Exhibit 4.16
AGREEMENT
on
ACQUISITION OF SHARES AND SUBSCRIPTION RIGHTS
in
GENOVISION AS
by
QIAGEN N.V.
Dated 24 May 2002
2/26
1. DEFINITIONS ................................................ 4
2. SCOPE ...................................................... 6
3. PRINCIPAL TERMS OF QIAGEN'S OFFER TO ACQUIRE SHARES
AND SUBSCRIPTION RIGHTS IN GENOVISION ...................... 6
3.1 Initial Purchase Price ............................ 6
3.2 Increase of Initial Purchase Price ................ 7
3.3 Payment of Consideration .......................... 7
3.4 Additional Consideration .......................... 7
3.5 Escrow arrangement ................................ 10
3.6 QIAGEN employee stock option plan ................ 10
3.7 The Offer ......................................... 10
4. CLOSING .................................................... 10
4.1 Time and place of closing ......................... 10
4.2 Delivery .......................................... 11
4.3 Conditions precedent for QIAGEN acquiring the
Shares and redeeming the Conversion Rights ........ 12
5. UNDERTAKINGS BY GENOVISION ................................. 12
5.1 Due Diligence ..................................... 12
5.2 Assignment of material and Intellectual
Property Assets contracts ......................... 12
5.3 Business as usual ................................. 13
5.4 Active support for acceptance of Offer ............ 13
5.5 Approval of conversion of the 2002 Convertible
Loan and transfer of Subscription Rights .......... 13
5.6 Transfer of rights and license agreement to
existing and future inventions made by employees .. 13
5.7 Recommendation .................................... 14
5.8 Exclusivity ....................................... 14
5.9 Confidentiality ................................... 14
5.10 Break-up fee ...................................... 14
6. UNDERTAKINGS BY THE SELLERS ................................ 14
7. REPRESENTATIONS AND WARRANTIES OF GENOVISION AND
THE SELLERS ................................................ 14
7.1 Power and authority ............................... 15
7.2 Ownership; Shares and Subscription Rights ......... 15
7.3 2002 Convertible Loan ............................. 15
7.4 Accounts .......................................... 15
7.5 No litigation or undisclosed liabilities .......... 16
7.6 Intellectual Property ............................. 17
7.7 Insurance ......................................... 18
7.8 Taxes ............................................. 18
7.9 Employees; Employee Benefits; Pensions ............ 19
7.10 Seller's Disclosure ............................... 19
7.11 No violation or conflict .......................... 19
7.12 Consents and approvals ............................ 20
7.13 Material contracts and customers ................. 20
7.14 Particle Solutions AS ............................. 20
7.15 Own business decision ............................. 20
7.16 Lock-up ........................................... 20
7.17 Information ....................................... 21
7.18 Residence ......................................... 21
8. BREACH OF REPRESENTATIONS .................................. 21
9. WAIVER ..................................................... 22
10. AUTHORISATIONS ............................................. 22
11. GOVERNING LAW; VENUE ....................................... 22
12. TERMINATION ................................................ 23
13. NOTICES .................................................... 23
4/26
QIAGEN N.V., having its registered offices at Xxxxxxxxxxx 00, XX-0000 XX Xxxxxx,
Xxx Xxxxxxxxxxx ("QIAGEN")
and
GenoVision AS, with its registered offices at Xxxxxxxxxxx 00, X-0000, Xxxx,
Xxxxxx ("GenoVision")
and the following shareholders of GenoVision (the "Sellers"):
KS TeknoInvest VI, having its registered offices at c/o TeknoInvest Management
AS, Xxxx Xxxxxx xxxxx 0, 0000 XXXX;
Fritas A/S, having its registered offices at x/x Xxxxx Xxxxxx X/X, XX 0000
Xxxxx, 0000 XXXX;
Dino AS, having its registered offices at 4387 Bjerkreim;
H0egh Invest AS, having its registered offices at XX 0000 Xxxxx, 0000 XXXX ;
NeoMed Innovation ASA, having its registered offices at Xxxxxxxxx 00 0000 XXXX;
Pedika Invest AS (former Industriforvaltning AS), having its registered offices
at XX 000, 0000 XXXXXXXXXXXX;
AS Xxxx, having its registered offices at XX 00, 0000 XXXXXXX;
Storebrand Livsforsikring AS, having its registered offices at c/o Storebrand
Alternative Investments ASA, XX 0000 XXXX, 0000 XXXX ;
Svensk-Norsk Industrifond, having its registered offices at XX 000 Xxxxxxx, 0000
XXXX;
Sigurd Waelgaard, Professor Xxxxxxx. 00x, 0000 XXXX;
Xxxx Xxxxxx, Xxxxxxxxxxxxxx 0, 0000 XXXX;
Xxxxx Xxxxxx, Xxxxxxxxxxxx 00, 0000 XXXX ;
Olle Olerup, Xxxxxxxxxxxx 0, XX-000 00 Xxxxxx0xxxxx, Xxxxxx; and
Marten Wigst0l, Xxxxxxxxxxxxxxx 0, 0000 XXXX;
have on 24 May 2002 entered into the following agreement (the "Agreement"):
1. Definitions
In this Agreement, the following capitalised terms shall have the following
meanings:
"Accepting Shareholders" shall mean all Shareholders disposing of their Shares
under this Agreement or the Offer.
"Accepting Subscription Right Holders" shall mean all holders of Subscription
Rights to sell their Subscription Rights under this Agreement or the Offer.
"Accounts" shall have the meaning ascribed to such term in Clause 7.4.
"Additional Consideration" shall have the meaning ascribed to such term in
Clause 3.4.
5/26
"Agreement" shall mean this agreement, including all exhibits.
"Closing" shall mean the Closing of QIAGEN's acquisition of more than 90% of the
Shares and Subscription Rights as set out in Clause 4.1.
"Closing Date" shall mean the date of Closing as set out in Clause 4.1.
"Escrowed Shares " shall have the meaning ascribed to such term in Clause 3.5.
"Escrow Agent" shall have the meaning ascribed to such term in Clause 3.5.
"Escrow Agreement" shall have the meaning ascribed to such term in Clause 3.5.
"GenoVision" shall mean GenoVision AS, together with its subsidiaries, unless
otherwise stated.
"Initial Purchase Price" shall have the meaning ascribed to such term in Clause
3.
"Intellectual Property Assets" shall have the meaning ascribed to such term in
Clause 7.6.
"Key Employees" shall have the meaning ascribed to such term in Clause 7.9.1.
