<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(X) Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the Quarterly Period March 29, 1997
or
( ) Transition Report Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
For the Transition Period From_____________ To ________
Commission File Number: 0-20032
PerSeptive Biosystems, Inc.
---------------------------
(Exact name of registrant as specified in its charter)
Delaware 04-2987616
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(State or other jurisdiction of (IRS Employer ID No.)
incorporation or organization)
500 Old Connecticut Path, Framingham, MA 01701
- ---------------------------------------- -----
(Address of principal executive offices) (Zip Code)
(508) 383-7700
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(Registrant's telephone number,
including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
---- ----
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Common Stock 21,431,141 Shares
- ------------ -----------------
(Class) (Outstanding at May 8, 1997)
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PERSEPTIVE BIOSYSTEMS, INC.
QUARTERLY REPORT ON FORM 10-Q
MARCH 29, 1997
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page No.
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<S> <C>
Part I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements:
a) Consolidated Balance Sheets at
March 29, 1997 (unaudited) and September 30, 1996 3
b) Consolidated Statements of Operations
for the three and six-month periods ended
March 29, 1997 and March 30, 1996 (unaudited) 4
c) Consolidated Statements of Cash Flows
for the six-month periods ended
March 29, 1997 and March 30, 1996 (unaudited) 5
d) Notes to the Consolidated Financial Statements (unaudited) 6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 10
Part II. OTHER INFORMATION
Item 1. Legal Proceedings 15
Item 4. Submission of Matters to a Vote of Security Holders 17
Item 6. Exhibits and Reports on Form 8-K 18
SIGNATURES 19
</TABLE>
2
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PERSEPTIVE BIOSYSTEMS, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
<TABLE>
<CAPTION>
March 29, September 30,
1997 1996
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(unaudited)
<S> <C> <C>
ASSETS:
Current assets:
Cash and cash equivalents $ 6,788 $ 5,384
Short-term investments, available-
for-sale 36,075 19,273
Trade accounts receivable, net of
allowance for doubtful accounts
of $1,936 at March 29, 1997 and
$2,386 at September 30, 1996,
respectively 17,466 16,052
Inventories, net 20,489 21,074
Other current assets 1,484 2,107
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Total current assets 82,302 63,890
Fixed assets, net 29,555 32,017
Patent and license costs, net 5,686 5,913
Goodwill, net 17,998 18,518
Other long-term assets 1,422 1,317
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Total assets $ 136,963 $ 121,655
============= =============
LIABILITIES AND STOCKHOLDERS' EQUITY:
Current liabilities:
Accounts payable $ 11,042 $ 9,292
Accrued expenses 15,647 18,699
Current portion of deferred revenue 2,410 1,158
Short-term borrowing 4,919 5,032
Current portion of obligations and
other current liabilities 2,274 3,137
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Total current liabilities 36,292 37,318
Long-term liabilities:
Convertible subordinated notes 27,230 27,230
Long-term debt 5,063 5,574
Captial lease obligations, less
current portion 403 361
Deferred revenue and other liabilities 1,014 887
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Total long-term liabilities 33,710 34,052
Commitments and contingencies
Stockholders' equity:
Redeemable convertible preferred stock,
$.01 par value; 4,000 shares authorized;
2,000 shares issued and outstanding at
March 29, 1997 and September 30, 1996;
redemption value $20,000 at March 29, 1997
and September 30, 1996 18,767 18,053
Common stock, $.01 par value; 100,000,000
shares authorized; 21,429,431 and
21,315,456 shares issued and outstanding at
March 29, 1997 and September 30, 1996,
respectively 215 213
Additional paid-in capital 159,200 158,556
Accumulated deficit (106,959) (125,094)
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71,223 51,728
Cumulative translation adjustment (4,240) (1,373)
Unrealized loss on investments (22) (70)
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Total stockholders' equity 66,961 50,285
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Total liabilities and stockholders'
equity $ 136,963 $ 121,655
============= =============
</TABLE>
The accompanying notes are an integral part of these financial statements
3
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PERSEPTIVE BIOSYSTEMS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
(unaudited)
<TABLE>
<CAPTION>
Three months ended Six months ended
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March 29, March 30, March 29, March 30,
1997 1996 1997 1996
------------------------------ -----------------------------
<S> <C> <C> <C> <C>
Revenue:
Product revenue $ 23,193 $ 19,367 $ 44,294 $ 38,431
Contract revenue - 5,034 - 10,101
----------- ----------- ----------- ----------
23,193 24,401 44,294 48,532
----------- ----------- ----------- ----------
Cost of goods sold:
Cost of product revenue 11,691 9,677 22,334 18,700
Cost of contract revenue - 4,267 - 8,571
Other charges - 4,837 - 4,837
----------- ----------- ----------- ----------
11,691 18,781 22,334 32,108
----------- ----------- ----------- ----------
Gross profit 11,502 5,620 21,960 16,424
Operating Expenses:
Research and development 3,555 1,701 7,124 3,270
Selling, general and administrative 9,952 11,015 19,510 20,647
Other charges - 13,496 - 13,496
Amortization 260 794 520 1,518
----------- ----------- ----------- ----------
13,767 27,006 27,154 38,931
----------- ----------- ----------- ----------
Loss from operations (2,265) (21,386) (5,194) (22,507)
----------- ----------- ----------- ----------
Other income (expense):
Interest expense, net (599) (719) (1,462) (1,422)
Other income (expense), net 25,498 41 25,506 (11)
----------- ----------- ----------- ----------
Net income/(loss) before provision
for income taxes 22,634 (22,064) 18,850 (23,940)
Provision for income taxes - - - 100
----------- ----------- ----------- ----------
Net income (loss) $ 22,634 $ (22,064) $ 18,850 $ (24,040)
=========== =========== =========== ==========
Net income/(loss) per common share
Primary $ 1.02 $ (1.48) $ 0.84 $ (1.72)
Fully diluted $ 0.93 $ 0.77
Weighted average common shares
Primary 21,745 15,243 21,679 14,609
Fully diluted 24,458 24,419
</TABLE>
The accompanying notes are an integral part of these financial statements.
4
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PERSEPTIVE BIOSYSTEMS, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Six months ended
March 29, March 30,
--------------------------
1997 1996
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<S> <C> <C>
Cash from operating activities:
Net income (loss) $ 18,850 $ (24,040)
Adjustments to reconcile net income
(loss) to net cash used in operating
activities, net of acquired amounts
Net (gain) loss on securities available for sale 48 -
Depreciation and amortization 3,850 5,593
Non-cash portion of gain on Chemgenics exchange (21,830) -
Non-cash portion of other charges - 17,261
Changes in assets and liabilities:
Increase in accounts receivable (2,131) (1,315)
Increase in inventories (327) (2,467)
Decrease (increase) in other assets 365 (348)
Increase in accounts payable 1,750 512
Decrease in accrued expenses (3,052) (118)
Increase (decrease) in other liabilities 1,381 (2,426)
--------- ---------
Net cash used in operating activities $ (1,096) $ (7,348)
--------- ---------
Cash flows from investing activities
Purchases of fixed assets (1,933) (7,188)
Cash and investments acquired from PTC II - 11,851
Net proceeds from sales of
securities available-for-sale 5,028 (1,422)
Increases in patents and licenses - 187
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Net cash provided by (used in)
investing activities $ 3,095 $ 3,428
--------- ---------
Cash flows from financing activities
Proceeds from capital lease financing - 306
Principal payments under capital lease
obligations (822) (733)
Net proceeds from facility financing - 2,585
Net proceeds (payments) from short-term
borrowing (114) 1,179
Proceeds from issuance of common stock 646 (6)
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Net cash (used in) provided by
financing activities $ (290) $ 3,331
--------- ---------
Effect of exchange rate changes on
cash and cash equivalents (305) (688)
--------- ---------
Increase (decrease) in cash and cash
equivalents 1,404 (1,277)
Cash and cash equivalents, beginning of
period 5,384 12,215
--------- ---------
Cash and cash equivalents, end of period $ 6,788 $ 10,938
========= =========
Supplemental disclosure of cash flow
information:
Interest paid 1,843 1,666
Supplemental disclosure of non-cash
activities:
Accretion of Series A Preferred Stock 714 1,031
Stock issued: purchase costs of AMI
acquisition 3,423
Stock and warrants issued in connection with
PTC II acquisition 15,592
</TABLE>
The accompanying notes are an integral part of these financial statements
5
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NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(1) BASIS OF PRESENTATION
The accompanying consolidated balance sheet at March 29, 1997, and the
consolidated statements of operations for the three and six-month periods ended
March 29, 1997 and March 30, 1996, and the consolidated statements of cash flows
for the six-month periods ended March 29, 1997 and March 30, 1996 have been
prepared by the Company, without audit, pursuant to the rules and regulations of
the Securities and Exchange Commission (the "Commission"). Although certain
information and footnote disclosures normally included in financial statements
prepared in accordance with generally accepted accounting principles have been
condensed or omitted pursuant to such rules and regulations, the Company
believes that the disclosures are adequate to make the information presented not
misleading and reflect all adjustments (consisting only of normal recurring
adjustments) which are necessary for a fair presentation of results of
operations for such periods. The results of operations for the three and six-
month periods ended March 29, 1997 are not necessarily indicative of the results
expected for the year ended September 30, 1997. It is suggested that these
financial statements be read in conjunction with the consolidated financial
statements for the year ended September 30, 1996 and the notes thereto included
in the Company's Annual Report on Form 10-K.
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make certain estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
(2) INVENTORIES
Inventories consist of the following (in thousands):
<TABLE>
<CAPTION>
March 29, 1997 September 30, 1996
-------------- ------------------
<S> <C> <C>
Raw material $ 7,572 $ 7,368
Work in process 2,027 2,751
Finished goods 10,890 10,955
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Total inventories $20,489 $21,074
======= =======
</TABLE>
(3) NET INCOME (LOSS) PER COMMON SHARE
Primary net income (loss) per common share is computed by dividing net income,
including accretion on preferred stock, by the weighted average common shares
and dilutive weighted average common stock equivalents outstanding during the
period. Accretion on preferred stock was $357,000 and $714,000 for the three
and six-months ended March 29, 1997 and $515,000 and $1,031,000 for the three
and six-months ended March 30, 1996, respectively. Common stock equivalents
consist of shares subject to stock options, warrants, contingently issuable
shares and shares held in escrow. Net loss per share for the three and six-
month periods ended March 30, 1996 exclude all common stock equivalents from the
calculation of weighted average common shares outstanding, as their inclusion
would be anti-dilutive.
Fully diluted net income per common share is computed by dividing net income
before accretion on preferred stock by the weighted average common shares
outstanding during the period plus weighted average common stock equivalents and
equivalent shares resulting from the assumed conversion of preferred stock using
the period end market price of the common stock.
In February 1997, the Financial Accounting Standards Board issued Statement No.
128 ("SFAS 128"), "Earnings per Share," which is effective for fiscal years
ended after December 15, 1997, including interim periods. SFAS 128 requires the
presentation of basic and diluted earnings per share ("EPS"). Basic EPS, which
replaces primary EPS, excludes dilution and
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is computed by dividing income available to common stockholders by the weighted-
average number of common shares outstanding for the period. Diluted EPS reflects
the potential dilution that could occur if securities or other contracts to
issue common stock were exercised or converted into common stock or resulted in
the issuance of common stock that then shared in the earnings of the entity.
Diluted EPS is computed similarly to fully diluted EPS under the existing rules.
