EXHIBIT 10.30
AGREEMENT OF MERGER
This AGREEMENT OF MERGER (the "Agreement") is made and entered into as
of October 23, 1996 between LYNX THERAPEUTICS INC., a Delaware corporation
("Lynx") and SPECTRAGEN, INC., a Delaware corporation ("Spectragen").
RECITALS
A. The Board of Directors of Spectragen and Lynx believe it is in the
best interests of each company and their respective stockholders that Spectragen
and Lynx combine into a single company through the Delaware statutory merger of
Spectragen with and into Lynx (the "Merger") and, in furtherance thereof, have
approved the Merger.
B. Pursuant to the Merger, among other things, the outstanding shares
of Common Stock of Spectragen ("Spectragen Common Stock"), other than those held
by Lynx, shall be converted into shares of Common Stock of Lynx ("Lynx Common
Stock") as determined herein.
C. The parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the covenants promises, and
representations set forth herein, and for other good and valuable consideration
the parties agree as follows:
1. THE MERGER
1.1 Effective Time. As promptly as is reasonably practicable after the
execution of this Agreement, the parties hereto shall cause the Merger to be
consummated by filing this Agreement with the Secretary of State of Delaware, in
such form as required by, and executed in accordance with the relevant
provisions of, Delaware Law (the time of such filing being the "Effective
Time"). The closing of the transactions contemplated hereby (the "Closing")
shall take place at the offices of Cooley Godward LLP, Five Palo Alto Square,
3000 El Camino Real, Palo Alto, California, on the date of the Effective Time
(the "Closing Date").
1.2 The Merger. At the Effective Time Spectragen shall be merged with
and into Lynx, the separate corporate existence of Spectragen shall cease and
Lynx shall continue as the surviving corporation. Lynx as the surviving
corporation after the Merger is hereinafter sometimes referred to as the
"Surviving Corporation."
1.3 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided under Delaware Law. Without limiting the generality
of the foregoing, and subject thereto, at the Effective Time all the property,
rights, privileges, powers and franchises of Spectragen and Lynx shall vest in
the Surviving Corporation, and all debts, liabilities and duties of Spectragen
and Lynx shall become the debts, liabilities and duties of the Surviving
Corporation.
1.4 Articles of Incorporation; Bylaws.
(a) Unless otherwise determined by Lynx prior to the Effective
Time, at the Effective Time the Certificate of Incorporation of Lynx, as in
effect immediately prior to the Effective Time, shall be the Certificate of
Incorporation of the Surviving Corporation until thereafter amended as provided
by law and such Articles of Incorporation.
(b) The Bylaws of Lynx, as in effect immediately prior to the
Effective Time, shall be the Bylaws of the Surviving Corporation until
thereafter amended.
1.5 Directors and Officers. The directors of Lynx immediately prior to
the Effective time shall be the initial directors of the Surviving Corporation,
each to hold office in accordance with the Articles of Incorporation and Bylaws
of the Surviving Corporation, and the officers of Lynx immediately prior to the
Effective Time shall be the initial officers of the Surviving Corporation, in
each case until their respective successors are duly elected or appointed and
qualified.
1.6 Manner of Converting Stock. At the Effective Time, by virtue of the
Merger and without any action on the part of Lynx, Spectragen, or the holder of
any of the following securities:
(a) Conversion of Spectragen Common Stock. Each share of
common stock, par value $.001 per share, of Spectragen (the "Spectragen Common
Stock") issued and outstanding immediately prior to the Effective Time (other
than any shares of Spectragen Common Stock to be cancelled pursuant to Section
1.6(b) and any Dissenting Shares (as defined and to the extent provided in
Section 1.7(a)) will be cancelled and extinguished and be converted
automatically into the right to receive 1.3 shares of Lynx Common Stock.
(b) Cancellation of Lynx-Owned and Spectragen-Owned Stock.
Each share of Spectragen Common and/or Preferred Stock owned by Lynx or
Spectragen immediately prior to the Effective Time shall be cancelled and
extinguished without any conversion thereof.