"Offer" shall mean the offer by QIAGEN to all Remaining Shareholders to acquire
their Shares and Subscription Rights on the same terms and conditions as in this
Agreement.
"Offer Acceptance Period" shall mean the period under which of the Offer may be
accepted, as asset out in the Offer prospectus to be published by QIAGEN.
"QIAGEN" shall mean QIAGEN N.V.
"Qualifying Revenues" shall have the meaning ascribed to such term in Clause
3.4.
"Remaining Shareholders" shall mean all Shareholders not also being Sellers
pursuant to this Agreement.
"Sale" shall mean the acquisition by QIAGEN of more than 90% of the Shares.
"Sellers" shall mean the Shareholders of GenoVision selling Shares pursuant to
this Agreement.
"Shares" shall mean the shares of GenoVision AS.
"Shareholder" shall mean a holder of Shares.
"Subscription Rights" shall mean any options or warrants for any employee or
Shareholder or any other party, giving a right to subscribe for Shares. A
complete list of all outstanding Subscription Rights and holders of Subscription
Rights, including the maximum dilution effect, as of the date of this Agreement
is enclosed as Exhibit 1.
"2002 Convertible Loan" shall mean the subordinated convertible loan of NOK 10
million issued by GenoVision in April 2002, entailing the right of conversion
into 40,061 Shares. A complete list of lenders under the 2002 Convertible Loan
is enclosed as Exhibit 2.
6/26
"Transaction" shall mean the transfer of Shares and Subscription Rights from
Accepting Shareholders and Accepting Subscription Right Holders to QIAGEN under
the terms of this Agreement and the Offer.
"12 Month Period" shall have the meaning ascribed to such term in Clause 3.4.1.
2. SCOPE
(i) QIAGEN aims at acquiring 100% of the Shares on a fully diluted basis,
making GenoVision a wholly-owned subsidiary of QIAGEN.
(ii) As part of the acquisition, QIAGEN shall offer to acquire all
outstanding Subscription Rights. The terms and conditions offered to the
holders of Subscription Rights shall leave such holders in the same
position as if they had exercised their Subscription Rights prior to
Closing.
(iii) This Agreement covers the acquisition by QIAGEN of 401,213 Shares and
32,351 Subscription Rights, representing all outstanding Subscription
Rights held by the Sellers, including shares to be issued upon a
conversion of the 2002 Convertible Loan, making QIAGEN the holder of
more than 2/3 of the Shares on a fully diluted basis.
(iv) This Agreement is contingent upon:
(a) QIAGEN giving an offer to all Remaining Shareholders of
GenoVision to acquire their Shares on the same terms and
conditions as in this Agreement;
(b) QIAGEN giving an offer to all holders of Subscription Rights not
being converted prior to Closing to acquire their Subscription
Rights on the same terms and conditions as in this Agreement;
and
(c) on the final acquisition by QIAGEN of in total more than 90% of
the Shares on a fully diluted basis, provided that such
condition is not waived by QIAGEN.
(v) Exhibit 3 provides an overview of Shares and Subscription Rights
regulated by this Agreement.
(vi) The terms and conditions of this Agreement have been agreed to in
principle in a letter of intent dated 11 April 2002. This Agreement
replaces said letter of intent.
3. PRINCIPAL TERMS OF QIAGEN'S OFFER TO ACQUIRE SHARES AND SUBSCRIPTION
RIGHTS IN GENOVISION
3.1 Initial Purchase Price
The total initial purchase price for 100% of the Shares outstanding as
of the date of this Agreement, (in total 510,562 Shares) the total
initial purchase price to be paid by QIAGEN shall be USD 27 million
("Initial Purchase Price"). This Initial Purchase Price will be subject
to certain adjustments as further specified in Clause 3.2. 50% of the
adjusted Initial Purchase Price shall be cash consideration and 50%
shall be common stock of QIAGEN.
7/26
3.2 Increase of Initial Purchase Price
3.2.1 Exercised Subscription Rights
In the event that any Subscription Rights are exercised prior to the
Closing Date, the Initial Purchase Price will be increased NOK-by-NOK
by the aggregate proceeds received by GenoVision from such exercise,
based on the USD exchange rate of the Norwegian Central Bank as of the
Closing Date.
3.2.2 Conversion of 2002 Convertible Loan
The Initial Purchase Price will be increased NOK-by-NOK with the
increase in equity as a result of a conversion of the 2002 Convertible
Loan, based on the USD exchange rate of the Norwegian Central Bank as
of the Closing Date.
3.3 Payment of Consideration
The Initial Purchase Price payable to the Accepting Shareholders shall
be reduced by any amount payable to Accepting Subscription Right
Holders. The Initial Purchase Price to be paid per share shall be the
adjusted Initial Purchase Price divided by the total number of
outstanding Shares as of the Closing Date.
Accepting Subscription Right Holders shall receive a consideration
equivalent to the market value of the relevant Subscription Right, as
set out in Exhibit 1, of which 50% will be cash consideration and 50%
will be QIAGEN common shares.
The total cash consideration payable shall be paid from QIAGEN to
Xxxxxxx xx Xxxxxx Advokatfirma AS as further specified in Clause 4.2.6.
The number of QIAGEN common shares to be issued to Accepting
Shareholders and Accepting Conversion Right Holders shall be 50% of the
Initial Purchase Price divided by the QIAGEN share price, calculated as
the weighted average of the last 10 days trading price in the period
between 15 and 5 trading days prior to the Closing Date (as recorded on
Nasdaq as a closing price for such day) (the "Relevant Trading Days").
However, the calculated QIAGEN share price shall not be below a floor
of USD 12.50 and not be above a ceiling of USD 17.50 per share.
3.4 Additional Consideration
3.4.1 In addition to the Initial Purchase Price, the Accepting Shareholders
and Accepting Subscription Right Holders will be eligible to receive an
additional consideration of in total USD 3 million (the "Additional
Consideration"), provided that QIAGEN's consolidated revenues from
sales of reagents and instruments based on GenoVision's technology
("Qualifying Revenues") for the 12 month period beginning on the date
for the Closing Date (the "12 Months Period") is USD 6.2 million or
more, provided that the products are sold on regular commercial terms.