SFAS 128 requires restatement of all prior-period earnings per share data
presented after the effective date. The Company will adopt SFAS 128 in its
fiscal year ended September 30, 1998 and has not yet determined the impact of
such adoption.
(4) ACQUISITION OF PERSEPTIVE TECHNOLOGIES II CORPORATION
On November 1, 1995, the Company, PerSeptive Acquisition Corporation ("PAC"), a
wholly owned subsidiary of the Company, and PerSeptive Technologies II
Corporation ("PTC II") entered into a definitive agreement pursuant to which the
Company agreed to an exchange offer for all of the 2,645,000 outstanding units
of PTC II followed by a merger of PTC II with PAC. Each PTC II unit consisted
of one share of callable common stock of PTC II and one Class E Warrant of the
Company, exercisable at $33.00 until December 1998. Effective March 8,1996, the
Company acquired 2,603,125 units of PTC II that were validly tendered and not
withdrawn in the exchange offer. The PTC II shareholders, who participated in
the exchange offer, exchanged their units for 2,603,125 shares of the Company's
common stock and 2,603,125 new class I Warrants to purchase the Company's common
stock, exercisable until August 8, 1997 at an exercise price per share of
$13.50. On March 13, 1996, PTC II merged with PAC and became a wholly owned
subsidiary of the Company. Each of the remaining 41,875 shares of callable
common stock of PTC II not exchanged in the exchange offer were automatically
converted into a right to receive one share of the Company's common stock upon
the merger of PTC II with PAC. During the quarter ended June 30, 1996, 36,475
rights were exchanged for an equivalent number of shares of the Company's common
stock. The total value of the common stock issued in the exchange offer was
approximately $16 million based on the market value of the Company's common
stock on March 8, 1996. The transaction has been accounted for as a purchase and
the Company has recorded an in-process research and development charge of
approximately $6.8 million which represents the value of acquired technologies
which have not reached commercialization. During the three-month period ended
March 30, 1996, the Company recognized research and development revenue from PTC
II totaling approximately $5 million.
5) LITIGATION AND OTHER MATTERS
The Company has sued Pharmacia Biotech, Inc. and certain of its affiliates, and
their parent Pharmacia AB (collectively, "Pharmacia"), now part of Pharmacia &
Upjohn Co., Sepracor Inc. ("Sepracor") and BioSepra Inc. ("BioSepra"), a company
partially owned by Sepracor, for willful infringement of three PerSeptive
patents (U.S. Nos. 5,019,270, 5,228,989 and 5,384,042), covering the process of
Perfusion Chromatography/(R)/ and the manufacture, sale and use of
chromatography particles and matrices that enable Perfusion Chromatography
(collectively, the "Original Perfusion Patents"). The Company commenced its
action against Pharmacia and Sepracor on October 14, 1993, and the consolidated
action has been pending in the United States District Court for the District of
Massachusetts. BioSepra was added as a party on May 19, 1994. The lawsuit also
claims that Sepracor and BioSepra made false and misleading representations of
fact with respect to the Company's products, and that BioSepra engaged in false
and misleading advertising. The lawsuit, in an amended complaint filed by
Purdue University and the Company, also claims that Sepracor and BioSepra
infringe a fourth patent (the "Coatings Patent"), licensed exclusively by
PerSeptive, covering novel coatings for chromatography media. The lawsuit seeks
to enjoin the defendants from infringing the four patents and asks for treble
damages, as well as other relief and damages. Pharmacia, Sepracor and BioSepra
each have asserted that their products do not infringe the Original Perfusion
Patents and that the Original Perfusion Patents are invalid and unenforceable,
and have asserted counterclaims against the Company alleging that the Company's
assertions that they have infringed the patents, and that statements allegedly
made by the Company to customers concerning the litigation, constitute unfair
competition, commercial disparagement, unfair trade practices, tortious
interference with customer relationships and violation of the Lanham Act, and
seeking an unspecified amount of damages, and, under certain asserted claims,
double or treble damages, as well as attorneys' fees and expenses. The Company
has denied any liability on these counterclaims.
7
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On January 9, 1996, the Court entered an order denying the Company's motion for
partial summary judgement relating to the inventorship of the Original Perfusion
Patents, granting the defendants' motions for partial summary judgement that
inventorship of the Original Perfusion Patents is improper for failure to name
two or more persons as additional joint inventors, and requiring the Company to
move to correct inventorship or have the patents declared invalid. On March 12,
1996, the Court entered a ruling directing the Company to correct inventorship
and placed on the Company the burden of proving the absence of deceptive intent
in the designation of inventors at a hearing. The Company moved to correct
inventorship. The Company has preserved its right to appeal on a number of
issues, including the Court's January 9, 1996 order that the Original Perfusion
Patents failed to name additional persons as joint inventors and the Court's
March 12, 1996 order imposing the burden of proof on PerSeptive. The hearing was
held in May and June 1996. On April 3, 1997, the Court issued a ruling denying
the Company's motion to correct inventorship, ruling that the Company had not
met its burden of proving that two British scientists, who worked for a company
that is not a party to the litigation, were not named on the Original Perfusion
Patents without deceptive intent within the meaning of Section 256 of Title 35
United States Code, and granted judgment in favor of Sepracor, BioSepra and
Pharmacia on the Company's claims relating to the Original Perfusion Patents. On
April 16, 1997, the Company filed a motion to permit an immediate appeal of the
April 3, 1997 decision, and the related January 9, 1996 and March 12, 1996
decisions, to the United States Court of Appeals for the Federal Circuit, which
has exclusive jurisdiction in the United States to hear appeals in patent cases.
On April 30, 1997, the defendants filed a motion requesting that the District
Court render a decision on the defendants' defense of inequitable conduct prior
to permitting the Company's appeal. The Court has not rendered a decision on the
Company's or the defendants' motions. The Court has not yet considered the issue
of infringement of the Original Perfusion Patents or the Coatings Patent. The
Company intends to continue to vigorously pursue this litigation.
In September 1996 and February 1997, two new United States patents relating to
Perfusion Chromatography systems were issued to the Company. Neither of these
patents, which cover instruments an systems that perform the high-speed, high
resolution chromatography which is the subject of the Original Perfusion
Patents, are the subject of the current litigation. Prior to the issuance of
these patents, the Company had submitted to the patent examiner the District
Court's January 9, 1996 order, and non-confidential portions of the related
briefs filed by the parties, and the patents were issued naming only
PerSeptive's scientific founders as the inventors nonetheless.
Since November 1994, the Company has been responding to informal requests for
information from the Commission related to certain of the Company's financial
matters. In May 1995, the Company was advised by the Commission that it had
obtained a formal order of investigation so that, among other matters, it may
utilize subpeona powers to obtain information relevant to its inquiry. The
Commission has utilized and may in the future utilize its subpoena powers to
obtain information from various officers, directors and employees of the Company
and from persons not presently associated with the Company. If, after completion
of its investigation, the Commission finds that violations of the federal
securities laws have occurred, the Commission has the authority to order persons
to cease and desist from committing or causing such violations and any future
violations. The Commission may also seek administrative, civil and criminal
fines and penalties and injunctive relief. The Department of Justice has the
authority in respect of criminal matters. There can be no assurance as to the
timeliness of the completion of the investigation or as to the final result
thereof, and no assurance can be given that the final result of the
investigation will not have a material adverse effect on the Company. The
Company is cooperating fully with the investigation, and has responded and will
continue to respond to requests for information in connection with the
investigation.
(6) TRANSACTION WITH CHEMGENICS
Effective June 28, 1996 the Company completed a transaction with ChemGenics
Pharmaceuticals, Inc. ("ChemGenics") (formerly Myco Pharmaceuticals, Inc.) in
which the Company transferred certain assets and employees of the Company's drug
discovery program and entered into a non-exclusive license, licensing the
Company's technology in the field of drug discovery to ChemGenics in exchange
for shares of ChemGenics common stock, $.001 par value per share ("ChemGenics
common stock") equal to 40% of its fully diluted common stock, plus warrants to
purchase, for a period of four years, additional shares of ChemGenics common
stock at $5.00 per share equal to 10% of such fully diluted amount. In December
1996, the Company and ChemGenics executed amendments to their agreements
pursuant to which the Company exchanged a portion of its ChemGenics common stock
for a promissory note for $3 million payable on the earlier of the closing of
ChemGenics' initial public offering or December 31, 2002. As a result of the
above referenced modifications to the agreements, the Company held approximately
34% of the outstanding common stock of ChemGenics as of December 28, 1996.
8
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(7) MERGER OF CHEMGENICS AND MILLENNIUM
On January 20, 1997 ChemGenics and Millennium Pharmaceuticals, Inc.
("Millennium") entered into an Agreement and Plan of Merger ("Agreement").
Under the terms of the Agreement, the stockholders of ChemGenics received common
stock of Millennium in exchange for their common stock of ChemGenics. At the
closing on February 10, 1997, the Company received 1,612,582 shares of
Millennium common stock, $.001 par value per share ("Millennium common stock"),
in exchange for its shares of ChemGenics common stock. In addition, the Company
received $4 million cash in exchange for the warrants for ChemGenics common
stock and in satisfaction of the above referenced promissory note. The parties
to the Agreement contemplate that the transaction will qualify as a tax-free
merger. The Company's shares of Millennium common stock are unregistered as
issued and will be subject to restrictions on sale which expire in increments
between June and September 1997. In connection with this event, the Company
recorded a gain of $25.8 million, reflecting the fair market value of the cash
received and the Company's investment in Millennium common stock as of March 29,
1997.
9
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This report contains forward-looking statements which involve risks and
uncertainties. The Company's actual results may differ significantly from the
results discussed in the forward-looking statements. Factors that may cause
such a difference include, but are not limited to, those discussed below under
the caption "Certain Factors That May Affect Future Results," as well as
elsewhere in this Management's Discussion and Analysis of Financial Condition
and Results of Operations, and those discussed in the Company's other filings
with the Securities and Exchange Commission.
RESULTS OF OPERATIONS
THREE MONTHS ENDED MARCH 29, 1997 AND MARCH 30, 1996
Product revenue for the three months ended March 29, 1997 was $23,193,000
compared with $19,367,000 for the comparable 1996 period. The growth in product
revenue is attributable to increasing sales in the analysis, purification and
synthesis product lines and further expansion of the Company's products into the
international market place. Total revenue amounted to $23,193,000 and
$24,401,000 for the three months ended March 29, 1997 and March 30, 1996,
respectively. The decrease in total revenue is attributable to the elimination
of contract revenue, previously recorded in connection with the Company's
development efforts on behalf of PTC II, following the acquisition of PTC II in
March 1996.
Gross profit from product revenue for the three months ended March 29, 1997 and
March 30, 1996 was $11,502,000 and $9,690,000, respectively. Gross margin from
product revenue was 50% for these comparable periods. Gross margin from product
revenue for the three months ended March 29, 1997 was favorably affected by the
sale of instruments for which certain reserves had been recorded previously.
The Company's ability to improve gross margin levels will be dependent upon,
among other things, improving product mix and selling prices in the face of
increasing competition and reducing underabsorption in the Company's
manufacturing operations.
Included in cost of revenue for the three months ended March 30, 1996 are other
charges totaling $4.8 million. These charges represent provisions to write off
inventory and other assets associated with actions taken in 1996 to discontinue
product lines as well as to reposition certain products within the purification,
analysis and synthesis product lines.
