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SCHEDULE 14A
(RULE 14A-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES
EXCHANGE ACT OF 1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[_] Preliminary Proxy Statement
[_]CONFIDENTIAL, FOR USE OF THE
[_] Definitive Proxy Statement COMMISSION ONLY (AS PERMITTED BY
RULE 14A-6(e)(2))
[X] Definitive Additional Materials
[_] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
CELL GENESYS, INC.
SOMATIX THERAPY CORPORATION
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[_] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1)Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined:)
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[_] Fee paid previously with preliminary materials.
[_] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the form or schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
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CELL GENESYS, INC.
342 LAKESIDE DRIVE
FOSTER CITY, CALIFORNIA 94404
Dear Stockholder:
Accompanying this letter is a Supplement (the "Supplement") to the Joint
Proxy Statement (the "Joint Proxy Statement") of Cell Genesys, Inc. ("Cell
Genesys") and Somatix Therapy Corporation ("Somatix") dated April 30, 1997,
which Joint Proxy Statement relates to the proposed merger of S Merger Corp.,
a wholly owned subsidiary of Cell Genesys, with and into Somatix (the
"Merger"). The Supplement contains information concerning the availability of
appraisal rights under the General Corporation Law of the State of Delaware
(the "DGCL") to the holders of shares of series A-1 and A-2 and series B-1
preferred stock of Somatix (together, the "Somatix Preferred Stock") that was
inadvertently omitted from the Joint Proxy Statement. The Supplement should be
read in conjunction with the Joint Proxy Statement.
The appraisal rights described in the Supplement apply solely to holders of
shares of Somatix Preferred Stock. Holders of shares of Cell Genesys Common
Stock and Somatix Common Stock do not have appraisal rights under the DGCL in
connection with the Merger, as previously described in the Joint Proxy
Statement .
You are urged to read carefully the Joint Proxy Statement as well as the
Supplement for more detailed information concerning Cell Genesys, Somatix and
the Merger.
A new proxy card is included with the enclosed Supplement. If you have not
already returned the proxy card that was included in the Joint Proxy
Statement, or if you previously returned the proxy card and wish to change the
manner in which your shares are voted, please sign and date the enclosed proxy
card and return it as soon as possible in the enclosed postage pre-paid, self-
addressed envelope. If you have previously returned the proxy card included in
the Joint Proxy Statement and do not wish to change the manner in which your
shares are voted, you do not need to return the enclosed proxy card.
Very truly yours,
/s/ Stephen A. Sherwin, M.D.
--------------------------------
Stephen A. Sherwin, M.D.
Chairman of the Board, President
and Chief Executive Officer
May 12, 1997
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SOMATIX THERAPY CORPORATION
950 MARINA VILLAGE PARKWAY
ALAMEDA, CALIFORNIA 94501
Dear Stockholder:
Accompanying this letter is a Supplement (the "Supplement") to the Joint
Proxy Statement (the "Joint Proxy Statement") of Cell Genesys, Inc. ("Cell
Genesys") and Somatix Therapy Corporation ("Somatix") dated April 30, 1997,
which Joint Proxy Statement relates to the proposed merger of S Merger Corp.,
a wholly owned subsidiary of Cell Genesys, with and into Somatix (the
"Merger"). The Supplement contains information concerning the availability of
appraisal rights under the General Corporation Law of the State of Delaware
(the "DGCL") to the holders of shares of series A-1 and A-2 and series B-1
preferred stock of Somatix (together, the "Somatix Preferred Stock") that was
inadvertently omitted from the Joint Proxy Statement. The Supplement should be
read in conjunction with the Joint Proxy Statement.
The appraisal rights described in the Supplement apply solely to holders of
shares of Somatix Preferred Stock. Holders of shares of Cell Genesys Common
Stock and Somatix Common Stock do not have appraisal rights under the DGCL in
connection with the Merger, as previously described in the Joint Proxy
Statement.
You are urged to read carefully the Joint Proxy Statement as well as the
Supplement for more detailed information concerning Cell Genesys, Somatix and
the Merger.