Relevant revenues for calculation at Additional Consideration are
revenues from:
(i) sale of nucleic acid isolation products that as of the date of
this Agreement exist in GenoVision's product portfolio
(Exhibit 4) and do not exist in QIAGEN's product portfolio as
in terms of technology and application
8/26
substantially similar products and as evidenced by sales
documentation distributed prior to the Closing Date;
(ii) sale of nucleic acid isolation products that are part of
GenoVision's product development portfolio where the intended
and reasonable product launch is within 12 months of the
Closing Date ("Development Portfolio") (Exhibit 5); and do not
exist in QIAGEN's Development Portfolio as in terms of
technology and application substantially similar products and
as evidenced by sales or research documentation dated prior to
the Closing Date;
(iii) sale of nucleic acid isolation products (particles) used as a
component of QIAGEN kits, calculated as the pro-rate portion
of the sales revenue from the kits, represented by the
particles' pro rata portion of the arm's length productions
costs, whereby such products or particles did not previously
exist in QIAGEN's Development Portfolio or product portfolio
as in terms of technology and application substantially
similar products and as evidenced as products in QIAGEN's
Development Portfolio or product portfolio by documentation
dated prior to the Closing Date; and
(iv) Nucleic acid isolation services rendered by GenoVision to
customers applying technologies or services in GenoVision's
product portfolio or Development Portfolio and not existing in
QIAGEN's product portfolio or Development Portfolio as in
terms of technology and application substantially similar
services and as evidenced by sales documentation distributed
prior to the Closing Date.
3.4.2 Qualifying Revenues mean the total of the gross consideration received
by QIAGEN or GenoVision from third parties for products or services as
defined in 3.4.1, made, used, transferred, sold or otherwise disposed
of by QIAGEN and its subsidiaries, in any case to be at arms length
prices, less the sum of the following actual and customary deductions
(net of rebates or allowances of such deductions received) included in
the invoice and actually paid: cash, trade, or quantity discounts;
sales or use taxes imposed upon particular sales; import/export duties;
transportation charges.
3.4.3 Products eligible for Qualifying Revenues shall be deemed made, used,
transferred, sold or otherwise disposed of at the time QIAGEN bills,
invoices, ships or receives payment for such qualified revenue,
whichever occurs first.
3.4.4 In the event that more than 25% of the instruments based on
GenoVision's technology that are delivered to customers are leased
instead of sold, those leased instruments that are in excess of 25% of
the total number of delivered instruments fully and partly shall be
treated as having been sold at QIAGEN's regular commercial terms for
the purpose of calculating Qualifying Revenues.
3.4.5 In the event that Qualifying Revenues are less than USD 6.2 million but
exceed USD 5.5 million, the Accepting Shareholders and Accepting
Conversion Right Holders will receive the Additional Consideration set
forth in Exhibit 6.
3.4.6 The calculation of Qualifying Revenues shall be based on the books and
records of GenoVision and QIAGEN, including group companies, for the 12
Month Period, and shall be made available to the Accepting Shareholders
and Accepting Subscription Right Holders within 6 weeks after the end
of the 12 Month Period. The books and
9/26
records shall be in accordance with generally accepted accounting
principles accurately showing all transactions related to Qualifying
Revenues. Payment of the Additional Consideration shall take place not
later than 14 months after the Closing Date.
3.4.7 If required by more than either 10 Accepting Shareholders or Accepting
Shareholders who have disposed of in total more than 1/3 of the Shares,
QIAGEN and the Accepting Shareholders, respectively, shall appoint one
independent auditor with sufficient industry knowledge each, to conduct
two independent recommendations on the determination of Qualifying
Revenues. If not otherwise agreed by the parties, the average of the
two recommendations of Qualifying Revenues shall be the final and
binding in relation to determination of the Additional Consideration.
If any such group of Accepting Shareholder or Accepting Subscription
Right Holder require an audit of the Qualifying Revenues and the
accounts on which it is based, such Accepting Shareholder or Accepting
Subscription Right Holder must do so within one month of receipt of the
calculation of the Qualifying Revenues. If an audit is requested by any
Accepting Shareholder or Accepting Subscription Right Holder, it shall
be regarded as requested on behalf of all Accepting Shareholders and
Accepting Subscription Right Holders and with effect for all Accepting
Shareholders and Accepting Subscription Right Holders, and shall be
completed within one month. Payment shall be made on the basis of such
audit within 10 days after the audit has been made available to QIAGEN.
The audit shall be paid for by all Accepting Shareholders and Accepting
Subscription Right Holders, by means of a reduction of the Additional
Consideration, unless the deviation of the Qualifying Revenues as
calculated by QIAGEN and as audited exceeds 10%. If the Additional
Consideration to be paid by QIAGEN to the Accepting Shareholders and
Accepting Subscription Right Holders is not sufficient to cover the
audit fees, the Accepting Shareholders and Accepting Subscription Right
Holders shall pay such balance to the auditors directly.
3.4.8 The Additional Consideration shall be payable in cash or QIAGEN common
shares, or some combination of cash and shares, as determined by QIAGEN
in its sole discretion. The number of any QIAGEN common shares to be
issued shall be based on the QIAGEN share price, calculated as the
weighted average of the last 10 days trading price in the period
between 15 and 5 trading days prior to the date on which payment of the
Additional Consideration is due.
3.4.9 Any Additional Consideration payable in cash shall be paid to Xxxxxxx
xx Xxxxxx Advokatfirma AS, to such bank account as set out in Clause
4.2.5, who in turn shall transfer the Additional Consideration to
Accepting Shareholders and Accepting Subscription Right Holders based
on their pro-rata share of the Shares and Subscription Rights on a
fully diluted basis, less any taxes required withheld by GenoVision.
Any Additional Consideration payable in QIAGEN common shares shall be
transferred to Den norske Bank on behalf of each Accepting Shareholder
and Accepting Subscription Right Holder.
3.4.10 In the event that payment of the Additional Consideration give rise to
any additional payment to XX Xxxxx, Xxxxxxx xx Xxxxxx Advokatfirma AS
and/or others, such amount(s) must be covered by the Additional
Consideration, whereby QIAGEN or GenoVision shall only be responsible
for such consideration as was invoiced to QIAGEN prior to its paying
out the Additional Consideration to Accepting
10/26
Shareholders and Accepting Subscription Right Holders, and insofar such
Additional Consideration amount is sufficient to cover such fees, and
the remainder should be covered by the Accepting Shareholders and
Accepting Subscription Right Holders directly on a pro-rata basis.
3.4.11 Neither QIAGEN nor GenoVision shall be responsible for the payment to
XX Xxxxx for services directly or indirectly related to this
transaction.
