Upon completion of this offering, Bruker Daltonics will have outstanding
shares of our common stock. Of these shares, the shares
offered hereby ( shares if the underwriters' over-allotment option is
exercised in full) will be freely tradable without restriction or further
registration under the Securities Act, unless purchased by "affiliates" of
Bruker Daltonics as that term is defined in Rule 144 described below. The
remaining 45,500,000 shares of common stock outstanding upon closing of the
offering are "restricted securities" as that term is defined in Rule 144.
In general, under Rule 144, as amended, a person who has beneficially
owned shares for at least one year is entitled to sell in "brokers'
transactions" or to market makers, within any three-month period commencing
90 days after the date of this prospectus, a number of shares that does not
exceed the greater of (a) one percent of the number of shares of common stock
then outstanding, approximately shares immediately after the
completion of this offering ( shares if the underwriters'
over-allotment option is exercised in full), or (b) generally, the average
weekly trading volume in our common stock during the four calendar weeks
preceding the required filing of a Form 144 with respect to such sale. Sales
under Rule 144 are generally subject to the availability of current public
information about Bruker Daltonics. Under Rule 701, persons who purchase shares
upon exercise of options granted prior to the effective date of this offering
are entitled to sell such shares 90 days after the effective date of this
offering in reliance on Rule 144, without having to comply with the holding
period requirements of Rule 144.
Each of our stockholders has agreed to certain restrictions on their
ability to sell, offer, contract or grant any option to sell, pledge, transfer
or otherwise dispose of shares of our common stock for a period of 180 days
after the date of this prospectus, without the prior written consent of Deutsche
Bank Securities Inc. All 45,000,000 of our outstanding shares, not including the
offered hereby, are subject to 180-day lockup agreements. These
shares are eligible for sale 180 days after the commencement of this
offering, subject to the requirements of Rule 144.
Prior to this offering, there has not been any public market for our
common stock. Future sales of substantial amounts of our common stock in the
public market could adversely affect the prevailing market prices and impair our
ability to raise capital through the sale of equity securities.
57
UNDERWRITING
Subject to the terms and conditions of the underwriting agreement, the
underwriters named below, through their representatives, Deutsche Bank
Securities Inc., Warburg Dillon Read LLC and Thomas Weisel Partners LLC, have
severally agreed to purchase from Bruker Daltonics the following respective
number of shares of common stock at a public offering price less the
underwriting discounts and commissions set forth on the cover page of this
prospectus:
Underwriter Number of Shares
----------- ----------------
Deutsche Bank Securities Inc...............................
Warburg Dillon Read LLC....................................
Thomas Weisel Partners LLC.................................
Total................................................
The underwriting agreement provides that the obligations of the several
underwriters to purchase the shares of common stock offered hereby are subject
to various conditions precedent and that the underwriters will purchase all
shares of the common stock offered hereby, other than those covered by the
over-allotment option described below, if any of these shares are purchased. In
addition, the underwriting agreement provides that, in the event of a default by
an underwriter, in certain circumstances the purchase commitments of
non-defaulting underwriters may be increased or the underwriting agreement may
be terminated.
The underwriters propose to offer the shares of common stock to the public
at the public offering price set forth on the cover of this prospectus and to
dealers at a price that represents a concession not in excess of $ per share
under the public offering price. The underwriters may allow, and these dealers
may re-allow, a concession of not more than $ per share to other dealers. After
the initial public offering, representatives of the underwriters may change the
offering price and other selling terms.
We have granted to the underwriters an option, exercisable not later than
30 days after the date of this prospectus, to purchase up to
additional shares of common stock at the public offering price less the
underwriting discounts and commissions set forth on the cover page of this
prospectus. The underwriters may exercise this option only to cover
over-allotments made in connection with the sale of the common stock offered
hereby. To the extent that the underwriters exercise this option, each of the
underwriters will become obligated, subject to conditions, to purchase
approximately the same percentage of additional shares of common stock as the
number of shares of common stock to be purchased by it in the above table bears
to the total number of shares of common stock offered hereby. We will be
obligated, pursuant to the option, to sell these additional shares of common
stock to the underwriters to the extent the option is exercised. If any
additional shares of common stock are purchased, the underwriters will offer the
additional shares on the same terms as those on which the other shares are being
offered.
The underwriting fee is equal to the public offering price per share of
common stock less the amount paid by the underwriters to us per share of common
stock. The underwriting
58
fee is currently expected to be % of the initial public offering price. We
have agreed to pay the underwriters the following fees, assuming either no
exercise or full exercise by the underwriters of the underwriters'
over-allotment option:
Total Fees
---------------------------------------------
Without Exercise of With Full Exercise of
Fee Per Share Over-Allotment Option Over-Allotment Option
------------- --------------------- ---------------------
Fees paid by Bruker Daltonics.......... $ $ $
In addition, we estimate that our share of the total expenses of this
offering, excluding underwriting discounts and commissions, will be
approximately $ .
We have agreed to indemnify the underwriters against some specified types
of liabilities, including liabilities under the Securities Act, and to
contribute to payments the underwriters may be required to make in respect of
any of these liabilities.
Each of our officers and directors and all of our stockholders have agreed
not to offer, sell, contract to sell, or otherwise dispose of, or enter into any
transaction that is designed to, or could be expected to, result in the
disposition of any shares of our common stock or other securities convertible
into or exchangeable or exercisable for shares of our common stock or
derivatives of our common stock owned by these persons prior to this offering or
common stock issuable upon exercise of options or warrants held by these persons
for a period of 180 days after the effective date of the registration statement
of which this prospectus is a part without the prior written consent of Deutsche
Bank Securities Inc. This consent may be given at any time without public
notice. We have entered into a similar agreement with the representatives of the
underwriters. There are no agreements between the representatives and any of our
stockholders or affiliates releasing them from these lock-up agreements prior to
the expiration of the 180-day period.
The representatives of the underwriters have advised us that the
underwriters do not intend to confirm sales to any account over which they
exercise discretionary authority.
