Exhibit 4.2
PE CORPORATION/CELERA GENOMICS GROUP
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of June 30, 1999 by and between PE
Corporation, a Delaware corporation (the "Company"), and The Institute for
Genomic Research, a Maryland non-stock corporation with tax-exempt status
under Section 501(c)(3) of the Internal Revenue Code ("TIGR").
WHEREAS, TIGR and The Xxxxxx-Xxxxx Corporation ("Xxxxxx-Xxxxx"), a
wholly-owned subsidiary of the Company, entered into a letter of intent dated
as of May 8, 1998 with respect to the formation of a new genomics
corporation; and
WHEREAS, as contemplated by such letter of intent, TIGR has agreed not
to compete with the Company and Xxxxxx-Xxxxx in certain areas as described
below; and
WHEREAS, prior to the date hereof, the Company has consummated the
recapitalization contemplated by its Registration Statement on Form S-4.
1. Grant of Option. The Company hereby grants to TIGR an option (the
"Option") to purchase 1,292,350 shares (the "Shares") of PE Corporation -
Celera Genomics Group Common Stock, par value $.01 per share (the "Common
Stock").
2. Exercise Price of Option. The exercise price per share of the
Option is $12.84.
3. Expiration Date of Option. The Option will expire as of 12:00 p.m.
midnight (New York time) on June 30, 2009 (the "Expiration Date").
4. Exercise. The Option is 100% exercisable on the date of the grant.
5. Exercise of Option. The Option may be exercised by TIGR by giving
written notice in the form specified by the Company to the Corporate
Secretary at the principal office of the Company specifying the number of
Shares to be purchased. However, the Option may not be exercised as to fewer
than 5,000 Shares, or the remaining Shares covered by the Option if fewer
than 5,000, at any one time, and the Option may not be exercised with respect
to a fractional Share. The purchase price of the Shares as to which the
Option is exercised must be paid in full at the time of exercise in
immediately available funds.
6. Adjustments. In the event of changes in the outstanding Common
Stock by reason of stock dividends, stock splits, recapitalizations,
combinations or exchanges of shares, corporate separations or divisions
(including, but not limited to, split-ups, split-offs, or spin-offs),
reorganizations (including, but not limited to, mergers or consolidations),
liquidations, or other similar events, the number of Shares subject to the
Option and the exercise price shall be proportionately adjusted in such
manner as the Company reasonably determines.
7. Right of First Refusal. (a) If TIGR receives a bona fide offer (an
"Offer") to purchase all or any portion of the Shares owned by TIGR, then
TIGR shall cause the Offer to be reduced to writing and shall provide a
written notice (the "Section 7(a) Notice") of such Offer to the Company. The
Section 7(a) Notice shall also contain an irrevocable offer to sell such
Shares to the Company at a price equal to the price contained in, and upon
substantially the same terms and conditions as the terms and conditions
contained in, the Offer and shall be accompanied by a true and complete copy
of the Offer. At any time within 20 calendar days after the date of the
receipt by the Company of the Section 7(a) Notice, the Company shall have the
right to exercise its option to purchase such Shares at such price and on
substantially such terms as set forth in such notice. The Company shall
exercise its right by delivery to TIGR of notice of exercise along with
payment for such Shares by certified check or wire transfer within such 20
day period. If the Company does not exercise such right during such 20 day
period, TIGR shall be free for a period of 90 calendar days from the end of
such 20 day period (or such earlier date as the Company notifies TIGR of its
intent not to exercise its option) to sell such Shares to the person making
the Offer on terms which are no more favorable in any material respect to
such person than the terms and conditions set forth in the Offer.
(b) Notwithstanding the provisions of Section 7(a) above, if TIGR
desires to sell all or any portion of the Shares owned by TIGR on the open
market through a broker or dealer, then TIGR shall provide a written notice
(the "Section 7(b) Notice") of such proposed sale to the Company. The
Section 7(b) Notice shall specify the number of such Shares proposed to be
sold (the "Offered Shares") and shall also contain an irrevocable offer to
sell the Offered Shares to the Company within a specified price range (the
"TIGR Price Range").
At any time within 20 calendar days after the date of the receipt by the
Company of the Section 7(b) Notice (the "Exercise Period") the Company shall:
(i) exercise its right to purchase all or a portion of the Offered
Shares at the highest price per share within the TIGR Price Range by
delivery to TIGR of notice of exercise along with payment for such
Shares by certified check or wire transfer against delivery of such
Shares; provided, however, that if the Company does not exercise its
right with respect to all of the Offered Shares, TIGR shall be free for
-2-
a period of 45 calendar days from the date of receipt by TIGR of such
Company notice (the "Section 7(b)(i) Sale Period") to sell the remaining
Offered Shares on the open market through a broker or dealer at a price
not less than the lowest price per share included in the TIGR Price
Range;
(ii) notify TIGR of its willingness to purchase all or a portion
of the Offered Shares at a price per share within the TIGR Price Range
(the "Company Price"), in which case TIGR shall either (x) sell to the
Company all or a portion of such number of Offered Shares that the
Company is willing to purchase at the Company Price, or (y) for a period
of 45 calendar days from the date of receipt by TIGR of such Company
notice (the "Section 7(b)(ii) Sale Period"), sell all or a portion of
the Offered Shares on the open market through a broker or dealer at a
price per share greater than the Company Price; or
(iii) notify TIGR (it being understood that the failure by the
Company to give such notice during the Exercise Period shall be deemed
notice) that it does not intend to exercise its right to purchase the
Offered Shares, in which case TIGR shall be free for a period of 45
calendar days from the end of the Exercise Period (or such earlier date
as the Company notifies TIGR of its intent not to exercise its right)
(the "Section 7(b)(iii) Sale Period") to sell the Offered Shares on the
open market through a broker or dealer at a price not less than the
lowest price per share included in the TIGR Price Range.
