taken any
action permanently enjoining, restraining or otherwise
prohibiting the Merger, (B) the Merger shall not have been
consummated on or before January 31, 1998 or (C) the approval of
stockholders of PerSeptive required for consummation of the
Merger shall not have been obtained at the Special Meeting, (iii)
by Perkin-Elmer, if the PerSeptive Board shall have withdrawn or
adversely modified its approval or recommendation of the Merger
Agreement, or recommended, or failed to recommend rejection of, a
third party Transaction Proposal (as defined under "The
Merger--No Solicitation") or (iv) by PerSeptive, if in compliance
with the Merger Agreement, the PerSeptive Board shall have
concluded based on written advice (or advice confirmed in
writing) of outside counsel that in order to avoid acting
contrary to its fiduciary duties it must withdraw or modify its
recommendation of the Merger Agreement. See "The
Merger--Termination."
TERMINATION FEE......... PerSeptive has agreed to pay Perkin-Elmer a termination fee of
$11,000,000 if (i) the Merger Agreement shall have been
terminated and (A) prior to
</TABLE>
7
<PAGE>
<TABLE>
<S> <C>
such termination a person or group (other than Perkin-Elmer,
Merger Sub or any other affiliates of Perkin-Elmer) shall have
become the owner of more than 15% of the PerSeptive Common Stock
then outstanding or (B) (1) prior to such termination a person or
group shall have made a Transaction Proposal and (2) prior to
August 23, 1998, PerSeptive shall have consummated or agreed to
consummate a Transaction Proposal or (ii) the Merger Agreement is
terminated under certain other circumstances. See "The
Merger--Termination," "--Termination Fee" and "--No
Solicitation."
CERTAIN UNITED STATES
FEDERAL INCOME TAX
CONSEQUENCES.......... The Merger is intended to be a tax-free reorganization so that no
material amount of gain or loss will be recognized by
Perkin-Elmer, Merger Sub or PerSeptive, and no gain or loss will
be recognized by PerSeptive stockholders, except in respect of
cash received by holders of PerSeptive Common Stock in lieu of
fractional shares of Perkin-Elmer Common Stock. Perkin-Elmer and
PerSeptive have received the opinions, each dated the date
hereof, of Simpson Thacher & Bartlett and Testa, Hurwitz &
Thibeault, LLP, respectively, to the effect that, among other
things, the Merger will constitute a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code of 1986,
as amended (the "Code"). Consummation of the Merger is
conditioned upon delivery of opinions of counsel to the same
effect dated as of the Closing Date. See "The Merger-- Certain
United States Federal Income Tax Consequences" and "--Conditions
to the Consummation of the Merger."
ANTICIPATED ACCOUNTING
TREATMENT............. The Merger is expected to qualify as a "pooling of interests" for
accounting and financial reporting purposes. It is a condition to
consummation of the Merger that Perkin-Elmer shall have received
a letter from Price Waterhouse LLP (the independent accountants
of Perkin-Elmer) confirming that the Merger will qualify for
pooling of interests accounting treatment if consummated in
accordance with the Merger Agreement, that PerSeptive shall have
received a letter from Coopers & Lybrand L.L.P. (the independent
accountants of PerSeptive) confirming that PerSeptive is eligible
to be acquired in a transaction accounted for using pooling of
interests accounting treatment and that such letters shall not
have been withdrawn. See "The Merger--Anticipated Accounting
Treatment" and "-- Conditions to the Consummation of the Merger."
INTERESTS OF CERTAIN
PERSONS IN THE
MERGER................ Consummation of the Merger will result in certain employees of
PerSeptive becoming eligible for certain benefits in the event
their employment is terminated and in the accelerated vesting of
certain employee stock options. In addition, Perkin-Elmer and the
Surviving Corporation have agreed to indemnify, and maintain
directors' and officers' insurance covering, directors and
officers of PerSeptive following the Merger. See "The
Merger--Effect on Employee Benefit and Stock Plans" and
"--Interests of Certain Persons in the Merger."
STOCK OPTION
AGREEMENT............. Concurrently with and as a condition to entering into the Merger
Agreement, Perkin-Elmer and PerSeptive entered into a Stock
Option
</TABLE>
8
<PAGE>
<TABLE>
<S> <C>
Agreement, dated as of August 23, 1997 (the "Stock Option
Agreement"), pursuant to which PerSeptive has granted to
Perkin-Elmer the option to purchase up to an aggregate of
4,478,308 shares of PerSeptive Common Stock (subject to
adjustment under certain circumstances) at a price of $13.00 per
share. The option may be exercised only upon the termination of
the Merger Agreement under circumstances that would entitle
Perkin-Elmer (presently or in the future) to receive a
termination fee. No such circumstances exist as of the date
hereof. Upon the occurrence of certain events (none of which has
occurred as of the date hereof), the Stock Option Agreement
requires PerSeptive, upon request of Perkin-Elmer or any holder
of PerSeptive Common Stock issued upon exercise of the option, to
repurchase the option and/or any shares previously issued upon
exercise thereof. The aggregate profits that Perkin-Elmer may
receive pursuant to the termination fee provisions of the Merger
Agreement and the provisions of the Stock Option Agreement are
subject to certain limitations specified in the Stock Option
Agreement. See "The Merger--Stock Option Agreement."
NO APPRAISAL RIGHTS..... No holder of PerSeptive Common Stock will have any appraisal
rights under Delaware law in connection with, or as a result of,
the matters to be acted upon at the Special Meeting. See "The
Merger--No Appraisal Rights."
COMPARISON OF
STOCKHOLDER RIGHTS.... The rights of stockholders of PerSeptive currently are determined
by reference to the Delaware General Corporation Law (the
"DGCL"), PerSeptive's Amended and Restated Certificate of
Incorporation, as amended (the "PerSeptive Charter"), and
PerSeptive's Amended and Restated By-laws, as amended (the
"PerSeptive By-Laws"). At the Effective Time of the Merger,
stockholders of PerSeptive will become stockholders of
Perkin-Elmer. As a result, their rights as stockholders will then
be determined by reference to the New York Business Corporation
Law (the "NYBCL"), Perkin-Elmer's Restated Certificate of
Incorporation (the "Perkin-Elmer Charter"), and Perkin-Elmer's
By-laws (the "Perkin-Elmer By-Laws"). See "Description of
Perkin-Elmer Capital Stock" and "Comparison of Stockholder
Rights."
</TABLE>
9
<PAGE>
SELECTED HISTORICAL AND UNAUDITED PRO FORMA COMBINED FINANCIAL DATA
The following selected historical financial data of Perkin-Elmer and
PerSeptive have been derived from the respective historical consolidated
financial statements, and should be read in conjunction with such historical
consolidated financial statements and the notes thereto, which are incorporated
herein by reference in this Proxy Statement/Prospectus. See "Incorporation of
Certain Documents by Reference." The selected unaudited pro forma combined
financial data have been derived from, or prepared on a basis consistent with,
the unaudited pro forma condensed combined financial statements and should be
read in conjunction with such pro forma statements and notes thereto, which are
included on pages 44-50, in this Proxy Statement/Prospectus. Pro forma data for
fiscal year 1997 combine Perkin-Elmer's financial data for the fiscal year ended
June 30, 1997 with PerSeptive's financial data for the nine months ended June
28, 1997 and the three months ended September 30, 1996.
The unaudited pro forma information is presented for illustrative purposes
only and is not necessarily indicative of the operating results or financial
position that would have occurred if the Merger had been consummated, nor is it
necessarily indicative of future results or financial position.
(IN THOUSANDS EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FOR THE YEARS ENDED JUNE 30,
-----------------------------------------------------
<S> <C> <C> <C> <C> <C>
1997 1996 1995 1994 1993
--------- --------- --------- --------- ---------
HISTORICAL--PERKIN-ELMER
Net revenues.......................................... $1,276,766 $1,162,949 $1,063,506 $1,024,467 $1,011,297
Income from operations before special items........... 128,789 94,317 68,659 73,978 60,860
Per share of common stock......................... 2.88 2.17 1.61 1.66 1.35
Special items, net of taxes(1)........................ (13,634) (80,373) (1,782) -- (36,416)
Income from continuing operations..................... 115,155 13,944 66,877 73,978 24,444
Per share of common stock......................... 2.58 .32 1.57 1.66 .54
Weighted average shares and equivalent shares......... 44,679 43,747 42,644 44,673 44,953
Total assets at end of period......................... 1,104,798 941,324 888,842 884,500 851,070
Long-term obligations at end of period................ 33,599 890 34,124 34,270 7,069
Shareholders' equity at end of period................. 436,872 323,442 304,700 290,432 306,605
Dividends per share................................... .68 .68 .68 .68 .68
</TABLE>
<TABLE>
<CAPTION>
FOR THE NINE MONTHS
ENDED FOR THE YEARS ENDED SEPTEMBER 30,
-------------------- ------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
JUNE 28, JUNE 29,
1997 1996 1996 1995 1994 1993
--------- --------- --------- --------- --------- ---------
<CAPTION>
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
HISTORICAL--PERSEPTIVE
Net revenues........................................ $ 70,174 $ 66,702 $ 86,018 $ 89,429 $ 46,055 $ 14,966
Loss from operations before special items........... (8,766) (12,184) (16,322) (5,111) (19,331) (3,219)
Per share of common stock....................... (.46) (.89) (1.13) (.63) (1.64) (.31)
Special items, net of taxes(2)...................... 26,600 (18,333) (34,145) (15,459) (14,681) --
Income (loss) from continuing operations............ 17,834 (30,517) (50,467) (20,570) (34,012) (3,219)
Per share of common stock....................... .78 (2.08) (3.22) (1.88) (2.88) (.31)
Weighted average shares and equivalent shares....... 21,388 15,412 16,296 12,340 11,903 10,240
Total assets at end of period....................... 137,300 124,614 121,655 138,209 137,246 54,888
Long-term obligations at end of period.............. 32,243 33,780 33,165 32,559 27,230 137
Shareholders' equity at end of period............... 67,243 52,780 50,285 65,107 40,349 50,658
Dividends per share................................. -- -- -- -- -- --
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
FOR THE YEARS ENDED JUNE 30,
-------------------------------
<S> <C> <C> <C>
1997 1996 1995
--------- --------- ---------
PRO FORMA--PERKIN-ELMER
Net revenues.................................................................. $1,366,256 $1,248,967 $1,152,935
Income from operations before special items................................... 115,885 77,995 63,548
Per share of common stock................................................. 2.35 1.64 1.39
Special items, net of taxes(3)................................................ (2,846) (114,518) (17,241)
Income (loss) from continuing operations...................................... 113,039 (36,523) 46,307
Per share of common stock................................................. 2.29 (.77) 1.02
Weighted average shares and equivalent shares................................. 49,308 47,436 45,617
Total assets at end of period................................................. 1,242,098 1,062,979 1,027,051
Long-term obligations at end of period........................................ 65,842 34,055 66,683
Shareholders' equity at end of period......................................... 493,115 373,727 369,807
</TABLE>
- ------------------------------
(1) Perkin-Elmer's results for fiscal years 1997, 1996 and 1995 included net
before-tax restructuring charges of $13.0 million, $71.6 million and $23.0
million, respectively, and before-tax gains on the sale of investments of
$37.4 million, $11.7 million and $20.8 million, respectively. Other special
items affecting comparability included acquired research and development
charges of $26.8 million and $27.1 million in fiscal 1997 and 1996,
respectively; a $7.5 million before-tax charge in fiscal 1997 for the
impairment of assets; and a $41.0 million charge in fiscal 1993 for the
merger with Applied Biosystems, Inc.
(2) In January 1997, PerSeptive exchanged its 34% equity interest in ChemGenics
Pharmaceuticals, Inc. for an approximate 6% equity interest in Millennium
Pharmaceuticals, Inc. ("Millennium") and $4.0 million in cash and realized a
gain on the subsequent sale of a portion of its investment in Millennium of
$.8 million resulting in an aggregate gain of approximately $26.6 million.
Other charges of $9.9 million ($4.8 million through the nine months ended
June 29, 1996) recorded as part of cost of goods sold during the fiscal year
ended September 30, 1996 related to various actions taken to realign the
current product offering and to write-off certain manufacturing-related
assets. Other charges of $24.2 million ($13.5 million through the nine
months ended June 29, 1996) recorded as part of operating expenses during
the fiscal year ended September 30, 1996 related to various matters
including the write-off of in-process research and development in connection
with the acquisition of PerSeptive Technologies II Corporation ("PTC-II"),
the write-off of certain intangibles related to acquisitions reported in
prior fiscal years and additional provisions for estimated litigation costs
associated with certain matters including ongoing patent litigation. Charges
of $15.5 million for the fiscal year ended September 30, 1995 included
charges associated with PerSeptive's settlement of shareholder litigation
related to the restatement of its consolidated financial statements for the
fiscal year ended September 30, 1993 and the first three quarters of fiscal
1994 and in-process research and development charges related to the purchase
of the outstanding shares of PerIsis II Development Corporation. Other
charges of $14.7 million in the fiscal year ended September 30, 1994 reflect
the write-off of in-process research and development in connection with the
acquisition of PTC-II effective December 28, 1993 and Vestec Corporation in
the fiscal year ended September 30, 1994.
(3) Pro forma income from continuing operations before special items excludes
the historical special items described in footnotes (1) and (2) above.
11
<PAGE>
COMPARATIVE STOCK PRICES
The Perkin-Elmer Common Stock is listed on the NYSE and the PSE (symbol:
"PKN") and the PerSeptive Common Stock is quoted on the Nasdaq National Market
(symbol: "PBIO"). See "The Merger--Stock Exchange Listings." The following table
sets forth, for the calendar quarters indicated, the high and low prices per
share of Perkin-Elmer Common Stock as reported on the NYSE Composite
Transactions Tape and of PerSeptive Common Stock on the Nasdaq National Market.
<TABLE>
<CAPTION>
PERKIN-ELMER COMMON PERSEPTIVE COMMON STOCK
STOCK
------------------------ -----------------------
<S> <C> <C> <C> <C>
CALENDAR QUARTER HIGH LOW HIGH LOW
- ------------------------------------------------------------------------------- ---------- ------------ ----------- -----
1995
First Quarter.............................................................. $ 297/8 $ 253/4 $ 63/4 $ 41/8
Second Quarter............................................................. 371/4 29 125/8 53/8
Third Quarter.............................................................. 38 311/2 121/8 83/4
Fourth Quarter............................................................. 401/4 331/8 111/8 83/8
1996
First Quarter.............................................................. $ 541/2 $ 375/8 $ 93/8 $ 57/8
Second Quarter............................................................. 561/4 465/8 107/8 63/4
Third Quarter.............................................................. 581/8 441/4 103/8 65/8
Fourth Quarter............................................................. 617/8 521/2 73/4 55/8
1997
First Quarter.............................................................. $ 771/8 $ 577/8 $ 93/4 $ 53/4
Second Quarter............................................................. 811/8 603/8 81/16 45/8
Third Quarter.............................................................. 861/8 721/8 125/8 57/8
Fourth Quarter (through October 27, 1997).................................. 74 603/4 121/4 107/8
</TABLE>
On August 22, 1997, the last trading day before the public announcement of
the Merger Agreement, the closing prices of Perkin-Elmer Common Stock and
PerSeptive Common Stock as reported on the NYSE Composite Transactions Tape and
the Nasdaq National Market, respectively, were $78.0625 per share and $10.625
per share, respectively. The pro forma equivalent per share value of the
PerSeptive Common Stock as of August 22, 1997 was $13 per share. See "The
Merger--Merger Consideration."
On October 27, 1997, the closing prices of Perkin-Elmer Common Stock and
PerSeptive Common Stock as reported on the NYSE Composite Transactions Tape and
the Nasdaq National Market, respectively, were $60 3/4 per share and $10 7/8 per
share, respectively. The pro forma equivalent per share value of the PerSeptive
Common Stock based on the average of the closing sale prices per share of
Perkin-Elmer Common Stock for the 20 consecutive trading days ending October 27,
1997 was $13 per share.
Stockholders are urged to obtain current quotations for the market prices of
the Perkin-Elmer Common Stock and the PerSeptive Common Stock. No assurance can
be given as to the market price of the Perkin-Elmer Common Stock or the
PerSeptive Common Stock at the Effective Time of the Merger.
12
<PAGE>
COMPARATIVE PER SHARE DATA
The following table sets forth certain historical per share data of
Perkin-Elmer and PerSeptive and unaudited pro forma combined per share data
after giving effect to the Merger on a pooling of interests accounting basis
assuming 0.1926 of a share of Perkin-Elmer Common Stock (the maximum exchange
ratio provided in the Merger Agreement) is issued in exchange for each share of
PerSeptive Common Stock outstanding. In addition, the pro forma data reflects
the conversion of all shares of Series A Preferred Stock outstanding into shares
of Perkin-Elmer Common Stock assuming a conversion price equal to the closing
price of PerSeptive Common Stock at the end of the periods as of which such pro
forma information is presented. If an assumed exchange ratio of 0.1486 of a
share of Perkin-Elmer Common Stock for each share of PerSeptive Common Stock
(the minimum exchange ratio provided in the Merger Agreement) were utilized in
effecting the Merger, pro forma combined income per share of Perkin-Elmer for
the year ended June 30, 1997 would increase to $2.35 and equivalent pro forma
combined income per share of PerSeptive for such period would decrease to $.35.
Pro Forma data for fiscal year 1997 combine Perkin-Elmer's financial information
for the fiscal year ended June 30, 1997 with PerSeptive's financial information
for the nine months ended June 28, 1997 and the three months ended September 30,
1996. This data should be read in conjunction with the selected historical and
unaudited pro forma financial data, the unaudited pro forma condensed combined
financial statements and the separate historical consolidated financial
statements of Perkin-Elmer and PerSeptive and notes thereto included elsewhere
in this Proxy Statement/Prospectus or incorporated herein by reference. The
unaudited pro forma combined financial data is not necessarily indicative of the
combined financial position or operating results that would have been achieved
had the transaction been in effect at the beginning of the periods presented and
should not be construed as representative of future operations.
Equivalent pro forma combined PerSeptive per share amounts are calculated by
multiplying the pro forma Perkin-Elmer per share amounts and historical
dividends per Perkin-Elmer share by the maximum exchange ratio so that the per
share amounts are equated to the respective values for one share of PerSeptive
Common Stock.
13
<PAGE>
<TABLE>
<CAPTION>
FOR THE YEARS ENDED JUNE 30,
-------------------------------
<S> <C> <C> <C>
1997 1996 1995
--------- --------- ---------
HISTORICAL--PERKIN-ELMER
Income from continuing operations......................................................... $ 2.58 $ .32 $ 1.57
Dividends................................................................................. $ .68 $ .68 $ .68
Book value at end of period............................................................... $ 9.97
</TABLE>
<TABLE>
<CAPTION>
FOR THE NINE FOR THE YEARS ENDED SEPTEMBER
MONTHS ENDED 30,
------------------------ -------------------------------
<S> <C> <C> <C> <C> <C>
JUNE 28, JUNE 29,
1997 1996 1996 1995 1994
----------- ----------- --------- --------- ---------
<CAPTION>
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
HISTORICAL--PERSEPTIVE
Income (loss) from continuing operations......................... $ .78 $ (2.08) $ (3.22) $ (1.88) $ (2.88)
Dividends........................................................ $ -- $ -- $ -- $ -- $ --
Book value at end of period...................................... $ 3.13 $ 2.36
</TABLE>
<TABLE>
<CAPTION>
FOR THE YEARS ENDED JUNE 30,
-------------------------------
<S> <C> <C> <C>
1997 1996 1995
--------- --------- ---------
PRO FORMA COMBINED PER PERKIN-ELMER SHARE
Income (loss) from continuing operations................................................ $ 2.29 $ (.77) $ 1.02
Book value.............................................................................. $ 10.21
</TABLE>
<TABLE>
<CAPTION>
FOR THE YEARS ENDED JUNE 30,
-------------------------------
<S> <C> <C> <C>
1997 1996 1995
--------- --------- ---------
EQUIVALENT PRO FORMA COMBINED PER PERSEPTIVE SHARE
Income (loss) from continuing operations.................................................. $ .44 $ (.15) $ .20
Dividends................................................................................. $ .13 $ .13 $ .13
Book value................................................................................ $ 1.97
</TABLE>
14
<PAGE>
RISK FACTORS
PERSEPTIVE STOCKHOLDERS SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK
FACTORS, IN ADDITION TO THE OTHER INFORMATION INCLUDED IN THIS PROXY
STATEMENT/PROSPECTUS, WHEN EVALUATING PERKIN-ELMER AND ITS BUSINESS (INCLUDING
THE BUSINESS OF PERSEPTIVE FOLLOWING THE MERGER) IN CONNECTION WITH THEIR VOTE
ON APPROVAL AND ADOPTION OF THE MERGER AGREEMENT.
DEPENDENCE ON NEW PRODUCTS; RAPID TECHNOLOGICAL CHANGE. The life sciences
and analytical instrumentation markets are characterized by rapid technological
change and frequent new product introductions. Perkin-Elmer's future success
will depend on its ability to enhance its current products and to develop and
introduce, on a timely basis, new products that address the evolving needs of
its customers. There can be no assurance that Perkin-Elmer will not experience
difficulties that could delay or prevent the successful development,
introduction and marketing of new products or product enhancements. There can be
no assurance that new products that are developed will adequately meet the
requirements of the marketplace and achieve market acceptance. Failure, for
technological or other reasons, to develop and introduce products in a timely
manner in response to changing market environments or customer requirements,
could have a material adverse effect on Perkin-Elmer's business, financial
condition and results of operations.
SUBSTANTIAL COMPETITION. The markets for products of Perkin-Elmer are
highly competitive, and certain of Perkin-Elmer's competitors are larger and
have greater financial and other resources than Perkin-Elmer. Perkin-Elmer
expects substantial competition in the future with respect to existing and
planned products and especially with respect to efforts to develop and introduce
products in new markets. New product announcements, pricing changes, strategic
alliances and other actions by competitors could adversely affect Perkin-Elmer.
There can be no assurance that developments by others will not render
Perkin-Elmer's products or technologies obsolete or non-competitive.
DEPENDENCE ON CUSTOMERS' CAPITAL SPENDING POLICIES. Perkin-Elmer's
customers include pharmaceutical, environmental, research and chemical
companies, and the capital spending policies of these companies can have a
significant effect on the demand for Perkin-Elmer's products. Such policies are
based on a wide variety of factors, including the resources available to make
such purchases, the spending priorities among various types of research
equipment and the policies regarding capital expenditures during recessionary
periods. Any decrease in capital spending by Perkin-Elmer's customers could have
a material adverse effect on its business, financial condition and results of
operations.
PATENTS AND PROPRIETARY TECHNOLOGY. Perkin-Elmer's ability to compete may
be affected by its ability to protect proprietary information and technology and
to obtain necessary licenses on commercially reasonable terms. Changes in the
interpretation of copyright or patent law could expand or reduce the extent to
which Perkin-Elmer or its competitors are able to protect their intellectual
property or require changes in the designs of products which could have an
adverse effect on Perkin-Elmer. There can be no assurance that Perkin-Elmer will
not be made a party to litigation regarding intellectual property matters in the
future. Perkin-Elmer has from time to time been notified that it may be
infringing certain patents and other intellectual property rights of others. It
may be necessary or desirable in the future to obtain licenses relating to one
or more products or relating to current or future technologies, and there can be
no assurance that Perkin-Elmer will be able to obtain these licenses or other
rights on commercially reasonable terms. In addition, there can be no assurance
that technology which is licensed to Perkin-Elmer will be protected by the
owners thereof from use by competitors. In addition, the laws of certain foreign
countries do not protect intellectual property rights to the same extent as do
the laws of the United States. There can be no assurance that Perkin-Elmer will
be able to protect its intellectual property successfully.
TRADE SECRETS. Perkin-Elmer also relies on trade secret and copyright law,
employee and third-party nondisclosure agreements and other protective measures
to protect its intellectual property rights pertaining to its products and
technology. There can be no assurance that these agreements and measures will
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provide meaningful protection of Perkin-Elmer's trade secrets, know-how or other
proprietary information in the event of any unauthorized use, misappropriation
or disclosure or that others will not independently develop substantially
equivalent proprietary technologies.
DEPENDENCE OF CUSTOMERS ON GOVERNMENT SPONSORED RESEARCH. A substantial
portion of Perkin-Elmer's sales are to customers at universities or research
laboratories whose funding is dependent upon both the level and timing of
funding from government sources. As a result, the timing and amount of revenues
from these sources may vary significantly due to factors that can be difficult
to forecast. Although research funding has increased during the past several
years, grants have, in the past, been frozen for extended periods or have
otherwise become unavailable to various institutions, sometimes without advance
notice. Furthermore, budgetary pressures, particularly in the United States and
Japan, may result in reduced allocations to government agencies that fund
research and development activities. If government funding necessary to purchase
Perkin-Elmer's products were to become unavailable to researchers for any
extended period of time or if overall research funding were to decrease,
Perkin-Elmer's business, financial condition and results of operations could be
materially adversely affected.
NEED TO ATTRACT AND RETAIN KEY EMPLOYEES. Perkin-Elmer is highly dependent
on the principal members of its management and scientific staff. The loss of the
services of one or more of these key employees could have a material adverse
effect on Perkin-Elmer. Perkin-Elmer believes that its future success will
depend in large part upon its ability to attract and retain highly skilled
scientific, managerial and marketing personnel. Competition for such personnel
is intense. There can be no assurance that Perkin-Elmer will be successful in
attracting or retaining such personnel.
CURRENCY EXCHANGE RISKS; INTERNATIONAL SALES AND OPERATIONS. Approximately
62% of Perkin-Elmer's net revenues during the fiscal year ended June 30, 1997
were derived from sales to customers outside of the United States. The majority
of these sales were consummated in the relevant customer's local currency. As a
result, Perkin-Elmer's reported and anticipated operating results and cash flows
are subject to fluctuations due to material changes in foreign currency exchange
rates that are beyond Perkin-Elmer's control. International sales and operations
may also be adversely affected by the imposition of governmental controls,
export license requirements, restrictions on the export of critical technology,
political and economic instability, trade restrictions, changes in tariffs and
taxes, difficulties in staffing and managing international operations and
general economic conditions.
POTENTIAL DIFFICULTIES IN IMPLEMENTING BUSINESS STRATEGY. Perkin-Elmer's
strategy to integrate and develop the businesses of Perkin-Elmer and PerSeptive
following the Merger involves a number of elements that management may not be
able to implement as expected. For example, Perkin-Elmer may encounter
operational difficulties in the integration of manufacturing or other facilities
of the two companies such that expected cost savings may not be realized. In
addition, technological advances resulting from the integration of technologies
of Perkin-Elmer and PerSeptive may not be achieved as successfully or as rapidly
as currently anticipated, if at all. The consolidation of operations,
technologies and marketing and distribution methods present significant
managerial challenges. There can be no assurance that such actions will be
accomplished as successfully or as rapidly as currently anticipated.
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THE SPECIAL MEETING
DATE, TIME AND PLACE
The Special Meeting will be held at 9:00 a.m. local time, on December 4,
1997, at the offices of Testa, Hurwitz & Thibeault, LLP, 125 High Street, 20th
Floor, Boston, Massachusetts 02110.
MATTERS TO BE CONSIDERED AT THE SPECIAL MEETING
At the Special Meeting, holders of PerSeptive Common Stock will be asked to
consider and vote upon the approval and adoption of the Merger Agreement and
such other matters as may properly be brought before the Special Meeting.
THE PERSEPTIVE BOARD HAS, BY UNANIMOUS VOTE OF ALL DIRECTORS, APPROVED THE
MERGER AGREEMENT, THE STOCK OPTION AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
THEREBY, AND RECOMMENDS A VOTE FOR APPROVAL AND ADOPTION OF THE MERGER
AGREEMENT.
VOTE REQUIRED
The approval and adoption of the Merger Agreement will require the
affirmative vote of the holders of record of a majority of the shares of
PerSeptive Common Stock outstanding on the Record Date.
Holders of record of PerSeptive Common Stock on the Record Date are each
entitled to one vote per share on each matter to be considered at the Special
Meeting. Holders of other outstanding securities of PerSeptive, including
PerSeptive's preferred stock, are not entitled to vote on the approval and
adoption of the Merger Agreement.
As of the Record Date, directors and executive officers of PerSeptive and
their affiliates beneficially owned and were entitled to vote 641,260 shares of
PerSeptive Common Stock, which represented approximately 2.83% of the shares of
PerSeptive Common Stock outstanding on the Record Date. Each PerSeptive director
and executive officer has indicated his or her present intention to vote the
PerSeptive Common Stock so owned by him or her for approval and adoption of the
Merger Agreement.
VOTING OF PROXIES
Shares represented by all properly executed proxies received in time for the
Special Meeting will be voted at the Special Meeting in the manner specified by
the holders thereof. Properly executed proxies which do not contain voting
instructions will be voted in favor of the Merger Agreement.
PerSeptive intends to count shares of PerSeptive Common Stock present in
person at the Special Meeting but not voting, and shares of PerSeptive Common
Stock for which they have received proxies but with respect to which holders of
shares have abstained on any matter, as present at the Special Meeting for
purposes of determining the presence or absence of a quorum for the transaction
of business.
For voting purposes at the Special Meeting, only shares affirmatively voted
in favor of approval and adoption of the Merger Agreement will be counted as
favorable votes for such approval and adoption. The failure to submit a proxy
(or to vote in person) or the abstention from voting with respect to such
approval and adoption will have the same effect as a vote against approval and
adoption of the Merger Agreement. Broker nonvotes will also have the same effect
as a vote against the approval and adoption of the Merger Agreement.
It is not expected that any matter other than those referred to herein will
be brought before the Special Meeting. If, however, other matters are properly
presented for a vote, the persons named as proxies will vote in accordance with
their judgment with respect to such matters.
The persons named as proxies by a PerSeptive stockholder may propose and
vote for one or more adjournments of the Special Meeting to permit further
solicitations of proxies in favor of approval and
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adoption of the Merger Agreement; PROVIDED, HOWEVER, that no proxy which is
voted against the approval and adoption of the Merger Agreement will be voted in
favor of any such adjournment.
REVOCABILITY OF PROXIES
The grant of a proxy on the enclosed form does not preclude a stockholder
from voting in person. A stockholder may revoke a proxy at any time prior to its
exercise by filing with the Secretary of PerSeptive a duly executed revocation
of proxy, by submitting a duly executed proxy bearing a later date or by
appearing and voting in person at the Special Meeting. Attendance at the Special
Meeting will not, in and of itself, constitute revocation of a proxy.
RECORD DATE; STOCK ENTITLED TO VOTE; QUORUM
Only holders of record of PerSeptive Common Stock and Series A Preferred
Stock on the Record Date will be entitled to notice of, and only holders of
record of PerSeptive Common Stock on the Record Date will be entitled to vote
at, the Special Meeting. On the Record Date, 22,660,951 shares of PerSeptive
Common Stock were issued and outstanding and held by approximately 681 holders
of record.
A majority of the shares of PerSeptive Common Stock outstanding on the
Record Date must be represented in person or by proxy at the Special Meeting in
order for a quorum to be present for purposes of voting on approval and adoption
of the Merger Agreement.
SOLICITATION OF PROXIES
PerSeptive will bear the cost of the solicitation of proxies from its
stockholders, except that Perkin-Elmer and PerSeptive will share equally the
cost of filing, printing and distributing the Registration Statement and this
Proxy Statement/Prospectus. In addition to solicitation by mail, the directors,
officers and employees of PerSeptive may solicit proxies from stockholders of
PerSeptive by telephone or telegram or by other means of communication. Such
directors, officers and employees will not be additionally compensated but may
be reimbursed for reasonable out-of-pocket expenses in connection with such
solicitation. Arrangements will also be made with brokerage houses and other
custodians, nominees and fiduciaries for the forwarding of solicitation material
to the beneficial owners of stock held of record by such persons, and PerSeptive
will reimburse such custodians, nominees and fiduciaries for their reasonable
out-of-pocket expenses in connection therewith.
Morrow & Co., Inc., a professional proxy solicitation firm, has been engaged
to provide customary proxy solicitation services for a fee of $6,000 plus
expenses.
STOCKHOLDERS SHOULD NOT SEND STOCK CERTIFICATES WITH THEIR PROXY CARDS. IF
THE MERGER AGREEMENT IS APPROVED AND ADOPTED BY PERSEPTIVE'S STOCKHOLDERS AND
THE MERGER IS CONSUMMATED, TRANSMITTAL FORMS AND INSTRUCTIONS WILL BE SENT FOR
THE EXCHANGE OF SHARES OF PERSEPTIVE COMMON STOCK.
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THE PARTIES
THE PERKIN-ELMER CORPORATION
Perkin-Elmer is a New York corporation engaged primarily in the development,
manufacturing and marketing on a worldwide basis of life science and analytical
instruments and consumables used in markets such as pharmaceuticals,
biotechnology, environmental testing, food, agriculture and chemical
manufacturing. Perkin-Elmer had revenues of $1.28 billion in fiscal year 1997.
Perkin-Elmer's operations are organized in two industry segments: life
sciences and analytical instruments.
LIFE SCIENCES. In the life sciences, Perkin-Elmer offers a comprehensive
line of life science systems, which includes instruments, analytical software
and chemical reagents for life science research and other applied markets. These
systems are used for the synthesis, amplification, purification, isolation and
analysis of nucleic acids, proteins and other biological molecules and include
instruments utilizing polymerase chain reaction technology.
ANALYTICAL INSTRUMENTS. In analytical instruments, Perkin-Elmer is one of
the world's largest producers of systems which utilize numerous chemical,
physical and materials analysis techniques to define the characteristics and
composition of a broad range of materials. These systems, used to analyze and
measure the environment, to conduct research in biotechnology, and to assure the
safety and purity of pharmaceuticals and materials of industrial interest, are
used in a wide range of markets for research, development and manufacturing.
Perkin-Elmer's principal executive offices are located at 761 Main Avenue,
Norwalk, Connecticut 06859-0001 and its telephone number is (203) 762-1000.
PERSEPTIVE BIOSYSTEMS, INC.
PerSeptive is a Delaware corporation that develops, manufactures and markets
proprietary consumable products and instrumentation systems for the
purification, analysis and synthesis of biomolecules. PerSeptive's enabling
products are used in the life science industry to reduce the time and cost
required for the discovery, development and manufacture of pharmaceutical
products. PerSeptive's product lines are based on its patented core technologies
in the fields of chromatography, immunoassay, solid-phase synthesis, biological
mass spectrometry and microfluidic assay devices. PerSeptive had revenues of $86
million in fiscal year 1996.
PerSeptive's principal executive offices are located at 500 Old Connecticut
Path, Framingham, Massachusetts 01701 and its telephone number is (508)
383-7700.
SEVEN ACQUISITION CORP.
Merger Sub is a Delaware corporation organized in 1997 as a wholly-owned
subsidiary of Perkin-Elmer solely for the purpose of entering into the Merger
Agreement and effecting the Merger.
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THE MERGER
GENERAL
THIS SECTION OF THE PROXY STATEMENT/PROSPECTUS DESCRIBES CERTAIN ASPECTS OF
THE PROPOSED MERGER, INCLUDING THE PRINCIPAL TERMS OF THE MERGER AGREEMENT AND
THE STOCK OPTION AGREEMENT. COPIES OF THE MERGER AGREEMENT AND THE STOCK OPTION
AGREEMENT ARE ATTACHED TO THIS PROXY STATEMENT/PROSPECTUS AS ANNEXES I AND II,
RESPECTIVELY, AND ARE INCORPORATED HEREIN BY REFERENCE. THE DESCRIPTION SET
FORTH BELOW OF THE TERMS OF THE MERGER AGREEMENT AND THE STOCK OPTION AGREEMENT
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE THERETO. ALL STOCKHOLDERS OF
PERSEPTIVE ARE URGED TO READ THE MERGER AGREEMENT AND THE STOCK OPTION AGREEMENT
IN THEIR ENTIRETY.
BACKGROUND OF THE MERGER
As further discussed under "--Reasons for the Merger--Perkin-Elmer,"
Perkin-Elmer had been considering expansion in the life science system market on
an ongoing basis since its acquisition of Applied Biosystems, Inc. in 1993.
These analyses, which included periodic reviews of a number of companies in this
market, including PerSeptive, intensified following the election of Tony L.
White as Perkin-Elmer's Chairman, President and Chief Executive Officer in
September 1995.
In April 1996, Mr.White, together with Dr. Peter Barrett, Vice President
Corporate Planning and Business Development of Perkin-Elmer, and Dr. Michael
Hunkapiller, Senior Vice President and President of the Applied Biosystems
Division met with Dr. Noubar Afeyan, PerSeptive's Chairman and Chief Executive
Officer, to introduce themselves to PerSeptive and become acquainted with its
business. Following this meeting, Drs. Barrett and Afeyan met in May to discuss
a possible business relationship between Perkin-Elmer and PerSeptive, such as a
technical collaboration or strategic alliance. As a result of such meeting, and
subsequent discussions, Perkin-Elmer and PerSeptive entered into a
confidentiality agreement dated May 30, 1996 in order to explore potential areas
of mutual interest.
In June 1996, Dr. Afeyan made a presentation regarding PerSeptive to members
of senior management of Perkin-Elmer, including Drs. Barrett and Hunkapiller.
Following various communications between Dr. Afeyan and representatives of
Perkin-Elmer, Dr. Afeyan wrote to Drs. Barrett and Hunkapiller in August 1996 to
suggest a possible strategic alliance between Perkin-Elmer and PerSeptive that
would involve an exchange of certain assets between the two companies relating
to Perkin-Elmer's protein synthesis business and PerSeptive's DNA-related
businesses.
In response to Dr. Afeyan's letter, various discussions took place between
representatives of Perkin-Elmer and PerSeptive during the fall of 1996 regarding
the possible asset exchange transaction. The companies exchanged financial
information in furtherance of these discussions. Although Perkin-Elmer concluded
that an asset exchange transaction would not be in the best interests of its
stockholders, the information gained during these discussions suggested to
Perkin-Elmer's management that the two companies were complementary and could
benefit from a strategic business combination. These conclusions were discussed
with Dr. Afeyan and John F. Smith, President of PerSeptive, at a meeting with
Mr. White and other members of senior management of Perkin-Elmer in early
November 1996. Around this time, Morgan Stanley & Co. Incorporated ("Morgan
Stanley"), which had advised Perkin-Elmer in the Applied Biosystems acquisition
and had provided ongoing financial advice to Perkin-Elmer since that time, was
requested to formally assist Perkin-Elmer's management in its analysis of
PerSeptive.
In early November 1996, Dr. Afeyan met with certain members of the
PerSeptive Board to inform them of his discussions with Mr. White. Since no
proposal had been made by Perkin-Elmer, no formal action was taken; however, the
directors agreed that if Dr. Afeyan believed that it would be in the best
interests of PerSeptive's stockholders to continue preliminary discussions and
exchange additional information with Perkin-Elmer representatives, he should do
so. About this time, PerSeptive also held preliminary discussions with
PaineWebber regarding PerSeptive's retention of PaineWebber in connection with
the Perkin-Elmer discussions.
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On December 13, 1996, a Perkin-Elmer management team led by Dr. Barrett met
in Boston, Massachusetts, with Dr. Afeyan and representatives of Morgan Stanley
and PaineWebber, and Dr. Afeyan gave a presentation regarding PerSeptive's
strategy, technology and product portfolio. No substantive discussion of the
terms or structure of any possible transaction took place at this meeting. Prior
to this meeting, Perkin-Elmer and PerSeptive executed an amended confidentiality
agreement covering information provided by PerSeptive. During December 1996 and
January 1997, additional information was exchanged by the parties.
On January 27, 1997, Morgan Stanley discussed its preliminary valuation with
Perkin-Elmer management. On February 6, 1997, Mr. White, Dr. Barrett and Stephen
O. Jaeger, then Vice President and Chief Financial Officer of Perkin-Elmer, met
with Dr. Afeyan in Waltham, Massachusetts, and Mr. White indicated
Perkin-Elmer's preliminary interest in a stock-for-stock business combination
with PerSeptive at a proposed price per share of PerSeptive Common Stock of
$9.00. No understandings were reached at that meeting. However, both parties
continued to review a strategic business combination and numerous conversations
occurred between the parties' financial advisors to discuss the possible terms
and structure of such a combination.
On February 10, 1997, Mr. White wrote a letter to Dr. Afeyan indicating
Perkin-Elmer's preliminary interest in pursuing a business combination
transaction and provisionally targeting a valuation package for such transaction
that would include shares of Perkin-Elmer Common Stock with a value of $8.50 per
share of PerSeptive Common Stock plus a contingent value right designed to bring
the total potential value to $11.33 per share of PerSeptive Common Stock. The
contingent value right was proposed as a possible means of addressing the
divergent views of management of Perkin-Elmer and PerSeptive at that time
regarding the fair value of PerSeptive and, as proposed, would have provided for
an additional payment to PerSeptive stockholders if following the business
combination PerSeptive met certain performance targets and the Perkin-Elmer
Common Stock did not appreciate. As an alternative, Mr. White reaffirmed Perkin-
Elmer's preliminary interest in a stock-for-stock exchange, without a contingent
value right, valued at $9.00 per share of PerSeptive Common Stock. Dr. Afeyan
discussed Mr. White's preliminary proposal with the PerSeptive Board and with
representatives of PaineWebber. Without taking formal action, the PerSeptive
Board determined that, although $9.00 per share represented a substantial
premium over the then-current market price for PerSeptive Common Stock, it did
not adequately reflect fair value. Accordingly, in a letter dated February 14,
1997, Dr. Afeyan informed Mr. White that the PerSeptive Board would have
difficulty recommending a transaction within the parameters of Mr. White's
letter. Formal discussions between the two companies terminated at that time.
Although there was no formal communication between management of
Perkin-Elmer and PerSeptive over the following four months, Perkin-Elmer
continued to believe that a merger or other combination transaction was in the
best interests of the companies, and the companies' financial advisors continued
to discuss a possible transaction.
On June 19, 1997, Perkin-Elmer's senior management presented an analysis of
a possible combination transaction to the Perkin-Elmer Board. This presentation
included a review of PerSeptive's business and financial performance as well as
a range of possible values for negotiating such a transaction. Based on this
presentation, the Perkin-Elmer Board instructed management to pursue further
discussions with PerSeptive. On June 20, 1997, Mr. White sent a letter to Dr.
Afeyan and the PerSeptive Board indicating Perkin-Elmer's continued interest in
a combination transaction structured as a stock-for-stock transaction or cash
purchase at a price of between $9.00 and $10.00 per share of PerSeptive Common
Stock.
At a special meeting of the PerSeptive Board on June 25, 1997, the
PerSeptive Board discussed Mr. White's letter and the history of discussions
between Perkin-Elmer and PerSeptive. The PerSeptive Board ratified the retention
of PaineWebber, effective February 14, 1997, as its financial advisor in
connection with its discussions with Perkin-Elmer. No other formal action was
taken at the meeting, except that the PerSeptive Board requested that
PaineWebber prepare a financial analysis of the preliminary
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proposal and its potential value to PerSeptive's stockholders. On June 30, 1997,
the PerSeptive Board met with representatives of PaineWebber, who reviewed
PaineWebber's preliminary financial analyses of PerSeptive, Perkin-Elmer and the
proposed transaction. No formal action was taken at this meeting. On July 8,
1997, the PerSeptive Board met again to discuss the preliminary proposal.
Although the PerSeptive Board determined that the price range set forth in Mr.
White's June 20, 1997 letter did not represent the fair value of PerSeptive, the
PerSeptive Board agreed that Dr. Afeyan should respond in writing to Mr. White
to suggest that further discussions be held.
On July 10, 1997, Dr. Afeyan responded to Mr. White on behalf of the
PerSeptive Board and suggested a meeting between senior management of
Perkin-Elmer and PerSeptive. On July 17, 1997, Dr. Afeyan and Mr. Smith,
together with representatives of PaineWebber, made a business presentation to
members of senior management of Perkin-Elmer and representatives of Morgan
Stanley regarding the financial condition and performance and prospects of
PerSeptive.
In a letter dated July 29, 1997, Mr. White wrote to Dr. Afeyan and the
PerSeptive Board setting forth a final proposal that the companies enter into a
tax-free, stock-for-stock merger to be accounted for as a pooling-of-interests,
in which PerSeptive stockholders would receive Perkin-Elmer Common Stock having
a value of $13.00 per share. The letter requested a response by August 4, 1997.
At a special meeting of the PerSeptive Board held on July 31, 1997, the
PerSeptive Board discussed Mr. White's letter. Representatives of PaineWebber
reviewed their most recent discussions with Morgan Stanley and a financial
analysis of Perkin-Elmer's most recent proposal. The directors discussed Perkin-
Elmer's proposal in detail, including the potential risks and benefits to
PerSeptive of the proposed transaction and of various alternatives to the
proposed transaction. No formal action was taken at this meeting except that the
directors agreed that Dr. Afeyan and Mr. Smith should contact Perkin-Elmer to
initiate discussions with a view to determining whether a definitive agreement
within the parameters of Mr. White's letter could be reached.
On August 4, 1997, Dr. Afeyan and Mr. Smith met with Mr. White and discussed
Perkin-Elmer's proposal. At the conclusion of the meeting, the principals agreed
that each party should immediately begin a due diligence review and that their
legal advisors should commence negotiation of a definitive merger agreement.
Throughout the next three weeks, representatives of and advisors to
Perkin-Elmer and PerSeptive conducted their financial and legal due diligence
reviews, and, commencing on August 13, 1997, their respective counsel began
negotiating the terms of the Merger Agreement and Stock Option Agreement. On
August 19, 1997, representatives of Morgan Stanley met with senior management of
Perkin-Elmer to discuss the preliminary results of Morgan Stanley's financial
analysis of the transaction.
On August 21, 1997, at a regular meeting of the Perkin-Elmer Board, members
of Perkin-Elmer's senior management presented their recommendations with respect
to the Merger. At this meeting Perkin-Elmer's management again discussed with
the Perkin-Elmer Board its assessment of the historical financial performance of
Perkin-Elmer and PerSeptive, the prospects of PerSeptive and the combined
company and the potential benefits to be derived from the Merger. The
Perkin-Elmer Board and senior management discussed the structure of the Merger
as well as issues concerning the combination of operations, retention of
management and regulatory approvals. Management also advised the Perkin-Elmer
Board of the nature and scope of all substantive issues required to be resolved
prior to the finalization of a definitive merger agreement. Morgan Stanley then
presented the results of its financial analysis of the transaction. Following
discussion, the Perkin-Elmer Board unanimously approved the transactions
contemplated by the Merger Agreement and the Stock Option Agreement, subject to
completion of definitive documentation and due diligence and delegated authority
to certain members of senior management to complete such definitive
documentation and due diligence.
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The PerSeptive Board discussed the status of negotiations at a special
meeting on August 20, 1997 and met again on August 21, 1997 with PerSeptive's
legal counsel and representatives of PaineWebber. The PerSeptive Board and
representatives of PaineWebber reviewed in detail the terms of the proposed
Merger Agreement and Stock Option Agreement. The PerSeptive Board again
discussed the potential risks and benefits of the proposed Merger to
PerSeptive's stockholders and other long-term alternatives for PerSeptive (see
"--Reasons for the Merger--PerSeptive"). No formal action was taken at this
meeting except that further efforts toward reaching a definitive agreement were
authorized.
Over the next two days, executives of Perkin-Elmer and PerSeptive and their
respective legal and financial advisors held numerous telephone conferences to
resolve remaining issues and finalize the Merger Agreement, the Stock Option
Agreement and all related documents. The PerSeptive Board met again on August
23, 1997, at which time PerSeptive's management informed the PerSeptive Board
that all terms of the Merger Agreement and the Stock Option Agreement had been
satisfactorily finalized, subject to approval of the PerSeptive Board.
Representatives of PaineWebber presented their financial analyses, reviewed at
prior PerSeptive Board meetings, and delivered PaineWebber's opinion to the
effect that, as of such date, the Merger Consideration (as defined in the Merger
Agreement) was fair, from a financial point of view, to the holders of
PerSeptive Common Stock (other than Perkin-Elmer and its affiliates). Following
discussion, the Merger Agreement and the Stock Option Agreement were unanimously
approved by the PerSeptive Board and the agreements were signed by the parties
shortly thereafter.
REASONS FOR THE MERGER
PERKIN-ELMER. In evaluating the proposed Merger, the Perkin-Elmer Board
reviewed presentations from its management and advisors, including the
presentation of its financial advisor, Morgan Stanley. In reaching its
determination to approve the Merger Agreement, the Stock Option Agreement and
the transactions contemplated thereby, the Perkin-Elmer Board considered a
number of factors, including the factors listed below.
- The Perkin-Elmer Board's belief that the Merger would permit Perkin-Elmer
to achieve its strategic goal of significantly expanding Perkin-Elmer's
presence in the life sciences and drug discovery markets.
- The Perkin-Elmer Board's belief that the complementary technology and
products of Perkin-Elmer and PerSeptive could be combined in a manner that
would allow customers to streamline the process and reduce the time and
cost of pharmaceutical drug discovery and development, thereby improving
the competitive position of the combined company.
- The Perkin-Elmer Board's view that the integration of PerSeptive's protein
analysis and purification technology with Perkin-Elmer's genetic analysis
systems would enable the combined company to provide an integrated
platform that would allow customers to accelerate their understanding of
disease mechanisms and to target therapeutic intervention for the
monitoring and treatment of disease.
- The Perkin-Elmer Board's determination that the combination of
PerSeptive's products and technologies with Perkin-Elmer's sales, service
and support infrastructure would provide increased opportunities for
revenue growth.