A new proxy card is included with the enclosed Supplement. If you have not
already returned the proxy card that was included in the Joint Proxy
Statement, or if you previously returned the proxy card and wish to change the
manner in which your shares are voted, please sign and date the enclosed proxy
card and return it as soon as possible in the enclosed postage pre-paid, self-
addressed envelope. If you have previously returned the proxy card included in
the Joint Proxy Statement and do not wish to change the manner in which your
shares are voted, you do not need to return the enclosed proxy card.
Very truly yours,
/s/ David W. Carter
--------------------------------
David W. Carter
Chairman of the Board, President
and Chief Executive Officer
May 12, 1997
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CELL GENESYS, INC.
AND
SOMATIX THERAPY CORPORATION
SUPPLEMENT TO JOINT PROXY STATEMENT DATED APRIL 30, 1997
----------------
This Supplement (the "Supplement") to the Joint Proxy Statement dated April
30, 1997 (the "Joint Proxy Statement") of Cell Genesys, Inc. ("Cell Genesys")
and Somatix Therapy Corporation ("Somatix") supplements certain information
contained in the Joint Proxy Statement with regard to appraisal rights under
Section 262 of the General Corporation Law of the State of Delaware (the
"General Corporation Law") in connection with the Merger described therein.
This Supplement is being furnished to stockholders of Cell Genesys and Somatix
in connection with the solicitation of proxies by the board of directors of
each of Cell Genesys and Somatix for use at (i) the annual meeting of
stockholders of Cell Genesys to be held on Friday, May 30, 1997 and (ii) the
special meeting of stockholders of Somatix to be held on Friday, May 30, 1997.
Capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to them in the Joint Proxy Statement. This supplement
contains additional information related to the Merger and should be read in
conjunction with the Joint Proxy Statement.
This Supplement and the accompanying form of proxy is first being mailed to
stockholders of Cell Genesys and Somatix on or about May 13, 1997.
----------------
THE SECURITIES TO BE ISSUED PURSUANT TO THE PROSPECTUS INTO WHICH THIS
SUPPLEMENT IS INCORPORATED BY REFERENCE HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
SUCH PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
----------------
The date of this Supplement is May 12, 1997.
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This Supplement provides new and updated information regarding the
availability of appraisal rights under Section 262 of the General Corporation
Law in connection with the Merger. The statements made under the heading
"Appraisal Rights" on pages 8 and 46 of the Joint Proxy Statement with respect
to the appraisal rights of holders of Somatix Common Stock and Cell Genesys
Common Stock are unaffected by this Supplement. However, the statements made
under the heading "Appraisal Rights" on pages 8 and 46 of the Joint Proxy
Statement with respect to the appraisal rights of holders of shares of series
A-1 and series A-2 preferred stock and series B-1 preferred stock of Somatix
(collectively, the "Somatix Preferred Stock") are hereby revised to reflect
the availability of appraisal rights to such holders under Section 262. The
holder of the series B-1 preferred stock of Somatix has indicated that it may
exercise appraisal rights under Section 262 in connection with the Merger.
The text under the heading "Appraisal Rights" on pages 8 and 46 of the Joint
Proxy Statement is hereby replaced in its entirety with the following two
paragraphs:
Holders of Somatix Common Stock are not entitled to appraisal
rights under Section 262 of the General Corporation Law of the State
of Delaware (the "General Corporation Law") in connection with the
Merger because the Somatix Common Stock was designated as a national
market system security on The Nasdaq National Market on the Somatix
Record Date and the shares of Cell Genesys Common Stock to be issued
pursuant to the Merger will be designated as national market system
securities on The Nasdaq National Market at the Effective Time.
Holders of Cell Genesys Common Stock are not entitled to appraisal
rights under Section 262 of the General Corporation Law in
connection with the Merger because Cell Genesys is not a constituent
corporation in the Merger.
Holders of record on the Somatix Record Date of shares of series
A-1 and series A-2 preferred stock and series B-1 preferred stock of
Somatix (collectively, the "Somatix Preferred Stock") who do not
vote in favor of the Merger and who properly demand appraisal of
their shares are entitled to appraisal rights under Section 262 of
the General Corporation Law in connection with the Merger. Under
Section 262 of the General Corporation Law, where a merger is to be
submitted for approval at a meeting of stockholders, as in the case
of the special meeting of stockholders of Somatix, a company, not
less than 20 days prior to such meeting, must notify each of its
stockholders entitled to appraisal rights that such appraisal rights
are available and include in each such notice a copy of Section 262.