In order to facilitate the offering of our common stock, the underwriters
may engage in transactions that stabilize, maintain, or otherwise affect the
market price of our common stock. Specifically, the underwriters may over-allot
shares of our common stock in connection with this offering, thus creating a
short position in our common stock for their own account. A short position
results when an underwriter sells more shares of common stock than that
underwriter is committed to purchase. Additionally, to cover these
over-allotments or to stabilize the market price of our common stock, the
underwriters may bid for, and purchase, shares of our common stock in the open
market. Finally, the representatives, on behalf of the underwriters, may also
reclaim selling concessions allowed to an underwriter or dealer if the
underwriting syndicate repurchases shares distributed by that underwriter or
dealer. Any of these activities may maintain the market price of our common
stock at a level above that which might otherwise prevail in the open market.
These transactions may be effected on the Nasdaq National Market or otherwise.
The underwriters are not required to engage in these activities and, if
commenced, may end any of these activities at any time.
At our request, the underwriters have reserved for sale, at the initial
public offering price, up to shares, or %, of our common stock being
sold in this offering for our vendors, employees, family members of employees,
customers and other third parties. These purchasers are expected to agree not to
offer, sell, contract to sell, or otherwise dispose of, or enter into any
transaction that is designed to, or could be expected to, result in the
disposition of any shares of our common stock or other securities convertible
into or exchangeable or exercisable for shares of our common stock or
derivatives of our common
59
stock acquired by these persons in this offering or common stock issuable upon
exercise of options or warrants held by these persons for a period of 180 days
after the effective date of the registration statement of which this prospectus
is a part without the prior written consent of Deutsche Bank Securities Inc. The
number of shares of our common stock available for sale to the general public
will be reduced to the extent these reserved shares are purchased. Any reserved
shares that are not purchased by these persons will be offered by the
underwriters to the general public on the same basis as the other shares in this
offering.
Pricing of This Offering
Prior to this offering, there has been no public market for the common
stock. Consequently, the initial public offering price for our common stock has
been determined by negotiation among us and the representatives of the
underwriters. Among the principal factors considered in determining the initial
public offering price were:
- prevailing market conditions;
- our results of operations in recent periods;
- the market capitalization and stage of development of other companies
that we and the representatives of the underwriters believe to be
comparable to our business; and
- estimates of our business potential.
The estimated initial public offering price range set forth on the cover
of this preliminary prospectus is subject to change as a result of market
conditions and other factors.
Thomas Weisel Partners LLC, one of the representatives of the
underwriters, was organized and registered as a broker-dealer in December 1998.
Since December 1998, Thomas Weisel Partners has been named as a lead or
co-manager on 153 filed public offerings of equity securities, of which 109 have
been completed, and has acted as a syndicate member in an additional 80 public
offerings of equity securities. Thomas Weisel Partners does not have any
material relationship with us or any of our officers, directors or other
controlling persons, except with respect to its contractual relationship with us
pursuant to the underwriting agreement entered into in connection with this
offering.
60
CERTAIN UNITED STATES TAX CONSIDERATIONS FOR NON-UNITED STATES HOLDERS
There are federal income and estate tax consequences related to the
ownership and disposition of our common stock by a non-U.S. holder. A non-U.S.
holder is any person or entity that, for United States federal income tax
purposes, is either a non-resident individual, or other corporation
organized or created under non-U.S. law corporation, an estate that is not
on its worldwide income or a trust that is either not subject to
primary supervision over its administration by a United States court or not
subject to the control of a U.S. person with respect to substantial trust
decisions. Partnerships organized outside of the United States and their
partners should consult their own tax advisors about the consequences of holding
our common stock, as the tax treatment with respect to foreign partnerships and
their partners is complex.
Individuals may, in certain cases, be deemed to be resident aliens, as
opposed to non-resident aliens, by virtue of being present in the United States
for at least 31 days in the calendar year and for an aggregate of at least 183
days during a three-year period ending in the current calendar year (counting
for such purposes, all of the days present in the current year, one-third of the
days present in the immediately preceding year, and one-sixth of the days
present in the second preceding year). Resident aliens are generally subject to
United States federal income tax as if they were United States citizens.
This summary does not discuss all United States federal income tax
considerations that may be relevant to non-U.S. holders in light of their
particular circumstances or to non-U.S. holders that may be subject to special
treatment under United States federal income tax laws. This summary assumes that
non-U.S. holders hold their stock as capital assets. Furthermore, this summary
does not discuss aspects of United States federal income taxation that may be
applicable to holders of options to purchase our common stock, nor does it
address any aspects of non-U.S. taxation or United States state or local
taxation.
This summary is based on current provisions of the Internal Revenue Code
of 1986, as amended (the "Code"), existing, temporary and proposed regulations
promulgated thereunder, and administrative and judicial interpretations thereof,
all of which are subject to change, possibly with retroactive effect.
THIS SUMMARY IS OF A GENERAL NATURE ONLY AND IS NOT INTENDED TO BE, AND
SHOULD NOT BE CONSTRUED TO BE, LEGAL, BUSINESS OR TAX ADVICE TO ANY PARTICULAR
SHAREHOLDER. SHAREHOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE
UNITED STATES FEDERAL, STATE, LOCAL AND NON-U.S. TAX CONSEQUENCES OF THE
DESCRIBED TRANSACTIONS IN THEIR PARTICULAR CIRCUMSTANCES.
Dividends
In the event that dividends are paid on shares of our common stock,
dividends paid to a non-U.S. holder of our common stock generally will be
subject to United States withholding tax at a 30% rate, unless an applicable
income tax treaty provides for a lower withholding rate.
Currently, the applicable United States Treasury regulations presume,
absent actual knowledge to the contrary, that dividends paid to an address in a
foreign country are paid to a resident of such country for purposes of the 30%
withholding tax. However, recently finalized United States Treasury regulations
provide that in the case of dividends paid after December 31, 2000, United
States backup withholding tax at a 31% rate will be imposed on dividends paid to
non-U.S. holders if the certification or documentary evidence procedures
61
and requirements set forth in such regulations are not satisfied directly or
through an intermediary. Further, in order to claim the benefit of an applicable
income tax treaty rate for dividends paid after December 31, 2000, a non-U.S.
holder must comply with certification requirements set forth in the recently
finalized United States Treasury regulations.