- The Perkin-Elmer Board's view that operating efficiencies and cost
reductions could result from the integration of the facilities and
operations of Perkin-Elmer and PerSeptive.
- The Perkin-Elmer Board's determination that a business combination with
PerSeptive would provide opportunities beyond those reasonably available
through internal growth by permitting Perkin-Elmer to acquire a developed
portfolio of products and technologies providing a base from which the
combined company could accelerate development of advanced systems for the
large scale study of protein and protein networks known as "proteomics".
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- The terms and conditions of the Merger Agreement and the Stock Option
Agreement, including the form and amount of consideration, and the
representations, warranties, covenants and conditions contained in such
agreements.
- Current market conditions, historical market prices and trading
information with respect to the PerSeptive Common Stock and the
Perkin-Elmer Common Stock and the presentation of Perkin-Elmer's financial
advisor, Morgan Stanley.
- The Perkin-Elmer Board's expectation that the Merger would be accounted
for as a pooling of interests for financial accounting purposes, thereby
minimizing the dilutive effect of the Merger on Perkin-Elmer's existing
stockholders.
None of the foregoing factors or groups of factors had particular prominence in
the decision of the Perkin-Elmer Board to approve the Merger Agreement, the
Merger, the Stock Option Agreement and the other transactions contemplated
thereby, and none was assigned any specific or relative weight.
PERSEPTIVE. The PerSeptive Board unanimously approved the terms and
provisions of the Merger Agreement, the Stock Option Agreement and the
transactions contemplated thereby, including the Merger, at a special meeting
held on August 23, 1997. In evaluating the Merger Agreement, the Stock Option
Agreement and the transactions contemplated thereby and arriving at its
approval, the PerSeptive Board considered a number of factors, including the
factors listed below.
- The PerSeptive Board's belief that the Merger would result in the creation
of a combined company with significantly greater resources, a more
integrated multi-technology product offering and greater management,
sales, service and marketing capabilities than those of PerSeptive alone,
and would enable the combined company to compete more effectively with
competitors having greater resources and broader product offerings than
PerSeptive alone.
- The PerSeptive Board's belief that the Merger would provide PerSeptive
with the potential to expand the market presence of its products globally
through Perkin-Elmer's existing sales force and existing international
sales and distribution channels and its determination that, on its own,
PerSeptive would need to either substantially invest in building its own
sales force or enter into potentially costly distribution arrangements.
- The PerSeptive Board's belief that the Merger would provide increased
access to capital needed for growth.
- The combined company's financial and management resources, which the
PerSeptive Board determined would facilitate relationships and enhance
credibility with existing and prospective customers.
- The complementary nature of the product and technology offerings of
PerSeptive and Perkin-Elmer, which the PerSeptive Board believes would
improve the combined company's competitive position by offering its
customers a more fully integrated portfolio of products than either
company could offer alone or than its competitors currently offer, thereby
enabling customers to compress the time and reduce the costs of
pharmaceutical drug discovery and development.
- The PerSeptive Board's view that the combined company's greater financial
stability and improved long-term prospects would enable it to attract and
retain talented employees more easily than PerSeptive could alone.
- The PerSeptive Board's determination that the combination of the
complementary technologies and research and development teams of
PerSeptive and Perkin-Elmer would lead to more rapid product development
cycles and to product development improvements.
- The PerSeptive Board's belief that cost and operating efficiencies could
be achieved through the integration of operations of PerSeptive and
Perkin-Elmer.
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- The intent that the transaction qualify as a tax-free reorganization so
that no taxable gain or loss would be recognized by the PerSeptive
stockholders on the exchange of their shares of PerSeptive Common Stock
for Perkin-Elmer Common Stock.
- The potential future appreciation in the value of the Perkin-Elmer Common
Stock that PerSeptive's stockholders would receive in exchange for their
shares of PerSeptive Common Stock, although there is no assurance that any
such appreciation will materialize, or that the value of the Perkin-Elmer
Common Stock will not decline.
- Current market conditions, historical market prices and trading
information with respect to the PerSeptive Common Stock and the
Perkin-Elmer Common Stock.
- Other long-term alternatives for PerSeptive, including the possibility of
remaining independent, pursuing other transaction structures or the
potential of being acquired by another company.
- The PerSeptive Board's belief, based on its assessment of the
negotiations, that a higher exchange ratio could not be achieved through
continued negotiations with Perkin-Elmer.
- The PerSeptive Board's belief that the results of financial analyses
performed by management and PaineWebber were consistent with the
consideration to be received by PerSeptive stockholders and the relative
valuation of Perkin-Elmer and PerSeptive in the Merger.
- The opinion of PaineWebber to the effect that, as of the date of such
opinion, the Merger Consideration (as defined in the Merger Agreement) is
fair, from a financial point of view, to the holders of PerSeptive Common
Stock (other than Perkin-Elmer and its affiliates).
None of the foregoing factors or group of factors had particular prominence in
the decision of the PerSeptive Board to approve the Merger Agreement, the
Merger, the Stock Option Agreement and the other transactions contemplated
thereby and none was assigned any specific or relative weight.
The PerSeptive Board also considered negative factors relating to the
Merger, including (a) the risk that the benefits sought in the Merger would not
be fully achieved, (b) the risk that the Merger would not be consummated, (c)
the effect of the public announcement of the Merger on PerSeptive's sales and
operating results and (d) other risks described above under "Risk Factors." The
PerSeptive Board believed that these risks were outweighed by the potential
benefits to be gained by the Merger.
RECOMMENDATION OF THE PERSEPTIVE BOARD
FOR THE REASONS STATED ABOVE, THE PERSEPTIVE BOARD HAS DETERMINED THAT THE
TERMS OF THE MERGER AGREEMENT AND THE STOCK OPTION AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE MERGER, ARE FAIR TO AND IN THE
BEST INTERESTS OF PERSEPTIVE'S STOCKHOLDERS. THE PERSEPTIVE BOARD HAS, BY
UNANIMOUS VOTE OF ALL DIRECTORS, APPROVED THE MERGER AGREEMENT AND THE STOCK
OPTION AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY AND RECOMMENDS THAT
PERSEPTIVE'S STOCKHOLDERS APPROVE AND ADOPT THE MERGER AGREEMENT.
OPINION OF FINANCIAL ADVISOR TO PERSEPTIVE
THE FULL TEXT OF THE OPINION OF PAINEWEBBER, DATED AUGUST 23, 1997, WHICH
SETS FORTH THE ASSUMPTIONS MADE, PROCEDURES FOLLOWED, MATTERS CONSIDERED AND
LIMITATIONS ON THE REVIEW UNDERTAKEN, IS ATTACHED AS ANNEX III TO THIS PROXY
STATEMENT/PROSPECTUS. HOLDERS OF PERSEPTIVE COMMON STOCK ARE URGED TO READ SUCH
OPINION CAREFULLY AND IN ITS ENTIRETY. THE SUMMARY OF THE PAINEWEBBER OPINION
SET FORTH IN THIS PROXY STATEMENT/PROSPECTUS IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO THE FULL TEXT OF SUCH OPINION.
PerSeptive retained PaineWebber as its exclusive financial advisor in
connection with the Merger. In connection with such engagement, PerSeptive
requested that PaineWebber render an opinion as to
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whether or not the Merger Consideration (as defined in the Merger Agreement) is
fair, from a financial point of view, to the holders of PerSeptive Common Stock
(other than Perkin-Elmer and its affiliates).
In connection with the PerSeptive Board's consideration of the Merger
Agreement, PaineWebber delivered its written opinion, dated August 23, 1997 (the
"Opinion"), to the effect that, as of such date, and based upon its review and
assumptions and subject to the limitations summarized below, the Merger
Consideration is fair, from a financial point of view, to the holders of
PerSeptive Common Stock (other than Perkin-Elmer and its affiliates). The
Opinion was directed to, and prepared at the request and for the information of,
the PerSeptive Board and does not constitute a recommendation to any holder of
PerSeptive Common Stock as to how any such stockholder should vote with respect
to the Merger.
In arriving at its Opinion, PaineWebber, among other things: (i) reviewed,
among other public information, PerSeptive's Annual Reports, Forms 10-K and
related financial information for the three fiscal years ended September 30,
1996 and PerSeptive's Form 10-Q and the related unaudited financial information
for the nine months ended June 30, 1997; (ii) reviewed, among other public
information, Perkin-Elmer's Annual Reports, Forms 10-K and related financial
information for the three fiscal years ended June 30, 1996 and the related
unaudited financial information for the fiscal year ended June 30, 1997; (iii)
reviewed certain information, including financial forecasts (including, with
respect to PerSeptive, internally prepared financial forecasts and, with respect
to Perkin-Elmer, certain publicly available estimates of future performance,
which estimates were discussed with members of senior management of Perkin-Elmer
(collectively, the "Projections")), relating to the business, earnings, cash
flow, assets and prospects of PerSeptive and Perkin-Elmer, furnished to
PaineWebber by or on behalf of PerSeptive and Perkin-Elmer, respectively; (iv)
conducted discussions with members of senior management of PerSeptive and
Perkin-Elmer concerning their respective businesses and prospects; (v) conducted
discussions with members of senior management of PerSeptive concerning
information relating to certain strategic, financial and operational benefits
anticipated by such management to result from the Merger; (vi) compared the
historical market prices and trading activity for PerSeptive Common Stock and
Perkin-Elmer Common Stock with those of certain other publicly traded companies
which PaineWebber deemed relevant; (vii) compared the financial position and
operating results of PerSeptive and Perkin-Elmer with those of certain other
publicly traded companies which PaineWebber deemed relevant; (viii) compared the
financial terms of the Merger with the financial terms of certain other business
combinations which PaineWebber deemed relevant; (ix) considered the potential
pro forma effects of the Merger on Perkin-Elmer; (x) reviewed a draft of the
Merger Agreement in the form presented to the PerSeptive Board at its August 23,
1997 meeting; and (xi) reviewed such other financial studies and analyses and
performed such other investigations and took into account such other matters as
PaineWebber deemed necessary, including PaineWebber's assessment of regulatory,
general economic, market and monetary conditions.
In preparing the Opinion, PaineWebber relied on the accuracy and
completeness of all information that was publicly available, supplied or
otherwise communicated to PaineWebber by or on behalf of PerSeptive and
Perkin-Elmer, and PaineWebber did not assume any responsibility to independently
verify such information. With respect to the Projections, PaineWebber assumed,
with PerSeptive's consent, that they were reasonably prepared on bases
reflecting the best currently available estimates as to the future performance
of PerSeptive and Perkin-Elmer, respectively. PaineWebber did not undertake an
independent evaluation or appraisal of the assets or liabilities (contingent or
otherwise) of PerSeptive or Perkin-Elmer, nor was PaineWebber furnished with any
such evaluations or appraisals. PaineWebber also assumed, with the consent of
PerSeptive, that (i) all material assets and liabilities (contingent or
otherwise, known or unknown) of PerSeptive and Perkin-Elmer are as set forth in
their respective financial statements; and (ii) the Merger will be accounted for
under the pooling-of-interests method of accounting and will qualify as a
tax-free reorganization under the Code. The Opinion was based upon regulatory,
economic, monetary and market conditions existing on the date thereof.
Furthermore, PaineWebber expressed no opinion as to the price or trading ranges
at which PerSeptive Common Stock or Perkin-Elmer Common Stock will trade after
the date of the Opinion. The Opinion does not address the relative merits
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of the Merger and other transactions or business strategies that may have been
discussed by the PerSeptive Board as alternatives to the Merger, or the decision
of the PerSeptive Board to proceed with the Merger. PaineWebber did not, and was
not requested to, solicit third party indications of interest in acquiring all
or part of PerSeptive. PerSeptive did not place any limitations upon PaineWebber
with respect to the procedures followed or factors considered in rendering the
Opinion.
The following paragraphs summarize the significant analyses performed by
PaineWebber in arriving at the Opinion.
HISTORICAL STOCK PERFORMANCE. PaineWebber reviewed trading prices for the
shares of PerSeptive Common Stock. This stock performance review indicated that
for PerSeptive's latest twelve months ("LTM") ended August 22, 1997, the low and
high closing prices were $4.63 and $11.13, respectively. PaineWebber also
reviewed the following PerSeptive stock price averages over the following
periods prior to August 22, 1997: (i) latest 10 trading day average--$9.99, (ii)
latest 20 trading day average--$9.71, (iii) latest 30 trading day
average--$9.02, (iv) latest 60 trading day average--$7.67, (v) latest 90 trading
day average--$7.12 and (vi) latest 180 trading day average--$7.10.
PaineWebber also reviewed trading prices for the shares of Perkin-Elmer
Common Stock. This stock performance review indicated that for Perkin-Elmer's
LTM ended August 22, 1997, the low and high closing prices were $50.13 and
$86.13, respectively. PaineWebber also reviewed the following Perkin-Elmer stock
price averages over the following periods prior to August 22, 1997: (i) latest
10 trading day average-- $79.61, (ii) latest 20 trading day average--$81.13,
(iii) latest 30 trading day average--$81.98, (iv) latest 60 trading day
average--$80.31, (v) latest 90 trading day average--$78.10 and (vi) latest 180
trading day average--$72.34.
SELECTED COMPARABLE PUBLIC COMPANY ANALYSIS. Using publicly available
information, PaineWebber compared selected historical and projected financial,
operating and stock market performance data of PerSeptive and Perkin-Elmer to
the corresponding data of the PerSeptive Comparable Companies and the
Perkin-Elmer Comparable Companies (each as defined below), respectively. The
PerSeptive Comparable Companies consisted of Perkin-Elmer; Beckman Instruments,
Inc.; Bio-Rad Laboratories, Inc.; Dionex Corporation; Millipore Corporation;
Molecular Devices Corporation; Molecular Dynamics, Inc.; Thermo Instrument
Systems Inc.; and Waters Corporation (collectively, the "PerSeptive Comparable
Companies"). The Perkin-Elmer Comparable Companies consisted of each of the
PerSeptive Comparable Companies (other than Perkin-Elmer), Amgen Inc.; Biogen,
Inc.; Genentech, Inc.; Incyte Pharmaceuticals, Inc.; and Life Technologies, Inc.
(collectively, the "Perkin-Elmer Comparable Companies").
PaineWebber reviewed, among other information, the PerSeptive Comparable
Companies' multiples of total enterprise value (market value plus total debt
less cash and cash equivalents) to (i) LTM net revenue, (ii) LTM earnings before
interest, taxes, depreciation and amortization ("EBITDA") and (iii) LTM earnings
before interest and taxes ("EBIT"). PaineWebber also reviewed, among other
information, the PerSeptive Comparable Companies' multiples of market value to
(i) LTM net income, (ii) calendar year 1997 earnings per share ("EPS") and (iii)
calendar year 1998 EPS. All calendar year 1997 and 1998 EPS results were based
on publicly available estimates from First Call Research. As of August 22, 1997,
the PerSeptive Comparable Companies' (i) LTM net revenue multiples ranged from
0.82x to 4.55x (3.06x mean), (ii) LTM EBITDA multiples ranged from 6.2x to 33.2x
(16.7x mean), (iii) LTM EBIT multiples ranged from 9.3x to 46.4x (21.6x mean),
(iv) LTM net income multiples ranged from 13.4x to 47.1x (25.3x mean), (v)
calendar year 1997 EPS multiples ranged from 12.7x to 42.5x (25.3x mean) and
(vi) calendar year 1998 EPS multiples ranged from 11.8x to 30.8x (20.2x mean).
Based on an assumed price of $13.00 for each outstanding share of PerSeptive
Common Stock, PerSeptive's implied multiples, calculated on the same basis as
the PerSeptive Comparable Companies, were as follows: (i) LTM net revenue--3.71x
and (ii) calendar year 1998 EPS--19.7x. Calendar year 1997 and 1998 EPS were
based on estimates provided by PerSeptive management. PerSeptive's LTM EBITDA,
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LTM EBIT, LTM net income and calendar year 1997 EPS were negative and therefore
a multiple analysis was not meaningful for these variables.
With respect to Perkin-Elmer and the Perkin-Elmer Comparable Companies,
utilizing the same analysis, PaineWebber compared multiples of total enterprise
value to LTM revenue, EBITDA and EBIT. PaineWebber also compared multiples of
market value to LTM net income, and estimated 1997 and 1998 calendar year EPS.
Perkin-Elmer's 1997 and 1998 calendar year earnings per share were based on the
Projections. As of August 22, 1997, the Perkin-Elmer Comparable Companies' (i)
LTM net revenue multiples ranged from 0.82x to 8.03x (4.05x mean), (ii) LTM
EBITDA multiples ranged from 6.2x to 33.2x (17.1x mean), (iii) LTM EBIT
multiples ranged from 9.3x to 46.4x (21.8x mean), (iv) LTM net income multiples
ranged from 13.4x to 47.1x (25.9x mean), (v) calendar year 1997 EPS multiples
ranged from 12.7x to 60.3x (28.1x mean) and (vi) calendar year 1998 EPS
multiples ranged from 11.8x to 55.6x (24.3x mean).
Based upon the closing price per share of the Perkin-Elmer Common Stock on
August 22, 1997 of $78.06, Perkin-Elmer's implied multiples, calculated on the
same basis as the Perkin-Elmer Comparable Companies, were as follows: (i) LTM
net revenue--2.63x, (ii) LTM EBITDA--16.7x, (iii) LTM EBIT-- 21.9x, (iv) LTM net
income--27.2x, (v) calendar year 1997 EPS--24.5x and (vi) calendar year 1998
EPS-- 20.2x.
SELECTED COMPARABLE MERGERS AND ACQUISITIONS ANALYSIS. PaineWebber reviewed
publicly available financial information for selected mergers and acquisitions
involving instrumentation companies that are affiliated with the life sciences
sector. The selected mergers and acquisitions PaineWebber analyzed included
(acquiror/target): Reed Elsevier/MDL Information Systems; Millipore
Corporation/Amicon Inc. (WR Grace & Co.); Pall Corp/Gelman Sciences; Waters
Corporation/TA Instruments; Lawter International Inc./Hach Company;
PerSeptive/Millipore Corporation--BioSearch Division; Arrow International
Inc./Kontron Instruments Inc.; Thermo Instrument Systems Inc./Spectrum--Physics
Analytical, Inc.; Perkin-Elmer/Applied Biosystems Inc.; Millipore
Corporation/Extrel Corporation (Waters Corporation); Thermo Electron
Corporation/International Technidyne Corporation; Link Analytical/The Nucleus;
and Thermo Instrument Systems Inc./Finnigan Corporation (collectively, the
"Comparable Transactions").
PaineWebber reviewed the consideration paid (based on stock prices on the
day prior to the announcement of the transaction) in the Comparable Transactions
and calculated multiples of total enterprise value to the target's LTM (latest
twelve months prior to the announcement of the transaction) net revenue, EBITDA
and EBIT. PaineWebber also reviewed multiples of the consideration paid to the
target's LTM net income and book value. The Comparable Transactions (i) LTM net
revenue multiples ranged from 0.97x to 5.27x (2.12x mean), (ii) LTM EBITDA
multiples ranged from 7.6x to 58.8x (19.1x mean), (iii) LTM EBIT multiples
ranged from 9.4x to 34.0x (21.0x mean), (iv) LTM net income multiples ranged
from 16.3x to 46.1x (30.4x mean) and (v) book value multiples ranged from 0.9x
to 9.4x (4.2x mean).
DISCOUNTED CASH FLOW ANALYSIS. PaineWebber analyzed PerSeptive based on an
unleveraged discounted cash flow analysis of the projected financial performance
of PerSeptive. Such projected financial performance was based upon a five-year
forecast for PerSeptive provided by PerSeptive management. The discounted cash
flow analysis determined the discounted present value of the unleveraged
after-tax cash flows generated over the five-year period and then added a
terminal value based upon a range of net revenue, EBITDA and EBIT multiples from
2.00x to 3.50x, 11.0x to 17.0x and 15.0x to 21.0x, respectively. The unleveraged
after-tax cash flows and terminal value were discounted using a range of
discount rates from 35.0% to 50.0%.
With respect to Perkin-Elmer, PaineWebber analyzed Perkin-Elmer based on an
unleveraged discounted cash flow analysis of the Projections. The discounted
cash flow analysis determined the discounted present value of the unleveraged
after-tax cash flow generated over the five-year period and then added a
terminal value based upon a range of net revenue, EBITDA and EBIT multiples from
2.00x to 3.50x, 11.0x to 17.0x and 15.0x to 21.0x, respectively. The unleveraged
after-tax cash flows and terminal value were discounted using a range of
discount rates from 12.5% to 20.0%.
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PREMIUMS PAID ANALYSIS. PaineWebber reviewed purchase price per share
premiums paid in 118 publicly-disclosed cash and stock merger transactions in
non-financial industries announced and completed since January 1, 1994 involving
the purchase of the entire target with market value between $150.0 million and
$300.0 million. This analysis indicated median premiums to the target's closing
stock price one day, one week and four weeks prior to the announcement of the
transaction of 34.6%, 38.8% and 45.0%, respectively. The implied premiums paid
to PerSeptive (based on an assumed price of $13.00 per share) one day, one week
and four weeks prior to August 22, 1997 were 22.4%, 28.4% and 67.7%,
respectively. PaineWebber also reviewed the closing stock prices of the
PerSeptive Common Stock one day, one week and four weeks prior to July 29, 1997,
the date on which the offer was made by Perkin-Elmer, resulting in implied
premiums of 57.6%, 67.7% and 108.0%, respectively.
PRO FORMA MERGER ANALYSIS. PaineWebber performed an analysis of the
potential pro forma effect of the Merger on Perkin-Elmer's EPS for the fiscal
years 1998 and 1999. In performing this analysis, PaineWebber assumed, with
PerSeptive's consent, (i) the Merger would be accounted for under the
pooling-of-interests method of accounting and (ii) synergies may be achieved as
a result of the Merger. PaineWebber then combined the projected operating
results of PerSeptive (provided by PerSeptive management) with the Projections
to arrive at the combined company projected net income. PaineWebber divided this
by the pro forma fully diluted shares outstanding to arrive at a combined
company fully diluted EPS. PaineWebber then compared the combined company EPS to
Perkin-Elmer's EPS based on the Projections to determine the pro forma impact on
Perkin-Elmer's EPS.
The preparation of a fairness opinion involves various determinations as to
the most appropriate and relevant quantitative methods of financial analyses and
the application of those methods to the particular circumstances and, therefore,
such an opinion is not readily susceptible to partial analysis or summary
description. Accordingly, PaineWebber believes that its analysis must be
considered as a whole and that considering any portion of such analysis and of
the factors considered, without considering all analyses and factors, could
create a misleading or incomplete view of the process underlying the Opinion. In
its analyses, PaineWebber made numerous assumptions with respect to industry
performance, general business and economic conditions and other matters, many of
which are beyond the control of PerSeptive and Perkin-Elmer. 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 as set forth therein. In addition, analyses relating to the value
of businesses do not purport to be appraisals or to reflect the prices at which
businesses may actually be sold. Accordingly, such analyses and estimates are
inherently subject to substantial uncertainty and neither PerSeptive,
Perkin-Elmer nor PaineWebber assumes responsibility for the accuracy of such
analyses and estimates.
PerSeptive selected PaineWebber to be its financial advisor in connection
with the Merger because PaineWebber is a prominent investment banking and
financial advisory firm with experience in the valuation of businesses and their
securities in connection with mergers and acquisitions, negotiated
underwritings, secondary distributions of securities, private placements and
valuations for corporate purposes.
Pursuant to an engagement letter between PerSeptive and PaineWebber dated as
of February 14, 1997, PaineWebber earned a fee of $500,000 for rendering the
Opinion. In addition, PaineWebber will receive a fee, payable upon completion of
the Merger, equal to approximately $2,800,000 (assuming a price per share of
Perkin-Elmer Common Stock equal to the market price as of the date of this Proxy
Statement/ Prospectus). If the foregoing fee becomes payable, the $500,000 paid
for the Opinion will be deducted from such fee. In addition, PaineWebber will be
reimbursed for certain of its related expenses. PaineWebber will not be entitled
to any additional fees or compensation in the event the Merger is not approved
or otherwise consummated. PerSeptive also agreed, under separate agreement, to
indemnify PaineWebber, its affiliates and each of its directors, officers,
agents and employees and each person, if any, controlling PaineWebber or any of
its affiliates against certain liabilities, including liabilities under federal
securities laws.
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In the ordinary course of PaineWebber's business, PaineWebber may actively
trade the securities of PerSeptive and Perkin-Elmer for its own account and for
the accounts of its customers and, accordingly, may at any time hold long or
short positions in such securities.
STRUCTURE OF THE MERGER
Subject to the terms and conditions of the Merger Agreement and in
accordance with the DGCL, at the Effective Time of the Merger, Merger Sub will
merge with and into PerSeptive. PerSeptive will be the Surviving Corporation in
the Merger, and will continue its corporate existence under Delaware law as a
wholly-owned subsidiary of Perkin-Elmer. At the Effective Time of the Merger,
the separate corporate existence of Merger Sub will terminate. The Certificate
of Incorporation of Merger Sub, as in effect immediately prior to the Effective
Time of the Merger, will be the Certificate of Incorporation of the Surviving
Corporation, and the By-Laws of Merger Sub, as in effect immediately prior to
the Effective Time of the Merger, will be the By-Laws of the Surviving
Corporation.
MERGER CONSIDERATION
Upon consummation of the Merger, except as described below, each outstanding
share of PerSeptive Common Stock, other than shares held in PerSeptive's
treasury or held by Perkin-Elmer, Merger Sub or any subsidiary of Perkin-Elmer
or PerSeptive, will be automatically converted into the right to receive a
fraction of a share of Perkin-Elmer Common Stock equal to the Exchange Ratio,
which is defined as the amount obtained by dividing $13.00 by the average of the
closing sale prices per share of Perkin-Elmer Common Stock on the NYSE Composite
Transactions Tape on each of the 20 consecutive trading days immediately
preceding the second trading day prior to the Effective Time of the Merger,
rounded to the nearest 1/10,000th, PROVIDED that such amount shall not be less
than 0.1486 nor more than 0.1926 (except that cash will be paid in lieu of
fractional shares as described under "--Conversion of Shares; Procedures for
Exchange of Certificates; Fractional Shares" below). For so long as the
foregoing 20-trading day average price per share of Perkin-Elmer Common Stock is
not more than $87.50 nor less than $67.50, the application of the Exchange Ratio
will result in an adjustment of the fraction of a share of Perkin-Elmer Common
Stock to be received for each share of PerSeptive Common Stock. However, the
fraction of a share of Perkin-Elmer Common Stock to be received for each share
of PerSeptive Common Stock shall not be increased above 0.1926 if such
20-trading day average is less than $67.50, nor shall such fraction be decreased
below 0.1486 if such 20-trading day average is more than $87.50.
The Exchange Ratio was determined through arm's-length negotiations between
Perkin-Elmer and PerSeptive.
Immediately prior to the Effective Time of the Merger, each issued and
outstanding share of Series A Preferred Stock shall, pursuant to Section 3(b) of
the Certificate of Designations with respect to the Series A Preferred Stock, be
converted into that number of shares of PerSeptive Common Stock determined by
dividing $10,000 by the average Closing Price (as defined in Section 7 of such
Certificate of Designations) of such PerSeptive Common Stock for each of the ten
trading days ending on the fifth business day immediately prior to the Effective
Time of the Merger, and each such share of PerSeptive Common Stock issued upon
such conversion shall be converted in the Merger as set forth above.
Any shares of PerSeptive Common Stock owned immediately prior to the
Effective Time of the Merger by Perkin-Elmer, PerSeptive or any of their
subsidiaries will be cancelled.
EFFECTIVE TIME OF THE MERGER
The Effective Time of the Merger will be the time of the filing of a
Certificate of Merger of Merger Sub with and into PerSeptive with the Secretary
of State of the State of Delaware or such later time as is permissible in
accordance with the DGCL and as is specified in such Certificate of Merger. The
filing of the Certificate of Merger will occur on the second business day after
satisfaction of the conditions to
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consummation of the Merger set forth in the Merger Agreement, unless another
date is agreed to in writing by Perkin-Elmer and PerSeptive. See "--Conditions
to the Consummation of the Merger" below.
CONVERSION OF SHARES; PROCEDURES FOR EXCHANGE OF CERTIFICATES; FRACTIONAL SHARES
The conversion of PerSeptive Common Stock into Perkin-Elmer Common Stock
will occur automatically at the Effective Time of the Merger.
As soon as practicable after the Effective Time of the Merger, BankBoston,
N.A., in its capacity as exchange agent (the "Exchange Agent"), will send a
transmittal form to each former PerSeptive stockholder. The transmittal form
will contain instructions with respect to the surrender of certificates
previously representing PerSeptive Common Stock (or Series A Preferred Stock
converted into PerSeptive Common Stock as described above) to be exchanged for
Perkin-Elmer Common Stock (together with the attached Perkin-Elmer Rights).
PERSEPTIVE COMMON STOCKHOLDERS SHOULD NOT FORWARD PERSEPTIVE COMMON STOCK
CERTIFICATES TO THE EXCHANGE AGENT UNTIL THEY HAVE RECEIVED TRANSMITTAL FORMS.
PERSEPTIVE COMMON STOCKHOLDERS SHOULD NOT RETURN STOCK CERTIFICATES WITH THE
ENCLOSED PROXY.
After the Effective Time of the Merger, each certificate that previously
represented shares of PerSeptive Common Stock (including shares of PerSeptive
Common Stock issued upon conversion of Series A Preferred Stock) will represent
only the shares of Perkin-Elmer Common Stock into which such shares were
converted in the Merger and the right to receive cash in lieu of fractional
shares of Perkin-Elmer Common Stock as described below.
Holders of certificates previously representing PerSeptive Common Stock
(including shares of PerSeptive Common Stock issued upon conversion of Series A
Preferred Stock) will not be paid dividends or distributions declared or made
after the Effective Time of the Merger on the shares of Perkin-Elmer Common
Stock into which such shares have been converted, and will not be paid cash in
lieu of fractional shares of Perkin-Elmer Common Stock, until such certificates
are surrendered to the Exchange Agent for exchange. When such certificates are
surrendered, any unpaid dividends and any cash in lieu of fractional shares of
Perkin-Elmer Common Stock payable as described below will be paid without
interest.
All shares of Perkin-Elmer Common Stock issued upon conversion of shares of
PerSeptive Common Stock (including shares of PerSeptive Common Stock issued upon
conversion of Series A Preferred Stock), together with any cash paid in lieu of
any fractional shares of Perkin-Elmer Common Stock, shall be deemed to have been
issued in full satisfaction of all rights pertaining to such shares of
PerSeptive Common Stock.
No fractional shares of Perkin-Elmer Common Stock will be issued to any
PerSeptive stockholder upon surrender of certificates previously representing
PerSeptive Common Stock. In lieu of such fractional shares that would otherwise
be issued, Perkin-Elmer will pay an amount in cash equal to the product obtained
by multiplying the fractional share interest to which such holder would
otherwise be entitled by the average of the closing price for a share of
Perkin-Elmer Common Stock on the NYSE Composite Transactions Tape for the ten
trading days immediately preceding the Effective Time of the Merger.
REPRESENTATIONS AND WARRANTIES
The Merger Agreement contains customary mutual representations and
warranties of Perkin-Elmer and Merger Sub, on the one hand, and PerSeptive, on
the other hand, relating to, among other things, (a) corporate organization and
similar corporate matters; (b) the capital structures of each of PerSeptive,
Perkin-Elmer and Merger Sub; (c) authorization, execution, delivery, performance
and enforceability of the Merger Agreement and the Stock Option Agreement and
related matters; (d) documents filed by each of PerSeptive and Perkin-Elmer with
the Commission and the accuracy of information contained therein;
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(e) the accuracy of information supplied by each of PerSeptive and Perkin-Elmer
in connection with the Registration Statement and this Proxy
Statement/Prospectus; (f) the absence of material adverse changes prior to the
date of execution of the Merger Agreement; (g) compliance with applicable laws
and the absence of material litigation; (h) votes required for the Merger; (i)
the absence of actions that would prevent using the pooling of interests method
to account for the Merger; (j) the delivery of opinions of financial advisors;
(k) ownership of stock of the other party; and (l) brokers' and finders' fees.
The Merger Agreement also contains additional customary representations and
warranties of PerSeptive relating to, among other things, (a) labor matters and
matters relating to retirement and other employee plans and to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"); (b) filing of tax
returns and payment of taxes; (c) title to properties; (d) environmental
matters; (e) certain contracts and debt instruments; (f) intellectual property;
and (g) the inapplicability of Section 203 of the DGCL relating to business
combinations with interested stockholders, to the Merger Agreement and related
agreements and transactions.
CONDUCT OF BUSINESS PENDING MERGER
Pursuant to the Merger Agreement, PerSeptive has agreed (except as permitted
by Perkin-Elmer) to carry on its business in the ordinary course of business
consistent with past practice. PerSeptive has also agreed that, pending the
Merger, neither it nor any of its subsidiaries will: (a) declare dividends or
make distributions on its capital stock, split, combine or reclassify such
capital stock or authorize or issue any securities in lieu of capital stock or,
subject to certain exceptions, acquire shares of capital stock of PerSeptive or
any subsidiary or securities convertible into or exercisable for such capital
stock; (b) subject to certain exceptions, authorize, issue or encumber shares of
capital stock of PerSeptive or any subsidiary or securities convertible into or
exercisable for such capital stock; (c) amend the PerSeptive Charter, the
PerSeptive By-Laws or comparable documents or the PerSeptive Rights Agreement
(as defined under "Comparison of Stockholder Rights--Rights Plans" below); (d)
acquire any business; (e) subject to certain exceptions, sell, lease, license,
mortgage or otherwise encumber assets having a value in excess of $100,000
individually or $1,000,000 in the aggregate; (f) subject to certain limited
exceptions, (i) incur indebtedness or guarantee obligations, issue debt
securities, enter into "keep well" agreements or enter into any arrangement
having the economic effect of any of the foregoing or (ii) make any loans,
advances, capital contributions or investments; (g) acquire assets, other than
inventory in the ordinary course of business consistent with past practice, or
make capital expenditures, except capital expenditures which, individually or in
the aggregate, do not exceed $1,000,000; (h) satisfy any claims, liabilities or
obligations, except (x) liabilities or obligations in the ordinary course of
business consistent with past practice or in accordance with their terms as in
effect on the date of the Merger Agreement or (y) litigation claims to the
extent permitted in the Merger Agreement; (i) adopt a plan of complete or
partial liquidation; (j) enter into or amend any collective bargaining
agreement; (k) change any material accounting principle, except as required by
generally accepted accounting principles; (l) settle any litigation, other than
settlements that do not provide for injunctive relief and where the amount paid
does not exceed $150,000 individually or $500,000 for all such settlements; (m)
enter into transactions with affiliates; (n) sell any common stock of
Millennium; (o) subject to certain exceptions, transfer intellectual property
rights; (p) enter into or amend agreements granting exclusive rights with
respect to its products or technology; or (q) authorize, or commit or agree to
take, any of the foregoing actions.
In addition, Perkin-Elmer agreed that pending the Merger, it will not (a)
declare or pay dividends on its capital stock, other than regular quarterly cash
dividends, or split, combine or reclassify its capital stock; (b) amend the
Perkin-Elmer Charter or the Perkin-Elmer By-Laws in a manner that would be
materially adverse to holders of Perkin-Elmer Common Stock (it being understood
that an increase in the authorized number of shares of Perkin-Elmer Common Stock
or other capital stock of Perkin-Elmer would not be deemed to be materially
adverse to holders of Perkin-Elmer Common Stock); or (c) authorize, or commit or
agree to take, any of the foregoing actions.
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NO SOLICITATION
The Merger Agreement provides that neither PerSeptive nor any of its
subsidiaries will (whether directly or indirectly through advisors, agents or
other intermediaries), nor will PerSeptive or any of its subsidiaries authorize
or permit any of its or their officers, directors, agents, representatives,
advisors or subsidiaries to, (a) solicit, initiate or take any action knowingly
to facilitate the submission of inquiries, proposals or offers from any person
(other than Merger Sub or Perkin-Elmer) relating to (i) any acquisition or
purchase of 15% or more of the consolidated assets of PerSeptive and its
subsidiaries or of over 15% of any class of equity securities of PerSeptive or
any of its subsidiaries, (ii) any tender offer (including a self tender offer)
or exchange offer that if consummated would result in any Person (as defined
under "Termination Fee" below) beneficially owning 15% or more of any class of
equity securities of PerSeptive or any of its subsidiaries, (iii) any merger,
consolidation, business combination, sale of substantially all assets,
recapitalization, liquidation, dissolution or similar transaction involving
PerSeptive or any of its subsidiaries whose assets, individually or in the
aggregate, constitute more than 15% of the consolidated assets of PerSeptive
other than the transactions contemplated by the Merger Agreement, or (iv) any
other transaction the consummation of which would or could reasonably be
expected to impede, interfere with, prevent or materially delay the Merger
(collectively, "Transaction Proposals"), or agree to or endorse any Transaction
Proposal, or (b) enter into or participate in any discussions or negotiations
regarding any of the foregoing, or furnish to any other person any information
with respect to its business, properties or assets or any of the foregoing, or
otherwise cooperate in any way with, or knowingly assist or participate in,
facilitate or encourage, any effort or attempt by any other person (other than
Merger Sub or Perkin-Elmer) to do or seek any of the foregoing; PROVIDED,
HOWEVER, that PerSeptive is not prohibited (either directly or indirectly
through advisors, agents or other intermediaries) from (i) furnishing
information pursuant to an appropriate confidentiality letter (no less favorable
to PerSeptive in any material respect than the confidentiality agreement between
PerSeptive and Perkin-Elmer and a copy of which shall be provided for
informational purposes only to Perkin-Elmer) concerning PerSeptive and its
businesses, properties or assets to a third party who has made a bona fide
Transaction Proposal, (ii) engaging in discussions or negotiations with such a
third party who has made a bona fide Transaction Proposal, (iii) following
receipt of a bona fide Transaction Proposal, taking and disclosing to its
stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the
Exchange Act or otherwise making disclosure to its stockholders, (iv) following
receipt of a bona fide Transaction Proposal, failing to make or withdrawing or
modifying its recommendation of the Merger Agreement and the transactions
contemplated thereby and/or (v) taking any action required to be taken by
PerSeptive pursuant to a non-appealable, final order by any court of competent
jurisdiction, but in each case referred to in the foregoing clauses (i) through
(v) only to the extent that the PerSeptive Board shall have concluded in good
faith on the basis of written advice (or advice confirmed in writing) from
outside counsel that the failure to take such action would be contrary to the
fiduciary duties of the PerSeptive Board to the stockholders of PerSeptive under
applicable law; PROVIDED, FURTHER, that PerSeptive has agreed in the Merger
Agreement that, to the extent that it may do so without acting in a manner
contrary to its fiduciary duties under applicable law, the PerSeptive Board will
not take any of the foregoing actions referred to in clauses (i) through (iv)
until after reasonable notice to Perkin-Elmer and that the PerSeptive Board will
continue to advise Perkin-Elmer after taking such action and, in addition, if
the PerSeptive Board receives a Transaction Proposal, then PerSeptive shall
promptly inform Perkin-Elmer of the material terms and conditions of such
proposal and the identity of the person making it.
CONDITIONS TO THE CONSUMMATION OF THE MERGER
Each party's obligation to effect the Merger is subject to the following
conditions:
(a) The stockholders of PerSeptive shall have approved and adopted the
Merger Agreement.
(b) The waiting period (and any extension thereof) applicable to the Merger
under the HSR Act shall have been terminated or shall have expired.
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(c) No order issued by any court of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the Merger shall be in
effect.
(d) The Registration Statement shall have become effective and shall not be
the subject of any stop order or proceedings seeking a stop order, and any
material state securities laws applicable to the registration and qualification
of the Perkin-Elmer Common Stock issuable or required to be reserved pursuant to
the Merger Agreement shall have been complied with.
(e) The shares of Perkin-Elmer Common Stock issuable or required to be
reserved for issuance in connection with the Merger shall have been authorized
for listing on the NYSE and the PSE upon official notice of issuance.
(f) Perkin-Elmer shall have received a letter from Price Waterhouse LLP to
the effect that the Merger qualifies for pooling of interests accounting
treatment if consummated in accordance with the Merger Agreement, PerSeptive
shall have received a letter from Coopers & Lybrand L.L.P. to the effect that
PerSeptive is eligible to be acquired in a transaction to be accounted for using
pooling of interests accounting treatment and such letters shall not have been
withdrawn.
In addition, each party's obligation to effect the Merger is subject to the
satisfaction by the other party of the following conditions:
(a) The representations and warranties of the other party shall be true and
correct, in each case, as of the date of the Merger Agreement and, if and to the
extent such representations and warranties speak as of a later date, as of such
later date, except where the failure of such representations and warranties to
be so true and correct (without giving effect to any limitation as to
"materiality" or "Material Adverse Effect" (as defined in the Merger Agreement))
would not individually or in the aggregate reasonably be expected to have a
Material Adverse Effect.
(b) The other party shall have performed in all material respects all
obligations required to be performed by it prior to the Effective Time of the
Merger.
(c) The other party shall have received certain agreements from its
affiliates required by the Merger Agreement.
(d) The other party shall have received an opinion of counsel to the effect
that (i) the Merger will be treated for federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the Code and (ii)
Perkin-Elmer, Merger Sub and PerSeptive will each be a party to that
reorganization within the meaning of Section 368(b) of the Code.
The obligation of Perkin-Elmer and Merger Sub to effect the Merger is
subject to the satisfaction of the following additional conditions:
(a) Perkin-Elmer and Merger Sub shall have received evidence, in form and
substance reasonably satisfactory, that such licenses, permits, consents,
approvals, authorizations, qualifications and orders of (i) any United States
federal or state governmental authorities and governmental authorities in
Germany, Japan, France, the United Kingdom or any political subdivision thereof
or (ii) any other governmental authorities or third parties as are necessary in
connection with the transactions contemplated by the Merger Agreement have been
obtained, except in the case of clause (ii) where the failure to obtain such
licenses, permits, consents, approvals, authorizations, qualifications and
orders could not, individually or in the aggregate with all other failures,
reasonably be expected to have a Material Adverse Effect with respect to
PerSeptive.
(b) There shall not be pending or threatened by any governmental authority,
any suit, action or proceeding, (i) challenging or seeking to restrain or
prohibit the consummation of the Merger or any of the other transactions
contemplated by the Merger Agreement or the Stock Option Agreement or seeking to
obtain any damages that could reasonably be expected to have a Material Adverse
Effect with respect to PerSeptive, (ii) seeking to prohibit or limit the
ownership or operation of any material portion of the
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business or assets of PerSeptive and its subsidiaries taken as a whole or to
dispose of or hold separate any material portion of the business or assets of
PerSeptive and its subsidiaries taken as a whole, as a result of the Merger or
any of the other transactions contemplated by the Merger Agreement or the Stock
Option Agreement, (iii) seeking to impose limitations on the ability of
Perkin-Elmer to acquire or hold, or exercise full rights of ownership of, any
shares of the common stock of the Surviving Corporation, including, without
limitation, the right to vote such common stock or (iv) seeking to prohibit
Perkin-Elmer or any of its subsidiaries from effectively controlling in any
material respect the business or operations of PerSeptive and its subsidiaries
taken as a whole. No suit, action or proceeding by any other person shall be
pending that seeks any of the relief or remedies described in clauses (i)
through (iv) of the immediately preceding sentence as to which there is a
reasonable possibility of success or that otherwise could reasonably be expected
to have a Material Adverse Effect with respect to PerSeptive.
(c) No triggering event shall have occurred with respect to the PerSeptive
Rights, and the PerSeptive Rights shall not have become nonredeemable and shall
not become nonredeemable upon consummation of the Merger.
STOCK EXCHANGE LISTINGS
It is a condition to the Merger that the shares of Perkin-Elmer Common Stock
to be issued in the Merger be authorized for listing on the NYSE and the PSE
upon official notice of issuance. The PerSeptive Common Stock is currently
quoted on the Nasdaq National Market.
REGULATORY APPROVALS REQUIRED
Consummation of the Merger is subject to the expiration of the waiting
period provided under the HSR Act. Under the HSR Act, the Merger cannot be
consummated until notifications have been given and certain information has been
furnished to the FTC and the DOJ and specified waiting period requirements have
been satisfied. Perkin-Elmer and PerSeptive each filed with the FTC and the DOJ
a Notification and Report Form for Certain Mergers and Acquisitions with respect
to the Merger on September 26, 1997. During the course of the initial waiting
period, Perkin-Elmer and PerSeptive and their respective counsel had a number of
conversations with members of the staff of the DOJ in response to staff
inquiries pertaining to the Merger. On October 24, 1997 both Perkin-Elmer and
PerSeptive received a request from the DOJ for additional information, in
connection with which the waiting period was extended until the twentieth day
following the provision of such information. After expiration of the waiting
period, the Merger may be consummated unless the FTC or the DOJ seeks to prevent
consummation of the Merger by obtaining an injunction from a court or the
parties agree to delay the expiration of the waiting period.
The FTC and the DOJ frequently scrutinize the legality under the antitrust
laws of transactions such as the Merger. At any time before or after the Special
Meeting, the FTC or the DOJ could take such action under the antitrust laws as
it deems necessary or desirable in the public interest, including seeking to
enjoin the Merger or seeking the divestiture of substantial assets of
Perkin-Elmer or PerSeptive or any of their respective subsidiaries. Perkin-Elmer
and PerSeptive believe that the Merger is in compliance with the antitrust laws.
In light of the request for additional information and prior staff inquiries,
however, there can be no assurance that DOJ scrutiny of the Merger will not
result in a delay in the consummation of the Merger or other adverse
consequences.
The Merger is also subject to premerger notification requirements under the
German Merger Control Law. Under such law, the merger cannot be consummated
until one month after filing of a premerger notification with the German Federal
Cartel Office. During that period, the Federal Cartel Office may prohibit the
merger or request additional information and extend such waiting period by up to
four additional months. Perkin-Elmer filed the required notification on October
10, 1997.
The Merger cannot proceed in the absence of requisite regulatory approvals.
See "--Conditions to Consummation of the Merger" and "--Termination." There can
be no assurance that such regulatory approvals will be obtained on a timely
basis.
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TERMINATION
The Merger Agreement may be terminated at any time prior to the Effective
Time of the Merger: (a) by mutual consent of Perkin-Elmer and PerSeptive; (b) by
either Perkin-Elmer or PerSeptive if any governmental authority shall have taken
any final, nonappealable action permanently enjoining, restraining or otherwise
prohibiting the Merger; (c) by either Perkin-Elmer or PerSeptive if the Merger
shall not have been consummated on or before January 31, 1998 (other than due to
the failure of the party seeking to terminate the Merger Agreement to perform
its obligations thereunder); (d) by either Perkin-Elmer or PerSeptive if the
holders of a majority of the outstanding shares of PerSeptive Common Stock fail
to approve and adopt the Merger Agreement at the Special Meeting; (e) by
Perkin-Elmer, if PerSeptive or the PerSeptive Board shall have (1) withdrawn,
modified or amended in any respect adverse to Perkin-Elmer its approval or
recommendation of the Merger Agreement or any of the transactions contemplated
thereby, (2) failed as promptly as practicable after the Registration Statement
is declared effective to mail this Proxy Statement/Prospectus to its
stockholders or failed to include such recommendation therein, (3) recommended
any Transaction Proposal from a person other than Perkin-Elmer or any of its
affiliates, (4) resolved to do any of the foregoing or (5) in response to the
commencement of any tender offer or exchange offer for more than 15% of the
outstanding shares of PerSeptive Common Stock, not recommended rejection of such
tender offer or exchange offer; or (f) by PerSeptive, if, in compliance with the
requirements described under "No Solicitation" above, the PerSeptive Board
concludes in good faith, based on written advice (or advice confirmed in
writing) from outside counsel, that in order to avoid acting in a manner
contrary to the fiduciary duties of the PerSeptive Board to PerSeptive's
stockholders under the DGCL, the PerSeptive Board must not make or must withdraw
or modify its recommendation of the Merger Agreement and the PerSeptive Board
does not make or withdraws or modifies such recommendation.
TERMINATION FEE
PerSeptive has agreed to pay Perkin-Elmer a fee of $11,000,000 upon the
occurrence of either of the following events:
(i) the Merger Agreement is terminated in accordance with its terms
(except pursuant to clause (b) under "Termination" above) and either of the
following shall have occurred: (A) prior to such termination, any
corporation (including PerSeptive or any of its subsidiaries or affiliates),
partnership, person, other entity or "group" (as referred to in Section
13(d)(3) of the Exchange Act), other than Perkin-Elmer, Merger Sub or any
other affiliates of Perkin-Elmer (collectively, "Persons"), shall have
become the beneficial owner of more than 15% of the outstanding shares of
PerSeptive Common Stock; or (B)(x) prior to such termination, any Person
shall have made, or proposed, communicated or disclosed in a manner which is
or otherwise becomes public (including being known by stockholders of
PerSeptive owning of record or beneficially in the aggregate 5% or more of
the outstanding shares of PerSeptive Common Stock) a bona fide intention to
make a Transaction Proposal (as defined under "No Solicitation" above),
including by making such a Transaction Proposal, and (y) on or prior to
August 23, 1998, PerSeptive either consummates with a Person a transaction
the proposal of which would otherwise qualify as a Transaction Proposal or
enters into a definitive agreement with a Person with respect to a
transaction the proposal of which would otherwise qualify as a Transaction
Proposal (whether or not such Person is the Person referred to in clause (x)
above); or
(ii) the Merger Agreement is terminated as described in clause (e) or
(f) set forth under "Termination" above.