3.5 Escrow arrangement
3.5.1 20% of the QIAGEN common stocks being issued as part of the Initial
Purchase Price and payment to Accepting Conversion Right Holders shall
be held by a trustee appointed by QIAGEN (the "Escrow Agent") in an
escrow account (the "Escrowed Shares"), as the sole provision for any
claims made against GenoVision relating to the business or activities
of GenoVision or its subsidiaries prior to the Closing Date, including
any matters relating to any material breach of the representations and
warranties set out in Clause 8. However, the Escrowed Shares shall not
be the sole source of indemnification for any claims relating to the
2002 Convertible Loan or arising from the fraud of GenoVision or any
Accepting Shareholder or Accepting Subscription Right Holder.
3.5.2 A separate Escrow Agreement has been entered into between the Sellers,
QIAGEN and the Escrow Agent at the date of this Agreement. The Escrow
Agreement is enclosed as Exhibit 7. Shareholders and holders of
Subscription Rights not being Sellers accepting the Offer, shall be
required to become parties to the Escrow Agreement through acceptance
of the Offer.
3.6 QIAGEN employee stock option plan
QIAGEN's management will propose to its supervisory board that employee
stock options be issued to those employees of GenoVision who meet the
standard criteria for such options grants at QIAGEN.
3.7 The Offer
The Qiagen common stock are not and will not be offered to persons who
are established, domiciled or have their residence in the Netherlands.
The offer of the Qiagen common stock, each announcement thereof and
this Agreement comply with the law and regulations of any State where
persons to whom the offer is made are resident.
4. Closing
4.1 Time and place of closing
The Closing of the Sale ("Closing") shall take place on 14 June 2002
("Closing Date"), at the offices of Wikborg, Rein & Co., Kronprinsesse
Marthas xxxxx 1, Oslo, or at such
11/26
other time and place as the parties may agree, provided that all
conditions precedent to completing the Transaction have been fulfilled.
4.2 Delivery
At the Closing each of QIAGEN and the Accepting Shareholders shall
deliver the following documents, and if applicable, other documents as
stated in a closing memorandum, which shall be agreed to prior to
Closing:
By the Accepting Shareholders
4.2.1 Evidence of electronic share transfer (transfer from the relevant
accounts in VPS (Norwegian Central Securities Depository) of the Shares
sold by each Accepting Shareholder, free of any restrictions, to
QIAGEN's VPS account. 50% of the Shares can be held in escrow until
payment has been received in form of QIAGEN common shares.
By GenoVision
4.2.3 Statement from the board that each of the undertakings in Clause 5 have
been fulfilled, with factual description, comments and required
documentation.
4.2.4 Confirmation of fee arrangement with XX Xxxxx and delivery of
confirmation by XX Xxxxx, Xxxxxxx xx Xxxxxx Advokatfirma AS,
PricewaterhouseCoopers DA, Wiersholm, Mellbye & Bech, Xxxxx & Co and
Den norske Bank on total fee amount.
4.2.5 Sales and research documentation as set out in Clause 3.4.1.
By QIAGEN
4.2.6 Irrevocable transfer instructions of the cash amount under the Initial
Purchase Price, as adjusted, plus total cash amount payable to
Accepting Conversion Right Holders, to client account No. 7020.05.04133
with Xxxxxxx xx Xxxxxx Advokatfirma AS. Upon receipt, Xxxxxxx xx Xxxxxx
Advokatfirma AS will transfer the Initial Purchase Price, reduced by
any amounts payable to XX Xxxxx whereby such amounts shall fully
satisfy any claim from XX Xxxxx against QIAGEN or GenoVision related to
this transaction; Xxxxxxx xx Xxxxxx Advokatfirma AS;
PricewaterhouseCoopers DA; Wiersholm, Mellbye & Bech, Xxxxx & Co and
Den norske Bank for services directly or indirectly related to the
Transaction to the bank accounts nominated for each Seller and
according to the acceptance forms under the Offer are nominated for
each Accepting Shareholders and Accepting Conversion Right Holder. The
reduction shall be for the account of each Accepting Shareholder and
Accepting Conversion Right Holder in proportion of their deemed
shareholding in GenoVision on a fully diluted basis.
4.2.7 Copy of proof of issuance of QIAGEN common stock to each Accepting
Shareholder and Accepting Subscription Right Holder, with an
undertaking to deliver stock certificates within 25 days after Closing.
4.2.8 Instruction to the Escrow Agent in conformity with Clause 3.5 and the
separate Escrow Agreement as regards the Escrowed Shares.
12/26
4.3 Conditions precedent for QIAGEN acquiring the Shares and redeeming the
Conversion Rights
The following preconditions to Closing, of which any or all may be
waived by QIAGEN, shall apply:
4.3.1 All Sellers as well as GenoVision shall have validly adhered to this
Agreement, enabling QIAGEN to acquire more than 90% of the Shares on a
fully diluted basis.
4.3.2 QIAGEN shall through this Agreement and the Offer have received
irrevocable acceptances for Shares and Subscription Rights representing
more than 90% of the Shares on a fully diluted basis.
4.3.3 A conversion of the 2002 Convertible Loan shall have been completed.
4.3.4 For matters of Dutch law, Closing shall not occur until necessary
approvals from the supervisory board of QIAGEN have been obtained. Such
approvals shall not unreasonably be withheld.
4.3.5 QIAGEN shall be satisfied that the undertakings by GenoVision and the
Sellers in this Agreement have been reasonably fulfilled and adhered
to; that no material adverse changes in the business of GenoVision have
taken place up to the Closing Date; and that the representations and
warranties set forth in this Agreement are true and correct in any
material respect as of the Closing Date.
4.3.6 The due diligence performed by QIAGEN pursuant to Clause 5.1 shall have
been completed.
4.3.7 The board and the management of GenoVision shall have used all
reasonable efforts in order to persuade all holders of Subscription
Rights to accept the Offer.
4.3.8 The current key employees of GenoVision, as set out in Exhibit 8, shall
have taken no steps to leave the Company or induce others to leave the
Company prior to Closing, and have valid employment contracts with
GenoVision, except as may be agreed to by QIAGEN, except Xxxxx Xxxxxxx,
who has informed that he will leave by year-end 2002.
5. UNDERTAKINGS BY GENOVISION
5.1 Due Diligence
GenoVision will assist QIAGEN in completing a legal, financial, tax and
technical due diligence of GenoVision until Closing, and shall sign a
statement of accuracy and completeness with respect to information
given.
5.2 Assignment of material and Intellectual Property Assets contracts
GenoVision shall ensure that all necessary assignments of material
contracts as set out in Exhibit 9 and relevant Intellectual Property
Assets set out in Exhibit 10; all
13/26
necessaryapprovals to market the products listed in Exhibit 4 in the
name of QIAGEN; as well as any other necessary third party consents and
approvals have been obtained prior to Closing. Such approvals shall be
granted unconditionally, including no negative changes to the terms and
conditions of contracts.