The required notice, including a copy of the applicable statutory
provisions, was sent to the holders of shares of Somatix Preferred
Stock on May 9, 1997. Any holder of record of shares of Somatix
Preferred Stock who wishes to exercise appraisal rights should
carefully review Section 262 because failure to timely and properly
comply with the procedures specified in Section 262 will result in
the loss of appraisal rights under the General Corporation Law.
As a result of these revisions and notwithstanding the text of the Merger
Agreement, shares of Somatix Preferred Stock issued and outstanding
immediately prior to the Effective Time held by holders (if any) who have not
voted in favor of the Merger or consented thereto in writing and who have
demanded appraisal rights with respect thereto in accordance with Section 262
of the General Corporation Law (the "Dissenting Shares") shall not be
converted as described in Section 3.01(b) or 3.01(c) of the Merger Agreement,
as the case may be, but holders of such shares of Somatix Preferred Stock
shall be entitled to receive payment of the appraised value of such shares in
accordance with the provisions of such Section 262, except that Dissenting
Shares held by a holder who shall thereafter withdraw such demand for
appraisal of such shares or lose the right to appraisal as provided in Section
262 of the General Corporation Law shall thereupon be deemed to have been
converted, at the Effective Time, as described in Section 3.01(b) or (c) of
the Merger Agreement, as the case may be.
The disclosure in the Joint Proxy Statement is further supplemented as
follows:
THE FOLLOWING DISCUSSION OF APPRAISAL RIGHTS IS NOT A COMPLETE STATEMENT OF
THE LAW PERTAINING TO APPRAISAL RIGHTS UNDER THE GENERAL CORPORATION LAW AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE TEXT OF SECTION 262 OF THE
GENERAL CORPORATION LAW. EXCEPT AS SET FORTH HEREIN, HOLDERS OF SHARES OF
SOMATIX PREFERRED STOCK WILL NOT BE ENTITLED TO APPRAISAL RIGHTS IN CONNECTION
WITH THE MERGER.
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Under the General Corporation Law, record holders of shares of Somatix
Preferred Stock who follow the procedures set forth in Section 262 and who
have not voted the shares as to which appraisal is sought in favor of the
Merger will be entitled to have such shares of Somatix Preferred Stock which
were voted against the Merger or which abstained appraised by the Delaware
Court of Chancery and to receive payment (in cash or such other form of
consideration as may be determined by the Delaware Court of Chancery) of the
"fair value" of such shares, exclusive of any element of value arising from
the accomplishment or expectation of the Merger, together with a fair rate of
interest, as determined by such court.
A holder of shares of Somatix Preferred Stock wishing to exercise appraisal
rights must deliver to Somatix, before the vote on the Merger at the Somatix
Special Meeting, a written demand for appraisal of such holders' shares of
Somatix Preferred Stock and must not vote for the Merger. Because a duly
executed proxy which does not contain voting instructions will, unless
revoked, be voted for the Merger, a holder of shares of Somatix Preferred
Stock who votes by proxy and who wishes to exercise his or her appraisal
rights must, as to any shares of Somatix Preferred Stock held, (i) vote such
shares against the Merger or (ii) abstain from voting such shares on the
Merger. A vote against the Merger, in person or by proxy, will not in and of
itself constitute a written demand for appraisal satisfying the requirements
of Section 262. In addition, a holder of shares of Somatix Preferred Stock
wishing to exercise appraisal rights must hold of record such shares of
Somatix Preferred Stock on the date the written demand for appraisal is made
and must continue to hold such shares of Somatix Preferred Stock until the
Effective Time. If a holder of shares of Somatix Preferred Stock fails to
comply with any of these conditions and the Merger becomes effective, such
holder will be entitled to receive the consideration receivable with respect
to such shares in the absence of a valid assertion of appraisal rights in
accordance with the Merger Agreement.