AMENDMENT AND WAIVER
The Merger Agreement may be amended by the parties in writing at any time
before or after approval thereof by PerSeptive's stockholders; PROVIDED that
after such approval, no amendment of the Merger Agreement may be effected that
by law requires further approval by PerSeptive's stockholders without the
further approval of such stockholders.
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EXPENSES
Except for the termination fee payable as described under "Termination Fee"
above, and except for certain expenses of the Surviving Corporation that
Perkin-Elmer has agreed to pay in the event the Merger is consummated, the
parties to the Merger Agreement have agreed that all costs and expenses incurred
in connection with the Merger Agreement and the Stock Option Agreement will be
paid by the party incurring such expenses, except that the cost of filing,
printing and distributing the Registration Statement and this Proxy
Statement/Prospectus will be borne equally by Perkin-Elmer and PerSeptive.
EFFECT ON EMPLOYEE BENEFITS, STOCK PLANS AND STOCK OPTIONS
BENEFIT PLANS. Perkin-Elmer has agreed, during the one year period
following the Effective Time of the Merger, to cause the Surviving Corporation
to maintain employee benefit plans (as defined in Section 3(3) of ERISA) for the
benefit of employees of PerSeptive or its subsidiaries that are no less
favorable in the aggregate than those provided under the benefit plans of
PerSeptive in effect on the date of the Merger Agreement. Perkin-Elmer has also
agreed to waive limitations as to preexisting conditions, exclusions and waiting
periods with respect to participation by PerSeptive's employees in applicable
Perkin-Elmer benefit plans following the Effective Time of the Merger and to
provide credit for amounts paid by PerSeptive employees prior to the Effective
Time of the Merger in satisfying co-payments and deductibles under
Perkin-Elmer's welfare plans.
STOCK OPTIONS. The Merger Agreement provides that, after the Effective Time
of the Merger, each outstanding option to purchase PerSeptive Common Stock
granted prior to the Effective Time of the Merger pursuant to PerSeptive's 1989
Stock Plan, 1992 Non-Employee Director Stock Option Plan, 1992 Stock Plan and
1997 Non-Qualified Stock Plan (the "PerSeptive Stock Plans"), whether vested or
unvested, will be deemed to constitute an option to acquire the same number of
shares of Perkin-Elmer Common Stock as the holder of such option would have been
entitled to receive pursuant to the Merger had such holder exercised such option
in full immediately prior to the Effective Time of the Merger, at a price per
share equal to the aggregate exercise price for the shares of PerSeptive Common
Stock otherwise purchasable pursuant to such option divided by the number of
full shares of Perkin-Elmer Common Stock deemed purchasable pursuant to such
option, PROVIDED that in the case of incentive stock options, the option price,
number of shares purchasable and other terms and conditions of such option will
be determined in order to comply with applicable provisions of the Code.
Due to certain acceleration provisions contained therein, all stock options
granted pursuant to the PerSeptive Stock Plans (other than options granted
pursuant to the 1992 Non-Employee Director Stock Option Plan) will become
immediately vested and exercisable immediately prior to the Effective Time of
the Merger and will remain exercisable for the duration of the term of such
stock options.
EFFECT ON WARRANTS
At the Effective Time of the Merger, each warrant exercisable into
PerSeptive Common Stock outstanding and unexercised will cease to represent a
right to acquire shares of PerSeptive Common Stock and will be converted
automatically into a warrant to purchase such number of shares of Perkin-Elmer
Common Stock as the holder of such warrant would have been entitled to receive
pursuant to the Merger had such holder exercised such warrant in full
immediately prior to the Effective Time of the Merger, at a price per share
equal to the aggregate exercise price for the shares of PerSeptive Common Stock
otherwise purchasable pursuant to such warrant divided by the number of full
shares of Perkin-Elmer Common Stock deemed purchasable pursuant to such warrant,
and subject to future adjustments in accordance with the terms of such warrant.
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EFFECT ON CONVERTIBLE NOTES
Pursuant to the terms of the Merger Agreement and the indenture (the
"Convertible Notes Indenture") with respect to PerSeptive's 8 1/4% Convertible
Notes Due 2001 (the "Convertible Notes"), prior to the Effective Time of the
Merger, PerSeptive and Perkin-Elmer will enter into a supplemental indenture
providing that each holder of Convertible Notes outstanding at the Effective
Time of the Merger will have the right to convert such Convertible Notes into
the number of shares of Perkin-Elmer Common Stock which would be receivable at
the Effective Time of the Merger by a holder of the number of shares of
PerSeptive Common Stock deliverable upon conversion of such Convertible Notes
immediately prior to the Effective Time of the Merger, and subject to future
adjustments of the conversion price of the Convertible Notes as are provided for
in the Convertible Notes Indenture. Such supplemental indenture will also
provide that from and after the Effective Time of the Merger, Perkin-Elmer will
become jointly and severally liable with the Surviving Corporation with respect
to the obligations to the pay principal of, premium, if any, and interest on,
the Convertible Notes when due.
Perkin-Elmer is currently considering the optional redemption in full of the
Convertible Notes upon consummation of the Merger. Pursuant to the Convertible
Notes Indenture, the redemption price payable in connection with such a
redemption would be 104.71% of the principal amount of the Convertible Notes,
plus accrued interest thereon to the redemption date. In the event Perkin-Elmer
elects not to effect an optional redemption of the Convertible Notes, pursuant
to the Convertible Notes Indenture, the Surviving Corporation will be required
to make an offer within 30 days after the Effective Time of the Merger to
repurchase all Convertible Notes from the holders thereof for a cash repurchase
price equal to 100% of the principal amount thereof plus accrued interest
thereon to the repurchase date.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following discussion is a summary of certain material United States
federal income tax consequences of the Merger to a stockholder of PerSeptive who
holds PerSeptive Common Stock as a capital asset (a "Holder"). This discussion
is based on the Code and regulations, rulings and decisions in effect on the
date hereof, all of which are subject to change, possibly with retroactive
effect, and to differing interpretation. This discussion does not deal with all
federal income tax consequences that may result from the Merger, including the
survival or availability of any tax attributes or elections of PerSeptive as a
result of the Merger, and does not address the tax consequences of other
transactions effectuated prior to, at the time of or after the Merger (whether
or not such transactions are in connection with the Merger), including, without
limitation, the exercise of options or similar rights to purchase stock, the
exchange, assumption or substitution of options or similar rights to purchase
PerSeptive Common Stock for rights to purchase Perkin-Elmer Common Stock, or the
exchange of PerSeptive capital stock for PerSeptive Common Stock. This
discussion is for general information only, and does not address all aspects of
federal income taxation that may be applicable to a Holder subject to special
treatment under the Code (including, but not limited to, banks, tax-exempt
organizations, insurance companies, dealers in securities or foreign currency,
and holders who are not United States persons (as defined in section 7701(a)(30)
of the Code) or who acquired shares of PerSeptive Common Stock pursuant to the
exercise of an employee stock option or otherwise as compensation). In addition,
this discussion does not address the state, local or foreign tax consequences of
the Merger.
TAX OPINIONS. As of the date of this Proxy Statement/Prospectus, Simpson
Thacher & Bartlett and Testa, Hurwitz & Thibeault, LLP have advised Perkin-Elmer
and PerSeptive, respectively, that in their opinion, and on the basis of facts,
representations and assumptions set forth or referred to in such opinions, for
United States federal income tax purposes, the Merger will be treated as a
reorganization within the meaning of Section 368(a) of the Code and that each of
Perkin-Elmer, Merger Sub and PerSeptive will be a party to the reorganization
within the meaning of Section 368(b) of the Code (the "Tax Opinions").
Consummation of the Merger is conditioned upon the receipt by Perkin-Elmer and
PerSeptive of opinions of such counsel dated as of the Closing Date to the same
effect as the foregoing Tax Opinions.
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No ruling has been sought from the Internal Revenue Service as to the United
States federal income tax consequences of the Merger, and the opinions of
counsel will not be binding upon the Internal Revenue Service or any court.
TAX TREATMENT OF HOLDERS AND OF PERKIN-ELMER, MERGER SUB AND
PERSEPTIVE. The Merger is intended to qualify as a reorganization within the
meaning of Section 368(a) of the Code, and Perkin-Elmer, Merger Sub and
PerSeptive are each intended to constitute a party to the reorganization under
Section 368(b) of the Code. Subject to the limitations and qualifications
described herein, and assuming that the Merger so qualifies and that
Perkin-Elmer, Merger Sub and PerSeptive constitute parties to the reorganization
under Section 368(b) of the Code, the following is a summary of the general
federal income tax consequences of the Merger to a Holder and to Perkin-Elmer,
Merger Sub and PerSeptive:
No gain or loss will be recognized by a Holder upon the exchange of his or
her PerSeptive Common Stock solely for Perkin-Elmer Common Stock, except that a
Holder who receives cash proceeds in lieu of a fractional share interest in
Perkin-Elmer Common Stock will recognize gain or loss equal to the difference
between such proceeds and the tax basis allocated to the fractional share
interest. Such gain or loss will constitute capital gain or loss. Under recently
enacted legislation, capital gains of individuals derived in respect of capital
assets are eligible for reduced rates of taxation depending upon the holding
period of such capital assets. Holders should consult their own tax advisors
with respect to the tax consequences of the new legislation.
The tax basis of the Perkin-Elmer Common Stock received by a Holder will be
the same as such Holder's basis in the PerSeptive Common Stock surrendered in
exchange therefor, decreased by the tax basis allocated to any fractional share
interest exchanged for cash.
The holding period of the Perkin-Elmer Common Stock received by a Holder
will include the period during which the PerSeptive Common Stock surrendered in
exchange therefor was held.
Neither Perkin-Elmer, Merger Sub nor PerSeptive will recognize a material
amount of gain or loss as a result of the Merger.
As discussed above, the Tax Opinions are subject to certain assumptions and
qualifications and are based on the truth and accuracy of certain
representations made by Perkin-Elmer, Merger Sub and PerSeptive, including
representations by the respective managements of Perkin-Elmer, Merger Sub and
PerSeptive, including representations by PerSeptive and Perkin-Elmer that they
have no knowledge of any plan or intention on the part of PerSeptive's
stockholders to sell or otherwise dispose of shares of Perkin-Elmer Common Stock
received in the Merger that would reduce the PerSeptive stockholders' ownership
of Perkin-Elmer Common Stock to a number of shares having a value, as of the
Effective Time of the Merger, of less than 50% of the aggregate fair market
value, immediately prior to the Merger, of all the outstanding shares of
PerSeptive stock.
If the assumptions and representations referred to above were not true and
accurate, the Merger could be disqualified as a reorganization under Section 368
of the Code. In that case, a Holder would recognize gain or loss with respect to
each share of PerSeptive Common Stock surrendered equal to the difference
between such Holder's tax basis in such shares and the fair market value, as of
the Effective Time of the Merger, of the Perkin-Elmer Common Stock received in
exchange therefor. In such event, a Holder's basis in the Perkin-Elmer Common
Stock so received would equal its fair market value and his holding period for
such stock would begin the day after the Merger.
Holders will be required to retain records and file with their U.S. federal
income tax returns a statement setting forth certain facts relating to the
Merger.
BACKUP WITHHOLDING. Certain noncorporate Holders may be subject to backup
withholding at a rate of 31% on cash payments received in lieu of a fractional
share interest in Perkin-Elmer Common Stock. Backup withholding will not apply,
however, to a Holder who (i) furnishes a correct taxpayer identification
39
<PAGE>
number and certifies that he or she is not subject to backup withholding on the
substitute Form W-9 included in the letter of transmittal to be delivered to
PerSeptive stockholders following consummation of the Merger, (ii) provides a
certificate of foreign status on Form W-8, or (iii) is otherwise exempt from
backup withholding.
EACH HOLDER IS URGED TO CONSULT HIS OR HER TAX ADVISOR WITH RESPECT TO THE
FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF THE MERGER.
ANTICIPATED ACCOUNTING TREATMENT
The Merger is expected to qualify as a pooling of interests for accounting
and financial reporting purposes. Under this method of accounting, the recorded
assets and liabilities of Perkin-Elmer and PerSeptive will be carried forward to
the combined corporation at their recorded amounts; income of the combined
corporation will include income of Perkin-Elmer and PerSeptive for the entire
fiscal year in which the combination occurs; and the reported income of the
separate companies for prior periods will be combined and restated as income of
the combined corporation.
The Merger Agreement provides that it is a condition to the consummation of
the Merger that Perkin-Elmer shall have received a letter from Price Waterhouse
LLP (the independent accountants of Perkin-Elmer) to the effect that the Merger
qualifies for pooling of interests accounting treatment if consummated in
accordance with the Merger Agreement, that PerSeptive shall have received a
letter from Coopers & Lybrand L.L.P. (the independent accountants of PerSeptive)
to the effect that PerSeptive is eligible to be acquired in a transaction to be
accounted for using pooling of interests accounting treatment and that such
letters shall not have been withdrawn.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
Certain members of the PerSeptive Board and the management of PerSeptive may
be deemed to have certain interests in the Merger in addition to their interests
generally as stockholders of PerSeptive. The PerSeptive Board was aware of these
interests and considered them, among other matters, in approving the Merger
Agreement and the transactions contemplated thereby.
EMPLOYMENT AGREEMENTS. Noubar B. Afeyan, the Chief Executive Officer and
Chairman of the Board of PerSeptive, and John F. Smith, the President of
PerSeptive, are each party to employment agreements with PerSeptive which, among
other provisions, provide that if the officer party thereto terminates his
employment with PerSeptive for "Good Reason" (as defined in such employment
agreements) after the occurrence of a "Change in Control" (as defined in such
employment agreements), such officer will be entitled to severance described in
such employment agreements. The severance payable to Dr. Afeyan pursuant to his
employment agreement with PerSeptive consists of (a) cash payments equal to 24
months of his then current salary, payable over 24 months, (b) up to 24 months
health insurance continuation and (c) two times the highest cash bonus Dr.
Afeyan received in the three years prior to the termination of his employment.
The severance payable to Mr. Smith pursuant to his employment agreement with
PerSeptive consists of (i) continuation of his then current salary for the
period from the date Mr. Smith terminates his employment through July 16, 2000
and (ii) a cash bonus for each fiscal year of PerSeptive that ends after the
termination of Mr. Smith's employment up to and including PerSeptive's fiscal
year ending September 30, 2000 equal to the highest cash bonus received prior to
such termination.
The Merger constitutes a "Change in Control" as defined in these employment
agreements. In connection with the execution of the Merger Agreement, Dr. Afeyan
entered into a letter agreement with PerSeptive amending the foregoing
provisions of his employment agreement to provide that absent a material breach
of the employment agreement by PerSeptive, Dr. Afeyan will not terminate his
employment for Good Reason for a period of six months following the Effective
Time of the Merger.
40
<PAGE>
INDEMNIFICATION AND DIRECTORS' AND OFFICERS' INSURANCE. The Merger
Agreement provides that the Surviving Corporation and Perkin-Elmer will
indemnify each person who is or was or who becomes eligible for indemnification
pursuant to the PerSeptive Charter and the PerSeptive By-Laws pertaining to
events occurring prior to the Effective Time of the Merger or to liabilities
arising out of the Merger Agreement, in each case to the extent that PerSeptive
would have been permitted under the PerSeptive Charter and the PerSeptive
By-Laws to provide such indemnification, and will also cause to be maintained
for six years after the Effective Time of the Merger directors' and officers'
liability insurance coverage on terms no less advantageous than those contained
in policies currently maintained by PerSeptive; PROVIDED that Perkin-Elmer will
not be required to spend annually in excess of 150% of the annual premiums paid
as of the date of the Merger Agreement by PerSeptive.
EMPLOYEE STOCK OPTIONS. As described more fully under "--Effect on Employee
Benefits, Stock Plans and Stock Options," at the Effective Time of the Merger,
each outstanding option to purchase PerSeptive Common Stock (1) will convert
into an option to purchase Perkin-Elmer Common Stock and (2) except for options
issued under the 1992 Non-Employee Director Stock Option Plan, will fully vest
and become immediately exercisable and remain exercisable in accordance with the
terms of such option.
STOCK OPTION AGREEMENT
Concurrently with the execution and delivery of the Merger Agreement, and as
a condition and inducement thereto, Perkin-Elmer and PerSeptive entered into the
Stock Option Agreement pursuant to which PerSeptive granted Perkin-Elmer an
option to purchase up to an aggregate of 4,478,308 shares of PerSeptive Common
Stock (subject to adjustments under certain circumstances) at a price per share
in cash of $13.00.
The following is a summary of certain provisions of the Stock Option
Agreement which is attached as Annex II to this Proxy Statement/Prospectus and
is incorporated herein by reference. The following summary is qualified in its
entirety by reference to the Stock Option Agreement.
EXERCISE OF THE OPTION. The option is exercisable only upon the occurrence
of a "Purchase Event", which is defined in the Stock Option Agreement to mean
the termination of the Merger Agreement under any circumstance which would
entitle Perkin-Elmer to receive the termination fee described above under
"Termination Fee," PROVIDED, HOWEVER, that a Purchase Event shall occur upon the
occurrence of an event described in clause (i)(B)(x) under "Termination Fee"
above notwithstanding the absence of an event described under clause (i)(B)(y)
thereunder.
ADJUSTMENT OF NUMBER OF SHARES. The number and type of securities subject
to the option and the exercise price of the option will be adjusted for any
change in the PerSeptive Common Stock by reason of a stock dividend, split-up,
recapitalization, combination, exchange of shares or similar transaction, such
that Perkin-Elmer will receive (upon exercise of the option) the same number and
type of securities as if the option had been exercised immediately prior to the
occurrence of such event (or the record date therefor). The number of shares of
PerSeptive Common Stock subject to the option will also be adjusted in the event
PerSeptive issues additional shares of PerSeptive Common Stock at a price per
share less than $13.00, such that the number of shares of PerSeptive Common
Stock subject to the option represents 19.9% of the PerSeptive Common Stock then
outstanding, without giving effect to shares subject to or issued pursuant to
the option.
SUBSTITUTE OPTION. In the event PerSeptive enters into any agreement to (A)
merge or consolidate with any person other than Perkin-Elmer or one of its
subsidiaries such that PerSeptive is not the surviving corporation, (B) permit
any person other than Perkin-Elmer or one of its subsidiaries to merge into
PerSeptive and PerSeptive is the surviving corporation, but in connection with
such merger, the PerSeptive Common Stock is exchanged for any other securities
or other property or the outstanding shares of PerSeptive Common Stock prior to
such merger represent less than 50% of the PerSeptive Common Stock
41
<PAGE>
following such merger, or (C) sell or otherwise transfer all or substantially
all of its assets to a person other than Perkin-Elmer or one of its
subsidiaries, the option will be converted into an option (the "Substitute
Option") to purchase securities of either the acquiring person, a person that
controls the acquiring person or PerSeptive (if PerSeptive is the surviving
entity), in all cases at the option of Perkin-Elmer. The Substitute Option would
be subject to immediate exercise by Perkin-Elmer and repurchase by PerSeptive at
the request of Perkin-Elmer, at prices, and subject to conditions, specified in
the Stock Option Agreement.
REPURCHASE OF OPTION AND OPTION SHARES. At any time commencing upon the
first occurrence of a Repurchase Event (as defined below) and ending 12 months
after the occurrence of a Purchase Event, PerSeptive (or any successor entity
thereof) is required (i) at the request of Perkin-Elmer, to repurchase the
option at a price equal to the excess, if any, of (x) the Applicable Price (as
defined below) for a share of PerSeptive Common Stock over (y) the exercise
price of the option (subject to adjustment), multiplied by the number of shares
of PerSeptive Common Stock with respect to which the option has not been
exercised; and (ii) at the request of an owner of shares of PerSeptive Common
Stock issued upon exercise of the option, to repurchase such number of shares of
such PerSeptive Common Stock as such owner shall designate at a price equal to
the Applicable Price multiplied by the number of shares of PerSeptive Common
Stock requested to be repurchased by such owner. "Applicable Price" is defined
in the Stock Option Agreement to mean the highest of (A) the highest price per
share at which a tender offer or exchange offer has been made for shares of
PerSeptive Common Stock, (B) the price per share to be paid by any third party
for shares of PerSeptive Common Stock or the consideration per share to be
received by holders of PerSeptive Common Stock, in each case pursuant to an
agreement for a merger or other business combination transaction with PerSeptive
or (C) the highest closing sale price per share of PerSeptive Common Stock
during the 60 days preceding such date.
REGISTRATION RIGHTS. Perkin-Elmer has certain rights to require
registration of any shares of PerSeptive Common Stock purchased pursuant to the
option under the securities laws if necessary for Perkin-Elmer to be able to
sell such shares.
LIMITATION OF PROFITS. The Stock Option Agreement limits Perkin-Elmer's
Total Profit (as defined below) to $11,000,000, and, if such Total Profit
otherwise would exceed such amount, requires Perkin-Elmer to either (i) reduce
the number of shares subject to the option, (ii) deliver shares of PerSeptive
Common Stock for cancellation, (iii) pay cash to PerSeptive or (iv) any
combination of the foregoing. "Total Profit" is defined in the Stock Option
Agreement to mean: (i) the aggregate amount of (A) the excess of (x) the net
cash amounts received by Perkin-Elmer pursuant to a sale of shares of PerSeptive
Common Stock issued upon exercise of the option (or securities into which such
shares are converted or exchanged) to any unaffiliated third party within 12
months after the exercise of the option, over (y) Perkin-Elmer's exercise price
with respect to such shares (or other securities), PLUS (B) any amounts received
by Perkin-Elmer on the transfer of the option, PLUS (C) any equivalent amounts
with respect to the Substitute Option, PLUS (D) any termination fee received by
Perkin-Elmer under the Merger Agreement (see "--Termination Fee" above), minus
(ii) the amount of cash or shares paid to PerSeptive as a result of such
limitation on Total Profit.
In addition to the above limitation, the Stock Option Agreement also limits
the aggregate cash or other consideration Perkin-Elmer may receive in respect of
(i) the termination fee under the Merger Agreement and (ii) any sales or
dispositions of the option, shares of PerSeptive Common Stock issued upon
exercise thereof or any dividends on such shares to the sum of (A) $22,000,000
and (B) the exercise price of the option multiplied by the number of shares of
PerSeptive Common Stock purchased by Perkin-Elmer thereunder.
EFFECT OF STOCK OPTION AGREEMENT. The Stock Option Agreement is intended to
increase the likelihood that the Merger will be consummated on the terms set
forth in the Merger Agreement. Consequently, certain aspects of the Stock Option
Agreement may have the effect of discouraging persons who
42
<PAGE>
now or prior to the Effective Time of the Merger might be interested in
acquiring all of or a significant interest in PerSeptive from considering or
proposing such an acquisition, even if such persons were prepared to offer
higher consideration per share for PerSeptive Common Stock than that implicit in
the Exchange Ratio.
AMENDMENT TO PERSEPTIVE RIGHTS AGREEMENT
PerSeptive has amended the PerSeptive Rights Agreement (as defined under
"Comparison of Stockholder Rights--Rights Plans") to provide that neither the
approval, execution or delivery of the Merger Agreement or the Stock Option
Agreement nor the consummation of the transactions contemplated by the Merger
Agreement and the Stock Option Agreement will cause the PerSeptive Rights issued
to become exercisable pursuant to the PerSeptive Rights Agreement. See
"Comparison of Stockholder Rights--Rights Plans."
RESALE OF PERKIN-ELMER COMMON STOCK
The Perkin-Elmer Common Stock (together with the attached Perkin-Elmer
Rights) issued pursuant to the Merger will not be subject to any restrictions on
transfer arising under the Securities Act, except for shares issued to any
PerSeptive stockholder who may be deemed to be an "affiliate" of PerSeptive for
purposes of Rule 145 under the Securities Act. This Proxy Statement/Prospectus
does not cover resales of Perkin-Elmer Common Stock received by any person who
may be deemed to be such an affiliate. In addition, it is expected that each
such affiliate and each "affiliate" of Perkin-Elmer and PerSeptive (within the
meaning of the Commission's Accounting Releases 130 and 135) will enter into an
agreement with Perkin-Elmer providing that such affiliate will not transfer any
PerSeptive Common Stock received in the Merger except in compliance with the
Securities Act and, in order to preserve Perkin-Elmer's ability to account for
the Merger as a pooling of interests, such affiliates will further agree that
they will make no disposition of any Perkin-Elmer or PerSeptive stock (or any
interest therein) during the period commencing 30 days prior to the Effective
Time of the Merger through the date on which financial results covering at least
30 days of combined operations of Perkin-Elmer and PerSeptive after the Merger
have been published.
NO APPRAISAL RIGHTS
No holder of PerSeptive Common Stock will be entitled to appraisal rights
under the DGCL in connection with, or as a result of, the matters to be acted
upon at the Special Meeting.
43
<PAGE>
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
The following unaudited pro forma condensed combined financial statements
give effect to the Merger in a transaction to be accounted for as a pooling of
interests. The unaudited pro forma condensed combined financial statements are
based upon the respective historical consolidated financial statements of
Perkin-Elmer and PerSeptive, and should be read in conjunction with such
historical financial statements and the notes thereto, which are incorporated by
reference in the Proxy Statement/Prospectus.
Perkin-Elmer's fiscal year ends June 30 and PerSeptive's ends September 30.
The unaudited pro forma condensed combined statement of financial position
combines Perkin-Elmer's June 30, 1997 historical condensed consolidated
statement of financial position with PerSeptive's June 28, 1997 unaudited
historical condensed statement of financial position giving effect to the merger
as though it had been consummated on June 30, 1997. The fiscal 1997 unaudited
pro forma condensed combined statement of operations combines Perkin-Elmer's
condensed historical statement of operation for the fiscal year ended June 30,
1997, with PerSeptive's unaudited condensed historical statement of operation
for the nine months ended June 28, 1997 and the three months ended September 30,
1996. The fiscal 1996 and 1995 pro forma condensed combined statements of
operations combine Perkin-Elmer's condensed historical statements of operations
for the fiscal years ended June 30, 1996 and 1995 with the corresponding
PerSeptive condensed historical statements of operations for the fiscal years
ended September 30, 1996 and 1995, respectively. The results of operations of
PerSeptive for the three months ended September 30, 1996 (reflecting net
revenues of $19.3 million and a net loss of $20.0 million) have therefore been
included in two periods.
The pro forma information is presented for illustrative purposes only and is
not necessarily indicative of the operating results or financial position that
would have occurred if the Merger had been consummated on the date indicated,
nor is it necessarily indicative of future operating results or financial
position.
44
<PAGE>
PERKIN-ELMER AND PERSEPTIVE
PRO FORMA CONDENSED COMBINED STATEMENT OF FINANCIAL POSITION
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
PERKIN-ELMER PERSEPTIVE 1997
AT JUNE 30, AT JUNE 28, PRO FORMA
1997 1997 ADJ. COMBINED
------------ ----------- ---------- ------------
<S> <C> <C> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents.............................. $ 194,745 $ 7,069 $ -- $ 201,814
Short-term investments................................. 1,226 31,193 -- 32,419
Accounts receivable.................................... 307,230 18,930 -- 326,160
Inventories............................................ 188,720 23,828 -- 212,548
Prepaid expenses and other current assets.............. 102,263 2,678 -- 104,941
------------ ----------- ---------- ------------
Total current assets..................................... 794,184 83,698 -- 877,882
------------ ----------- ---------- ------------
Property, plant and equipment, net....................... 173,037 28,579 -- 201,616
Other long-term assets................................... 122,375 7,285 -- 129,660
Goodwill................................................. 15,202 17,738 -- 32,940
------------ ----------- ---------- ------------
TOTAL ASSETS............................................. $1,104,798 $ 137,300 $ -- $ 1,242,098
------------ ----------- ---------- ------------
------------ ----------- ---------- ------------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Loans payable.......................................... $ 18,054 $ 5,019 $ -- $ 23,073
Accounts payable....................................... 115,374 11,930 2,438(a) 129,742
Accrued salaries and wages............................. 46,470 -- 1,779(a) 48,249
Accrued taxes on income................................ 97,307 -- 1,000(a) 98,307
Other accrued expenses................................. 177,988 19,637 (5,217 (a) 203,408
(11,000 (c)
------------ ----------- ---------- ------------
Total current liabilities................................ 455,193 36,586 11,000 502,779
------------ ----------- ---------- ------------
Long-term debt........................................... 33,599 4,666 -- 38,265
Convertible subordinated notes........................... -- 27,230 -- 27,230
Other long-term liabilities.............................. 179,134 1,575 -- 180,709
------------ ----------- ---------- ------------
TOTAL LIABILITIES........................................ 667,926 70,057 11,000 748,983
------------ ----------- ---------- ------------
Shareholders' equity
Capital stock
Preferred stock...................................... -- 19,123 (19,123 (b) --
Common stock......................................... 45,600 216 4,280(b) 50,096
Capital in excess of par value......................... 198,570 159,374 14,843(b) 372,787
Retained earnings (deficit)............................ 278,760 (108,332) (11,000 (c) 159,428
Foreign currency translation adjustments............... (267) (3,848) -- (4,115)
Unrealized gain on investment.......................... -- 710 -- 710
Minimum pension liability adjustment................... (705) -- -- (705)
Treasury stock, at cost................................ (85,086) -- -- (85,086)
------------ ----------- ---------- ------------
Total shareholders' equity............................... 436,872 67,243 (11,000) 493,115
------------ ----------- ---------- ------------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY............... $1,104,798 $ 137,300 $ -- $ 1,242,098
------------ ----------- ---------- ------------
------------ ----------- ---------- ------------
</TABLE>
See accompanying notes to pro forma condensed combined financial statements.
45
<PAGE>
PERKIN-ELMER AND PERSEPTIVE
PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
(IN THOUSANDS EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
PERKIN-ELMER PERSEPTIVE
------------ ---------------------------------
<S> <C> <C> <C> <C> <C>
FOR THE
YEAR ENDED FOR THE NINE FOR THE THREE 1997
JUNE 30, MONTHS ENDED MONTHS ENDED PRO FORMA
1997 JUNE 28, 1997 SEPTEMBER 30, 1996 ADJ. COMBINED
------------ ------------- ------------------ --------- ------------
NET REVENUES......................... $1,276,766 $ 70,174 $ 19,316 $ -- $ 1,366,256
Cost of sales........................ 642,264 35,578 15,017 1,100(d) 693,959
------------ ------------- -------- --------- ------------
GROSS MARGIN......................... 634,502 34,596 4,299 (1,100) 672,297
------------ ------------- -------- --------- ------------
Selling, general and
administrative..................... 375,880 29,434 9,006 -- 414,320
Research, development and
engineering........................ 105,660 10,892 3,622 -- 120,174
Provision for restructured
operations......................... 13,000 -- -- -- 13,000
Acquired research and development.... 26,801 -- -- -- 26,801
Other charges -- -- 10,743 -- 10,743
Amortization......................... -- 780 320 (1,100 (d) --
------------ ------------- -------- --------- ------------
OPERATING INCOME (LOSS).............. 113,161 (6,510) (19,392) -- 87,259
Gain on sale of investment........... 37,420 -- -- 26,600(d) 64,020
Interest expense..................... 2,325 2,513 874 -- 5,712
Interest income...................... 7,574 301 73 -- 7,948
Other income (expense), net.......... 1,548 26,556 143 (26,600 (d) 1,647
------------ ------------- -------- --------- ------------
INCOME (LOSS) BEFORE INCOME TAXES.... 157,378 17,834 (20,050) -- 155,162
Provision (benefit) for income
taxes.............................. 42,223 -- (100) -- 42,123
------------ ------------- -------- --------- ------------
NET INCOME (LOSS).................... $ 115,155 $ 17,834 $ (19,950) $ -- $ 113,039
------------ ------------- -------- --------- ------------
------------ ------------- -------- --------- ------------
NET INCOME (LOSS) PER SHARE.......... $ 2.58 $ 0.78 $ (1.08) $ 2.29
------------ ------------- -------- ------------
------------ ------------- -------- ------------
WEIGHTED AVERAGE SHARES AND
EQUIVALENT SHARES.................. 44,679 21,388 18,905 49,308
------------ ------------- -------- ------------
------------ ------------- -------- ------------
</TABLE>
See accompanying notes to pro forma condensed combined financial statements.
46
<PAGE>
PERKIN-ELMER AND PERSEPTIVE
PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
(IN THOUSANDS EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED
---------------------------
<S> <C> <C> <C> <C>
PERKIN-ELMER PERSEPTIVE 1996
JUNE 30, SEPTEMBER 30, PRO FORMA
1996 1996 ADJ. COMBINED
------------ ------------- ---------- ------------
NET REVENUES............................................ $1,162,949 $ 86,018 $ -- $ 1,248,967
Cost of sales........................................... 595,857 56,290 1,280(d) 653,427
------------ ------------- ---------- ------------
GROSS MARGIN............................................ 567,092 29,728 (1,280) 595,540
------------ ------------- ---------- ------------
Selling, general and administrative..................... 339,994 39,518 878(d) 380,390
Research, development and engineering................... 102,338 11,342 -- 113,680
Provision for restructured operations................... 71,600 -- 3,261(d) 74,861
Acquired research and development....................... 27,093 -- 6,785(d) 33,878
Other charges........................................... -- 24,239 (10,046 (d) 14,193
Amortization............................................ -- 2,158 (2,158 (d) --
------------ ------------- ---------- ------------
OPERATING INCOME (LOSS)................................. 26,067 (47,529) -- (21,462)
Gain on sale of investment.............................. 11,704 -- -- 11,704
Interest expense........................................ 4,971 3,473 -- 8,444
Interest income......................................... 4,894 482 -- 5,376
Other income (expense), net............................. (2,193) 53 -- (2,140)
------------ ------------- ---------- ------------
INCOME (LOSS) BEFORE INCOME TAXES....................... 35,501 (50,467) -- (14,966)
Provision for income taxes.............................. 21,557 -- -- 21,557
------------ ------------- ---------- ------------
NET INCOME (LOSS)....................................... $ 13,944 $ (50,467) $ -- $ (36,523)
------------ ------------- ---------- ------------
------------ ------------- ---------- ------------
NET INCOME (LOSS) PER SHARE............................. $ 0.32 $ (3.22) $ (0.77)
------------ ------------- ------------
------------ ------------- ------------
WEIGHTED AVERAGE SHARES AND EQUIVALENT SHARES........... 43,747 16,296 47,436
------------ ------------- ------------
------------ ------------- ------------
</TABLE>
See accompanying notes to pro forma condensed combined financial statements.
47
<PAGE>
PERKIN-ELMER AND PERSEPTIVE
PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
(IN THOUSANDS EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED
---------------------------
<S> <C> <C> <C> <C>
PERKIN-ELMER PERSEPTIVE 1995
JUNE 30, SEPTEMBER 30, PRO FORMA
1995 1995 ADJ. COMBINED
------------ ------------- --------- ------------
NET REVENUES............................................. $1,063,506 $ 89,429 $ -- $ 1,152,935
Cost of sales............................................ 560,402 50,137 1,280(d) 611,819
------------ ------------- --------- ------------
GROSS MARGIN............................................. 503,104 39,292 (1,280) 541,116
------------ ------------- --------- ------------
Selling, general and administrative...................... 317,120 32,771 1,800(d) 351,691
Research, development and engineering.................... 95,088 6,999 -- 102,087
Provision for restructured operations.................... 23,000 -- -- 23,000
Acquired research and development........................ -- -- 1,879(d) 1,879
Other charges............................................ -- 15,459 (1,879 (d) 13,580
Amortization............................................. -- 3,080 (3,080 (d) --
------------ ------------- --------- ------------
OPERATING INCOME (LOSS).................................. 67,896 (19,017) -- 48,879
Gain on sale of investment............................... 20,800 -- -- 20,800
Interest expense......................................... 8,180 2,958 -- 11,138
Interest income.......................................... 3,500 1,209 -- 4,709
Other income (expense), net.............................. (1,452) 196 -- (1,256)
------------ ------------- --------- ------------
INCOME (LOSS) BEFORE INCOME TAXES........................ 82,564 (20,570) -- 61,994
------------ ------------- --------- ------------
------------ ------------- --------- ------------
Provision for income taxes............................... 15,687 -- -- 15,687
------------ ------------- --------- ------------
------------ ------------- --------- ------------
NET INCOME (LOSS)........................................ $ 66,877 $ (20,570) $ -- $ 46,307
------------ ------------- --------- ------------
------------ ------------- --------- ------------
NET INCOME (LOSS) PER SHARE.............................. $ 1.57 $ (1.88) $ 1.02
------------ ------------- ------------
------------ ------------- ------------
WEIGHTED AVERAGE SHARES AND EQUIVALENT SHARES............ 42,644 12,340 45,617
------------ ------------- ------------
------------ ------------- ------------
</TABLE>
See accompanying notes to pro forma condensed combined financial statements.
48
<PAGE>
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
(1) BASIS OF PRESENTATION
The unaudited pro forma condensed combined financial statements are
presented for illustrative purposes only, giving effect to the Merger as
accounted for by the pooling of interests method.
Because the transaction has not been completed, only certain costs of the
Merger transaction can be estimated at this time. The pro forma condensed
combined statement of operations for the twelve months ended June 30, 1997
excludes: (i) the positive effects of potential cost savings expected to be
achieved upon combining the manufacturing and distribution resources of the
companies (which efficiency gains in the areas of manufacturing and distribution
may be material to the operating results of the combined entity) and (ii)
transaction costs of approximately $11 million to $15 million, including
investment banking, legal and accounting fees, and other contractual costs of
the transaction. Additionally, during the next several months, a study to review
the impact of integrating the two operations following the Merger will be
completed. Perkin-Elmer expects this study to identify opportunities for future
cost reduction synergies which will result in additional nonrecurring charges.
These charges may also include a writedown of certain assets impaired as a
result of combining manufacturing resources. However, until the study is
finalized and a formal integration plan developed, such charges cannot be
reasonably estimated at this time.
Perkin-Elmer is considering prepaying all of PerSeptive's outstanding
indebtedness subsequent to consummation of the Merger. Such indebtedness
aggregated $36.9 million at June 30, 1997, including $27.2 million aggregate
principal amount of Convertible Notes outstanding as of such date. No decision
has been made in this regard, however, and, accordingly, such prepayment is not
reflected in the pro forma condensed combined financial statements.
The pro forma condensed combined statement of financial position as of June
30, 1997 includes, in accordance with Commission reporting rules, the impact of
all transactions, whether of a recurring or nonrecurring nature, that can be
reasonably estimated and should be reflected as of that date.
(2) PRO FORMA ADJUSTMENTS
There were no material transactions between Perkin-Elmer and PerSeptive
during any period presented.
(a) Pro Forma Condensed Combined Statement of Financial Position--certain
reclassifications have been made to conform PerSeptive's reporting of
compensation, other payables and income tax related accrual balances to
that of Perkin-Elmer.
(b) The pro forma adjustments reflect the issuance of 4,133,000 shares of
Perkin-Elmer Common Stock in exchange for 21,461,000 shares of PerSeptive
Common Stock outstanding as of June 28, 1997 (based on the maximum
exchange ratio of 0.1926 for purposes of this analysis). Additionally,
the adjustment reflects the conversion of 2,000 shares of PerSeptive
Series A Preferred Stock outstanding at June 30, 1997 into 363,000 shares
of Perkin-Elmer Common Stock (assuming a conversion price based on the
closing price of PerSeptive Common Stock on June 30, 1997). Stock options
and warrants were excluded for purposes of the pro forma adjustments
because, pursuant to the Merger Agreement, such options and warrants will
become options and warrants of Perkin-Elmer as of the Effective Time of
the Merger. The actual number of shares of Perkin-Elmer Common Stock to
be issued will be determined at the Effective Time of the Merger based on
the actual number of shares of PerSeptive Common Stock and Series A
Preferred Stock then outstanding. The adjustment to capital in excess of
par value represents the excess of the recorded value of shares of
PerSeptive Common Stock and Series A Preferred Stock received in the
exchange over the par value of shares of Perkin-Elmer Common Stock
issued.
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(c) The Pro Forma Condensed Combined Statement of Financial Position has
been adjusted to reflect the minimum estimated transaction costs of $11.0
million associated with the Merger. The pro forma condensed combined
statement of operations has not been adjusted to reflect the
aforementioned costs.
(d) Pro Forma Condensed Combined Statements of Operations--certain
reclassifications have been made to conform PerSeptive's reporting of
intangible amortization, acquired research and development costs, other
charges and certain nonrecurring gains on sale of investments to that of
Perkin-Elmer. Specifically, Perkin-Elmer records goodwill amortization to
cost of sales and miscellaneous intangible amortization to selling,
general and administrative expense.
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DESCRIPTION OF PERKIN-ELMER CAPITAL STOCK
GENERAL
The authorized capital stock of Perkin-Elmer presently consists of
90,000,000 shares of Perkin-Elmer Common Stock and 1,000,000 shares of preferred
stock, par value $1.00 per share, of Perkin-Elmer (the "Perkin-Elmer Preferred
Stock") issuable in series. At the 1997 Annual Meeting of Shareholders of
Perkin-Elmer, Perkin-Elmer's shareholders approved an increase in the number of
authorized shares of Perkin-Elmer Common Stock to 180,000,000 shares, and
Perkin-Elmer intends to amend the Perkin-Elmer Charter accordingly. As of
October 23, 1997, approximately 43,921,798 shares of Perkin-Elmer Common Stock
and no shares of Perkin-Elmer Preferred Stock were outstanding.
Because Perkin-Elmer has substantial subsidiaries which have outstanding
debt obligations and other liabilities of their own, Perkin-Elmer's rights and
the rights of its creditors and its stockholders to participate in the assets of
any subsidiary upon the latter's liquidation or recapitalization will be subject
to prior claims of the subsidiary's creditors, except to the extent that
Perkin-Elmer may itself be a creditor with recognized claims against the
subsidiary.
The following is a summary of the terms of the Perkin-Elmer Common Stock and
the Perkin-Elmer Preferred Stock. Such summary does not purport to be complete
and is qualified in its entirety by reference to the Perkin-Elmer Charter and
the Perkin-Elmer By-Laws, each of which is included as an exhibit to the
Registration Statement. For a discussion of significant differences between the
Perkin-Elmer Charter and the Perkin-Elmer By-Laws, on the one hand, and the
PerSeptive Charter and the PerSeptive By-Laws, on the other hand, see
"Comparison of Stockholder Rights."
COMMON STOCK
The holders of Perkin-Elmer Common Stock will be entitled to receive
dividends when and as declared by the Perkin-Elmer Board out of funds legally
available therefor, subject to any superior rights of any Perkin-Elmer Preferred
Stock at the time outstanding.
The holders of Perkin-Elmer Common Stock will be entitled to one vote for
each share on all matters voted on by stockholders, including the election of
directors. The holders of Perkin-Elmer Common Stock will not have any cumulative
voting, conversion, redemption or preemptive rights. The holders of Perkin-Elmer
Common Stock are entitled to a pro rata share of all assets available for
distribution upon a liquidation, dissolution or winding up of the affairs of
Perkin-Elmer, after the payment of all liabilities and any liquidation
preference on the Perkin-Elmer Preferred Stock.
The outstanding shares of Perkin-Elmer Common Stock are listed on the NYSE
and the PSE. BankBoston, N.A. is the transfer agent and registrar for the
Perkin-Elmer Common Stock.
PREFERRED STOCK
The Perkin-Elmer Board is authorized to issue one or more series of
Perkin-Elmer Preferred Stock without further authorization of Perkin-Elmer
stockholders (except as may be required under applicable stock exchange
requirements), and to fix the number of shares, the annual dividend rate, the
preferences, the voting rights, the redemption price, the right to be converted
and any other rights, preferences and limitations of such shares. Thus, any such
series may, if so determined by the Perkin-Elmer Board, have full voting rights
with the Perkin-Elmer Common Stock or limited voting rights, be convertible into
Perkin-Elmer Common Stock or another security of Perkin-Elmer, and have the
annual dividend rate, preferences, voting rights, redemption price, right to be
converted and any other relative rights, preferences and limitations, as the
Perkin-Elmer Board shall determine. Except in connection with the Perkin-Elmer
Rights Agreement (as defined under "Comparison of Stockholder Rights--Rights
Plans"), the Perkin-Elmer Board has not authorized the issuance of any shares of
Perkin-Elmer Preferred Stock.
For a description of the rights and preferences of Perkin-Elmer's
Participating Preferred Stock, see "Comparison of Stockholder Rights--Rights
Plans."
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COMPARISON OF STOCKHOLDER RIGHTS
If the Merger is consummated, all holders of PerSeptive Common Stock will
become holders of shares of Perkin-Elmer Common Stock. Perkin-Elmer is a
corporation organized under and governed by New York law (including the NYBCL),
the Perkin-Elmer Charter and the Perkin-Elmer By-laws. PerSeptive is a
corporation organized under and governed by Delaware law (including the DGCL),
the PerSeptive Charter and the PerSeptive By-laws. The rights of a holder of
Perkin-Elmer Common Stock are similar in some respects and different in other
respects from the rights of a holder of PerSeptive Common Stock. Certain of
these similarities and differences are summarized below. THIS SUMMARY IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE NYBCL, THE DGCL, THE PERKIN-ELMER
CHARTER, THE PERKIN-ELMER BY-LAWS, THE PERSEPTIVE CHARTER AND THE PERSEPTIVE
BY-LAWS.
AUTHORIZED CAPITAL
The total number of authorized shares of capital stock of Perkin-Elmer is
91,000,000, consisting of 90,000,000 shares of Perkin-Elmer Common Stock and
1,000,000 shares of Perkin-Elmer Preferred Stock. At the 1997 Annual Meeting of
Shareholders of Perkin-Elmer, Perkin-Elmer's shareholders approved an increase
in the number of authorized shares of Perkin-Elmer Common Stock to 180,000,000
shares, and Perkin-Elmer intends to amend the Perkin-Elmer Charter accordingly.
The total number of authorized shares of capital stock of PerSeptive is
101,000,000, consisting of 100,000,000 shares of PerSeptive Common Stock and
1,000,000 shares of preferred stock, par value $.01 per share (the "PerSeptive
Preferred Stock").
The Perkin-Elmer Charter authorizes the Perkin-Elmer Board to issue one or
more series of Perkin-Elmer Preferred Stock without further authorization of
stockholders (except as may be required under applicable stock exchange
requirements), and to fix the number of shares, the annual dividend rate, the
preferences, the voting rights, the redemption price, the right to be converted,
and any other rights, preferences and limitations of such shares.
The PerSeptive Charter authorizes the PerSeptive Board to provide for the
issuance of PerSeptive Preferred Stock in one or more series, each with such
designations, preferences, voting powers (or special, preferential or no voting
powers), relative, participating, optional or other special rights and
privileges and such qualifications, limitations or restrictions thereof as shall
be stated in the resolutions of the PerSeptive Board with respect to the
creation of such series.
DIRECTORS
NUMBER AND ELECTION; CLASSIFICATION OF BOARD OF DIRECTORS. The Perkin-Elmer
Charter provides that the number of directors on the Perkin-Elmer Board be not
less than three nor more than fifteen. The Perkin-Elmer By-laws provide that the
number of directors on the Perkin-Elmer Board shall be fixed by a majority of
the Perkin-Elmer Board. The PerSeptive Charter provides that the number of
directors on the PerSeptive Board shall be determined by a majority of the
PerSeptive Board, but such number shall be at least three.
The Perkin-Elmer Board is not divided into separate classes but consists of
a single class elected annually. The PerSeptive Board consists of three separate
classes, consisting, as nearly as possible, of equal numbers and does not
include fewer than three directors per class. At each annual meeting of
stockholders, successors to the class of directors whose term expires at the
annual meeting are elected for a three-year term.
QUORUM. The Perkin-Elmer By-Laws provide that a majority of the entire
board of directors then in office constitutes a quorum for the transaction of
business by the Perkin-Elmer Board. Under the PerSeptive By-Laws, the presence
of a majority of the total authorized number of directors constitutes a quorum
for the transaction of business by the PerSeptive Board.
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REMOVAL. The NYBCL provides that any or all of the directors of a
corporation may be removed for cause by vote of the stockholders entitled to
vote. The NYBCL further allows an action to procure a judgment removing a
director for cause to be brought by the attorney-general or by holders of 10% of
the outstanding shares, whether or not entitled to vote. The Perkin-Elmer
By-Laws provide that a director may be removed from office for cause by the vote
of a majority of the Perkin-Elmer Board at a special meeting called for that
purpose. In addition, the Perkin-Elmer By-Laws provide that any director may be
removed with or without cause by the affirmative vote of a majority of the
shares of Perkin-Elmer capital stock entitled to vote thereon at a special
meeting called for that purpose.
The DGCL provides that, unless the certificate of incorporation otherwise
provides, in the case of a corporation with a classified board, stockholders may
remove directors only for cause. The PerSeptive Charter provides that any or all
directors may be removed without cause by the holders of 75% of the shares
entitled to vote at an election of directors and with cause by the holders of a
majority of the shares entitled to vote.
VACANCIES. Any vacancy on the Perkin-Elmer Board caused by removal of a
director by stockholders may be filled by the stockholders at the special
meeting called for such removal. Under the PerSeptive By-laws, if any vacancy
occurs on the PerSeptive Board, the directors then in office will continue to
act. Such vacancy (or a newly created directorship) may be filled by a majority
of the directors then in office, although less than a quorum.