The 30% withholding tax does not apply to dividends paid to a non-U.S.
holder that provides a Form 4224 or, after December 31, 2000, a Form W-8ECI,
certifying that the dividends are effectively connected with the non-U.S.
holder's conduct of a trade or business within the United States. Instead, the
effectively connected dividends will generally be subject to regular United
States income tax as if the non-U.S. holder were a United States resident. If
the non-U.S. holder is eligible for the benefits of a tax treaty between the
United States and the holder's country of residence, any effectively connected
income will be subject to United States federal income tax only if it is
attributable to a permanent establishment in the United States mainlined by the
holder. A non-U.S. corporation receiving effectively connected dividends may
also be subject to an additional "branch profits tax" imposed at a rate of 30%
(or a lower treaty rate) on an earnings amount that is net of the regular tax.
A non-U.S. holder may obtain a refund of any excess amounts withheld by
filing an appropriate claim for refund along with the required information with
the Internal Revenue Service ("IRS").
Gain on Disposition of Common Stock
A non-U.S. holder generally will not be subject to United States federal
income or withholding tax requirements in respect of gain recognized on a
disposition of common stock unless:
(a) the gain is effectively connected with the conduct of a trade or
business of the non-U.S. holder within the United States or of a
partnership, trust or estate in which the non-U.S. holder is a
partner or beneficiary within the United States and, if certain tax
treaties apply, is attributable to a permanent establishment of the
non-U.S. holder, within the United States;
(b) the non-U.S. holder is an individual who holds our common stock as a
capital asset within the meaning of Section 1221 of the Internal
Revenue Code, is present in the United States for 183 or more days in
the taxable year of the disposition and meets certain other tax law
requirements;
(c) the non-U.S. holder is a United States expatriate required to pay tax
pursuant to the provisions of United States tax law; or
(d) we are or have been a "United States real property holding
corporation" for federal income tax purposes at any time during the
shorter of the five-year period preceding such disposition or the
period that the non-U.S. holder holds our common stock.
We believe that we are not, have not been and do not anticipate becoming,
a United States real property holding corporation for United States federal
income tax purposes.
A non-U.S. holder who is an individual and is described in clause (a) or
(c) above will be required to pay tax on the net gain derived from a sale of our
common stock at regular graduated United States federal income tax rates.
Further, a non-U.S. holder who is an individual and who is described in
clause (b) above generally will be subject to a flat 30% tax on the gain derived
from a sale. A non-U.S. holder that is a corporation and that is described
62
in clause (a) above generally will be required to pay tax on its net gain at
regular graduated United States federal income tax rates. Such non-U.S. holder
may also have to pay a branch profits tax.
Federal Estate Tax
For United States federal estate tax purposes, an individual's gross
estate will include our common stock owned, or treated as owned, by an
individual. Generally, this will be the case regardless whether or not such
individual was a United States citizen or a United States resident. This general
rule of inclusion may be limited by an applicable estate tax or other treaty.
Information Reporting and Backup Withholding Tax
Under United States Treasury regulations, we must report annually to the
Internal Revenue Service and to each non-U.S. holder the amount of dividends
paid to such holder and the tax withheld with respect to such dividends. These
information reporting requirements apply whether withholding is required. Copies
of the information returns reporting such dividends and withholding may also be
made available to the tax authorities in the country in which the non-U.S.
holder is a resident under the provisions of an applicable income tax treaty or
agreement.
Dividends
Currently, the 31% United States backup withholding tax generally will not
apply:
(a) to dividends which are paid to non-U.S. holders and are taxed at the
regular 30% withholding tax rate as discussed above; or
(b) before January 1, 2001, to dividends paid to a non-U.S. holder at an
address outside of the United States unless the payor has actual
knowledge that the payee is a U.S. holder.
The recently finalized United States Treasury regulations provide that in
the case of dividends paid after December 31, 2000, a non-U.S. holder generally
will be subject to backup withholding tax at the rate of 31% unless:
(a) specified certification procedures are followed; or
(b) specified documentary evidence procedures are followed.
Sale or Exchange of Common Stock
U.S. information reporting and backup withholding generally will not apply
to a payment of proceeds of a disposition of common stock where the transaction
is effected outside the United States through a non-U.S. office of a non-U.S.
broker. However, information reporting requirements, but not backup withholding,
generally will apply to such a payment if the broker is:
- a U.S. person;
- a foreign person that derives 50% or more of its gross income for certain
periods from the conduct of a trade or business in the U.S.;
- a controlled foreign corporation as defined in the Code; or
63
- a foreign partnership with certain U.S. connections (for payments made
after December 31, 2000).
Information reporting requirements will not apply in the above cases if the
broker has documentary evidence in its records that the holder is a non-U.S.
holder and certain conditions are met or the holder otherwise establishes an
exemption.
A non-U.S. holder will be required to certify its non-U.S. status, in
order to avoid information reporting and backup withholding at a 31% rate on
disposition proceeds, where the transaction is effected by or through a U.S.
office of a broker.
The tax liability of persons subject to backup withholding will be reduced
by the amount of tax withheld. When withholding results in an overpayment of
taxes, a refund may be obtained if the required information is furnished to the
IRS.
64
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed
upon for Bruker Daltonics by Hutchins, Wheeler & Dittmar, A Professional
Corporation, Boston, Massachusetts. Richard M. Stein, a stockholder of Hutchins,
Wheeler & Dittmar, holds options to purchase 3,000 shares of the common stock of
Bruker Daltonics and will purchase shares of common stock in this
offering. Mr. Stein is also a Director and the Secretary of Bruker Daltonics.
Certain legal matters in connection with the offering will be passed upon for
the underwriters by Ropes & Gray, Boston, Massachusetts.
EXPERTS
BDO, independent auditors, have audited our combined financial statements
as of and for the year ended December 31, 1997, as set forth in their report.
Ernst & Young LLP, independent auditors, have audited our consolidated and
combined financial statements as of and for the years ended December 31, 1998
and 1999, as set forth in their report. We have included our financial
statements in this prospectus and elsewhere in this registration statement in
reliance on BDO and Ernst & Young LLP's reports, given upon their authority as
experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-1 with the Securities and
Exchange Commission, or SEC, for our common stock that we are offering by this
prospectus. This prospectus does not contain all of the information set forth in
the registration statement and the exhibits and schedules thereto. For further
information with respect to us and our common stock, we make reference to the
registration statement and to the exhibits and schedules filed therewith.