(c) Stock Options. At the Effective Time, all options to
purchase Spectragen Common Stock then outstanding under the Amended and Restated
1995 Spectragen Stock
2.
Option Plan (the "Spectragen Stock Option Plan") shall be assumed by Lynx in
accordance with Section 2.1.
(d) Fractional Shares. No fraction of a share of Lynx Common
Stock will be issued, but in lieu thereof each holder of shares of Spectragen
Stock who would otherwise be entitled to a fraction of a share of Lynx Common
Stock (after aggregating all fractional shares of Lynx Common Stock to be
received by such holder) shall be entitled to receive from Lynx a whole share of
Lynx Common Stock.
1.7 Dissenting Shares.
(a) Notwithstanding any provision of this Agreement to the
contrary, any shares of capital stock of Spectragen held by a holder who has
demanded and perfected appraisal rights for such shares in accordance with
Section 262 of the Delaware General Corporation Law and who, as of the Effective
Time, has not effectively withdrawn such appraisal rights ("Dissenting Shares"),
shall not be converted into or represent a right to receive Lynx Common Stock
pursuant to Section 1.6, but the holder thereof shall only be entitled to such
rights as are granted by Delaware Law.
(b) Notwithstanding the provisions of subsection (a), if any
holder of shares of capital stock of Spectragen who demands appraisal of such
shares under Delaware Law shall effectively withdraw the right to appraisal,
then, as of the later of the Effective Time and the occurrence of such event,
such holder's shares shall automatically be converted into and represent only
the right to receive Lynx Common Stock, without interest thereon, upon surrender
of the certificate representing such shares.
(c) Spectragen shall give Lynx (i) prompt notice of any
written demands for appraisal of any shares of capital stock of Spectragen,
withdrawals of such demands, and any other instruments served pursuant to
Delaware Law and received by Spectragen and (ii) the opportunity to participate
in all negotiations and proceedings which take place prior to the Effective Time
with respect to demands for appraisal under Delaware Law. Spectragen shall not,
except with the prior written consent of Lynx, voluntarily make any payment
before the Effective Time with respect to any demands for appraisal of capital
stock of Spectragen or offer to settle or settle any such demands.
1.8 Surrender of Certificates.
(a) Exchange of Certificates. As soon as is practicable after
the Effective Time, Lynx shall cause its transfer agent to prepare certificates
representing the shares of Lynx Common Stock issuable pursuant to Section 1.6 in
exchange for outstanding shares of Spectragen common stock (the "New Lynx
Certificates"). All Certificates, which prior to the Effective Time represented
shares of Spectragen Common Stock and were held in escrow
pursuant to the Stockholders Agreement (the "Spectragen Certificates"), shall be
transferred from Xxxxxx Godward LLP ("the Escrow Agent") for completion of the
exchange. The transfer agent shall then issue the appropriate New Lynx
Certificates. The Spectragen Certificates shall then be cancelled. The transfer
agent shall then redeliver the New Lynx Certificates to the Escrow Agent for
distribution according to the terms set forth in the Stockholders Agreement and
the applicable stock purchase agreement.
(b) Distributions With Respect to Unexchanged Shares. No
dividends or other distributions declared or made after the Effective Time with
respect to Lynx Common Stock with a record date after the Effective time will be
paid to the holder of any unsurrendered Certificate with respect to the shares
of Lynx Common Stock represented thereby until the holder of record of such New
Lynx Certificate shall surrender such Certificate. Subject to applicable law,
following surrender of any such New Lynx Certificate, there shall be paid to the
record holder of the certificates representing whole shares of Lynx Common Stock
issued in exchange therefor, without interest, at the time of such surrender,
the amount of dividends or other distributions with a record date after the
Effective time theretofore paid with respect to such whole shares of Lynx Common
Stock.