In the event that, following receipt of notice from the Company under
the foregoing clauses, TIGR is unable to sell all or a portion of the Offered
Shares not purchased by the Company on the open market through a broker or
dealer (i) at the lowest price per share included in the TIGR Price Range (in
the case of Section 7(b)(i) or 7(b)(iii)) or (ii) at a price per share
greater than the Company Price (in the case of Section 7(b)(ii)) because of a
decline in the market price of a share of Common Stock, TIGR may provide
written notice (the "Revised Section 7(b) Notice") to the Company of its
intent to sell all or a portion of such Shares at a price per share (the
"Revised Section 7(b) Price") less than (i) the lowest price per share
included in the TIGR Price Range (in the case of Section 7(b)(i) or
7(b)(iii)) or (ii) the Company Price (in the case of Section 7(b)(ii)).
The Revised Section 7(b) Notice shall contain an irrevocable offer to
sell a specified number of Shares (which number may not be more than the
number of Offered Shares not purchased by the Company) to the Company at the
Revised Section 7(b) Price. At any time within 5 Trading Days (as defined in
the Company's certificate of incorporation) after the date of receipt by the
Company of the Revised Section 7(b) Notice the Company shall have the right
to exercise its option to purchase all or a portion of such Shares at the
-3-
Revised Section 7(b) Price. The Company shall exercise its right by delivery
to TIGR of notice of exercise along with payment for such Shares by certified
check or wire transfer within such 5 day period. If the Company does not
exercise such right during such 5 day period, TIGR shall be free for the
balance of the applicable Sale Period to sell any Shares not purchased by the
Company on the open market through a broker or dealer at a price not less
than the Revised Section 7(b) Price.
(c) The Company may assign its right to purchase Shares under this
Section 7 to any affiliate (as such term is defined under Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended) of the Company, provided such affiliate agrees to be bound by the
terms of this Section 7.
(d) The provisions of this Section 7 shall not apply to the sale by
TIGR of up to and including 10,000 Shares in any 90-day period.
8. Non-Compete. For a period of one year from the date hereof, TIGR
will not enter into an agreement with any commercial entity (other than the
Company or Xxxxxx-Xxxxx) to compete with the Company's or Perkin-Elmer's
efforts to develop, market, and sell the following: (a) database products
containing human genomic information; (b) services for human gene discovery;
(c) services for human gene expression analyses; or (d) services for human
polymorphism analysis. TIGR reserves the right consistent with its status as
a tax-exempt research institute pursuant to Section 501(c)(3) of the Internal
Revenue Code to conduct non-commercial genomics research pursuant to federal
government and private foundation funding, including but not limited to
research relating to humans and other animals, plants, parasites, and
microbes; furthermore, TIGR shall have the right to enter into agreements
with commercial entities except to the extent that they violate the
prohibitions set forth above. Notwithstanding anything to the contrary that
may be expressed or implied by the foregoing, the Company and Xxxxxx-Xxxxx
hereby acknowledge and agree that TIGR's agreements with Corning Incorporated
(encompassing TIGR's license to Corning of its human cDNA clone set for the
production of commercial microarrays and of its human gene index database,
including the continued expansion of such clone set and database, as well as
allowing Corning's microarray customers to access portions of such database
corresponding to the microarray products purchased by them) shall not be
deemed to violate these non-compete provisions.
9. Transferability. The Option may not be transferred, assigned,
hypothecated, pledged, or otherwise given to another; provided, however, that
TIGR may transfer to Option to another non-profit organization tax exempt
under section 501(c)(3) of the Internal Revenue Code that is the successor to
all or substantially all of the assets of TIGR.
-4-
10. Share Registration. The Company, at its sole expense, will
register the Shares under the Securities Act of 1933, as amended, promptly
after the date hereof.
11. Compliance with Law. No Shares will be issued upon the exercise of
the Option unless counsel for the Company is satisfied that such issuance
will be in compliance with all applicable laws.
12. Notices. All notices, requests, demands, and other communications
required or permitted under this Agreement shall be in writing and shall be
delivered personally or sent by facsimile or by a nationally recognized
overnight courier, and shall be deemed to have been duly given when so
delivered personally or sent by facsimile, with receipt confirmed, or one
business day after the date of deposit with such nationally recognized
overnight courier. All such notices, requests, demands, and other
communications shall be addressed to the respective parties at the addresses
set forth below, or to such other address as either party may designate to
the other in accordance with this Section 12.
If to the Company or Xxxxxx-Xxxxx, to:
PE Corporation
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Secretary
Fax: (000) 000-0000
If to TIGR, to:
The Institute for Genomic Research
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President
Fax: (000) 000-0000
13. Amendment. This Agreement may not be amended without the written
consent of the Company and TIGR.
14. Governing Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of Delaware.
IN WITNESS WHEREOF, this agreement has been duly executed by the
undersigned as of the day and year first written above.
-5-
PE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
THE INSTITUTE FOR GENOMIC
RESEARCH
By: /s/ Xxxxxx X. Xxxxxx
______________________________________
Name: Xxxxxx X. Xxxxxx
Title: President and Director
Accepted and agreed as to Section 8 only:
THE XXXXXX-XXXXX CORPORATION
By: /s/Xxxxxx X. Xxxxxx
______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
-6-
