Agreement and Plan of Merger - Nanogen Inc. and Nanotronics Inc.
AGREEMENT AND PLAN OF MERGER
by and among
NANOGEN, INC.,
A DELAWARE CORPORATION,
NANOGEN MERGER SUBSIDIARY, INC.,
A CALIFORNIA CORPORATION,
and
NANOTRONICS, INC.,
A CALIFORNIA CORPORATION
December 18, 1997
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TABLE OF CONTENTS
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ARTICLE I THE MERGER...................................................1
1.1 The Merger...................................................1
1.2 Closing......................................................1
1.3 Effective Time...............................................1
1.4 Corporate Organization.......................................2
ARTICLE II EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS.....................................2
2.1 Conversion of Shares of Capital Stock of Nanotronics and
Merger Sub...................................................2
2.2 Conversion of Nanotronics Options............................3
2.3 Conversion of Nanotronics Warrants...........................4
2.4 Conversion of Nanotronics Debt...............................5
2.5 Dissenting Shares............................................5
2.6 Fractional Shares............................................5
ARTICLE III THE SURVIVING CORPORATION....................................6
3.1 Certificate of Incorporation.................................6
3.2 Bylaws.......................................................6
3.3 Directors and Officers.......................................6
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF NANOTRONICS................6
4.1 Organization.................................................6
4.2 Subsidiaries.................................................6
4.3 Capital Structure............................................6
4.4 Obligations With Respect to Capital Stock....................7
4.5 Authority; No Conflicts; Consents............................7
4.6 Financial Statements.........................................8
4.7 Brokers or Finders...........................................8
4.8 Full Disclosure..............................................8
ARTICLE V REPRESENTATIONS AND WARRANTIES OF NANOGEN AND
MERGER SUB...................................................8
5.1 Organization.................................................8
5.2 Capitalization and Voting Rights.............................8
(a) Nanogen.................................................8
(b) Merger Sub............................................ 10
5.3 Subsidiaries............................................... 10
5.4 Authorization.............................................. 10
(a) Nanogen............................................... 10
(b) Merger Sub............................................ 11
5.5 Valid Issuance of Preferred and Common Stock............... 11
5.6 Governmental Consents...................................... 12
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5.7 Litigation................................................. 12
5.8 No Conflict................................................ 12
5.9 Fees and Commissions....................................... 13
5.10 Full Disclosure............................................ 13
ARTICLE VI CONDUCT PRIOR TO THE EFFECTIVE TIME........................ 13
6.1 Ordinary Course............................................ 13
6.2 No Other Bids.............................................. 13
6.3 No Acquisitions............................................ 13
6.4 No Dispositions............................................ 14
6.5 Indebtedness............................................... 14
6.6 Benefit Plans, Etc......................................... 14
6.7 Other Actions.............................................. 14
6.8 Advice of Changes; Government Filings...................... 14
6.9 Accounting Methods......................................... 14
ARTICLE VII ADDITIONAL AGREEMENTS...................................... 15
7.1 Shareholder Approval....................................... 15
7.2 Access and Information..................................... 15
7.3 Notice of Changes.......................................... 15
7.4 Certain Defaults........................................... 16
7.5 Consents................................................... 16
7.6 Notice of Breach........................................... 16
7.7 Expenses................................................... 16
7.8 Public Disclosure.......................................... 16
7.9 Tax-Free Reorganization.................................... 16
7.10 Blue Sky Laws.............................................. 16
7.11 Waiver of Past Rent........................................ 17
7.12 Expiration of Representations and Warranties............... 17
7.13 Expiration of Representations and Warranties............... 17
ARTICLE VIII CONDITIONS TO THE MERGER................................... 17
8.1 Conditions to Each Party's Obligation to Effect the Merger. 17
(a) Government Approvals.................................. 17
(b) Legal Action.......................................... 17
(c) Statutes.............................................. 18
8.2 Conditions to Obligations of Nanotronics................... 18
(a) Representations and Warranties........................ 18
(b) Performance of Obligations of Nanogen and Merger Sub.. 18
(c) Opinion of Counsel to Nanogen and Merger Sub.......... 18
(d) Investors' Rights Agreement........................... 18
(e) Change in Laws or Regulations......................... 18
(f) Licenses; Filings..................................... 19
8.3 Conditions to Obligations of Nanogen and Merger Sub........ 19
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(a) Representations and Warranties........................ 19
(b) Performance of Obligations of Nanotronics............. 19
(c) Opinion of Counsel to Nanotronics..................... 19
(d) Dissenters' Rights.................................... 19
(e) Investor Representation............................... 19
(f) Change in Laws or Regulations......................... 20
(g) Licenses; Filings..................................... 20
ARTICLE IX CLOSING.................................................... 20
9.1 Closing Date............................................... 20
9.2 Deliveries at Closing...................................... 20
ARTICLE X TERMINATION; AMENDMENT; WAIVER............................. 23
10.1 Termination................................................ 23
10.2 Effect of Termination...................................... 23
10.3 Amendment.................................................. 23
10.4 Extension; Waiver.......................................... 23
ARTICLE XI MISCELLANEOUS PROVISIONS................................... 24
11.1 Schedule Updates........................................... 24
11.2 Governing Law.............................................. 24
11.3 Successors and Assigns..................................... 24
11.4 Entire Agreement........................................... 24
11.5 Arbitration................................................ 24
11.6 Notices.................................................... 25
11.7 Cooperation................................................ 25
11.8 Interpretation............................................. 25
11.9 Delays or Omissions........................................ 25
11.10 Counterparts............................................... 26
11.11 Severability............................................... 26
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Schedule of Exhibits
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Exhibit 1.1(a) Form of Agreement of Merger
Exhibit 1.3(a) Form of Nanotronics Officers' Certificate to be filed in
California
Exhibit 1.3(b) Form of Merger Sub Officers' Certificate to be filed in
California
Exhibit 8.2(a) Form of Certificate of Nanogen and Merger Sub
Exhibit 8.2(c) Matters to be covered in opinion of counsel to Nanogen and
Merger Sub
Exhibit 8.3(a) Form of Certificate of Nanotronics
Exhibit 8.3(c) Matters to be covered in opinion of counsel to Nanotronics
Exhibit 8.3(e) Form of Investor Representation Statement
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List of Schedules
2.1-1 Schedule of Holders of Nanotronics Capital Stock
2.1-2 Schedule of certificates for Nanogen Series D Preferred Stock and
Options and Warrants to purchase Nanogen Series D
Preferred Stock to be issued by Nanogen in connection
with the Merger
2.2(a) Schedule of Holders of Nanotronics Options and Warrants
2.4 Schedule of Nanotronics Creditors exchanging Nanotronics debt for
Nanogen Series D Preferred Stock
4. Nanotronics Disclosure Schedule
5. Nanogen and Merger Sub Disclosure Schedule
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") dated as of the
18th day of December, 1997, by and among NANOGEN, INC., a Delaware corporation
("Nanogen"), NANOGEN MERGER SUBSIDIARY, INC., a California corporation and
wholly owned subsidiary of Nanogen ("Merger Sub"), and NANOTRONICS, INC., a
California corporation ("Nanotronics"). Nanogen, Merger Sub and Nanotronics are
sometimes referred to herein individually as a "Party" or collectively as the
"Parties."
W I T N E S S E T H:
WHEREAS, the Boards of Directors of Nanogen, Merger Sub and Nanotronics
deem it advisable and in the best interests of their respective shareholders to
effect the merger hereafter provided for, in which Merger Sub would merge with
and into Nanotronics and Nanotronics would become a wholly owned subsidiary of
Nanogen (the "Merger"); and
WHEREAS, it is intended that the Merger qualify as a tax-free
reorganization within the meaning of Section 368(a) of the Internal Revenue Code
of 1986, as amended (the "Code"):
N o w, T h e r e f o r e, in consideration of the premises and of the
mutual agreements, provisions and covenants herein contained, the parties hereby
agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time (as defined in Section 1.3), upon
the terms and subject to the conditions of this Agreement and the Agreement of
Merger between Merger Sub and Nanotronics substantially in the form attached
hereto as Exhibit 1.1(a) (the "Agreement of Merger"), Merger Sub shall be merged
with and into Nanotronics in accordance with the California Corporations Code of
the State of California ("California Law"), whereupon the separate existence of
Merger Sub shall cease, and Nanotronics shall be the surviving corporation (the
"Surviving Corporation").
1.2 Closing. The closing of the transactions contemplated by this
Agreement and the Agreement of Merger shall be held in accordance with Article
IX herein.
1.3 Effective Time. As soon as practicable after satisfaction or, to the
extent permitted hereunder, waiver of all conditions to the Merger, Nanogen
shall file an executed copy of the Agreement of Merger, accompanied by an
officers' certificate of each of Nanotronics and Merger Sub, substantially in
the form of Exhibits 1.3(a) and 1.3(b), with the Secretary of State of the State
of California, and make all other filings or recordings required by the laws of
California in connection with the Merger. The Merger shall become effective at
such time as the certified copy of the Agreement of Merger is duly filed with
the Secretary of State of the State of California (the "Effective Time").
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1.4 Corporate Organization. At and after the Effective Time, the
Surviving Corporation shall possess all the rights, privileges, powers and
franchises, and be subject to all of the restrictions, disabilities and duties
of Nanotronics and Merger Sub, all as provided under California Law.
ARTICLE II
EFFECT OF THE MERGER ON THE
CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
2.1 Conversion of Shares of Capital Stock of Nanotronics and Merger Sub.
At the Effective Time, by virtue of the Merger and without any action on the
part of any holder thereof (subject to the deliveries required to be made by
Nanotronics at the Closing as set forth in Section 9.2(a)), the following shall
occur:
(a) Each share of common stock of Merger Sub, no par value (the "Merger
Sub Common Stock"), issued and outstanding immediately prior to the Effective
Time, shall be converted into and become one (1) validly issued, fully paid and
nonassessable share of Common Stock, no par value, of the Surviving Corporation.
(b) Each share of the common stock of Nanotronics, no par value (the
"Nanotronics Common Stock"), and each share of the Nanotronics Series A
Preferred Stock, no par value (the "Nanotronics Preferred Stock" and,
collectively with the Nanotronics Common Stock, the "Nanotronics Capital
Stock"), held by Nanotronics as treasury stock immediately prior to the
Effective Time shall be canceled, and no payment shall be made with respect
thereto.
(c) Each share of Nanotronics Preferred Stock outstanding immediately
prior to the Effective Time (including any shares of Nanotronics Preferred Stock
issued or issuable as a result of the exercise of any Nanotronics Warrant or
Nanotronics Option, provided such Nanotronics Warrant or Nanotronics Option, as
the case may be, is exercised on or before 5 p.m. California time on the
business day immediately preceding the Closing Date, but not including any
shares of Nanotronics Preferred Stock outstanding immediately prior to the
Effective Time as to which dissenters' rights have been properly asserted under
California Law and which are provided for in Section 2.5 hereof) shall be
converted into the right to receive .195135267 shares (the "Nanotronics
Preferred Exchange Ratio") of the Series D preferred stock, $.001 par value per
share (the "Nanogen Series D Preferred Stock") of Nanogen.
(d) Each share of Nanotronics Common Stock outstanding immediately prior
to the Effective Time (including any shares of Nanotronics Common Stock issued
or issuable as a result of the exercise of any Nanotronics Warrant or
Nanotronics Option, provided such Nanotronics Warrant or Nanotronics Option, as
the case may be, is exercised on or before 5 p.m. California time on the
business day immediately preceding the Closing Date, but not including any
shares of Nanotronics Common Stock outstanding immediately prior to the
Effective Time as to which dissenters' rights have been properly asserted under
California Law and which are provided for in Section 2.5 hereof) shall be
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converted into the right to receive .165296688 shares (the "Nanotronics Common
Exchange Ratio") of Nanogen Series D Preferred Stock.
The holders of Nanotronics Common Stock and Nanotronics Preferred Stock
are hereinafter referred to singularly as a "Nanotronics Shareholder" and
collectively as the "Nanotronics Shareholders," and are as set forth on Schedule
2.1-1 attached hereto. The number of shares of Nanogen Series D Preferred Stock
to be received by each Nanotronics Shareholder upon consummation of the Merger
is set forth next to such Nanotronics Shareholder's name on Schedule 2.1-2
attached hereto.