(c) Transfers of Ownership. If any certificate for shares of
Lynx Common Stock is to be issued in a name other than that in which the
certificate surrendered in exchange therefor is registered, it will be a
condition of the issuance thereof that the certificate so surrendered will be
properly endorsed and otherwise in proper form for transfer and that the person
requesting such exchange will have paid to Lynx or any agent designated by it
any transfer or other taxes required by reason of the issuance of a certificate
for shares of Lynx Common Stock in any name other than that of the registered
holder of the certificate surrendered, or established to the satisfaction of
Lynx or any agent designated by it that such tax has been paid or is not
payable.
(d) No Liability. Notwithstanding anything to the contrary in
this Section 1.8, none of the Escrow Agent, the Surviving Corporation or any
party hereto shall be liable to a holder of shares of Lynx Common Stock or
Spectragen Common Stock for any amount properly paid to a public official
pursuant to any applicable abandoned property, escheat or similar law.
1.9 No Further Ownership Rights in Spectragen Common Stock. All shares
of Lynx Common Stock issued upon the surrender for exchange of shares of
Spectragen Common Stock in accordance with the terms hereof (including any cash
paid in respect thereof) shall be deemed to have been issued in full
satisfaction of all rights pertaining to such shares of Spectragen Common Stock,
and there shall be no further registration of transfers on the records of the
Surviving Corporation of shares of Spectragen Common Stock which were
outstanding immediately prior to the Effective Time. If, after the Effective
Time, Certificates are
presented to the Surviving Corporation for any reason, they shall be cancelled
and exchanged as provided in this Section 1.
1.10 Lost, Stolen or Destroyed Certificates. In the event any
certificates evidencing shares of Spectragen Common Stock shall have been lost,
stolen or destroyed, the Escrow Agent shall issue in exchange for such lost,
stolen or destroyed certificates, upon the making of an affidavit of that fact
by the holder thereof, such shares of Lynx Common Stock and cash for fractional
shares, if any, as may be required pursuant to Section 1.6; provided, however,
that Lynx may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificates to
deliver a bond in such sum as it may reasonably direct as indemnity against any
claim that may be made against Lynx or the Exchange Agent with respect to the
certificates alleged to have been lost, stolen or destroyed.
1.11 Tax Consequences and Accounting Treatment. It is intended by the
parties hereto that the Merger shall constitute a reorganization within the
meaning of Section 368 of the Internal Revenue Code of 1986, as amended.
1.12 Taking of Necessary Action; Further Action. If, at any time after
the Effective Time, any such further action is necessary or desirable to carry
out the purposes of this Agreement and to vest in Surviving Corporation with
full right, title and possession to all assets, property, rights, privileges,
powers, and Franchises of Spectragen, the Officers and Directors of Lynx and
Spectragen are fully authorized in the name of their respective corporations, to
take, and will take, all such lawful and necessary action.
2. STOCK OPTIONS.
2.1 Assumption of Spectragen Options by Lynx. At the Effective Time,
each outstanding option to purchase shares of Spectragen Common Stock (each a
"Spectragen Option") under the Spectragen Stock Option Plan, whether vested or
unvested, shall be, in connection with the Merger, assumed by Lynx. Each
Spectragen Option so assumed by Lynx under this Agreement shall continue to
have, and be subject to, the same terms and conditions set forth in the
Spectragen Stock Option Plan and as provided in the respective option agreements
immediately prior to the Effective Time, except that (i) such Spectragen Option
shall be exercisable only for that number of whole shares of Lynx Common Stock
equal to the product of the number of shares of Spectragen Common Stock that
were issuable upon exercise of such Spectragen Option immediately prior to the
Effective Time multiplied by 1.3, rounded up to the nearest whole number of
shares of Lynx Common Stock, and (ii) the per share exercise price for the
shares of Lynx Common Stock issuable upon exercise of such assumed Company
Option shall be equal the exercise price per share of Spectragen Common Stock at
which such Spectragen Option was exercisable immediately prior to the Effective
Time divided by 1.3, rounded up to the nearest whole cent, all in accordance
with the rules of
Section 424(a) of the Code, and the regulations promulgated thereunder, and such
rules shall apply even with respect to options that are not "incentive stock
options" (within the meaning of Section 424 of the Code).