5.3 Business as usual
The board and the management of GenoVision warrant and undertake that
they will ensure that GenoVision, until QIAGEN has nominated a majority
of the board members of GenoVision, will not take any action outside of
the ordinary course of business of GenoVision or its subsidiaries,
including not enter into agreements or undertake any acquisitions, sale
or transfer of subsidiaries or material assets of GenoVision or any of
its subsidiaries; make or propose any amendments or changes to the
articles of association of GenoVision or its subsidiaries or propose to
the Shareholders to declare any dividend. No new Shares, option or
warrants or similar securities or undertakings shall be issued,
proposed to be issued, exercised, converted or entered into, except for
conversion of the 2002 Convertible Loan.
5.4 Active support for acceptance of Offer
The board and the management of GenoVision shall use all reasonable
efforts in order to persuade all Shareholders and holders of
Subscription Rights to accept the Offer.
5.5 Approval of conversion of the 2002 Convertible Loan and transfer of
Subscription Rights
GenoVision shall as soon as possible after signing of this Agreement
arrange an extraordinary general meeting, which shall approve exercise
of GenoVision's option to convert the 2002 Convertible Loan into Shares
and the transfer of Subscription Rights to QIAGEN.
5.6 Transfer of rights and license agreement to existing and future
inventions made by employees
GenoVision shall employ necessary agreements and other arrangements to
ensure that all intellectual property rights to relevant existing and
future inventions made by employees irrevocably be transferred to
GenoVision. Exhibit 11 sets out a description of GenoVision's
arrangements for transfer of inventions from its employees, as well as
a list of inventions that have been transferred to GenoVision through
agreements already signed.
GenoVision shall enter into an agreement with Xxxxx Xxxxxx and Xxxxxxxx
Skanseng, whereby the exclusive license agreement between such persons
and GenoVision is assigned to QIAGEN.
14/26
5.7 Recommendation
The board of GenoVision will issue a statement to the Remaining
Shareholders, to be included in the Offer prospectus, confirming that
it recommends the Shareholders and Subscription Right Holders to accept
the Offer.
5.8 Exclusivity
GenoVision and the members of the board and management of GenoVision
each and individually agree to refrain from taking any action to
discuss any transaction which would conflict with the consummation of
the Transaction until the Closing Date, and agree to inform QIAGEN
should any third party make contact with GenoVision for the purpose of
discussing any transactions which could potentially conflict with such
transactions.
5.9 Confidentiality
GenoVison, its management and the Sellers each and individually agree
to keep all information of non-public nature which it has received on
QIAGEN strictly confidential, and shall make no use of any proprietary
information received. Accordingly, QIAGEN agrees to keep all
information of non-public nature which it has received on GenoVision or
any of the Sellers strictly confidential, and shall make no use of any
proprietary information received. Neither party shall make any public
information regarding this transaction except pursuant to prior
agreement, except as may be required by law or stock exchange
regulations. The confidentiality obligation under this Clause 5.9 shall
remain in force regardless of whether this Agreement is terminated.
5.10 Break-up fee
Should GenoVision, any member of GenoVision's board or management, or
any of the Sellers take any action which would conflict with the
consummation of the Transaction with the effect that the Closing does
not occur within 30 July 2002, then GenoVision shall pay to QIAGEN a
fee of USD 2 million in cash.
6. Undertakings by the sellers
The Sellers undertake to, in the period from the date of this
Agreement, until the Shareholders have elected new board members
nominated by QIAGEN, to vote at shareholders meetings in a manner that
is consistent with the interest of QIAGEN and the consummation of this
Agreement.
7. Representations and warranties of GenoVision and the sellers
GenoVision and the Sellers, on a joint and several basis (unless
otherwise expressly stated herein) hereby make the following
representations and warranties:
15/26
7.1 Power and authority
GenoVision represents and warrants, and each of the Sellers represent
and warrant on its own behalf only, that the execution, delivery and
performance of this Agreement by GenoVision and such Seller and
consummation of the sale of Shares contemplated hereby have been duly
and validly authorised by all requisite action, and that no other
action is necessary to authorise the execution, delivery or performance
of this Agreement.
7.2 Ownership; Shares and Subscription Rights
All Shares have been duly authorised, validly issued and fully paid.
The Sellers own all right, title and interest in and to the Shares. On
the Closing Date, the Seller will assign, transfer and deliver good and
valid title to the Shares to QIAGEN, free and clear of any liens. There
are no outstanding bonds, convertible bonds, options, pre-emptive
rights or warrants of any kind issued by Seller or GenoVision to any
person to purchase or otherwise acquire any of the shares, except for
the Subscription Rights and the 2002 Convertible Loan.
All Subscription Rights have been duly authorised and validly granted.
The Sellers transferring Subscription Rights under this Agreement own
all right, title and interest in and to such Subscription Rights, and
have all rights to transfer such Subscription Rights, which is
confirmed by GenoVision's signature on this Agreement, save for
necessary approval from the general meeting as set out in Clause 5.5,.
On the Closing Date, the Seller will assign, transfer and deliver good
and valid title to the Subscription Rights to QIAGEN, free and clear of
any liens.
7.3 2002 Convertible Loan
All Shareholders that had a right to subscribe to the 2002 Convertible
Loan have been informed of their right to subscribe to the loan,
including the fact that the board and management of GenoVision were in
discussions with an unnamed party to purchase the Shares. The Sellers
warrant that no claims can be made against GenoVision or its board of
directors by any Shareholder as a result of the subscription or
issuance of the 2002 Convertible Loan. The Sellers undertake to
indemnify GenoVision and/or QIAGEN should any Shareholder put forward
any claim related to the issue of the 2002 Convertible Loan.
7.4 Accounts
7.4.1 Accounting principles
The audited annual report for 2001 (the "Accounts"), of which a copy is
attached as Exhibit 12, as well as the year-end audited accounts for
the preceding two financial years, have been prepared in accordance
with Norwegian GAAP applied in accordance with good audit practice and
consistently with previous practice, and correctly represent the
financial condition of the GenoVision and its subsidiaries and the
result of the operations of the business and the cash flow for the
relevant periods.
16/26
7.4.2 Accounts receivable
All accounts receivable in respect of GenoVision reflected in the
Accounts are valid receivables, are not subject to counterclaims and
set offs, and are collectible in accordance with their terms, except to
the extent that such accounts receivable have been included in the bad
debt reserve reflected in the Accounts.