Statements contained in this prospectus as to the contents of any contract or
any other document referred to are not necessarily complete, and in each
instance, reference is made to the copy of such contract or other document filed
as an exhibit to the registration statement, each such statement being qualified
in all respects by such reference. A copy of the registration statement may be
inspected by anyone without charge at the SEC's principal office in Washington,
D.C., and copies of all or any part of the registration statement may be
obtained from the Public Reference Section of the SEC, 450 Fifth Street, N.W.,
Washington, D.C. 20549, upon payment of certain fees prescribed by the SEC.
Please call the SEC at 1-800-SEC-0330 for further information on the operation
of the public reference rooms. The SEC maintains a web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the SEC. The address of the web site
is http://www.sec.gov. Upon completion of the offering, we will be subject to
the information reporting requirements of the Securities Exchange Act of 1934,
as amended and, in accordance therewith, will file reports, proxy statements and
other information with the SEC.
We intend to furnish our stockholders with annual reports containing
financial statements audited by our independent public accountants and quarterly
reports for the first three fiscal quarters of each fiscal year containing
unaudited interim financial information.
65
BRUKER DALTONICS INC.
INDEX TO FINANCIAL STATEMENTS
Report of Ernst & Young LLP, Independent Auditors for the
years ended
December 31, 1998 and 1999................................ F-2
Consolidated Balance Sheets as of December 31, 1998 and
1999...................................................... F-3
Combined / Consolidated Statements of Operations for the
years ended
December 31, 1998 and 1999................................ F-4
Combined / Consolidated Statements of Stockholders' Equity
for the years ended
December 31, 1998 and 1999................................ F-5
Combined / Consolidated Statements of Cash Flows for the
years ended
December 31, 1998 and 1999................................ F-6
Notes to Financial Statements for the years ended December
31, 1998
and 1999.................................................. F-7
Report of BDO, Independent Auditors for the year ended
December 31, 1997......................................... F-20
Report of Ernst & Young LLP, Independent Auditors for the
year ended December 31, 1997.............................. F-21
Combined Balance Sheet as of December 31, 1997.............. F-22
Combined Statement of Operations for the year ended December
31, 1997.................................................. F-23
Combined Statement of Stockholders' Equity for the year
ended December 31, 1997................................... F-24
Combined Statement of Cash Flows for the year ended December
31, 1997.................................................. F-25
Notes to Financial Statements for the year ended December
31, 1997.................................................. F-26
All financial data schedules for which provision is made in the applicable
accounting regulation of the Securities and Exchange Commission are not required
under the related instructions or are inapplicable and therefore have been
omitted.
F-1
Report of Ernst & Young LLP, Independent Auditors
The Board of Directors
Bruker Daltonics Inc.
We have audited the accompanying consolidated balance sheets of Bruker
Daltonics Inc. (the Company), as of December 31, 1998 and 1999, the related
combined statements of operations, stockholders' equity, and cash flows for the
year ended December 31, 1998, and the related consolidated statements of
operations, stockholders' equity, and cash flows for the year ended
December 31, 1999. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Bruker
Daltonics Inc. at December 31, 1998 and 1999, and the results of its operations
and its cash flows for each of the years then ended, in conformity with
accounting principles generally accepted in the United States.
/s/ ERNST & YOUNG LLP
Boston, Massachusetts
March 11, 2000
F-2
BRUKER DALTONICS INC.
CONSOLIDATED BALANCE SHEETS
December 31,
---------------------------
1998 1999
------------ ------------
ASSETS
Current assets:
Cash and cash equivalents................................. $ 1,134,916 $ 2,443,142
Accounts receivable, less allowances for doubtful accounts
of $157,198 in 1998 and $113,861 in 1999................. 9,743,922 12,203,888
Inventories............................................... 17,033,673 25,441,844
Deferred income taxes..................................... 369,150 899,000
Other assets.............................................. 1,055,375 532,446
----------- -----------
Total current assets.................................. 29,337,036 41,520,320
----------- -----------
Restricted cash............................................. 5,895,871 --
Property, plant and equipment, net.......................... 28,365,580 25,350,543
Intangible and other assets................................. 242,827 438,197
----------- -----------
Total assets...................................... $63,841,314 $67,309,060
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Short-term bank borrowings................................ $ 2,941,239 $ 2,496,350
Accounts payable.......................................... 3,254,786 6,661,399
Due to affiliated companies............................... 147,239 1,496,240
Accrued expenses.......................................... 1,720,043 3,805,486
Accrued payroll........................................... 1,656,727 1,741,669
Customer deposits......................................... 9,872,513 8,323,465
Warranty reserves......................................... 3,206,621 4,739,013
Income taxes payable...................................... 199,982 176,690
----------- -----------
Total current liabilities............................. 22,999,150 29,440,312
----------- -----------
Deferred revenue............................................ 99,841 393,371
Long-term debt.............................................. 14,982,498 12,843,582
Deferred income tax liabilities............................. 8,667,382 8,785,712
Contingent liabilities...................................... 6,752,312 5,788,434
Stockholders' equity:
Common stock, $0.01 par value, authorized 100,000,000
shares, issued and outstanding 45,500,000 shares in 1998
and 1999................................................. 455,000 455,000
Additional paid-in capital................................ 6,045,000 6,045,000
Accumulated other comprehensive loss...................... (1,322,828) (2,854,829)
Retained earnings......................................... 5,162,959 6,412,478
----------- -----------
Total stockholders' equity............................ 10,340,131 10,057,649
----------- -----------
Total liabilities and stockholders' equity........ $63,841,314 $67,309,060
=========== ===========
The accompanying notes are an integral part of these statements.
F-3
BRUKER DALTONICS INC.