2.2 Conversion of Nanotronics Options.
(a) At the Effective Time, by virtue of the Merger and without any
action on the part of the holders thereof (subject to the deliveries required to
be made by Nanotronics at Closing as set forth in Section 9.2(a)), each
unexpired and unexercised option to purchase shares of Nanotronics Capital Stock
(individually, a "Nanotronics Option" and collectively the "Nanotronics
Options"), as set forth on Schedule 2.2(a) attached hereto, outstanding
immediately prior to the Effective Time shall be converted into an option to
purchase shares of Nanogen Series D Preferred Stock (a "Converted Nanotronics
Option"). Each Nanotronics Option so converted will continue to have, and be
subject to, substantially the same terms and conditions as set forth in the
documents governing such Nanotronics Option immediately prior to the Effective
Time, except that (a) such Converted Nanotronics Option will be exercisable for
that number of shares of Nanogen Series D Preferred Stock as is equal to the
product of the number of shares of Nanotronics Common Stock or Nanotronics
Preferred Stock, as the case may be, that were purchasable under the Nanotronics
Option immediately prior to the Effective Time, multiplied by the Nanotronics
Preferred Exchange Ratio or the Nanotronics Common Exchange Ratio, as the case
may be, in all cases rounded (up if any fraction computed is .50 or greater and
down if any fraction computed is less than .50) to the nearest whole number of
shares of Nanogen Series D Preferred Stock and (b) the per share exercise price
for the Nanogen Series D Preferred Stock issuable upon exercise of such
Converted Nanotronics Option will be equal to the quotient obtained by dividing
the exercise price per share of the shares of Nanotronics Preferred Stock or
Nanotronics Common Stock, as the case may be, at which such Nanotronics Option
was exercisable immediately prior to the Effective Time by the Nanotronics
Preferred Exchange Ratio or the Nanotronics Common Exchange Ratio, as the case
may be, in all cases rounded (up if any fraction computed is .50 of a cent or
greater and down if any fraction computed is less than .50 of a cent) to the
nearest whole cent. The parties intend that the conversion of the Nanotronics
Options hereunder will meet the requirements of Section 424(a) of the Code and
this Section 2.2(a) shall be interpreted consistent with such intention. Holders
of Nanotronics Options shall not be entitled to acquire shares of Nanotronics
Capital Stock after the Merger.
(b) The number of shares of Nanogen Series D Preferred Stock to be
issued upon the exercise of options to purchase shares of Nanogen Series D
Preferred Stock which are the result of the conversions referenced in Section
2.2(a) is set forth next to such holder's name on Schedule 2.1-2 attached
hereto.
(c) Notwithstanding subsections (a) and (b) of this Section 2.2, the
parties hereto expressly acknowledge and agree that the terms of such
subsections shall not apply to any holder of any
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Nanotronics Option which is exercised on or before 5 p.m. on the business day
immediately preceding the Closing Date. In such case, such holder shall be
treated for all purposes as a holder of Nanotronics Preferred Stock or
Nanotronics Common Stock, as the case may be, rather than as a holder of
Nanotronics Options.
2.3 Conversion of Nanotronics Warrants.
(a) At the Effective Time, by virtue of the Merger and without any
action on the part of the holders thereof (subject to the deliveries required to
be made by Nanotronics at Closing as set forth in Section 9.2(a)), each
unexpired and unexercised warrant to purchase shares of Nanotronics Capital
Stock (individually, a "Nanotronics Warrant" and collectively the "Nanotronics
Warrants"), as set forth on Schedule 2.2(a) attached hereto, outstanding
immediately prior to the Effective Time shall be converted into a warrant to
purchase shares of Nanogen Series D Preferred Stock (a "Converted Nanotronics
Warrant"). Each Nanotronics Warrant so converted will continue to have, and be
subject to, substantially the same terms and conditions as set forth in the
documents governing such Nanotronics Warrant immediately prior to the Effective
Time, except that (a) such Converted Nanotronics Warrant will be exercisable for
that number of shares of Nanogen Series D Preferred Stock as is equal to the
product of the number of shares of Nanotronics Preferred Stock or Nanotronics
Common Stock, as the case may be, that were purchasable under the Nanotronics
Warrant immediately prior to the Effective Time, multiplied by the Nanotronics
Preferred Exchange Ratio or the Nanotronics Common Exchange Ratio, as the case
may be, in all cases rounded (up if any fraction computed is .50 or greater and
down if any fraction computed is less than .50) to the nearest whole number of
shares of Nanogen Series D Preferred Stock and (b) the per share exercise price
for the Nanogen Series D Preferred Stock issuable upon exercise of such
Converted Nanotronics Warrant shall be equal to the quotient obtained by
dividing the exercise price per share of the shares of Nanotronics Preferred
Stock or the Nanotronics Common Stock, as the case may be, at which such
Nanotronics Warrant was exercisable immediately prior to the Effective Time by
the Nanotronics Preferred Exchange Ratio or the Nanotronics Common Exchange
Ratio, as the case may be, in all cases rounded (up if any fraction computed is
.50 cents or greater and down if any fraction computed is less than .50 cents)
to the nearest whole cent. Holders of Nanotronics Warrants shall not be entitled
to acquire shares of Nanotronics Capital Stock after the Merger.
(b) The number of shares of Nanogen Series D Preferred Stock to be
issued upon the exercise of warrants to purchase shares of Nanogen Series D
Preferred Stock which are the result of the conversions referenced in Section
2.3(a) is set forth next to such holder's name on Schedule 2.1-2 attached
hereto.
(c) Notwithstanding subsections (a) and (b) of this Section 2.3, the
parties hereto expressly acknowledge and agree that the terms of such
subsections shall not apply to any holder of any Nanotronics Warrant which is
exercised on or before 5 p.m. on the business day immediately preceding the
Closing Date. In such case, such holder shall be treated for all purposes as a
holder of Nanotronics Preferred Stock or Nanotronics Common Stock, as the case
may be, rather than as a holder of Nanotronics Options.
2.4 Conversion of Nanotronics Debt. At the Effective Time, by virtue of
the Merger and without any further action on the part of the creditors thereof
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(subject to the deliveries required to be made by Nanotronics at Closing as set
forth in Section 9.2(a)), each creditor of Nanotronics as set forth on Schedule
2.4 attached hereto (the "Exchanging Nanotronics Creditors") shall receive such
number of shares of Nanogen Series D Preferred Stock as is set forth on Schedule
2.1-2 as full consideration for cancellation of the debt of Nanotronics held by
such Exchanging Nanotronics Creditor (such amount as is set forth next to such
Exchanging Nanotronics Creditor's name on Schedule 2.4 attached hereto).
2.5 Dissenting Shares.
(a) Notwithstanding Section 2.1, shares of Nanotronics Capital Stock
outstanding immediately prior to the Effective Time and held by a holder who has
taken all actions as required pursuant to Section 1300 et. seq. of California
Law shall not be converted into a right to receive shares of Nanogen Series D
Preferred Stock, unless and until such holder withdraws such demand for payment
or loses his or her dissenters' rights pursuant to California Law.
(b) Nanotronics shall give Nanogen prompt notice of any demands received
by Nanotronics for payment for any of its shares, and Nanogen shall have the
right to participate in all negotiations and proceedings with respect to such
demands. Nanotronics shall not, except with the prior written consent of
Nanogen, make any payment with respect to, or settle or offer to settle, any
such demands.
(c) Each holder of Nanotronics Capital Stock who has complied with the
requirements of California Law to properly assert dissenters' rights (and who
has not withdrawn his or her demand for payment for his or her shares) shall be
paid for his or her shares of Nanotronics Capital Stock in accordance with the
procedures set forth under California Law. With respect to any holder of
Nanotronics Capital Stock who has properly asserted dissenters' rights at or
prior to the Effective Time, but who withdraws his or her request for payment
after the Effective Time, each of his or her shares shall, upon the withdrawal
of such request, be converted into the right to receive shares of Nanogen Series
D Preferred Stock as set forth in Section 2.1 above. Neither of the Nanotronics
Common Exchange Ratio nor the Nanotronics Preferred Exchange Ratio shall be
adjusted as a result of any assertion of dissenters' rights under this Section.
2.6 Fractional Shares. No fractional shares of Nanogen Series D
Preferred Stock shall be issued in the Merger. Any fractional number of shares
of Nanogen Series D Preferred Stock to be received by any Nanotronics
Shareholder upon computation of the Nanotronics Preferred Exchange Ratio or the
Nanotronics Common Exchange Ratio, as the case may be, as applied to such
holder's shares of Nanotronics Capital Stock shall be rounded (up if the
fraction computed is .50 or greater and down if the fraction computed is less
than .50) to the nearest whole number of shares. The number of shares of Nanogen
Series D Preferred Stock to be received by each holder of Nanotronics Capital
Stock upon consummation of the Merger is set forth in Schedule 2.1-2 attached
hereto.
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ARTICLE III
THE SURVIVING CORPORATION
3.1 Certificate of Incorporation. The Articles of Incorporation, as
amended and restated to date, of Nanotronics in effect at the Effective Time
shall be the Articles of Incorporation of the Surviving Corporation until
amended or replaced in accordance with applicable law.
3.2 Bylaws. The Bylaws, as amended and restated to date, of Nanotronics
in effect at the Effective Time shall be the Bylaws of the Surviving Corporation
until amended or replaced in accordance with applicable law.
3.3 Directors and Officers. From and after the Effective Time, and
without further action on the part of any party hereto, or any director or any
officer of any party hereto, and until successors are duly elected or appointed
and qualified in accordance with applicable law, the directors of Merger Sub at
the Effective Time shall be the directors of the Surviving Corporation and the
officers of Nanotronics at the Effective Time shall be the officers of the
Surviving Corporation.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF NANOTRONICS
Except as disclosed or excepted in the Nanotronics Disclosure Schedule
attached hereto as Schedule 4 (the "Nanotronics Disclosure Schedule"),
Nanotronics represents and warrants to each of Nanogen and Merger Sub as of the
date hereof as follows:
4.1 Organization. Nanotronics is a corporation duly organized, validly
existing and in good standing under the laws of the State of California and has
all requisite power and authority to own, lease and operate its properties and
to carry on its business as now being conducted. Nanotronics has delivered to
Nanogen (on behalf of itself and Merger Sub) complete and correct copies of the
Articles of Incorporation and Bylaws of Nanotronics and will deliver to Nanogen,
on or prior to the Closing Date, complete and correct copies of the minutes of
all meetings and other corporate actions of the directors and of the
shareholders of Nanotronics since inception.
4.2 Subsidiaries. Nanotronics has no subsidiaries.
4.3 Capital Structure. The authorized capital stock of Nanotronics
consists of 10,000,000 shares of common stock, no par value, of which 344,639
shares are issued and outstanding, and 5,000,000 shares of preferred stock, no
par value, of which 750,000 have been designated Series A Preferred Stock, and
550,923 of which are issued and outstanding. Schedule 2.1-1 attached hereto
contains a true and complete list of all holders of Nanotronics Common Stock and
Nanotronics Preferred Stock, showing the number of shares of Common Stock and
Preferred Stock held by each such holder. The rights, preferences and privileges
of the Nanotronics Common Stock
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and the Nanotronics Preferred Stock are as set forth in the Nanotronics'
Articles of Incorporation, as amended to date and which will be provided to
Nanogen (on behalf of itself and Merger Sub) at or prior to the Closing Date.
All of the outstanding shares of Nanotronics Common Stock and
Nanotronics Preferred Stock were issued in compliance with applicable federal
and state securities laws. All of the outstanding shares of Nanotronics Common
Stock and Nanotronics Preferred Stock are duly authorized, validly issued, fully
paid and nonassessable and not subject to preemptive rights created by statute,
the Articles of Incorporation or Bylaws of Nanotronics or any agreement to which
Nanotronics is a party or is bound.
4.4 Obligations With Respect to Capital Stock. Schedule 2.2(a) attached
hereto contains a true and complete list of all holders of options and warrants
to purchase Nanotronics capital stock, showing the number of shares of capital
stock covered by such option or warrant, any vesting conditions, the term of the
option or warrant and the per share exercise price. Other than as set forth in
Schedule 2.2(a), there are no options, warrants, calls, rights, commitments or
agreements of any character to which Nanotronics is a party or by which it is
bound obligating Nanotronics to issue any shares of capital stock of Nanotronics
or securities convertible into or exchangeable for capital stock of Nanotronics
or obligating Nanotronics to grant, extend or enter into any such option,
warrant, call, right, commitment or agreement. Nanotronics has provided Nanogen
(on behalf of itself and Merger Sub) with full and complete copies of each
outstanding warrant and option to purchase shares of the capital stock of
Nanotronics. Such options or warrants have not been amended since the date
provided to Nanogen (on behalf of itself and Merger Sub).