Research and development expenses for the three months ended March 29, 1997
amounted to $3,555,000, or 15% of product revenue, as compared with $1,701,000,
or 9% of product revenue, for the comparable period in 1996. Research and
development expenses, which include such expenses as reflected in cost of
contract revenue, have declined to $3,555,000, or 15% of product revenue, from
$5,968,000, or 31% of product revenue, for the three months ended March 29, 1997
and March 30, 1996, respectively. Actions have been taken to control the level
of research and development expense actually incurred following the acquisition
of PTC II in March 1996. This has been accomplished, in part, through the
restructuring program that resulted in the elimination of a significant portion
of the Company's research and development staffing and related variable support
costs. Management intends to continue pursuing commercialization opportunities
and alliances in order to obtain value from the technologies acquired from PTC
II, as it has done in the recently completed transactions with ChemGenics
Pharmaceuticals, Inc. ("ChemGenics") (formerly Myco Pharmaceuticals, Inc.)
(subsequently merged with Millennium Pharmaceuticals, Inc. ("Millennium"). See
Notes (6) and (7). Management continues to evaluate the scope and direction of
the various programs; however there is no assurance that funding sources and/or
third-party arrangements will be obtained or established to defray the cost of
research and development or that any of these acquired technologies will
ultimately be successfully commercialized.
Selling, general and administrative expenses amounted to $9,952,000, or 43% of
Product revenue, during the three months ended March 29, 1997, as compared with
$11,015,000, or 57% of Product revenue during the comparable period in the prior
year. The reduction in both aggregate spending as well as spending as a percent
of sales is attributable to management's efforts to control these costs as well
as improve the productivity of the resources utilized in these functional areas.
Other income was $25,498,000 and $41,000 for the three months ended March 29,
1997 and March 30, 1996, respectively. This increase was due primarily to the
gain on the exchange of the Company's ChemGenics common stock, $.001 per value
per share (the "ChemGenics common stock"), for Millennium
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common stock, $.001 par value per share (the "Millennium common stock"), plus
the receipt of additional consideration in the form of cash upon the merger of
ChemGenics with Millennium.
Net interest expense was $599,000 during the three months ended March 29, 1997,
as compared with $719,000 during the comparable period in the prior year. This
decrease is primarily attributable to higher net interest income as compared to
the comparable period in the prior year.
SIX MONTHS ENDED MARCH 29, 1997 AND MARCH 30, 1996
Product revenue for the six months ended March 29, 1997 was $44,294,000 compared
with $38,431,000 for the comparable period in 1996. The growth in product
revenue is attributable to increasing sales in the analysis and synthesis
product lines and further expansion of the Company's products into the
international market place. Total revenue amounted to $44,294,000 and
$48,532,000 for the six months ended March 29, 1997 and March 30, 1996,
respectively. The decrease in total revenue is attributable to the elimination
of contract revenue, previously recorded in connection with the Company's
development efforts on behalf of PTC II, following the acquisition of PTC II in
March 1996.
Gross profit from product revenue for the six months ended March 29, 1997 and
March 30, 1996 was $21,960,000 and $19,731,000, respectively. Gross margin from
product revenue was 50% for each of these periods. Gross margin from product
revenue for the six months ended March 29, 1997 was favorably affected by the
sale of instruments for which certain reserves had been recorded previously.
The Company's ability to improve gross margin levels will be dependent upon,
among other things, improving product mix and selling prices in the face of
increasing competition and reducing underabsorption in the Company's
manufacturing operations.
Included in cost of revenue for the six months ended March 30, 1996 are other
charges totaling $4.8 million. These charges represent provisions to write off
inventory and other assets associated with actions taken to discontinue product
lines as well as to reposition certain products within the purification,
analysis and synthesis product lines.
Research and development expenses for the six months ended March 29, 1997
amounted to $7,124,000, or 16% of product revenue, as compared with $3,270,000,
or 9% of product revenue for the comparable period in the prior year. Research
and development expenses, which include such expenses as reflected in cost of
contract revenue, have declined to $7,124,000, or 16% of product revenue, from
$11,841,000, or 31% of product revenue, for the six months ended March 29, 1997
and March 30, 1996, respectively. Actions have been taken to control the level
of research and development expense actually incurred following the acquisition
of PTC II in March 1996. This has been accomplished, in part, through the
restructuring program that resulted in the elimination of a significant portion
of the Company's research and development staffing and related variable support
costs. Management intends to continue pursuing commercialization opportunities
and alliances in order to obtain value from the technologies acquired from PTC
II, as it has done in the recently completed ChemGenics/Millennium transaction.
See Notes (6) and (7). Management continues to evaluate the scope and direction
of the various programs, however there is no assurance that funding sources
and/or third-party arrangements will be obtained or established to defray the
cost of research and development or that any of these acquired technologies will
ultimately be successfully commercialized.
Selling, general and administrative expenses amounted to $19,510,000, or 44% of
product revenue, during the six months ended March 29, 1997, as compared with
$20,647,000, or 54% of product revenue, during the comparable period in the
prior year. The reduction in both aggregate spending as well as spending as a
percent of sales is attributable to management's efforts to control these costs
as well as improve the productivity of the resources utilized in these
functional areas.
Other income was $25,506,000 for the six months ended March 29, 1997 as opposed
to other expense of $11,000 for the comparable period in 1996. This increase was
due primarily to the gain on the exchange of ChemGenics common stock for
Millennium common stock plus the receipt of additional consideration in the form
of cash upon the merger of ChemGenics with Millennium.
Net interest expense was $1,462,000 during the six months ended March 29, 1997,
as compared with $1,422,000 during the comparable period in the prior year.
11
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
Cash, cash equivalents and investments at March 29, 1997 were $42,863,000 as
compared to $24,657,000 at September 30, 1996. The increase in cash, cash
equivalents and investments is due principally to the $25.8 million of cash and
fair market value of the Company's investment in Millennium Common Stock. This
was offset by expenditures of cash, cash equivalents and investments during the
three months ended March 29, 1997 primarily related to the funding of
operational requirements and capital additions for $3.0 million and the funding
of financing activities for $900,000. Management anticipates additional cash
usage relating to various factors including, but not limited to, expenditures
relating to a significant new product launch and cash requirements associated
with capital expenditures, patent enforcement actions, working capital and
operational needs.
The Company believes that its capital resources are sufficient to fund its
planned operations through the end of fiscal 1997. The Company believes that
additional financing may be required for the development of some of its
currently planned product introductions and to support the Company's future
operations and revenue growth. The Company's future working capital and capital
requirements will in general depend on numerous factors, including the progress
of the Company's research and development of new products, the level of
resources that the Company devotes to the development of manufacturing and
marketing capabilities, the consistency of cash collections, the success of cost
containment initiatives, the successful registration and liquidation of the
Company's common stock holdings in Millennium, the competitive environment and
the growth in the Company's business, which may cause the Company's actual
future capital resources to differ materially, notwithstanding the forward-
looking statement in the first sentence of this paragraph. The Company believes
that the level of financial resources available to it is an important
competitive factor. The Company is continually evaluating its liquidity
position and may seek to raise additional capital through equity or debt
financing or to enter into corporate partnering arrangements; however, there can
be no assurance that the Company will be able to successfully raise additional
capital at acceptable terms.
In February 1997, the Financial Accounting Standards Board issued Statement No.
128 ("SFAS 128"), "Earnings per Share," which is effective for fiscal years
ended after December 15, 1997, including interim periods. SFAS 128 requires the
presentation of basic and diluted earnings per share ("EPS"). Basic EPS, which
replaces primary EPS, excludes dilution and is computed by dividing income
available to common stockholders by the weighted-average number of common shares
outstanding for the period. Diluted EPS reflects the potential dilution that
could occur if securities or other contracts to issue common stock were
exercised or converted into common stock or resulted in the issuance of common
stock that then shared in the earnings of the entity. Diluted EPS is computed
similarly to fully diluted EPS under the existing rules. SFAS 128 requires
restatement of all prior-period earnings per share data presented after the
effective date. The Company will adopt SFAS 128 in its fiscal year ended
September 30, 1998 and has not yet determined the impact of such adoption.
CHEMGENICS AND MILLENNIUM TRANSACTIONS
In June 1996, the Company entered into a transaction with ChemGenics, in which
the Company transferred certain assets and employees of the Company's drug
discovery program to ChemGenics and granted a non-exclusive license to
ChemGenics to use the Company's technology (including technology developed
through PTC II) in the field of drug discovery in exchange for shares of
ChemGenics common stock and warrants to purchase additional shares of ChemGenics
common stock exercisable until June 28, 2000. The warrants were exercisable at
$5.00 per share ($13.25 per share after a proposed 2.65-for-1 reverse stock
split). The Company was subject to certain contractual restrictions on the sale
or distribution of its holdings of ChemGenics common stock. In December 1996,
the Company and ChemGenics executed amendments to their agreements pursuant to
which the Company exchanged a portion of its ChemGenics common stock for a
promissory note for $3 million payable on the earlier of the closing of
ChemGenics' initial public offering or December 31, 2002. The Company held
approximately 34% of the outstanding common stock of ChemGenics as of December
28, 1996.
In January 1997, ChemGenics and Millennium announced that they had entered into
a definitive merger agreement (the "Merger Agreement") for Millennium to acquire
ChemGenics in a stock for stock transaction. At the closing, which was held on
February 10, 1997, the Company received 1,612,582 shares of Millennium common
stock and cash in the amount of $4 million. The Millennium shares issued in the
transaction are unregistered and subject to restrictions on sale which expire in
increments between June and September 1997. Registration of the shares is
expected to occur in June 1997.
12
<PAGE>
CERTAIN FACTORS THAT MAY AFFECT FUTURE RESULTS
Additional Financing Requirements. The Company believes additional long-term
financing may be required for the development of some of its currently planned
product introductions and to support its planned operations and capital
expenditures in its core business relating to the purification, analysis and
synthesis of biomolecules. The Company may seek to raise additional capital
through equity or debt financing or to enter into corporate partnering
arrangements; however, there can be no assurances that this funding will be made
available or that terms acceptable to the Company will be reached.
Investment in Millennium. The Company currently holds approximately 1.6 million
shares of unregistered Millennium common stock, which shares Millennium is
required to register under the terms of the Merger Agreement. Failure of such
registration statement to become effective in a timely manner due to regulatory
delays could adversely impact the Company's near-term liquidity. Downward
fluctuations in the market price of Millennium common stock will have an adverse
effect on the value of the Company's investments. There can be no assurance
that the Company will be able to realize cash from the sale of the Millennium
common stock equal to the value reflected in the Company's balance sheet as of
March 29, 1997. At this time, the Company has not established a plan for
liquidating this investment.
Potential Fluctuations in Operating Results. The Company's operating results
may vary significantly from quarter to quarter or year to year, depending on
factors such as the timing of biopharmaceutical development and
commercialization programs of the Company's customers, the timing of increased
research and development and sales and marketing expenses, the timing and size
of orders and the introduction of new products by the Company and the capital
resources of the Company's customers. The Company's current and planned expense
levels are based in part on its expectations as to future revenue.
Consequently, results may vary significantly from quarter to quarter or year to
year based on timing of revenue, and revenue or profits in any period will not
necessarily be indicative of results in subsequent periods. In addition, the
Company's stock price has been volatile and may be affected by general market
conditions beyond the Company's control.
Uncertainties Associated with Future Performance. The Company expects to
continue to improve operating results in future periods; however, there can be
no assurance that the Company will achieve or maintain profitability or that its
revenue growth can be sustained in the future. The Company's success in the
market for biopharmaceutical purification, analysis and synthesis products will
depend, in part, on attracting and maintaining key employees, continued
development of foreign sales operations, continued support from current
customers, development of new customers and successful enforcement of the
Company's patent rights. See "Legal Proceedings."