CHARTER AND BY-LAW AMENDMENTS
AMENDMENTS TO CERTIFICATE OF INCORPORATION. Under the NYBCL and the DGCL,
the affirmative vote of a majority of the outstanding shares entitled to vote is
required to amend a certificate of incorporation. In addition, amendments which
make changes relating to the capital stock by increasing or decreasing the par
value or the aggregate number of authorized shares of a class, or otherwise
adversely affecting the rights of such class, must be approved by the majority
vote of each class or series of stock affected, even if such stock would not
otherwise have such voting rights. In addition, the amendment of certain
provisions of the Perkin-Elmer Charter described under "Affiliated Transactions"
below requires a vote of two-thirds of the shares held by disinterested
stockholders. The PerSeptive Charter requires the affirmative vote of 75% of
shares entitled to vote to amend certain provisions of the PerSeptive Charter
relating to directors, stockholder actions by written consent, special meetings
of stockholders and any amendment which would materially alter or change in an
adverse manner the powers, preferences or special rights of the Series B
Preferred Stock (as defined below). The PerSeptive Charter further provides that
the terms of the Series A Preferred Stock may be amended by action of the
PerSeptive Board and the vote or written consent of the holders of at least
66 2/3% of the Series A Preferred Stock, voting together with all other
PerSeptive Preferred Stock then outstanding and affected in the same manner.
AMENDMENT OF BY-LAWS. The Perkin-Elmer By-laws can be amended or repealed,
or new by-laws can be adopted, by either the holders of a majority of the
outstanding shares of capital stock entitled to vote thereon or by a majority of
the entire Perkin-Elmer Board. The PerSeptive By-Laws provide that provisions
relating to directors and stockholder actions by written consent may not be
amended or repealed without the affirmative vote of the holders of at least 75%
of all votes which PerSeptive's stockholders would be entitled to cast at any
annual election of directors or class of directors. Other than the foregoing,
the PerSeptive By-laws may be amended or repealed or new by-laws adopted, by
holders of a majority of the outstanding capital stock entitled to vote thereon
or by a majority of the entire PerSeptive Board.
CUMULATIVE VOTING
Neither the Perkin-Elmer Charter nor the PerSeptive Charter provides for
cumulative voting for directors.
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STOCKHOLDER MEETING PROCEDURES
SPECIAL MEETINGS AND PROVISIONS FOR NOTICES. Under the NYBCL, stockholders
may not call a special meeting unless there is a failure to elect a sufficient
number of directors to conduct the business of the corporation or unless
specifically authorized to do so by the corporation's certificate of
incorporation or by-laws. The Perkin-Elmer By-Laws provide that special meetings
of stockholders may be called only by the Perkin-Elmer Board, the Chairman of
the Board, the President or the Secretary. Under the DGCL, special meetings of
stockholders may be called by the board of directors or by such person or
persons as may be authorized by the certificate of incorporation or by-laws. The
PerSeptive By-Laws provide that special meetings of stockholders may be called
only by the Chairman, Chief Executive Officer or President.
The Perkin-Elmer By-Laws provide that Perkin-Elmer must give personally or
by mail, not less than ten nor more than fifty days before the date of any
meeting of stockholders, to each stockholder entitled to vote at such meeting,
written notice stating the place, date, hour and purpose or purposes of the
meeting. Any and all notices of a meeting may be waived by a stockholder by
submitting a signed waiver either before or after the meeting. The attendance of
any stockholder at a meeting, in person or by proxy, without protesting prior to
the conclusion of the meeting the lack of notice of such meeting, will
constitute a waiver of notice.
Under the PerSeptive By-Laws, written notice of the place, date and hour of
each meeting of the stockholders, whether annual or special and, in the case of
a special meeting, the purpose or purposes for which such meeting is called,
must be given not less than ten nor more than sixty days prior to the meeting to
each stockholder of record entitled to vote at such meeting.
QUORUM. The Perkin-Elmer By-Laws provide that the holders of record of a
majority of the outstanding shares of Perkin-Elmer Common Stock entitled to vote
at such meeting, whether present in person or represented by proxy, constitutes
a quorum for the purposes of transacting business at any stockholder meeting.
Under the PerSeptive By-Laws, the presence in person or by proxy of the holders
of record of a majority of shares entitled to vote at a meeting of stockholders
constitutes a quorum for the transaction of business at such meeting.
STOCKHOLDER ACTION WITHOUT A MEETING. Under the NYBCL, any required or
permitted action to be taken by stockholders may be taken without a meeting with
the written consent of all outstanding shares entitled to vote thereon, unless
the certificate of incorporation provides for a lesser number. The Perkin-Elmer
Charter does not contain provisions with respect to stockholder action in lieu
of a meeting.
Under the DGCL, unless otherwise provided by a corporation's certificate of
incorporation, any action which is to be taken by stockholders may be taken
without a meeting if such action is authorized by written consents signed by
stockholders having not less than the minimum number of votes necessary to take
such action at a meeting at which all shares were present and voting. The
PerSeptive Charter provides that stockholders may not take any action by written
consent in lieu of a meeting.
VOTING BY STOCKHOLDERS
BUSINESS COMBINATIONS AND CERTAIN OTHER TRANSACTIONS. The NYBCL requires
the vote of two-thirds of all outstanding shares entitled to vote thereon for a
plan of merger or consolidation adopted by the board of directors of a New York
corporation, a guarantee given by a New York corporation not in furtherance of
its corporate purposes, a disposition of all or substantially all the assets of
a New York corporation if not made in the usual course of business, or a
dissolution of a New York corporation. The DGCL requires the affirmative vote of
a majority of the outstanding shares entitled to vote to approve mergers,
consolidations, dissolutions and sales of all or substantially all of a
corporation's assets.
ISSUANCE OF RIGHTS OR OPTIONS TO DIRECTORS. Under the NYBCL, but not the
DGCL, the issuance by a corporation to its directors, officers or employees of
rights or options (other than substituted rights or options issued in connection
with a business combination) to purchase from the corporation any of its shares,
as an incentive to service or continued service with the corporation, or the
adoption of a plan
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providing for such issuance, must be authorized by the vote of the holders of a
majority of all outstanding shares entitled to vote thereon.
LOANS TO DIRECTORS. The NYBCL prohibits a New York corporation from making
loans to its directors without authorization by vote of the stockholders
(excluding from such vote the affected director's shares). The DGCL has no
comparable voting requirement but instead permits a corporation to make loans to
or guarantees on behalf of, or otherwise assist officers and employees of a
Delaware corporation, including those officers and employees who are also
directors of the corporation, if, in the judgment of the board, such loan,
guarantee or assistance may reasonably be expected to benefit the corporation.
AFFILIATED TRANSACTIONS
Generally, under the NYBCL, no corporation shall engage at any time in any
business combination with any interested shareholder of such corporation other
than a business combination: (a) approved by the board of directors of such
corporation prior to such interested shareholder's stock acquisition date; (b)
approved by the affirmative vote, no earlier than five years after such
interested shareholder's stock acquisition date, of the holders of a majority of
the outstanding voting stock not beneficially owned by such interested
shareholder or any affiliate or associate of such interested shareholder; or (c)
that meets certain specified conditions.
Further, the Perkin-Elmer Charter provides that no transaction between
Perkin-Elmer and any Controlling Person (as defined in the Perkin-Elmer Charter)
shall be valid, nor shall any such transaction be consummated, unless (a) such
transaction is expressly approved by at least a vote of the Disinterested
Directors (as defined in the Perkin-Elmer Charter), who at the time constitute
at least a majority of the entire Perkin-Elmer Board; (b) such transaction is
approved by the affirmative vote of not less than two-thirds of the voting power
of the shares of each class of Perkin-Elmer's capital stock entitled to vote
thereon held by Disinterested Shareholders (as defined in the Perkin-Elmer
Charter); or (c) if such transaction would result in payment of cash or other
property to the stockholders of Perkin-Elmer, such transaction is consummated
and provides for the payment to each of the stockholders other than the
Controlling Person upon the consummation thereof, in exchange for all the shares
of Perkin-Elmer's capital stock held by each of such stockholders, consideration
which is of certain minimum value. The Perkin-Elmer Charter also prohibits the
purchase of shares of any stock of Perkin-Elmer by Perkin-Elmer from any
Controlling Person at a price exceeding the average price paid by such
Controlling Person for all shares of stock of Perkin-Elmer acquired by such
Controlling Person during the two-year period preceding the date of such
proposed purchase unless such purchase is approved by the affirmative vote of
not less than a majority of the voting power of the shares of stock of
Perkin-Elmer entitled to vote held by Disinterested Shareholders.
The DGCL provides that, subject to certain specified exceptions, a
corporation shall not engage in any business combination with any interested
stockholder (as defined below) for a period of three years following the time
that such stockholder became an interested stockholder, unless: (a) prior to
such time the board of directors of the corporation approved either the business
combination or the transaction which resulted in the stockholder becoming an
interested stockholder; (b) upon consummation of the transaction which resulted
in the stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock outstanding at the time the
transaction commenced, excluding for purposes of determining the number of
shares outstanding those shares owned by (i) by persons who are directors and
also officers and (ii) employee stock option plans in which employee
participants do not have the right to determine confidentially whether shares
held will be tendered in a tender or exchange offer; or (c) at or subsequent to
the time at which the interested stockholder became an interested stockholder,
the business combination is approved by the board of directors and authorized at
an annual or special meeting of stockholders, and not by written consent, by the
affirmative vote of at least 66 2/3% of the outstanding voting stock which is
not owned by the interested stockholder.
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The DGCL defines an "interested stockholder" as any person (other than the
corporation or a subsidiary thereof) that (i) is the beneficial owner of 15% or
more of the outstanding voting stock of the corporation or (ii) is an affiliate
or associate of the corporation and was the beneficial owner of 15% or more of
the outstanding voting stock of the corporation at any time within the
three-year period immediately prior to the date on which it is determined
whether such stockholder is "interested", provided that the term interested
stockholder generally shall not include (a) any person who owned shares (A)
described in clause (i) above who acquired such shares prior to December 23,
1987 and either continued to own such shares or is a person described in (ii)
above or (B) who acquired such shares from a person described in clause (A)
above for no consideration or (b) whose ownership of shares in excess of the 15%
limitation is the result of action taken by the corporation, so long as such
person does not later acquire additional shares of the corporation except
through further action of the corporation.
RIGHTS PLANS
PERKIN-ELMER. Perkin-Elmer entered into a Shareholder Protection Rights
Agreement (the "Perkin-Elmer Rights Agreement") with the First National Bank of
Boston, as Rights Agent (the "Perkin-Elmer Rights Agent") pursuant to which on,
April 20, 1989, the Perkin-Elmer Board declared a dividend distribution of one
Perkin-Elmer Right for each outstanding share of Perkin-Elmer Common Stock to
stockholders of record at the close of business on May 1, 1989 (the "Record
Time"). Pursuant to the Perkin-Elmer Rights Agreement, each Perkin-Elmer Right
entitles the registered holder to purchase from Perkin-Elmer after the
Separation Time (as defined below), one one-hundredth of a share of
Participating Preferred Stock for $90 (the "Exercise Price"), subject to
adjustment.
The Perkin-Elmer Rights will be evidenced by Perkin-Elmer Common Stock
certificates until the Separation Time, defined as the close of business on the
earlier of (i) the tenth day, unless otherwise extended by the Perkin-Elmer
Board, after the date on which any person (other than Perkin-Elmer, a
majority-owned subsidiary of Perkin-Elmer or an employee stock ownership or
other employee benefit plan of Perkin-Elmer or a majority-owned subsidiary of
Perkin-Elmer) commences a tender or exchange offer which, if consummated, would
result in such person's becoming the beneficial owner of 20% or more of the
outstanding shares of Perkin-Elmer Common Stock (any person having such
beneficial ownership being referred to herein as the "Acquiring Person") and
(ii) the first date of public announcement by Perkin-Elmer or an Acquiring
Person that an Acquiring Person has become such (a "Stock Acquisition Date");
PROVIDED, that if a tender or exchange offer referred to in clause (i) is
canceled, terminated or otherwise withdrawn prior to the Separation Time, such
offer shall be deemed never to have been made.
Until the Separation Time, the Perkin-Elmer Rights will be transferred with
and only with the Perkin-Elmer Common Stock. Perkin-Elmer Common Stock
certificates issued after the Record Time but prior to the Separation Time shall
evidence one Perkin-Elmer Right for each share of Perkin-Elmer Common Stock
represented thereby and shall contain a legend incorporating by reference the
terms of the Perkin-Elmer Rights Agreement. Notwithstanding the absence of the
aforementioned legend, certificates evidencing shares of Perkin-Elmer Common
Stock outstanding at the Record Time shall also evidence one Perkin-Elmer Right
for each share of Perkin-Elmer Common Stock evidenced thereby. Promptly
following the Separation Time, separate certificates evidencing the Perkin-Elmer
Rights will be mailed to holders of record of Perkin-Elmer Common Stock at the
Separation Time.
The Perkin-Elmer Rights are not exercisable until the business day following
the Separation Time and will expire on the earlier of (i) the close of business
on April 30, 1999 and (ii) the date on which the Perkin-Elmer Rights are
redeemed as described below (the "Expiration Time").
In the event that prior to the Expiration Time, a Stock Acquisition Date
occurs that is not the result of a Flip-over Transaction or Event, as defined
below (a "Flip-in Date"), then, to the extent applicable law permits
Perkin-Elmer Rights owned by the Acquiring Person or any affiliate or associate
thereof to become void, Perkin-Elmer shall take such action as shall be
necessary to ensure and provide that, except as provided below, each
Perkin-Elmer Right shall constitute the right to purchase from Perkin-Elmer,
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upon the exercise thereof in accordance with the terms of the Perkin-Elmer
Rights Agreement, that number of shares of Perkin-Elmer Common Stock having an
aggregate Market Price (as defined in the Perkin-Elmer Rights Agreement), on the
Stock Acquisition Date, equal to twice the Exercise Price for an amount in cash
equal to the then current Exercise Price. Notwithstanding the foregoing, to the
extent permitted by applicable law, any Perkin-Elmer Rights that are or were
beneficially owned on or after the Stock Acquisition Date by an Acquiring Person
or an affiliate or associate thereof shall become void and any holder of such
Perkin-Elmer Rights shall thereafter have no right to exercise or transfer such
Perkin-Elmer Rights.
In addition, the Perkin-Elmer Board may, at its option, at any time after a
Flip-in Date and prior to the time that an Acquiring Person becomes the
beneficial owner of more than 50% of the outstanding shares of Perkin-Elmer
Common Stock, but only to the extent applicable law permits Perkin-Elmer Rights
owned by the persons referred to above to become void, elect to exchange all
(but not less than all) the then outstanding Perkin-Elmer Rights (other than
Perkin-Elmer Rights beneficially owned by the Acquiring Person or any affiliate
or associate thereof, which Perkin-Elmer Rights, to the extent permitted by
applicable law, shall become void) for shares of Perkin-Elmer Common Stock at an
exchange ratio (the "exchange ratio") of one share of Perkin-Elmer Common Stock
per Perkin-Elmer Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date of the Separation Time.
Immediately upon such action by the Perkin-Elmer Board, the right to exercise
the Perkin-Elmer Rights will terminate and each Perkin-Elmer Right will
thereafter represent only the right to receive a number of shares of
Perkin-Elmer Common Stock equal to the exchange ratio.
Whenever Perkin-Elmer shall become obligated under the preceding paragraph
to issue shares of Perkin-Elmer Common Stock upon exercise of or in exchange for
Perkin-Elmer Rights, Perkin-Elmer, at its option, may substitute therefor shares
of Perkin-Elmer Preferred Stock, at a ratio of one one-hundredth of a share of
Perkin-Elmer Preferred Stock for each share of Perkin-Elmer Common Stock so
issuable.
Perkin-Elmer shall take such action as shall be necessary to ensure, and
shall not enter into, consummate or permit to occur a Flip-over Transaction or
Event until it shall have entered into a supplemental agreement with the person
engaging in such Flip-over Transaction or Event (the "Flip-over Entity"), for
the benefit of the holders of the Perkin-Elmer Rights, providing, that upon
consummation or occurrence of the Flip-over Transaction or Event (i) each
Perkin-Elmer Right shall thereafter constitute the right to purchase from the
Flip-over Entity, upon exercise thereof in accordance with the terms of the
Perkin-Elmer Rights Agreement, that number of shares of common stock of the
Flip-over Entity having an aggregate Market Price on the date of consummation or
occurrence of such Flip-over Transaction or Event equal to twice the Exercise
Price for an amount in cash equal to the then current Exercise Price and (ii)
the Flip-over Entity shall thereafter be liable for, and shall assume, by virtue
of such Flip-over Transaction or Event and such supplemental agreement, all the
obligations and duties of Perkin-Elmer pursuant to the Perkin-Elmer Rights
Agreement.
A "Flip-over Transaction or Event" shall mean a transaction or series of
transactions after the time that an Acquiring Person has become such, in which
event, directly or indirectly, (a) Perkin-Elmer shall consolidate or merge with
any other person, or (b) Perkin-Elmer shall sell or otherwise transfer (or one
or more of its subsidiaries shall sell or otherwise transfer) assets (i)
aggregating more than 50% of the assets (measured by either book value or fair
market value) or (ii) generating more than 50% of the operating income or cash
flow, of Perkin-Elmer and its subsidiaries (taken as a whole) to any other
person (other than Perkin-Elmer or one or more of its wholly-owned subsidiaries)
or to two or more such persons which are affiliated or otherwise acting in
concert, or (c) any Acquiring Person shall (i) obtain, with or without
consideration, over any period of 12 consecutive calendar months, any additional
shares of any class of capital stock of Perkin-Elmer or any of its subsidiaries
equal in the aggregate to more than 1% of the outstanding shares of such class,
or securities exercisable or exchangeable for or convertible into more than 1%
of the outstanding shares of any class of capital stock of Perkin-Elmer or any
of its subsidiaries (in each case other than as part of a PRO RATA distribution
to all holders of such stock or pursuant to the exercise of Perkin-Elmer Rights
or warrants, or the conversion or exchange of securities, issued PRO RATA in
such a
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distribution), (ii) sell, purchase, lease, exchange, mortgage, pledge, transfer
or otherwise acquire or dispose of, to, from, or with, as the case may be,
Perkin-Elmer or any of its subsidiaries, over any period of 12 consecutive
calendar months, assets (x) having an aggregate fair market value of more than
$15,000,000 or (y) on terms and conditions less favorable to Perkin-Elmer than
Perkin-Elmer would be able to obtain through arm's-length negotiations with an
unaffiliated third party, (iii) receive any compensation for services from
Perkin-Elmer or any of its subsidiaries, other than compensation for full-time
employment as a regular employee at rates in accordance with Perkin-Elmer's (or
its subsidiaries') past practices, or (iv) receive the benefit, directly or
indirectly (except proportionately as a shareholder), over any period of 12
consecutive calendar months, of any loans, advances, guarantees, pledges,
insurance, reinsurance or other financial assistance or any tax credits or other
tax advantage provided by Perkin-Elmer or any of its subsidiaries involving an
aggregate principal amount in excess of $5,000,000 or an aggregate cost or
transfer of benefits from Perkin-Elmer or any of its subsidiaries in excess of
$5,000,000 or, in any case, on terms and conditions less favorable to
Perkin-Elmer than Perkin-Elmer would be able to obtain through arm's-length
negotiations with a third party, or (d) as a result of any reclassification of
securities (including any reverse stock split), or recapitalization, of
Perkin-Elmer, or any merger or consolidation of Perkin-Elmer with any of its
subsidiaries or any other transaction or series of transactions (whether or not
with or into or otherwise involving an Acquiring Person), the proportionate
share of the outstanding shares of any class of equity or convertible securities
of Perkin-Elmer or any of its subsidiaries which is directly or indirectly owned
by any Acquiring Person is increased by more than 1%.
The Perkin-Elmer Board may, at its option, at any time prior to the time
that an Acquiring Person shall become such, redeem all (but not less than all)
the then outstanding Perkin-Elmer Rights at a price (calculated to the nearest
one one-hundredth of a cent) equal to the Exercise Price, as in effect at the
Redemption Time, divided by 9,000 (initially $.01 per Perkin-Elmer Right) (the
"Redemption Price"), as provided in the Perkin-Elmer Rights Agreement.
Immediately upon the action of the Perkin-Elmer Board electing to redeem the
Perkin-Elmer Rights, without any further action and without any notice, the
right to exercise the Perkin-Elmer Rights will terminate and each Perkin-Elmer
Right will thereafter represent only the right to receive the Redemption Price
in cash for each Perkin-Elmer Right so held.
The holders of the Perkin-Elmer Rights will, solely by reason of their
ownership of Perkin-Elmer Rights, have no rights as shareholders of
Perkin-Elmer, including, without limitation, the right to vote or to receive
dividends.
PERSEPTIVE. PerSeptive entered into a Rights Agreement, dated as of March
1, 1995 (the "PerSeptive Rights Agreement"), with American Stock Transfer Trust
Company, as Rights Agent (the "PerSeptive Rights Agent") pursuant to which, on
February 23, 1995, the PerSeptive Board declared a dividend of one PerSeptive
Right for each outstanding share of PerSeptive's Common Stock to stockholders of
record at the close of business on March 2, 1995 (the "Record Date"). Each
PerSeptive Right entitles the registered holder to purchase from PerSeptive a
unit consisting of one one-hundredth of a share (a "Unit") of Series B Junior
Participating Preferred Stock, $.01 par value per share (the "Series B Preferred
Stock"), at a purchase price of $47.00 per Unit (the "Purchase Price"), subject
to adjustment.
Under the PerSeptive Rights Agreement, the PerSeptive Rights will separate
from the PerSeptive Common Stock and a Distribution Date will occur upon the
earlier of (i) 10 days following a public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has acquired, or
obtained the right to acquire, beneficial ownership of more than 15% of the
outstanding shares of PerSeptive Common Stock (the "Stock Acquisition Date"),
(ii) 10 business days following the commencement of a tender offer or exchange
offer that may result in a person or group beneficially owning 15% or more of
such outstanding shares of PerSeptive Common Stock or (iii) 10 business days
after the Continuing Directors (as defined below) of PerSeptive shall declare
any Person to be an Adverse Person, upon a determination that such Person, alone
or together with its affiliates and associates, has become the Beneficial Owner
of an amount of PerSeptive Common Stock which the Continuing Directors determine
to be substantial (which amount shall in no event be less than 15% of the shares
of PerSeptive
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Common Stock then outstanding) and a majority of the Continuing Directors (with
the concurrence of a majority of the Independent Directors (as defined below))
determines that such Adverse Person intends to cause PerSeptive to take action
intended to provide such person with short-term financial gain under
circumstances where such directors determine that the best long-term interests
of PerSeptive and its stockholders would not be served by taking such action or
such beneficial ownership is causing or is reasonably likely to cause a material
adverse impact.
The PerSeptive Rights are not exercisable until the Distribution Date and
will expire at the close of business on March 2, 2005, unless earlier redeemed
by PerSeptive as described below.
In the event that the Continuing Directors determine that a person is an
Adverse Person or, at any time following the Distribution Date, (i) PerSeptive
is the surviving corporation in a merger with an Acquiring Person and its
PerSeptive Common Stock is not changed or exchanged, (ii) a Person becomes the
beneficial owner of more than 15% of the then outstanding shares of PerSeptive
Common Stock (except pursuant to an offer for all outstanding shares of
PerSeptive Common Stock which the Independent Directors determine to be fair to,
and otherwise in the best interests of, PerSeptive and its stockholders), (iii)
an Acquiring Person engages in one or more "self-dealing" transactions as set
forth in the PerSeptive Rights Agreement, or (iv) during such time as there is
an Acquiring Person, an event occurs which results in such Acquiring Person's
ownership interest being increased by more than 1% (e.g., a reverse stock
split), each holder of a PerSeptive Right will thereafter have the right to
receive, upon exercise, that number of shares of PerSeptive Common Stock (or, in
certain circumstances, cash, property or other securities of PerSeptive) which
equals the exercise price of the PerSeptive Right divided by one-half of the
current market price (as defined in the PerSeptive Rights Agreement) of the
PerSeptive Common Stock at the date of the occurrence of the event. However,
PerSeptive Rights are not exercisable following the occurrence of any of the
events set forth above until such time as the PerSeptive Rights are no longer
redeemable by PerSeptive as set forth below. Notwithstanding any of the
foregoing, following the occurrence of any of the events set forth in this
paragraph, all PerSeptive Rights that are, or (under certain circumstances
specified in the PerSeptive Rights Agreement) were, beneficially owned by an
Acquiring Person or an Adverse Person will be null and void. Thus, at an
exercise price of $47.00 per PerSeptive Right, each PerSeptive Right not owned
by an Acquiring Person or an Adverse Person (or by certain related parties)
following an event set forth in the preceding paragraph would entitle its holder
to purchase $94.00 worth of PerSeptive Common Stock (or other consideration, as
noted above) for $47.00.
In the event that, at any time following the Stock Acquisition Date, (i)
PerSeptive is acquired in a merger or other business combination transaction in
which PerSeptive is not the surviving corporation (other than a merger which
follows an offer determined by the PerSeptive Board to be fair as described in
clause (ii) of the preceding paragraph), or (ii) more than 50% of PerSeptive's
assets or earning power is sold or transferred, each holder of a PerSeptive
Right (except PerSeptive Rights which previously have been voided as set forth
above) shall thereafter have the right to receive, upon exercise, that number of
shares of common stock of the acquiring company which equals the exercise price
of the PerSeptive Right divided by one-half of the current market price (as
defined in the PerSeptive Rights Agreement) of such common stock at the date of
the occurrence of the event. The events set forth in this paragraph and in the
second preceding paragraph are referred to as the "Triggering Events."
At any time after the occurrence of certain Triggering Events, a majority of
the Continuing Directors may exchange the PerSeptive Rights (other than
PerSeptive Rights owned by an Acquiring Person or Adverse Person which have
become void), in whole or in part, at an exchange ratio of one share of
PerSeptive Common Stock, or one Common Stock Equivalent (as defined in the
PerSeptive Rights Agreement), per PerSeptive Right (subject to adjustment).
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In general, PerSeptive may redeem the PerSeptive Rights in whole, but not in
part, at any time until ten days following the Stock Acquisition Date, at a
price of $.01 per PerSeptive Right (payable in cash, PerSeptive Common Stock or
other consideration deemed appropriate by the PerSeptive Board). Under certain
circumstances set forth in the PerSeptive Rights Agreement, the decision to
redeem shall require the concurrence of a majority of the Continuing Directors.
PerSeptive may not redeem the PerSeptive Rights if the Continuing Directors have
previously declared a person to be an Adverse Person. After the redemption
period has expired, PerSeptive's right of redemption may be reinstated if either
(i) an Acquiring Person reduces its beneficial ownership to less than 15% of the
outstanding shares of PerSeptive Common Stock in a transaction or a series of
transactions not involving PerSeptive, or (ii) the PerSeptive Board approves the
merger of PerSeptive with, or acquisition of PerSeptive by, a Person unrelated
to the Acquiring Person. Immediately upon the action of the PerSeptive Board
ordering redemption of the PerSeptive Rights, with, where required, the
concurrence of the Continuing Directors, the PerSeptive Rights will terminate
and the only right of the holders of PerSeptive Rights will be to receive the
$.01 per PerSeptive Right redemption price.
The term "Continuing Director" means any member of the PerSeptive Board who
was a member of the PerSeptive Board on the date of the PerSeptive Rights
Agreement, and any person who is subsequently elected to the PerSeptive Board if
such person is recommended or approved by a majority of the Continuing
Directors, but shall not include an Acquiring Person, an Adverse Person or an
affiliate or associate of an Acquiring Person or an Adverse Person, or any
representative of the foregoing entities. The term "Independent Directors" means
Continuing Directors who are not officers of PerSeptive.
Until a PerSeptive Right is exercised, the holder thereof, as such, will
have no rights as a stockholder of PerSeptive, including, without limitation,
the right to vote or to receive dividends.
On August 23, 1997, the PerSeptive Rights Agreement was amended to provide
that neither Perkin-Elmer nor Merger Sub will become an "Acquiring Person" or an
"Adverse Person" and that no "Triggering Event", "Stock Acquisition Date" or
"Distribution Date" will occur as result of the approval, execution or delivery
of the Merger Agreement or the Stock Option Agreement or the consummation of the
Merger or the acquisition of shares of PerSeptive Common Stock by Perkin-Elmer
pursuant to the Stock Option Agreement.
INDEMNIFICATION AND LIMITATION OF LIABILITY
Delaware and New York have similar laws respecting indemnification by a
corporation of its officers, directors, employees and other agents. The laws of
both states also permit, with certain exceptions, corporations to adopt a
provision in their certificate of incorporation eliminating the liability of a
director to the corporation or its stockholders for monetary damages for breach
of the director's fiduciary duty of care. There are, nonetheless, certain
differences between the laws of the two states respecting indemnification and
limitation of liability.
The Perkin-Elmer By-laws provide that, except to the extent expressly
prohibited by the NYBCL, Perkin-Elmer shall indemnify each person made or
threatened to be made a party to, or called as a witness or asked to submit
information in, any action or proceeding by reason of the fact that such person
or such person's testator or intestate is or was a director or officer of
Perkin-Elmer, or serves or served at the request of Perkin-Elmer any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, penalties, amounts paid in
settlement and reasonable expenses, including attorneys' fees incurred in
connection with such action or proceeding, or any appeal therein, provided that
no such indemnification shall be made if a judgment or other final adjudication
adverse to such person establishes that his or her acts were committed in bad
faith or were the result of active and deliberate dishonesty and were material
to the cause of action so adjudicated, or that he or she personally gained in
fact a financial profit or other advantage to which he or she was to legally
entitled, and provided further that no such indemnification shall be required
with respect to any settlement
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or other nonadjudicated disposition of any threatened or pending action or
proceeding unless Perkin-Elmer has given its prior consent to such settlement or
other disposition. In this by-law, reference to an action or proceeding
includes, without limitation, any pending or threatened action, proceeding,
hearing or investigation, whether civil or criminal, whether judicial,
administrative or legislative in nature and whether or not in the nature of a
direct or a stockholders' derivative action brought by or on behalf of
Perkin-Elmer or any other corporation or enterprise which the director or
officer of the corporation serves at Perkin-Elmer's request.
The Perkin-Elmer By-laws provide that Perkin-Elmer shall advance or promptly
reimburse upon request any person entitled to indemnification hereunder for all
expenses, including attorney's fees, reasonably incurred in defending any action
or proceeding in advance of the final disposition thereof upon receipt of an
undertaking by or on behalf of such person to repay such amount if such person
is ultimately found not to be entitled to indemnification or, where
indemnification is granted, to the extent the expenses so advanced or reimbursed
exceed the amount to which such person is entitled, provided, however, that such
person shall cooperate in good faith with any request by Perkin-Elmer that
common counsel be utilized by the parties to an action or proceeding who are
similarly situated unless to do so would be inappropriate due to actual or
potential differing interests between or among such parties. Perkin-Elmer shall
also promptly pay or reimburse such person for all expenses, including fees and
expenses of counsel, reasonably incurred by such person in successfully
enforcing his or her rights pursuant to the by-law provisions described above.
The NYBCL authorizes a New York corporation to indemnify any person who is,
or is threatened to be made, a party in any civil or criminal proceeding (other
than an action by or in the right of the corporation) by reason of the fact that
he or she is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another entity, against judgments, fines, amounts paid in
settlement and reasonable expenses (including attorneys' fees) actually and
necessarily incurred by such person as a result of such action or proceeding or
any appeal therein. With respect to actions by or in the right of the
corporation, the NYBCL authorizes indemnification of such person against
reasonable expenses including attorneys' fees and amounts paid in settlement. To
be entitled to indemnification, a person must have acted in good faith, for a
purpose which he or she reasonably believed to be in, or in the case of service
for another organization, not opposed to, the best interests of the corporation
and, with respect to any criminal action or proceeding, in addition, had no
reasonable cause to believe his or her conduct was unlawful. Court approval is
required as a prerequisite to indemnification of expenses in respect of any
claim as to which a person has been adjudged liable to the corporation.
The NYBCL requires indemnification against expenses actually and reasonably
incurred by any director, officer, employee or agent in connection with a
proceeding against such person for action in such capacity to the extent that
the person has been successful on the merits or otherwise. Advancement of
expenses (i.e., payment prior to a determination on the merits) is permitted,
but not required, by the NYBCL, which further requires that any director or
officer must undertake to repay such expenses if it is ultimately determined
that he or she is not entitled to indemnification. The disinterested members of
the board of directors (or independent legal counsel or the stockholders) must
determine, in each instance where indemnification is not required by the NYBCL,
that such director, officer, employee or agent is entitled to indemnification.
The NYBCL provides that the indemnification provided by statute is not
exclusive.
The PerSeptive Charter provides that PerSeptive will indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by a stockholder in the
right of PerSeptive), by reason of the fact that he or she is or was or has
agreed to become a director or officer of PerSeptive, or is or was serving or
has agreed to serve at the request of PerSeptive as a director, officer or
trustee of, or in a similar capacity, with another corporation, partnership,
joint venture, trust or other
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enterprise, or by reason of any action alleged to have been taken or omitted in
such capacity, against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him or
her or on his or her behalf in connection with such action, suit or proceeding
and any appeal therefrom, if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of
PerSeptive, and, with respect to any criminal action or proceeding had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in, or not opposed to, the best interests of
PerSeptive, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful. PerSeptive
will not indemnify a director or officer seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person unless the
institution thereof was approved by the PerSeptive Board. The PerSeptive Charter
further provides that if Delaware law is amended after adoption of the foregoing
provisions to expand further the indemnification permitted to indemnitees
thereunder, PerSeptive shall indemnify such persons to the fullest extent
permitted by Delaware law, as so amended.
The PerSeptive Charter provides that PerSeptive will indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of PerSeptive to procure
a judgment in its favor by reason of the fact that he or she is or was, or has
agreed to become, a director or officer of PerSeptive, or is or was serving, or
has agreed to serve, at the request of PerSeptive, as a director, officer or
trustee of, or in a similar capacity with, another corporation, partnership,
joint venture, trust or other enterprise (including any employee benefit plan),
or by reason of any action alleged to have been taken or omitted in such
capacity, against all expenses (including attorneys' fees) and amounts paid in
settlement actually and reasonably incurred by him or her or on his or her
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of PerSeptive, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to PerSeptive unless and
only to the extent that the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses (including attorney's fees)
which the court shall deem proper.
The DGCL authorizes a Delaware corporation to indemnify any person who is,
or is threatened to be made, a party in any civil, criminal, administrative or
investigative, pending or completed action, suit or proceeding (other than an
action by or in the right of the corporation) by reason of the fact that he or
she is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another entity, against expenses (including attorneys'
fees) judgments, fines, amounts paid in settlement, actually and reasonably
incurred by such person in connection with any threatened, pending or completed
action, suit or proceeding. With respect to actions by or in the right of the
corporation, the DGCL authorizes indemnification of such person against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action, suit or proceeding. To
be entitled to indemnification, a person must have acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. With respect to
actions by or in the right of the corporation, court approval is required as a
prerequisite to indemnification of expenses in respect of any claim as to which
a person has been adjudged liable to the corporation.
The DGCL requires indemnification against expenses (including attorney's
fees) actually and reasonably incurred by any director, officer, employee or
agent of a corporation in connection with an action, suit or proceeding or in
defense of any claim, issue or matter therein against such person for actions in
such capacity to the extent that the person has been successful on the merits or
otherwise. Advancement of
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expenses (i.e., payment prior to a determination on the merits) is permitted,
but not required by the DGCL, which further requires that any director or
officer must undertake to repay such expenses if it is ultimately determined
that he or she is not entitled to indemnification. The disinterested members of
the board of directors (or independent legal counsel or the stockholders) must
determine, in each instance where indemnification is not required by the DGCL,
that such director, officer, employee or agent is entitled to indemnification.
The DGCL provides that the indemnification provided by statute is not exclusive.
APPRAISAL RIGHTS
The NYBCL provides dissenters' rights to holders entitled to vote thereon
for (a) certain mergers and consolidations; (b) dispositions of assets requiring
stockholder approval; and (c) certain amendments to the certificate of
incorporation which adversely affect the rights of such stockholders. The
procedures for perfecting dissenters' rights are similar under the DGCL and the
NYBCL, except that the NYBCL provides a procedure for the corporation to make a
written offer prior to the commencement of litigation to each dissenting
stockholder to pay cash for his or her shares at a specified, uniform price
which the corporation considers to be the fair value of the shares. If the
effective date of the corporate action dissented from has occurred, the offer
must be accompanied by an advance payment of 80% of the offer price to each
dissenting stockholder who has submitted his or her stock certificates. If the
effective date has not yet occurred, such advance payment shall be sent
forthwith upon its occurrence. If the corporation and a dissenting stockholder
agree upon a price to be paid for such dissenting stockholder's shares within 30
days after the making of the offer, payment in full must be made by the
corporation within 60 days of the date on which the offer was made or within 60
days of the effective date, whichever is later. If any dissenting stockholder
fails to agree with the corporation during the aforesaid 30-day period, or if an
offer is not made within a specified period of time, only then may a proceeding
for judicial appraisal be commenced.
Under the DGCL, a stockholder of a corporation who does not vote in favor of
or consent in writing to certain merger transactions and who demands appraisal
of his or her shares in connection therewith may, under varying circumstances,
be entitled to dissenters' rights pursuant to which such stockholder may receive
cash in the amount of the fair value of his or her shares (as determined by a
Delaware court) together with a fair rate of interest, if any, in lieu of the
consideration he or she would otherwise receive in the transaction. Unless the
corporation's certificate of incorporation provides otherwise (and the
PerSeptive Charter has no such provision), such appraisal rights are not
available in certain circumstances, including without limitation (a) the sale,
lease or exchange of all or substantially all of the assets of a corporation,
(b) the merger or consolidation of a corporation the shares of which are either
listed on a national securities exchange or on Nasdaq or are held of record by
more than 2,000 holders if such stockholders receive only shares of the
surviving corporation or shares of any other corporation which are either listed
on a national securities exchange or on Nasdaq or held of record by more than
2,000 holders, plus cash in lieu of fractional shares or (c) to stockholders of
a corporation surviving a merger if no vote of the stockholders of the surviving
corporation is required to approve the merger because the merger agreement does
not amend the existing certificate of incorporation, each share of the surviving
corporation outstanding prior to the merger is an identical outstanding or
treasury share after the merger, and the number of shares to be issued in the
merger does not exceed 20% of the shares of the surviving corporation
outstanding immediately prior to the merger and if certain other conditions are
met.
The concept of "fair value" in payment for shares upon exercise of appraisal
rights is different under the DGCL and the NYBCL. Under the DGCL, "fair value"
must be determined exclusive of any element of value arising from the
accomplishment or expectation of the relevant transaction. The NYBCL does not
exclude such element of value but mandates that the court should consider the
nature of the transaction, its effect on the corporation and its stockholders,
and the concepts and methods of valuation then customary in the relevant
financial and securities markets.
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RIGHT TO EXAMINE STOCKHOLDER LIST
Under the NYBCL, any person who shall have been a stockholder for at least
six months preceding his demand, or any person holding, or thereunto authorized
in writing by the holders of, at least five percent of any class of the
outstanding shares, upon at least five days' written demand shall have the right
to examine, during usual business hours, the corporation's minutes of
proceedings of its stockholders and record of stockholders.
Under the DGCL, stockholders, during usual business hours, have a right, for
a period of at least ten days prior to any stockholder meeting and during such
meeting, to examine a list of stockholders for any purpose germane to such
meeting, arranged in alphabetical order and showing the address and the number
of shares held by such stockholder, for any purpose germane to such meeting. The
DGCL further provides that any stockholder, following a written request, has the
right to inspect the corporation's books and records, including the stockholder
list, during usual business hours for a proper purpose.
INTERESTED DIRECTOR TRANSACTIONS
Under both the NYBCL and the DGCL, certain contracts or transactions in
which one or more of a corporation's directors has an interest are not void or
voidable solely by reason of such interest provided that one of the following
conditions is met: (a) such contract or transaction is approved by the
stockholders or by a majority of disinterested members of the board of directors
(under the NYBCL, if a quorum of the board is not present at such time, a
unanimous vote of the disinterested directors is required) or, in certain
circumstances, a committee thereof, if the material facts are disclosed (under
the NYBCL, in good faith) or known thereto, or (b) the contract or transaction
was fair (and, under the NYBCL, reasonable) to the corporation at the time it
was approved.
EXPERTS
The financial statements of Perkin-Elmer incorporated herein by reference to
its Annual Report on Form 10-K for the fiscal year ended June 30, 1997, have
been audited by Price Waterhouse LLP, independent accountants for Perkin-Elmer,
and have been so incorporated in reliance on the report of Price Waterhouse LLP
set forth therein, given on the authority of such firm as experts in accounting
and auditing.
The consolidated balance sheets of PerSeptive as of September 28, 1996 and
1995 and the consolidated statements of income, retained earnings, and cash
flows of PerSeptive for each of the two years in the period ended September 28,
1996 incorporated by reference in this Proxy Statement/Prospectus, have been
incorporated herein in reliance on the report of Coopers & Lybrand L.L.P.,
independent public accountants, given on the authority of such firm as experts
in accounting and auditing.
The consolidated statements of operations, of changes in stockholders'
equity and of cash flows of PerSeptive for the fiscal year ended September 30,
1994 incorporated herein by reference to its Annual Report on Form 10-K for the
fiscal year ended September 30, 1996, have been so incorporated in reliance on
the report of Price Waterhouse LLP, independent accountants, given on the
authority of said firm as experts in accounting and auditing.
Representatives of Coopers & Lybrand L.L.P. are expected to be present at
the Special Meeting, will have the opportunity to make a statement at the
Special Meeting if they desire to do so and are expected to be available to
respond to appropriate questions.
LEGAL OPINIONS
The legality of the shares of Perkin-Elmer Common Stock to be issued to
holders of shares of PerSeptive Common Stock pursuant to the Merger will be
passed upon for Perkin-Elmer by Simpson Thacher & Bartlett (a partnership which
includes professional corporations), New York, New York.
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Certain federal income tax matters related to the Merger will be passed upon
for Perkin-Elmer by Simpson Thacher & Bartlett (a partnership which includes
professional corporations), New York, New York, and for PerSeptive by Testa,
Hurwitz & Thibeault, LLP, Boston, Massachusetts. Certain partners of Testa,
Hurwitz & Thibeault, LLP beneficially own, in the aggregate, 8,734 shares of
PerSeptive Common Stock.
STOCKHOLDER PROPOSALS
Proposals of stockholders intended to be presented at the 1998 Annual
Meeting of Stockholders of PerSeptive must be received no later than the close
of business on January 5, 1998 at PerSeptive's principal executive offices in
order to be included in PerSeptive's proxy statement for that meeting. Any such
proposal must comply with the rules and regulations of the Commission. The
PerSeptive By-Laws provide that in order for a stockholder of PerSeptive to
bring business before, or propose director nominations at, an annual meeting,
the stockholder must give written notice to the Secretary of PerSeptive no less
than 60 days nor more than 90 days prior to the first anniversary of the
preceding year's annual meeting; PROVIDED, HOWEVER, that, in the event that the
date of the annual meeting is more than 30 days before or more than 60 days
after such anniversary, notice by the stockholder to be timely must be delivered
not earlier than the close of business on the ninetieth day prior to such annual
meeting and not later than the close of business on the later of the sixtieth
day prior to such annual meeting or the tenth day following the day on which
public announcement of the date of such meeting is first made by PerSeptive. The
notice must contain specified information about the proposed business or each
nominee and the stockholder making the proposal or nomination.
65
<PAGE>
THE PERKIN-ELMER CORPORATION
AND
PERSEPTIVE BIOSYSTEMS, INC.
ANNEXES TO THE PROXY
STATEMENT/PROSPECTUS
I. AGREEMENT AND PLAN OF MERGER
II. STOCK OPTION AGREEMENT
III. OPINION OF PAINEWEBBER INCORPORATED
<PAGE>
ANNEX I
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AGREEMENT AND PLAN OF MERGER
DATED AS OF AUGUST 23, 1997
AMONG
THE PERKIN-ELMER CORPORATION
SEVEN ACQUISITION CORP.
AND
PERSEPTIVE BIOSYSTEMS, INC.
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- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
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<S> <C>
ARTICLE I
THE MERGER 2
SECTION 1.01. The Merger................................................................................... 2
SECTION 1.02. Closing...................................................................................... 2
SECTION 1.03. Effective Time of the Merger................................................................. 2
SECTION 1.04. Effects of the Merger........................................................................ 2
SECTION 1.05. Certificate of Incorporation; By-Laws; Purposes.............................................. 2
SECTION 1.06. Directors.................................................................................... 2
SECTION 1.07. Officers..................................................................................... 2
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS 2
SECTION 2.01. Effect on Capital Stock...................................................................... 2
SECTION 2.02. Exchange of Certificates..................................................................... 3
SECTION 2.03. Treatment of Options......................................................................... 5
SECTION 2.04. Treatment of Debt Securities, Convertible Notes and Warrants................................. 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES 7
SECTION 3.01. Representations and Warranties of the Company................................................ 7
SECTION 3.02. Representations and Warranties of Parent and Sub............................................. 17
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS PRIOR TO MERGER 21
SECTION 4.01. Conduct of Business.......................................................................... 21
ARTICLE V
ADDITIONAL AGREEMENTS 25
SECTION 5.01. Preparation of Form S-4 and Proxy Statement; Stockholder Meeting............................. 25
SECTION 5.02. Access to Information; Confidentiality....................................................... 25
SECTION 5.03. Reasonable Best Efforts...................................................................... 26
SECTION 5.04. Indemnification.............................................................................. 26
SECTION 5.05. Public Announcements......................................................................... 27
SECTION 5.06. Affiliates................................................................................... 27
SECTION 5.07. No Solicitation.............................................................................. 27
SECTION 5.08. Benefit Matters.............................................................................. 28
SECTION 5.09. Stock Exchange Listing....................................................................... 29
SECTION 5.10. Letters of the Company's Accountants......................................................... 29
SECTION 5.11. Letters of Parent's Accountants.............................................................. 29
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ARTICLE VI
CONDITIONS PRECEDENT 29
SECTION 6.01. Conditions to Each Party's Obligation To Effect the Merger................................... 29
SECTION 6.02. Conditions to Obligations of Parent and Sub.................................................. 30
SECTION 6.03. Conditions to Obligation of the Company...................................................... 31
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER 31
SECTION 7.01. Termination.................................................................................. 31
SECTION 7.02. Effect of Termination........................................................................ 32
SECTION 7.03. Amendment.................................................................................... 32
SECTION 7.04. Extension; Waiver............................................................................ 32
SECTION 7.05. Procedure for Termination, Amendment, Extension or Waiver.................................... 32
ARTICLE VIII
GENERAL PROVISIONS 33
SECTION 8.01. Nonsurvival of Representations and Warranties................................................ 33
SECTION 8.02. Fees and Expenses............................................................................ 33
SECTION 8.03. Notices...................................................................................... 33
SECTION 8.04. Definitions.................................................................................. 34
SECTION 8.05. Interpretation............................................................................... 36
SECTION 8.06. Counterparts................................................................................. 36
SECTION 8.07. Entire Agreement; No Third-Party Beneficiaries............................................... 36
SECTION 8.08. Governing Law................................................................................ 36
SECTION 8.09. Assignment................................................................................... 36
SECTION 8.10. Enforcement.................................................................................. 36
SCHEDULES [omitted]
Company Disclosure Schedule
Parent Disclosure Schedule
</TABLE>
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EXHIBITS [omitted]
Exhibit A Stock Option Agreement
Exhibit B-1 Form of Company Affiliate Letter
Exhibit B-2 Form of Parent Affiliate Letter
</TABLE>
ii
<PAGE>
AGREEMENT AND PLAN OF MERGER, dated as of August 23, 1997, among The
Perkin-Elmer Corporation, a New York Corporation ("PARENT"), Seven Acquisition
Corp., a Delaware corporation and a direct wholly owned subsidiary of Parent
("SUB"), and PerSeptive Biosystems, Inc., a Delaware corporation (the
"COMPANY").
WHEREAS, the respective Boards of Directors of Parent, Sub and the Company
have determined that the merger of Sub with and into the Company (the "MERGER"),
upon the terms and subject to the conditions set forth in this Agreement, would
be fair and in the best interests of their respective stockholders;
WHEREAS, such Boards of Directors have approved the Merger, pursuant to
which each share of common stock, par value $.01 per share, of the Company (the
"COMPANY COMMON STOCK", which term also refers to and includes, unless the
context otherwise requires, the associated Rights (as defined in Section 8.04))
issued and outstanding immediately prior to the Effective Time of the Merger (as
defined in Section 1.03), other than shares owned, directly or indirectly, by
the Company or any subsidiary (as defined in Section 8.04) of the Company or by
Parent, Sub or any subsidiary of Parent, will be converted into the right to
receive the Merger Consideration (as defined in Section 2.01(c));
WHEREAS, the Merger and this Agreement require the vote of the holders of a
majority of the outstanding shares of the Company Common Stock for the approval
thereof (the "COMPANY STOCKHOLDER APPROVAL");
WHEREAS, concurrently with the execution and delivery of this Agreement and
as a condition of and inducement to Parent's willingness to enter into this
Agreement, Parent and the Company are entering into a stock option agreement,
dated as of the date hereof, in the Form of Exhibit A hereto (the "STOCK OPTION
AGREEMENT"), pursuant to which the Company is granting Parent an option to
purchase shares of Company Common Stock;
WHEREAS, Parent, Sub and the Company desire to make certain representations,
warranties, covenants and agreements in connection with the Merger and also to
prescribe various conditions to the Merger;
WHEREAS, for federal income tax purposes, it is intended that the Merger
shall qualify as a reorganization under the provisions of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "CODE"); and
WHEREAS, for accounting purposes, it is intended that the Merger shall be
accounted for as a "pooling of interests";
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement and the Stock Option
Agreement, the parties agree as follows:
A-I-1
<PAGE>
ARTICLE I
THE MERGER
SECTION 1.01. THE MERGER. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the Delaware General Corporation
Law (the "DGCL"), Sub shall be merged with and into the Company at the Effective
Time of the Merger. Upon the Effective Time of the Merger, the separate
existence of Sub shall cease, and the Company shall continue as the surviving
corporation.