4.5 Authority; No Conflicts; Consents. Except as set forth in the
Disclosure Schedule, (i) Nanotronics has all requisite corporate power and
authority to execute and deliver this Agreement and to carry out and perform its
obligations under the terms of this Agreement; and (ii) this Agreement, when
executed and delivered by Nanotronics, will constitute a valid and binding
obligation, enforceable against it in accordance with its terms. Without
limiting the generality of the foregoing, the Nanotronics Board of Directors and
shareholders have taken all corporate action necessary to authorize, and have
duly authorized, the execution, delivery and performance of this Agreement by
Nanotronics. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not result in any
violation of, conflict with, or constitute a default or give rise to a right of
termination, cancellation or acceleration under any provision of (1) the
Articles of Incorporation or Bylaws of Nanotronics; (2) any judgment, decree or
order or any agreement, contract, understanding, indenture or other instrument
to which Nanotronics is a party or by which it is bound; or (3) to Nanotronics'
knowledge, any statute, rule or governmental regulation applicable to
Nanotronics.
No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality (a "Governmental Entity"), is
required by or with respect to Nanotronics in connection with the execution and
delivery of this Agreement by Nanotronics or the consummation by Nanotronics of
the transactions contemplated hereby.
4.6 Financial Statements. The unaudited balance sheet of
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Nanotronics as of September 30, 1996 and the unaudited balance sheet of
Nanotronics as of September 30, 1997 (the "Nanotronics Balance Sheet") have been
provided to Nanogen.
4.7 Brokers or Finders. Nanotronics has not dealt with any broker or
finder in connection with the transactions contemplated by this Agreement.
Nanotronics has not incurred, and it shall not incur, directly or indirectly,
any liability for any brokerage or finders' fees or agents' commissions or any
similar charges in connection with this Agreement or any transaction
contemplated hereby.
4.8 Full Disclosure. No warranty or representation or other statement of
Nanotronics contained in this Agreement or in any schedule or exhibit attached
hereto, or in any other certificate, document, or instrument furnished by
Nanotronics either pursuant to the terms of this Agreement or in connection with
the transactions contemplated hereunder, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statement contained therein or herein not misleading
either individually or as a whole.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF NANOGEN AND MERGER SUB
Except as contemplated by this Agreement and as disclosed or excepted in
that section of the Nanogen and Merger Sub Disclosure Schedule attached hereto
as Schedule 5 corresponding to a particular representation and warranty, each of
Nanogen and Merger Sub represents and warrants to each of the other parties
hereto as follows as of the date hereof as follows:
5.1 Organization. Nanogen and Merger Sub are corporations duly
organized, validly existing, and in good standing under the laws of the States
of Delaware and California, respectively. Each of Nanogen and Merger Sub has all
requisite power and authority to own, lease and operate its properties and to
carry its business as presently conducted. Each of Nanogen and Merger Sub is
duly qualified to transact business and in good standing in each jurisdiction in
which the nature of the business conducted by it or its ownership or leasing of
property makes such qualification necessary, except where the failure to be so
qualified will not have a material adverse effect on Nanogen or Merger Sub, as
the case may be.
5.2 Capitalization and Voting Rights.
(a) Nanogen. The authorized capital of Nanogen consists, or will
consist prior to the Closing, of:
(i) Preferred Stock. 15,500,000 shares of Preferred Stock,
$.001 par value per share ("Nanogen Preferred Stock"), of which
2,339,667 shares have been designated Series A Preferred Stock
and all of which have been issued and are outstanding, 3,800,600
shares have been designated Series B Preferred Stock, of which
3,740,600 are currently issued and outstanding, 6,700,000 shares
have been
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designated Series C Preferred Stock, of which 6,553,598 are
currently issued and outstanding, 2,050,000 shares have been
designated Series D Preferred Stock, of which 1,050,000 are
currently issued and outstanding. The rights, privileges and
preferences of the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock and the Series D
Preferred Stock are as stated in Nanogen's Restated Certificate
of Incorporation.
(ii) Common Stock. 40,000,000 shares of common stock,
$.001 par value per share ("Nanogen Common Stock"), of which as
of October 31, 1997, 2,854,003 shares are issued and outstanding.
(iii) Rights to Purchase Shares; Stockholder Agreements. Except
for (a) the conversion privileges of the Series A, Series B,
Series C and Series D Preferred Stock, (b) the rights set forth
in Section 2.4 of the Amended and Restated Investors' Rights
Agreement dated as of May 5, 1997 by and among Nanogen and the
investors listed in Schedule A thereto (the "Investors' Rights
Agreement"), (c) as of October 31, 1997, options to purchase an
aggregate 2,543,400 shares of Common Stock granted pursuant to
Nanogen's 1993 Stock Option/Stock Issuance Plan, as amended,
Nanogen's 1995 Amended and Restated Stock Option/Stock Issuance
Plan and Nanogen's 1997 Stock Incentive Plan, (d) warrants to
purchase an aggregate of 631,072 shares of Common Stock issued to
purchasers of Series B Preferred Stock, (e) warrants to purchase
an aggregate of 60,000 shares of Series B Preferred Stock, (f) a
warrant to purchase 9,000 shares of Series C Preferred Stock
issued to Lease Management Services, Inc. and (g) the rights set
forth in Section 1.3(b) of the Series D Preferred Stock Purchase
Agreement, dated as of May 5, 1997, by and between Nanogen and
Becton Dickinson and Company, there are no outstanding options,
warrants, rights (including conversion or preemptive rights) or
agreements for the purchase or acquisition from Nanogen of any
shares of its capital stock. Nanogen is not a party to or subject
to any agreement or understanding, and, to Nanogen's knowledge,
there is no agreement or understanding between any persons and/or
entities, which affects or relates to the voting or giving of
written consents with respect to any security or by a director of
Nanogen.
(b) Merger Sub. The authorized capital of Merger Sub consists, or
will consist prior to the Closing, of:
(i) Preferred Stock. 1,000 shares of undesignated
Preferred Stock, $.001 par value per share ("Merger Sub Preferred
Stock"), none of which are issued and outstanding. The rights,
privileges and preferences of the Merger Sub Preferred Stock are
as stated in Merger
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Sub's Certificate of Incorporation.
(ii) Common Stock. 1,000 shares of common stock, $.001 par
value per share ("Merger Sub Common Stock"), of which as of the
date hereof 100 shares are issued and outstanding, all of which
are owned by Nanogen.
(iii) Rights to Purchase Shares; Shareholder Agreements.
There are not outstanding any options, warrants, rights
(including conversion or preemptive rights) or agreements for the
purchase or acquisition from Merger Sub of any shares of its
capital stock. Merger Sub is not a party to or subject to any
agreement or understanding, and, to Merger Sub's knowledge, there
is no agreement or understanding between any persons and/or
entities, which affects or relates to the voting or giving of
written consents with respect to any security or by a director of
Merger Sub.
5.3 Subsidiaries. Other than NanoVenture LLC (and, through it, The
Nanogen/Becton Dickinson Partnership) and Merger Sub, Nanogen does not presently
own or control, directly or indirectly, any interest in any other corporation,
association or other business entity. Other than Merger Sub, Nanogen has no
subsidiaries.
5.4 Authorization.
(a) Nanogen. All corporate action on the part of Nanogen and its
officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement, the performance of all
obligations of Nanogen hereunder and thereunder and the authorization,
issuance (or reservation for issuance) and delivery of the Nanogen
Series D Preferred Stock being issued hereunder and the Common Stock
issuable upon conversion of the Nanogen Series D Preferred Stock has
been taken or will be taken prior to the Closing, and this Agreement and
the Investors' Rights Agreement constitute valid and binding obligations
of Nanogen, enforceable in accordance with their respective terms,
except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally, (ii) as limited by
laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) to the extent the
indemnification provisions contained in the Investors' Rights Agreement
may be limited by applicable federal or state securities laws.
(b) Merger Sub. All corporate action on the part of Merger Sub
and its officers, directors and sole shareholder necessary for the
authorization, execution and delivery of this Agreement, the performance
of all obligations of Merger Sub hereunder and thereunder has been taken
or will be taken prior to the Closing, and this Agreement constitutes a
valid and binding obligation of Merger Sub, enforceable in accordance
with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting enforcement
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of creditors' rights generally and (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other
equitable remedies.
5.5 Valid Issuance of Preferred and Common Stock.
(a) The outstanding shares of the Common Stock, the Series A
Preferred Stock, the Series B Preferred Stock, the Series C Preferred
Stock and the Series D Preferred Stock of Nanogen are all duly and
validly authorized and issued, fully paid and nonassessable, and were
issued in compliance with all applicable federal and state securities
laws. The outstanding shares of the Merger Sub Common Stock are all duly
and validly authorized and issued, fully paid and nonassessable, and
were issued in compliance with all applicable federal and state
securities laws.
(b) The Nanogen Series D Preferred Stock which is being issued to
each of the Nanotronics Shareholders and the Exchanging Nanotronics
Creditors under the Agreement and the Agreement of Merger, when issued,
sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly issued, fully
paid and nonassessable, free of any restrictions on transfer other than
pursuant to this Agreement and the Investors' Rights Agreement, and,
based in part upon the representations of Nanotronics in this Agreement
and the representations of each individual or entity executing an
Investor Representation Statement to be delivered by Nanotronics at the
Closing pursuant to Section 8.3(e), will be issued in compliance with
all applicable federal and state securities laws. The Common Stock
issuable upon conversion of the Nanogen Series D Preferred Stock issued
under this Agreement and the Agreement of Merger has been duly and
validly reserved for issuance and, upon issuance in accordance with the
terms of the Restated Certificate of Incorporation of Nanogen, shall be
duly and validly issued, fully paid and nonassessable, free of any
restrictions on transfer other than pursuant to this Agreement and the
Investors' Rights Agreement, and issued in compliance with all
applicable securities laws, as presently in effect, of the United States
and each of the states whose securities laws govern the issuance of any
of the Nanogen Series D Preferred Stock hereunder. The Nanogen Series D
Preferred Stock issued hereunder will be free and clear from any liens
or encumbrances.
5.6 Governmental Consents. No consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental Entity is
required by or with respect to Nanogen or Merger Sub, as the case may be, in
connection with the execution and delivery of this Agreement by Nanogen or
Merger Sub or the consummation of the transactions contemplated by this
Agreement, except for (i) such consents and filings as have been or will be
obtained or made prior to the Closing, (ii) pre-sale filings as may be required
under applicable state or foreign securities laws which have been or will be
timely filed and (iii) any notices of sale required to be filed with the
Securities and Exchange Commission pursuant to Regulation D under the Securities
Act of 1933, as amended (the "Securities Act") or such post-closing filings as
may be required under applicable state or foreign securities laws, which will be
timely filed within the applicable periods therefor.
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5.7 Litigation.
(a) There is no action, suit, proceeding or investigation pending
or, to Nanogen's knowledge, currently threatened against Nanogen which
questions the validity of this Agreement or the Investors' Rights
Agreement, or the right of Nanogen to enter into either of them, or to
consummate the transactions contemplated hereby or thereby. The
foregoing includes, without limitation, actions pending or threatened
involving the prior employment of any of the Nanogen's employees, their
use in connection with the Nanogen's business of any information or
techniques allegedly proprietary to any of their former employers, or
their obligations under any agreements with prior employers. Nanogen is
not a party or subject to the provisions of any order, writ, injunction,
judgment or decree of any court or government agency or instrumentality.
There is no action, suit, proceeding or investigation by Nanogen
currently pending or which Nanogen intends to initiate.
(b) There is no action, suit, proceeding or investigation pending
or, to Nanogen's or Merger Sub's knowledge, currently threatened against
Merger Sub which questions the validity of this Agreement or the right
of Merger Sub to enter into it or to consummate the transactions
contemplated hereby. Merger Sub is not a party or subject to the
provisions of any order, writ, injunction, judgment or decree of any
court or government agency or instrumentality. There is no action, suit,
proceeding or investigation by Merger Sub currently pending or which
Nanogen or Merger Sub intends to initiate.