7.4.3 Trade debts
All trade debts accounted for as such in any financial document
referred to above, are normal trade debts incurred in the normal course
of business on normal terms relevant thereto, and are fully payable and
not overdue.
7.4.4 Inventories
All inventories are in good condition and saleable save to the extent
provided for in the Accounts.
7.4.5 Dividends etc.
No dividend or other distribution has been or will be declared or paid
by the GenoVision.
7.4.6 Other liabilities
Other than GenoVision's obligation to debt finance Particle Solutions
AS with up to NOK 8.4 million, of which NOK 2,345,000 has been paid as
of 21 May 2002, there are no liabilities under any financial guarantee
or any liabilities other than normal warranty claims in respect of
products manufactured or sold or services or work performed by
GenoVision for which adequate and appropriate reserves have been
provided in the Accounts. No claims have been filed or threatened in
connection or with any matter related to GenoVision's business and
operations, be it from any governmental authority, customers,
suppliers, distributors, agents or any other party with GenoVision or
any of its subsidiaries may have a contractual or non-contractual
relationship.
7.5 No litigation or undisclosed liabilities
7.5.1 No undisclosed liabilities
There are no liabilities of GenoVision or any of its subsidiaries,
whether accrued, contingent, absolute, determined, determinable or
otherwise, and there is no existing condition, situation or
circumstances which could reasonably be expected to result in such a
liability, other than:
(i) liabilities disclosed or provided for in the Accounts;
(ii) liabilities incurred in the ordinary course of business
consistent with past practice since the incorporation, which
in the aggregate are not material to the business and/or
operation of GenoVision or any of its subsidiaries; and
(iii) liabilities explicitly excluded in other representations and
warranties in this Clause 7.
17/26
Neither GenoVision nor any of its subsidiaries has extended any
warranties outside what is usual in the type of business run by the
relevant company.
7.5.2 Litigation
There are no claims, actions, suits, litigation or proceedings pending,
expected or threatened against or affecting GenoVision or any of its
subsidiaries or any of its properties or other assets before any court,
arbitrator or any administrative body or governmental authority, nor is
there any qualified basis for any such claim, action, suit, litigation
or proceeding, except as follows from Exhibit 13.
7.6 Intellectual Property
7.6.1 Exhibit 10 contains a complete and accurate list of all patents,
registered trademarks and registered designs, and any other
intellectual property rights owned, used or licensed by GenoVision as
licensee or licensor (collectively, the "Intellectual Property
Assets").
7.6.2 To the best of GenoVision's and the Sellers' knowledge, GenoVision is
not infringing on other intellectual property rights of third parties,
and have not been informed by any party that there is a threat that
they are infringing on any such intellectual property rights. To the
best of GenoVision's and the Sellers' knowledge, GenoVision's intended
business prospects will not infringe on other intellectual property
rights of third parties, and GenoVision's and the Sellers have not been
informed by any party that there is a threat that they will infringe on
any such intellectual property rights.
7.6.3 Except where otherwise indicated in Exhibit 10, GenoVision is the owner
of all right, title and interest in and to all intangible assets and
each of the Intellectual Property Assets within (where applicable) its
registered trademark classification in the relevant country, free and
clear of all liens and encumbrances and other adverse claims and has
the right to use all of the Intellectual Property Assets without
payments to a third party.
7.6.4 The right of GenoVision to own, use or license the Intellectual
Property Assets has not been infringed by any third party and no such
infringement is threatened, nor will such rights be affected by the
transfer of the shares to QIAGEN, except as follows from Exhibit 10,
however GenoVision shall have ensured the transfer of such Intellectual
Property Assets in Exhibit 10 prior to the Closing Date. Neither the
use of any Intellectual Property Asset nor the operations of any of
such infringe, nor are they likely to infringe, any rights held by any
third party. No claims have been made or threatened by any third party
alleging infringement and there is no qualified basis for such claim.
7.6.5 No Intellectual Property Asset is subject to any outstanding order,
judgement, decree, stipulation or agreement restricting the use thereof
by GenoVision or restricting the licensing thereof by GenoVision to any
person. GenoVision has not entered into any agreement to indemnify any
other person against any charge of infringement of any patent,
trademark, service xxxx or copyright, except in license agreements
disclosed to QIAGEN and its advisers as part of the due diligence
review and listed in Exhibit 10.
18/26
7.6.6 GenoVision has taken all reasonable steps to protect and preserve its
Intellectual Property Assets and to secure its ownership thereof,
including, but not limited to, entering into appropriate agreements
with all of its employees and contractors relating to the protection of
confidential information and the assignment of intellectual property to
GenoVision. Except under confidentiality obligations, there has been no
material disclosure by GenoVision of GenoVision's confidential
information or trade secrets.
7.7 Insurance
7.7.1 GenoVision is adequately insured against accidents, damage, injury,
third party loss (including without limitation, product liability),
loss of profits and any other risk normally insured against by a person
operating the types of business operated by the GenoVision and its
subsidiaries, and such insurance will remain in force at least up to
and including one month after the Closing Date, as set out in Exhibit
14.
7.7.2 The insurance policies covering GenoVision and its subsidiaries as
presently in effect, shall following the Closing continue to cover any
and all incidents or matters, liabilities or other exposures as shall
fall within the scope of their coverage to the extent it covers the
period after Closing for the benefit of GenoVision and its
subsidiaries.
7.8 Taxes
7.8.1 Tax returns
All tax returns that are required to be filed by each GenoVision and
its subsidiaries have been filed on time, and are true, correct, and
complete in all respects.
7.8.2 Compliance with tax rules
GenoVision and its subsidiaries have complied in all respects with all
their obligations relating to taxes imposed on it by the applicable
laws and has timely paid or made provision for the payment of, as the
Accounts reflects, all taxes that have or may become due pursuant to
all tax returns properly filed or as shall otherwise have been
incurred, or as may be levied by any assessment received by GenoVision
and its subsidiaries. There is no tax-related litigation, proceedings
or claims pending or threatened against GenoVision, except for a
possible claim relating to a loan granted by GenoVision to GenoVision
VertriebsgesmbH which may result in an excess payment of maximum EUR
10,000 including penalty charges
7.8.3 Withholding taxes
All taxes that GenoVision and its subsidiaries are required by
applicable statutes, rules or regulations to withhold or collect have
been duly withheld or collected and, to the extent required, have been
paid to the proper governmental authority or other person.