Only a holder of record of shares of Somatix Preferred Stock is entitled to
assert appraisal rights for the shares of Somatix Preferred Stock registered
in that holder's name. A demand for appraisal should be executed by or on
behalf of the holder of record fully and correctly, as the holder's name
appears on the stock certificates, and must state that the holder intends
thereby to demand appraisal of his or her shares.
If shares of Somatix Preferred Stock are owned of record in a fiduciary
capacity, such as by a trustee, guardian or custodian, execution of the demand
for appraisal should be made in that capacity, and if the shares of Somatix
Preferred Stock are owned of record by more than one person, as in a joint
tenancy or tenancy in common, the demand should be executed by or on behalf of
all joint owners. An authorized agent, including one for two or more joint
owners, may execute the demand for appraisal on behalf of a holder of record;
however, the agent must identify the record owner or owners and expressly
disclose the fact that, in executing the demand, he or she is acting as agent
for such owner or owners. A record holder, such as a broker who holds shares
of Somatix Preferred Stock as nominee for several beneficial owners, may
exercise appraisal rights with respect to the shares of Somatix Preferred
Stock held for one or more beneficial owners while not exercising such rights
with respect to the shares of Somatix Preferred Stock held for other
beneficial owners; in such case, the written demand should set forth the
number of shares of Somatix Preferred Stock as to which appraisal is sought
and where no number of shares of Somatix Preferred Stock is expressly
mentioned the demand will be presumed to cover all shares of Somatix Preferred
Stock held in the name of the record owner. Stockholders who hold their shares
of Somatix Preferred Stock in brokerage accounts or other nominee forms and
who wish to exercise appraisal rights are urged to consult with their brokers
to determine the appropriate procedures for the making of a demand for
appraisal by such nominee.
All written demands for appraisal of shares of Somatix Preferred Stock
should be delivered to Somatix Therapy Corporation, 950 Marina Village
Parkway, Alameda, California 94501, Attention: Edward O. Lanphier, Secretary,
so as to be received before the vote on the approval and adoption of the
Merger at the Somatix Special Meeting.
Within 10 days after the Effective Time, Somatix, as the surviving
corporation in the Merger, must send a notice as to the effectiveness of the
Merger to each person who has satisfied the appropriate provisions of Section
262. Within 120 days after the Effective Time, but not thereafter, Somatix or
any such stockholder who has satisfied the foregoing conditions and is
otherwise entitled to appraisal rights under Section 262, may file a
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petition in the Delaware Court of Chancery demanding a determination of the
fair value of his or her shares of Somatix Preferred Stock. If no such
petition is filed, appraisal rights will be lost for all stockholders who had
previously demanded appraisal of their shares of Somatix Preferred Stock.
Holders of Somatix Preferred Stock seeking to exercise appraisal rights should
assume that Somatix will not file a petition with respect to the appraisal of
the value of shares of Somatix Preferred Stock and that Somatix will not
initiate any negotiations with respect to the "fair value" of shares of
Somatix Preferred Stock. Accordingly, holders of shares of Somatix Preferred
Stock who wish to exercise their appraisal rights should regard it as their
obligation to take all steps necessary to perfect their appraisal rights in
the manner prescribed in Section 262.
Within 120 days after the Effective Time, any record holder of shares of
Somatix Preferred Stock who has complied with the provisions of Section 262
will be entitled, upon written request, to receive from Somatix a statement
setting forth the aggregate number of shares of Somatix Preferred Stock not
voted in favor of the Merger and with respect to which demands for appraisal
were received by Somatix, and the number of holders of such shares of Somatix
Preferred Stock. Such statement must be mailed within ten days after the
written request therefore has been received by Somatix or within ten days
after expiration of the time for delivery of demands for appraisal under
Section 262, whichever is later.