5.8 No Conflict. Provided the conditions set forth in Article VIII are
satisfied, the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not result in any
violation of, be in conflict with, or constitute a default or give rise to a
right of termination, cancellation or acceleration under any provision of (a)
the Restated Certificate of Incorporation or Bylaws of Nanogen; (b) the
Certificate of Incorporation or Bylaws of Merger Sub; (c) any judgment, decree
or order or any material agreement, contract, understanding, indenture or other
instrument to which Nanogen or Merger Sub is a party; or (d) to the best
knowledge of Nanogen after a reasonable inquiry, any statute, rule or
governmental regulation applicable to Nanogen or Merger Sub.
5.9 Fees and Commissions. Neither Nanogen nor Merger Sub nor any of
their officers, directors or shareholders have dealt with any broker or finder
in connection with the transactions contemplated by this Agreement. Neither of
Nanogen nor Merger Sub has incurred, and will not incur, directly or indirectly,
any liability for any brokerage or finders' fees or agents commissions or any
similar charges in connection with this Agreement or any transaction
contemplated hereby.
5.10 Full Disclosure. No warranty or representation or other statement
of Nanogen or Merger Sub contained in this Agreement or in any schedule or
exhibit attached hereto, or in any other certificate, document, or instrument
furnished by Nanogen or Merger Sub to any other party either pursuant to the
terms of this Agreement or in connection with the transactions
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contemplatedhereunder, contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary to make
the statement contained therein or herein not misleading either individually or
as a whole.
ARTICLE VI
CONDUCT PRIOR TO THE EFFECTIVE TIME
During the period from the date of this Agreement and continuing until
the Closing, Nanotronics agrees to act as follows (except as expressly
contemplated by this Agreement or to the extent that both Nanogen (acting on
behalf of itself and Merger Sub) shall otherwise consent in writing):
6.1 Ordinary Course. Nanotronics shall carry on its business in the
usual, regular and ordinary course, including the payment of all state and
federal taxes, in substantially the same manner as heretofore conducted and, to
the extent consistent with such business, use all commercially reasonable
efforts consistent with past practice and policies to preserve intact its
present business organizations, use its best efforts to keep available the
services of its present key employees and preserve its relationships with
present and potential customers, providers and others having business dealings
with it to the end that its goodwill and ongoing business shall be unimpaired at
the Closing Date.
6.2 No Other Bids. Nanotronics will not, and will use its best efforts
to ensure that its directors, officers or employees do not, directly or
indirectly, solicit or initiate or encourage any discussions or negotiations
with, or participate in any negotiations with or provide any information to or
otherwise cooperate in any other way with any corporation, partnership, person
or other entity or group (other than Nanogen or Merger Sub) concerning any sale
of substantial assets or control thereof. Nanogen (on behalf of itself and
Merger Sub) shall be promptly notified in writing by Nanotronics, as applicable,
of any of the events referred to in this Section including a summary of the
material terms of any other bid.
6.3 No Acquisitions. Nanotronics shall not (a) acquire or agree to
acquire by merging or consolidating with, or by purchasing a substantial portion
of the assets of, or by any other manner, any business or any corporation,
partnership, association or other business organization or division thereof or
(b) otherwise acquire or agree to acquire any assets which are material,
individually or in the aggregate, to Nanotronics except in the ordinary course
of business consistent with prior practice.
6.4 No Dispositions. Other than the payments in the aggregate amount of
$40,000 made on the date hereof to the creditors listed on Schedule 2.4,
Nanotronics shall not lease or otherwise dispose of any of the assets of
Nanotronics, individually or in the aggregate, except in the ordinary course of
business consistent with prior practice and in any event not in excess of $5,000
in the aggregate.
6.5 Indebtedness. Nanotronics shall not incur any indebtedness for
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borrowed money or guarantee any indebtedness or guarantee any debt securities of
others.
6.6 Benefit Plans, Etc. Nanotronics shall not adopt or amend in any
material respect any employee plan, benefit arrangement or any other agreement
with employees, and Nanotronics shall not increase compensation for its
employees.
6.7 Other Actions. Nanotronics shall not, and shall use its best efforts
to ensure that its directors, officers, employees and other agents do not, take
any action that would, or reasonably would be expected to, result in any of the
representations and warranties set forth in this Agreement being or becoming
untrue in any material respect, or in any of the conditions set forth in Article
VIII not being satisfied.
6.8 Advice of Changes; Government Filings. Nanotronics and its officers
and directors shall confer on a regular and frequent basis with Nanogen (on
behalf of itself and Merger Sub), report on operational matters and promptly
advise Nanogen (on behalf of itself and Merger Sub) orally and in writing of any
change or event having, or which, insofar as can reasonably be foreseen, could
have, a material adverse effect on Nanotronics or which would cause or
constitute a material breach of any of the representations, warranties or
covenants of Nanotronics contained herein. Nanotronics shall promptly provide
Nanogen (on behalf of itself and Merger Sub) or its counsel with copies of any
filings made by Nanotronics with any state or federal governmental entity in
connection with this Agreement or the transactions contemplated hereby.
6.9 Accounting Methods. Nanotronics shall not change the methods of
accounting for the business of Nanotronics in effect at the Nanotronics Balance
Sheet Date, except as required by changes in generally accepted accounting
principles ("GAAP") and as concurred in by Nanotronics's independent auditors.
Nanogen (on behalf of itself and Merger Sub) shall be notified immediately as to
any such change.
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ARTICLE VII
ADDITIONAL AGREEMENTS
7.1 Shareholder Approval.
(a) Nanotronics shall use its reasonable best efforts to obtain
the written consent of Nanotronics Shareholders holding such number of
shares of Nanotronics Capital Stock as is required to approve the Merger
under California Law and its Articles of Incorporation and Bylaws, and
take all further action necessary in accordance with California Law and
its Articles of Incorporation and Bylaws in connection therewith, for
the purpose of obtaining shareholder approval of the Merger, the
consummation of the transactions contemplated by this Agreement and the
Agreement of Merger and the performance by Nanotronics of its
obligations under this Agreement and the Agreement of Merger.
Nanotronics shall, in such written consent solicitation, include the
recommendation of the Nanotronics Board that it is in the best interest
of the Nanotronics Shareholders that they approve and adopt this
Agreement and the Agreement of Merger.
(b) Merger Sub shall obtain the written consent of its sole
shareholder and take all further action necessary in accordance with
California Law and its Articles of Incorporation and Bylaws in
connection therewith, for the purpose of obtaining shareholder approval
of the Merger, the consummation of the transactions contemplated by this
Agreement and the Agreement of Merger and the performance by Merger Sub
of its obligations under this Agreement and the Agreement of Merger.
Merger Sub shall, in such written consent solicitation, include the
recommendation of the Merger Sub Board that it is in the best interest
of the sole shareholder of Merger Sub that such shareholder approve and
adopt this Agreement and the Agreement of Merger.
7.2 Access and Information. Nanotronics shall afford Nanogen (on behalf
of itself and Merger Sub) and its accountants, counsel, investment bankers and
other representatives full and complete access during normal business hours
throughout the period prior to the Closing Date to all of the properties, books,
contracts, commitments, records, facilities and personnel of Nanotronics and,
during such period, shall furnish to Nanogen (on behalf of itself and Merger
Sub) all information concerning the business, properties and personnel of
Nanotronics as either of Nanogen or Merger Sub may reasonably request. Nanogen
shall provide Nanotronics with information sufficient to enable the Nanotronics
Shareholders to determine whether to acquire the Nanogen Series D Preferred
Stock.
7.3 Notice of Changes. If, between the date hereof and the Closing Date,
any federal, state or local governmental authority shall commence any
examination, review, investigation, action, suit or proceeding against any party
with respect to this Agreement, each party shall give prompt notice thereof to
the others, shall keep the other parties informed as to the status thereof and
shall permit the other parties to observe and be present at each meeting,
conference or other proceeding and to have access to and be consulted in
connection with any document filed or
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provided to such governmental authority in connection with such examination,
review, investigation, action, suit or proceeding.
7.4 Certain Defaults. Nanotronics shall give prompt written notice to
Nanogen (on behalf of itself and Merger Sub) of any notice of default received
by it subsequent to the date of this Agreement and prior to the Closing Date
under any instrument or agreement to which it is a party or by which it is
bound. Nanogen shall give similar notice to Nanotronics with respect to any and
all defaults on the part of Nanogen or Merger Sub which may affect adversely the
interests of Nanotronics in this Agreement or any transaction contemplated
hereby.
7.5 Consents. Each of the parties shall use its reasonable best efforts
to obtain all authorizations, consents or other approvals required,
respectively, to be obtained by such party from any governmental authority or
other person in connection with consummation of the transactions contemplated by
this Agreement.
7.6 Notice of Breach. Each of the parties shall immediately give notice
to the others of the occurrence of any event, or the failure of any event to
occur, that results in a breach of any representation or warranty contained
herein by such party or a failure by said party to comply with any covenant,
condition or agreement contained herein.
7.7 Expenses. Each of Nanogen and Nanotronics shall pay its own fees and
expenses incurred incident to the preparation and carrying out of the
transactions herein contemplated (including legal, investment bankers,
accounting and travel fees and expenses). Nanogen shall also pay any such fees
and expenses incurred by Merger Sub.
7.8 Public Disclosure. Except as required by law or regulation, prior to
the Closing, none of the parties hereto shall make any public release of
information concerning the terms and conditions of this Agreement or the
transactions contemplated hereby without the prior joint review and approval of
Nanogen (on behalf of itself and Merger Sub) and Nanotronics, which approval
shall not be unreasonably withheld; provided, however, that the parties may each
continue such communications with employees, customers, suppliers, lenders,
lessors, shareholders and other particular groups as may be legally required or
necessary and not inconsistent with the best interests of the other parties
hereto.
7.9 Tax-Free Reorganization. Nanogen (on behalf of itself and Merger
Sub) and Nanotronics shall each use all commercially reasonable efforts to cause
the Merger to be treated as a reorganization within the meaning of Section 368
of the Code and to make and file such reports and other documents as are
necessary to ensure such treatment. Neither Nanogen nor Merger Sub shall take
any actions inconsistent with causing the Merger to be treated as a
reorganization within the meaning of such Section.
7.10 Blue Sky Laws. Nanogen shall take such steps as may be necessary to
comply with the securities and blue sky laws of all jurisdictions which are
applicable to the issuance of the shares of Nanogen Series D Preferred Stock
pursuant hereto. Nanotronics shall use all reasonable efforts to assist Nanogen
as may be reasonably necessary to comply with the securities and blue
sky laws of all jurisdictions which are applicable in connection with the
issuance of the shares of
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Nanogen Series D Preferred Stock pursuant hereto.
7.11 Waiver of Past Rent. Nanogen hereby agrees to waive all accrued but
unpaid rent owed by Nanotronics to Nanogen prior to the date of this Agreement
and all future rent owed by Nanotronics through the Closing Date.
7.12 Expiration of Representations and Warranties. The representations
and warranties of Nanotronics expire on the Closing Date and no shareholder of
Nanotronics shall have liability to Nanogen after such date based on any breach
of such representations and warranties.
7.13 Expiration of Representations and Warranties. The representations
and warranties of Nanogen and Merger Sub expire on the Closing Date and neither
Nanogen nor Merger Sub shall have liability after such date based on any breach
of these representations and warranties.
ARTICLE VIII
CONDITIONS TO THE MERGER
8.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligations of each of the parties to effect the Merger and the
transactions contemplated by this Agreement shall be subject to the fulfillment
at or prior to the Closing of the following conditions unless waived by each of
Nanogen (on behalf of itself and Merger Sub) and Nanotronics:
(a) Government Approvals. All authorizations, consents, orders or
approvals of, or declarations or filings with, any Governmental Entity
deemed necessary or appropriate by Nanogen, Merger Sub, or Nanotronics
for the consummation of the transactions contemplated by this Agreement
including, but not limited to, the Federal Trade Commission, the
Department of Justice, applicable federal or state securities law
regulatory bodies, shall have been filed, occurred or been obtained, in
each case subject to no term, condition or restriction unacceptable to
Nanogen, Merger Sub, or Nanotronics. Nanogen, Merger Sub and Nanotronics
each agree to cooperate with each other to the fullest extent
practicable in satisfying all applicable federal and state filing
requirements, and in obtaining all applicable federal and state
regulatory approvals.
(b) Legal Action. No temporary restraining order, preliminary
injunction or permanent injunction or other order preventing the
consummation of the Merger shall have been issued by any federal or
state court and remain in effect, and no litigation seeking the issuance
of such an order or injunction, shall be pending which, in the good
faith judgment of Nanogen, Merger Sub or Nanotronics, has a reasonable
probability of resulting in such order, injunction or damages. In the
event any such order or injunction shall have been issued, each party
agrees to use its
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reasonable efforts to have any such injunction lifted.