SECTION 1.02. CLOSING. Unless this Agreement shall have been terminated and
the transactions herein contemplated shall have been abandoned pursuant to
Section 7.01, and subject to the satisfaction or waiver of the conditions set
forth in Article VI, the closing of the Merger (the "CLOSING") will take place
at 10:00 a.m. on the second business day after satisfaction of the conditions
set forth in Section 6.01 (or as soon as practicable thereafter following
satisfaction or waiver of the conditions set forth in Sections 6.02 and 6.03)
(the "CLOSING DATE"), at the offices of Simpson Thacher & Bartlett, 425
Lexington Avenue, New York, New York 10017, unless another date, time or place
is agreed to in writing by the parties hereto.
SECTION 1.03. EFFECTIVE TIME OF THE MERGER. Upon the Closing, the parties
shall file with the Secretary of State of the State of Delaware a certificate of
merger (the "CERTIFICATE OF MERGER") executed in accordance with the relevant
provisions of the DGCL and shall make all other filings or recordings required
under the DGCL. The Merger shall become effective at such time as the
Certificate of Merger is duly filed with the Secretary of State of the State of
Delaware, or at such other time as is permissible in accordance with the DGCL
and as Sub and the Company shall agree should be specified in the Certificate of
Merger (the time the Merger becomes effective being the "EFFECTIVE TIME OF THE
MERGER").
SECTION 1.04. EFFECTS OF THE MERGER. The Merger shall have the effects set
forth in the applicable provisions of the DGCL. As used herein, "SURVIVING
CORPORATION" shall mean and refer to the Company, at and after the Effective
Time of the Merger, as the surviving corporation in the Merger.
SECTION 1.05. CERTIFICATE OF INCORPORATION; BY-LAWS; PURPOSES. (a) At the
Effective Time of the Merger, and without any further action on the part of the
Company or Sub, the certificate of incorporation of Sub as in effect at the
Effective Time of the Merger, shall be the certificate of incorporation of the
Surviving Corporation until thereafter amended as provided therein or by
applicable law.
(b) At the Effective Time of the Merger, and without any further action on
the part of the Company or Sub, the By-laws of Sub as in effect at the Effective
Time of the Merger shall be the By-laws of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable law.
SECTION 1.06. DIRECTORS. The directors of Sub at the Effective Time of the
Merger shall be the directors of the Surviving Corporation, until the earlier of
their resignation or removal or until their respective successors are duly
elected and qualified, as the case may be.
SECTION 1.07. OFFICERS. The officers of the Company at the Effective Time of
the Merger shall be the officers of the Surviving Corporation, until the earlier
of their resignation or removal or until their respective successors are duly
elected or appointed and qualified, as the case may be.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS
SECTION 2.01. EFFECT ON CAPITAL STOCK. As of the Effective Time of the
Merger, by virtue of the Merger and without any action on the part of the
Company, Sub or any holder of any shares of Company Common Stock or any shares
of capital stock of Sub:
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(a) COMMON STOCK OF SUB. Each share of common stock of Sub issued and
outstanding immediately prior to the Effective Time of the Merger shall be
converted into one share of the common stock, par value $.01 per share, of the
Surviving Corporation.
(b) CANCELLATION OF TREASURY STOCK AND PARENT-OWNED COMPANY COMMON
STOCK. Each share of Company Common Stock and each share of preferred stock, par
value $.01 per share, of the Company ("COMPANY PREFERRED STOCK") that is owned
by the Company or by any subsidiary of the Company, and each share of Company
Common Stock and Company Preferred Stock that is owned by Parent, Sub or any
other subsidiary of Parent shall automatically be cancelled and retired and
shall cease to exist, and no cash, Parent Common Stock (as defined in Section
2.01(c)) or other consideration shall be delivered or deliverable in exchange
therefor.
(c) CONVERSION OF COMPANY COMMON STOCK. Subject to Section 2.02(e) each
issued and outstanding share of Company Common Stock (other than shares
cancelled pursuant to Section 2.01(b)) shall be converted into a fraction equal
to the Exchange Ratio (as defined in Section 8.04) of a share of Common Stock,
par value $1.00 per share, of Parent (the "PARENT COMMON STOCK") (the amount of
Parent Common Stock into which each such share of Company Common Stock is
converted being referred to herein as the "MERGER CONSIDERATION").
(d) CONVERSION OF SERIES A PREFERRED STOCK. Immediately prior to the
Effective Time of the Merger, pursuant to Section 3(b) of the Certificate of
Designations with respect to the Series A Redeemable Convertible Preferred
Stock, $.01 par value per share, of the Company (the "SERIES A PREFERRED
STOCK"), each issued and outstanding share of Series A Preferred Stock shall be
converted into that number of shares of Company Common Stock determined by
dividing $10,000 by the average Closing Price (as defined in Section 7 of such
Certificate of Designations) of such Company Common Stock for each of the ten
trading days ending on the fifth business day immediately prior to the Effective
Time of the Merger, and pursuant to Section 2.01(c) hereof, each such share of
Company Common Stock issued upon such conversion shall be converted in the
Merger into the Merger Consideration (and cash in lieu of fractional shares of
Parent Common Stock).
(e) CANCELLATION AND RETIREMENT OF COMPANY COMMON STOCK. As of the Effective
Time of the Merger, all shares of Company Common Stock (including shares of
Company Common Stock issued upon conversion of the Series A Preferred Stock)
issued and outstanding immediately prior to the Effective Time of the Merger
shall no longer be outstanding and shall automatically be cancelled and retired
and shall cease to exist, and each holder of a certificate representing any such
shares of Company Common Stock or any such shares of Series A Preferred Stock so
converted (collectively, the "CERTIFICATES") shall, to the extent such
Certificate represents such shares, cease to have any rights with respect
thereto, except the right to receive the Merger Consideration (and cash in lieu
of fractional shares of Parent Common Stock) to be issued or paid in
consideration therefor upon surrender of such certificate in accordance with
Section 2.02.
SECTION 2.02. EXCHANGE OF CERTIFICATES. (a) EXCHANGE AGENT. As of or as soon
as reasonably practicable after the Effective Time of the Merger, Parent shall
enter into an agreement with such bank or trust company as may be designated by
Parent (the "EXCHANGE AGENT") which shall provide that Parent shall deposit with
the Exchange Agent, for the benefit of the holders of Certificates, for exchange
in accordance with this Article II, certificates representing the shares of
Parent Common Stock (such shares of Parent Common Stock, together with any
dividends or distributions with respect thereto with a record date after the
Effective Time of the Merger, and any cash payable in lieu of any fractional
shares of Parent Common Stock being hereinafter referred to as the "EXCHANGE
FUND") issuable pursuant to Section 2.01 in exchange for outstanding shares of
Company Common Stock.
(b) EXCHANGE PROCEDURES. As soon as reasonably practicable after the
Effective Time of the Merger, the Exchange Agent shall mail to each holder of
record of Certificates immediately prior to the Effective Time of the Merger
whose shares were converted into shares of Parent Common Stock pursuant to
Section
A-I-3
<PAGE>
2.01, (i) a letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Exchange Agent, and which shall be in such
form and have such other provisions as Parent may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in exchange
for certificates representing shares of Parent Common Stock. Upon surrender of a
Certificate for cancellation to the Exchange Agent together with such letter of
transmittal, duly executed, the holder of such Certificate shall be entitled to
receive in exchange therefor a certificate representing that number of whole
shares of Parent Common Stock which such holder has the right to receive in
respect of the Certificate surrendered pursuant to the provisions of this
Article II (after taking into account all shares of Company Common Stock
(including Company Common Stock issued upon conversion of Series A Preferred
Stock) then held by such holder), and the Certificate so surrendered shall
forthwith be cancelled. In the event of a transfer of ownership of shares of
Company Common Stock or Series A Preferred Stock which is not registered in the
transfer records of the Company, a certificate representing the proper number of
shares of Parent Common Stock may be issued to a transferee if the Certificate
is presented to the Exchange Agent, accompanied by all documents required to
evidence and effect such transfer and by evidence that any applicable stock
transfer taxes have been paid. Until surrendered as contemplated by this Section
2.02 each Certificate shall be deemed at any time after the Effective Time of
the Merger to represent only the Parent Common Stock into which the shares of
Company Common Stock (including Company Common Stock issued upon conversion of
Series A Preferred Stock) represented by such Certificate have been converted as
provided in this Article II and the right to receive upon such surrender cash in
lieu of any fractional shares of Parent Common Stock as contemplated by this
Section 2.02.
(c) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No dividends or other
distributions with respect to Parent Common Stock with a record date after the
Effective Time of the Merger shall be paid to the holder of any unsurrendered
Certificate with respect to the shares of Parent Common Stock represented
thereby, and no cash payment in lieu of fractional shares shall be paid to any
such holder pursuant to Section 2.02(e) until the surrender of such certificate
in accordance with this Article II. Subject to the effect of applicable laws,
following surrender of any such Certificate, there shall be paid to the holder
of the certificate representing whole shares of Parent Common Stock issued in
exchange therefor without interest, (i) at the time of such surrender, the
amount of any cash payable in lieu of a fractional share of Parent Common Stock
to which such holder is entitled pursuant to Section 2.02(e) and the amount of
any dividends or other distributions with a record date after the Effective Time
of the Merger theretofore paid (but withheld pursuant to the immediately
preceding sentence) with respect to such whole shares of Parent Common Stock,
and (ii) at the appropriate payment date, the amount of any dividends or other
distributions with a record date after the Effective Time of the Merger but
prior to such surrender and a payment date subsequent to such surrender payable
with respect to such whole shares of Parent Common Stock.
(d) NO FURTHER OWNERSHIP RIGHTS IN COMPANY COMMON STOCK OR SERIES A
PREFERRED STOCK. All shares of Parent Common Stock issued upon conversion of
shares of Company Common Stock (including shares of Company Common Stock issued
upon conversion of Series A Preferred Stock) in accordance with the terms
hereof, and all cash paid pursuant to Sections 2.02(c) and 2.02(e), shall be
deemed to have been issued in full satisfaction of all rights pertaining to such
shares of Company Common Stock (including with respect to the Rights), and there
shall be no further registration of transfers on the stock transfer books of the
Surviving Corporation of the shares of Company Common Stock or Series A
Preferred Stock which were outstanding prior to the Effective Time of the
Merger. If, after the Effective Time of the Merger, Certificates are presented
to the Surviving Corporation for any reason, they shall be cancelled and
exchanged as provided in this Article II.
(e) NO FRACTIONAL SHARES. (i) No certificates or scrip representing
fractional shares of Parent Common Stock shall be issued upon the surrender for
exchange of Certificates, and such fractional share interests will not entitle
the owner thereof to vote or to any rights of a stockholder of Parent. In lieu
of such issuance
A-I-4
<PAGE>
of fractional shares, Parent shall pay each holder of Certificates an amount in
cash equal to the product obtained by multiplying (a) the fractional share
interest to which such holder (after taking into account all shares of Company
Common Stock (including Company Common Stock issued upon conversion of Series A
Preferred Stock) held immediately prior to the Effective Time of the Merger by
such holder) would otherwise be entitled by (b) the average of the closing sale
prices for a share of Parent Common Stock on the New York Stock Exchange
("NYSE") Composite Transaction Tape for the ten trading days immediately
preceding the Effective Time of the Merger.
(ii) As soon as practicable after the determination of the amount of
cash, if any, to be paid to holders of Certificates with respect to any
fractional share interests, the Exchange Agent shall make available such
amounts to such holders of Certificates, subject to and in accordance with
the terms of Section 2.02(c).
(f) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange Fund deposited
with the Exchange Agent pursuant to this Section 2.02 which remains
undistributed to the holders of the Certificates for six months after the
Effective Time of the Merger shall be delivered to the Parent, upon demand, and
any holders of Certificates prior to the Merger who have not theretofore
complied with this Article II shall thereafter look only to the Parent and only
as general creditors thereof for payment of their claim for Parent Common Stock,
cash in lieu of fractional shares of Parent Common Stock and any dividends or
distributions with respect to Parent Common Stock to which such holders may be
entitled.
(g) NO LIABILITY. None of Parent, Sub, the Company or the Exchange Agent
shall be liable to any person in respect of any shares of Parent Common Stock
(or dividends or distributions with respect thereto) or cash from the Exchange
Fund delivered to a public official pursuant to any applicable abandoned
property, escheat or similar law. If any Certificates shall not have been
surrendered prior to three years after the Effective Time of the Merger, or
immediately prior to such earlier date on which any Merger Consideration, any
cash in lieu of fractional shares of Parent Common Stock or any dividends or
distributions with respect to Parent Common Stock would otherwise escheat to or
become the property of any Governmental Entity (as defined in Section 3.01(d)),
any such Merger Consideration or cash shall, to the extent permitted by
applicable law, become the property of the Surviving Corporation, free and clear
of all claims or interest of any person previously entitled thereto.
(h) INVESTMENT OF EXCHANGE FUND. The Exchange Agent shall invest any cash
included in the Exchange Fund, as directed by Parent on a daily basis. Any
interest and other income resulting from such investments shall be paid to
Parent.
SECTION 2.03. TREATMENT OF OPTIONS. (a) At the Effective Time of the Merger,
each outstanding option to purchase Company Common Stock (a "COMPANY STOCK
OPTION") issued pursuant to the Company's 1989 Stock Plan, 1992 Non-Employee
Director Stock Option Plan, 1992 Stock Plan and 1997 Non-Qualified Stock Plan
(collectively, the "COMPANY STOCK PLANS"), whether vested or unvested, shall be
deemed to constitute an option to acquire, on the same terms and conditions as
were applicable under such Company Stock Option (each such Company Stock Option,
other than certain Company Stock Options under the 1992 Non-Employee Director
Stock Option Plan, being fully vested and exercisable as of the Effective Time
of the Merger, in accordance with its terms), the same number of shares of
Parent Common Stock as the holder of such Company Stock Option would have been
entitled to receive pursuant to the Merger had such holder exercised such option
in full immediately prior to the Effective Time of the Merger, at a price per
share equal to (y) the aggregate exercise price for the shares of Company Common
Stock otherwise purchasable pursuant to such Company Stock Option divided by (z)
the number of full shares of Parent Common Stock deemed purchasable pursuant to
such Company Stock Option; PROVIDED, HOWEVER, that in the case of any option to
which Section 421 of the Code applies by reason of its qualification under
Section 422 of the Code ("INCENTIVE STOCK OPTIONS"), the option price, the
number of shares purchasable pursuant to such option and the terms and
conditions of exercise of such option shall be determined in order to comply
with Section 424(a) of the Code.
A-I-5
<PAGE>
(b) As soon as practicable after the Effective Time of the Merger, Parent
shall deliver to the holders of Company Stock Options appropriate notices
setting forth such holders' rights pursuant to the Company Stock Plans and the
agreements evidencing the grants of such Company Stock Options shall continue in
effect on the same terms and conditions (subject to adjustments required by this
Section 2.03 after giving effect to the Merger and the provisions set forth
above and until otherwise determined). If necessary, Parent shall comply with
the terms of the Company Stock Plans and ensure, to the extent required by, and
subject to the provisions of, the Company Stock Plans, that Company Stock
Options that qualified as incentive stock options prior to the Effective Time of
the Merger continue to qualify as incentive stock options after the Effective
Time of the Merger.
(c) Parent shall take all corporate action necessary to reserve for issuance
a sufficient number of shares of Parent Common Stock for delivery upon exercise
of Company Stock Options. As soon as practicable after the Effective Time of the
Merger, Parent shall file a registration statement on Form S-3 or Form S-8, as
the case may be (or any successor or other appropriate forms), or another
appropriate form, with respect to the shares of Parent Common Stock subject to
such options and shall use its reasonable best efforts to maintain the
effectiveness of such registration statement or registration statements (and
maintain the current status of the prospectus or prospectuses contained therein)
for so long as such options remain outstanding. With respect to those
individuals who subsequent to the Merger will be subject to the reporting
requirements under Section 16(a) of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), where applicable, Parent shall administer the
Company Stock Plan in a manner that complies with Rule 16b-3 promulgated under
the Exchange Act to the extent the Company Stock Plans complied with such rule
prior to the Merger.
SECTION 2.04. TREATMENT OF DEBT SECURITIES, CONVERTIBLE NOTES AND
WARRANTS. (a) All debt securities of the Company which are outstanding as of the
Effective Time of the Merger shall remain outstanding after the Effective Time
of the Merger in accordance with their respective terms and provisions. Pursuant
to Section 4.12 of the Indenture, dated as of August 26, 1994 (the "CONVERTIBLE
NOTES INDENTURE"), between the Company and State Street Bank and Trust Company,
as trustee, relating to the Company's 8 1/4% Convertible Subordinated Notes (the
"CONVERTIBLE NOTES"), prior to the Effective Time of the Merger, the Company and
Parent shall enter into a supplemental indenture providing that each holder of
Convertible Notes outstanding at the Effective Time of the Merger shall have the
right to convert such Convertible Notes into the number of shares of Parent
Common Stock which would be receivable at the Effective Time of the Merger by a
holder of the number of shares of Company Common Stock deliverable upon
conversion of such Convertible Notes immediately prior to the Effective Time of
the Merger, and subject to future adjustments of the conversion price of the
Convertible Notes as provided for in Article IV of the Convertible Notes
Indenture.
(b) At the Effective Time of the Merger, each Warrant (as defined in Section
3.01(c)) which is outstanding and unexercised immediately prior thereto shall,
pursuant to the terms of such Warrant, cease to represent a right to acquire
shares of Company Common Stock and shall be converted automatically into a
warrant to purchase such number of shares of Parent Common Stock as the holder
of such Warrant would have been entitled to receive pursuant to the Merger had
such holder exercised such warrant in full immediately prior to the Effective
Time of the Merger, at a price per share equal to (y) the aggregate exercise
price for the shares of Company Common Stock otherwise purchasable pursuant to
such Warrant divided by (z) the number of full shares of Parent Common Stock
deemed purchasable pursuant to such Warrant, and subject to future adjustments
in accordance with the terms of such Warrant. Notwithstanding the foregoing, in
the case of the Class F Warrants, Parent shall issue a new warrant certificate
in exchange for the old warrant certificate.
(c) As soon as practicable after the Effective Time of the Merger, Parent
shall deliver to the holders of Convertible Notes and Warrants appropriate
notices setting forth such holders' rights pursuant to the Convertible Notes
Indenture and the applicable warrant agreements with respect thereto to the
extent
A-I-6
<PAGE>
required by the terms of the Convertible Notes Indenture and the warrant
agreements with respect thereto.
(d) Parent shall take all corporate action necessary to reserve for issuance
a sufficient number of shares of Parent Common Stock for delivery upon
conversion of the Convertible Notes and exercise of the Warrants. As soon as
practicable after the Effective Time of the Merger, Parent shall file a
registration statement or registration statements on Form S-3 (or any successor
or other appropriate form), with respect to the shares of Parent Common Stock
issuable upon exercise of the Warrants and shall use its reasonable best efforts
to maintain the effectiveness of such registration statement or registration
statements (and maintain the current status of the prospectus or prospectuses
contained therein) for so long as the Warrants remain outstanding.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to Parent and Sub as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Each of the Company and each
of its Subsidiaries (as defined in Section 3.01(b)) is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
organized and has the requisite corporate power and authority to carry on its
business as now being conducted. Each of the Company and each of its
Subsidiaries is duly qualified or licensed to do business and is in good
standing in each jurisdiction (domestic or foreign) in which the nature of its
business or the ownership or leasing of its properties makes such qualification
or licensing necessary, other than in such jurisdictions where the failure to be
so qualified or licensed (individually or in the aggregate) could not reasonably
be expected to have a Material Adverse Effect (as defined in Section 8.04) with
respect to the Company. Attached as Section 3.01(a) of the disclosure schedule
delivered by the Company to Parent and Sub at the time of execution of this
Agreement (the "COMPANY DISCLOSURE SCHEDULE") are complete and correct copies of
the Company's Amended and Restated Certificate of Incorporation, as amended (the
"CERTIFICATE OF INCORPORATION"), and the Company's Amended and Restated By-laws,
as amended (the "BY-LAWS"), as currently in effect. The Company has made
available to Parent and Sub complete and correct copies of the certificates of
incorporation and by-laws (or other organizational documents) of each of its
Subsidiaries, in each case as amended to the date of this Agreement.
(b) SUBSIDIARIES. The only direct or indirect subsidiaries (as defined in
Section 8.04) of the Company (other than any subsidiary of the Company that does
not constitute a "Significant Subsidiary" within the meaning of Rule 1-02 of
Regulation S-X of the Securities and Exchange Commission (the "SEC")) are those
listed in Section 3.01(b) of the Company Disclosure Schedule (the
"SUBSIDIARIES"). All of the outstanding shares of capital stock of each
subsidiary of the Company have been validly issued and are fully paid and
nonassessable and, except as disclosed in Section 3.01(b) of the Company
Disclosure Schedule, are owned (of record and beneficially) by the Company, by
another wholly owned subsidiary of the Company or by the Company and another
such wholly owned subsidiary, free and clear of all pledges, claims, liens,
charges, encumbrances and security interests of any kind or nature whatsoever
(collectively, "LIENS"). Except for the ownership interests set forth in Section
3.01(b) of the Company Disclosure Schedule, the Company does not own, directly
or indirectly, any capital stock or other ownership interest in any corporation,
partnership, business association, joint venture or other entity.
(c) CAPITAL STRUCTURE. The authorized capital stock of the Company consists
of 100,000,000 shares of Company Common Stock, par value $.01 per share, and
1,000,000 shares of Company Preferred Stock, par value $.01 per share. As of the
close of business on August 18, 1997, there were: (i) 22,504,061 shares of
Company Common Stock issued and outstanding (after giving effect to the issuance
of the 1,019,108 shares issued on August 22, 1997 in connection with the
redemption on August 22, 1997 of 1,000 shares of Series A Preferred Stock on
August 22, 1997); (ii) 28,774 shares of Company Common Stock held in the
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treasury of the Company; (iii) 123,690 shares of Company Common Stock reserved
for issuance upon exercise of Company Stock Options available for grant pursuant
to the Company Stock Plans (adjusted for 28,800 Company Stock Options granted
and an increase in the number of shares reserved for issuance under the 1997
Non-Qualified Stock Option Plan by 300,000 on August 21, 1997), and no shares of
Company Common Stock reserved for issuance pursuant to the Company Stock Plans
(other than upon exercise of Company Stock Options); (iv) 4,921,214 shares of
Company Common Stock issuable upon exercise of awarded but unexercised Company
Stock Options, with an exercise price per each awarded but unexercised Company
Stock Option as is set forth in Section 3.01(c)(iv) of the Company Disclosure
Schedule (after giving effect to the grant of 28,800 Company Stock Options
granted on August 21, 1997); (v) 59,039 shares of Company Common Stock reserved
for issuance pursuant to the Company's 1992 Employee Stock Purchase Plan (the
"STOCK PURCHASE PLAN"); (vi) 941,107 shares of Company Common Stock issuable
upon exercise of currently outstanding warrants to purchase Company Common
Stock, as more particularly described in Section 3.01(c)(vi) of the Company
Disclosure Schedule (the "WARRANTS") and with an exercise price for each such
Warrant as is set forth in such Section of the Company Disclosure Schedule;
(vii) 1,973,183 shares of Company Common Stock issuable upon conversion of the
Convertible Notes; (viii) 1,000 shares of Series A Preferred Stock issued and
outstanding (after giving effect to the redemption of 1,000 shares of Series A
Preferred Stock on August 22, 1997); (ix) no shares of Series B Junior
Participating Preferred Stock, par value $.01 per share, of the Company (the
"SERIES B PREFERRED STOCK") issued and outstanding; (x) 400,000 shares of Series
B Preferred Stock reserved for issuance pursuant to the Rights Agreement, dated
as of March 1, 1995 (as amended, the "RIGHTS AGREEMENT"), and (xi) no shares of
Company Preferred Stock in the treasury of the Company. Except as set forth
above, and except for shares of Company Common Stock issuable pursuant to the
Rights Agreement between the Company and American Stock Transfer and Trust
Company, as of the close of business on August 18, 1997, there were no shares of
capital stock or other equity securities of the Company issued, reserved for
issuance or outstanding. All outstanding shares of capital stock of the Company
are, and all shares which may be issued pursuant to the Company Stock Plans and
the Warrants will be, when issued, duly authorized, validly issued, fully paid
and nonassessable and not subject to preemptive rights. All securities issued by
the Company were issued in compliance in all material respects with all
applicable federal and state securities laws and all applicable rules and
regulations promulgated thereunder. Except for $27,230,000 principal amount of
Convertible Notes, there are no outstanding bonds, debentures, notes or other
indebtedness or debt securities of the Company having the right to vote (or
convertible into, or exchangeable for, securities having the right to vote) on
any matters on which stockholders of the Company may vote (collectively, "VOTING
DEBT"). Except as set forth above and except pursuant to the Stock Option
Agreement, there are no outstanding securities, options, warrants, calls,
rights, commitments, agreements, arrangements or undertakings of any kind to
which the Company or any of its subsidiaries is a party or by which any of them
is bound obligating the Company or any of its subsidiaries to issue, deliver or
sell, or cause to be issued, delivered or sold, additional shares of capital
stock or other equity or voting securities of the Company or of any of its
subsidiaries or obligating the Company or any of its subsidiaries to issue,
grant, extend or enter into any such security, option, warrant, call, right,
commitment, agreement, arrangement or undertaking. Other than the Stock Option
Agreement and except as disclosed in Section 3.01(c) of the Company Disclosure
Schedule, (i) there are no outstanding contractual obligations, commitments,
understandings or arrangements of the Company or any of its subsidiaries to
repurchase, redeem or otherwise acquire or make any payment in respect of any
shares of capital stock of the Company or any of its subsidiaries and (ii) to
the knowledge of the Company, there are no irrevocable proxies with respect to
shares of capital stock of the Company or any subsidiary of the Company. Except
as set forth in Section 3.01(c) of the Company Disclosure Schedule, there are no
agreements or arrangements pursuant to which the Company is or could be required
to register shares of Company Common Stock or other securities under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), or other agreements
or arrangements with or, to the knowledge of the Company, among any
securityholders of the Company with respect to securities of the Company.
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Since August 18, 1997, the Company has not (A) issued or permitted to be
issued any shares of capital stock, or securities exercisable for or convertible
into shares of capital stock, of the Company or any of its subsidiaries, other
than (1) pursuant to the Stock Option Agreement, (2) the grant of any employee
stock options prior to the date of this Agreement pursuant to the Company Stock
Plans, (3) the issuance of Company Common Stock upon exercise of the options
granted pursuant to the Company Stock Plans prior to the date of this Agreement
and (4) upon conversion or exercise of Convertible Notes, Warrants or Series A
Preferred Stock outstanding on the date of this Agreement; (B) repurchased,
redeemed or otherwise acquired, directly or indirectly through one or more
subsidiaries, any shares of capital stock of the Company or any of its
subsidiaries; or (C) declared, set aside, made or paid to the stockholders of
the Company dividends or other distributions on the outstanding shares of
capital stock of the Company.
The Company has terminated its Stock Purchase Plan effective as of the date
of this Agreement pursuant to Article 15 thereof; PROVIDED, HOWEVER, that such
termination shall not affect the options issued prior to the date of this
Agreement with respect to the Payment Period (as defined therein) ending
November 30, 1997.
(d) AUTHORITY; NONCONTRAVENTION. The Company has the requisite corporate
power and authority to enter into this Agreement and the Stock Option Agreement
and, subject to the Company Stockholder Approval in the case of this Agreement,
to consummate the transactions contemplated hereby and thereby. The execution
and delivery of this Agreement and the Stock Option Agreement by the Company and
the consummation by the Company of the transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate action on the part
of the Company, subject, in the case of this Agreement, to the Company
Stockholder Approval. This Agreement and the Stock Option Agreement have been
duly executed and delivered by the Company and (assuming due authorization,
execution and delivery by Parent and Sub) constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing. Except as set forth in Section 3.01(d) of the Company
Disclosure Schedule, the execution and delivery of this Agreement and the Stock
Option Agreement do not, and the consummation by the Company of the transactions
contemplated by this Agreement and the Stock Option Agreement and compliance by
the Company with the provisions hereof and thereof will not, conflict with, or
result in any breach or violation of, or any default (with or without notice or
lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of, or a "put" right with respect to any obligation
under, or to a loss of a material benefit under, or result in the creation of
any Lien upon any of the properties or assets of the Company or any of its
subsidiaries under, (i) the Certificate of Incorporation or By-laws or the
comparable charter or organizational documents of any of its subsidiaries, (ii)
any loan or credit agreement, note, note purchase agreement, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise
or license applicable to the Company or any of its subsidiaries or their
respective properties or assets or (iii) subject to the governmental filings and
other matters referred to in the following sentence, any judgment, order,
decree, statute, law, ordinance, rule, regulation or arbitration award
applicable to the Company or any of its subsidiaries or their respective
properties or assets, other than, in the case of clauses (ii) and (iii), any
such conflicts, breaches, violations, defaults, rights, losses or Liens that
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect with respect to the Company or prevent or materially
delay the ability of the Company to consummate the transactions contemplated by
this Agreement or to perform its obligations under the Stock Option Agreement.
No consent, approval, order or authorization of, or registration, declaration or
filing with, or notice to, any federal, state or local government or any court,
administrative agency or commission or other governmental authority or agency,
domestic or foreign (a "GOVERNMENTAL ENTITY"), is required by or with respect to
the Company or any of its subsidiaries in connection with the execution and
delivery of this Agreement and the Stock Option Agreement by the Company or the
consummation by the Company of the transactions contemplated
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hereby and thereby or the performance by the Company of its obligations
hereunder or thereunder, except for (i) the filing of a premerger notification
and report form by the Company under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR ACT"), and the filing of such
applications by the Company as may be required pursuant to antitrust or similar
laws or regulations in effect in Germany, France, Japan, the United Kingdom or
any political subdivision thereof, (ii) the filing with the SEC and the National
Association of Securities Dealers (the "NASD") of (A) a proxy statement relating
to the Company Stockholder Approval (such proxy statement as amended or
supplemented from time to time, the "PROXY STATEMENT") and (B) such reports
under the Exchange Act as may be required in connection with this Agreement and
the Stock Option Agreement and the transactions contemplated hereby and thereby,
(iii) the filing of the Certificate of Merger with the Secretary of State of the
State of Delaware and appropriate documents with the relevant authorities of
other states in which the Company is qualified to do business, and (iv) such
other consents, approvals, orders, authorizations, registrations, declarations,
filings or notices the failure of which to make or obtain, individually or in
the aggregate, could not reasonably be expected to (x) prevent or materially
delay consummation of the Merger or the other transactions contemplated hereby
or performance of the Company's obligations hereunder or under the Stock Option
Agreement or (y) have a Material Adverse Effect with respect to the Company.
(e) SEC DOCUMENTS; UNDISCLOSED LIABILITIES. The Company has filed with the
SEC all reports, schedules, forms, statements and other documents required
pursuant to the Securities Act and the Exchange Act since October 1, 1994
(collectively, and in each case including all exhibits and schedules thereto and
documents incorporated by reference therein, the "SEC DOCUMENTS"). As of their
respective dates, the SEC Documents complied as to form in all material respects
with the requirements of the Securities Act or the Exchange Act, as the case may
be, and the rules and regulations of the SEC promulgated thereunder applicable
to such SEC Documents. As of their respective dates, (i) none of the SEC
Documents (including any and all financial statements included therein) filed
pursuant to the Securities Act or any rule or regulation thereunder contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading and (ii) none of the SEC Documents (including any and all
financial statements included therein) filed pursuant to the Exchange Act or any
rule or regulation thereunder contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. Except to the extent that information
contained in any SEC Document has been revised or superseded by a later filed
SEC Document, none of the SEC Documents (including any and all financial
statements included therein) contains any untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The consolidated financial statements of
the Company included in all SEC Documents filed since October 1, 1994 (the "SEC
FINANCIAL STATEMENTS") comply as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto, have been prepared in accordance with generally
accepted accounting principles (except, in the case of unaudited consolidated
quarterly statements, as permitted by Form 10-Q of the SEC), applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto). The SEC Financial Statements fairly present the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates thereof and the consolidated results of their operations and cash flows
for the periods then ended (subject, in the case of unaudited quarterly
statements, to normal recurring audit adjustments). Except as disclosed in
Section 3.01(e) of the Company Disclosure Schedule, neither the Company nor any
of its subsidiaries has any liabilities or obligations of any nature (whether
accrued, absolute, contingent or otherwise) required by generally accepted
accounting principles to be recognized or disclosed on a consolidated balance
sheet of the Company and its subsidiaries or in the notes thereto, except (i)
liabilities reflected in the consolidated audited balance sheet of the Company
as of September 30, 1996 or the notes thereto (the "1996 BALANCE SHEET"), (ii)
liabilities disclosed in any SEC Document filed by the Company prior to the date
of this
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Agreement with respect to any period ending, or date occurring, after September
30, 1996 and (iii) liabilities incurred since September 30, 1996 in the ordinary
course of business consistent with past practice.
(f) INFORMATION SUPPLIED. None of the information supplied or to be supplied
by the Company for inclusion or incorporation by reference in (i) the
registration statement on Form S-4 to be filed with the SEC by Parent in
connection with the issuance of Parent Common Stock in the Merger (the "FORM
S-4") will, at the time the Form S-4 is filed with the SEC, at any time it is
amended or supplemented or at the time it becomes effective under the Securities
Act, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) the Proxy Statement will, at the date it is first
mailed to the Company's stockholders or at the time of the Stockholders Meeting
(as defined in Section 5.01(c)), 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, in the light of the circumstances under
which they are made, not misleading. The Proxy Statement will comply as to form
in all material respects with the requirements of the Exchange Act and the rules
and regulations promulgated thereunder, except that no representation is made by
the Company with respect to statements made or incorporated by reference therein
based on information supplied in writing by Parent or Sub specifically for
inclusion or incorporation by reference therein.
(g) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in Section
3.01(g) of the Company Disclosure Schedule or in the Recent SEC Documents (as
defined in Section 8.04), since September 30, 1996, the Company has conducted
its business only in the ordinary course consistent with past practice, and
there is not and has not been: (i) since September 30, 1996, any Material
Adverse Change (as defined in Section 8.04) with respect to the Company; (ii)
since September 30, 1996, any condition, event or occurrence which as of the
date of this Agreement, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect or give rise to a Material Adverse
Change with respect to the Company; (iii) since June 30, 1997, any action which,
if it had been taken or occurred after the execution of this Agreement, would
have required the consent of Parent pursuant to this Agreement; or (iv) since
September 30, 1996, any condition, event or occurrence which, individually or in
the aggregate, could reasonably be expected to prevent or materially delay the
ability of the Company to consummate the transactions contemplated by this
Agreement or perform its obligations hereunder.
(h) LITIGATION; LABOR MATTERS; COMPLIANCE WITH LAWS. (i) Except as disclosed
in Section 3.01(h)(i) of the Company Disclosure Schedule or in the Recent SEC
Documents, there is (1) no suit, action, arbitration or proceeding pending, and
(2) to the knowledge of the Company, no suit, action, arbitration or proceeding
threatened against or investigation pending with respect to the Company or any
of its subsidiaries that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect with respect to the Company or
prevent or materially delay the ability of the Company to consummate the
transactions contemplated by this Agreement or to perform its obligations
hereunder, nor is there any judgment, decree, citation, injunction, rule or
order of any Governmental Entity or arbitrator outstanding against the Company
or any of its subsidiaries which, individually or in the aggregate, has or could
reasonably be expected to have, any such effect.
(ii) Except as disclosed in Section 3.01(h)(ii) of the Company
Disclosure Schedule or in the Recent SEC Documents, (1) neither the Company
nor any of its subsidiaries is a party to, or bound by, any collective
bargaining agreement, contract or other agreement or understanding with a
labor union or labor organization; (2) to the knowledge of the Company,
neither the Company nor any of its subsidiaries is the subject of any
proceeding asserting that it or any subsidiary has committed an unfair labor
practice or seeking to compel it to bargain with any labor organization as
to wages or conditions of employment; (3) there is no strike, work stoppage
or other similar labor dispute involving it or any of its subsidiaries
pending or, to its knowledge, threatened; (4) no grievance is pending or, to
the knowledge of the Company, threatened against the Company or any of its
subsidiaries which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect with
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respect to the Company; (5) to the knowledge of the Company, the Company and
each subsidiary is in compliance with all applicable laws (domestic and
foreign), agreements, contracts, and policies relating to employment,
employment practices, wages, hours, and terms and conditions of employment
except for failures so to comply, if any, that individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect
with respect to the Company; (6) the Company has complied in all material
respects with its payment obligations to all employees of the Company and
its subsidiaries in respect of all wages, salaries, commissions, bonuses,
benefits and other compensation due and payable to such employees under any
Company policy, practice, agreement, plan, program or any statute or other
law; (7) the Company is not liable for any severance pay or other payments
to any employee or former employee arising from the termination of
employment under any benefit or severance policy, practice, agreement, plan,
or program of the Company, nor to the knowledge of the Company will the
Company have any liability which exists or arises, or may be deemed to exist
or arise, under any applicable law or otherwise, as a result of or in
connection with the transactions contemplated hereunder or as a result of
the termination by the Company of any persons employed by the Company or any
of its subsidiaries on or prior to the Effective Time of the Merger; and (8)
the Company is in compliance with its obligations pursuant to the Worker
Adjustment and Retraining Notification Act of 1988 ("WARN"), to the extent
applicable, and all other employee notification and bargaining obligations
arising under any collective bargaining agreement or statute.
(iii) The Company and its subsidiaries hold all permits, licenses,
variances, exemptions, orders and approvals of all Governmental Entities
which are material to the operation of the businesses of the Company and its
subsidiaries, taken as a whole (the "COMPANY PERMITS"). The Company and its
subsidiaries are in compliance with the terms of the Company Permits, except
where the failure so to comply, individually or in the aggregate, would not
have a Material Adverse Effect with respect to the Company. Except as
disclosed in Section 3.01(h)(iii) of the Company Disclosure Schedule, the
businesses of the Company and its subsidiaries are not being conducted in
violation of any law (domestic or foreign), ordinance or regulation of any
Governmental Entity, except for possible violations which, individually or
in the aggregate, do not and could not reasonably be expected to have a
Material Adverse Effect with respect to the Company.
(i) EMPLOYEE BENEFIT PLANS. (i) Section 3.01(i) of the Company Disclosure
Schedule contains a true and complete list of each "employee benefit plan"
(within the meaning of section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") (including, without limitation, multiemployer
plans within the meaning of Section 3(37) of ERISA)), stock purchase, stock
option, severance, employment, change-in-control, fringe benefit, collective
bargaining, bonus, incentive, deferred compensation and all other employee
benefit plans, agreements, programs, policies or other arrangements relating to
employment, benefits or entitlements, whether or not subject to ERISA (including
any funding mechanism therefor now in effect or required in the future as a
result of the transactions contemplated by this Agreement or otherwise), whether
formal or informal, oral or written, legally binding or not under which any
employee or former employee of the Company or any of its subsidiaries has any
present or future right to benefits or under which the Company or any of its
subsidiaries has any present or future liability. All such plans, agreements,
programs, policies and arrangements are herein collectively referred to as the
"COMPANY PLANS".
(ii) Except as set forth in Schedule 3.01(i)(ii), with respect to each
Company Plan, the Company has delivered to Parent a current, accurate and
complete copy (or, to the extent no such copy exists, an accurate
description) thereof and, to the extent applicable, (A) any related trust
agreement, annuity contract or other funding instrument; (B) the most recent
determination letter; (C) the current summary plan description and other
written communications (or a description of any oral communications) by the
Company to its employees concerning the extent of the benefits provided
under a Company Plan; and (D) for the three most recent years (I) the Form
5500 and attached schedules; (II)
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audited financial statements; (III) actuarial valuation reports; and (IV)
attorney's response to an auditor's request for information.
(iii) Except as disclosed in Section 3.01(i) of the Company Disclosure
Schedule: (A) Each Company Plan has been established and administered in
material compliance with its terms and with the applicable provisions of
ERISA, the Code and other applicable laws, rules and regulations (including
the applicable laws, rules and regulations of any foreign jurisdiction), in
each case, in all material respects; (B) each Company Plan which is intended
to be qualified within the meaning of Code Section 401(a) is so qualified
and has received a favorable determination letter as to its qualification
and nothing has occurred, whether by action or failure to act, which would
cause the loss of such qualification; (C) with respect to any Company Plan,
no actions, suits or claims (other than routine claims for benefits in the
ordinary course) are pending or, to the best knowledge of the Company,
threatened; no facts or circumstances exist which could give rise to any
such actions, suits or claims and the Company will promptly notify Parent in
writing of any pending claims or, to the knowledge of the Company, any
threatened claims arising between the date hereof and the Effective Time of
the Merger; (D) neither the Company nor, to the knowledge of the Company,
any other party has engaged in a prohibited transaction, as such term is
defined under Code Section 4975 or ERISA Section 406, which would subject
the Company or Parent or its subsidiaries to any material taxes, penalties
or other liabilities under the Code or ERISA; (E) no event has occurred and
no condition exists that would subject the Company, either directly or by
reason of its affiliation with any member of its "CONTROLLED GROUP" (defined
as any organization which is a member of a controlled group of organizations
within the meaning of Code Sections 414(b), (c), (m) or (o)), to any
material tax, fine or penalty imposed by ERISA, the Code or other applicable
laws, rules and regulations (including the applicable laws, rules and
regulations of any foreign jurisdiction); (F) all insurance premiums
required to be paid and all contributions required to be made under the
terms of any Company Plan, the Code, ERISA or other applicable laws, rules
and regulations (including the applicable laws, rules and regulations of any
foreign jurisdiction) as of the Effective Time of the Merger have been or
will be timely paid or made prior thereto and adequate reserves have been
provided for on the Company's balance sheet for any premiums (or portions
thereof) and for all benefits attributable to service on or prior to the
Effective Time of the Merger; (G) for each Company Plan with respect to
which a Form 5500 has been filed, no material change has occurred with
respect to the matters covered by the most recent Form since the date
thereof; and (H) no Company Plan provides for an increase in benefits on or
after the Effective Time of the Merger.
(iv) No Company Plan is subject to Title IV of ERISA, and no Company
Plan is a multiemployer plan as defined in Section 4001(A)(3) of ERISA. The
Company has never contributed to or sponsored any multiemployer plan or any
plan subject to Title IV of ERISA. No Company Plan or related trust is
intended to meet the requirements for tax-favored treatment under Subchapter
B of Chapter 1 of the Code or Code Section 501(c)(9).
(v) Section 3.01(i)(v) of the Company Disclosure Schedule sets forth, on
a plan by plan basis, the present value of benefits payable presently or in
the future to present or former employees of the Company under each unfunded
Company Plan that must be accounted for in accordance with SFAS No. 87, 106
or 112.
(vi) Except as set forth in Section 3.01(i)(vi) of the Company
Disclosure Schedule, no Company Plan exists which could result in the
payment to any Company employee of any money or other property or rights or
accelerate or provide any other rights or benefits to any Company employee
as a result of the transaction contemplated by this Agreement, whether or
not such payment would constitute a parachute payment within the meaning of
Code section 280G.
(j) TAXES. Except as disclosed in Section 3.01(j) of the Company Disclosure
Schedule: (i) the Company and each of its subsidiaries, and any consolidated,
combined, unitary or aggregate group of
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which the Company or any of its subsidiaries is or has been a member has timely
filed all Tax Returns required to be filed by it, or requests for extensions to
file such Tax Returns have been timely filed, granted and have not expired; (ii)
the Company and each of its subsidiaries, and any consolidated, combined,
unitary or aggregate group of which the Company or any of it subsidiaries is or
has been a member has paid all Taxes shown as due on such returns, and has
provided adequate reserves in its financial statements for any Taxes that have
not been paid, whether or not shown as being due on such Tax Returns; (iii) no
material claim for unpaid Taxes has been asserted by a Tax authority or has
become a lien against the property of the Company or any of its subsidiaries
(other than with respect to Taxes not yet due and payable) or is being asserted
against the Company or any of its subsidiaries; (iv) no audit or other
proceeding with respect to any Taxes due from or with respect to the Company or
any of its subsidiaries or any Tax Return filed by the Company or any of its
subsidiaries is being conducted by any governmental or Tax authority and the
Company and its subsidiaries have not received notification in writing that any
such audit or other proceeding with respect to Taxes or any Tax Return is
pending; (v) no extension of the statute of limitations on the assessment of any
Taxes has been granted by the Company or any of its subsidiaries; and (vi)
neither the Company nor any of its subsidiaries is subject to liability for
Taxes of any Person (other than the Company or its subsidiaries), including,
without limitation, liability arising from the application of Treasury
Regulation section 1.1502-6 or any analogous provision of state, local or
foreign law, or as a transferee or successor, by contract, or otherwise. As used
herein, "TAXES" shall mean all taxes of any kind, including, without limitation,
those on or measured by or referred to as income, gross receipts, sales, use, ad
valorem, franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, value added, property or windfall profits
taxes, customs, duties or similar fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any governmental authority, domestic or foreign.
As used herein, "TAX RETURN" shall mean any return, report or statement required
to be filed with any governmental authority with respect to Taxes.
(k) PROPERTIES. Except as disclosed in Section 3.01(k) of the Company
Disclosure Schedule, the Company or one of its subsidiaries (i) has good and
marketable title to all the properties and assets (A) reflected in the 1996
Balance Sheet as being owned by the Company or one of its subsidiaries (other
than any such properties or assets sold or disposed of since such date in the
ordinary course of business consistent with past practice) or (B) acquired after
September 30, 1996 which are material to the Company's business on a
consolidated basis, free and clear of all Liens, except statutory Liens securing
payments not yet due and such Liens as do not materially affect the use of the
properties or assets subject thereto or affected thereby or otherwise materially
impair business operations at such properties and (ii) is the lessee of all
leasehold estates (x) reflected in the 1996 Balance Sheet or (y) acquired after
September 30, 1996 which are material to its business on a consolidated basis
(except for leases that have expired by their terms since the date thereof) and
is in possession of the properties purported to be leased thereunder, and each
such lease is in full force and effect and constitutes a legal, valid and
binding obligation of, and is legally enforceable against, the respective
parties thereto (except as affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing), and there is no default thereunder by the lessee or, to
the Company's knowledge, as of the date hereof, the lessor that, individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect
with respect to the Company. The Company has not received written notice and
does not otherwise have knowledge of any pending, threatened or contemplated
condemnation proceeding affecting any premises owned or leased by the Company or
any of its subsidiaries or any part thereof or of any sale or other disposition
of any such owned or leased premises or any part thereof in lieu of
condemnation.
(l) ENVIRONMENTAL MATTERS. Except as could not reasonably be expected to
result in any liability under Environmental Laws (as defined in Section 8.04) to
the Company or any of its subsidiaries which,
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individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect with respect to the Company:
(i) the Company and its subsidiaries hold and are in compliance with all
Environmental Permits (as defined in Section 8.04), and the Company and its
subsidiaries are, and have been, otherwise in compliance with all
Environmental Laws and, to the knowledge of the Company, there are no
conditions that might prevent or interfere with such compliance in the
future;
(ii) neither the Company nor any of its subsidiaries has received any
written Environmental Claim or has knowledge of any other Environmental
Claim or threatened Environmental Claim;
(iii) neither the Company nor any of its subsidiaries has entered into
any consent decree, order or agreement under any Environmental Law;
(iv) there are no (A) underground storage tanks, (B) polychlorinated
biphenyls, (C) friable asbestos or asbestos-containing materials, (D) sumps,
(E) surface impoundments, (F) landfills, or (G) sewers or septic systems
present at any facility currently owned, leased, operated or otherwise used
by the Company or any of its subsidiaries that could reasonably be expected
to give rise to liability of the Company or any of its subsidiaries under
any Environmental Laws;
(v) there are no past (including, without limitation, with respect to
assets or businesses formerly owned, leased or operated by the Company or
any of its subsidiaries) or present actions, activities, events, conditions
or circumstances, including without limitation the release, threatened
release, emission, discharge, generation, treatment, storage or disposal of
Hazardous Materials, that could reasonably be expected to give rise to
liability of the Company or any of its subsidiaries under any Environmental
Laws;
(vi) no modification, revocation, reissuance, alteration, transfer, or
amendment of the Environmental Permits, or any review by, or approval of,
any third party of the Environmental Permits is required in connection with
the execution or delivery of this Agreement or the consummation of the
transactions contemplated hereby or the continuation of the business of the
Company or its subsidiaries following such consummation;
(vii) Hazardous Materials (as defined in Section 8.04) have not been
generated, transported, treated, stored, disposed of, arranged to be
disposed of, released or threatened to be released at, on, from or under any
of the properties or facilities currently owned, leased or otherwise used by
the Company or any of its subsidiaries, in violation of, or so as could
result in liability under, any Environmental Laws; and
(viii) neither the Company nor any of its subsidiaries has contractually
assumed any liabilities or obligations under any Environmental Laws.