Need to Integrate Acquisitions. In recent years, the Company has made several
acquisitions that have increased the number of the Company's employees or the
scope of its business, or both. The Company may make additional acquisitions in
the future. The success of these acquisitions will depend on a number of
factors, including the ability of the Company's management to integrate the
administrative, manufacturing and sales operations of the acquired businesses
with those of the Company, to retain key personnel of the acquired businesses,
to reduce costs and to preserve and expand sales of the products of the
acquired businesses. There can be no assurance that the Company will be able to
operate successfully the acquired businesses or that the Company will not
experience losses as a result of these acquisitions. With respect to the
acquisition of PTC II, the success of the combined business will depend, in
part, on the continued availability of funding sources for the research and
development projects. The Company licensed the technology developed through PTC
II for drug discovery purposes to ChemGenics, which has been acquired by
Millennium. If other research and development programs formerly funded by PTC
II are continued by the Company, they will be required to be funded in total by
the Company and it will be required to rely upon its own resources or seek
alternative sources of capital and/or collaborative funding. There is no
assurance that sufficient sources of capital and other funding will be available
to the Company in the near term or long term to fund all the Company's current
research and development programs and those acquired from PTC II.
Uncertainties Associated with Expansion of Marketing and Manufacturing
Operations. The Company intends to continue expanding its sales and marketing
efforts in the United States and internationally. The Company's ability to
accomplish this objective is dependent on many factors including, among others,
attracting and retaining a significant number of additional sales and marketing
professionals, expanding foreign sales operations and developing distributor
relationships in certain
13
<PAGE>
markets. This continued expansion will involve significant additional expense
and the risks inherent in integrating new sales and marketing personnel into the
Company's existing organization. Increasing sales may also require the expansion
of the Company's manufacturing capabilities for the Biospectrometry product
line, which expansion would require significant capital expenditures and
management attention. There can be no assurance that the Company will be able to
accomplish its sales, marketing and manufacturing objectives.
Potential Costs Associated with Patent Litigation. Patent litigation is
widespread in the biotechnology industry and, in general, it is not possible to
predict how any such litigation would affect the Company's business. The
Company has sued two competitors for infringement of Company patents relating to
Perfusion Chromatography. The defendants in that suit are seeking to have these
patents declared invalid and they have asserted counterclaims against the
Company. The Company may incur substantial additional expenses relating to this
and other proceedings. There can be no assurance that the outcome of the
litigation will not have a material adverse effect on the Company. See "Legal
Proceedings."
Patent and License Uncertainties. Proprietary rights relating to the Company's
products will be protected from unauthorized use by third parties only to the
extent that they are covered by valid and enforceable patents or are maintained
in confidence as trade secrets. There can be no assurance that any pending
patent applications filed by the Company will result in patents being issued or
that any patents now or hereafter owned by the Company will afford protection
against competitors. In the absence of patent protection, the Company's
business may be adversely affected by competitors that independently develop
functionally equivalent technology. The Company has established a policy of
vigorously enforcing its patent rights. See "Legal Proceedings." If the Company
participates in interference or other proceedings under the jurisdiction of the
U.S. Patent and Trademark Office, such proceedings could result in substantial
costs to the Company. Competitors, including those with substantially greater
resources than the Company, may initiate litigation to challenge the validity of
the Company's patents. Others may use their resources to design comparable
products that do not infringe the Company's patents. There may also be pending
or issued patents of which the Company is not aware held by parties not
affiliated with the Company that relate to the Company's products or technology.
The Company may need to acquire licenses to, or contest the validity of, any
such patents. It is likely that significant funds would be required to contest
the validity of any such patents. There can be no assurance that any license
required under any such patent would be made available on acceptable terms or
that the Company would prevail in any such contest.
Pending Governmental Investigation. Since November 1994, the Securities and
Exchange Commission (the "Commission") has been conducting an investigation into
certain financial matters of the Company arising from the Company's restatement
of its financial statements for Fiscal 1993 and the first three quarters of
Fiscal 1994, and related matters. If, after completion of its investigation, the
Commission finds that violations of the federal securities laws have occurred,
the Commission has the authority to order persons to cease and desist from
committing or causing such violations and any future violations. The Commission
may also seek administrative, civil and criminal fines and penalties and
injunctive relief. The Department of Justice has the authority in respect of
criminal matters. The Company has been cooperating fully with this
investigation. There can be no assurance as to the timeliness of the completion
of this investigation or as to the final result thereof, and no assurance can be
given that the final result of the investigation will not have a material
adverse effect on the Company. See "Legal Proceedings."
Intense Competition and Risk of Technological Obsolescence. The Company
encounters, and expects to continue to encounter, intense competition in the
sale of its current and future products. There can be no assurance that
developments by others will not render the Company's products or technologies
obsolete or non-competitive. Many of the Company's competitors have
substantially greater resources, manufacturing and marketing capabilities,
research and development staff and production facilities than those of the
Company.
14
<PAGE>
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company has sued Pharmacia Biotech, Inc. and certain of its affiliates, and
their parent Pharmacia AB (collectively, "Pharmacia"), now part of Pharmacia &
Upjohn Co., Sepracor Inc. ("Sepracor") and BioSepra Inc. ("BioSepra"), a company
partially owned by Sepracor, for willful infringement of three PerSeptive
patents (U.S. Nos. 5,019,270, 5,228,989 and 5,384,042), covering the process of
Perfusion Chromatography/(R)/ and the manufacture, sale and use of
chromatography particles and matrices that enable Perfusion Chromatography
(collectively, the "Original Perfusion Patents"). The Company commenced its
action against Pharmacia and Sepracor on October 14, 1993, and the consolidated
action has been pending in the United States District Court for the District of
Massachusetts. BioSepra was added as a party on May 19, 1994. The lawsuit also
claims that Sepracor and BioSepra made false and misleading representations of
fact with respect to the Company's products, and that BioSepra engaged in false
and misleading advertising. The lawsuit, in an amended complaint filed by
Purdue University and the Company, also claims that Sepracor and BioSepra
infringe a fourth patent (the "Coatings Patent"), licensed exclusively by
PerSeptive, covering novel coatings for chromatography media. The lawsuit seeks
to enjoin the defendants from infringing the four patents and asks for treble
damages, as well as other relief and damages. Pharmacia, Sepracor and BioSepra
each have asserted that their products do not infringe the Original Perfusion
Patents and that the Original Perfusion Patents are invalid and unenforceable,
and have asserted counterclaims against the Company alleging that the Company's
assertions that they have infringed the patents, and that statements allegedly
made by the Company to customers concerning the litigation, constitute unfair
competition, commercial disparagement, unfair trade practices, tortious
interference with customer relationships and violation of the Lanham Act, and
seeking an unspecified amount of damages, and, under certain asserted claims,
double or treble damages, as well as attorneys' fees and expenses. The Company
has denied any liability on these counterclaims.
On January 9, 1996, the Court entered an order denying the Company's motion for
partial summary judgment relating to the inventorship of the Original Perfusion
Patents, granting the Defendants' motions for partial summary judgment that
inventorship of the Original Perfusion Patents is improper for failure to name
two or more persons as additional joint inventors, and requiring the Company to
move to correct inventorship or have the patents declared invalid. On March 12,
1996, the Court entered a ruling directing the Company to correct inventorship
and placed on the Company the burden of proving the absence of deceptive intent
in the designation of inventors at a hearing. The Company moved to correct
inventorship. The Company has preserved its right to appeal on a number of
issues, including the Court's January 9, 1996 order that the Original Perfusion
Patents failed to name additional persons as joint inventors and the Court's
March 12, 1996 order imposing the burden of proof on PerSeptive. The hearing was
held in May and June 1996. On April 3, 1997, the Court issued a ruling denying
the Company's motion to correct inventorship, ruling that the Company had not
met its burden of proving that two British scientists, who worked for a company
that is not a party to the litigation, were not named on the Original Perfusion
Patents without deceptive intent within the meaning of Section 256 of Title 35
United States Code, and granted judgment in favor of Sepracor, BioSepra and
Pharmacia on the Company's claims relating to the Original Perfusion Patents. On
April 16, 1997, the Company filed a motion to permit an immediate appeal of the
April 3, 1997 decision, and the related January 9, 1996 and March 12, 1996
decisions, to the United States Court of Appeals for the Federal Circuit, which
has exclusive jurisdiction in the United States to hear appeals in patent cases.
On April 30, 1997, the defendants filed a motion requesting that the District
Court render a decision on the defendants' defense of inequitable conduct prior
to permitting the Company's appeal. The Court has not rendered a decision on the
Company's or the defendants' motions. The Court has not yet considered the issue
of infringement of the Original Perfusion Patents or the Coatings Patent. The
Company intends to continue to vigorously pursue this litigation.
In September 1996 and February 1997, two new United States patents relating to
Perfusion Chromatography systems were issued to the Company. Neither of these
patents, which cover instruments and systems that perform the high-speed, high
resolution chromatography which is the subject of the Original Perfusion
Patents, are the subject of the current litigation. Prior to the issuance of
these patents, the Company had submitted to the patent examiner the District
Court's January 9, 1996 order, and non-confidential portions of related briefs
filed by the parties, and the patents were issued naming only PerSeptive's
scientific founders as the inventors nonetheless.
Since November 1994, the Company has been responding to informal requests for
information from the Commission relating to certain of the Company's financial
matters. In May 1995, the Company was advised by the Commission that it
15
<PAGE>
had obtained a formal order of investigation so that, among other matters, it
may utilize subpoena powers to obtain information relevant to its inquiry. The
Commission has utilized and may in the future utilize its subpoena powers to
obtain information from various officers, directors and employees of the Company
and from persons not presently associated with the Company. If, after completion
of its investigation, the Commission finds that violations of the federal
securities laws have occurred, the Commission has the authority to order persons
to cease and desist from committing or causing such violations and any future
violations. The Commission may also seek administrative, civil and criminal
fines and penalties and injunctive relief. The Department of Justice has the
authority in respect of criminal matters. There can be no assurance as to the
timeliness of the completion of the investigation or as to the final result
thereof, and no assurance can be given that the final result of the
investigation will not have a material adverse effect on the Company. The
Company is cooperating fully with the investigation, and has responded and will
continue to respond to requests for information in connection with the
investigation.
16
<PAGE>
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS
(a) The Company held an Annual Meeting of Stockholders (the "Meeting") on March
5, 1997.
(b) Not Applicable
(c) The following matters were voted on at the Meeting:
1. To elect two members to the Board of Directors to serve for three-year
terms as Class II Directors.
2. To consider and act upon amendments to the Corporation's 1992 Stock
Plan (the "Plan") (a) increasing the number of shares of Common Stock
available for issuance under the Plan from 3,585,500 to 4,585,500 and
(b) increasing the maximum number of shares of Common Stock of the
Corporation that may be purchased by any participant under the Plan
from 600,000 to 1,400,000 shares.
3. To ratify the selection of Coopers & Lybrand L.L.P. as the
Corporation's auditors for the fiscal year ending September 30, 1997.
Daniel I. C. Wang was elected to the Board of Directors to serve a three-year
term as a Class II Director with 17,378,332 shares voted for and the votes of
475,508 shares withheld. There were no abstentions or broker non-votes.
John F. Smith was elected to the Board of Directors to serve a three-year term
as a Class II Director with 17,378,590 shares voted for and the votes of 475,250
shares withheld. There were no abstentions or broker non-votes.