(c) Statutes. No statute, rule or regulation shall have been
enacted by the government of the United States or any state or agency
thereof which would make the consummation of the Merger illegal.
8.2 Conditions to Obligations of Nanotronics. The obligations of
Nanotronics to effect the Merger and the other transactions contemplated by this
Agreement shall be subject to the fulfillment at or prior to the Closing of the
following conditions, unless waived by Nanotronics:
(a) Representations and Warranties. The representations and
warranties of Nanogen and Merger Sub, each as set forth in this
Agreement shall be true and correct in all material respects as of the
date of this Agreement and as if made at and as of the Closing Date,
except as otherwise contemplated by this Agreement, and Nanotronics
shall have received a certificate or certificates, substantially in the
form of Exhibit 8.2(a), to such effect.
(b) Performance of Obligations of Nanogen and Merger Sub. Nanogen
and Merger Sub shall each have performed in all material respects all
obligations required to be performed by it under this Agreement prior to
the Closing Date, and Nanotronics shall have received a certificate,
substantially in the form of Exhibit 8.2(a), to such effect.
(c) Opinion of Counsel to Nanogen and Merger Sub. Nanotronics
shall have received an opinion dated as of the Closing Date of Pillsbury
Madison & Sutro LLP, outside counsel to Nanogen and Merger Sub, covering
the items substantially as set forth in Exhibit 8.2(c).
(d) Investors' Rights Agreement. The Investors' Rights Agreement
shall have been amended to add, effective on the Closing Date, as
parties to such agreement, each individual or entity set forth on
Schedule 2.1-2 as receiving Nanogen Series D Preferred Stock in
connection with the Merger and the transaction contemplated by this
Agreement (but not including any individual or entity listed on Schedule
2.1-2 who does not receive shares of Nanogen Series D Preferred Stock in
connection with the Merger because of such Nanotronics Shareholder's
exercise of dissenters' rights under California Law or otherwise; and
not including the individuals or entities listed on Schedule 2.1-2 as
receiving options or warrants to purchase Nanogen Series D Preferred
Stock in exchange for his/hers/its Nanotronics Options or Nanotronics
Warrants, as the case may be).
(e) Change in Laws or Regulations. Since the date of this
Agreement, no statute shall have been enacted and no rule or regulation
shall have been adopted by the State of California or any federal agency
or authority which (i) has had or may reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
business, net worth, assets, prospects, properties,
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employees, operations, obligations or liabilities of Nanogen, or (ii)
would prohibit Merger Sub's ownership or operation of all or a material
portion of the business or assets of Nanotronics, or compel Merger Sub
to dispose of or hold separate all or a material portion of the business
or assets of Nanotronics, as a result of the Merger, or (iii) render any
party unable to consummate the Merger, except for any waiting period
provisions.
(f) Licenses; Filings. All applicable federal and state filing
and licensing requirements relating to or in connection with the Merger
have been satisfied and all applicable federal and state regulatory
approvals have been received, in each case subject to no term, condition
or restriction unacceptable to Nanotronics in its sole judgment.
8.3 Conditions to Obligations of Nanogen and Merger Sub. The obligations
of Nanogen and Merger Sub to effect the Merger and the other transactions
contemplated by this Agreement shall be subject to the fulfillment at or prior
to the Closing of the following conditions, unless waived by Nanogen and Merger
Sub:
(a) Representations and Warranties. The representations and
warranties of Nanotronics set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and as
if made at and as of the Closing Date, except as otherwise contemplated
by this Agreement, and Nanogen, on behalf of itself and Merger Sub,
shall have received a certificate or certificates, substantially in the
form of Exhibit 8.3(a), to such effect.
(b) Performance of Obligations of Nanotronics. Nanotronics shall
have performed in all material respects all obligations required to be
performed by each under this Agreement prior to the Closing Date, and
Nanogen, on behalf of itself and Merger Sub, shall have received a
certificate, substantially in the form of Exhibit 8.3(a), to such
effect.
(c) Opinion of Counsel to Nanotronics. Nanogen, on behalf of
itself and Merger Sub, shall have received an opinion dated as of the
Closing Date of Brobeck, Phleger & Harrison LLP, outside counsel to
Nanotronics, covering the items substantially as set forth in Exhibit
8.3(c).
(d) Dissenters' Rights. Holders of no more than five percent (5%)
of the outstanding shares of Nanotronics Capital Stock shall have
asserted dissenters' rights pursuant to Section 1300 et. seq. of
California Law.
(e) Investor Representation. Nanogen shall have received from
Nanotronics an Investor Representation Statement, substantially in the
form attached hereto as Exhibit 8.3(e), executed by each individual or
entity who will receive Nanogen Series D Preferred Stock or the right to
receive Nanogen Series D Preferred Stock upon consummation of the Merger
(including each Nanotronics Shareholder, each holder of Nanotronics
Options and Nanotronics Warrants and each
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<PAGE> 25
Exchanging Nanotronics Creditor), whereby such individual or entity
makes certain representations and warranties with respect to such
Nanogen Series D Preferred Stock.
(f) Change in Laws or Regulations. Since the date of this
Agreement, no statute shall have been enacted and no rule or regulation
shall have been adopted by the State of California or any federal agency
or authority which (i) has had or may reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
business, net worth, assets, prospects, properties, employees,
operations, obligations or liabilities of Nanotronics, or (ii) would
prohibit Merger Sub's ownership or operation of all or a material
portion of the business or assets of Nanotronics, or compel Merger Sub
to dispose of or hold separate all or a material portion of the business
or assets of Nanotronics, as a result of the Merger, or (iii) render any
party unable to consummate the Merger, except for any waiting period
provisions.
(g) Licenses; Filings. All applicable federal and state filing
and licensing requirements relating to or in connection with the Merger
have been satisfied and all applicable federal and state regulatory
approvals have been received, in each case subject to no term, condition
or restriction unacceptable to Nanogen in its sole judgment on behalf of
itself and Merger Sub.
ARTICLE IX
CLOSING
9.1 Closing Date. The closing of the Merger (the "Closing") shall be
held at the offices of Pillsbury Madison & Sutro LLP, 235 Montgomery Street, San
Francisco, California, at 10:00 A.M. on January 30, 1998 (the "Closing Date"),
or at such other time and place as Nanogen (on behalf of itself and Merger Sub)
and Nanotronics may agree upon in writing. All parties hereto shall use their or
its respective best efforts to cause the Closing Date to be not later than
January 30, 1998.
9.2 Deliveries at Closing. At the Closing, the following documents shall
be delivered:
(a) By Nanotronics.
(i) Certificates representing ownership of 100% of the
capital stock of Nanotronics, duly endorsed by the holder thereof
in favor of Nanogen or, for any Nanotronics share certificate
that cannot be provided, a written representation from the holder
thereof that it cannot be produced and the reason for such
nonproduction, along with a statement from such holder confirming
his or her understanding that such lost certificate has been
cancelled.
(ii) All documents evidencing ownership of Nanotronics
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<PAGE> 26
Options and Nanotronics Warrants, each marked "Canceled."
(iii) All documents evidencing the liabilities or
obligations owed by Nanotronics to the Exchanging Nanotronics
Creditors, each marked "Canceled."
(iv) A certificate of the Secretary of Nanotronics
certifying (A) true, correct and complete copies of the Articles
of Incorporation and Bylaws, each as amended to date, of
Nanotronics, (B) all minutes of meetings of the Board of
Directors of Nanotronics (or written consents in lieu thereof)
relating to the Merger, this Agreement or the transactions
contemplated by this Agreement and (C) all minutes of meetings of
the holders of the capital stock of Nanotronics (or written
consents in lieu thereof) relating to the Merger, this Agreement
or the transactions contemplated by this Agreement.
(v) A certificate of the Secretary of State of the State
of California certifying, as of a recent date prior to Closing,
the good standing of Nanotronics in the State of California.
(vi) A certificate of the Secretary of State of each
jurisdiction in which Nanotronics is qualified to do business
certifying, as of a recent date prior to Closing, the good
standing of Nanotronics in such jurisdiction.
(vii) A cross-receipt evidencing receipt by Nanotronics
(on behalf of itself and the Nanotronics Shareholders, the
holders of Nanotronics Options and Nanotronics Warrants and the
Exchanging Nanotronics Creditors) of (A) certificates
representing ownership of an aggregate 193,385 shares of the
Nanogen Series D Preferred Stock, duly made out as set forth on
Schedule 2.1-2; (B) a warrant representing the right to purchase
1,490 shares of Nanogen Series D Preferred Stock and (c) options
representing the right to purchase an aggregate of 5,124 shares
of Nanogen Series D Preferred Stock.
(viii) All other certificates, opinions and other
documents required by or in connection with this Agreement,
including, but not limited to: (A) an executed counterpart
signature page to the Agreement and Plan of Merger in
substantially the form attached hereto as Exhibit 1.1(a); (B) an
executed Officers' Certificate in substantially the form attached
hereto as Exhibit 1.3(a); (C) an executed Officer's Certificate
in substantially the form attached hereto as Exhibit 8.3(a); (D)
a signed opinion of counsel to Nanotronics in substantially the
form attached hereto as Exhibit 8.3(c); and (E) one or more
Investor Representation Statements, in substantially the form
attached hereto as Exhibit 8.3(e), and executed by each
Nanotronics
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<PAGE> 27
Shareholder, each holder of Nanotronics Options and Nanotronics
Warrants and each Exchanging Nanotronics Creditor.
(b) By Nanogen (on behalf of itself and Merger Sub).
(i) (A) certificates representing ownership of an
aggregate 193,385 shares of Nanogen Series D Preferred Stock, (B)
a warrant representing the right to purchase 1,490 shares of
Nanogen Series D Preferred Stock, and (C) options representing
the right to purchase an aggregate of 5,124 shares of Nanogen
Series D Preferred Stock, each made out as set forth on Schedule
2.1-2.
(ii) All consents, permits or other documents required to
be obtained by Nanotronics in connection with this Agreement.
(iii) A certificate of the Secretary of Nanogen certifying
(A) true, correct and complete copies of the Restated Certificate
of Incorporation and Bylaws, each as amended to date, of each of
Nanogen and Merger Sub, (B) all minutes of meetings of the Boards
of Directors of each of Nanotronics and Merger Sub (or written
consents in lieu thereof) relating to the Merger, this Agreement
or the transactions contemplated by this Agreement and (C) all
minutes of meetings of the holders of the capital stock of each
of Nanogen and Merger Sub (or written consents in lieu thereof)
relating to the Merger, this Agreement or the transactions
contemplated by this Agreement.
(iv) A certificate of the Secretary of State of the State
of California certifying, as of a recent date prior to Closing,
the good standing of each of Nanogen and Merger Sub in the State
of California.
(v) A certificate of the Secretary of State of each
jurisdiction in which either Nanogen or Merger Sub is qualified
to do business certifying, as of a recent date prior to Closing,
the good standing of either Nanogen or Merger Sub, as the case
may be, in such jurisdiction.
(vi) A cross-receipt evidencing receipt by Nanogen (on
behalf of itself and Merger Sub) of (a) certificates representing
ownership of 100% of the capital stock of Nanotronics, duly
endorsed by the holder thereof in favor of Nanogen, (b) all
documents evidencing ownership of Nanotronics Options and
Nanotronics Warrants, each marked "Canceled," and (c) all
documents evidencing the liabilities or obligations owed by
Nanotronics to the Exchanging Nanotronics Creditors, each marked
"Canceled."
(vii) All other certificates, opinions and other documents
required by or in connection with this Agreement, including, but
not
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<PAGE> 28
limited to: (A) an executed counterpart signature page to the
Agreement and Plan of Merger in substantially the form attached
hereto as Exhibit 1.1(a); (B) an executed Officers' Certificate
in substantially the form attached hereto as Exhibit 1.3(b); (C)
an executed Officer's Certificate in substantially the form
attached hereto as Exhibit 8.2(a); and (D) a signed opinion of
counsel to Nanogen and Merger Sub in substantially the form
attached hereto as Exhibit 8.2(c).
ARTICLE X
TERMINATION; AMENDMENT; WAIVER
10.1 Termination. This Agreement may be terminated at any time prior to
or on the Closing Date:
(a) By mutual agreement of Nanogen (on behalf of itself and
Merger Sub) and Nanotronics;
(b) By Nanotronics if on or before January 30, 1998, any of the
conditions specified in Sections 8.1 and 8.2 has not been met or waived
by Nanotronics; or
(c) By Nanogen (acting on behalf of itself and Merger Sub) if on
or before January 30, 1998, any of the conditions specified in Sections
8.1 and 8.3 has not been met or waived by Nanogen.