(m) CONTRACTS; DEBT INSTRUMENTS. (i) Neither the Company nor any of its
subsidiaries is, or has received any notice or has any knowledge that any other
party is, in default in any respect under any contract, agreement, commitment,
arrangement, lease, policy or other instrument to which it or any of its
subsidiaries is a party or by which it or any such subsidiary is bound, except
for those defaults which could not reasonably be expected, either individually
or in the aggregate, to have a Material Adverse Effect with respect to the
Company; and, to the knowledge of the Company, there has not occurred any event
that with the lapse of time or the giving of notice or both would constitute
such a default.
(ii) The Company has made available to Parent (x) true and correct
copies (or accurate English translations) of all loan or credit agreements,
notes, bonds, mortgages, indentures and other agreements and instruments
pursuant to which any indebtedness (as defined in section 8.04) of the
Company or any of its subsidiaries in an aggregate principal amount in
excess of $200,000 is outstanding or may be incurred and (y) accurate
information regarding the respective principal amounts currently outstanding
thereunder.
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(iii) Except as set forth in Section 3.01(m) of the Company Disclosure
Schedule, neither the Company nor any of its subsidiaries is a party to or
bound by any agreement which, pursuant to the requirements of Form 10-K
under the Exchange Act, would be required to be filed as an exhibit to an
Annual Report on Form 10-K of the Company, except agreements included or
incorporated by reference as exhibits to the Company's Annual Report on Form
10-K for the fiscal year ended September 30, 1996 or any other Recent SEC
Document.
(n) BROKERS. Except as disclosed in Section 3.01(n) of the Company
Disclosure Schedule, no broker, investment banker, financial advisor or other
person, other than PaineWebber Incorporated ("PAINEWEBBER"), the fees and
expenses of which will be paid by the Company (pursuant to fee agreements,
copies of which have been provided to Parent), is entitled to any broker's,
finder's, financial advisor's or other similar fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Company. The Company agrees to indemnify Parent and
Sub and to hold Parent and Sub harmless from and against any and all claims,
liabilities or obligations with respect to any other fee, commission or expense
asserted by any person on the basis of any act or statement alleged to have been
made by the Company or its affiliates.
(o) OPINION OF FINANCIAL ADVISOR. The Company has received as of the date of
this Agreement the opinion of PaineWebber to the effect that, as of such date,
the Merger Consideration is fair, from a financial point of view, to the holders
of Company Common Stock (other than Parent and its affiliates).
(p) BOARD RECOMMENDATION; STATE ANTITAKEOVER LAW. The Board of Directors of
the Company, at a meeting duly called and held, has by unanimous vote of those
directors present (i) determined that this Agreement and the Stock Option
Agreement and the transactions contemplated hereby and thereby, including the
Merger, taken together, are fair to and in the best interests of the
stockholders of the Company and has taken all actions necessary on the part of
the Company to render the restrictions on business combinations contained in
Section 203 of the DGCL inapplicable to this Agreement, and the Merger and the
Stock Option Agreement, and (ii) resolved to recommend that the holders of the
shares of Company Common Stock approve this Agreement and the transactions
contemplated herein, including the Merger.
(q) REQUIRED COMPANY VOTE. The Company Stockholder Approval, being the
affirmative vote of a majority of the outstanding shares of the Company Common
Stock, is the only vote of the holders of any class or series of the Company's
securities necessary to approve this Agreement, the Merger and the other
transactions contemplated hereby. There is no vote of the holders of any class
or series of the Company's securities necessary to approve the Stock Option
Agreement.
(r) RIGHTS AGREEMENT. The Rights Agreement has been amended so as to provide
that neither Parent nor Sub will become an "Acquiring Person" or an "Adverse
Person" and that no "Triggering Event", "Stock Acquisition Date" or
"Distribution Date" (as such terms are defined in the Rights Agreement) will
occur as a result of the approval, execution or delivery of this Agreement or
the Stock Option Agreement or the consummation of the Merger or the acquisition
of shares of Company Common Stock by Parent pursuant to the Stock Option
Agreement.
(s) INTELLECTUAL PROPERTY. (i) Section 3.01(s)(i) of the Company Disclosure
Schedule sets forth all Intellectual Property (as defined in Section 8.04) owned
by the Company or its subsidiaries that is registered or filed with any
Governmental Entity (the "REGISTERED INTELLECTUAL PROPERTY"), all licenses of
patented Intellectual Property to or from third parties (the "LICENSED PATENT
INTELLECTUAL PROPERTY") and all other licenses of Intellectual Property to or
from third parties by the Company or any of its subsidiaries that are material
to the business of the Company and its subsidiaries (together with the
Registered Intellectual Property and the Licensed Patent Intellectual Property,
the "MATERIAL INTELLECTUAL PROPERTY").
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(ii) The Company and its subsidiaries own or have the right to use all
Intellectual Property necessary for the Company and its subsidiaries to
conduct their business substantially as it is currently conducted and
consistent with past practice.
(iii) Except as set forth on Section 3.01(s)(iii) of the Company
Disclosure Schedule: (1) all of the Registered Intellectual Property owned
or used by the Company or any of its subsidiaries is subsisting and
unexpired, has not been abandoned and, to the knowledge of the Company, does
not infringe or otherwise impair the intellectual property rights of any
third party; (2) none of the Material Intellectual Property owned or used by
the Company or any of its subsidiaries is the subject of any license,
security interest, Lien or other agreement granting rights therein to any
third party other than licenses listed on Schedule 3.01(s)(i) and except for
rights reserved by the U.S. Government pursuant to research funding laws and
regulations; (3) the Company has not misappropriated the trade secrets,
technology, know-how, inventions or the like of any third party; (4) no
judgment, decree, injunction, rule or order has been rendered by any U.S.
federal or state or foreign Governmental Entity which would limit, cancel or
question the validity of, or the Company's or its subsidiaries' rights in
and to any Intellectual Property in any respect that could reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect with respect to the Company; (5) the Company has not received written
notice, and does not otherwise have knowledge, of any pending or threatened
suit, action or proceeding that seeks to limit, cancel or question the
validity of, or the Company's or its subsidiaries' rights in and to any
Intellectual Property, which, if adversely determined, could reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect with respect to the Company; and (6) the Company and its subsidiaries
have taken reasonable steps to protect, maintain and safeguard their
material Intellectual Property, including any material Intellectual Property
for which improper or unauthorized disclosure would impair its value or
validity, and have executed appropriate nondisclosure agreements and made
appropriate filings and registrations in connection with the foregoing.
(t) OWNERSHIP OF PARENT COMMON STOCK. Neither the Company nor, to its best
knowledge, any of its affiliates or associates (as such terms are defined under
the Exchange Act), (i) beneficially owns, directly or indirectly, or (ii) is
party to any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of, in each case, shares of capital
stock of Parent, which in the aggregate represent 5% or more of the outstanding
shares of such capital stock.
(u) ACCOUNTING MATTERS. To the Company's knowledge, neither the Company nor
any of its affiliates has through the date hereof taken or agreed to take any
action that would prevent the Parent from accounting for the business
combination to be effected by the Merger as a "pooling of interests".
SECTION 3.02. REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB. Parent and
Sub represent and warrant to the Company as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Each of Parent, Sub and each
of Parent's "significant subsidiaries" (within the meaning of Rule 1-02 of
Regulation S-X of the SEC) (collectively, the "PARENT SUBSIDIARIES") is duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized and has the requisite corporate power and
authority to carry on its business as now being conducted. Each of Parent, Sub
and each of the Parent Subsidiaries is duly qualified or licensed to do business
and is in good standing in each jurisdiction (domestic or foreign) in which the
nature of its business or the ownership or leasing of its properties makes such
qualification or licensing necessary, other than in such jurisdictions where the
failure to be so qualified or licensed (individually or in the aggregate) could
not reasonably be expected to have a Material Adverse Effect with respect to
Parent. Parent has made available to the Company complete and correct copies of
its articles of incorporation and by-laws and the certificate of incorporation
and by-laws of Sub.
(b) CAPITAL STRUCTURE. As of the date of this Agreement, the authorized
capital stock of Parent consists of 90,000,000 shares of Parent Common Stock and
1,000,000 shares of preferred stock of Parent (the
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"PARENT PREFERRED STOCK"). As of the close of business on July 25, 1997, there
were: (i) 45,599,755 shares of Parent Common Stock issued and outstanding; (ii)
1,773,597 shares of Parent Common Stock held in the treasury of Parent; (iii)
5,233,411 shares of Parent Common Stock reserved for issuance pursuant to
Parent's stock option plans, Parent's employee stock purchase plans and Parent's
Director Stock Purchase and Deferred Compensation Plan (such plans, collectively
with the 1997 Stock Incentive Plan approved on August 21, 1997 subject to
stockholder approval, the "PARENT STOCK PLANS"); (iv) 3,356,441 shares of Parent
Common Stock issuable upon exercise of awarded but unexercised stock options;
and (v) no shares of Parent Preferred Stock outstanding. Except as set forth
above and except for shares of junior participating preferred stock issuable
pursuant to the Shareholder Protection Rights Agreement, dated as of April 30,
1989, between Parent and The First National Bank of Boston, as of the close of
business on July 25, 1997 there were no shares of capital stock or other equity
securities of Parent issued, reserved for issuance or outstanding. All
outstanding shares of capital stock of Parent are, and all shares which may be
issued as described above will be, when issued, duly authorized, validly issued,
fully paid and nonassessable and not subject to preemptive rights. There is no
outstanding Voting Debt of Parent. Except as set forth above, there are no
outstanding securities, options, warrants, calls, rights, commitments,
agreements, arrangements or undertakings of any kind to which Parent is a party
or by which it is bound obligating Parent to issue, deliver or sell, or cause to
be issued, delivered or sold, additional shares of capital stock or other equity
or voting securities of Parent or obligating Parent to issue, grant, extend or
enter into any such security, option, warrant, call, right, commitment,
agreement, arrangement or undertaking. There are no outstanding contractual
obligations, commitments, understandings or arrangements of Parent to
repurchase, redeem or otherwise acquire or make any payment in respect of any
shares of capital stock of Parent.
During the period from July 25, 1997 through the date of this Agreement,
except as set forth in Section 3.02(b) of the Parent Disclosure Schedule, Parent
did not (A) issue or permit to be issued any shares of capital stock, or
securities exercisable for or convertible into shares of capital stock, of
Parent, other than pursuant to or as permitted by the terms of the Parent Stock
Plans; (B) repurchase, redeem or otherwise acquire, directly or indirectly
through one or more subsidiaries, any shares of capital stock of Parent; or (C)
declare, set aside, make or pay to the stockholders of Parent dividends or other
distributions on the outstanding shares of capital stock of Parent (other than
regular quarterly cash dividends on the Parent Common Stock).
As of the date hereof, the authorized capital stock of Sub consists of 1,000
shares of common stock, par value $.01 per share, all of which have been validly
issued, are fully paid and nonassessable and are owned by Parent, free and clear
of any Lien, and as of the Closing Date, all the issued and outstanding shares
of the common stock of Sub will be owned by Parent free and clear of any Lien.
(c) AUTHORITY; NONCONTRAVENTION. Parent and Sub have all requisite corporate
power and authority to enter into this Agreement and the Stock Option Agreement
and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and the Stock Option Agreement by
Parent and Sub and the consummation by Parent and Sub of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of Parent and Sub. This Agreement and the Stock
Option Agreement have been duly executed and delivered by each of Parent and Sub
and (assuming due authorization, execution and delivery by the Company)
constitute valid and binding obligations of Parent and Sub, enforceable against
them in accordance with their terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing. The execution and delivery of this Agreement and
the Stock Option Agreement do not, and the consummation by Parent and Sub of the
transactions contemplated by this Agreement and compliance by Sub with the
provisions of this Agreement and the Stock Option Agreement will not, conflict
with, or result in any breach or violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of termination,
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cancellation or acceleration of, or a "put" right with respect to any obligation
under, or to a loss of a material benefit under, or result in the creation of
any Lien upon any of the properties or assets of Parent, Sub or any of Parent's
other subsidiaries under, (i) the certificate of incorporation or by-laws of
Parent, Sub or such other subsidiary, (ii) any loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise or license applicable to Parent, Sub, such other
subsidiaries or any of their respective properties or assets or (iii) subject to
the governmental filings and other matters referred to in the following
sentence, any judgment, order, decree, statute, law, ordinance, rule, regulation
or arbitration award applicable to Parent, Sub, any of Parent's other
subsidiaries or their respective properties or assets, other than, in the case
of clauses (ii) and (iii), any such conflicts, breaches, violations, defaults,
rights, losses or Liens that individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect with respect to Parent
or prevent or materially delay the ability of Parent and Sub to consummate the
transactions contemplated by this Agreement and the Stock Option Agreement or
perform their respective obligations hereunder or thereunder. No consent,
approval, order or authorization of, or registration, declaration or filing
with, or notice to, any Governmental Entity is required by or with respect to
Parent or Sub in connection with the execution and delivery of this Agreement or
the Stock Option Agreement by Parent and Sub or the consummation by Parent and
Sub of any of the transactions contemplated hereby or thereby, except for (i)
the filing of a premerger notification and report form under the HSR Act and the
filing of such applications by Parent and Sub as may be required pursuant to
antitrust or similar laws or regulations in effect in Germany, France, Japan,
the United Kingdom or any political subdivision thereof, (ii) the filing with
the SEC, the NYSE and the Pacific Stock Exchange of (A) the Form S-4 and (B)
such reports under the Exchange Act as may be required in connection with this
Agreement, the Stock Option Agreement and the transactions contemplated hereby
and thereby, (iii) the filing of the Certificate of Merger with the Secretary of
State of the State of Delaware and appropriate documents with the relevant
authorities of other states in which the Company is qualified to do business,
(iv) such other consents, approvals, orders, authorizations, registrations,
declarations, filings or notices as may be required under the "takeover" or
"blue sky" laws of various states and (v) such other consents, approvals,
orders, authorizations, registrations, declarations, filings or notices the
failure of which to make or obtain, individually or in the aggregate, could not
reasonably be expected to (x) prevent or materially delay consummation of the
Merger or the other transactions contemplated hereby or performance of Parent's
and Sub's obligations hereunder and under the Stock Option Agreement or (y) have
a Material Adverse Effect with respect to Parent.
(d) PARENT SEC DOCUMENTS; UNDISCLOSED LIABILITIES. Parent has filed with the
SEC all reports, schedules, forms, statements and other documents required
pursuant to the Securities Act and the Exchange Act since July 1, 1994
(collectively, and in each case including all exhibits and schedules thereto and
documents incorporated by reference therein, the "PARENT SEC DOCUMENTS"). Except
as set forth in Section 3.02(d) of the disclosure schedule delivered by Parent
and Sub to the Company at the time of the execution of this Agreement (the
"PARENT DISCLOSURE SCHEDULE"), as of their respective dates, the Parent SEC
Documents complied as to form in all material respects with the requirements of
the Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the SEC promulgated thereunder applicable to such Parent SEC
Documents, and none of the Parent SEC Documents (including any and all financial
statements included therein) as of such dates contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Except as set
forth in Section 3.02(d) of the Parent Disclosure Schedule, except to the extent
that information contained in any Parent SEC Document has been revised or
superseded by a later filed Parent SEC Document, none of the Parent SEC
Documents (including any and all financial statements included therein) contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The consolidated financial statements of Parent included in all
Parent SEC Documents filed since July 1, 1994 (the "PARENT SEC FINANCIAL
STATEMENTS") comply as to form in all material respects with
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applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto, have been prepared in accordance with generally
accepted accounting principles (except, in the case of unaudited consolidated
quarterly statements, as permitted by Form 10-Q of the SEC), applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto) and fairly present the consolidated financial position of Parent
and its consolidated subsidiaries as of the dates thereof and the consolidated
results of their operations and cash flows for the periods then ended (subject,
in the case of unaudited quarterly statements, to normal recurring year-end
audit adjustments). Except as disclosed in Section 3.02(d) of the Parent
Disclosure Schedule, neither Parent nor any of its subsidiaries has any
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise) required by generally accepted accounting principles to be
recognized or disclosed on a consolidated balance sheet of Parent and its
subsidiaries or in the notes thereto, except (i) liabilities reflected in the
audited consolidated balance sheet of the Parent as of June 30, 1996, (ii)
liabilities disclosed in any SEC Document filed by Parent prior to the date of
this Agreement with respect to any period ending, or date occurring, after June
30, 1996 and (iii) liabilities incurred since June 30, 1996, in the ordinary
course of business consistent with past practice.
(e) INFORMATION SUPPLIED. None of the information supplied or to be supplied
by Parent or Sub for inclusion or incorporation by reference in (i) the Form S-4
will, at the time the Form S-4 is filed with the SEC, at any time it is amended
or supplemented or at the time it becomes effective under the Securities Act,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading or (ii) the Proxy Statement will, at the date it is first mailed
to the Company's stockholders or at the time of the Stockholders Meeting,
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, in the light of the circumstances under which they are made, not
misleading. The Form S-4 will comply as to form in all material respects with
the requirements of the Securities Act and the rules and regulations promulgated
thereunder, except that no representation is made by Parent or Sub with respect
to statements made or incorporated by reference therein based on information
supplied in writing by the Company specifically for inclusion or incorporation
by reference therein.
(f) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in Section
3.02(f) of the Parent Disclosure Schedule, since June 30, 1996, there is not and
has not been: (i) any Material Adverse Change with respect to Parent; (ii) any
condition, event or occurrence which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect or give rise to a
Material Adverse Change with respect to Parent; (iii) any action which, if it
had been taken or occurred after the execution of this Agreement, would have
required the consent of the Company pursuant to this Agreement; or (iv) any
condition, event or occurrence which, individually or in the aggregate, could
reasonably be expected to prevent or materially delay the ability of Parent and
Sub to consummate the transactions contemplated by this Agreement or perform its
obligations hereunder or under the Stock Option Agreement.
(g) LITIGATION; COMPLIANCE WITH LAWS. (i) Except as disclosed in Section
3.02(g)(i) of the Parent Disclosure Schedule, there is (1) no suit, action,
arbitration or proceeding pending, and (2) to the knowledge of Parent, no suit,
action, arbitration or proceeding threatened against or investigation pending
with respect to Parent or any of its subsidiaries that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect with
respect to Parent or prevent or materially delay the ability of Parent and Sub
to consummate the transactions contemplated by this Agreement or to perform
their obligations hereunder and under the Stock Option Agreement, nor is there
any judgment, decree, citation, injunction, rule or order of any Governmental
Entity or arbitrator outstanding against Parent or any of its subsidiaries
which, individually or in the aggregate, has or could reasonably be expected to
have, any such effect.
(ii) Except as disclosed in Section 3.02(g)(ii) of the Parent Disclosure
Schedule, the businesses of Parent and its subsidiaries are not being
conducted in violation of any law (domestic or foreign),
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ordinance or regulation of any Governmental Entity, except for possible
violations which, individually or in the aggregate, do not and could not
reasonably be expected to have a Material Adverse Effect with respect to
Parent.
(h) BROKERS. No broker, investment banker, financial advisor or other
person, other than Morgan Stanley and Co. Incorporated ("MORGAN STANLEY"), the
fees and expenses of which will be paid by Parent (pursuant to fee agreements,
copies of which have been provided to the Company), is entitled to any broker's,
finder's, financial advisor's or other similar fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Parent or Sub. Parent agrees to indemnify the Company
and to hold the Company harmless from and against any and all claims,
liabilities or obligations with respect to any other fee, commission or expense
asserted by any person on the basis of any act or statement alleged to have been
made by Parent or its affiliates.
(i) OPINION OF FINANCIAL ADVISOR. Parent has received the opinion of Morgan
Stanley, dated the date of this Agreement, to the effect that, as of such date,
the Merger Consideration is fair to Parent from a financial point of view.
(j) INTERIM OPERATIONS OF SUB. Sub was formed on August 18, 1997 solely for
the purpose of engaging in the transactions contemplated hereby, has engaged in
no other business activities and has conducted its operations only as
contemplated hereby.
(k) OWNERSHIP OF COMPANY COMMON STOCK. Other than pursuant to the Stock
Option Agreement, as of the date hereof, neither Parent nor, to its best
knowledge, any of its affiliates or associates (as such terms are defined under
the Exchange Act), (i) beneficially owns, directly or indirectly, or (ii) is
party to any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of, in each case, shares of capital
stock of the Company, which in the aggregate represent 5% or more of the
outstanding shares of such capital stock.
(l) ACCOUNTING MATTERS. Neither Parent nor, to its best knowledge, any of
its affiliates, has through the date hereof taken or agreed to take any action
that would prevent Parent from accounting for the business combination to be
effected by the Merger as a "POOLING OF INTERESTS".
(m) REQUIRED VOTE. This Agreement has been approved by Parent, as the sole
stockholder of Sub. No other vote of holders of any class or series of
securities of Parent or Sub is necessary to approve this Agreement, the Merger,
the Stock Option Agreement and the transactions contemplated hereby and thereby.
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS PRIOR TO MERGER.
SECTION 4.01. CONDUCT OF BUSINESS. (a) CONDUCT OF BUSINESS BY THE COMPANY.
During the period from the date of this Agreement to the Effective Time of the
Merger (except as otherwise expressly contemplated by the terms of this
Agreement), and except as approved by Parent, which approval shall not be
unreasonably withheld or delayed, the Company shall, and shall cause its
subsidiaries to, act and carry on their respective businesses in the ordinary
course of business consistent with past practice and use its and their
respective reasonable best efforts to preserve substantially intact their
current business organizations, keep available the services of their current
officers and employees and preserve their relationships with customers,
suppliers, licensors, licensees, advertisers, distributors and others having
significant business dealings with them. Without limiting the generality of the
foregoing, during the period from the date of this Agreement to the Effective
Time of the Merger, the Company shall not, and shall not permit any of its
subsidiaries to:
(i) (x) declare, set aside or pay any dividends on, or make any other
distributions in respect of, any of its capital stock, other than dividends
and distributions by a direct or indirect wholly owned
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domestic subsidiary of the Company to its parent, (y) split, combine or
reclassify any capital stock of the Company or any subsidiary or issue or
authorize the issuance of any other securities in respect of, in lieu of or
in substitution for shares of capital stock of the Company or any
subsidiary, or (z) purchase, redeem or otherwise acquire any shares of
capital stock of the Company or any of its subsidiaries or any other
securities thereof or any rights, warrants or options to acquire any such
shares or other securities, except that the Company may redeem shares of its
Series A Preferred Stock to the extent required by the Certificate of
Designations with respect thereto as in effect on the date of this
Agreement, PROVIDED that the redemption price for the shares of Series A
Preferred Stock so redeemed shall be paid by the Company solely in shares of
Company Common Stock;
(ii) authorize for issuance, issue, deliver, sell, pledge or otherwise
encumber any shares of its capital stock or the capital stock of any of its
subsidiaries, any other voting securities or any securities convertible
into, or any rights, warrants or options to acquire, any such shares, voting
securities or convertible securities or any other securities or equity
equivalents (including without limitation stock appreciation rights), other
than the issuance of Company Common Stock upon (i) the exercise of Warrants
outstanding on the date of this Agreement in accordance with their present
terms, (ii) the exercise of Company Stock Options awarded prior to the date
of this Agreement but unexercised on the date of this Agreement in
accordance with their present terms, (iii) the exercise of options awarded
pursuant to the Stock Purchase Plan of the Company prior to the date of this
Agreement but unexercised on the date of this Agreement in accordance with
their present terms, (iii) the conversion of the Convertible Notes in
accordance with their present terms or (iv) the redemption of the Series A
Preferred Stock in accordance with the Certificate of Designations with
respect thereto as in effect on the date of this Agreement;
(iii) amend (A) the Certificate of Incorporation or By-Laws or
comparable charter or organizational documents of any subsidiary of the
Company or (B) the Rights Agreement;
(iv) acquire or agree to acquire by merging or consolidating with, or by
purchasing a substantial portion of the stock or assets of, or by any other
manner, any business or any corporation, partnership, joint venture,
association or other business organization or division thereof;
(v) sell, lease, license, mortgage or otherwise encumber or subject to
any Lien or otherwise dispose of any of its properties or assets other than
any such properties or assets the value of which do not exceed $100,000
individually and $1,000,000 in the aggregate, except (A) sales of inventory
and receivables in the ordinary course of business consistent with past
practice, (B) the granting of purchase money security interests in the
ordinary course of business consistent with past practice and (C) the
granting of end-user licenses and the right to grant end-user sublicenses in
the ordinary course of business consistent with past practice to customers
of the Company or its subsidiaries to the extent such licenses are necessary
to permit such customers to use products purchased from the Company or such
subsidiaries;
(vi) (A) incur any indebtedness for borrowed money or guarantee any such
indebtedness of another person, issue or sell any debt securities or
warrants or other rights to acquire any debt securities of the Company or
any of its subsidiaries, guarantee any debt securities of another person,
enter into any "keep well" or other agreement to maintain any financial
statement condition of another person or enter into any arrangement having
the economic effect of any of the foregoing, except for short-term
borrowings incurred in the ordinary course of business consistent with past
practice and intercompany indebtedness between the Company and its
wholly-owned subsidiaries or between such wholly owned subsidiaries, or (B)
make any loans, advances or capital contributions to, or investments in, any
other person, other than to the Company or any direct or indirect wholly
owned subsidiary of the Company;
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(vii) acquire or agree to acquire any assets, other than inventory in
the ordinary course of business consistent with past practice, or make or
agree to make any capital expenditures, except capital expenditures which,
individually or in the aggregate, do not exceed $1,000,000;
(viii) pay, discharge or satisfy any claims (including claims of
stockholders), liabilities or obligations (absolute, accrued, asserted or
unasserted, contingent or otherwise), except for the payment, discharge or
satisfaction of (x) liabilities or obligations in the ordinary course of
business consistent with past practice or in accordance with their terms as
in effect on the date hereof or (y) claims settled or compromised to the
extent permitted by Section 4.01(a)(xii), or waive, release, grant, or
transfer any rights of material value or modify or change in any material
respect any existing material license, lease, contract or other document,
other than in the ordinary course of business consistent with past practice;
(ix) adopt a plan of complete or partial liquidation or resolutions
providing for or authorizing such a liquidation or a dissolution, merger,
consolidation, restructuring, recapitalization or reorganization;
(x) enter into or amend any collective bargaining agreement;
(xi) change any material accounting principle used by it, except as
required by generally accepted accounting principles;
(xii) settle or compromise any litigation or claim (whether or not
commenced prior to the date of this Agreement), other than settlements or
compromises of litigation or claims that do not provide for injunctive or
similar relief and where the amount paid (after giving effect to insurance
proceeds actually received or reasonably believed by management of the
Company to be receivable) in settlement or compromise does not exceed
$150,000 provided that the aggregate amount paid in connection with the
settlement or compromise of all such litigation matters shall not exceed
$500,000;
(xiii) engage in any transaction with, or enter into any agreement,
arrangement, or understanding with, directly or indirectly, any of the
Company's affiliates, including, without limitation, any transactions,
agreements, arrangements or understandings with any affiliate or other
Person covered under Item 404 of SEC Regulation S-K that would be required
to be disclosed under such Item 404, other than such transactions of the
same general nature, scope and magnitude as are disclosed in the Company SEC
Documents;
(xiv) sell any shares of common stock of Millenium Pharmaceuticals,
Inc.;
(xv) transfer to any person or entity any rights to its Intellectual
Property other than the granting of end-user licenses and the right to grant
end-user sublicenses in the ordinary course of business consistent with past
practice to customers of the Company or its subsidiaries to the extent such
licenses are necessary to permit such customers to use products purchased
from the Company or such subsidiaries;
(xvi) enter into or amend any agreement pursuant to which any other
party is granted exclusive marketing or other exclusive rights of any type
or scope with respect to any of its products or technology; or
(xvii) authorize, or commit or agree to take, any of the foregoing
actions.
(b) CONDUCT OF BUSINESS BY PARENT. During the period from the date of this
Agreement to the Effective Time of the Merger, Parent shall not:
(i) (x) declare, set aside or pay any dividends on, or make any other
distributions in respect of, any of its capital stock, other than regular
quarterly cash dividends (in an amount determined in a manner consistent
with Parent's past practice) with customary record and payment dates or (y)
split,
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combine or reclassify any of its capital stock or issue or authorize the
issuance of any other securities in lieu of or in substitution for shares of
its capital stock;
(ii) amend Parent's articles of incorporation or by-laws in a manner
that would be materially adverse to the holders of Parent Common Stock (it
being understood that an amendment to the articles of incorporation of
Parent increasing the number of authorized shares of Parent Common Stock or
other capital stock of Parent shall not be deemed to be materially adverse
to the holders of Parent Common Stock); or
(iii) authorize, or commit or agree to take, any of the foregoing
actions.
(c) CHANGES IN EMPLOYMENT ARRANGEMENTS. Neither the Company nor any of its
subsidiaries shall (i) adopt or amend (except as may be required by law) any
bonus, profit sharing, compensation, stock option, pension, retirement, deferred
compensation, employment or other employee benefit plan, agreement, trust, fund
or other arrangement for the benefit or welfare of any employee, director or
former director or employee or (ii) other than increases for individuals (other
than officers and directors) in the ordinary course of business consistent with
past practice, increase the compensation or fringe benefits of any director,
employee or former director or employee or pay any benefit not required by any
existing plan, arrangement or agreement.
(d) SEVERANCE. Neither the Company nor any of its subsidiaries shall grant
any new or modified severance or termination arrangement or increase or
accelerate any benefits payable under its severance or termination pay policies
in effect on the date hereof.
(e) WARN. Neither the Company nor any of its subsidiaries shall effectuate a
"plant closing" or "mass layoff", as those terms are defined in WARN, affecting
in whole or in part any site of employment, facility, operating unit or employee
of the Company or any subsidiary, without notifying Sub or its affiliates in
advance and without complying with the notice requirements and other provisions
of WARN.
(f) TAX ELECTIONS. Except in the ordinary course of business and consistent
with past practice, neither the Company nor any of its subsidiaries shall make
any tax election or settle or compromise any federal, state, local or foreign
tax liability.
(g) POOLING AND TAX-FREE REORGANIZATION TREATMENT. Neither Company nor
Parent shall, and shall not permit any of their respective subsidiaries to,
intentionally take or cause to be taken any action which would disqualify the
Merger as a "pooling of interests" for accounting purposes or as a
"reorganization" within the meaning of Section 368(a) of the Code; PROVIDED,
HOWEVER, that nothing hereunder shall limit the ability of Parent to exercise
its rights under the Stock Option Agreement.
(h) OTHER ACTIONS. Neither the Company nor Parent shall, or shall permit any
of its subsidiaries to, (i) intentionally take any action that, if taken on or
prior to the date of this Agreement, would have resulted in any of its
representations and warranties set forth in this Agreement being untrue in any
material respect, or (ii) intentionally take any action that would or reasonably
might be expected to, result in any of the conditions to the Merger set forth in
Article VI not being satisfied or in a violation of any provision of the Stock
Option Agreement. The Company and Parent shall promptly advise the other party
orally and in writing of (x) any action of the type set forth in clause (i)
above, (y) the failure by such party to comply with any covenant, condition or
agreement hereunder or under the Stock Option Agreement and (z) any event which
could reasonably be expected to cause the conditions set forth in Article VI not
being satisfied; PROVIDED, HOWEVER, that no such notice shall affect the
representations, warranties, covenants and agreement of the parties or the
conditions to their obligations hereunder.
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ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. PREPARATION OF FORM S-4 AND PROXY STATEMENT; STOCKHOLDER
MEETING. (a) Promptly following the date of this Agreement, the Company shall
prepare the Proxy Statement, and Parent shall prepare and file with the SEC the
Form S-4, in which the Proxy Statement will be included. Parent and the Company
shall each use its reasonable best efforts to have the Form S-4 declared
effective under the Securities Act as promptly as practicable after such filing.
The Company will use its reasonable best efforts to cause the Proxy Statement to
be mailed to the Company's stockholders as promptly as practicable after the
Form S-4 is declared effective under the Securities Act. Parent shall also take
any action (other than qualifying to do business in any state in which it is not
now so qualified or filing a general consent to service of process) required to
be taken under any applicable state securities laws in connection with the
registration and qualification of the Parent Common Stock to be issued in the
Merger, and the Company shall furnish all information relating to the Company
and its stockholders as may be reasonably requested in connection with any such
action. The information provided and to be provided by Parent, Sub and the
Company, respectively, (i) for use in the Form S-4, at the time the Form S-4
becomes effective, shall be true and accurate in all material respects and shall
not omit to state a material fact required to be stated therein or necessary to
make such information not misleading and (ii) for use in the Proxy Statement, on
the date the Proxy Statement is mailed to the Company's stockholders and on the
date of the Stockholders Meeting referred to below, shall be true and correct in
all material respects and shall not omit to state any material fact required to
be stated therein or necessary in order to make such information, in the light
of the circumstances under which the statements therein were made, not
misleading, and the Company and Parent each agree to correct any information
provided by it for use in the Form S-4 and the Proxy Statement which shall have
become false or misleading.
(b) All mailings to the Company's stockholders in connection with the
Merger, including the Proxy Statement, shall be subject to the prior review,
comment and approval of Parent (such approval not to be unreasonably withheld or
delayed).
(c) The Company will, as promptly as practicable following the date of this
Agreement and in consultation with Parent, duly call, give notice of, convene
and hold a meeting of its stockholders (the "STOCKHOLDERS MEETING") for the
purpose of approving this Agreement and the transactions contemplated by this
Agreement to the extent required by the DGCL. The Company will, through its
Board of Directors, recommend to its stockholders approval of the foregoing
matters, as set forth in Section 3.01(p); PROVIDED, HOWEVER, that the Board of
Directors of the Company may fail to make or withdraw or modify such
recommendation, but only to the extent that the Board of Directors of the
Company shall have concluded in good faith on the basis of written advice (or
advice confirmed in writing) from outside counsel that the failure to take such
action would be contrary to the fiduciary duties of the Board of Directors of
the Company to the stockholders of the Company under applicable law. Any such
recommendation, together with a copy of the opinion referred to in Section
3.01(o) shall be included in the Proxy Statement. The Company will use its best
efforts to hold such meeting as soon as practicable after the Form S-4 shall
have been declared effective.
SECTION 5.02. ACCESS TO INFORMATION; CONFIDENTIALITY. (a) Each of the
Company and Parent shall, and shall cause its subsidiaries, officers, employees,
counsel, financial advisors and other representatives to, afford to the other
party and its representatives reasonable access during normal business hours,
during the period prior to the Effective Time of the Merger to its properties,
books, contracts, commitments, personnel and records, and, during such period,
each of the Company and Parent shall, and shall cause its subsidiaries,
officers, employees and representatives to, furnish promptly to the other party
(i) a copy of each report, schedule, registration statement and other document
filed by it during such period pursuant to the requirements of Federal or state
securities laws and (ii) all other information concerning its business,
properties, financial condition, operations and personnel as such other party
may from time to time
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reasonably request. Each of the Company and Parent will hold, and will cause its
respective directors, officers, employees, accountants, counsel, financial
advisors and other representatives and affiliates to hold, any nonpublic
information in confidence to the extent required by, and in accordance with, the
provisions of each of the confidentiality agreements, dated December 13, 1996
and August 8, 1997, respectively, between Parent and the Company (collectively,
the "CONFIDENTIALITY AGREEMENTS").
(b) No investigation pursuant to this Section 5.02 shall affect any
representations or warranties of the parties herein or the conditions to the
obligations of the parties hereto.
SECTION 5.03. REASONABLE BEST EFFORTS. (a) Upon the terms and subject to the
conditions set forth in this Agreement, each of the parties agrees to use its
reasonable best efforts to take, or cause to be taken, all actions, and to do,
or cause to be done, and to assist and cooperate with the other parties in
doing, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective, in the most expeditious manner
practicable, the Merger and the other transactions contemplated by this
Agreement, including (i) obtaining all consents, approvals, waivers, licenses,
permits or authorizations as are required to be obtained (or, which if not
obtained, would result in an event of default, termination or acceleration of
any agreement or any put right under any agreement) under any applicable law or
regulation or from any Governmental Entities or third parties in connection with
the transactions contemplated by this Agreement, (ii) if required by any
Governmental Entity as a condition to the obtaining of any consent of such
Governmental Entity or the agreement of such Governmental Entity not to raise
any objection to the transaction, agreeing to dispose of any operations of the
Company the disposal of which could not reasonably be expected to have a
Material Adverse Effect with respect to the Company, (iii) defending any
lawsuits or other proceedings challenging this Agreement and (iv) accepting and
delivering additional instruments necessary to consummate the transactions
contemplated by this Agreement. The Company agrees that Parent shall have the
opportunity to negotiate and consult directly with all applicable Governmental
Entities in connection with their consideration of the transactions contemplated
by this Agreement, including, without limitation, the opportunity to select (to
the extent permitted by the applicable Governmental Entity), any operations to
be disposed of pursuant to clause (ii) above.
SECTION 5.04. INDEMNIFICATION. (a) From and after the Effective Time of the
Merger, Parent and the Surviving Corporation shall indemnify, defend and hold
harmless each person who is now, or has been at any time prior to the date
hereof or who becomes prior to the Effective Time of the Merger eligible for
indemnification pursuant to the Certificate of Incorporation and By-Laws (the
"Indemnified Parties") against (i) all losses, claims, damages, costs, expenses,
liabilities or judgments or amounts that are paid in settlement of or in
connection with any claim, action, suit, proceeding or investigation based in
whole or in part on or arising in whole or in part out of the fact that such
person is or was a director, officer or employee of the Company, pertaining to
any matter existing or occurring at or prior to the Effective Time of the
Merger, whether asserted or claimed prior to, or at or after, the Effective Time
of the Merger ("Indemnified Liabilities") and (ii) all Indemnified Liabilities
based in whole or in part on, or arising in whole or in part out of, or
pertaining to this Agreement or the transactions contemplated hereby, in each
case to the extent the Company would have been permitted under the Certificate
of Incorporation and By-laws to indemnify such person. Nothing contained herein
shall limit any rights to indemnification which any director or officer of the
Company may have under any indemnification agreement or the Certificate of
Incorporation or By-Laws. In the event any such claim, action, suit, proceeding
or investigation is brought against any Indemnified Parties (whether arising
before or after the Effective Time of the Merger), (i) any counsel retained by
the Indemnified Parties for any period after the Effective Time of the Merger
shall be reasonably satisfactory to Parent and the Surviving Corporation (it
being understood that Testa, Hurwitz & Thibeault, LLP is acceptable to Parent
and the Surviving Corporation); (ii) after the Effective Time of the Merger,
Parent or the Surviving Corporation shall pay all reasonable fees and expenses
of such counsel for the Indemnified Parties promptly as statements therefor are
received; and (iii) after the Effective Time of the Merger, the Surviving
Corporation will cooperate in the defense of any
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such matter, provided that the Surviving Corporation shall not be liable for any
settlement of any claim effected without its written consent, which consent,
however, shall not be unreasonably withheld. Any Indemnified Party wishing to
claim indemnification under this Section 5.04, upon learning of any such claim,
action, suit, proceeding or investigation, shall notify Parent and the Surviving
Corporation (but the failure so to notify the Surviving Corporation shall not
relieve them from any liability which they may have under this Section 5.04
except to the extent such failure materially prejudices Parent and the Surviving
Corporation), and shall deliver to Parent and the Surviving Corporation the
undertaking, if any, required by Section 145(e) of the DGCL. Parent and the
Surviving Corporation shall be liable for the fees and expenses hereunder with
respect to only one law firm to represent the Indemnified Parties as a group
with respect to each such matter unless there is, under applicable standards of
professional conduct, a conflict between the positions of any two or more
Indemnified Parties that would preclude or render inadvisable joint or multiple
representation of such parties.
(b) Parent shall cause to be maintained in effect for six years from the
Effective Time of the Merger directors' and officers' liability insurance
coverage covering persons who are directors and officers of the Company on the
date of this Agreement, with respect to matters occurring prior to the Effective
Time of the Merger, and containing terms and conditions which are not less
advantageous to such persons than the policies of the Company in effect on the
date hereof (the "COMPANY INSURANCE"); PROVIDED that Parent shall not be
required to spend annually in excess of 150% of the annual premium for the
Company Insurance paid by the Company as of the date of this Agreement (the
"CURRENT PREMIUM"); PROVIDED, FURTHER, that if Parent would be required to spend
annually in excess of 150% of the Current Premium to obtain insurance having
terms not less advantageous than the Company Insurance, the Surviving
Corporation will be required to spend up to such amount to maintain or procure
as much insurance coverage as can be procured for such premium.
SECTION 5.05. PUBLIC ANNOUNCEMENTS. Neither Parent and Sub, on the one hand,
nor the Company, on the other hand, will issue any press release or public
statement with respect to the transactions contemplated by this Agreement and
the Stock Option Agreement, including the Merger, without the other party's
prior consent (such consent not to be unreasonably withheld or delayed), except
as may be required by applicable law, court process or by obligations pursuant
to any agreement with any securities exchange or quotation system on which
securities of the disclosing party are listed or quoted. In addition to the
foregoing, Parent, Sub and the Company will consult with each other before
issuing, and provide each other the opportunity to review and comment upon, any
such press release or other public statements with respect to such transactions.
The parties agree that the initial press release or releases to be issued with
respect to the transactions contemplated by this Agreement shall be mutually
agreed upon prior to the issuance thereof.
SECTION 5.06. AFFILIATES. At least 40 days prior to the Closing Date, (i)
the Company shall deliver to Parent a letter identifying all persons who are, at
the time this Agreement is submitted for approval to the stockholders of the
Company, executive officers and directors of the Company and all other persons
that, to the knowledge of the Company, are "affiliates" of the Company (as that
term is used in Rule 145 under the Securities Act or SEC Accounting Releases 130
and 135) and shall use all reasonable efforts to cause each person named on the
letter delivered by it to deliver to Parent at least 30 days prior to the
Closing Date a written agreement, substantially in the form attached as Exhibit
B-1 and (ii) Parent shall deliver to Company a letter identifying all persons
who are, at the time this Agreement is submitted for approval to the
stockholders of the Company, executive officers of Parent and all other persons
that, to the knowledge of Parent are "affiliates" of Parent (as that term is
used in SEC Accounting Releases 130 and 135) and shall use all reasonable
efforts to cause each person named on the letter delivered by it to deliver to
the Company at least 30 days prior to the Closing Date a written agreement,
substantially in the form attached as Exhibit B-2.
SECTION 5.07. NO SOLICITATION. Neither the Company nor any of its
subsidiaries shall (whether directly or indirectly through advisors, agents or
other intermediaries), nor shall the Company or any of its
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subsidiaries authorize or permit any of its or their officers, directors,
agents, representatives, advisors or subsidiaries to, (a) solicit, initiate or
take any action knowingly to facilitate the submission of inquiries, proposals
or offers from any person (other than Sub or Parent) relating to (i) any
acquisition or purchase of 15% or more of the consolidated assets of the Company
and its subsidiaries or of over 15% of any class of equity securities of the
Company or any of its subsidiaries, (ii) any tender offer (including a self
tender offer) or exchange offer that if consummated would result in any Person
(as defined in Section 8.02) beneficially owning 15% or more of any class of
equity securities of the Company or any of its subsidiaries, (iii) any merger,
consolidation, business combination, sale of substantially all assets,
recapitalization, liquidation, dissolution or similar transaction involving the
Company or any of its subsidiaries whose assets, individually or in the
aggregate, constitute more than 15% of the consolidated assets of the Company
other than the transactions contemplated by this Agreement, or (iv) any other
transaction the consummation of which would or could reasonably be expected to
impede, interfere with, prevent or materially delay the Merger (collectively,
"TRANSACTION PROPOSALS"), or agree to or endorse any Transaction Proposal, or
(b) enter into or participate in any discussions or negotiations regarding any
of the foregoing, or furnish to any other person any information with respect to
its business, properties or assets or any of the foregoing, or otherwise
cooperate in any way with, or knowingly assist or participate in, facilitate or
encourage, any effort or attempt by any other person (other than Sub or Parent)
to do or seek any of the foregoing; PROVIDED, HOWEVER, that the foregoing shall
not prohibit the Company (either directly or indirectly through advisors, agents
or other intermediaries) from (i) furnishing information pursuant to an
appropriate confidentiality letter (which letter shall not be less favorable to
the Company in any material respect than the Confidentiality Agreement, dated as
of December 13, 1996, between the Company and Parent, and a copy of which shall
be provided for informational purposes only to Parent) concerning the Company
and its businesses, properties or assets to a third party who has made a bona
fide Transaction Proposal, (ii) engaging in discussions or negotiations with
such a third party who has made a bona fide Transaction Proposal, (iii)
following receipt of a bona fide Transaction Proposal, taking and disclosing to
its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under
the Exchange Act or otherwise making disclosure to its stockholders, (iv)
following receipt of a bona fide Transaction Proposal, failing to make or
withdrawing or modifying its recommendation referred to in Section 3.01(p),
and/or (v) taking any action required to be taken by the Company pursuant to a
non-appealable, final order by any court of competent jurisdiction, but in each
case referred to in the foregoing clauses (i) through (v) only to the extent
that the Board of Directors of the Company shall have concluded in good faith on
the basis of written advice (or advice confirmed in writing) from outside
counsel that the failure to take such action would be contrary to the fiduciary
duties of the Board of Directors of the Company to the stockholders of the
Company under applicable law; PROVIDED, FURTHER, that, to the extent that it may
do so without acting in a manner contrary to its fiduciary duties under
applicable law, the Board of Directors of the Company shall not take any of the
foregoing actions referred to in clauses (i) through (iv) until after reasonable
notice to Parent with respect to such action and that such Board of Directors
shall continue to advise Parent after taking such action and, in addition, if
the Board of Directors of the Company receives a Transaction Proposal, then the
Company shall promptly inform Parent of the material terms and conditions of
such proposal and the identity of the person making it. The Company will
immediately cease and cause its advisors, agents and other intermediaries to
cease any and all existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any of the foregoing, and shall use
its reasonable best efforts to cause any such parties in possession of
confidential information about the Company that was furnished by or on behalf of
the Company to return or destroy all such information in the possession of any
such party or in the possession of any agent or advisor of any such party.
SECTION 5.08. BENEFIT MATTERS. (a) During the period from the Effective Time
of the Merger until the first anniversary of the Effective Time of the Merger,
Parent shall cause the Surviving Corporation to maintain employee benefit plans
(as defined in Section 3(3) of ERISA) for the benefit of employees of the
Company or its subsidiaries, which are no less favorable in the aggregate to
those benefits provided under the Company Plans in effect on the date hereof.
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(b) Parent will cause the Surviving Corporation to, (i) waive all
limitations as to preexisting conditions, exclusions and waiting periods with
respect to participation and coverage requirements applicable to the employees
of the Company under any Parent welfare plan that such employees may be eligible
to participate in after the Effective Time of the Merger and (ii) provide each
employee of the Company with credit for any co-payments and deductibles paid
prior to the Effective Time of the Merger in satisfying any applicable
deductible or out-of-pocket requirements under any Parent welfare plans that
such employees are eligible to participate in after the Effective Time of the
Merger.
SECTION 5.09. STOCK EXCHANGE LISTING. Parent shall use all reasonable
efforts to cause the shares of Parent Common Stock to be issued in the Merger
and the shares of Parent Common Stock to be reserved for issuance upon exercise
of Company Stock Options, Warrants and the Convertible Notes to be approved for
listing on the NYSE and the Pacific Stock Exchange, subject to official notice
of issuance.
SECTION 5.10. LETTERS OF THE COMPANY'S ACCOUNTANTS. The Company shall use
its reasonable best efforts to cause to be delivered to Parent a letter of
Coopers & Lybrand LLP, the Company's independent public accountants, dated a
date within two business days before the Form S-4 shall become effective and a
letter of Coopers & Lybrand LLP dated a date within two business days before the
Closing Date, each addressed to Parent, in form and substance reasonably
satisfactory to Parent and customary in scope and substance for letters
delivered by independent public accountants in connection with registration
statements similar to the Form S-4.
SECTION 5.11. LETTERS OF PARENT'S ACCOUNTANTS. Parent shall use its
reasonable best efforts to cause to be delivered to the Company a letter of
Price Waterhouse LLP, Parent's independent public accountants, dated a date
within two business days before the Form S-4 shall become effective and a letter
of Price Waterhouse LLP dated a date within two business days before the Closing
Date, each addressed to the Company, in form and substance reasonably
satisfactory to the Company and customary in scope and substance for letters
delivered by independent public accountants in connection with registration
statements similar to the Form S-4.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.01. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
MERGER. The respective obligation of each party to effect the Merger is subject
to the satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) COMPANY STOCKHOLDER APPROVAL. The Company Stockholder Approval shall
have been obtained.
(b) HSR ACT. The waiting period (and any extension thereof) applicable to
the Merger under the HSR Act shall have been terminated or shall have expired.
(c) NO INJUNCTIONS OR RESTRAINTS. No temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Merger shall be in effect; PROVIDED, HOWEVER, that the
parties hereto shall use their best efforts to have any such injunction, order,
restraint or prohibition vacated.