The amendment to the Plan increasing the total number of shares of the Company's
Common Stock reserved for issuance under the Plan from 3,585,500 to 4,585,500
was approved with 13,997,128 shares voted for, 3,677,680 shares voted against,
143,107 shares abstaining and 35,925 broker non-votes.
The selection of Coopers & Lybrand L.L.P. as the Company's auditors for the
fiscal year ending September 30, 1997 was approved with 17,781,847 shares voting
for, 41,511 shares voted against, 29,909 shares abstaining and 573 broker non-
votes.
(d) Not Applicable
17
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
4.1 1992 Stock Plan of the Company, as amended on January 20, 1997
4.2 1997 Non-Qualified Stock Option Plan of the Company
27. Financial Data Schedule
(b) Reports on Form 8-K - None
[The remainder of this page is intentionally left blank.]
18
<PAGE>
SIGNATURES
- ----------
Pursuant to requirements of the Securities Exchange Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the undersigned
thereunto duly authorized.
PERSEPTIVE BIOSYSTEMS, INC.
Date: May 13, 1997 By: /s/ Noubar B. Afeyan
------------ ---------------------
Noubar B. Afeyan, Chairman
and Chief Executive Officer
(Principal Executive Officer)
By: /s/ John F. Smith
---------------------
John F. Smith, President
and Director
By: /s/ Thomas G. Ruane
---------------------
Thomas G. Ruane, Senior Vice
President and Chief
Financial Officer
(Principal Financial and
Accounting Officer)
19
<PAGE>
EXHIBIT 4.1
(As Amended, January 20, 1997)
PERSEPTIVE BIOSYSTEMS, INC.
1992 STOCK PLAN
---------------
1. Purpose. This 1992 Stock Plan (the "Plan") is intended to provide
-------
incentives: (a) to the officers and other employees of PerSeptive Biosystems,
Inc. (the "Company"), its parent (if any) and any present or future subsidiaries
of the Company (collectively, "Related Corporations") by providing them with
opportunities to purchase stock in the Company pursuant to options granted
hereunder which qualify as "incentive stock options" under Section 422(b) of the
Internal Revenue Code of 1986, as amended (the "Code") ("ISO" or "ISOs"); (b) to
directors, officers, employees and consultants of the Company and Related
Corporations by providing them with opportunities to purchase stock in the
Company pursuant to options granted hereunder which do not qualify as ISOs
("Non-Qualified Option" or "Non-Qualified Options"); (c) to directors, officers,
employees and consultants of the Company and Related Corporations by providing
them with awards of stock in the Company ("Awards"); and (d) to directors,
officers, employees and consultants of the Company and Related Corporations by
providing them with opportunities to make direct purchases of stock in the
Company ("Purchases"). Both ISOs and Non-Qualified Options are referred to
hereafter individually as an "Option" and collectively as "Options". Options,
Awards and authorizations to make Purchases are referred to hereafter
collectively as "Stock Rights". As used herein, the terms "parent" and
"subsidiary" mean "parent corporation" and "subsidiary corporation",
respectively, as those terms are defined in Section 424 of the Code.
2. Administration of the Plan.
---------------------------
A. Board or Committee Administration. The Plan shall be
---------------------------------
administered by the Board of Directors of the Company (the "Board") or by a
committee appointed by the Board (the "Committee"); provided, that, to the
extent required by Rule 16b-3, or any successor provision ("Rule 16b-3"), of the
Securities Exchange Act of 1934, with respect to specific grants of Stock
Rights, the Plan shall be administered by a disinterested administrator or
administrators within the meaning of Rule 16b-3. Hereinafter, all references in
this Plan to the "Committee" shall mean the Board if no Committee has been
appointed. Subject to ratification of the grant or authorization of each Stock
Right by the Board (if so required by applicable state law), and subject to the
terms of the Plan, the Committee shall have the authority to (i) determine the
employees of the Company and Related Corporations (from among the class of
employees eligible under paragraph 3 to receive ISOs) to whom ISOs may be
granted, and to determine (from among the class of individuals and entities
eligible under paragraph 3 to receive Non-Qualified Options and Awards and to
make Purchases) to whom Non-Qualified Options, Awards and authorizations to make
Purchases may be granted; (ii) determine the time or times at which Options or
Awards may be granted or Purchases made; (iii) determine the option price of
shares subject to each Option, which price shall not be less than the minimum
price specified in
<PAGE>
-2-
paragraph 6, and the purchase price of shares subject to each Purchase; (iv)
determine whether each Option granted shall be an ISO or a Non-Qualified Option;
(v) determine (subject to paragraph 7) the time or times when each Option shall
become exercisable and the duration of the exercise period; (vi) determine
whether restrictions such as repurchase options are to be imposed on shares
subject to Options, Awards and Purchases and the nature of such restrictions, if
any, and (vii) interpret the Plan and prescribe and rescind rules and
regulations relating to it. If the Committee determines to issue a Non-Qualified
Option, it shall take whatever actions it deems necessary, under Section 422 of
the Code and the regulations promulgated thereunder, to ensure that such Option
is not treated as an ISO. The interpretation and construction by the Committee
of any provisions of the Plan or of any Stock Right granted under it shall be
final unless otherwise determined by the Board. The Committee may from time to
time adopt such rules and regulations for carrying out the Plan as it may deem
best. No member of the Board or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Stock Right
granted under it.
B. Committee Actions. The Committee may select one of its members
-----------------
as its chairman, and shall hold meetings at such times and places as it may
determine. Acts by a majority of the Committee, or acts reduced to or approved
in writing by a majority of the members of the Committee (if consistent with
applicable state law), shall be the valid acts of the Committee. From time to
time the Board may increase the size of the Committee and appoint additional
members thereof, remove members (with or without cause) and appoint new members
in substitution therefor, fill vacancies however caused, or remove all members
of the Committee and thereafter directly administer the Plan.
C. Grant of Stock Rights to Board Members. Stock Rights may be
--------------------------------------
granted to members of the Board consistent with the provisions of the first
sentence of paragraph 2(A) above, if applicable. All grants of Stock Rights to
members of the Board shall in all other respects be made in accordance with the
provisions of this Plan applicable to other eligible persons. Consistent with
the provisions of the first sentence of paragraph 2(A) above, members of the
Board who are either (i) eligible for Stock Rights pursuant to the Plan or (ii)
have been granted Stock Rights may vote on any matters affecting the
administration of the Plan or the grant of any Stock Rights pursuant to the
Plan, except that no such member shall act upon the granting to himself of Stock
Rights, but any such member may be counted in determining the existence of a
quorum at any meeting of the Board during which action is taken with respect to
the granting to him of Stock Rights.
3. Eligible Employees and Others. The maximum number of shares of Common
-----------------------------
Stock that may be issued to any officer, director, employee or consultant
pursuant to the Plan is 1,400,000 shares. ISOs may be granted to any employee
of the Company or any Related Corporation. Those officers and directors of the
Company who are not employees may not be granted ISOs under the Plan. Non-
Qualified Options, Awards and authorizations to make Purchases may be granted to
any employee, officer or director (whether or not also an employee) or
consultant of the Company or any Related Corporation. The Committee may take
into consideration a recipient's individual circumstances in determining whether
to grant an ISO, a Non-Qualified Option, an Award or an authorization to make a
Purchase. Granting of any Stock
<PAGE>
-3-
Right to any individual or entity shall neither entitle that individual or
entity to, nor disqualify him from, participation in any other grant of Stock
Rights.
4. Stock. The stock subject to Options, Awards and Purchases shall be
-----
authorized but unissued shares of Common Stock of the Company, par value $.01
per share (the "Common Stock"), or shares of Common Stock reacquired by the
Company in any manner. The aggregate number of shares which may be issued
pursuant to the Plan is 4,585,500 subject to adjustment as provided in paragraph
13; provided, however, that such number of shares shall not be subject to
-----------------
adjustment by reason of the four for one stock split in the form of a stock
dividend declared by the Board of Directors of the Company at a meeting on March
27, 1992. Any such shares may be issued as ISOs, Non-Qualified Options or
Awards, or to persons or entities making Purchases, so long as the number of
shares so issued does not exceed such number, as adjusted. If any Stock Right
granted under the Plan shall expire or terminate for any reason without having
been exercised in full or shall cease for any reason to be exercisable in whole
or in part, the unissued shares subject to such Stock Options shall again be
available for grants of Stock Rights under the Plan. For the purposes of the
foregoing sentence, shares withheld from the Stock Right exercise to pay the
exercise price and/or tax consequences of the exercise shall be deemed to have
been issued.
5. Granting of Stock Rights. Stock Rights may be granted under the Plan
------------------------
at any time on or after March 27, 1992 and prior to March 27, 2002. The date of
grant of a Stock Right under the Plan will be the date specified by the
Committee at the time it grants the Stock Right; provided, however, that such
date shall not be prior to the date on which the Committee acts to approve the
grant. The Committee shall have the right, with the consent of the optionee, to
convert an ISO granted under the Plan to a Non-Qualified Option pursuant to
paragraph 16.
6. Minimum Option Price; ISO Limitations.
-------------------------------------
A. Price for Non-Qualified Options. The exercise price per share
-------------------------------
specified in the agreement relating to each Non-Qualified Option granted
under the Plan shall in no event be less than the minimum legal consideration
required therefor under the laws of Delaware or the laws of any jurisdiction
in which the Company or its successors in interest may be organized.
B. Price for ISOs. The exercise price per share specified in the
--------------
agreement relating to each ISO granted under the Plan shall not be less than
the fair market value per share of Common Stock on the date of such grant.
In the case of an ISO to be granted to an employee owning stock possessing
more than ten percent (10%) of the total combined voting power of all classes
of stock of the Company or any Related Corporation, the price per share
specified in the agreement relating to such ISO shall not be less than one
hundred ten percent (110%) of the fair market value per share of Common Stock
on the date of grant.
C. $100,000 Annual Limitation on ISOs. Each eligible employee may be
----------------------------------
granted ISOs only to the extent that, in the aggregate under this Plan and
all incentive stock option plans of the Company and any Related Corporation,
such ISOs do not become exercisable
<PAGE>
-4-
for the first time by such employee during any calendar year in a manner
which would entitle the employee to purchase more than $100,000 in fair
market value (determined at the time the ISOs were granted) of Common Stock
in that year. Any options granted to an employee in excess of such amount
will be granted as Non-Qualified Options.
D. Determination of Fair Market Value. If, at the time an Option is
----------------------------------
granted under the Plan, the Company's Common Stock is publicly traded, "fair
market value" shall be determined as of the last business day for which the
prices or quotes discussed in this sentence are available prior to the date
such Option is granted and shall mean (i) the average (on that date) of the
high and low prices of the Common Stock on the principal national securities
exchange on which the Common Stock is traded, if the Common Stock is then
traded on a national securities exchange; or (ii) the last reported sale
price (on that date) of the Common Stock on the NASDAQ National Market List,
if the Common Stock is not then traded on a national securities exchange; or
(iii) the closing bid price (or average of bid prices) last quoted (on that
date) by an established quotation service for over-the-counter securities, if
the Common Stock is not reported on the NASDAQ National Market List.
However, if the Common Stock is not publicly traded at the time an Option is
granted under the Plan, "fair market value" shall be deemed to be the fair
value of the Common Stock as determined by the Committee after taking into
consideration all factors which it deems appropriate, including, without
limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length.