10.2 Effect of Termination. In the event of termination of this
Agreement by Nanotronics, on the one hand, or Nanogen (acting on behalf of
itself and Merger Sub), on the other, as provided above, this Agreement shall
forthwith become void and there shall be no liability on the part of any party
hereto, except for the willful breaches of this Agreement prior to the time of
such termination.
10.3 Amendment. This Agreement may not be amended except by an
instrument in writing signed by or on behalf of each of the parties hereto.
10.4 Extension; Waiver. At any time prior to the Closing Date, any party
may (a) extend the time for the performance of any of the obligations or other
acts of the other parties hereto (provided that the term of this Agreement shall
not be extended without the consent of all parties), (b) waive any inaccuracies
in the representations and warranties contained herein for its benefit or in any
document delivered to it pursuant hereto and (c) waive compliance with any of
the agreements or conditions contained herein for its benefit. Any agreement on
the part of a party hereto to any such extension or waiver shall not be valid
unless set forth in any instrument in writing signed on behalf of such party.
<PAGE> 29
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Schedule Updates. Nanotronics and Nanogen (on behalf of itself and
Merger Sub) shall each promptly disclose to the other party if any material
information contained in its respective representations and warranties is
incomplete or is no longer correct as of all times after the date hereof until
the Closing.
11.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to contracts
between California residents entered into and to be performed entirely within
the State of California.
11.3 Successors and Assigns. No part of this Agreement or any rights,
duties or obligations described herein shall be assigned or delegated without
the express written consent of the parties hereto, except that Nanogen (on
behalf of itself and Merger Sub) may assign its and/or Merger Sub's rights,
obligations and responsibilities to an affiliate of Nanogen. Except as otherwise
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors and assigns of the parties hereto.
11.4 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subject hereof
and supersedes all prior agreements and understandings, both written and oral.
11.5 Arbitration. Any controversy arising out of, or relating to this
Agreement or any document or other agreement referenced in this Agreement, or
any modification or extension hereof or thereof, including any claim for damages
or rescission, shall be submitted to arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, San
Francisco, California ("AAA"). In all cases submitted to AAA for arbitration,
the parties agree to advance their respective administrative fees and to advance
in equal shares the arbitrator(s)' fee(s). Notwithstanding any rules or
procedures of the AAA to the contrary, the arbitrator(s) shall be bound to
render a decision in accordance with applicable state and federal laws and shall
issue a written opinion setting forth findings of fact and conclusions of laws
which shall be subject to judicial review. The parties agree that the decision
of the arbitrator(s) shall be final and binding upon each of them. Any
arbitration award shall include the cost of arbitration and reasonable
attorneys' fees to the prevailing party. Any arbitration shall be conducted and
determined in San Diego, California.
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<PAGE> 30
11.6 Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the other shall be in writing and delivered
personally or sent by certified mail, postage prepaid, by telecopy, or by
courier service, as follows:
(a) If to Nanogen to: with copies to:
Nanogen Inc. Pillsbury Madison & Sutro LLP
10398 Pacific Center Court 235 Montgomery Street
San Diego, CA 92121 San Francisco, CA 94104
Attn: General Counsel Attn: Thomas E. Sparks, Jr.
Tel: (619) 546-7700 Tel: (415) 983-1000
Fax: (619) 546-7717 Fax: (415) 983-1200
(a) If to Merger Sub to: with copies to:
Nanogen Merger Subsidiary, Inc. Pillsbury Madison & Sutro LLP
10398 Pacific Center Court 235 Montgomery Street
San Diego, CA 92121 San Francisco, CA 94104
Attn: General Counsel Attn: Thomas E. Sparks, Jr.
Tel: (619) 546-7700 Tel: (415) 983-1000
Fax: (619) 546-7717 Fax: (415) 983-1200
(c) If to Nanotronics to: with copies to:
Nanotronics, Inc. Brobeck, Phleger & Harrison LLP
c/o Enterprise Partners 550 West C Street, Ste. 1300
1205 Prospect Street, Ste. 550 San Diego, CA 92101
La Jolla, CA 92037 Attn: Craig S. Andrews
Attn: James Bergland
Tel: (619) 454-8833 Tel: (619) 234-1966
Fax: (619) 454-2489 Fax: (619) 236-1403
11.7 Cooperation. All parties agree to execute and deliver such other
documents, certificates, agreements and other writings and to take such other
actions as may be necessary or desirable in order to expeditiously consummate or
implement the transactions contemplated by this Agreement.
11.8 Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.9 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement, upon any breach or
default of another party under this Agreement, shall impair any such right,
power or remedy of such party nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of or in any
<PAGE> 31
similar breach or default thereunder occurring; nor shall any waiver of any
single breach or default theretofore or thereafter occurring. Any waiver,
permit, consent or approval of any kind or character on the part of any party of
any breach or default under this Agreement, or any waiver on the part of any
party of any provisions or conditions of this Agreement, must be in writing and
shall be effective only to the extent specifically set forth in such writing.
All remedies, either under this Agreement, or by law or otherwise afforded to
any party, shall be cumulative and not alternative.
11.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which may be executed by less than all of the parties,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
11.11 Severability. In the case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
[The remainder of this page intentionally left blank]
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<PAGE> 32
IN WITNESS WHEREOF, each of the undersigned parties have caused this
Agreement to be executed, all as of the date first above written.
NANOGEN, INC.
By: /s/ Tina S. Nova, Ph.D.
-----------------------------------------
Tina S. Nova, Ph.D.
President and Chief Operating Officer
NANOGEN MERGER SUBSIDIARY, INC.
By: /s/ Tina S. Nova, Ph.D.
-----------------------------------------
Tina S. Nova, Ph.D.
President and Chief Operating Officer
NANOTRONICS, INC.
By: /s/ Andrew E. Senyei, M.D.
----------------------------------------
Andrew E. Senyei, M.D.
President
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<PAGE> 33
EXHIBIT 1.1(a)
FORM OF AGREEMENT OF MERGER TO BE FILED
IN CALIFORNIA TO EFFECTUATE THE MERGER
AGREEMENT OF MERGER
This AGREEMENT OF MERGER, dated as of ________ ___, 1997, among NANOGEN,
INC., a Delaware corporation ("Buyer"), NANOGEN MERGER SUBSIDIARY, INC., a
California corporation ("Merger Sub"), and NANOTRONICS, INC., a California
corporation (the "Company");
W I T N E S S E T H:
Whereas the Board of Directors of Buyer, Merger Sub and the Company have
determined that it is advisable to merge Merger Sub with and into the Company
pursuant to this Agreement of Merger with the result that the Company shall
become a wholly-owned subsidiary of the Buyer; and
Whereas the parties to this Agreement have entered into that certain
Agreement and Plan of Merger dated December 18, 1997 (the "Plan of Merger");
N o w, T h e r e f o r e, in consideration of the premises and the
mutual covenants herein contained, Buyer, Merger Sub and the Company hereby
agree as follows:
1. Merger. As of the Effective Time (as defined in Section 6 herein),
Merger Sub shall merge with and into the Company; the corporate existence of the
Company shall continue; and the separate corporate existence of Merger Sub shall
cease. The corporate identity, existence, name, purposes, franchises, powers,
rights and immunities of the Company shall continue unaffected and unimpaired by
the merger; and the corporate identity, existence, purposes, franchises, powers,
rights and immunities of Merger Sub shall be merged into the Company which shall
be fully vested therewith. The Company shall be subject to all of the debts and
liabilities of Merger Sub as if the Company had itself incurred them and all
rights of creditors and all liens upon the property of each of the Company and
Merger Sub shall be preserved unimpaired, provided that such liens, if any, upon
the property of Merger Sub shall be limited to the property affected thereby
immediately prior to the Effective Date.
2. Articles of Incorporation and Bylaws. The Articles of Incorporation
of the Company, as amended and restated to date and as in effect immediately
prior to the Effective Time shall be the Articles of Incorporation of the
Surviving Corporation, until amended or replaced in accordance with applicable
law. The Bylaws of the Company, as amended and restated to date and as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation, until amended or replaced in accordance with applicable law.
3. Directors and Officers. The directors and officers of the Company
from and after the Effective Time (until changed in accordance with applicable
law and the articles of incorporation and bylaws of the Company) shall be:
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<PAGE> 34
Directors: Howard C. Birndorf
Brook H. Byers
Robert E. Curry, Ph.D.
Cam Garner
David Ludvigson
Thomas G. Lynch
Tina S. Nova, Ph.D.
Andrew E. Senyei, M.D.
Officers: Tina S. Nova, Ph.D., President
Harry J. Leonhardt, Secretary
Steven P. Naber, Chief Financial Officer
4. Effect of Merger on Outstanding Shares.
4.1 Conversion of Company Shares. At the Effective Time, by virtue of
the Merger and without any action on the part of the Merger Sub, the Company or
the holder of any of the following securities, the following securities shall be
converted as provided below:
(a) each share of common stock, no par value, of the Company (the
"Company Common Stock"), issued and outstanding immediately prior to the
Effective Time shall be canceled and extinguished and be converted into
and become a right to receive .165296688 shares of Series D Preferred
Stock of the Buyer, par value $.001 per share ("Buyer's Preferred
Stock");
(b) each share of preferred stock, no par value, of the Company
(the "Company Preferred Stock"), issued and outstanding immediately
prior to the Effective Time shall be canceled and extinguished and be
converted into and become a right to receive .195135267 shares of
Buyer's Preferred Stock;
(c) each share of common stock, no par value, of Merger Sub
issued and outstanding immediately prior to the Effective Time shall be
converted into one (1) validly issued, fully paid and nonassessable
share of the common stock, no par value, of the Surviving Corporation;
(d) each option to purchase shares of the capital stock of the
Company outstanding immediately prior to the Effective Time shall be
converted into an option to purchase that number of shares of Buyer's
Preferred Stock as are obtained by multiplying the number of shares of
the capital stock of the Company for which such option was exercisable
by the applicable exchange ratio at an exercise price obtained by
dividing the exercise price at which such option was exercisable by the
applicable exchange ratio; and
(e) each warrant to purchase shares of the capital stock of the
Company outstanding immediately prior to the Effective Time shall be
converted into a warrant to purchase that number of shares of Buyer's
Preferred Stock as are obtained by
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<PAGE> 35
multiplying the number of shares of the capital stock of the Company for
which such warrant was exercisable by the applicable exchange ratio at
an exercise price obtained by dividing the exercise price at which such
warrant was exercisable by the applicable exchange ratio.
4.2 Fractional Shares. No fractional shares shall be issued by Buyer in
the merger. The number of shares of Buyer's Preferred Stock into which each
Company shareholder's shares shall be converted shall be rounded (up if the
fraction is .50 or greater and down if the fraction is less than .50) into the
closest whole number of shares of Buyer's Preferred Stock.
5. Surrender of Share Certificates. After the Effective Time, each
holder of an outstanding certificate evidencing capital stock of the Company
shall surrender the same to the Buyer or its agent for cancellation and be
entitled to receive a certificate or certificates representing the number of
shares of Buyer's Preferred Stock into which the shares represented by the
certificate so surrendered shall have been converted as provided in Section 4.
From and after the Effective Time, until so surrendered, each certificate
representing shares converted as provided in Section 4 shall be deemed for all
corporate purposes to evidence the number of shares of Buyer's Preferred Stock
into which such shares shall have been converted.
6. Effective Time. The Company and Merger Sub shall each take or cause
to be taken all such actions, or do or cause to be done all such things, as are
necessary, proper or advisable under the laws of the State of California to make
effective the merger herein provided, subject, however, to receipt of any
required approval by outstanding shares of either in accordance with California
law and subject also to completion of any necessary qualification of securities
under the Corporate Securities Law of California and to compliance with all
other applicable laws. Unless this Agreement shall be terminated as herein
provided, the Company and Merger Sub each agrees to use its best efforts,
subject to the foregoing conditions, to take or cause to be taken all actions as
aforesaid. Upon compliance with applicable laws and upon receipt of any required
approval of the outstanding shares of either party, a copy of this Agreement of
Merger with an officer's certificate of each of the Company and Merger Sub as
required by Section 1103 of the California Corporations Code shall be filed in
the office of the California Secretary of State. The merger shall become
effective upon such filing. The time at, and the date on, which the merger so
becomes effective are herein called the "Effective Time" and "Effective Date,"
respectively.