(d) FORM S-4. The Form S-4 shall have become effective under the Securities
Act and shall not be the subject of any stop order or proceedings seeking a stop
order, and any material "blue sky" and other state securities laws applicable to
the registration and qualification of the Parent Common Stock issuable or
required to be reserved for issuance pursuant to this Agreement shall have been
complied with.
(e) STOCK EXCHANGE LISTING. The shares of Parent Common Stock issuable to
Company stockholders pursuant to this Agreement and such other shares of Parent
Common Stock required to be reserved for issuance in connection with the Merger
shall have been authorized for listing on the NYSE and the Pacific Stock
Exchange upon official notice of issuance.
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(f) POOLING. Parent shall have received a letter from Price Waterhouse LLP
to the effect that the Merger qualifies for "pooling of interests" accounting
treatment if consummated in accordance with this Agreement and such letter shall
not have been withdrawn. The Company shall have received a letter from Coopers &
Lybrand LLP to the effect that the Company is eligible to be acquired in a
transaction to be accounted for using "pooling of interests" accounting
treatment and such letter shall not have been withdrawn.
SECTION 6.02. CONDITIONS TO OBLIGATIONS OF PARENT AND SUB. The obligations
of Parent and Sub to effect the Merger are further subject to the following
conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Company set forth in this Agreement shall be true and correct, in each case,
as of the date of this Agreement and, if and to the extent such representations
and warranties speak as of a later date, as of such later date, except where the
failure of such representations and warranties to be so true and correct
(without giving effect to any limitation as to "materiality" or "Material
Adverse Effect" set forth therein) would not individually or in the aggregate
reasonably be expected to have a Material Adverse Effect. Parent shall have
received a certificate signed on behalf of the Company by the chief executive
officer, the president and the chief financial officer of the Company to the
effect set forth in this paragraph.
(b) PERFORMANCE OF OBLIGATIONS OF THE COMPANY. The Company shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date. Parent shall have
received a certificate signed on behalf of the Company by the chief executive
officer, the president and the chief financial officer of the Company to the
effect set forth in this paragraph.
(c) CONSENTS, ETC. Parent and Sub shall have received evidence, in form and
substance reasonably satisfactory to it, that such licenses, permits, consents,
approvals, authorizations, qualifications and orders of (i) any United States
federal or state governmental authorities and governmental authorities in
Germany, Japan, France, the United Kingdom or any political subdivision thereof
or (ii) any other governmental authorities or third parties as are necessary in
connection with the transactions contemplated hereby have been obtained, except
in the case of clause (ii) where the failure to obtain such licenses, permits,
consents, approvals, authorizations, qualifications and orders could not,
individually or in the aggregate with all other failures, reasonably be expected
to have a Material Adverse Effect with respect to the Company.
(d) NO LITIGATION. There shall not be pending or threatened by any
Governmental Entity any suit, action or proceeding (i) challenging or seeking to
restrain or prohibit the consummation of the Merger or any of the other
transactions contemplated by this Agreement or the Stock Option Agreement or
seeking to obtain from the Company, Parent, Sub or any of their affiliates any
damages that could reasonably be expected to have a Material Adverse Effect with
respect to the Company, (ii) seeking to prohibit or limit the ownership or
operation by the Company, Parent or any of their respective subsidiaries of any
material portion of the business or assets of the Company and its subsidiaries
taken as a whole or to dispose of or hold separate any material portion of the
business or assets of the Company and its subsidiaries taken as a whole, as a
result of the Merger or any of the other transactions contemplated by this
Agreement or the Stock Option Agreement, (iii) seeking to impose limitations on
the ability of Parent to acquire or hold, or exercise full rights of ownership
of, any shares of the common stock of the Surviving Corporation, including,
without limitation, the right to vote such common stock on all matters properly
presented to the stockholders of the Surviving Corporation or (iv) seeking to
prohibit Parent or any of its subsidiaries from effectively controlling in any
material respect the business or operations of the Company and its subsidiaries
taken as a whole. No suit, action or proceeding by any other person shall be
pending that seeks any of the relief or remedies described in clauses (i)
through (iv) of the immediately preceding sentence as to which there is a
reasonable possibility of success or that otherwise could reasonably be expected
to have a Material Adverse Effect with respect to the Company.
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(e) AFFILIATE LETTERS. Parent shall have received the agreements to which it
is party referred to in Section 5.06.
(f) TAX OPINION. Parent shall have received the opinion of Simpson Thacher &
Bartlett, counsel to Parent, dated the Closing Date, to the effect that (i) the
Merger will be treated for Federal income tax purposes as a reorganization
within the meaning of Section 368(a) of the Code and (ii) Parent, Sub and the
Company will each be a party to that reorganization within the meaning of
Section 368(b) of the Code. The parties to this Agreement agree to make
reasonable representations as requested by counsel for the purpose of rendering
such opinion.
(g) RIGHTS AGREEMENT. None of the events described in Section 11(a)(ii) or
13 of the Rights Agreement shall have occurred, and the Rights shall not have
become nonredeemable and shall not become nonredeemable upon consummation of the
Merger.
SECTION 6.03. CONDITIONS TO OBLIGATION OF THE COMPANY. The obligation of the
Company to effect the Merger is further subject to the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Parent and Sub set forth in this Agreement shall be true and correct, in each
case, as of the date of this Agreement and, if and to the extent such
representations and warranties speak as of a later date, as of such later date,
except where the failure of such representations and warranties to be so true
and correct (without giving effect to any limitation as to "materiality" or
"material adverse effect" set forth therein) would not individually or in the
aggregate reasonably be expected to have a Material Adverse Effect with respect
to Parent. The Company shall have received a certificate signed on behalf of
Parent and Sub by an authorized officer of Parent and Sub to the effect set
forth in this paragraph.
(b) PERFORMANCE OF OBLIGATIONS OF PARENT AND SUB. Parent and Sub shall have
performed in all material respects all obligations required to be performed by
each of them under this Agreement at or prior to the Closing Date. The Company
shall have received a certificate signed on behalf of Parent and Sub by an
authorized officer of Parent and Sub to the effect set forth in this paragraph.
(c) TAX OPINION. The Company shall have received the opinion of Testa,
Hurwitz & Thibeault, LLP, counsel to the Company, dated the Closing Date, to the
effect that (i) the Merger will be treated for Federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the Code and (ii) Parent,
Sub and the Company will each be a party to that reorganization within the
meaning of Section 368(b) of the Code. The parties to this Agreement agree to
make reasonable representations as requested by counsel for the purpose of
rendering such opinion.
(d) AFFILIATE LETTERS. The Company shall have received the agreements to
which it is party referred to in Section 5.06.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
SECTION 7.01. TERMINATION. This Agreement may be terminated and abandoned at
any time prior to the Effective Time of the Merger, whether before or after the
Company Stockholder Approval:
(a) by mutual written consent of Parent and the Company; or
(b) by either Parent or the Company if any Governmental Entity shall have
issued an order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the Merger and such order,
decree, ruling or other action shall have become final and nonappealable; or
(c) by either Parent or the Company if the Merger shall not have been
consummated on or before January 31, 1998 (other than due to the failure of the
party seeking to terminate this Agreement to
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perform its obligations under this Agreement required to be performed at or
prior to the Effective Time of the Merger); or
(d) by either Parent or the Company if at the duly held meeting of the
stockholders of the Company (including any adjournment thereof) held for the
purpose of voting on the Merger, this Agreement and the consummation of the
transactions contemplated hereby, the holders of a majority of the outstanding
shares of Company Common Stock shall not have approved the Merger, this
Agreement and the consummation of the transactions contemplated hereby; or
(e) by Parent, if the Company or its Board of Directors shall have (1)
withdrawn, modified or amended in any respect adverse to Parent its approval or
recommendation of this Agreement or any of the transactions contemplated herein,
(2) failed as promptly as practicable after the Form S-4 is declared effective
to mail the Proxy Statement to its stockholders or failed to include in such
statement such recommendation, (3) recommended any Transaction Proposal from a
person other than Parent or any of its affiliates, (4) resolved to do any of the
foregoing or (5) in response to the commencement of any tender offer or exchange
offer for more than 15% of the outstanding shares of Company Common Stock, not
recommended rejection of such tender offer or exchange offer; or
(f) by the Company, if, pursuant to and in compliance with Section 5.07
hereof, the Board of Directors of the Company concludes in good faith, based on
written advice (or advice confirmed in writing) from outside counsel, that in
order to avoid acting in a manner contrary to the fiduciary duties of the Board
of Directors of the Company to the stockholders of the Company under the DGCL,
the Board of Directors must not make or must withdraw or modify its
recommendation referred to in Section 3.01(p) and the Board of Directors does
not make or withdraws or modifies such recommendation.
SECTION 7.02. EFFECT OF TERMINATION. In the event of termination of this
Agreement by either the Company or Parent as provided in Section 7.01, this
Agreement shall forthwith become void and have no effect, without any liability
or obligation on the part of Parent, Sub or the Company, other than the
provisions of Section 3.01(n), Section 3.02(h), the last sentence of Section
5.02(a), this Section 7.02, Section 8.02 and Section 8.07. Nothing contained in
this Section shall relieve any party for any breach of the representations,
warranties, covenants or agreements set forth in this Agreement.
SECTION 7.03. AMENDMENT. This Agreement may be amended by the parties at any
time before or after any required approval of matters presented in connection
with the Merger by the stockholders of the Company; PROVIDED, HOWEVER, that
after any such approval, there shall be made no amendment that by law requires
further approval by such stockholders without the further approval of such
stockholders. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties.
SECTION 7.04. EXTENSION; WAIVER. At any time prior to the Effective Time of
the Merger, the parties may (a) extend the time for the performance of any of
the obligations or other acts of the other parties, (b) waive any inaccuracies
in the representations and warranties contained in this Agreement or in any
document delivered pursuant to this Agreement or (c) subject to the proviso of
Section 7.03, waive compliance with any of the agreements or conditions
contained in this Agreement. Any agreement on the part of a party to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party. The failure of any party to this Agreement to
assert any of its rights under this Agreement or otherwise shall not constitute
a waiver of such rights.
SECTION 7.05. PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER. A
termination of this Agreement pursuant to Section 7.01, an amendment of this
Agreement pursuant to Section 7.03 or an extension or waiver pursuant to Section
7.04 shall, in order to be effective, require in the case of Parent, Sub or the
Company, action by its Board of Directors or the duly authorized designee of its
Board of Directors.
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ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.01. NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Effective Time of the Merger and
all such representations and warranties will be extinguished on consummation of
the Merger and neither the Company, the Parent, Sub, nor any officer, director
or employee or shareholder of any of them shall be under any liability
whatsoever with respect to any such representation or warranty after such time.
This Section 8.01 shall not limit any covenant or agreement of the parties which
by its terms contemplates performance after the Effective Time of the Merger.
SECTION 8.02. FEES AND EXPENSES. (a) (i) If this Agreement shall have been
terminated in accordance with its terms (except pursuant to Section 7.01(b)) AND
either of the following shall have occurred: (A) prior to such termination, any
corporation (including the Company or any of its subsidiaries or affiliates),
partnership, person, other entity or "group" (as referred to in Section 13(d)(3)
of the Exchange Act) other than Parent, Sub or any of its affiliates
(collectively, "PERSONS"), shall have become the beneficial owner of more than
15% of the outstanding shares of Company Common Stock; or (B)(x) prior to such
termination, any Person shall have made, or proposed, communicated or disclosed
in a manner which is or otherwise becomes public (including being known by
stockholders of the Company owning of record or beneficially in the aggregate 5%
or more of the outstanding shares of Company Common Stock) a bona fide intention
to make a Transaction Proposal (including by making such a Transaction Proposal)
AND (y) on or prior to August 23, 1998, the Company either consummates with a
Person a transaction the proposal of which would otherwise qualify as a
Transaction Proposal under Section 5.07 or enters into a definitive agreement
with a Person with respect to a transaction the proposal of which would
otherwise qualify as a Transaction Proposal under Section 5.07 (whether or not
such Person is the Person referred to in clause (x) above); or
(ii) if this Agreement is terminated pursuant to Section 7.01(e) or
Section 7.01(f);
then the Company shall, (1) in the case of clause (a)(i)(A) and (a)(ii) above,
promptly, but in no event later than one business day after the termination of
this Agreement and (2) in the case of clause (a)(i)(B) above, promptly, but in
no event later than one business day after an event specified in subclause (y)
thereof shall have occurred, pay Parent a fee of $11,000,000 in cash, which
amount shall be payable in same day funds. No termination of this Agreement at a
time when a fee is reasonably expected to be payable pursuant to this Section
8.02(a) following termination of this Agreement shall be effective until such
fee is paid.
(b) In the event that the Merger is consummated, Parent shall (i) pay all
out-of-pocket costs, fees and expenses otherwise payable by the Surviving
Corporation directly and solely in connection with the transactions contemplated
by this Agreement and the Stock Option Agreement and (ii) pay the Repurchase
Price (as defined in the Convertible Notes Indenture) with respect to any
Convertible Notes required to be repurchased by the Company pursuant to the
terms of the Convertible Notes Indenture.
(c) Except as provided otherwise in paragraphs (a) and (b) above, all costs
and expenses incurred in connection with this Agreement and the Stock Option
Agreement and the transactions contemplated hereby and thereby shall be paid by
the party incurring such expenses, except that the cost of filing, printing and
distributing the Proxy Statement and the Form S-4 shall be borne equally by
Parent and the Company.
SECTION 8.03. NOTICES. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight
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<PAGE>
courier (providing proof of delivery) to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
(a) if to Parent or Sub, to
The Perkin-Elmer Corporation
761 Main Street
Norwalk, Connecticut 06897
Attention: Chief Executive Officer
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Attention: James M. Cotter, Esq.
Richard A. Garvey, Esq.
(b) if to the Company, to
PerSeptive Biosystems, Inc.
500 Old Connecticut Path
Framingham, MA 01701
Attention: Chief Executive Officer
with a copy to:
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, Massachusetts 02110
Attention: George Lloyd, Esq.
Rufus C. King, Esq.
SECTION 8.04. DEFINITIONS. For purposes of this Agreement:
(a) an "AFFILIATE" of any person means another person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first person;
(b) "ENVIRONMENTAL CLAIM" means any written or oral notice, claim, demand,
action, suit, complaint, proceeding or other communication by any person
alleging liability or potential liability (including without limitation
liability or potential liability for investigatory costs, cleanup costs,
governmental response costs, natural resource damages, property damage, personal
injury, fines or penalties) arising out of, relating to, based on or resulting
from (A) the presence, discharge, emission, release or threatened release of any
Hazardous Materials at any location, whether or not owned, leased or operated by
the Company or any of its subsidiaries or (B) circumstances forming the basis of
any violation or alleged violation of any Environmental Law or Environmental
Permit or (C) otherwise relating to obligations or liabilities under any
Environmental Laws;
(c) "ENVIRONMENTAL PERMITS" means all permits, licenses, registrations and
other governmental authorizations required under Environmental Laws for the
Company and its subsidiaries to conduct their operations and businesses on the
date hereof and consistent with past practices;
(d) "ENVIRONMENTAL LAWS" means all applicable federal, state and local
statutes, rules, regulations, ordinances, orders, decrees and common law
relating in any manner to contamination, pollution or protection of the
environment, including without limitation the Comprehensive Environmental
Response, Compensation and Liability Act, the Solid Waste Disposal Act, the
Clean Air Act, the Clean Water Act,
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the Toxic Substances Control Act, the Occupational Safety and Health Act, the
Emergency Planning and Community-Right-to-Know Act, the Safe Drinking Water Act,
all as amended, and similar state laws;
(e) "EXCHANGE RATIO" means $13.00 divided by the Parent Common Stock Price,
rounded to the nearest 1/10,000, provided that the Exchange Ratio shall not be
less than .1486 nor more than .1926.
(f) "HAZARDOUS MATERIALS" means all hazardous or toxic substances, wastes,
materials or chemicals, petroleum (including crude oil or any fraction thereof)
and petroleum products, friable asbestos and asbestos-containing materials,
pollutants, contaminants and all other materials, and substances regulated
pursuant to, or that could reasonably be expected to provide the basis of
liability under, any Environmental Law;
(g) "INDEBTEDNESS" means, with respect to any person, without duplication,
(A) all obligations of such person for borrowed money, or with respect to
deposits or advances of any kind to such person, (B) all obligations of such
person evidenced by bonds, debentures, notes or similar instruments, (C) all
obligations of such person under conditional sale or other title retention
agreements relating to property purchased by such person, (D) all obligations of
such person issued or assumed as the deferred purchase price of property or
services (excluding obligations of such person to creditors for raw materials,
inventory, services and supplies incurred in the ordinary course of such
person's business), (E) all capitalized lease obligations of such person, (F)
all obligations of others secured by any Lien on property or assets owned or
acquired by such person, whether or not the obligations secured thereby have
been assumed, (G) all obligations of such person under interest rate or currency
hedging transactions (valued at the termination value thereof), (H) all letters
of credit issued for the account of such person and (I) all guarantees and
arrangements having the economic effect of a guarantee of such person of any
indebtedness of any other person;
(h) "INTELLECTUAL PROPERTY" means all rights, privileges and priorities
provided under federal, state, foreign and multinational law relating to
intellectual property, including without limitation all (i) (a) inventions,
discoveries, processes, formulae, designs, methods, techniques, procedures,
concepts, developments, technology, new and useful improvements thereof and
know-how relating thereto, whether or not patented or eligible for patent
protection; (b) copyrights and copyrightable works, including computer
applications, programs, software, databases and related items; (c) trademarks,
service marks, trade names, brand names, corporate names, logos and trade dress,
the goodwill of any business symbolized thereby, and all common-law rights
relating thereto; (d) trade secrets and other confidential information; and (ii)
all registrations, applications, recordings, and licenses or other similar
agreements related to the foregoing;
(i) "KNOWLEDGE" means, with respect to any matter, (i) in the case of
Parent, the knowledge of any director, executive officer or the General Counsel
of Parent after due inquiry into such matter and (ii) in the case of the
Company, the knowledge of Noubar Afeyan, John Smith, Donald Schoeny, Dick
Farrahar, Gerry Ruane, Archie Szeto, Samuel Hunt, Jeffrey Moore, and Marvin
Vestal after due inquiry into such matter.
(j) "MATERIAL ADVERSE CHANGE" or "MATERIAL ADVERSE EFFECT" means, when used
in connection with the Company or Parent, any change, effect, event or
occurrence that either individually or in the aggregate with all other such
changes, effects, events and occurrences is materially adverse to the business,
properties, financial condition or results of operations of the Company or
Parent, as the case may be, and its subsidiaries taken as a whole.
(k) "PARENT COMMON STOCK PRICE" means the average of the closing sales
prices of Parent Common Stock on the New York Stock Exchange Composite
Transactions Tape on each of the 20 consecutive trading days immediately
preceding the second trading day prior to the Effective Time of the Merger.
(l) "PERSON" means an individual, corporation, partnership, joint venture,
association, trust, unincorporated organization or other entity;
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(m) "RECENT SEC DOCUMENTS" means any SEC Documents filed by the Company
prior to the date of this Agreement with respect to any period ending, or any
date occurring, on or after September 30, 1996.
(n) "RIGHTS" means the rights to acquire one-hundredth of a share of Series
B Preferred Stock issued pursuant to the Rights Agreement; and
(o) a "SUBSIDIARY" of any person means another person, an amount of the
voting securities, other voting ownership or voting partnership interests of
which is sufficient to elect at least a majority of its Board of Directors or
other governing body (or, if there are no such voting interests, 50% or more of
the equity interests of which) is owned directly or indirectly by such first
person.
SECTION 8.05. INTERPRETATION. When a reference is made in this Agreement to
a Section, Exhibit or Schedule, such reference shall be to a Section of, or an
Exhibit or Schedule to, this Agreement unless otherwise indicated. The table of
contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation".
SECTION 8.06. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
SECTION 8.07. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
and the other agreements referred to herein constitute the entire agreement, and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter of this Agreement. This
Agreement, other than Section 5.04 and Section 5.08, is not intended to confer
upon any person other than the parties any rights or remedies.
SECTION 8.08. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF
LAWS.
SECTION 8.09. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
SECTION 8.10. ENFORCEMENT. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement.
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IN WITNESS WHEREOF, Parent, Sub and the Company have caused this Agreement
to be signed by their respective officers thereunto duly authorized, all as of
the date first written above.
<TABLE>
<S> <C> <C>
THE PERKIN-ELMER CORPORATION
By: /s/ PETER BARRETT
-----------------------------------------
Name: Peter Barrett
Title: Vice President
SEVEN ACQUISITION CORP.
By: /s/ PETER BARRETT
-----------------------------------------
Name: Peter Barrett
Title: Vice President
PERSEPTIVE BIOSYSTEMS, INC.
By: /s/ NOUBAR B. AFEYAN
-----------------------------------------
Name: Noubar B. Afeyan
Title: Chief Executive Officer and
Chairman of the Board of Directors
</TABLE>
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ANNEX II
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of August 23, 1997 (the "Agreement"), by
and between PerSeptive Biosystems, Inc., a Delaware corporation ("Issuer"), and
The Perkin-Elmer Corporation, a New York corporation ("Grantee").
WHEREAS, Grantee, Issuer and Seven Acquisition Corp., a Delaware corporation
and a wholly-owned subsidiary of Grantee ("Sub"), are concurrently herewith
entering into an Agreement and Plan of Merger, dated as of the date hereof (the
"Merger Agreement"; capitalized terms not defined herein shall have the meanings
set forth in the Merger Agreement), providing for, among other things, the
merger of Sub with and into Issuer with Issuer as the surviving corporation; and
WHEREAS, as a condition and inducement to Grantee's willingness to enter
into the Merger Agreement, Grantee has requested that Issuer agree, and Issuer
has agreed, to grant Grantee the Option (as defined below);
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, Issuer and Grantee agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions set forth herein,
Issuer hereby grants to Grantee an irrevocable option (the "Option") to purchase
up to 4,478,308 (as adjusted as set forth herein) shares (the "Option Shares")
of Common Stock, par value $.01 per share, of Issuer (the "Issuer Common Stock")
at a purchase price of $13.00 per Option Share (the "Purchase Price").
2. EXERCISE OF OPTION. (a) If not in material breach of the Merger
Agreement, Grantee may exercise the Option, in whole or in part, at any time
(or, to the extent permitted pursuant to Section 2(c) hereof, from time to time)
following the occurrence of a Purchase Event (as defined below); PROVIDED that,
except as otherwise provided herein, the Option shall terminate and be of no
further force and effect upon the earliest to occur of (i) the Effective Time of
the Merger, (ii) 12 months after the first occurrence of a Purchase Event or
(iii) termination of the Merger Agreement prior to the occurrence of a Purchase
Event. The termination of the Option shall not affect any rights hereunder which
by their terms extend beyond the date of such termination.
(b) As used herein, a "Purchase Event" means the termination of the Merger
Agreement under any circumstance which would entitle Grantee or Issuer to
receive any fee from Issuer pursuant to Section 8.02(a) of the Merger Agreement,
PROVIDED, HOWEVER, that the termination of the Merger Agreement (except pursuant
to Section 7.01(b) thereof) after the occurrence of any event described in
Section 8.02(a)(i)(B)(x) thereof shall constitute a Purchase Event hereunder
whether or not any event described forth in Section 8.02(a)(i)(B)(y) of the
Merger Agreement shall have occurred.
(c) Except as otherwise provided in this Section 2(c), Grantee shall be
entitled to exercise the Option, in whole or in part, on only one occasion and,
if Grantee elects to exercise the Option only in part, the unexercised portion
of the Option shall be forfeited and cancelled. Notwithstanding the foregoing,
in the event that by virtue of (i) any statute, law, rule or regulation
applicable to Grantee or Issuer, (ii) any order, decree or injunction to which
Grantee or Issuer is subject, (iii) any provision of Issuer's Certificate of
Incorporation or By-Laws, (iv) any agreement, instrument or other document to
which Issuer is a party or by which it is bound or (v) the terms of any security
issued by Issuer, (A) Grantee shall be prohibited from acquiring or holding any
of the Option Shares, (B) Grantee shall be unable to exercise full rights of
ownership with respect to any of the Option Shares (including, without
limitation, the right to vote such Option Shares on all matters properly
presented to the stockholders of Issuer) or (C) any of such Option Shares shall
be in any way distinguishable from, or of lesser economic value than, any other
shares of Issuer Common Stock (any of the conditions described in clauses (A)
through (C), an "Impairment"; and
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the portion of the Option Shares affected by an Impairment, the "Impaired
Portion" of the Option Shares), then upon a partial exercise of the Option by
Grantee, the portion of the Option relating to the Impaired Portion of the
Option Shares shall not be forfeited or cancelled but shall remain exercisable
by Grantee in accordance with the terms of this Agreement. When all Impairments
relating to any Impaired Portion of the Option Shares have been eliminated,
Grantee may from time to time exercise the Option with respect to Option Shares
previously affected by such Impairment and upon any such exercise, the
unexercised portion of the Option (other than any remaining Impaired Portion)
shall be forfeited and cancelled.
(d) In the event Grantee wishes to exercise the Option, it shall send to
Issuer a written notice (the date of which being herein referred to as the
"Notice Date") specifying (i) the total number of Option Shares it intends to
purchase pursuant to such exercise and (ii) a place and date not earlier than
three business days nor later than 20 business days from the Notice Date for the
closing of such purchase (the "Closing"; and the date of such Closing, the
"Closing Date"); PROVIDED that the Closing shall be held only if (i) such
purchase would not otherwise violate or cause the violation of applicable law
(including the HSR Act) and (ii) no statute, rule, regulation, decree, order or
injunction shall have been promulgated, enacted, entered into, or enforced by
any Governmental Entity which prohibits delivery of the Option Shares, whether
temporary, preliminary or permanent (PROVIDED, HOWEVER, that the parties hereto
shall use their best efforts to have any such decree, order or injunction
vacated or reversed). If the Closing cannot be consummated by reason of a
restriction set forth in clause (i) or (ii) above, notwithstanding the
provisions of Section 2(a), the Closing Date shall be within 10 business days
following the elimination of such restriction.
3. PAYMENT AND DELIVERY OF CERTIFICATES. (a) On each Closing Date, Grantee
shall pay to Issuer in immediately available funds by wire transfer to a bank
account designated by Issuer an amount equal to the Purchase Price multiplied by
the Option Shares to be purchased on such Closing Date.
(b) At each Closing, simultaneously with the delivery of immediately
available funds as provided in Section 3(a), Issuer shall deliver to Grantee a
certificate or certificates representing the Option Shares to be purchased at
such Closing, which Option Shares shall be free and clear of all Liens, and
Grantee shall deliver to Issuer a letter agreeing that Grantee shall not offer
to sell or otherwise dispose of such Option Shares in violation of applicable
law or the provisions of this Agreement. If at the time of issuance of any
Option Shares pursuant to an exercise of all or part of the Option hereunder,
Issuer shall not have redeemed the Rights, or shall have issued any similar
securities, then each Option Share issued pursuant to such exercise shall also
represent a corresponding Right or new rights with terms substantially the same
as and at least as favorable to Grantee as are provided under the Rights
Agreement or any similar agreement then in effect.
(c) Certificates for the Option Shares delivered at each Closing shall be
endorsed with a restrictive legend which shall read substantially as follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
PURSUANT TO THE TERMS OF A STOCK OPTION AGREEMENT DATED AS OF AUGUST 23,
1997. A COPY OF SUCH AGREEMENT WILL BE PROVIDED TO THE HOLDER HEREOF WITHOUT
CHARGE UPON RECEIPT BY THE ISSUER OF A WRITTEN REQUEST THEREFOR.
It is understood and agreed that (i) the reference to restrictions arising under
the Securities Act in the above legend shall be removed by delivery of
substitute certificate(s) without such reference if Grantee shall have delivered
to Issuer a copy of a letter from the staff of the SEC, or an opinion of counsel
in form and substance reasonably satisfactory to Issuer and its counsel, to the
effect that such legend is not required for purposes of the Securities Act and
(ii) the reference to restrictions pursuant to this Agreement in the above
legend shall be removed by delivery of substitute certificate(s) without such
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reference if the Option Shares evidenced by certificate(s) containing such
reference have been sold or transferred in compliance with the provisions of
this Agreement under circumstances that do not require the retention of such
reference.
4. AUTHORIZED STOCK. Issuer hereby represents and warrants to Grantee that
Issuer has taken all necessary corporate and other action to authorize and
reserve and to permit it to issue, and, at all times from the date hereof until
the obligation to deliver Issuer Common Stock upon the exercise of the Option
terminates, will have reserved for issuance, upon exercise of the Option, shares
of Issuer Common Stock necessary for Grantee to exercise the Option, and Issuer
will take all necessary corporate action to authorize and reserve for issuance
all additional shares of Issuer Common Stock or other securities which may be
issued pursuant to Section 6 upon exercise of the Option. The shares of Issuer
Common Stock to be issued upon due exercise of the Option, including all
additional shares of Issuer Common Stock or other securities which may be
issuable upon exercise of the Option pursuant to Section 6, upon issuance
pursuant hereto, shall be duly and validly issued, fully paid and nonassessable,
and shall be delivered free and clear of all Liens, including any preemptive
rights of any stockholder of Issuer.
5. PURCHASE NOT FOR DISTRIBUTION. Grantee hereby represents and warrants to
Issuer that any Option Shares or other securities acquired by Grantee upon
exercise of the Option will not be taken with a view to the public distribution
thereof and will not be transferred or otherwise disposed of except in a
transaction registered or exempt from registration under the Securities Act.
6. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC. (a) In the event of any
change in Issuer Common Stock by reason of a stock dividend, split-up,
recapitalization, combination, exchange of shares or similar transaction, the
type and number of shares or securities subject to the Option, and the Purchase
Price therefor, shall be adjusted appropriately, and proper provision shall be
made in the agreements governing such transaction, so that Grantee shall receive
upon exercise of the Option the number and class of shares or other securities
or property that Grantee would have received in respect of Issuer Common Stock
if the Option had been exercised immediately prior to such event or the record
date therefor, as applicable. If any additional shares of Issuer Common Stock
are issued after the date of this Agreement at a price per share less than the
Purchase Price, the number of shares of Issuer Common Stock subject to the
Option shall be adjusted so that, after such issuance, it equals 19.9% of the
number of shares of Issuer Common Stock then issued and outstanding, without
giving effect to any shares subject to or issued pursuant to the Option.
(b) In the event that Issuer shall enter into an agreement (i) to
consolidate with or merge into any person, other than Grantee or one of its
subsidiaries, and shall not be the continuing or surviving corporation of such
consolidation or merger, (ii) to permit any person, other than Grantee or one of
its subsidiaries, to merge into Issuer and Issuer shall be the continuing or
surviving corporation, but, in connection with such merger, the shares of Issuer
Common Stock outstanding immediately prior to the consummation of such merger
shall be changed into or exchanged for stock or other securities of Issuer or
any other person or cash or any other property, or the shares of Issuer Common
Stock outstanding immediately prior to the consummation of such merger shall
after such merger represent less than 50% of the outstanding voting securities
of the merged company, or (iii) to sell or otherwise transfer all or
substantially all of its assets to any person, other than Grantee or one of its
subsidiaries, then, and in each such case, the agreement governing such
transaction shall make proper provisions so that the Option shall, upon the
consummation of any such transaction and upon the terms and conditions set forth
herein, be converted into, or exchanged for, an option (the "Substitute
Option"), at the election of Grantee, of either (I) the Acquiring Corporation
(as defined below) or (II) any person that controls the Acquiring Corporation
(any such person specified in clause (I) or (II) being referred to as
"Substitute Option Issuer").
(c) The Substitute Option shall have the same terms as the Option; PROVIDED
that the exercise price therefor and number of shares subject thereto shall be
as set forth in this Section 6 and the repurchase rights relating thereto shall
be as set forth in Section 8; PROVIDED, FURTHER, that the Substitute Option
shall be
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exercisable immediately upon issuance without the occurrence of a Purchase Event
with respect to the Substitute Option; and PROVIDED, FURTHER, that if the terms
of the Substitute Option cannot, for legal reasons, be the same as the Option
(subject to the variations described in the foregoing provisos), such terms
shall be as similar as possible and in no event less advantageous to Grantee.
Substitute Option Issuer shall also enter into an agreement with Grantee in
substantially the same form as this Agreement (subject to the variations
described in the foregoing provisos), which shall be applicable to the
Substitute Option.
(d) The Substitute Option shall be exercisable for such number of shares of
Substitute Common Stock (as defined below) as is equal to the Assigned Value (as
defined below) multiplied by the number of shares of Issuer Common Stock for
which the Option was theretofore exercisable, divided by the Average Price (as
defined below), rounded up to the nearest whole share. The exercise price per
share of Substitute Common Stock of the Substitute Option (the "Substitute
Option Price") shall then be equal to the Purchase Price multiplied by a
fraction in which the numerator is the number of shares of Issuer Common Stock
for which the Option was theretofore exercisable and the denominator is the
number of shares of Substitute Common Stock for which the Substitute Option is
exercisable.
(e) In no event, pursuant to any of the foregoing paragraphs, shall the
Substitute Option be exercisable for more than 19.9% of the aggregate of the
shares of Substitute Common Stock outstanding prior to exercise of the
Substitute Option. In the event that the Substitute Option would be exercisable
for more than 19.9% of the aggregate of the shares of outstanding Substitute
Common Stock but for the limitation in the first sentence of this Section 6(e),
Substitute Option Issuer shall make a cash payment to Grantee equal to the
excess of (i) the value of the Substitute Option without giving effect to the
limitation in the first sentence of this Section 6(e) over (ii) the value of the
Substitute Option after giving effect to the limitation in the first sentence of
this Section 6(e). This difference in value shall be determined by a nationally
recognized investment banking firm selected by Grantee.
(f) Issuer shall not enter into any transaction described in Section 6(b)
unless the Acquiring Corporation and any person that controls the Acquiring
Corporation assume in writing all the obligations of Issuer hereunder and take
all other actions that may be necessary so that the provisions of this Agreement
are given full force and effect (including, without limitation, any action that
may be necessary so that the holders of the other shares of common stock issued
by Substitute Option Issuer are not entitled to exercise any rights comparable
to the Rights by reason of the issuance or exercise of the Substitute Option and
the shares of Substitute Common Stock are otherwise in no way distinguishable
from or have lesser economic value than other shares of common stock issued by
Substitute Option Issuer (other than any diminution in value resulting from the
fact, if applicable, that the shares of Substitute Common Stock are restricted
securities, as defined in Rule 144 under the Securities Act or any successor
provision)).
(g) For purposes of this Agreement, the following terms have the following
meanings:
(1) "Acquiring Corporation" means (i) the continuing or surviving
corporation of a consolidation or merger with Issuer (if other than Issuer),
(ii) Issuer in a merger in which Issuer is the continuing or surviving
corporation and (iii) the transferee of all or substantially all of Issuer's
assets.
(2) "Assigned Value" means the highest of (w) the price per share of
Issuer Common Stock at which a tender offer or exchange offer for Issuer
Common Stock has been made after the date hereof and prior to the
consummation of the consolidation, merger or sale referred to in Section
6(b), (x) the price per share to be paid by any third party or the
consideration per share to received by holders of Issuer Common Stock, in
each case pursuant to the agreement with Issuer with respect to the
consolidation, merger or sale referred to in Section 6(b), (y) the highest
closing sales price per share for Issuer Common Stock quoted on the NYSE (or
if such Issuer Common Stock is not quoted on the NYSE, the highest bid price
per share as quoted on the National Association of Securities Dealers
Automated Quotation System or, if the shares of Issuer Common Stock are not
quoted thereon, on the principal trading market on which such shares are
traded as reported by a recognized source) during the 12-month period
immediately preceding the consolidation, merger or sale referred to in
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Section 6(b) and (z) in the event the transaction referred to in Section
6(b) is a sale of all or substantially all of Issuer's assets, an amount
equal to (i) the sum of the price paid in such sale for such assets and the
current market value of the remaining assets of Issuer, as determined by a
nationally recognized investment banking firm selected by Grantee divided by
(ii) the number of shares of Issuer Common Stock outstanding at such time.
In the event that a tender offer or exchange offer is made for Issuer Common
Stock or an agreement is entered into for a merger or consolidation
involving consideration other than cash, the value of the securities or
other property issuable or deliverable in exchange for Issuer Common Stock
shall be determined by a nationally recognized investment banking firm
selected by Grantee.
(3) "Average Price" means the average closing sales price per share of a
share of Substitute Common Stock quoted on the NYSE (or if such Substitute
Common Stock is not quoted on the NYSE, the highest bid price per share as
quoted on the National Association of Securities Dealers Automated Quotation
System or, if the shares of Substitute Common Stock are not quoted thereon,
on the principal trading market on which such shares are traded as reported
by a recognized source) for the twenty trading days immediately preceding
the fifth business day prior to the consolidation, merger or sale in
question, but in no event higher than the closing price of the shares of
Substitute Common Stock on the day preceding such consolidation, merger or
sale; PROVIDED that if Substitute Option Issuer is Issuer, the Average Price
shall be computed with respect to a share of common stock issued by Issuer,
the person merging into Issuer or by any company which controls such person,
as Grantee may elect.
(4) "Substitute Common Stock" means the shares of capital stock (or
similar equity interest) with the greatest voting power in respect of the
election of directors (or persons similarly responsible for the direction of
the business and affairs) of the Substitute Option Issuer.
7. REPURCHASE OF OPTION AND OPTION SHARES. (a) Notwithstanding the
provisions of Section 2(a), at any time commencing upon the first occurrence of
a Repurchase Event (as defined below) and ending 12 months after the occurrence
of a Purchase Event, Issuer (or any successor entity thereof) shall:
(i) at the request of Grantee, repurchase from Grantee the Option (if
and to the extent not previously terminated) at a price equal to the excess,
if any, of (x) the Applicable Price (as defined below) as of the Section 7
Request Date (as defined below) for a share of Issuer Common Stock over (y)
the Purchase Price (subject to adjustment pursuant to Section 6(a)),
multiplied by the number of shares of Issuer Common Stock with respect to
which the Option has not been exercised (the "Option Repurchase Price"); and
(ii) at the request of an owner of Option Shares from time to time,
repurchase such number of Option Shares as such owner shall designate at a
price equal to the Applicable Price as of the Section 7 Request Date
multiplied by the number of Option Shares requested to be repurchased by
such owner (the "Option Share Repurchase Price").
(b) If Grantee or an owner of Option Shares exercises its rights under this
Section 7, Issuer shall, within 10 business days after the Section 7 Request
Date, pay the Option Repurchase Price or Option Share Repurchase Price, as the
case may be, in immediately available funds, and Grantee or such owner, as the
case may be, shall surrender to Issuer the Option or Option Shares, as the case
may be.
(c) For purposes of this Agreement, the following terms have the following
dmeanings:
(i) "Applicable Price," as of any date, means the highest of (A) the
highest price per share at which a tender offer or exchange offer has been
made for shares of Issuer Common Stock after the date hereof and on or prior
to such date, (B) the price per share to be paid by any third party for
shares of Issuer Common Stock or the consideration per share to be received
by holders of Issuer Common Stock, in each case pursuant to an agreement for
a merger or other business combination transaction with Issuer entered into
on or prior to such date or (C) the highest closing sales price per
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share of Issuer Common Stock quoted on the NYSE (or if Issuer Common Stock
is not quoted on the NYSE, the highest bid price per share as quoted on the
National Association of Securities Dealers Automated Quotations System or,
if the shares of Issuer Common Stock are not quoted thereon, on the
principal trading market on which such shares are traded as reported by a
recognized source) during the 60 business days preceding such date. If the
consideration to be offered, paid or received pursuant to either of the
foregoing clauses (A) or (B) shall be other than in cash, the value of such
consideration shall be determined in good faith by an independent nationally
recognized investment banking firm selected by Grantee and reasonably
acceptable to Issuer, which determination shall be conclusive for all
purposes of this Agreement.
(ii) "Repurchase Event" means the occurrence of a Purchase Event
followed by the consummation of any transaction the proposal of which would
constitute a Transaction Proposal; and
(iii) "Section 7 Request Date" means the date on which Grantee or an
owner of Option Shares exercises its rights under this Section.
8. REPURCHASE OF SUBSTITUTE OPTION. (a) At any time after issuance of the
Substitute Option, Substitute Option Issuer (or any successor entity thereof)
shall:
(i) at the request of Grantee, repurchase from Grantee the Substitute
Option (if and to the extent not previously terminated) at a price equal to
the excess, if any, of (x) the Highest Closing Price as of the Section 8
Request Date (as defined below) for a share of Substitute Common Stock over
(y) the Purchase Price (subject to adjustment pursuant to Section 6(a)),
multiplied by the number of shares of Substitute Common Stock with respect
to which the Substitute Option has not been exercised (the "Substitute
Option Repurchase Price"); and
(ii) at the request of an owner of shares of Substitute Common Stock
issued upon exercise of the Substitute Option, repurchase such number of
shares of Substitute Common Stock as such owner shall designate at a price
equal to the Highest Closing Price as of the Section 8 Request Date
multiplied by the number of shares of Substitute Common Stock requested to
be repurchased by such owner (the "Substitute Share Repurchase Price").
(b) If Grantee or an owner of shares of Substitute Common Stock issued upon
exercise of the Substitute Option exercises its rights under this Section 8,
Issuer shall, within 10 business days after the Section 8 Request Date, pay the
Option Repurchase Price or Option Share Repurchase Price, as the case may be, in
immediately available funds, and Grantee or such owner, as the case may be,
shall surrender to Issuer the Option or shares of Substitute Common Stock, as
the case may be.
(c) For purposes of this Agreement, the following terms have the following
meanings:
(i) "Highest Closing Price" means the highest closing sales price for
shares of Substitute Common Stock quoted on the NYSE (or if the Substitute
Common Stock is not quoted on the NYSE, the highest bid price per share as
quoted on the National Association of Securities Dealers Automated
Quotations System or, if the shares of Substitute Common Stock are not
quoted thereon, on the principal trading market on which such shares are
traded as reported by a recognized source) during the six-month period
preceding the Section 8 Request Date; and
(ii) "Section 8 Request Date" means the date on which Grantee or an
Owner exercises its rights under this Section.
9. REGISTRATION RIGHTS. Issuer shall, if requested by Grantee or any owner
of Option Shares (collectively with Grantee, the "Owners") at any time and from
time to time within two years of the first exercise of the Option, as
expeditiously as possible prepare and file up to two registration statements
under the Securities Act if such registration is necessary in order to permit
the sale or other disposition of any or all shares of securities that have been
acquired by or are issuable to such Owners upon exercise of the Option in
accordance with the intended method of sale or other disposition stated by such
Owners, including a
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"shelf" registration statement under Rule 415 under the Securities Act or any
successor provision, and Issuer shall use its best efforts to qualify such
shares or other securities under any applicable state securities laws. Issuer
shall use all reasonable efforts to cause each such registration statement to
become effective, to obtain all consents or waivers of other parties which are
required therefor and to keep such registration statement effective for such
period not in excess of 180 days from the day such registration statement first
becomes effective as may be reasonably necessary to effect such sale or other
disposition. The obligations of Issuer hereunder to file a registration
statement and to maintain its effectiveness may be suspended for one or more
periods of time not exceeding 30 days in the aggregate if the Board of Directors
of Issuer shall have determined that the filing of such registration statement
or the maintenance of its effectiveness would require disclosure of nonpublic
information that would materially and adversely affect Issuer. Any registration
statement prepared and filed under this Section 9, and any sale covered thereby,
shall be at Issuer's expense except for underwriting discounts or commissions,
brokers' fees and the fees and disbursements of Owners' counsel related thereto.
The Owners shall provide all information reasonably requested by Issuer for
inclusion in any registration statement to be filed hereunder. If during the
time
period referred to in the first sentence of this Section 9 Issuer effects a
registration under the Securities Act of Issuer Common Stock for its own account
or for any other stockholders of Issuer (other than on Form S-4 or Form S-8, or
any successor form), it shall allow the Owners the right to participate in such
registration, and such participation shall not affect the obligation of Issuer
to effect two registration statements for the Owners under this Section 9;
PROVIDED that, if the managing underwriters of such offering advise Issuer in
writing that in their opinion the number of shares of Issuer Common Stock
requested to be included in such registration exceeds the number which can be
sold in such offering, Issuer shall include the shares requested to be included
therein by the Owners pro rata with the shares intended to be included therein
by Issuer. In connection with any registration pursuant to this Section 9,
Issuer and the Owners shall provide each other and any underwriter of the
offering with customary representations, warranties, covenants, indemnification
and contribution in connection with such registration.
10. LISTING. If Issuer Common Stock or any other securities to be acquired
upon exercise of the Option are then listed on the NYSE, Issuer, upon the
request of any Owner, will promptly file an application to list the shares of
Issuer Common Stock or other securities to be acquired upon exercise of the
Option on the NYSE and will use its best efforts to obtain approval of such
listing as soon as practicable.
11. LOSS, THEFT, ETC. OF AGREEMENT. Upon receipt by Issuer of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Issuer will execute and deliver a new Agreement of like
tenor and date. Any such new Agreement executed and delivered shall constitute
an additional contractual obligation on the part of Issuer, whether or not the
Agreement so lost, stolen, destroyed or mutilated shall at any time be
enforceable by anyone.
12. LIMITATION OF GRANTEE PROFIT. (a) Notwithstanding any other provision
herein, in no event shall Grantee's Total Profit (as defined below) exceed
$11,000,000, and, if it otherwise would exceed such amount, Grantee, at its sole
discretion, shall either (i) reduce the number of shares subject to the Option,
(ii) deliver to Issuer for cancellation shares of Issuer Common Stock (or other
securities into which such Option Shares are converted or exchanged), (iii) pay
cash to Issuer, or (iv) any combination of the foregoing, so that Grantee's
actually realized Total Profit shall not exceed $11,000,000 after taking into
account the foregoing actions.
(b) For purposes of this Agreement, "Total Profit" shall mean: (i) the
aggregate amount of (A) the excess of (x) the net cash amounts received by
Grantee pursuant to a sale of Option Shares (or securities into which such
shares are converted or exchanged) to any unaffiliated third party within 12
months after the exercise of the Option, over (y) the Grantee's purchase price
of such Option Shares (or other securities), PLUS (B) any amounts received by
Grantee on the transfer of the Option, PLUS (C) any
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equivalent amounts with respect to the Substitute Option, PLUS (D) the amount
received by Grantee pursuant to Section 8.02(a) of the Merger Agreement, minus
(ii) the amount of cash paid to Issuer pursuant to this Section 12 plus the
value of the Option Shares (or other securities) delivered to Issuer for
cancellation pursuant to this Section 12.
(c) If Grantee receives cash or other consideration in the aggregate,
pursuant to Section 8.02(a) of the Merger Agreement together with proceeds in
connection with any sales or dispositions of the Option, Option Shares and any
dividends received by Grantee declared on Option Shares, more than the sum of
(i) $22,000,000 and (ii) the Purchase Price multiplied by the number of Option
Shares purchased by Grantee pursuant to the Option, than all proceeds of Grantee
in excess of such sum shall be remitted to Issuer within 30 days of the receipt
of such cash or other consideration.
(c) Notwithstanding any other provision of this Agreement, nothing in this
Agreement shall affect the ability of Grantee to receive, nor relieve Issuer's
obligation to pay, the fee pursuant to Section 8.02(a) of the Merger Agreement;
PROVIDED that if and to the extent the Total Profit received by Grantee would
exceed $11,000,000 following receipt of such fee, without limiting Issuer's
right of set-off, Grantee shall be obligated to comply with the terms of Section
12(a) within 30 days of the latest of (i) the date of receipt of such fee, (ii)
the date of receipt of the net cash by Grantee pursuant to the sale of Option
Shares (or securities into which such Option Shares are converted or exchanged)
to any unaffiliated party within 12 months after the exercise of this Option
with respect to such Option Shares, (iii) the date of receipt of net cash from
disposition of the Option and (iv) the date of receipt of equivalent amounts
pursuant to the sale of the Substitute Option or shares of Substitute Common
Stock (or other securities into which such Substitute Common Stock is converted
or exchanged).
(d) For purposes of Section 12(a) and clause (ii) of Section 12(b), the
value of any Option Shares delivered to Issuer shall be the Assigned Value of
such Option Shares and the value of any Substitute Common Stock delivered to
Issuer shall be the Highest Closing Price of such Substitute Common Stock.
13. MISCELLANEOUS. (a) EXPENSES. Except as otherwise provided in Section 9
hereof, each of the parties hereto shall bear and pay all costs and expenses
incurred by it or on its behalf in connection with the transactions contemplated
hereunder, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) WAIVER AND AMENDMENT. Any provision of this Agreement may be waived at
any time by the party that is entitled to the benefits of such provision. This
Agreement may not be modified, amended, altered or supplemented except upon the
execution and delivery of a written agreement executed by the parties hereto.
(c) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARY; SEVERABILITY. Except as
otherwise set forth in the Merger Agreement, this Agreement, together with the
Merger Agreement, (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof and (b) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder. If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction or a federal or state regulatory agency to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. If for any reason such court or
regulatory agency determines that the Option does not permit Grantee to acquire,
or does not require Issuer (or Substitute Option Issuer) to repurchase, the full
number of shares of Issuer Common Stock (or Substitute Common Stock) as provided
in Sections 2 and 7 (or in the case of Substitute Common Stock Sections 2 and
8), as adjusted pursuant to Section 6, it is the express intention of Issuer to
allow Grantee to acquire or to require Issuer to repurchase such lesser number
of shares as may be permissible without any amendment or modification hereof.
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(D) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY
APPLICABLE CONFLICTS OF LAW RULES.