7. Option Duration. Subject to earlier termination as provided in
---------------
paragraphs 9 and 10, each Option shall expire on the date specified by the
Committee, but not more than (i) ten years and one day from the date of grant in
the case of Non-Qualified Options, (ii) ten years from the date of grant in the
case of ISOs generally, and (iii) five years from the date of grant in the case
of ISOs granted to an employee owning stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or any Related Corporation. Subject to earlier termination as provided in
paragraphs 9 and 10, the term of each ISO shall be the term set forth in the
original instrument granting such ISO, except with respect to any part of such
ISO that is converted into a Non-Qualified Option pursuant to paragraph 16.
8. Exercise of Option. Subject to the provisions of paragraphs 9 through
------------------
12, each Option granted under the Plan shall be exercisable as follows:
A. Vesting. The Option shall either be fully exercisable on the date
-------
of grant or shall become exercisable thereafter in such installments as the
Committee may specify.
B. Full Vesting of Installments. Once an installment becomes
----------------------------
exercisable it shall remain exercisable until expiration or termination of
the Option, unless otherwise specified by the Committee.
C. Partial Exercise. Each Option or installment may be exercised at
----------------
any time or from time to time, in whole or in part, for up to the total
number of shares with respect to which it is then exercisable.
<PAGE>
-5-
D. Acceleration of Vesting. The Committee shall have the right to
-----------------------
accelerate the date of exercise of any installment of any Option; provided
that the Committee shall not, without the consent of an optionee, accelerate
the exercise date of any installment of any Option granted to any employee as
an ISO (and not previously converted into a Non-Qualified Option pursuant to
paragraph 16) if such acceleration would violate the annual vesting
limitation contained in Section 422(d) of the Code, as described in paragraph
6(C).
9. Termination of Employment. If an ISO optionee ceases to be employed by
-------------------------
the Company and all Related Corporations other than by reason of death or
disability as defined in paragraph 10, no further installments of his ISOs shall
become exercisable, and his ISOs shall terminate after the passage of ninety
(90) days from the date of termination of his employment, but in no event later
than on their specified expiration dates, except to the extent that such ISOs
(or unexercised installments thereof) have been converted into Non-Qualified
Options pursuant to paragraph 16. Employment shall be considered as continuing
uninterrupted during any bona fide leave of absence (such as those attributable
to illness, military obligations or governmental service) provided that the
period of such leave does not exceed 90 days or, if longer, any period during
which such optionee's right to reemployment is guaranteed by statute. A bona
fide leave of absence with the written approval of the Committee shall not be
considered an interruption of employment under the Plan, provided that such
written approval contractually obligates the Company or any Related Corporation
to continue the employment of the optionee after the approved period of absence.
ISOs granted under the Plan shall not be affected by any change of employment
within or among the Company and Related Corporations, so long as the optionee
continues to be an employee of the Company or any Related Corporation. Nothing
in the Plan shall be deemed to give any grantee of any Stock Right the right to
be retained in employment or other service by the Company or any Related
Corporation for any period of time.
10. Death; Disability.
-----------------
A. Death. If an ISO optionee ceases to be employed by the Company and
-----
all Related Corporations by reason of his death, any ISO of his may be
exercised, to the extent of the number of shares with respect to which he
could have exercised it on the date of his death, by his estate, personal
representative or beneficiary who has acquired the ISO by will or by the laws
of descent and distribution, at any time prior to the earlier of the
specified expiration date of the ISO or 180 days from the date of the
optionee's death.
B. Disability. If an ISO optionee ceases to be employed by the
----------
Company and all Related Corporations by reason of his disability, he shall
have the right to exercise any ISO held by him on the date of termination of
employment, to the extent of the number of shares with respect to which he
could have exercised it on that date, at any time prior to the earlier of the
specified expiration date of the ISO or 180 days from the date of the
termination of the optionee's employment. For the purposes of the Plan, the
term "disability" shall mean "permanent and total disability" as defined in
Section 22(e)(3) of the Code or successor statute.
<PAGE>
-6-
11. Assignability. No Option shall be assignable or transferable by the
-------------
optionee except by will or by the laws of descent and distribution. During the
lifetime of the optionee each Option shall be exercisable only by him.
12. Terms and Conditions of Options. Options shall be evidenced by
-------------------------------
instruments (which need not be identical) in such forms as the Committee may
from time to time approve. Such instruments shall conform to the terms and
conditions set forth in paragraphs 6 through 11 hereof and may contain such
other provisions as the Committee deems advisable which are not inconsistent
with the Plan, including restrictions applicable to shares of Common Stock
issuable upon exercise of Options. In granting any Non-Qualified Option, the
Committee may specify that such Non-Qualified Option shall be subject to the
restrictions set forth herein with respect to ISOs, or to such other termination
and cancellation provisions as the Committee may determine. The Committee may
from time to time confer authority and responsibility on one or more of its own
members and/or one or more officers of the Company to execute and deliver such
instruments. The proper officers of the Company are authorized and directed to
take any and all action necessary or advisable from time to time to carry out
the terms of such instruments.
13. Adjustments. Upon the occurrence of any of the following events, an
-----------
optionee's rights with respect to Options granted to him hereunder shall be
adjusted as hereinafter provided, unless otherwise specifically provided in the
written agreement between the optionee and the Company relating to such Option:
A. Stock Dividends and Stock Splits. If the shares of Common Stock
--------------------------------
shall be subdivided or combined into a greater or smaller number of shares or
if the Company shall issue any shares of Common Stock as a stock dividend on
its outstanding Common Stock, the number of shares of Common Stock
deliverable upon the exercise of Options shall be appropriately increased or
decreased proportionately, and appropriate adjustments shall be made in the
purchase price per share to reflect such subdivision, combination or stock
dividend.
B. Consolidations or Mergers. If the Company is to be consolidated
-------------------------
with or acquired by another entity in a merger, sale of all or substantially
all of the Company's assets or otherwise (an "Acquisition"), the Committee or
the board of directors of any entity assuming the obligations of the Company
hereunder (the "Successor Board"), shall, as to outstanding Options, either
(i) make appropriate provision for the continuation of such Options by
substituting on an equitable basis for the shares then subject to such
Options the consideration payable with respect to the outstanding shares of
Common Stock in connection with the Acquisition; or (ii) upon written notice
to the optionees, provide that all Options must be exercised, to the extent
then exercisable, within a specified number of days of the date of such
notice, at the end of which period the Options shall terminate; or (iii)
terminate all Options in exchange for a cash payment equal to the excess of
the fair market value of the shares subject to such Options (to the extent
then exercisable) over the exercise price thereof.
<PAGE>
-7-
C. Recapitalization or Reorganization. In the event of a
----------------------------------
recapitalization or reorganization of the Company (other than a transaction
described in subparagraph B above) pursuant to which securities of the
Company or of another corporation are issued with respect to the outstanding
shares of Common Stock, an optionee upon exercising an Option shall be
entitled to receive for the purchase price paid upon such exercise the
securities he would have received if he had exercised his Option prior to
such recapitalization or reorganization.
D. Modification of ISOs. Notwithstanding the foregoing, any
--------------------
adjustments made pursuant to subparagraphs A, B or C with respect to ISOs
shall be made only after the Committee, after consulting with counsel for the
Company, determines whether such adjustments would constitute a
"modification" of such ISOs (as that term is defined in Section 424 of the
Code) or would cause any adverse tax consequences for the holders of such
ISOs. If the Committee determines that such adjustments made with respect to
ISOs would constitute a modification of such ISOs, it may refrain from making
such adjustments.
E. Dissolution or Liquidation. In the event of the proposed
--------------------------
dissolution or liquidation of the Company, each Option will terminate
immediately prior to the consummation of such proposed action or at such
other time and subject to such other conditions as shall be determined by the
Committee.
F. Issuances of Securities. Except as expressly provided herein, no
-----------------------
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares subject to Options. No adjustments shall be made for
dividends paid in cash or in property other than securities of the Company.
G. Fractional Shares. No fractional shares shall be issued under the
-----------------
Plan and the optionee shall receive from the Company cash in lieu of such
fractional shares.
H. Adjustments. Upon the happening of any of the events described in
-----------
subparagraphs A, B or C above, the class and aggregate number of shares set
forth in paragraph 4 hereof that are subject to Stock Rights which previously
have been or subsequently may be granted under the Plan shall also be
appropriately adjusted to reflect the events described in such subparagraphs.
The Committee or the Successor Board shall determine the specific adjustments
to be made under this paragraph 13 and, subject to paragraph 2, its
determination shall be conclusive.
If any person or entity owning restricted Common Stock obtained by exercise
of a Stock Right made hereunder receives shares or securities or cash in
connection with a corporate transaction described in subparagraphs A, B or C
above as a result of owning such restricted Common Stock, such shares or
securities or cash shall be subject to all of the conditions and restrictions
applicable to the restricted Common Stock with respect to which such shares or
securities or cash were issued, unless otherwise determined by the Committee or
the Successor Board.
<PAGE>
-8-
14. Means of Exercising Stock Rights. A Stock Right (or any part or
--------------------------------
installment thereof) shall be exercised by giving written notice to the Company
at its principal office address. Such notice shall identify the Stock Right
being exercised and specify the number of shares as to which such Stock Right is
being exercised, accompanied by full payment of the purchase price therefor (a)
in United States dollars in cash or by check, (b) at the discretion of the
Committee, through delivery or withholding from the Stock Right exercise of
shares of Common Stock having a fair market value equal as of the date of the
exercise to the cash exercise price of the Stock Right, (c) at the discretion of
the Committee, by delivery of the grantee's personal recourse note bearing
interest payable not less than annually at no less than 100% of the lowest
applicable Federal rate, as defined in Section 1274(d) of the Code, (d) at the
discretion of the Committee and consistent with applicable law, through the
delivery of an assignment to the Company of a sufficient amount of the proceeds
from the sale of the Common Stock acquired upon exercise of the Stock Right and
an authorization to the broker or selling agent to pay that amount to the
Company, which sale shall be at the participant's direction at the time of
exercise, or (e) at the discretion of the Committee, by any combination of (a),
(b), (c) and (d) above. If the Committee exercises its discretion to permit
payment of the exercise price of an ISO by means of the methods set forth in
clauses (b), (c), (d) or (e) of the preceding sentence, such discretion shall be
exercised in writing at the time of the grant of the ISO in question.
Notwithstanding the foregoing, no employee may pay any part of the exercise
price hereof by delivering shares of Common Stock to the Company unless such
Common Stock has been owned by such employee free of any substantial risk of
forfeiture for at least six months. The holder of a Stock Right shall not have
the rights of a shareholder with respect to the shares covered by his Stock
Right until the date of issuance of a stock certificate to him for such shares.
Except as expressly provided above in paragraph 13 with respect to changes in
capitalization and stock dividends, no adjustment shall be made for dividends or
similar rights for which the record date is before the date such stock
certificate is issued.
15. Term and Amendment of Plan. This Plan was adopted by the Board of
--------------------------
Directors and Stockholders of the Company on March 31, 1992. The Plan shall
expire at the end of the day on March 27, 2002 (except as to Options outstanding
on that date). The Board may terminate or amend the Plan in any respect at any
time, except that, without the approval of the stockholders obtained within 12
months before or after the Board adopts a resolution authorizing any of the
following actions: (a) the total number of shares that may be issued under the
Plan may not be increased materially (except by adjustment pursuant to paragraph
13); (b) the benefits accruing to participants under the Plan may not be
materially increased; (c) the requirements as to eligibility for participation
in the Plan may not be materially modified; (d) the provisions of paragraph 3
regarding eligibility for grants of ISOs may not be modified; (e) the provisions
of paragraph 6(B) regarding the exercise price at which shares may be offered
pursuant to ISOs may not be modified (except by adjustment pursuant to paragraph
13); (f) the expiration date of the Plan may not be extended; and (g) the Board
may not take any action which would cause the Plan to fail to comply with Rule
16b-3. Except as otherwise provided in this paragraph 15, in no event may
action of the Board or stockholders alter or impair the rights of a grantee,
without his consent, under any Stock Right previously granted to him.