COMBINED / CONSOLIDATED STATEMENTS OF OPERATIONS
Year Ended December 31,
---------------------------
1998 1999
------------ ------------
COMBINED CONSOLIDATED
Product revenue............................................. $40,157,261 $60,620,349
Other revenue............................................... 2,049,740 4,070,101
----------- -----------
Net revenue....................................... 42,207,001 64,690,450
----------- -----------
Costs and operating expenses:
Cost of product revenue................................... 19,672,357 31,617,724
Sales and marketing....................................... 7,434,968 11,345,265
General and administrative................................ 2,212,594 3,411,138
Research and development.................................. 13,048,670 15,138,114
Patent litigation costs................................... -- 537,817
----------- -----------
Total costs and operating expenses................ 42,368,589 62,050,058
----------- -----------
Operating income (loss) from continuing operations.......... (161,588) 2,640,392
Other income................................................ 173,737 130,219
Interest expense, net....................................... (900,829) (907,682)
----------- -----------
Income (loss) from continuing operations before provision
for income taxes.......................................... (888,680) 1,862,929
Provision for income taxes.................................. -- 986,887
----------- -----------
Income (loss) from continuing operations.................... (888,680) 876,042
Income from discontinued operations, net of income taxes.... 383,414 373,477
----------- -----------
Net income (loss)........................................... $ (505,266) $ 1,249,519
=========== ===========
Net income (loss) per share-basic and diluted
Income (loss) from continuing operations.................. $ (0.02) $ 0.02
Income from discontinued operations, net of income
taxes................................................... 0.01 0.01
----------- -----------
Net income (loss) per share................................. $ (0.01) $ 0.03
=========== ===========
Shares used in computing net income (loss) per share-basic
and diluted............................................... 45,500,000 45,500,000
=========== ===========
The accompanying notes are an integral part of these statements.
F-4
BRUKER DALTONICS INC.
COMBINED / CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
Common Stock
----------------------- Accumulated
Bruker Bruker Additional Other Total
Daltonics Daltonik Paid-in Retained Comprehensive Stockholders'
Inc. GmbH Capital Earnings Income (Loss) Equity
--------- ----------- ----------- ----------- ------------- -------------
Balance as of December
31, 1997............. $ 52,500 $3,489,184 $ 697,500 $7,600,096 $(1,969,494) $ 9,869,786
Issuance of common
stock............... 402,500 -- 5,347,500 -- -- 5,750,000
Payments to
stockholders in
connection with
reorganization of
business............ -- (3,489,184) -- (1,931,871) -- (5,421,055)
Foreign currency
translation
adjustment.......... -- -- -- -- 646,666 646,666
Net loss............. -- -- -- (505,266) -- (505,266)
-----------
Net comprehensive
income.............. -- -- -- -- -- 141,400
-------- ---------- ---------- ---------- ----------- -----------
Balance as of December
31, 1998............. 455,000 -- 6,045,000 5,162,959 (1,322,828) 10,340,131
Foreign currency
translation
adjustment.......... -- -- -- -- (1,532,001) (1,532,001)
Net income........... -- -- -- 1,249,519 -- 1,249,519
-----------
Net comprehensive
loss................ -- -- -- -- -- (282,482)
-------- ---------- ---------- ---------- ----------- -----------
Balance as of December
31, 1999............. $455,000 $ -- $6,045,000 $6,412,478 $(2,854,829) $10,057,649
======== ========== ========== ========== =========== ===========
The accompanying notes are an integral part of these statements.
F-5
BRUKER DALTONICS INC.
COMBINED / CONSOLIDATED STATEMENTS OF CASH FLOWS
Year Ended December 31,
--------------------------
1998 1999
----------- ------------
COMBINED CONSOLIDATED
Operating activities:
Income (loss) from continuing operations.................... $ (888,680) $ 876,042
Adjustments to reconcile income (loss) from continuing
operations to net cash provided by (used in) continuing
operations:
Depreciation and amortization........................... 2,604,582 3,486,625
Deferred income taxes................................... 526,061 875,095
Charge for purchase of in-process research and
development........................................... -- 100,000
Changes in operating assets and liabilities:
Accounts receivable................................... (6,272,587) (3,605,416)
Inventories........................................... (1,802,029) (10,264,776)
Other assets.......................................... (862,924) 91,990
Accounts payable and accrued expenses................. (479,955) 6,374,182
Warranty reserve...................................... 1,758,596 2,033,985
Contingent liabilities................................ (367,257) --
Income taxes payable.................................. (525,681) (469)
Deferred revenue...................................... (281,799) 294,710
Customer deposits..................................... 66,098 4,680,139
----------- ------------
Net cash provided by (used in) continuing operations........ (6,525,575) 4,942,107
Net cash provided by (used in) discontinued operations...... (9,068) 495,126
----------- ------------
Net cash provided by (used in) operating activities..... (6,534,643) 5,437,233
Investing activities:
Purchases of property and equipment......................... (2,887,675) (4,235,677)
Acquisition of business..................................... -- (200,000)
----------- ------------
Net cash used in investing activities................... (2,887,675) (4,435,677)
Financing activities:
Proceeds from long-term debt................................ 14,212,750 --
Proceeds from short-term borrowings......................... 2,603,898 1,000,000
Payments on short-term borrowings........................... (50,000) (1,086,700)
Advances from (payments to) affiliated companies............ (8,616,816) 444,370
Issuance of common stock.................................... 5,750,000 --
Payments to stockholders.................................... (5,435,012) --
----------- ------------
Net cash provided by financing activities............... 8,464,820 357,670
Effect of exchange rate changes............................. 70,979 (51,000)
----------- ------------
Net change in cash and cash equivalents..................... (886,519) 1,308,226
Cash and cash equivalents at beginning of year.............. 2,021,435 1,134,916
----------- ------------
Cash and cash equivalents at end of year.................... $ 1,134,916 $ 2,443,142
=========== ============
Supplemental cash flow information:
Cash paid for interest.................................... $ 1,018,765 $ 1,231,867
Cash paid for taxes....................................... 152,821 463,987
The accompanying notes are an integral part of these statements.
F-6
BRUKER DALTONICS INC.
NOTES TO FINANCIAL STATEMENTS
1. Description of Business
Bruker Daltonics Inc. and its wholly-owned subsidiaries (the "Company")
design, manufacture and market proprietary life science systems based on its
mass spectrometry core technology platforms. The Company also sells a broad
range of field analytical systems for substance detection and pathogen
identification. The Company maintains major technical centers in Europe, North
America and Japan. Bruker Daltonics allocates substantial capital and resources
to research and development and is party to various collaborations and strategic
alliances. The Company's diverse customer base includes pharmaceutical
companies, biotechnology companies, academic institutions and government
agencies.