7.8.4 No tax liability for Accepting Shareholders or Accepting Subscription
Right Holders Neither QIAGEN, including any of its subsidiaries,
GenoVision nor any of its subsidiaries will have any remaining
obligations to the any of the Accepting Shareholders or Accepting
Subscription Right Holders or any affiliate to Accepting Shareholders
or Accepting Subscription Right Holders in respect of taxes, including,
19/26
without limitation to, any obligation to pay any amount to any person
arising from any tax reassessment.
7.8.5 Correctness of accounts
The tax matters set forth in the Accounts are true and complete.
7.9 Employees; Employee Benefits; Pensions
7.9.1 Key employees
Exhibit 8 contains a list of the names and the total compensation of
each member of the management and key employees, including key
scientists, of GenoVision and its subsidiaries.
7.9.2 Employment contracts
GenoVision and its subsidiaries have proper and standardised employment
contracts in effect for all employees.
GenoVision as xxxxx as its subsidiaries have in any material respect
complied with all relevant employment laws.
7.9.3 Employee plans
None of the key employees or any of the directors are entitled to any
other benefit than those set out in Exhibits 8 and 15.
None of the employee plans will be amended or discontinued prior to the
Closing Date without the prior written consent of QIAGEN.
7.9.4 No termination or severance payment
Neither the signing of this Agreement nor the Transaction will not
trigger any termination or severance payment obligations or other
liabilities to any employee on neither GenoVision nor any of its
subsidiaries.
7.10 Seller's Disclosure
No representation or warranty by the Sellers in this Agreement, and no
certificate or statement furnished or to be furnished to QIAGEN
pursuant to this Agreement or in any exhibit, contains or shall contain
any untrue statement of fact material to the Transaction, or omit any
fact material to the Transaction, rendering such statement misleading
in any respect relevant to the Transaction except as shall be
immaterial.
7.11 No violation or conflict
Neither the entry into this Agreement nor the consummation of the
Transaction will result in any
(i) violation of any legally binding provisions;
(ii) breach of, or constitute a default under, nor give rise to a
right of termination or acceleration of, any instrument or
agreement; or
20/26
(iii) violation of any material or relevant permit concession or
grants held by GenoVision or any Seller.
7.12 Consents and approvals
No application or notice to, filing with, or consent, authorization or
approval of, or license, permit, registration, declaration or exemption
by any third party or any governmental authority is required of
GenoVision or any Seller in connection with the execution and
performance of this Agreement, which are to be obtained prior to
Closing Date or as expressly set forth in this Agreement, except for
mandatory notice to the Ministry of Trade and Industry. No shareholder
agreement or other instrument is in force, restricting the sale of the
Shares or making it subject to any approval, other act or similar
caveats. The shareholders' agreement between KS TeknoInvest VI, NeoMed
Innovation ASA, Xxxx Xxxxxx, Xxxxx, Xxxxxx and Xxxxxx Wigst0l shall
become null and void with effect from the date of this Agreement, by
such persons signatures on this Agreement.
7.13 Material contracts and customers
7.13.1 Exhibit 9 contains a list of the material contracts of GenoVision; all
of which are validly entered into and in full force and effect. Neither
GenoVision nor any of the parties to such contracts are in default of
such contracts.
7.13.2 Exhibit 16 contains a list of the ten largest customers and ten largest
suppliers of GenoVision in 2001 and 2002. GenoVision's relations with
such customers and suppliers are good, and GenoVision is not aware of
any customers or suppliers considering to terminate their relationship
with GenoVision after the Closing.
7.14 Particle Solutions AS
GenoVision has no undisclosed obligations or liabilities to Particles
Solutions AS, such as an obligation to purchase products, except as set
out in Clause 7.4.6.
7.15 Own business decision
Each of the Sellers and GenoVision hereby confirm that they enter into
this Agreement and the basis of their own business decision, and that
the acquisition of shares in QIAGEN is based on publicly available
information only, including xxx.xxxxxx.xxx or QIAGEN's filings with the
United States SEC.
7.16 Lock-up
The Sellers undertake not to sell or otherwise dispose of any of the
QIAGEN common shares received under this Agreement for a period of six
months from the Closing Date.
21/26
Each certificate representing QIAGEN common shares being issued under
this agreement shall bear a legend, prominently stamped or printed
thereon, reading substantially as follows:
"The securities are subject to certain restrictions on
transfer specified in the Agreement for the Acquisition of
Shares and Subscription Rights of GenoVision AS by QIAGEN N.V.
dated as of May ___, 2002, a copy of which may be obtained
from QIAGEN N.V. by written request."
QIAGEN agrees to remove such legend reasonably promptly upon request of
the registered holder thereof following _____, 2002. Until _____, 2002,
QIAGEN, at its discretion, may cause stop transfer orders to be placed
with its transfer agent with respect to certificates for QIAGEN common
shares issued under this Agreement.
7.17 Information
GenoVision and the Sellers hereby represent and warrant that all
material relevant information, whether public or non-public, pertaining
to the Transaction has been offered to QIAGEN in connection with the
due diligence process performed by QIAGEN and its advisors as well as
in connection with the entering into of this Agreement, and that all
information given in any material respect is accurate and truthful and
in conformity with the facts.
7.18 Residence
Each Seller represents and agrees that it is established, domiciled or
has its residence outside the Netherlands.
8. BREACH OF REPRESENTATIONS
8.1 To the extent that QIAGEN decides to make a claim on the basis of
breach of the representations and warranties stated herein or on the
basis of breach of undertakings made by Sellers or GenoVision, such
claim shall be made in writing to the Escrow Agent stating the reasons
for the claim and the size of the claim. Any claim must be made within
the 12 Month Period.
8.2 Any amount payable as result of a claim as set out in Clause 8.1 shall
be made with, and maximized to the value of, the Escrowed Shares. The
Escrowed Shares shall, however, not be the sole source of
indemnification for any claims relating to the 2002 Convertible Loan or
arising from the fraud or gross negligence of GenoVision or any Seller.
8.3 The procedures for accepting, contesting and settling a claim shall be
further described in the Escrow Agreement.
8.4 No Accepting Shareholder or Accepting Conversion Right Holders can seek
recourse against GenoVision for any reduction in the Initial Purchase
Price or Additional Consideration as a result of any claim relating to
breach of undertakings, representations and warranties stated in this
Agreement, or against GenoVision or
22/26
QIAGEN related to matters in connection with the issuance and
conversion of the 2002 Convertible Loan.
9. WAIVER
QIAGEN may in its sole discretion chose to waive, in whole or in part,
any of the preconditions of QIAGEN for Closing, or any of the
undertakings or representations and warranties of Sellers and
GenoVision.