(e) DESCRIPTIVE HEADINGS. The descriptive headings contained herein are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (with
confirmation) or mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
If to Grantee to:
The Perkin-Elmer Corporation
761 Main Street
Norwalk, Connecticut 06859
Attention: Chief Executive Officer
Telecopier No.: 1-203-761-5015
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: James M. Cotter, Esq.
Richard A. Garvey, Esq.
Telecopier No.: (212) 455-2502
If to Issuer to:
PerSeptive Biosystems, Inc.
500 Old Connecticut Path
Framingham, Massachusetts 01701
Attention: Chief Executive Officer
Telecopier No.: 1-508-383-7852
with a copy to:
Testa, Hurwitz & Thibeault, LLP
125 High Street
High Street Tower
Boston, Massachusetts 02110
Attention: George Lloyd, Esq.
Rufus C. King, Esq.
Telecopier No.: 1-617-248-7100
(g) COUNTERPARTS. This Agreement and any amendments hereto may be executed
in two counterparts, each of which shall be considered one and the same
agreement and shall become effective when both counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
both parties need not sign the same counterpart.
(h) ASSIGNMENT. Grantee may assign this Agreement in whole to any affiliate
of Grantee at any time. Except as provided in the next sentence, Grantee may
not, without the prior written consent of Issuer (which shall not be
unreasonably withheld), assign this Agreement to any other person. Upon the
A-II-9
<PAGE>
occurrence of a Purchase Event, Grantee may sell, transfer, assign or otherwise
dispose of, in whole at any time, its rights and obligations hereunder. In the
case of any sale, transfer, assignment or disposition of this Option, Issuer
shall do all things reasonably necessary to facilitate such transaction. This
Agreement shall not be assignable by Issuer except by operation of law. Subject
to the preceding sentence, this Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors and
assigns.
(i) REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Sections 3.01(a) and 3.02(a) of the Merger Agreement, and, to the
extent they relate to this Stock Option Agreement, in Sections 3.01(d), (p), (q)
and (r) and 3.02(c) of the Merger Agreement, are incorporated herein by
reference.
(j) FURTHER ASSURANCES. In the event of any exercise of the Option by
Grantee, Issuer and Grantee shall execute and deliver all other documents and
instruments and take all other action that may be reasonably necessary in order
to consummate the transactions provided for by such exercise.
(k) SPECIFIC PERFORMANCE. The parties hereto agree that this Agreement may
be enforced by either party through specific performance, injunctive relief and
other equitable relief. Both parties further agree to waive any requirement for
the securing or posting of any bond in connection with the obtaining of any such
equitable relief and that this provision is without prejudice to any other
rights that the parties hereto may have for any failure to perform this
Agreement.
IN WITNESS WHEREOF, Issuer and Grantee have caused this Stock Option
Agreement to be signed by their respective officers thereunto duly authorized as
of the day and year first written above.
<TABLE>
<S> <C> <C>
PERSEPTIVE BIOSYSTEMS, INC.
by /s/ NOUBAR B. AFEYAN
-----------------------------------------
Name: Noubar B. Afeyan
Title: Chief Executive Officer and
Chairman of the Board of Directors
THE PERKIN-ELMER CORPORATION
by /s/ PETER BARRETT
-----------------------------------------
Name: Peter Barrett
Title: Vice President
</TABLE>
A-II-10
<PAGE>
INVESTMENT BANKING DIVISION
PaineWebber Incorporated
1285 Avenue of the Americas
New York, NY 10019
212 713-2000
[LOGO]
August 23, 1997
Board of Directors
PerSeptive Biosystems, Inc.
500 Old Connecticut Path
Framingham, MA 01701
Gentlemen:
PerSeptive Biosystems, Inc. (the "Company") proposes to enter into an
Agreement and Plan of Merger (the "Agreement") with The Perkin-Elmer Corporation
("Parent") and Seven Acquisition Corporation ("Sub"), a wholly owned subsidiary
of Parent, pursuant to which Sub will be merged with and into the Company
("Merger"). At the Effective Time of the Merger (as defined in the Agreement),
each outstanding share of common stock, par value $.01 per share ("Company
Common Stock"), of the Company (other than shares owned by the Company, Parent
or any of their respective subsidiaries) will be converted solely into the right
to receive the Merger Consideration (as hereinafter defined). The "Merger
Consideration" means that number of shares of common stock, par value $1.00 per
share ("Parent Common Stock") of Parent equal to (i) $13.00, divided by (ii) the
Parent Common Stock Price (as hereinafter defined); provided that such number of
shares shall not be less than .1486 nor more than .1926. The "Parent Common
Stock Price" means the average of the closing sales prices of Parent Common
Stock on each of the 20 consecutive trading days immediately preceding the
second trading day prior to the Effective Time of the Merger.
You have asked us whether or not, in our opinion, the Merger Consideration
is fair, from a financial point of view, to the holders of Company Common Stock
(other than Parent and its affiliates).
In arriving at the opinion set forth below, we have, among other things:
(1) Reviewed, among other public information, the Company's Annual Reports,
Forms 10-K and related financial information for the three fiscal years
ended September 30, 1996 and the Company's Form 10-Q and the related
unaudited financial information for the nine months ended June 30, 1997;
(2) Reviewed, among other public information, Parent's Annual Reports, Forms
10-K and related financial information for the three fiscal years ended June
30, 1996 and the related unaudited financial information for the fiscal year
ended June 30, 1997;
A-III-1
<PAGE>
PAINEWEBBER
Board of Directors
PerSeptive Biosystems, Inc.
August 23, 1997
Page 2
(3) Reviewed certain information, including financial forecasts (including, with
respect to the Company, internally prepared financial forecasts and, with
respect to Parent, certain publicly available estimates of future
performance, which estimates were discussed with members of senior
management of Parent (collectively, the "Projections")), relating to the
business, earnings, cash flow, assets and prospects of the Company and
Parent, furnished to us by or on behalf of the Company and Parent,
respectively;
(4) Conducted discussions with members of senior management of the Company and
Parent concerning their respective businesses and prospects;
(5) Conducted discussions with members of senior management of the Company
concerning information relating to certain strategic, financial and
operational benefits anticipated by such management to result from the
Merger;
(6) Compared the historical market prices and trading activity for the Company
Common Stock and the Parent Common Stock with those of certain publicly
traded companies which we deemed relevant;
(7) Compared the financial position and operating results of the Company and
Parent with those of certain other publicly traded companies which we deemed
relevant;
(8) Compared the financial terms of the Merger with the financial terms of
certain other business combinations which we deemed relevant;
(9) Considered the potential pro forma effects of the Merger on Parent;
(10) Reviewed a draft of the Agreement in the form presented to the Board of
Directors of the Company; and
(11) Reviewed such other financial studies and analyses and performed such other
investigations and took into account such other matters as we deemed
necessary, including our assessment of regulatory, general economic, market
and monetary conditions.
In preparing our opinion, we have relied on the accuracy and completeness of
all information that was publicly available, supplied or otherwise communicated
to us by or on behalf of the Company and Parent, and we have not assumed any
responsibility to independently verify such information. With respect to the
Projections, we have assumed, with your consent, that they were reasonably
prepared on bases reflecting the best currently available estimates as to the
future performance of the Company and Parent, respectively.
A-III-2
<PAGE>
PAINEWEBBER
Board of Directors
PerSeptive Biosystems, Inc.
August 23, 1997
Page 3
We have not undertaken an independent evaluation or appraisal of the assets or
liabilities (contingent or otherwise) of the Company or Parent, nor have we been
furnished with any such evaluations or appraisals. We have also assumed, with
your consent, that (i) all material assets and liabilities (contingent or
otherwise, known or unknown) of the Company and Parent are as set forth in their
respective financial statements; and (ii) the Merger will be accounted for under
the pooling-of-interests method of accounting and will qualify as a tax-free
reorganization. Our opinion is based upon regulatory, economic, monetary and
market conditions existing on the date hereof. Furthermore, we express no
opinion as to the price or trading ranges at which the Company Common Stock or
Parent Common Stock will trade from the date hereof.
Our opinion is directed to the Board of Directors of the Company and does
not constitute a recommendation to any shareholder of the Company as to how any
such shareholder should vote on the Merger. This opinion does not address the
relative merits of the Merger and other transactions or business strategies that
may have been discussed by the Board of Directors of the Company as alternatives
to the Merger or the decision of the Board of Directors of the Company to
proceed with the Merger. We were not requested to, and did not, solicit third
party indications of interest in acquiring all or any portion of the Company.
This opinion has been prepared at the request and for the use of the Board
of Directors of the Company and shall not be reproduced, summarized, described
or referred to or given to any other person or otherwise made public without the
prior written consent of PaineWebber Incorporated; provided, however, that this
letter may be reproduced in full in the Proxy Statement/Prospectus relating to
the Merger.
PaineWebber Incorporated is currently acting as financial advisor to the
Board of Directors of the Company in connection with the Merger and will receive
a fee upon the delivery of this opinion and upon consummation of the Merger.
In the ordinary course of our business, we may trade the securities of the
Company and Parent for our own account and for the accounts of our customers
and, accordingly, may at any time hold long or short positions in such
securities.
A-III-3
<PAGE>
PAINEWEBBER
Board of Directors
PerSeptive Biosystems, Inc.
August 23, 1997
Page 4
On the basis of, and subject to the foregoing, we are of the opinion that,
as of the date hereof, the Merger Consideration is fair, from a financial point
of view, to the holders of Company Common Stock (other than Parent and its
affiliates).
<TABLE>
<S> <C>
Very truly yours,
PAINEWEBBER INCORPORATED
/S/ PAINEWEBBER INCORPORATED
------------------------------------------
</TABLE>
A-III-4
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The New York Business Corporation Law (the "NYBCL") authorizes a New York
corporation to indemnify any person who is, or is threatened to be made, a party
in any civil or criminal proceeding (other than an action by or in the right of
the corporation) by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
entity, against judgments, fines, amounts paid in settlement and reasonable
expenses (including attorneys' fees) actually and necessarily incurred by such
person as a result of such action or proceeding or any appeal therein. With
respect to actions by or in the right of the corporation, the NYBCL authorizes
indemnification of such person against reasonable expenses including attorneys'
fees and amounts paid in settlement. To be entitled to indemnification, a person
must have acted in good faith, for a purpose which he reasonably believed to be
in, or in the case of service for another organization, not opposed to, the best
interests of the corporation and, with respect to any criminal action or
proceeding, in addition, had no reasonable cause to believe his conduct was
unlawful. Court approval is required as a prerequisite to indemnification of
expenses in respect of any claim as to which a person has been adjudged liable
to the corporation.
The NYBCL requires indemnification against expenses actually and reasonably
incurred by any director, officer, employee or agent in connection with a
proceeding against such person for action in such capacity to the extent that
the person has been successful on the merits or otherwise. Advancement of
expenses (i.e., payment prior to a determination on the merits) is permitted,
but not required, by the NYBCL, which further requires that any director or
officer must undertake to repay such expenses if it is ultimately determined
that he is not entitled to indemnification. The disinterested members of the
board of directors (or independent legal counsel or the stockholders) must
determine, in each instance where indemnification is not required by the NYBCL,
that such director, officer, employee or agent is entitled to indemnification.
The NYBCL provides that the indemnification provided by statute is not
exclusive.
The Perkin-Elmer By-Laws provide that, except to the extent expressly
prohibited by the NYBCL, Perkin-Elmer shall indemnify each person made or
threatened to be made a party to, or called as a witness or asked to submit
information in, any action or proceeding by reason of the fact that such person
or such person's testator or intestate is or was a director or officer of
Perkin-Elmer, or serves or served at the request of Perkin-Elmer any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, penalties, amounts paid in
settlement and reasonable expenses, including attorneys' fees, incurred in
connection with such action or proceeding, or any appeal therein, provided that
no such indemnification shall be made if a judgment or other final adjudication
adverse to such person establishes that his or her acts were committed in bad
faith or were the result of active and deliberate dishonesty and were material
to the cause of action so adjudicated, or that he or she personally gained in
fact a financial profit or other advantage to which he or she was not legally
entitled, and provided further that no such indemnification shall be required
with respect to any settlement or other nonadjudicated disposition of any
threatened or pending action or proceeding unless Perkin-Elmer has given its
prior consent to such settlement or other disposition. Reference to an action or
proceeding in the Perkin-Elmer By-Laws includes, without limitation, any pending
or threatened action, proceeding, hearing or investigation, whether civil or
criminal, whether judicial, administrative or legislative in nature and whether
or not in the nature of a direct or a stockholders' derivative action brought by
or on behalf of Perkin-Elmer or any other corporation or enterprise which the
director or officer of the corporation serves at Perkin-Elmer's request.
The Perkin-Elmer By-Laws provide that Perkin-Elmer shall advance or promptly
reimburse upon request any person entitled to indemnification thereunder for all
expenses, including attorney's fees,
II-1
<PAGE>
reasonably incurred in defending any action or proceeding in advance of the
final disposition thereof upon receipt of an undertaking by or on behalf of such
person to repay such amount if such person is ultimately found not to be
entitled to indemnification or, where indemnification is granted, to the extent
the expenses so advanced or reimbursed exceed the amount to which such person is
entitled, provided, however, that such person shall cooperate in good faith with
any request by Perkin-Elmer that common counsel be utilized by the parties to an
action or proceeding who are similarly situated unless to do so would be
inappropriate due to actual or potential differing interests between or among
such parties. Perkin-Elmer shall also promptly pay or reimburse such person for
all expenses, including fees and expenses of counsel, reasonably incurred by
such person in successfully enforcing his or her rights pursuant to the By-Law
provisions described above.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
EXHIBITS
<TABLE>
<CAPTION>
<C> <S> <C>
2.1 Agreement and Plan of Merger, dated as of August 23, 1997, among Perkin-Elmer, Merger Sub and
PerSeptive (included as Annex I to the Proxy Statement/Prospectus).
2.2 Stock Option Agreement, dated as of August 23, 1997, between PerSeptive and Perkin-Elmer
(included as Annex II to the Proxy Statement/Prospectus).
3.1 Restated Certificate of Incorporation of Perkin-Elmer (incorporated by reference to Exhibit
3(i) of Perkin-Elmer's Quarterly Report on Form 10-Q for the fiscal quarter ended September
30, 1996 (Commission File No. 1-4389)).
3.2 Amended and Restated By-Laws of Perkin-Elmer, as amended (incorporated by reference to Exhibit
3(ii) of Perkin-Elmer's Annual Report on Form 10-K for the fiscal year ended June 30, 1993
(Commission File No. 1-4389)).
4 Shareholder Protection Rights Agreement, dated as of April 30, 1989, between Perkin-Elmer and
The First National Bank of Boston (incorporated by reference to Exhibit 4 to Perkin-Elmer's
Current Report on Form 8-K dated April 20, 1989 (Commission File No. 1-4389)).
5 Opinion of Simpson Thacher & Bartlett.
8.1 Opinion of Simpson Thacher & Bartlett as to tax matters.
8.2 Opinion of Testa, Hurwitz & Thibeault, LLP as to tax matters.
23.1 Consent of Price Waterhouse, independent accountants of PerSeptive.
23.2 Consent of Coopers & Lybrand, independent accountants of PerSeptive.
23.3 Consent of Price Waterhouse, independent accountants of Perkin-Elmer.
23.4 Consent of Simpson Thacher & Bartlett (contained in exhibits 5 and 8.1).
23.5 Consent of Testa, Hurwitz & Thibeault, LLP (contained in exhibit 8.2).
23.6 Consent of PaineWebber Incorporated.
24 Powers of Attorney.
99.1 Opinion of PaineWebber Incorporated (included as Annex III to the Proxy Statement/Prospectus).
99.2 Chairman's letter to stockholders of PerSeptive.
99.3 Notice of Special Meeting of stockholders of PerSeptive.
99.4 Form of Proxy for Special Meeting of stockholders of PerSeptive.
</TABLE>
II-2
<PAGE>
ITEM 22. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in the volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered)
and any deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" Table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
(c) (1) The undersigned registrant hereby undertakes as follows: that
prior to any public reoffering of the securities registered hereunder
through use of a prospectus which is a part of this registration statement,
by any person or party who is deemed to be an underwriter within the meaning
of Rule 145(c), the issuer undertakes that such reoffering prospectus will
contain the information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters, in
addition to the information called for by the other items of the applicable
form.
(2) The registrant undertakes that every prospectus: (i) that is filed
pursuant to paragraph (1) immediately preceding, or (ii) that purports to
meet the requirements of Section 10(a)(3) of the
II-3
<PAGE>
Act and is used in connection with an offering of securities subject to Rule
415, will be filed as a part of an amendment to the registration statement
and will not be used until such amendment is effective, and that, for
purposes of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial BONA FIDE
offering thereof.
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(e) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through the date
corresponding to the request.
(e) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Norwalk, State of
Connecticut, on October 28, 1997.
THE PERKIN-ELMER CORPORATION
By *
-----------------------------------------
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
Chairman of the Board of
* Directors, President and
- ------------------------------ Chief Executive Officer October 28, 1997
Tony L. White (principal executive
officer)
Senior Vice President,
* Chief Financial Officer
- ------------------------------ and Treasurer (principal October 28, 1997
Dennis L. Winger financial officer)
* Corporate Controller
- ------------------------------ (principal accounting October 28, 1997
Ugo D. Deblasi officer)
* Director
- ------------------------------ October 28, 1997
Joseph F. Abely, Jr.
* Director
- ------------------------------ October 28, 1997
Richard H. Ayers
* Director
- ------------------------------ October 28, 1997
Jean-Luc Belingard
* Director
- ------------------------------ October 28, 1997
Robert H. Hayes
* Director
- ------------------------------ October 28, 1997
Georges C. St. Laurent, Jr.
* Director
- ------------------------------ October 28, 1997
Carolyn W. Slayman
* Director
- ------------------------------ October 28, 1997
Orin R. Smith
II-5
<PAGE>
*William B. Sawch hereby signs this Registration Statement on October 28, 1997
on behalf of each of the above-named Directors and Officers of the Registrant
above whose typed names asterisks appear, pursuant to powers of attorney duly
executed by such Directors and Officers and filed with the Securities and
Exchange Commission as exhibits to this Registration Statement.
<TABLE>
<S> <C> <C>
/s/ William B. Sawch
-----------------------------
Attorney-in-fact
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- ----------------------------------------------------------------------------------------------
<C> <S> <C>
2.1 Agreement and Plan of Merger, dated as of August 23, 1997, among Perkin-Elmer, Merger Sub and
PerSeptive (included as Annex I to the Proxy Statement/ Prospectus).
2.2. Stock Option Agreement, dated as of August 23, 1997, between PerSeptive and Perkin-Elmer
(included as Annex II to the Proxy Statement/Prospectus).
3.1 Restated Certificate of Incorporation of Perkin-Elmer (incorporated by reference to Exhibit
3(i) of Perkin-Elmer's Quarterly Report on Form 10-Q for the fiscal quarter ended September
30, 1996 (Commission File No. 1-4389)).
3.2 Amended and Restated By-Laws of Perkin-Elmer, as amended (incorporated by reference to Exhibit
3(ii) of Perkin-Elmer's Annual Report on Form 10-K for the fiscal year ended June 30, 1993
(Commission File No. 1-4389)).
4 Shareholder Protection Rights Agreement, dated as of April 30, 1989, between Perkin-Elmer and
The First National Bank of Boston (incorporated by reference to Exhibit 4 to Perkin-Elmer's
Current Report on Form 8-K dated April 20, 1989 (Commission File No. 1-4389)).
5 Opinion of Simpson Thacher & Bartlett.
8.1 Opinion of Simpson Thacher & Bartlett as to tax matters.
8.2 Opinion of Testa, Hurwitz & Thibeault, LLP as to tax matters.
23.1 Consent of Price Waterhouse, independent accountants of PerSeptive.
23.2 Consent of Coopers & Lybrand, independent accountants of PerSeptive.
23.3 Consent of Price Waterhouse, independent accountants of Perkin-Elmer.
23.4 Consent of Simpson Thacher & Bartlett (contained in exhibits 5 and 8.1).
23.5 Consent of Testa, Hurwitz & Thibeault, LLP (contained in exhibit 8.2).
23.6 Consent of PaineWebber Incorporated.
24 Powers of Attorney.
99.1 Opinion of PaineWebber Incorporated (included as Annex III to the Proxy Statement/Prospectus).
99.2 Chairman's letter to stockholders of PerSeptive.
99.3 Notice of Special Meeting of stockholders of PerSeptive.
99.4 Form of Proxy for Special Meeting of stockholders of PerSeptive.
</TABLE>
<PAGE>
EXHIBIT 5
[LETTERHEAD OF SIMPSON THACHER & BARTLETT]
October 28, 1997
The Perkin-Elmer Corporation
761 Main Avenue
Norwalk, Connecticut 06859-0001
Dear Sirs:
We have acted as counsel to The Perkin-Elmer Corporation, a New York
corporation (the "Company"), in connection with the Registration Statement on
Form S-4 of the Company (the "Registration Statement"), being filed on the date
hereof with the Securities and Exchange Commission under the Securities Act of
1933, as amended, relating to the proposed issuance of shares of Common Stock,
par value $1.00 per share, of the Company (the "Common Stock") in connection
with the Agreement and Plan of Merger, dated as of August 23, 1997 (the "Merger
Agreement"), among the Company, Seven Acquisition Corp., a Delaware corporation
and a wholly-owned subsidiary of the Company ("Merger Sub"), and PerSeptive
Biosystems, Inc. ("PerSeptive"). Subject to the satisfaction or waiver of the
conditions set forth in the Merger Agreement, Merger Sub will be merged with and
into PerSeptive (the "Merger") and each outstanding share of common stock, par
value .01 per share, of PerSeptive will be converted into shares of the Common
Stock (the "Shares"), all as more fully described in the Registration Statement.
<PAGE>
The Perkin-Elmer Corporation -2- October 28, 1997
We have examined, and have relied as to matters of fact upon,
originals or copies, certified or otherwise identified to our satisfaction, of
such corporate records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of officers and
representatives of the Company, and have made such other and further
investigations, as we have deemed relevant and necessary as a basis for the
opinion hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as duplicate or certified or conformed copies, and
the authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that the Shares have been duly
authorized and, when the Shares shall have been issued in accordance with the
terms of the Merger Agreement, the Shares will be validly issued, fully paid and
nonassessable.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York, the federal law of the United States and the Delaware General
Corporation Law.
<PAGE>
The Perkin-Elmer Corporation -3- October 28, 1997
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Opinions" in the Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
<PAGE>
EXHIBIT 8.1
(212) 455-2000
[LETTERHEAD OF SIMPSON THACHER & BARTLETT]
October 28, 1997
Re: AGREEMENT AND PLAN OF MERGER DATED AUGUST 23, 1997
BY AND BETWEEN THE PERKIN-ELMER CORPORATION, SEVEN
ACQUISITION CORP., AND PERSEPTIVE BIOSYSTEMS, INC.
The Perkin-Elmer Corporation
761 Main Avenue
Norwalk, CT 06859-0001
Ladies and Gentlemen:
We have acted as counsel for The Perkin-Elmer Corporation, a New York
corporation ("Perkin-Elmer"), in connection with the preparation and execution
of the Agreement and Plan of Merger, dated as of August 23, 1997 (the "Merger
Agreement"), among Perkin-Elmer, Seven Acquisition Corp., a wholly-owned
subsidiary of Perkin-Elmer incorporated in Delaware ("Merger Sub") and
PerSeptive Biosystems, Inc., a Delaware corporation ("PerSeptive"). Pursuant to
the Merger Agreement, Merger Sub will merge with and into PerSeptive (the
"Merger"), and PerSeptive will become a wholly-owned subsidiary of Perkin-Elmer.
Unless otherwise defined, capitalized terms referred to herein have the meanings
set forth in the Merger Agreement. All section
<PAGE>
The Perkin-Elmer Corporation -2- October 28, 1997
references, unless otherwise indicated, are to the Internal Revenue Code of
1986, as amended (the "Code").
You have requested our opinion regarding certain United States federal
income tax consequences of the Merger. In delivering this opinion, we have
reviewed and relied upon the facts, statements, descriptions and representations
set forth in the Registration Statement on Form S-4 filed by Perkin-Elmer with
the Securities and Exchange Commission (which contains a joint proxy
statement/prospectus) (the "Registration Statement"), the Merger Agreement
(including Exhibits) and such other documents pertaining to the Merger as we
have deemed necessary or appropriate. We have also relied upon certificates of
officers of Perkin-Elmer, Merger Sub and PerSeptive, respectively (the
"Officers' Certificates") and upon certificates of certain shareholders of
PerSeptive (the "Shareholders' Certificates").
In connection with rendering this opinion, we have also assumed or
have obtained representations (without any independent investigation) that, as
of the date hereof and as of the Effective Time of the Merger:
1. Original documents (including signatures) are authentic,
documents submitted to us as copies conform to the original documents, and there
has been (or will be by the Effective Time of the Merger) due execution and
delivery of all documents where due execution and delivery are prerequisites to
effectiveness thereof;
2. Any statement made in any of the documents referred to herein,
"to the best of the knowledge" of any person or party is correct without such
qualification;
<PAGE>
The Perkin-Elmer Corporation -3- October 28, 1997
3. All statements, descriptions and representations contained in any
of the documents referred to herein or otherwise made to us are true and correct
in all material respects and no actions have been (or will be) taken which are
inconsistent with such representations;
4. The Merger will be reported by Perkin-Elmer and PerSeptive on
their respective federal income tax returns in a manner consistent with the
opinion set forth below;
5. The shareholders of PerSeptive do not, and will not on or before
the Effective Time of the Merger, have an existing plan or intention to dispose
of an amount of Perkin-Elmer Common Stock to be received in the Merger (or to
dispose of PerSeptive capital stock in anticipation of the Merger) such that the
shareholders of PerSeptive will not receive and retain a meaningful continuing
equity ownership in Perkin-Elmer that is sufficient to satisfy the continuity of
interest requirement set forth in Treas. Reg. Section 1.368-1(b) and as
interpreted in certain Internal Revenue Service rulings and federal judicial
decisions;
6. After the Merger, PerSeptive will hold "substantially all" of its
and Merger Sub's properties within the meaning of Section 368(a)(2)(E)(i) of the
Code and the regulations promulgated thereunder;
7. To the extent any expenses relating to the Merger (or the "plan
of reorganization" within the meaning of Treas. Reg. Section 1.368-1(c) with
respect to the Merger) are funded directly or indirectly by a party other than
the incurring party, such
<PAGE>
The Perkin-Elmer Corporation -4- October 28, 1997
expenses will be within the guidelines established in Revenue Ruling 73-54,
1973-1 C.B. 187; and
8. No PerSeptive shareholder guaranteed any PerSeptive
indebtedness outstanding during the period immediately prior to the Effective
Time of the Merger.
Based on our examination of the foregoing items and subject to the
assumptions, exceptions, limitations and qualifications set forth herein, we are
of the opinion that, if the Merger is consummated in accordance with the Merger
Agreement (and without any waiver, breach or amendment of any of the provisions
thereof) and the statements set forth in the Officers' Certificates and the
Shareholders' Certificates are true and correct as of the date hereof and as of
the Effective Time of the Merger, for federal income tax purposes, the Merger
will qualify as a reorganization within the meaning of Section 368(a) of the
Code, and PerSeptive, Perkin-Elmer and Merger Sub will each be a party to the
reorganization within the meaning of Section 368(b) of the Code.
This opinion represents and is based upon our best judgment regarding
the application of federal income tax laws arising under the Code, existing
judicial decisions, administrative regulations and published rulings and
procedures. Our opinion is not binding upon the Internal Revenue Service or the
courts, and there is no assurance that the Internal Revenue Service will not
successfully assert a contrary position. Furthermore, no assurance can be given
that future legislative, judicial or administrative changes, on either a
prospective or retroactive basis, would not adversely affect the
<PAGE>
The Perkin-Elmer Corporation -5- October 28, 1997
accuracy of the conclusions stated herein. Nevertheless, we undertake no
responsibility to advise you of any new developments in the application or
interpretation of the federal income tax laws.
This opinion addresses only the matters set forth above, and does not
address any other federal, state, local or foreign tax consequences that may
result from the Merger or any other transaction (including any transaction
undertaken in connection with the Merger).
No opinion is expressed as to any transaction other than the Merger as
described in the Merger Agreement or to any transaction whatsoever, including
the Merger, if all the transactions described in the Merger Agreement are not
consummated in accordance with the terms of the Merger Agreement and without
waiver or breach of any material provision thereof or if all of the
representations, warranties, statements and assumptions upon which we relied are
not true and accurate at all relevant times. In the event any one of the
statements, representations, warranties or assumptions upon which we have relied
to issue this opinion is incorrect, our opinion might be adversely affected and
may not be relied upon.
This opinion has been delivered to you solely for the purpose of
being included as an exhibit to the Registration Statement and may not be
relied upon by you for any other purpose, or relied upon by, or furnished to,
any other person, firm or corporation without our prior written consent. We
hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of our name under the
<PAGE>
The Perkin-Elmer Corporation -6- October 28, 1997
captions "The Merger -- Certain United States Federal Income Tax Consequences"
and "Legal Opinions" in the Registration Statement. In giving this consent, we
do not admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the Rules
and Regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
<PAGE>
Exhibit 8.2
[LETTERHEAD OF TESTA, HURWITZ & THIBEAULT, LLP]
October 28, 1997
PerSeptive Biosystems, Inc.
500 Old Connecticut Path
Framingham, MA 01701
Re: Merger pursuant to the Agreement and Plan of Merger dated as of August
23, 1997 by and among PerSeptive Biosystems, Inc., The Perkin-Elmer
Corporation and Seven Acquisition Corp.
----------------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel for PerSeptive Biosystems, Inc., a Delaware
corporation ("PerSeptive") in connection with the preparation and execution of
the Agreement and Plan of Merger, dated as of August 23, 1997 (the
"Reorganization Agreement"), among PerSeptive, The Perkin-Elmer Corporation, a
New York corporation ("Perkin-Elmer"), and Seven Acquisition Corp., a
wholly-owned subsidiary of Perkin-Elmer incorporated in Delaware ("Merger Sub").
Pursuant to the Reorganization Agreement, Merger Sub will merge with and into
PerSeptive (the "Merger"), and PerSeptive will become a wholly-owned subsidiary
of Perkin-Elmer. Unless otherwise defined, capitalized terms referred to herein
have the meanings set forth in the Reorganization Agreement. All section
references, unless otherwise indicated, are to the Internal Revenue Code of
1986, as amended (the "Code").
You have requested our opinion regarding certain United States federal
income tax consequences of the Merger. In delivering this opinion, we have
reviewed and relied upon the facts, statements, descriptions and representations
set forth in the Registration Statement on Form S-4 filed by Perkin-Elmer with
the Securities and Exchange Commission (which contains a joint proxy statement
and prospectus) (the "Registration Statement"), the Reorganization Agreement
(including Exhibits) and such other documents pertaining to the Merger as we
have deemed necessary or appropriate. We have also relied upon certificates of
officers of PerSeptive, Perkin-Elmer and Merger Sub respectively (the "Officers'
Certificates") and upon certificates of certain shareholders of PerSeptive (the
"Shareholders' Certificates").
In connection with rendering this opinion, we have also assumed or have
obtained representations (without any independent investigation) that, as of the
date hereof and as of the Effective Time of the Merger:
1. Original documents (including signatures) are authentic, documents
submitted to us as copies conform to the original documents, and there has been
(or will be by the Effective
<PAGE>
PerSeptive Biosystems, Inc.
October 28, 1997
Page 2
Time of the Merger) due execution and delivery of all documents where due
execution and delivery are prerequisites to effectiveness thereof;
2. Any statement made in any of the documents referred to herein, "to the
best of the knowledge" of any person or party is correct without such
qualification;
3. All statements, descriptions and representations contained in any of
the documents referred to herein or otherwise made to us are true and correct in
all material respects and no actions have been (or will be) taken which are
inconsistent with such representations;
4. The Merger will be reported by Perkin-Elmer and PerSeptive on their
respective federal income tax returns in a manner consistent with the opinion
set forth below;
5. The shareholders of PerSeptive do not, and will not on or before the
Effective Time of the Merger, have an existing plan or intention to dispose
of an amount of Perkin-Elmer common stock to be received in the Merger (or to
dispose of PerSeptive capital stock in anticipation of the Merger) such that
the shareholders of PerSeptive will not receive and retain a meaningful
continuing equity ownership in Perkin-Elmer that is sufficient to satisfy the
continuity of interest requirement set forth in Treas. Reg. Section 1.368-1(b)
and as interpreted in certain Internal Revenue Service rulings and
federal judicial decisions;
6. After the Merger, PerSeptive will hold "substantially all" of its
and Merger Sub's properties within the meaning of Section 368(a)(2)(E)(i) of
the Code and the regulations promulgated thereunder;
7. To the extent any expenses relating to the Merger (or the "plan of
reorganization" within the meaning of Treas. Reg. Section 1.368-1(c) with
respect to the Merger) are funded directly or indirectly by a party other
than the incurring party, such expenses will be within the guidelines
established in Revenue Ruling 73-54, 1973-1 C.B 187; and
8. No PerSeptive shareholder guaranteed any PerSeptive indebtedness
outstanding during the period prior to the Effective Time of the Merger.
Based on our examination of the foregoing items and subject to the
assumptions, exceptions, limitations and qualifications set forth herein, we
are of the opinion that, if the Merger is consummated in accordance with the
Reorganization Agreement (and without any waiver, breach or amendment of any
of the provisions thereof) and the statements set forth in the Officers'
Certificates and the Shareholders' Certificates are true and correct as of
the date hereof and as of the Effective Time of the Merger, for federal
income tax purposes, the Merger will qualify as a "reorganization" within the
meaning of Section 368(a) of the Code, and PerSeptive,
<PAGE>
PerSeptive Biosystems, Inc.
October 28, 1997
Page 3
Perkin-Elmer and Merger Sub will each be a party to the reorganization within
the meaning of Section 368(b) of the Code.
This opinion represents and is based upon our best judgment regarding the
application of federal income tax laws arising under the Code, existing judicial
decisions, administrative regulations and published rulings and procedures. Our
opinion is not binding upon the Internal Revenue Service or the courts, and
there is no assurance that the Internal Revenue Service will not successfully
assert a contrary position. Furthermore, no assurance can be given that future
legislative, judicial or administrative changes, on either a prospective or
retroactive basis, would not adversely affect the accuracy of the conclusions
stated herein. Nevertheless, we undertake no responsibility to advise you of
any new developments in the application or interpretation of the federal income
tax laws.
This opinion addresses only the matters set forth above, and does not
address any other federal, state, local or foreign tax consequences that may
result from the Merger or any other transaction (including any transaction
undertaken in connection with the Merger).
No opinion is expressed as to any transaction other than the Merger as
described in the Reorganization Agreement or to any transaction whatsoever,
including the Merger, if all the transactions described in the Reorganization
Agreement are not consummated in accordance with the terms of the
Reorganization Agreement and without waiver or breach of any material
provision thereof or if all of the representations, warranties, statements
and assumptions upon which we relied are not true and accurate at all
relevant times. In the event any one of the statements, representations,
warranties or assumptions upon which we have relied to issue this opinion is
incorrect, our opinion might be adversely affected and may not be relied upon.
The opinion has been delivered to you solely for the purpose of being
included as an exhibit to the Registration Statement and may not be relied upon
by you for any other purpose, or relied upon by, or furnished to, any other
person, firm or corporation without our prior written consent. We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of our name under the captions "The Merger-Certain
United States Federal Income Tax Consequences" and "Legal Opinions" in the
Registration Statement. In giving this consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the Rules and Regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of The
Perkin-Elmer Corporation of our report dated December 28, 1994, except for
Note 13, as to which the date is August 11, 1995, appearing on page F-3 of
PerSeptive Biosystem's Annual Report on Form 10-K for the year ended
September 30, 1996. We also consent to the incorporation by reference of our
report on the Financial Statement Schedule which appears on page S-2 of such
Annual Report on Form 10-K. We also consent to the reference to us under the
heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Boston, Massachusetts
October 24, 1997
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement of Perkin-Elmer Corporation on Form S-4, related to the
registration of common stock of Perkin-Elmer Corporation issuable to holders
of PerSeptive Biosystems, Inc. common stock, of our report dated November 20,
1996, on our audits of the consolidated financial statements and financial
statement schedule of PerSeptive Biosystems, Inc. as of September 30, 1996
and 1995, and for the two years ended September 30, 1996 and 1995. We also
consent to the references to our firm under the caption "Experts".
/s/ Coopers & Lybrand L.L.P.
Boston, Massachusetts
October 28, 1997
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of The
Perkin-Elmer Corporation of our report dated July 23, 1997, which appears on
page 62 of the 1997 Annual Report to Shareholders of The Perkin-Elmer
Corporation, which is incorporated by reference in its Annual Report on Form
10-K for the year ended June 30, 1997. We also consent to the incorporation
by reference of our report on the Financial Statement Schedule, which appears
on page 20 of such Annual Report on Form 10-K. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Stamford, CT
October 24, 1997
<PAGE>
Exhibit 23.6
[LETTERHEAD OF PAINEWEBBER INCORPORATED]
October 28, 1997
PaineWebber Incorporated ("PaineWebber") hereby consents to the
inclusion in this Proxy Statement-Prospectus, filed as part of this
Registration Statements on Form S-4, of its opinion dated August 23, 1997,
and to the references made to PaineWebber in the "Summary", "The Merger:
Background of the Merger", "The Merger: Reasons for the Merger" and "The
Merger: Opinion of Financial Advisor to PerSeptive" sections of such Proxy
Statement-Prospectus. In giving such consent, we do not thereby admit that
we come within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
PAINEWEBBER INCORPORATED
By /s/ PaineWebber Incorporated
-----------------------------
-1-
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned directors
and/or officers of The Perkin-Elmer Corporation, a New York corporation (the
"Corporation"), which intends to file with the Securities and Exchange
Commission (the "SEC"), under the Securities Act of 1933, a Registration
Statement, on Form S-4 and/or such other Form or Forms as shall be appropriate,
with such amendments thereto (including post-effective amendments) as may be
necessary or appropriate, together with any and all exhibits and other documents
having relation to such Registration Statement, for the registration under such
Act of capital stock of the Corporation issuable pursuant to the Agreement and
Plan of Merger, dated as of August 23, 1997, among the Corporation, Seven
Acquisition Corp. ("Merger Sub") and PerSeptive Biosystems, Inc., a Delaware
corporation ("PerSeptive"), pursuant to which Merger Sub would be merged with
and into PerSeptive, as the same may be amended, hereby constitutes and appoints
TONY L. WHITE, PETER BARRETT and WILLIAM B. SAWCH, and each of them severally,
his or her true and lawful attorneys-in-fact and agents, with full power to act
without the others and with full power of substitution and resubstitution, for
him or her and in his or her name, place and stead, in any and all capacities,
to sign such Registration Statement and any and all amendments thereto
(including post-effective amendments), as said attorneys or any of them shall
deem necessary or appropriate, together with any and all exhibits and documents
necessary or incidental in connection therewith, with power where appropriate to
affix the corporate seal of the Corporation thereto and to attest such seal, and
to file such Registration Statement and each amendment (including post-effective
amendments) so signed, with all exhibits thereto, and any and all documents in
connection therewith, with the SEC, and to appear before the SEC in connection
with any matter relating to such Registration Statement and to any and all
amendments thereto (including post-effective amendments), hereby granting such
attorneys-in-fact and agents, and each of them severally, full power and
authority to do and perform any and all acts and things requisite and necessary
to be done as he or she might or could do in person, and hereby ratifying and
confirming all that such attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
<PAGE>
2
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney as of the 24th day of October, 1997.
/s/ Tony L. White
-----------------------------------
Tony L. White
/s/ Dennis L. Winger
-----------------------------------
Dennis L. Winger
/s/ Ugo D. DeBlasi
-----------------------------------
Ugo D. DeBlasi
/s/ Joseph F. Abely, Jr.
-----------------------------------
Joseph F. Abely, Jr.
/s/ Richard H. Ayers
-----------------------------------
Richard H. Ayers
/s/ Jean-Luc Belingard
-----------------------------------
Jean-Luc Belingard
/s/ Robert H. Hayes
-----------------------------------
Robert H. Hayes
/s/ Georges C. St. Laurent, Jr.
-----------------------------------
Georges C. St. Laurent, Jr.
/s/ Carolyn W. Slayman
-----------------------------------
Carolyn W. Slayman
/s/ Orin R. Smith
-----------------------------------
Orin R. Smith
<PAGE>
EXHIBIT 99.2
[LOGO]
October 30, 1997
Dear Stockholder:
You are cordially invited to attend the Special Meeting of Stockholders of
PerSeptive Biosystems, Inc., which will be held on December 4, 1997, at 9:00
a.m., local time, at the offices of Testa, Hurwitz & Thibeault, LLP, 125 High
Street, 20th Floor, Boston, Massachusetts 02110.
At the Special Meeting, holders of shares of Common Stock, par value $0.01
per share, of PerSeptive will be asked to consider and vote upon a proposal to
approve and adopt an Agreement and Plan of Merger among The Perkin-Elmer
Corporation, a subsidiary of Perkin-Elmer, and PerSeptive, with respect to the
merger of the Perkin-Elmer subsidiary with and into PerSeptive, as provided for
in the merger agreement. In the merger, each outstanding share of PerSeptive's
common stock will be converted into the right to receive shares of common stock,
par value $1.00 per share, of Perkin-Elmer, at an exchange ratio obtained by
dividing $13.00 by the average of the closing sale prices per share of
Perkin-Elmer's common stock on the New York Stock Exchange Composite
Transactions Tape on each of the 20 consecutive trading days immediately
preceding the second trading day prior to the effective time of the merger,
rounded to the nearest 1/10,000th, provided that such exchange ratio will not be
less than 0.1486 nor more than 0.1926. As a result of the merger, PerSeptive
will become a wholly-owned subsidiary of Perkin-Elmer. PerSeptive stockholders
will receive cash in lieu of any fractional shares which would otherwise be
issued in the merger.
You should read carefully the accompanying Notice of Special Meeting of
Stockholders and Proxy Statement/Prospectus for details of the merger and
additional related information.
THE BOARD OF DIRECTORS OF PERSEPTIVE HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT, DETERMINED THAT THE MERGER IS IN THE BEST INTERESTS OF PERSEPTIVE AND
ITS STOCKHOLDERS, AND RECOMMENDS THAT THE STOCKHOLDERS OF PERSEPTIVE VOTE FOR
THE APPROVAL AND ADOPTION OF THE MERGER AGREEMENT.
I look forward to meeting with those stockholders who are able to be present
at the special meeting; however, whether or not you plan to attend the special
meeting, please complete, sign and date the enclosed proxy card and return it
promptly in the enclosed postage-paid envelope. If you attend the special
meeting, you may vote in person if you wish, even though you previously have
returned your proxy card. Your prompt cooperation will be greatly appreciated.
Please do not send your stock certificates with your proxy card. If the
merger agreement is approved and adopted by the PerSeptive stockholders and the
merger is consummated, you will receive a transmittal form and instructions for
the surrender and exchange of your shares.
Thank you for your cooperation.
Sincerely,
/s/ Noubar B. Afeyan
Noubar B. Afeyan
Chief Executive Officer and
Chairman of the Board of
Directors
<PAGE>
EXHIBIT 99.3
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON DECEMBER 4, 1997
TO THE STOCKHOLDERS OF PERSEPTIVE BIOSYSTEMS, INC.
A special meeting of the stockholders (the "Special Meeting") of PerSeptive
Biosystems, Inc., a Delaware corporation ("PerSeptive"), will be held on
December 4, 1997 at 9:00 a.m., local time, at the offices of Testa, Hurwitz &
Thibeault, LLP, 125 High Street, 20th Floor, Boston, Massachusetts 02110 for the
following purposes:
1. To consider and vote upon a proposal to approve and adopt the Agreement
and Plan of Merger, dated as of August 23, 1997 (the "Merger Agreement"), among
The Perkin-Elmer Corporation, a New York corporation ("Perkin-Elmer"), Seven
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Perkin-Elmer ("Merger Sub"), and PerSeptive with respect to the merger of Merger
Sub with and into PerSeptive upon the terms and subject to the conditions
thereof (the "Merger"). Pursuant to the Merger Agreement, PerSeptive will become
a wholly-owned subsidiary of Perkin-Elmer and each share of Common Stock, par
value $0.01 per share, of PerSeptive ("PerSeptive Common Stock") issued and
outstanding at the Effective Time of the Merger (as defined in the accompanying
Proxy Statement/ Prospectus), will be converted into a fraction of a share of
Common Stock, par value $1.00 per share, of Perkin-Elmer ("Perkin-Elmer Common
Stock") obtained by dividing $13.00 by the average of the closing sale prices
per share of Perkin-Elmer Common Stock on the New York Stock Exchange Composite
Transactions Tape on each of the 20 consecutive trading days immediately
preceding the second trading day prior to the Effective Time of the Merger,
provided that such exchange ratio will not be less than 0.1486 nor more than
0.1926. THE MERGER IS MORE COMPLETELY DESCRIBED IN THE ACCOMPANYING PROXY
STATEMENT/PROSPECTUS, AND A COPY OF THE MERGER AGREEMENT IS ATTACHED AS ANNEX I
THERETO.
2. To transact such other business as may properly come before the Special
Meeting or any adjournments or postponements thereof.
Only holders of record of shares of PerSeptive Common Stock at the close of
business on October 9, 1997, the record date for the Special Meeting (the
"Record Date"), are entitled to notice of, and to vote at, the Special Meeting
and any adjournments or postponements thereof.
Each share of PerSeptive Common Stock will entitle the holder thereof to one
vote on each matter which may properly come before the Special Meeting. The
affirmative vote of the holders of a majority of the outstanding shares of
PerSeptive Common Stock is necessary to approve and adopt the Merger Agreement.
WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, PLEASE COMPLETE, SIGN
AND DATE THE ENCLOSED PROXY CARD AND RETURN IT PROMPTLY IN THE ENCLOSED
POSTAGE-PAID ENVELOPE. PLEASE DO NOT SEND ANY STOCK CERTIFICATES AT THIS TIME.
YOUR PROXY MAY BE REVOKED AT ANY TIME BEFORE IT IS VOTED BY SIGNING AND
RETURNING A LATER DATED PROXY WITH RESPECT TO THE SAME SHARES, BY FILING WITH
THE SECRETARY OF PERSEPTIVE A WRITTEN REVOCATION BEARING A LATER DATE OR BY
ATTENDING AND VOTING AT THE SPECIAL MEETING.
By Order of the Board of Directors,
/s/ Samuel P. Hunt III, Esq.
Samuel P. Hunt III, Esq.
Vice President, General Counsel and
Secretary
Dated: October 30, 1997
<PAGE>
Exhibit 99.4
PERSEPTIVE BIOSYSTEMS, INC.
Proxy for Special Meeting of Stockholders
P
R December____, 1997
O
X SOLICITED BY THE BOARD OF DIRECTORS
Y
The undersigned hereby appoints Noubar B. Afeyan, Samuel P. Hunt III,
and Jeffrey R. Moore and each of them, proxies, with full power of substitution
to vote all shares of stock of PerSeptive Biosystems, Inc. (the "Company") which
the undersigned is entitled to vote at the Special Meeting of Stockholders of
the Company to be held on Thursday, December 4, 1997 at 9:00 a.m.,
local time, at the offices of Testa, Hurwitz & Thibeault, LLP, 125 High Street,
Boston, MA, and at any adjournments thereof, upon matters set for the in the
Notice of Special Meeting of Stockholders and Proxy Statement dated October 30,
1997, a copy of which has been received by the undersigned.
SEE REVERSE
SIDE
CONTINUED AND TO BE SIGNED ON REVERSE SIDE
/X/ Please mark votes as in this example.
THE SHARES REPRESENTED BY THIS PROXY WILL BE VOTED AS DIRECTED OR, IF NO
DIRECTION IS GIVEN, WILL BE VOTED FOR THE APPROVAL AND ADOPTION OF THE MERGER
AGREEMENT AND AS SAID PROXIES DEEM ADVISABLE ON SUCH OTHER MATTERS AS MAY COME
BEFORE THE MEETING.
1. To approve and adopt the Agreement and Plan of Merger, dated as of August
23, 1997 (the "Merger Agreement"), among The Perkin-Elmer Corporation, a New
York corporation ("Perkin-Elmer"), Seven Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Perkin-Elmer ("Merger Sub"); and
PerSeptive Biosystems, Inc. ("PerSeptive"), a Delaware corporation with respect
to the merger of Merger Sub with and into PerSeptive upon the terms and subject
to the conditions thereof (the "Merger"). Pursuant to the Merger Agreement,
PerSeptive will become a wholly-owned subsidiary of Perkin-Elmer and each share
of Common Stock, par value $0.01 per share, of PerSeptive ("PerSeptive Common
Stock") issued and outstanding at the Effective Time of the Merger, will be
converted into fraction of a share of Common Stock par value $1.00 per share, of
Perkin-Elmer ("Perkin-Elmer Common Stock") obtained by dividing $13.00 by the
average of the closing sale prices per share of Perkin-Elmer Common Stock on the
New York Stock Exchange Composite Transactions Tape on each of the 20
consecutive trading days immediately preceding the second trading day prior to
the Effective Time of the Merger, provided that such exchange ratio will not be
less than 0.1486 nor more than 0.1926.
/ / FOR / / AGAINST / / ABSTAIN
2. To transact such other business as may properly come before the Special
Meeting or any adjournments or postponements thereof.