2.2 Form S-8. Lynx will file a registration statement on Form S-8 for
the outstanding Spectragen Common Stock Options (that are eligible for
registration on Form S-8) within thirty (30) calendar days after the Closing.
3. CONDITIONS OF THE MERGER.
3.1 Conditions to Obligations of Each Party to Effect the Merger. The
respective obligations of each party to this Agreement to effect the Merger
shall be subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) Approvals. This Agreement and the Merger and other
transactions contemplated hereby shall have been approved and adopted by the
requisite vote of the stockholders of Spectragen and the Board of Directors of
Lynx.
(b) No Injunctions or Restraints; Illegality. No temporary
restraining order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction or other legal restraint or prohibition
preventing the consummation of the Merger shall be in effect, nor shall any
proceeding brought by an administrative agency or commission or other
governmental authority to instrumentality, domestic or foreign, seeking any of
the foregoing be pending; nor shall there be any action taken, or any statute,
rule, regulation or order enacted, entered, enforced or deemed applicable to the
Merger, which makes the consummation of the Merger illegal.
(c) Qualification for Exemption Under Regulation D. As of the
Effective Time, counsel for Lynx shall be satisfied that the Merger qualifies
for the terms of the exemption provided by Rule 505 of Regulation D promulgated
under the Securities Act of 1933, as amended.
4. TERMINATION, AMENDMENT AND WAIVER.
4.1 Termination. This Agreement may be terminated and the Merger
abandoned at any time prior to the Effective Time:
(a) by mutual consent of Lynx and Spectragen;
(b) by any party hereto if: (i) the Closing has not occurred
by December 31, 1996; (ii) there shall be a final nonappealable order of a
federal or state court in effect preventing consummation of the Merger; (iii)
there shall be any action taken, or any statute, rule, regulation or order
enacted, promulgated or issued or deemed applicable to the Merger by
any governmental entity which would make consummation of the Merger illegal; or
(iv) there shall be any action taken, or any statute, rule, regulation or order
enacted, promulgated or issued or deemed applicable to the Merger by any
governmental entity, which would render Lynx or Spectragen unable to consummate
the Merger, except for any waiting period provisions.
Where action is taken to terminate this Agreement pursuant to this
Section 4.1, it shall be sufficient for such action to be authorized by the
Board of Directors (as applicable) of the party taking such action.
4.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 4.1, this Agreement shall forthwith become void
and there shall be no liability or obligation on the part of Lynx or Spectragen
or their respective officers, directors or stockholders.
4.3 Amendment. This Agreement may be amended by the parties hereto at
any time before or after approval of matters presented in connection with the
Merger by the stockholders of those parties required by applicable law to so
approve but, after any such stockholder approval, no amendment shall be made
which by law requires the further approval of stockholders of a party without
obtaining such further approval.
4.4 Extension; Waiver. At any time prior to the Effective Time any
party hereto may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties made to such
party contained herein or in any document delivered pursuant hereto and (iii)
waive compliance with any of the agreements or conditions for the benefit of
such party contained herein.
5. GENERAL PROVISIONS.
5.1 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via telecopy to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to Lynx to:
Lynx Therapeutics, Inc.
0000 Xxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx Xx., M.D.
Phone: (000) 000-0000
Fax: (000) 000-0000
and with a copy to:
Xxxxxx Godward LLP
0 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
(b) If to Spectragen, to:
Spectragen, Inc.
0000 Xxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxx Xxxxx, Ph.D.
5.2 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
5.3 Miscellaneous. This Agreement and the documents and instruments and
other agreements among the parties hereto (a) constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof; (b) are not intended to confer upon
any other person any rights or remedies hereunder; and (c) shall not be assigned
by operation of law or otherwise except as otherwise specifically provided.
5.4 Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware.
IN WITNESS WHEREOF, Lynx and Spectragen have caused this Agreement to
be signed by themselves or their duly authorized respective officers, all as of
the date first written above.
LYNX THERAPEUTICS, INC.
By: /s/ Xxxxx X. Xxxxxx, Xx.
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SPECTRAGEN, INC.
By: /s/ Xxx Xxxxx
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