7. Operation of Businesses Pending Consummation of Merger. Prior to the
Effective Date, neither the Company nor Merger Sub shall, without the prior
written approval of the other, (a) engage in any activity or transaction other
than in the ordinary course of business, except as contemplated by this
Agreement and the Plan of Merger, or (b) issue, sell or subdivide any of its
shares, or (c) issue any shares, any options, warrants, or rights to purchase
any shares or any securities convertible into or exchangeable for any shares, or
(d) declare or pay any dividend or make any distribution on any of its shares,
or (e) purchase or redeem any of its outstanding shares.
8. Termination or Abandonment. This Agreement of Merger may be
terminated and the Merger hereby provided for abandoned at any time prior to the
Effective Time by the mutual consent of the respective boards of directors of
Buyer, Merger Sub and the Company. In the event of termination of this Agreement
as herein provided, neither Buyer, Merger Sub nor the Company or their
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<PAGE> 36
respective boards of directors or shareholders shall be liable to the other or
its directors or shareholders.
9. Other Provisions.
9.1 Governing law. This Agreement of Merger shall be construed in
accordance with the laws of the State of California as applied to contracts
between California residents entered into in and to be performed wholly within
California, without regard to California choice of law provisions.
9.2 Entire agreement. This Agreement and the Plan of Merger, including
all exhibits, schedules and annexes thereto, contain the entire agreement of the
parties hereto, and supersede any prior written or oral agreements between them
concerning the subject matter contained herein.
9.3 Counterparts. This Agreement of Merger may be executed in any number
of counterparts and each such counterpart shall be deemed to be an original
instrument, but all of such counterparts together shall constitute but one
agreement.
9.4 Further Assurances. Merger Sub shall from time to time upon request
by the Company execute and deliver all such documents and instruments and take
all such action as the Company may request in order to vest or evidence the
vesting in the Company of title to and possession of all rights, properties,
assets and business of Merger Sub, or otherwise to carry out the full intent and
purpose of this Agreement of Merger.
- 4 -
<PAGE> 37
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Merger as of the date set forth above.
NANOGEN, INC.
By:
------------------------------------------------
Tina S. Nova, Ph.S.
President and Chief Operating Officer
By:
------------------------------------------------
Harry J. Leonhardt
Vice President, General Counsel and Secretary
NANOGEN MERGER SUBSIDIARY, INC.
By:
------------------------------------------------
Tina S. Nova, Ph.D.
President and Chief Operating Officer
By:
------------------------------------------------
Harry J. Leonhardt
Vice President, General Counsel and Secretary
NANOTRONICS, INC.
By: ------------------------------------------------
Name:
Title: President
By: ------------------------------------------------
Name:
Title: Secretary
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<PAGE> 38
EXHIBIT 1.3(a)
FORM OF NANOTRONICS OFFICERS' CERTIFICATE
TO ACCOMPANY THE FILING OF THE EXECUTED
MERGER AGREEMENT IN CALIFORNIA
(PURSUANT TO SECTION 1.3 OF THE AGREEMENT AND PLAN OF MERGER)
NANOTRONICS, INC.,
A CALIFORNIA CORPORATION
CERTIFICATE OF APPROVAL
OF AGREEMENT OF MERGER
OFFICERS' CERTIFICATE
PURSUANT TO SECTION 1103 OF THE
CALIFORNIA CORPORATIONS CODE
Each of the undersigned hereby states and certifies, in accordance with
Section 1103 of the California Corporations Code, that
i. He or she is an officer of Nanotronics, Inc., a California
corporation ("Nanotronics"), duly authorized to execute this
certificate.
ii. The Agreement of Merger, dated as of December __, 1997 (the
"Merger Agreement"), entered into between Nanotronics and Nanogen
Merger Subsidiary, Inc., a California corporation ("Merger Sub"),
to which this Certificate is attached, was duly approved by the
Board of Directors and shareholders of Nanotronics.
iii. Nanotronics has two classes of shares, common stock, no par
value, and preferred stock, no par value. As of November 24,
1997, the total number of outstanding shares of common stock of
Nanotronics was 344,639, and the total number of outstanding
shares of preferred stock was 550,923. All such shares were
entitled to vote upon approval of the Merger Agreement.
iv. The affirmative vote of the holders of not less than a majority
of the outstanding shares of common stock, voting as a separate
class, and the holders of not less than a majority of the
outstanding shares of preferred stock, voting together as a
separate class, was required for the approval of the Merger
Agreement.
v. The principal terms of the Merger Agreement, in the form to which
this Certificate is attached, were approved by Nanotronics by
written consent of shareholders holding the number of shares
which equal or exceeded the vote required.
<PAGE> 39
We further declare under penalty of perjury under the laws of the State
of California that the matters set forth in this Certificate are true and
correct of our own knowledge.
Signed on _____________ __, 199[ ]
NANOTRONICS, INC.
By:
-----------------------------------------
Name:
Title: President
By:
-----------------------------------------
Name:
Title: Secretary
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<PAGE> 40
EXHIBIT 1.3(b)
FORM OF MERGER SUB OFFICERS' CERTIFICATE
TO ACCOMPANY THE FILING OF THE EXECUTED
MERGER AGREEMENT IN CALIFORNIA
(PURSUANT TO SECTION 1.3 OF THE AGREEMENT AND PLAN OF MERGER)
NANOGEN MERGER SUBSIDIARY, INC.,
A CALIFORNIA CORPORATION
CERTIFICATE OF APPROVAL
OF AGREEMENT OF MERGER
OFFICER'S CERTIFICATE
PURSUANT TO SECTION 1103 OF THE
CALIFORNIA CORPORATIONS CODE
Tina S. Nova, Ph.D. and Harry J. Leonhardt each hereby state and
certify, in accordance with Section 1103 of the California Corporations Code,
that:
i. They are the President and Chief Operating Officer and Vice
President, General Counsel and Secretary, respectively, of
Nanogen Merger Subsidiary, Inc., a California corporation
("Merger Sub"), and both are duly authorized to execute this
Certificate.
ii. The Agreement of Merger, dated as of December __, 1997 (the
"Merger Agreement"), entered into between Merger Sub and
Nanotronics, Inc., a California corporation ("Nanotronics"), to
which this Certificate is attached, was duly approved by the
Board of Directors and sole shareholder of Merger Sub.
iii. Merger Sub has two classes of shares, common stock, no par value,
and preferred stock, no par value. As of November 24, 1997, the
total number of outstanding shares of common stock of Merger Sub
was 100, all of which were owned by Nanogen, Inc., a Delaware
corporation (the "Parent"), and the total number of outstanding
shares of preferred stock was zero (0). All such shares were
entitled to vote upon approval of the Merger Agreement.
iv. The affirmative vote of the holders of not less than a majority
of the outstanding shares of common stock, voting as a separate
class, and the holders of not less than a majority of the
outstanding shares of preferred stock, voting together as a
separate class, was required for the approval of the Merger
Agreement.
v. The principal terms of the Merger Agreement in the form attached
were approved by written consent of the sole shareholder.
<PAGE> 41
vi. No vote of the stockholders of the Parent was required under any
of the General Corporation Law of the State of Delaware, the
California Corporations Code or the Restated Certificate of
Incorporation or Bylaws of the Parent in connection with the
Merger and the issuance of the Parent's Series D Preferred Stock
in connection with the Merger.
We further declare under penalty of perjury under the laws of the State
of California that the matters set forth in this Certificate are true and
correct of our own knowledge.
Signed on _____________ __, 199[ ]
NANOGEN MERGER SUBSIDIARY, INC.
By:
-------------------------------------
Tina S. Nova, Ph.D.
President and Chief Operating Officer
By:
-------------------------------------
Harry J. Leonhardt
Vice President, General Counsel and
Secretary
- 2 -
<PAGE> 42
EXHIBIT 8.2(a)
FORM OF CERTIFICATE OF NANOGEN, INC.
AND NANOGEN MERGER SUBSIDIARY, INC.
(PURSUANT TO SECTIONS 8.2(A) AND 8.2(B) OF THE AGREEMENT AND PLAN OF MERGER)
The undersigned, the President and Chief Operating Officer of each of
Nanogen, Inc., a Delaware corporation (the "Company"), and Nanogen Merger
Subsidiary, Inc., a California corporation ("Merger Sub"), does hereby certify,
that to the best of her knowledge after reasonable investigation, pursuant to
Sections 8.2(a) and 8.2(b) of that certain Agreement and Plan of Merger (the
"Agreement"), dated December 18, 1997, by and among the Company, Merger Sub and
Nanotronics, Inc., a California corporation ("Nanotronics"), as follows
(capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Agreement):
1. The representations and warranties of each of the Company and
Merger Sub contained in Article V of the Agreement are true and
correct in all material respects as of the date hereof as if made
on the date hereof (except as otherwise contemplated by the
Agreement).
2. Each of the Company and Merger Sub has performed in all material
respects all obligations required to be performed by it pursuant
to the Agreement at or prior to the date hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of this ___ day of
_____________, 199[ ].
---------------------------------------------
Name: Tina S. Nova, Ph.D.
Title: President and Chief Operating Officer
<PAGE> 43
EXHIBIT 8.2(c)
MATTERS TO BE COVERED IN
OPINION OF COUNSEL TO NANOGEN, INC. ("NANOGEN")
AND NANOGEN MERGER SUBSIDIARY, INC. ("MERGER SUB")
CAPITALIZED TERMS NOT OTHERWISE DEFINED IN THE OPINION OF COUNSEL TO NANOGEN AND
MERGER SUB SHALL HAVE THE MEANING ASCRIBED TO THEM IN THE AGREEMENT AND PLAN OF
MERGER.
1. Nanogen and Merger Sub are corporations duly organized, validly
existing and in good standing under the laws of the States of Delaware and
California, respectively. Each of Nanogen and Merger Sub has all requisite
corporate power to own its properties and to conduct its business as it is
currently being conducted.
2. Each of Nanogen and Merger Sub has all requisite corporate power and
authority to execute and deliver the Agreement and perform its obligations under
the Agreement.
3. The execution, delivery and performance of the Agreement and the
consummation of the transactions contemplated thereby have been duly authorized
by each of Nanogen and Merger Sub.
4. The Agreement is the valid and legally binding obligation of each of
Nanogen and Merger Sub, enforceable against each in accordance with its terms,
subject as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws relating to or
affecting the enforcement of creditors' rights generally and subject to the
availability of equitable remedies.
5. The execution, delivery and performance of the Agreement do not
violate any provision of Merger Sub's Certificate of Incorporation or Bylaws,
and, to such counsel's knowledge, do not constitute a material default under the
provisions of any material agreement to which Merger Sub is a party or by which
it is bound, and do not violate or contravene (i) any governmental statute, rule
or regulation applicable to Merger Sub or (ii) any order, writ, judgment,
injunction, decree, determination or award which has been entered against Merger
Sub and of which such counsel is aware, the violation or contravention of which
would materially and adversely affect Merger Sub, its assets, financial
condition or operations.
6. The execution, delivery and performance of the Agreement and the
issuance of shares of Nanogen Series D Preferred Stock pursuant thereto do not
violate any provision of Nanogen's Restated Certificate of Incorporation or
Bylaws, and, to such counsel's knowledge, do not constitute a material default
under the provisions of any material agreement to which Nanogen is a party or by
which it is bound, and do not violate or contravene (i) any governmental
statute, rule or regulation applicable to Nanogen or (ii) any order, writ,
judgment, injunction, decree, determination or award which has been entered
against Nanogen and of which such counsel is aware, the violation or
contravention of which would materially and adversely affect Nanogen, its
assets, financial condition or operations.
<PAGE> 44
7. The shares of Nanogen Series D Preferred Stock to be delivered in
exchange for the Assets will, when issued as contemplated by the Agreement, be
duly issued, fully paid and nonassessable.
8. Based in part upon the representations and warranties of each
Nanotronics Shareholder, each holder of Nanotronics Options and Nanotronics
Warrants and each Exchanging Nanotronics Creditor contained in the executed
Investor Representation Statements delivered by Nanotronics pursuant to the
Agreement, the offer and sale of the Nanogen Series D Preferred Stock pursuant
to the terms of the Agreement are exempt from the registration requirements of
Section 5 of the Securities Act of 1933, as amended, and from the qualification
requirements of the California Corporate Securities Law of 1968, as amended,
and, under such securities laws as they presently exist, the issuance of the
common stock, $.001 par value per share, upon the conversion of the Nanogen
Series D Preferred Stock would also be exempt from such registration and
qualification requirements. We express no opinion as to compliance with
applicable anti-fraud statutes, rules or regulations of any applicable law
governing the issue of securities.
