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EXHIBIT 2.4(b)
FIRST AMENDMENT TO INVESTMENT AGREEMENT
THIS FIRST AMENDMENT TO INVESTMENT AGREEMENT (the "Amendment") is dated
as of March , 2000, by and between GENOMIC SOLUTIONS INC., a Delaware
corporation (the "Company"), and PERKINELMER, INC., a Massachusetts corporation
(the "Purchaser").
RECITALS:
A. Pursuant to an Investment Agreement dated December 14, 1999
(the "Investment Agreement"), Purchaser has acquired shares of the Company's
Series P Preferred Stock and the Company has provided Purchaser with (i) an
option to acquire from the Company sufficient shares of its capital stock so
that Purchaser would hold 19.9% (on a fully-diluted basis) of the Company's
issued and outstanding capital stock, and (ii) upon the consummation by the
Company of a Qualified IPO (as defined in the Investment Agreement), the right
to cause the Company to redeem all of the Company's equity securities not owned
by Purchaser.
B. The parties wish to amend the Investment Agreement upon the
terms and conditions set forth in this Amendment.
NOW, THEREFORE, for and in consideration of the foregoing Recitals and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
1. Section 7.7 (b)(v) of the Investment Agreement is hereby
amended in its entirety to read as follows:
"(v) Subject to Section 7.7(b)(vi) hereof, the
redemption price per share of Callable Common Stock shall be the
greater of (a) 120% of the average of the last reported sale prices per
share of Callable Common Stock, as reported on the New York Stock
Exchange or the Nasdaq Stock Market, as applicable, over the 30 trading
days ending on the trading day before the day on which the Purchaser
directs the Company to exercise the Call Rights, (b) 120% of the last
reported sale price per share of Callable Common Stock, as reported on
the New York Stock Exchange or the Nasdaq Stock Market, as applicable,
on the trading day before the day on which the Purchaser directs the
Company to exercise the Call Rights or (c) the price set forth below
(subject to adjustment for stock splits, recapitalization,
reclassifications and similar events applicable to the Common Stock or
the Callable Common Stock) determined on the date the Purchaser gives
notice directing the Company to exercise the Call Rights (the "Call
Notice Date"):
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Price per Share of Number of Days that have
Callable Common Elapsed Between the Closing
Stock Date and the Call Notice Date
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$6.75 1 through 182
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$7.00 183 through 365
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$7.50 366 through 548
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$8.00 549 through 730
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provided, however, that no days during which the Purchaser is
prohibited from (x) exercising its purchase rights under the Securities
Purchase Agreements or (y) directing the Company to exercise the Call
Rights, (collectively, the "Blackout Periods") shall be included in
calculating the number of days that have elapsed between the Closing
Date and the Call Notice Date" provided, however, that any days during
which the Purchaser is prohibited from directing the Company to revise
the Call Rights pursuant to Section 7.7(b)(x)(b) shall not be included
within the Blackout Periods.
2. Section 7.7 (b)(x) is hereby amended in its entirety to read as
follows:
"(x) The Purchaser may not direct the Company to
exercise the Call Rights (a) during the 180-day period following the
consummation of a Qualified IPO, and (b) during the 30-day period
following the sale by the Purchaser of any shares of Callable Common
Stock owned by it (such 30-day period is referred to as the "Standoff
Period"). Anything to the contrary in this Agreement notwithstanding,
in no event shall the aggregate of all Blackout Periods exceed 270
days; and"
3. Section 7.7 (b)(xi) of the Investment Agreement is hereby
amended in its entirety to read as follows:
"(xi) The Call Rights shall terminate on the earlier
of (a) the close of business on the second anniversary of the Closing
Date, (b) the date of the consummation of a transaction set forth in an
Acceptable Acquisition Proposal, or (c) the date on which PerkinElmer
has sold that number of shares of the Company's common stock and
Callable Common Stock (after conversion of shares of the Corporation's
common stock into Callable Common Stock for the purpose of effecting
such sale) which, together with any shares of the Company's common
stock and Callable Common Stock previously sold by the Purchaser,
exceeds 50% of the shares of the Company's common stock held by the
Purchaser as of the date of the consummation of the Qualified IPO
(subject to adjustment for stock splits, recapitalization,
reclassifications and similar events applicable to the Company's common
stock or the Callable Common Stock); provided, however, that the date
described in clause (a) of this Section 7.7(b)(xi) shall be extended by
the aggregate number of days in all Blackout Periods; provided,
further, that, the foregoing notwithstanding, if Purchaser sells any
shares of Callable Common Stock within thirty (30) days prior to the
date described in clause (a), as extended as provided above, such date
shall be further extended for that number of days after the end of the
Standoff Period following such sale
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that is equal to the number of days elapsing between the date on which
such sale occurs and the date described in clause (a), as extended as
provided above."
4. The following is hereby added to Section 7.8 of the Investment
Agreement as subsection (e):
"(e) Upon the consummation of a Qualified IPO, all shares of
Series P Preferred held by the Purchaser will be converted
automatically into shares of the Company's common stock. At the
Purchaser's option, shares of the Company's common stock may be
converted into shares of Callable Common Stock at any time during the
period which commences on the date of the consummation of such
Qualified IPO and ends on the date of the termination of the Call
Rights, as provided herein. The Purchaser may exercise such option
during such period upon not less than ten (10) days prior written
notice to the Company, which notice shall include a statement from the
Purchaser of its bona fide intent to sell the shares of Callable Common
Stock received by it upon such conversion and its agreement to work
with the Company's market makers to effect an orderly sale of such
shares. The foregoing notwithstanding, if, at the time of any exercise
by the Purchaser of such option, the number of shares of Callable
Common Stock which the Purchaser will receive pursuant to such
exercise, together with the number of shares of Callable Common Stock
into which the Purchaser has previously converted shares of the
Company's common stock, does not exceed 100,000 in the aggregate, as
adjusted for stock splits, recapitalization, reclassifications and
similar events applicable to the Company's common stock and the
Callable Common Stock, then the number of days of prior written notice
which the Purchaser is required to give to the Company in connection
with such exercise shall be reduced from ten (10) days to one (1) day.
If any shares of Callable Common Stock received by the Purchaser upon
exercise of the option described above are not sold within twenty (20)
days after the expiration of the applicable prior notice period, the
Purchaser shall not sell any of the unsold shares of Callable Common
Stock received by it until the expiration of five (5) days after the
Purchaser gives the Company written notice of its intention to continue
the sale of such shares. After the expiration of such 5-day period, the
Purchaser may resume the sale of such unsold shares; provided, however,
that the restrictions set forth in the preceding sentence shall apply
to each subsequent effort by Purchaser to sell any such unsold shares."
5. Except as expressly set forth in this Amendment, the
Investment Agreement shall remain in full force and effect as executed.
6. This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Copies (facsimile, photostatic or
otherwise) of signatures to this Amendment shall be deemed to be originals and
may be relied on to the same extent as the originals.
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7. This Amendment shall be binding upon, and shall inure to the
benefit of, the parties and their respective successors and assigns.
8. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of Delaware (without reference to
the conflicts of law provisions thereof).
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed as of the day and year first above written.
GENOMIC SOLUTIONS INC.
By:
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Xxxxxxx X. Xxxxxxxx, President, Chief
Executive Officer
PERKINELMER, INC.
By:
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Its:
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