<PAGE>
-9-
16. Conversion of ISOs into Non-Qualified Options; Termination of ISOs.
------------------------------------------------------------------
The Committee, at the written request of any optionee, may in its discretion
take such actions as may be necessary to convert such optionee's ISOs (or any
installments or portions of installments thereof) that have not been exercised
on the date of conversion into Non-Qualified Options at any time prior to the
expiration of such ISOs, regardless of whether the optionee is an employee of
the Company or a Related Corporation at the time of such conversion. Such
actions may include, but not be limited to, extending the exercise period or
reducing the exercise price of the appropriate installments of such ISOs. At
the time of such conversion, the Committee (with the consent of the optionee)
may impose such conditions on the exercise of the resulting Non-Qualified
Options as the Committee in its discretion may determine, provided that such
conditions shall not be inconsistent with this Plan. Nothing in the Plan shall
be deemed to give any optionee the right to have such optionee's ISOs converted
into Non-Qualified Options, and no such conversion shall occur until and unless
the Committee takes appropriate action. The Committee, with the consent of the
optionee, may also terminate any portion of any ISO that has not been exercised
at the time of such termination.
17. Application Of Funds. The proceeds received by the Company from the
--------------------
sale of shares pursuant to Options granted and Purchases authorized under the
Plan shall be used for general corporate purposes.
18. Governmental Regulation. The Company's obligation to sell and deliver
-----------------------
shares of the Common Stock under this Plan is subject to the approval of any
governmental authority required in connection with the authorization, issuance
or sale of such shares.
19. Withholding of Additional Income Taxes. Upon the exercise of a Non-
--------------------------------------
Qualified Option, the grant of an Award, the making of a Purchase of Common
Stock for less than its fair market value, the making of a Disqualifying
Disposition (as defined in paragraph 20) or the vesting of restricted Common
Stock acquired on the exercise of a Stock Right hereunder, the Company, in
accordance with Section 3402(a) of the Code, may require the optionee, Award
recipient or purchaser to pay additional withholding taxes in respect of the
amount that is considered compensation includible in such person's gross income.
The Committee in its discretion may condition (i) the exercise of an Option,
(ii) the grant of an Award, (iii) the making of a Purchase of Common Stock for
less than its fair market value, or (iv) the vesting of restricted Common Stock
acquired by exercising a Stock Right, on the grantee's payment of such
additional withholding taxes. Payment of such additional withholding taxes
shall be in United States dollars in cash or by check and/or at the discretion
of the Committee, through the delivery of previously held shares of common stock
or withholding from the Stock Right exercise of shares of Common Stock having a
fair market value equal as of the date of exercise to the amount of such
withholding taxes.
20. Notice to Company of Disqualifying Disposition. Each employee who
----------------------------------------------
receives an ISO must agree to notify the Company in writing immediately after
the employee makes a Disqualifying Disposition of any Common Stock acquired
pursuant to the exercise of an ISO. A Disqualifying Disposition is any
disposition (including any sale) of such Common Stock before the later of (a)
two years after the date the employee was granted the ISO, or (b) one year after
<PAGE>
-10-
the date the employee acquired Common Stock by exercising the ISO. If the
employee has died before such stock is sold, these holding period requirements
do not apply and no Disqualifying Disposition can occur thereafter.
21. Governing Law; Construction. The validity and construction of the
---------------------------
Plan and the instruments evidencing Stock Rights shall be governed by the laws
of the State of Delaware, or the laws of any jurisdiction in which the Company
or its successors in interest may be organized. In construing this Plan, the
singular shall include the plural and the masculine gender shall include the
feminine and neuter, unless the context otherwise requires.
<PAGE>
EXHIBIT 4.2
PERSEPTIVE BIOSYSTEMS, INC.
1997 NON-QUALIFIED STOCK OPTION PLAN
------------------------------------
1. PURPOSE. This 1997 Non-Qualified Stock Option Plan (the "Plan") is
-------
intended to provide incentives to employees, consultants and certain new
officers of PerSeptive Biosystems, Inc. (the "Company"), and of any present or
future parent or subsidiaries of the Company (collectively, "Related
Corporations") by providing them with opportunities to purchase stock in the
Company pursuant to options ("Non-Qualified Options" or "Options") granted
hereunder which do not qualify as "incentive stock options" ("ISOs") under
Section 422(b) of the Internal Revenue Code of 1986, as amended (the "Code").
The Plan is not intended to provide Option grants to any person who is an
officer or director of the Company or Related Corporations, unless such grant is
an inducement essential to such person's entering into one or more employment
agreements with the Company as a new employee. As used herein, the terms
"parent" and "subsidiary" mean "parent corporation" and "subsidiary
corporation," respectively, as those terms are defined in Section 424 of the
Code.
2. ADMINISTRATION OF THE PLAN.
---------------------------
A. BOARD OR COMMITTEE ADMINISTRATION. The Plan shall be administered
---------------------------------
by the Board of Directors of the Company (the "Board"), or by a committee
appointed by the Board (the "Committee"). Hereinafter, all references in
this Plan to the "Committee" shall mean the Board if no Committee has been
appointed. Subject to ratification of the grant or authorization of each
Option by the Board (if so required by applicable state law), and subject to
the terms of the Plan, the Committee shall have the authority to (i)
determine to whom, from among the class of individuals and entities eligible
under paragraph 3 to receive Options, Options may be granted; (ii) determine
the time or times at which Options shall be granted; (iii) determine the
option price of shares subject to each Option, which price shall not be less
than the minimum price specified in paragraph 6; (iv) determine (subject to
paragraph 7) the time or times when each Option shall become exercisable and
the duration of the exercise period; (v) determine whether restrictions such
as repurchase options are to be imposed on shares subject to Options and the
nature of such restrictions, if any, and (vi) interpret the Plan and
prescribe and rescind rules and regulations relating to it. The Committee
shall take whatever actions it deems necessary, under Section 422 of the Code
and the regulations promulgated thereunder, to ensure that no Option issued
hereunder is treated as an ISO. The interpretation and construction by the
Committee of any provisions of the Plan or of any Option granted under it
shall be final unless otherwise determined by the Board. The Committee may
from time to time adopt such rules and regulations for carrying out the Plan
as it may deem advisable. No member of the Board or the Committee shall be
liable for any action or determination made in good faith with respect to the
Plan or any Option granted under it.
<PAGE>
B. COMMITTEE ACTIONS. The Committee may select one of its members as
-----------------
its chairman, and shall hold meetings at such time and places as it may
determine. A majority of the Committee shall constitute a quorum and acts by
a majority of the members of the Committee, or acts reduced to or approved in
writing by a majority of the members of the Committee (if consistent with
applicable state law), shall constitute the valid acts of the Committee.
From time to time the Board may increase the size of the Committee and
appoint additional members thereof, remove members (with or without cause)
and appoint new members in substitution therefor, fill vacancies however
caused, or remove all members of the Committee and thereafter directly
administer the Plan.
3. ELIGIBLE EMPLOYEES AND OTHERS. Non-Qualified Options may be granted to:
-----------------------------
(a) any employee or consultant of the Company or any Related Corporation who has
not been an officer of the Company prior to the date of such grant; or (b) any
new officer of the Company, if such grant is an inducement essential to the
individuals entering into one or more employment agreements with the Company as
a new employee. No Options may be granted to any other person under the Plan.
The Committee may take into consideration a recipient's individual circumstances
in determining whether to grant an Option. The granting of any Option to any
individual or entity shall neither entitle such grantee to, nor disqualify such
grantee from, participation in any other grant of Options.
4. STOCK. The stock subject to Options shall be authorized but unissued
-----
shares of Common Stock of the Company, par value $ .01 per share (the "Common
Stock"), or shares of Common Stock reacquired by the Company in any manner. The
aggregate number of shares which may be issued pursuant to the Plan is
200,000, subject to adjustment as provided in paragraph 13. If any Option
granted under the Plan shall expire or terminate for any reason without having
been exercised in full or shall cease for any reason to be exercisable in whole
or in part or shall be repurchased by the Company, the unissued shares of Common
Stock subject to such Option shall again be available for grants of Options
under the Plan. For purposes of the foregoing sentence, shares withheld from the
Option exercise to pay the exercise price and/or tax consequences of the
exercise shall be deemed to have been issued.
5. GRANTING OF OPTIONS. Options may be granted under the Plan at any time
-------------------
on or after March 5, 1997 and prior to March 5, 2007. The date of grant of an
Option under the Plan will be the date specified by the Committee at the time it
grants the Option; provided, however, that such date shall not be prior to the
date on which the Committee acts to approve the grant.
6. MINIMUM OPTION PRICE. The exercise price per share specified in the
--------------------
agreement relating to each Option granted under the Plan (the "Agreement"), may
be less than the fair market value of the Common Stock of the Company on the
date of grant, but shall in no event be less than the minimum legal
consideration required therefor under the laws of Delaware or the laws of any
jurisdiction in which the Company or its successors in interest may be
organized.
7. OPTION DURATION. Subject to earlier termination as provided in
---------------
paragraphs 9 and 10 or as specified in the Agreement relating to such Option,
each Option shall expire on the date specified by the Committee, but not more
than ten years and one day from the date of grant.
2
<PAGE>
8. EXERCISE OF OPTION. Subject to the provisions of paragraphs 9 through
------------------
12, each Option granted under the Plan shall be exercisable as follows:
A. VESTING. The Option shall either be fully exercisable on the date
-------
of grant or shall become exercisable thereafter in such installments as the
Committee may specify.
B. FULL VESTING OF INSTALLMENTS. Once an installment becomes
----------------------------
exercisable it shall remain exercisable until expiration or termination of
the Option, unless otherwise specified by the Committee.
C. PARTIAL EXERCISE. Each Option or installment may be exercised at
----------------
any time or from time to time, in whole or in part, for up to the total
number of shares with respect to which it is then exercisable.
D. ACCELERATION OF VESTING. The Committee shall have the right to
-----------------------
accelerate the date that any installment of any Option becomes exercisable.
9. TERMINATION OF BUSINESS RELATIONSHIP. Each Option may provide that it
------------------------------------
shall terminate before its stated expiration date, upon terms specified by the
Committee, if the optionee ceases to be an employee or consultant of the
Company, of any Related Corporation, or of the Company and all Related
Corporations (any such relationship hereinafter referred to as a "Business
Relationship with the Company"). Nothing in the Plan or any Option granted
hereunder shall be deemed to give any optionee the right to continue his or her
Business Relationship with the Company for any period of time.
10. DEATH; DISABILITY.
-----------------
A. DEATH. Unless otherwise specified by the Committee, if an
-----
optionee's Business Relationship with the Company terminates by reason of
death, his or her Option may be exercised, to the extent of the number of
shares with respect to which such optionee could have exercised it on the
date of such optionee's death, by such optionee's estate, personal
representative or beneficiary who has acquired the Option by will or by the
laws of descent and distribution, at any time prior to the earlier of the
specified expiration date of the Option or 180 days from the date of death.