These financial statements represent the consolidated accounts of Bruker
Daltonics Inc., and its wholly-owned subsidiaries as of December 31, 1998 and
1999 and for the year ended December 31, 1999, and the combined accounts of
Bruker Daltonics Inc., and its affiliated companies for the year ended
December 31, 1998 (see Note 3). All significant intercompany accounts and
transactions have been eliminated in consolidation and combination,
respectively.
2. Summary of Significant Accounting Policies
USE OF ESTIMATES
The preparation of financial statements in conformity with accounting
principles generally accepted in the United States requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and reported amounts of revenues and expenses during
the reporting period. Actual results could differ from those estimates.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with original
maturities of 90 days or less at date of purchase to be cash equivalents. Cash
and cash equivalents are carried at cost, which approximates fair market value
at year end.
RESTRICTED CASH
At December 31, 1998, $5,895,871 of cash was restricted as part of an
advance deposit for a product distribution agreement between Bruker Daltonik
GmbH and Hewlett-Packard Company (HP). The original advance was $6,680,002, from
which the Company withdrew amounts for payment as products were delivered and
accepted by HP. This deposit was reduced to $1,200,000 in the second quarter of
1999 and is no longer restricted. The Company has included the entire balance of
$5,895,871 in customer deposits as of December 31, 1998.
CONCENTRATION OF CREDIT RISK
Financial instruments which subject the Company to credit risk consist of
cash and cash equivalents and accounts receivables. The risk with respect to
cash and cash equivalents is minimized by the Company's policy of investing in
short-term financial instruments issued by highly-rated financial institutions.
The risk with respect to accounts receivable is minimized by
F-7
BRUKER DALTONICS INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
2. Summary of Significant Accounting Policies (Continued)
the credit worthiness of the Company's customers. The Company performs periodic
credit evaluations of its customers' financial condition and generally does not
require collateral. Credit losses have been within management's expectations.
For the years ended December 31, 1998 and 1999, two customers accounted for an
aggregate of 32% and 30%, respectively, of the Company's product revenue.
Accounts receivables for these two customers accounted for an aggregate of 40%
and 3% of total receivables as of December 31, 1998 and 1999, respectively.
INVENTORIES
Inventories are stated at the lower of cost or market with cost determined
by the first-in, first-out, ("FIFO") method.
Inventories include demonstration equipment which the Company offers to
current and potential customers. The Company amortizes its demonstration
equipment over a three year period. Amortization expense for demonstration
equipment was $258,844 and $306,792 for the years ended December 31, 1998 and
1999, respectively.
PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment are stated at cost and are being depreciated
on a straight-line basis over the estimated useful lives of the assets as
follows:
Buildings............................ 25 years
Machinery and equipment.............. 5--10 years
Furniture and fixtures............... 3--5 years
Leasehold improvements............... Shorter of 15 years or the life of
the lease
SOFTWARE COSTS
Purchased software is capitalized at cost and is amortized over the
estimated useful life, generally three years. Software developed for use in the
Company's products is expensed as incurred and is classified as research and
development expense.
OTHER ASSETS
Other assets consist principally of patents and licenses. Patents, patent
applications and rights are stated at acquisition cost. Amortization of patents
is recorded using the straight-line method over the legal lives of the patents,
generally for periods ranging up to ten years. Accumulated amortization of these
assets amounted to $983,702 and $1,120,840, as of December 31, 1998 and 1999,
respectively.
LONG-LIVED ASSETS
The Company reviews long-lived assets for impairment, in accordance with
Statement of Financial Accounting Standard (SFAS) No. 121, "Accounting for the
Impairment of Long-Lived Assets to Be Disposed Of," whenever events or
circumstances indicate that the
F-8
BRUKER DALTONICS INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
2. Summary of Significant Accounting Policies (Continued)
carrying amount of an asset may not be recoverable. Assets are written-down to
fair value when the carrying costs exceed this amount. Any impairment losses are
determined based upon estimated future cash flows and fair values. To date, no
such indicators of impairment have been identified.
WARRANTY COSTS
The Company provides a one year parts and labor warranty with the purchase
of equipment. The anticipated cost for this one year warranty is accrued upon
recognition of the sale and is included as a current liability on the
accompanying balance sheets.
CUSTOMER DEPOSITS
Under the terms and conditions of contracts with certain customers, the
Company requires an advance deposit. These deposit amounts are recorded as a
liability until revenue is recognized against the specific contract at time of
acceptance of the system.
EARNINGS PER SHARE
Basic earnings per share is calculated by dividing net earnings by the
weighted-average number of common shares outstanding during the period. The
diluted earnings per share computation includes the effect of shares which would
be issuable upon the exercise of outstanding stock options, reduced by the
number of shares which are assumed to be purchased by the Company from the
resulting proceeds at the average market price during the period. At
December 31, 1998 and 1999 there were no stock options outstanding, therefore
basic and diluted earnings per share are equivalent.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company's financial instruments consist primarily of cash and cash
equivalents, accounts receivable, accounts payable and long-term debt. The
carrying amounts of the Company's cash and cash equivalents, accounts receivable
and accounts payable approximate fair value due to their short-term nature. The
fair value of long-term debt is estimated based on current interest rates
offered to the Company for financing arrangements with similar maturities. The
recorded value of these financial instruments approximate their fair value at
December 31, 1998 and 1999.
FOREIGN CURRENCY TRANSLATION
In accordance with Statement of Financial Accounting Standards ("SFAS")
No. 52, "Accounting for Foreign Exchange," all balance sheet accounts of foreign
subsidiaries are translated into United States dollars at the current exchange
rate, and income statement items are translated at the average exchange rate for
the period; resulting translation adjustments are made directly to accumulated
other comprehensive income (loss) in stockholders' equity. Realized exchange
gains and losses are included in current operations and were not material.
F-9
BRUKER DALTONICS INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
2. Summary of Significant Accounting Policies (Continued)
REVENUE RECOGNITION
Revenue is recognized from system sales when a product is accepted by the
customer, except when sold through an independent distributor, a strategic
collaboration partner or an unconsolidated Bruker affiliate which assumes
responsibility for installation, in which case the system sale is recognized
upon shipment from the Company's facilities. Revenue from accessories and parts
is recognized upon shipment, and revenue from services when performed.