10. AUTHORISATIONS
10.1 By signing this Agreement, the Sellers and QIAGEN appoint Den norske
Bank to act as agent with respect to the transfer of Shares against
QIAGEN common shares (except the Escrowed Shares), in accordance with
the settlement terms in this Agreement, including blocking the Shares
on each of the Sellers' VPS account. All Sellers undertake to complete
and sign the acceptance form under the Offer, which will regulate the
settlement in detail, within the expiry of the Offer Acceptance Period.
10.2 By signing this Agreement, QIAGEN instructs Den norske Bank to block
50% of the Shares on QIAGEN's VPS accountuntil Den norske Bank has
received QIAGEN common shares on behalf of the Accepting Shareholders
and Accepting Subscription Right Holders in accordance with Clause
3.2.3 (less any Escrowed Shares) or otherwise been instructed by
Xxxxxxx xx Xxxxxx to unblock the Shares.
10.3 By signing this Agreement, the Sellers appoint Den norske Bank to act
as their custodian with respect to QIAGEN common stock share
certificates to be received under this Agreement, including receiving
any dividends or other distributions on behalf of the Sellers, for
their own expense. Den norske Bank shall ensure that all Sellers comply
with the lock-up obligations as set out in Clause 7.16. Each of the
Sellers mayat any time following Closing require their respective
QIAGEN common stock share certificates delivered back from Den norske
Bank or transferred to another other custodian appointed by the
relevant Seller.
11. GOVERNING LAW; VENUE
This Agreement shall be governed by the laws of Norway. Any dispute,
controversy or claim arising out of or relating to this agreement or
the breach, termination or invalidity thereof shall be settled by
arbitration pursuant to the Norwegian Act on Civil Procedure, chapter
32. The arbitration tribunal shall consist of three arbitrators, one of
whom is appointed by QIAGEN and one of whom is appointed by the
majority of the Accepting Shareholders and Accepting Subscription Right
Holders (based on the pro-rata portion of the Shares and Subscription
Rights). The arbitrators so appointed shall joint appoint the third
arbitrator to act as chairman. The arbitration shall be held in Oslo,
and the arbitration proceedings may be conducted in the English
language if requested by one of the parties.
23/26
12. TERMINATION
12.1 This Agreement may be terminated by QIAGEN if by the end of the Offer
Acceptance Period has not received irrevocable acceptances from
Shareholders and holders of Subscription Rights representing more than
90% of the Shares on a fully diluted basis.
12.2 This Agreement may be terminated by any party upon material breach of
the obligations of the other party under this Agreement, or if Closing
does not occur within 31 July 2002 due to breach of any of the
conditions to Closing, as set out in Clause 4, by the other party.
13. NOTICES
All notices, requests or other communication, which shall be in the
English language, shall be deemed, duly given or made when delivered by
mail, e-mail, facsimile or courier to the party in question as follows:
If to QIAGEN: QIAGEN N.V.
Att: Managing Board
Xxxxxxxxxxx 00
0000 XX Xxxxx
Xxx Xxxxxxxxxxx
If to GenoVision: Xxxxxxxxxxx 00
X-0000 Xxxx
Xxxxxx
If to Sellers: Xxxxxxx xx Xxxxxx
Att: Cecilie Ask
X.X. Xxx. 0000 Xxxx
X-0000 Xxxx
Xxxxxx
******
24/26
This Agreement has been signed in two - 2 - copies, of which QIAGEN and one of
the Sellers, as appointed by the Sellers, keep one each.
In witness hereof the parties hereto have duly executed this Agreement as of the
day and year stated below.
Hilden, 24 May 2002 Oslo, 24 May 2002
Signed for and on behalf of Signed for and on behalf of
QIAGEN N.V. GenoVision AS
/s/ Peer Xxxxxx /s/ 0yvind Xxxxxxx Xxxxxx
---------------------- -------------------------
Peer Xxxxxx 0yvind Xxxxxxx Xxxxxx
Chairman
/s/ Xxxx Xxxxx
---------------------
Xxxx Xxxxx
Board member
Oslo, 24 May 2002
KS TeknoInvest VI Fritas A/S
/s/ Andreas Mollatt
---------------------- ----------------------
Andreas Mollatt
Hoegh Invest AS NeoMed Innovation ASA
/s/ Xxxx Xxxxx
---------------------- ----------------------
Xxxx Xxxxx (b.a.)
Pedica Invest AS AS Xxxx
/s/ Xxxxxxx Jarlsby /s/ Nicolai Jarlsby
-------------------------- --------------------------
Nicolai Jarlsby (b.a.) Nicolai Jarlsby (b.a.)
25/26
Storebrand Svensk-Norsk
Livsforsikring AS Industrifond
---------------------- ----------------------
Xxxx Xxxxx (b.a.) Kjetil Xxxxxxx
Xxxxxx Waelgaard Xxxxx Xxxxxx
---------------------- ----------------------
Marten Wigstol (b.a.) Xxxxx Xxxxxx
Olle Olerup Marten Wigstol
---------------------- ----------------------
Marten Wigstol (b.a.) Marten Wigstol
Xxxx Xxxxxx Dino AS
---------------------- ----------------------
Marten Wigstol (b.a.) Xxxx Xxxxx
26/26
List of exhibits:
----------------
Exhibit 1: All outstanding Subscription Rights and Holders of Subscription
Rights, including the maximum dilution effect
Exhibit 2: Complete list of lenders under the 2002 Convertible Loan (including
calculation of market value of Subscription Rights)
Exhibit 3: Overview of Shares and Subscription Rights regulated by the
Agreement
Exhibit 4: List of products that as of the date of this Agreement exist in
GenoVision's product portfolio
Exhibit 5: List of products that as of the date of this Agreement are part of
GenoVision's product development portfolio
Exhibit 6: Additional Consideration to be paid if Qualifying Revenues are less
than USD 6.2 million but exceed 5.5 million.
Exhibit 7: Escrow Agreement
Exhibit 8: List of the names and the total compensation of each member of the
management and key employees, including key scientists, of
GenoVision and its subsidiaries
Exhibit 9: List of material contracts
Exhibit 10: List of Intellectual Property Assets
Exhibit 11: Description of GenoVision's arrangements for transfer of inventions
from its employees, as well as a list of inventions that have been
transferred to GenoVision
Exhibit 12: Annual Report 2001 for GenoVision
Exhibit 13: List of existing or possible legal disputes etc.
Exhibit 14: Insurance
Exhibit 15: Employee plans
Exhibit 16: List of the ten largest customers and ten largest suppliers of
GenoVision in 2001 and 2002