B. DISABILITY. Unless otherwise specified by the Committee, if an
----------
optionee's Business Relationship with the Company terminates by reason of
such optionee's disability, such optionee shall have the right to exercise
his or her Option, to the extent of the number of shares with respect to
which such optionee could otherwise have exercised it on the date his or her
Business Relationship with the Company terminated, at any time prior to the
earlier of the specified expiration date of the Option or 180 days from the
date of the termination of the optionee's Business Relationship with the
Company. For the purposes of the Plan, the term "disability" shall mean
"permanent and total disability" as defined in Section 22(e)(3) of the Code
or any successor statute.
3
<PAGE>
11. ASSIGNABILITY. No Option shall be assignable or transferable by the
-------------
optionee except by will or by the laws of descent and distribution, and during
the lifetime of the optionee each Option shall be exercisable only by the
optionee.
12. TERMS AND CONDITIONS OF OPTIONS. Options shall be evidenced by
-------------------------------
instruments (which need not be identical) in such forms as the Committee may
from time to time approve. Such instruments shall conform to the terms and
conditions set forth in paragraphs 6 through 11 hereof and may contain such
other provisions as the Committee deems advisable which are not inconsistent
with the Plan, including restrictions applicable to shares of Common Stock
issuable upon exercise of Options. The Committee may specify that any Option
shall be subject to the restrictions set forth herein or, consistent with
paragraphs 7, 9 and 10 to such other or additional termination and cancellation
provisions as the Committee may determine. The Committee may from time to time
confer authority and responsibility on one or more of its own members and/or one
or more officers of the Company to execute and deliver such instruments. The
proper officers of the Company are authorized and directed to take any and all
action necessary or advisable from time to time to carry out the terms of such
instruments.
13. ADJUSTMENTS. Upon the occurrence of any of the following events, an
-----------
optionee's rights with respect to Options granted to such optionee hereunder
shall be adjusted as hereinafter provided, unless otherwise specifically
provided in the written agreement between the optionee and the Company relating
to such Option:
A. STOCK DIVIDENDS AND STOCK SPLITS. If the shares of Common Stock
--------------------------------
shall be subdivided or combined into a greater or smaller number of shares or
if the Company shall issue any shares of Common Stock as a stock dividend on
its outstanding Common Stock, the number of shares of Common Stock
deliverable upon the exercise of Options shall be appropriately increased or
decreased proportionately, and appropriate adjustments shall be made in the
purchase price per share to reflect such subdivision, combination or stock
dividend.
B. CONSOLIDATIONS OR MERGERS. If the Company is to be consolidated with
-------------------------
or acquired by another entity in a merger or other reorganization in which
the holders of the outstanding voting stock of the Company immediately
preceding the consummation of such event, shall, immediately following such
event, hold, as a group, less than a majority of the voting securities of the
surviving or successor entity, or in the event of a sale of all or
substantially all of the Company's assets or otherwise (each, an
"Acquisition"), the Committee or the board of directors of any entity
assuming the obligations of the Company hereunder (the "Successor Board"),
shall, as to outstanding Options, either (i) make appropriate provision for
the continuation of such Options by substituting on an equitable basis for
the shares then subject to such Options the consideration payable with
respect to the outstanding shares of Common Stock in connection with the
Acquisition; or (ii) upon written notice to the optionees, provide that all
Options must be exercised, to the extent then exercisable or to be
exercisable as a result of the Acquisition, within a specified number of days
of the date of such notice, at the end of which period the Options shall
terminate; or
4
<PAGE>
(iii) terminate all Options in exchange for a cash payment equal to the
excess of the fair market value of the shares subject to such Options (to the
extent then exercisable or to be exercisable as a result of the Acquisition)
over the exercise price thereof.
C. RECAPITALIZATION OR REORGANIZATION. In the event of a
----------------------------------
recapitalization or reorganization of the Company (other than a transaction
described in subparagraph B above) pursuant to which securities of the
Company or of another corporation are issued with respect to the outstanding
shares of Common Stock, an optionee upon exercising an Option shall be
entitled to receive for the purchase price paid upon such exercise the
securities such optionee would have received if such optionee had exercised
his or her Option prior to such recapitalization or reorganization.
D. DISSOLUTION OR LIQUIDATION. In the event of the proposed
--------------------------
dissolution or liquidation of the Company, each Option will terminate
immediately prior to the consummation of such proposed action or at such
other time and subject to such other conditions as shall be determined by the
Committee.
E. ISSUANCES OF SECURITIES. Except as expressly provided herein, no
-----------------------
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares subject to Options. No adjustments shall be made for
dividends paid in cash or in property other than securities of the Company.
F. FRACTIONAL SHARES. No fractional shares shall be issued under the
-----------------
Plan and the optionee shall receive from the Company cash in lieu of such
fractional shares.
G. ADJUSTMENTS. Upon the happening of any of the events described in
-----------
subparagraphs A, B or C above, the class and aggregate number of shares set
forth in paragraph 4 hereof that are subject to Options which previously have
been or subsequently may be granted under the Plan shall also be
appropriately adjusted to reflect the events described in such subparagraphs.
The Committee or the Successor Board shall determine the specific adjustments
to be made under this paragraph 13 and, subject to paragraph 2, its
determination shall be conclusive.
14. MEANS OF EXERCISING OPTIONS. An Option (or any part or installment
---------------------------
thereof) shall be exercised by giving written notice to the Company at its
principal office address. Such notice shall identify the Option being exercised
and specify the number of shares as to which such Option is being exercised,
accompanied by full payment of the purchase price therefor either (a) in United
States dollars in cash or by check, (b) at the discretion of the Committee,
through delivery or withholding from the Option exercise of shares of Common
Stock having a fair market value equal as of the date of the exercise to the
cash exercise price of the Option, (c) at the discretion of the Committee, by
delivery of the optionee's personal recourse note bearing interest payable not
less than annually at no less than 100% of the lowest applicable Federal rate,
as defined in Section 1274(d) of the Code, (d) at the discretion of the
Committee and consistent with applicable law, through the delivery of an
assignment to the Company of a sufficient
5
<PAGE>
amount of the proceeds from the sale of the Common Stock acquired upon exercise
of the Option and an authorization to the broker or selling agent to pay that
amount to the Company, which sale shall be at the participant's direction at the
time of exercise, or (e) at the discretion of the Committee, by any combination
of (a), (b), (c) and (d) above. Notwithstanding the foregoing, no employee may
pay any part of the exercise price hereof by delivering shares of Common Stock
to the Company unless such Common Stock has been owned by such employee free of
any substantial risk of forfeiture for at least six months. The holder of an
Option shall not have the rights of a shareholder with respect to the shares
covered by such Option until the date of issuance of a stock certificate to such
holder for such shares. Except as expressly provided above in paragraph 13 with
respect to changes in capitalization and stock dividends, no adjustment shall be
made for dividends or similar rights for which the record date is before the
date such stock certificate is issued.
15. TERM AND AMENDMENT OF PLAN. This Plan was adopted by the Board on March
--------------------------
5, 1997. The Plan shall expire at the end of the day on March 5, 2007 (except as
to Options outstanding on that date). The Board may terminate or amend the Plan
in any respect at any time. Except as otherwise provided in this paragraph 15,
in no event may action of the Board alter or impair the rights of an optionee,
without his or her consent, under any Option previously granted to such
optionee.
16. APPLICATION OF FUNDS. The proceeds received by the Company from the sale
--------------------
of shares pursuant to Options granted under the Plan shall be used for general
corporate purposes.
17. WITHHOLDING OF ADDITIONAL INCOME TAXES. Upon the grant or exercise of an
--------------------------------------
Option or the vesting or transfer of restricted stock or securities acquired
upon the exercise of an Option hereunder, the Company may withhold or require
the optionee to pay additional withholding taxes in respect of amounts that
constitute compensation includible in gross income. The Committee in its
discretion may condition the grant or exercise of an Option or the vesting or
transferability of restricted stock or securities acquired by exercising an
Option, on the optionee's making satisfactory arrangement for such payment of
such additional withholding taxes. Such arrangement may include payment by the
optionee in cash or by check of the amount of the withholding taxes or, at the
discretion of the Committee, by the optionee's delivery of previously held
shares of Common Stock or the withholding from the shares of Common Stock
otherwise deliverable upon exercise of a Option shares having an aggregate fair
market value equal to the amount of such withholding taxes.
18. DETERMINATION OF FAIR MARKET VALUE OF COMMON STOCK. Whenever, under the
--------------------------------------------------
terms of any option agreement or in administering the Plan, it is necessary or
desirable to determine the fair market value of the Company's Common Stock, the
Committee shall make such determination in accordance with this Section. "Fair
Market Value" shall be determined as of the last business day for which the
prices or quotes discussed in this sentence are available prior to the date such
Option is granted and shall mean (i) the average (on that date) of the high and
low prices of the Common Stock on the principal national securities exchange on
which the Common Stock is traded, if the Common Stock is then traded on a
national securities exchange; or (ii) the last reported sale price (on that
date) of the Common Stock on the Nasdaq National
6
<PAGE>
Market, if the Common Stock is not then traded on a national securities
exchange; or (iii) the closing bid price (or average of bid prices) last quoted
(on that date) by an established quotation service for over-the-counter
securities, if the Common Stock is not reported on the Nasdaq National Market.
However, if the Common Stock is not publicly traded at the time an Option is
granted under the Plan, "fair market value" shall be deemed to be the fair value
of the Common Stock as determined by the Committee after taking into
consideration all factors which it deems appropriate, including, without
limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length.
19. GOVERNMENTAL REGULATION. The Company's obligation to sell and deliver
-----------------------
shares of the Common Stock under this Plan is subject to the approval of any
governmental authority required in connection with the authorization, issuance
or sale of such shares. Government regulations may impose reporting or other
obligations on the Company with respect to the Plan. For example, the Company
may be required to file tax information returns reporting the income received by
optionees in connection with the Plan.
20. GOVERNING LAW. The validity and construction of the Plan and the
-------------
instruments evidencing Options shall be governed by the laws of the State of
Delaware, or the laws of any jurisdiction in which the Company or its successors
in interest may be organized.
7
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FORM 10-Q
FOR THE QUARTER ENDED MARCH 29, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 6-MOS 6-MOS
<FISCAL-YEAR-END> SEP-30-1997 SEP-30-1996
<PERIOD-START> OCT-01-1996 OCT-01-1995
<PERIOD-END> MAR-29-1997 MAR-30-1996
<CASH> 6,788 10,938
<SECURITIES> 36,075 13,006
<RECEIVABLES> 19,402 20,856
<ALLOWANCES> 1,936 2,267
<INVENTORY> 20,489 21,074
<CURRENT-ASSETS> 82,302 66,393
<PP&E> 44,234 55,322
<DEPRECIATION> 14,679 19,091
<TOTAL-ASSETS> 136,963 134,757
<CURRENT-LIABILITIES> 36,292 40,079
<BONDS> 0 0
0 0
18,767 27,023
<COMMON> 215 170
<OTHER-SE> 47,979 31,889
<TOTAL-LIABILITY-AND-EQUITY> 136,963 134,757
<SALES> 44,294 38,431
<TOTAL-REVENUES> 44,294 48,532
<CGS> 22,334 18,700
<TOTAL-COSTS> 22,334 32,108
<OTHER-EXPENSES> 1,648 38,942
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 1,462 1,422
<INCOME-PRETAX> 18,850 (23,940)
<INCOME-TAX> 0 100
<INCOME-CONTINUING> 18,850 (24,040)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 18,850 (24,040)
<EPS-PRIMARY> 0.84 (1.72)
<EPS-DILUTED> 0.77 0
</TABLE>