The Company also offers to its customers warranty and service agreements
extending beyond the initial year of warranty for a fee. These fees are recorded
as deferred revenue and amortized into income over the life of the agreements.
Other revenues, which are principally comprised of research and
development grants, are recognized as grant work is performed.
ADVERTISING COSTS
Advertising costs are expensed as incurred. Advertising expenses included
in sales and marketing were $452,466 and $363,567 for the years ended
December 31, 1998 and 1999, respectively.
INCOME TAXES
The Company provides for income taxes under the liability method
prescribed by SFAS No. 109, "Accounting for Income Taxes." Under this method,
deferred tax assets and liabilities are determined based on the difference
between the financial statements and tax basis of assets and liabilities using
enacted tax rates in effect for the year in which the difference is expected to
reverse. Valuation allowances are established when necessary to reduce deferred
tax assets to the amounts expected to be realized.
ACCOUNTING DEVELOPMENTS
In June 1998, the Financial Accounting Standards Board ("FASB") issued
SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities."
The provisions of the statement require the recognition of all derivatives as
either assets or liabilities in the statement of financial position and the
measurement of those instruments at fair value. The accounting for changes in
the fair value of a derivative depends on the intended use of the derivative and
the resulting designation. The Company is required to implement the statement in
the first quarter of fiscal 2001. The Company does not believe that this new
accounting standard will have a material impact on the financial statements.
In fiscal 1999, the Company adopted SFAS No. 131, "Disclosures about
Segments of an Enterprise and Related Information." The statement established
annual and interim reporting standards for an enterprise's operating segments
and related disclosures about its products and services, geographic areas and
major customers. The adoption of the statement did not affect the results of
operations or financial position of the Company.
F-10
BRUKER DALTONICS INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
3. Acquisitions
BRUKER DALTONIK GMBH
Effective December 21, 1998, Bruker Daltonics Inc. acquired all the assets
of Bruker Daltonik GmbH formerly known as Bruker Franzen Analytik GmbH (a
manufacturer of mass spectrometers) for $5,435,012 funded through the issuance
of 5,750,000 shares of common stock for $1.00 per share to existing
shareholders. The operations of Bruker Daltonik GmbH and its subsidiary, Bruker
Saxonia Analytik GmbH, based in Germany, are included in the 1998 combined
statements of operations for comparative purposes. The transaction represented
an exchange between entities under common control and, accordingly, the assets
acquired and liabilities assumed have been accounted for at historical cost in a
manner similar to a pooling-of-interests.
PROTEIGENE, INC.
On December 6, 1999, the Company acquired a 49% interest in
ProteiGene, Inc. from an officer of the Company for $50,000, the estimated fair
market value. ProteiGene is a bioanalytical research and development company
specializing in applications of mass spectrometry and bioinformatics in medical
and microbiologic diagnostics. ProteiGene is developing products to be used in
the care of patients suffering from routine and exotic infections, organ
transplant rejection, and genetic and environmental diseases including cancers
and auto-immune conditions where standard microbiologic and histopathologic
diagnostics have proven ineffective.
VIKING INSTRUMENTS CORPORATION
On June 22, 1999, the Company purchased, out of bankruptcy court, the
assets of Viking Instruments Corporation, a developer and manufacturer of
transportable gas chromatrograph mass spectrometers (GC/MS). These transportable
GC/MS instruments are used for laboratory and field analysis of soil, air and
water for the identification and quantification of a wide variety of organic
compounds and pollutants. The acquisition cost was $150,000, and the results of
operations are included in the accompanying consolidated financial statements
from the date of acquisition.
The pro forma net sales and results of operations for the ProteiGene and
Viking Instruments acquisitions, had they occurred at the beginning of 1998, are
not significant, and accordingly, have not been provided.
Depreciation expense for the years ended December 31, 1998 and 1999 was
$2,464,693 and $3,317,282, respectively. Amortization of leasehold improvements
is included with depreciation in the accompanying financial statements.
6. Income Taxes
The components of income (loss) from continuing operations before
provision for income taxes consisted of the following for the years ended
December 31, 1998 and 1999:
Year Ended December 31,
-------------------------
1998 1999
----------- -----------
United States..................................... $ 229,908 $(1,527,000)
Foreign........................................... (1,118,588) 3,389,929
----------- -----------
$ (888,680) $ 1,862,929
=========== ===========
F-12
BRUKER DALTONICS INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
6. Income Taxes (Continued)
Significant components of the provision for income taxes for the years
ended December 31, 1998 and 1999 were as follows:
The reconciliation of income tax computed at the United States federal
statutory tax rate to income tax expense for the years ended December 31, 1998
and 1999 was as follows:
Year Ended December 31,
--------------------------
1998 1999
---------- ---------
Income tax (benefit) at statutory rate............. 34.0% 34.0%
Add (deduct):
Change in valuation allowance.................... (30.5) 35.6
Permanent differences............................ (1.6) 1.2
Foreign income tax at differing rates............ -- (8.9)
Other............................................ (1.9) (9.0)
--------- --------
-- 52.9%
========= ========
F-13
BRUKER DALTONICS INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
6. Income Taxes (Continued)
The components of the Company's deferred income taxes were as follows:
December 31,
-------------------------
1998 1999
----------- -----------
Deferred tax assets:
Inventory....................................... $ 301,000 $ 880,000
Warranty accrual................................ 55,000 257,000
Allowance for doubtful accounts................. 10,000 11,000
R & D tax credit carryforward................... 175,000 225,000
Net operating loss carryforward................. 29,000 171,000
Other........................................... 49,000 456,000
----------- -----------
619,000 2,000,000
Valuation allowance............................... (99,000) (763,000)
----------- -----------
Net deferred tax.................................. 520,000 1,237,000
Deferred tax liabilities:
Patent litigation costs......................... (2,793,000) (4,023,000)
Excess tax over book depreciation............... (5,998,000) (4,939,000)
Other........................................... (27,000) (162,000)
----------- -----------
Total deferred tax liabilities.................... (8,818,000) (9,124,000)
----------- -----------
Net deferred tax liability........................ $(8,298,000) $(7,887,000)
=========== ===========
For financial reporting purposes, a valuation allowance of $99,000 and
$763,000 for December 31, 1998 and 1999, respectively, has been recognized to
offset deferred tax assets since uncertainty exists with respect to future
realization of deferred tax assets.