Such counsel may explain knowledge qualifiers in his or her opinion as
follows:
The opinions set forth above may be made subject to
qualifications set forth in a separate paragraph. Whenever a statement
herein is qualified by "known to such counsel," "to such counsel's
knowledge," "to our knowledge," or similar phrase, it indicates that in
the course of such counsel's representation of Nanogen no information
that would give such counsel current actual knowledge of the inaccuracy
of such statement has come to the attention of such counsel or any
attorneys in his or her firm who have rendered legal services in
connection with this transaction. Such counsel need not make any
independent investigation to determine the accuracy of such statement,
except as expressly described in such opinion. No inference as to such
counsel's knowledge of any matters bearing on the accuracy of such
statement should be drawn from the fact of such counsel's representation
of Nanogen or Merger Sub in other matters in which such attorneys are
not involved.
- 2 -
<PAGE> 45
EXHIBIT 8.3(a)
FORM OF CERTIFICATE OF NANOTRONICS, INC.
(PURSUANT TO SECTIONS 8.3(a) AND 8.3(b) OF THE AGREEMENT AND PLAN OF MERGER)
The undersigned, the principal executive officer of Nanotronics, Inc., a
California corporation ("Nanotronics"), does hereby certify, that to the best of
his knowledge after reasonable investigation, pursuant to Sections 8.3(a) and
8.3(b) of that certain Agreement and Plan of Merger (the "Agreement"), dated
December 18, 1997, by and among Nanogen, Inc., a Delaware corporation, Nanogen
Merger Subsidiary, Inc., a California corporation, and Nanotronics, as follows
(capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Agreement):
1. The representations and warranties of Nanotronics contained in
Article IV of the Agreement are true and correct in all material
respects as of the date hereof as if made on the date hereof
(except as otherwise contemplated by the Agreement).
2. Nanotronics has performed in all material respects all
obligations required to be performed by it pursuant to the
Agreement at or prior to the date hereof.
IN WITNESS WHEREOF, I have hereunto signed my name as of this ___ day of
_____________, 199[ ].
------------------------------------------
Name:
Title:
<PAGE> 46
EXHIBIT 8.3(c)
MATTERS TO BE COVERED IN OPINION
OF COUNSEL TO NANOTRONICS, INC. ("NANOTRONICS")
[To Come]
<PAGE> 47
EXHIBIT 8.3(e)
FORM OF INVESTOR REPRESENTATION STATEMENT
The undersigned, in connection with the undersigned's receipt of shares
of the Series D Preferred Stock, $.001 par value per share (the "Nanogen Series
D Preferred Stock"), of Nanogen, Inc., a Delaware corporation ("Nanogen"),
pursuant to the transactions contemplated by that certain Agreement and Plan of
Merger (the "Agreement and Plan of Merger"), dated as of December 18, 1997, by
and among Nanogen, Nanogen Merger Subsidiary, Inc., a California corporation and
wholly owned subsidiary of Nanogen ("Merger Sub"), and Nanotronics, Inc., a
California corporation ("Nanotronics"), whereby Merger Sub will be merged with
and into Nanotronics in accordance with the terms and conditions of the
Agreement and Plan of Merger (the "Merger"), under penalty of perjury, hereby
represents and warrants to Nanogen as follows:
a. Purchase Entirely for Own Account. The Nanogen Series D
Preferred Stock to be received by the undersigned in connection with the
Merger is being acquired for investment and not with a view to the
resale or distribution of any part thereof, and the undersigned has no
present intention of selling, granting any participation in, or
otherwise distributing the same. By his/her/its execution of this
Statement, the undersigned further represents that the undersigned does
not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to such person or to
any third person, with respect to any of the shares of Nanogen Series D
Preferred Stock.
b. Disclosure of Information. The undersigned believes he/she/it
has received all the information he/she/it considers necessary or
appropriate to decide whether to acquire the Nanogen Series D Preferred
Stock. The undersigned further represents that he/she/it has had an
opportunity to ask questions and receive answers from Nanogen regarding
Nanogen, its business, and the terms and conditions of the offering of
the Nanogen Series D Preferred Stock in connection with the Merger. With
respect to tax and other economic considerations involved in this
investment, the undersigned is expressly not relying on either Nanogen
or Merger Sub.
c. Restricted Securities. The undersigned understands that the
Nanogen Series D Preferred Stock he/she/it is acquiring are
characterized as "restricted securities" under the federal securities
laws inasmuch as they are being acquired from Nanogen on behalf of
Merger Sub in a transaction not involving a public offering and that
under such laws and applicable regulations such securities may be resold
without registration under the Securities Act of 1933, as amended (the
"Securities Act") only in certain limited circumstances. In this
connection the undersigned represents that he/she/it is familiar with
Rule 144 as promulgated under the Securities Act, as presently in
effect, and understands the resale limitations imposed thereby and by
the Securities Act.
d. Further Limitations on Disposition. Without in any way
limiting the representations set forth above, the undersigned further
agrees not to make any
<PAGE> 48
disposition of all or any portion of the Nanogen Series D Preferred
Stock unless and until:
i. There is then in effect a registration statement under
the Securities Act covering such proposed disposition and such
disposition is made in accordance with such registration
statement; or
ii. The undersigned shall have notified Nanogen of the
proposed disposition and shall have furnished Nanogen with a
detailed statement of the circumstances surrounding the proposed
disposition and, if reasonably requested by Nanogen, the
undersigned shall have furnished Nanogen with an opinion of
counsel, reasonably satisfactory to Nanogen that such disposition
will not require registration of such shares under the Securities
Act.
e. Legends. The undersigned understands that the certificates
evidencing the Nanogen Series D Preferred Stock may bear one or all of
the following legends:
i. "These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold, offered
for sale, pledged or hypothecated in the absence of a
registration statement in effect with respect to the securities
under such Act or an opinion of counsel satisfactory to Nanogen,
Inc. that such registration is not required or unless sold
pursuant to Rule 144 of such Act."
ii. Any legend required by the laws of the State of
California or other jurisdiction.
In witness whereof, the undersigned has executed this Investor
Representation Statement this _____ day of ____________, 1997.
-----------------------------------------
[Name]
- 2 -
<PAGE> 49
SCHEDULE 2.1-1
SCHEDULE OF HOLDERS OF NANOTRONICS CAPITAL STOCK
COMMON STOCK PREFERRED STOCK
HOLDERS SHARES SHARES
------- ------ ------
Enterprise Partners II, L.P. 688 433,583
Enterprise Partners II Associates, L.P. 62 39,417
Enterprise Partners III, L.P. -- 10,000
Howard C. Birndorf 37,527 25,000
Craig S. Andrews 2,000
The Salk Institute for Biological Studies 40,923
Edward Wang 44,150
Michael Heller 150,107
Glen Evans 40,000
John Hopfield 5,000
Jeff Cable 25,000
Denis McGreivy 42,105
------- -------
TOTALS 344,639 550,923
======= =======
<PAGE> 50
SCHEDULE 2.1-2
SCHEDULE OF CERTIFICATES FOR NANOGEN SERIES D PREFERRED STOCK
AND OPTIONS AND WARRANTS TO PURCHASE NANOGEN SERIES D
PREFERRED STOCK TO BE ISSUED BY NANOGEN
<TABLE>
<CAPTION>
TOTAL NUMBER
OPTIONS TO WARRANTS TO OF SHARES OF OR
NUMBER OF PURCHASE PURCHASE OPTIONS OR
SHARES OF NUMBER OF NUMBER OF WARRANTS
NANOGEN SHARES OF SHARES OF EXCHANGEABLE
SERIES D NANOGEN SERIES NANOGEN SERIES FOR NANOGEN
PREFERRED D PREFERRED D PREFERRED SERIES D
STOCK TO BE STOCK TO BE STOCK TO BE PREFERRED
REGISTERED OWNER ISSUED ISSUED ISSUED STOCK
----------------------------------------- -------------- ------------ --------------- ---------------
<S> <C> <C> <C> <C>
Enterprise Partners II, L.P.
(9,931 shares to be issued in exchange
for Nanotronics debt held by this entity
and 84,721 shares to be issued in exchange
for shares of Nanotronics capital stock
held by this entity) 94,652 94,652
Brobeck, Phleger & Harrison LLP (9,167
shares to be issued in exchange for
Nanotronics debt held by this entity) 9,167 9,167
Enterprise Partners II, L.P. (816
shares to be issued in exchange for
Nanotronics debt held by this entity
and 7,702 shares to be issued in exchange
for shares of Nanotronics capital stock
held by this entity) 8,518 8,518
Enterprise Partners III, L.P. (8,280
shares to be issued in exchange for
Nanotronics debt held by this entity
and 1,951 shares to be issued in exchange
for shares of Nanotronics capital stock
held by this entity) 10,231 10,231
Enterprise Partners III, L.P. (720 shares
to be issued in exchange for Nanotronics
debt held by this entity) 720 720
Michael Heller 24,812 24,812
Howard C. Birndorf 11,081 11,081
Craig Andrews 390 390
The Salk Institute for Biological
Studies 7,986 7,986
Edward Wang 7,298 7,298
John Hopfield 826 826
Jeff Cable 4,132 4,132
Glen Evans 6,612 6,612
Denis McGreivy 6,960 6,960
</TABLE>
<PAGE> 51
<TABLE>
<CAPTION>
TOTAL NUMBER
OPTIONS TO WARRANTS TO OF SHARES OF OR
NUMBER OF PURCHASE PURCHASE OPTIONS OR
SHARES OF NUMBER OF NUMBER OF WARRANTS
NANOGEN SHARES OF SHARES OF EXCHANGEABLE
SERIES D NANOGEN SERIES NANOGEN SERIES FOR NANOGEN
PREFERRED D PREFERRED D PREFERRED SERIES D
STOCK TO STOCK TO BE STOCK TO BE PREFERRED
REGISTERED OWNER ISSUED ISSUED ISSUED STOCK
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Gene Tu 992 992
Dominion Ventures, Inc. 1,490 1,490
Sadik Esener 4,132 4,132
------- ----- ----- -------
Totals 193,385 5,124 1,490 199,999
======= ===== ===== =======
</TABLE>
-2-
<PAGE> 52
SCHEDULE 2.2(a)
SCHEDULE OF HOLDERS OF NANOTRONICS OPTIONS AND WARRANTS
<TABLE>
<CAPTION>
DATE OF EXERCISE
SECURITY REGISTERED HOLDER ISSUANCE TERM PRICE NUMBER OF SHARES
-------- -------------------- ----------- ------ -------- ----------------
<S> <C> <C> <C> <C> <C>
Option Gene Tu 9/1/93 10 yr. $ .20 6,000 shares
(Common Stock)
Option Sadik Esener 9/18/97 10 yr. $ .20 25,000 shares
(Common Stock)
Warrant Dominion Ventures, Inc. 9/11/92 7 yr. $1.00 7,638 shares
(Series A Preferred
Stock)
</TABLE>
<PAGE> 53
SCHEDULE 2.4
CREDITORS OF NANOTRONICS TO RECEIVE NANOGEN
SERIES D PREFERRED STOCK IN SATISFACTION
OF NANOTRONICS DEBT OWED TO THEM
AS OF JANUARY 30, 1998
<TABLE>
<CAPTION>
TOTAL AMOUNT OF
CREDITOR PRINCIPAL INTEREST DEBT
--------------------------------------- --------------- -------------- --------------
<S> <C> <C> <C>
Enterprise Partners II, L.P. $ 50,833.00 $ 8,750.00 $ 59,583.00
Enterprise Partners II Associates, L.P. 4,167.00 729.00 4,896.00
Enterprise Partners III, L.P. 46,000.00 3,680.00 49,680.00
Enterprise Partners III Associates, L.P. 4,000.00 320.00 4,320.00
$ 105,000.00 $ 13,479.00 $ 118,479.00
Brobeck Phleger & Harrison LLP $ 55,000.00 -- $ 55,000.00
$ 160,000.00 $ 13,479.00 $ 173,479.00
</TABLE>
<PAGE> 54
SCHEDULE 4
NANOTRONICS DISCLOSURE SCHEDULE
1
<PAGE> 55
SCHEDULE 5
NANOGEN AND MERGER SUB DISCLOSURE SCHEDULE