If a petition for an appraisal is timely filed by a holder of shares of
Somatix Preferred Stock and a copy thereof is served upon Somatix, Somatix
will then be obligated within 20 days to file with the Delaware Register in
Chancery a duly verified list containing the names and addresses of all
holders of Somatix Preferred Stock who have demanded an appraisal of their
shares and with whom agreements as to the value of their shares have not been
reached. After notice to such stockholders as required by the Court, the
Delaware Court of Chancery is empowered to conduct a hearing on such petition
to determine those holders of Somatix Preferred Stock who have complied with
Section 262 and who have become entitled to appraisal rights thereunder. The
Delaware Court of Chancery may require the holders of shares of Somatix
Preferred Stock who demanded payment for their shares to submit their stock
certificates to the Register in Chancery for notation thereon of the pendency
of the appraisal proceeding; and if any stockholder fails to comply with such
direction, the Court of Chancery may dismiss the proceedings as to such
stockholder.
After determining the holders of Somatix Preferred Stock entitled to
appraisal, the Delaware Court of Chancery will appraise the "fair value" of
the shares of Somatix Preferred Stock, exclusive of any element of value
arising from the accomplishment or expectation of the Merger, together with a
fair rate of interest, if any, to be paid upon the amount determined to be the
fair value. Holders of Somatix Preferred Stock considering seeking appraisal
should be aware that the fair value of their shares of Somatix Preferred Stock
as determined under Section 262 could be more than, the same as or less than
the value of the consideration that they would otherwise have received in the
Merger if they did not seek appraisal of their shares of Somatix Preferred
Stock and that investment banking opinions as to fairness from a financial
point of view are not necessarily opinions as to fair value under Section 262.
The Delaware Supreme Court has stated that "proof of value by any techniques
or methods which are generally considered acceptable in the financial
community are otherwise admissible in court" should be considered in the
appraisal proceedings. In addition, Delaware courts have decided that the
statutory appraisal remedy, depending on factual circumstances, may or may not
be a dissenter's exclusive remedy. The Court will also determine the amount of
interest, if any, to be paid on the amounts to be received by persons whose
shares of Somatix Preferred Stock have been appraised. The costs of the action
may be determined by the Court and taxed upon the parties as the Court deems
equitable. The Court may also order that all or a portion of the expenses
incurred by any holder of shares of Somatix Preferred Stock in connection with
an appraisal, including, without limitation, reasonable attorneys' fees and
the fees and expenses of experts utilized in the appraisal proceeding, be
charged pro rata against the value of all of the shares of Somatix Preferred
Stock entitled to appraisal.
Any stockholder of Somatix who has duly demanded an appraisal in compliance
with Section 262 will not, after the Effective Time, be entitled to vote his
or her shares of Somatix Preferred Stock for any purpose nor, after the
Effective Time, be entitled to the payment of dividends or other distributions
thereon (except dividends or other distributions payable to holders of record
as of a date prior to the Effective Time).
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If no petition for an appraisal is filed within the time provided, or if a
holder of Somatix Preferred Stock delivers to Somatix a written withdrawal of
his or her demand for an appraisal and an acceptance of the Merger within 60
days after the Effective Time or with the written approval of Somatix
thereafter, then the right of such stockholder to an appraisal will cease and
such holder shall be entitled to receive the Merger consideration pursuant to
the Merger Agreement, without interest, as if he or she had not demanded
appraisal of his or her shares of Somatix Preferred Stock. No pending
appraisal proceeding in the Court of Chancery will be dismissed as to any
holder without the approval of the Court, which approval may be conditioned on
such terms as the Court deems just.
HOLDERS OF SOMATIX PREFERRED STOCK DESIRING TO EXERCISE THEIR APPRAISAL
RIGHTS SHOULD STRICTLY COMPLY WITH THE PROCEDURES SET FORTH IN SECTION 262 OF
THE GENERAL CORPORATION LAW. FAILURE TO FOLLOW ANY OF SUCH PROCEDURES MAY
RESULT IN A TERMINATION OR WAIVER OF APPRAISAL RIGHTS UNDER SECTION 262 OF THE
GENERAL CORPORATION LAW (IN WHICH EVENT A HOLDER WILL BE ENTITLED TO RECEIVE
THE MERGER CONSIDERATION IN ACCORDANCE WITH THE MERGER AGREEMENT).
STOCKHOLDERS SHOULD NOT SEND ANY STOCK CERTIFICATES
WITH THEIR PROXY CARDS.
5
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1163-PSS-97
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0522-PSS-97