As of December 31, 1999, the Company had approximately $225,000 and
$428,000 of research and development tax credits and net operating loss
carryforwards, respectively, available to reduce future federal tax liabilities.
These credits expire at various dates through the year 2019.
Undistributed earnings of foreign subsidiaries aggregated approximately
$8.1 million at December 31, 1999, which, under existing law, will not be
subject to United States tax until distributed as dividends. Because the
earnings have been or are intended to be indefinitely reinvested in foreign
operations, no provision has been made for United States income taxes that may
be applicable thereto.
7. Financing Arrangements
In August 1999, the Company entered into a revolving line of credit with
Citizens Bank in the amount of $2,500,000. This line, which is secured by
certain inventory, receivables and equipment in the United States, is used to
provide working capital and expires July 31, 2001. Interest on this line of
credit is at the lower of LIBOR plus 175 basis points (7.91% at
F-14
BRUKER DALTONICS INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
7. Financing Arrangements (Continued)
December 31, 1999) or the Prime Rate (8.5% at December 31, 1999). There is no
commitment fee on the unused portion of the line. As of December 31, 1999, the
Company had $1,000,000 outstanding on this line of credit.
The Company also maintained revolving lines of credit in 1998 and 1999,
respectively, of approximately $4,200,000 and $6,200,000, among German banks at
interest rates ranging between 7.5% and 6.1%. At December 31, 1998 and 1999,
$2,941,239 and $1,496,350, respectively, was outstanding against these revolving
lines of credit. The lines are secured by certain inventory and accounts
receivable in Germany and are renewable in June 2000.
The weighted average interest rate for all outstanding borrowings under
the Company's lines of credit was 7.01% and 7.06% at December 31, 1998 and 1999,
respectively.
The Company has three notes payable with outstanding balances aggregating
$14,982,498 and $12,843,582 as of December 31, 1998 and 1999, respectively. One
note ($5,137,434 at December 31, 1999), with an interest rate of 5.10%, is
payable in full in 2003. The other two notes ($7,706,148 in the aggregate at
December 31, 1999), have an interest rate of 4.65% and are due in 2008. The
notes are payable to Commerzbank in Germany. Interest is due monthly and all
obligations are collateralized by the land and buildings of Bruker Daltonik
GmbH.
8. Segment and Geographic Information
The Company operates in one business segment and engages in the design,
manufacturing and marketing of proprietary life science systems, process
analysis systems, and analytical instruments based primarily on mass
spectrometry technology.
GEOGRAPHIC AREAS
Information concerning principal geographic areas is as follows:
Year Ended December 31,
---------------------------
1998 1999
------------ ------------
NET PRODUCT REVENUES FROM EXTERNAL CUSTOMERS
Germany........................................ $26,621,316 $31,694,883
United States.................................. 13,535,945 22,166,224
Other.......................................... -- 6,759,242
----------- -----------
$40,157,261 $60,620,349
=========== ===========
F-15
BRUKER DALTONICS INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
8. Segment and Geographic Information (Continued)
Net product revenues are attributable to geographic areas based on the
region of sale.
In 1999, the Company decided to discontinue its Fourier Transform-Infrared
(FT-IR) business. The FT-IR business unit sells and services FT-IR instruments
to a variety of markets outside the Company's core technology platform of mass
spectrometry. The Company plans to complete the sale of its FT-IR business to
Bruker Optik GmbH, an affiliated entity, in the first half of 2000 for a price,
which approximates the net book value of the assets and liabilities of the
business.
Summary results for the discontinued operations for the years ended
December 31, 1998 and 1999 are as follows:
Year Ended December 31,
-----------------------------
1998 1999
----------- -----------
Net product revenues............................ $2,853,737 $2,741,815
Total costs and expenses........................ (2,214,492) (2,119,423)
Provision for income taxes...................... (255,831) (248,915)
---------- ----------
Income from discontinued operations............. $ 383,414 $ 373,477
========== ==========
The assets and liabilities of the discontinued operations as of
December 31, 1998 and 1999 consisted of inventories ($30,930 and $31,650,
respectively) and accounts payable ($24,317 and $146,686, respectively).
F-16
BRUKER DALTONICS INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
10. Related-Party Transactions
The Company is affiliated, through common shareholders, with several other
entities which use the Bruker name. The Company and its affiliates have entered
into a sharing agreement which provides for the sharing of specified
intellectual property rights, services, facilities and other related items.
The Company recognized sales to affiliated entities of $9,804,838 in 1998
and $10,307,416 in 1999 and purchases from affiliated entities of $3,913,662 in
1998 and $3,208,752 in 1999.
In 1998 and 1999, various Bruker affiliates provided administrative and
other services (including office space-see note 12) to the Company at a cost of
approximately $227,000 and $437,000, respectively, based on its assessment of
the estimated fair market value of such services.
11. Employee Benefit Plans
The Company maintains or sponsors various defined contribution retirement
plans that cover domestic and international employees. The Company may make
contributions to these plans at its discretion. Retirement benefits earned are
generally based on years of service and compensation during active employment.
Eligibility is generally determined in accordance with local statutory
requirements. However, the level of benefits and terms of vesting may vary among
plans. The Company contributed $66,110 and $122,548 in 1998 and 1999,
respectively.
12. Commitments and Contingencies
LEASES
The Company leases office space from related parties, under agreements
expiring on various dates through 2004. The Company's principal office lease
expires in 2000. These lease obligations for the next five years are as follows:
Rent expense for the years ended December 31, 1998 and 1999 was $131,962
and $283,860, respectively.
LICENSE AGREEMENTS
The Company has entered into license agreements allowing the Company to
utilize certain patents. If these patents are used in connection with a
commercial product sale, the
F-17
BRUKER DALTONICS INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
12. Commitments and Contingencies (Continued)
Company pays royalties ranging from 0.15% to 5.00% on the related product
revenues. Licensing fees for the years ended December 31, 1998 and 1999 were
$146,166 and $178,327, respectively.
GRANTS
The Company has a grant from the National Institute of Standards and
Technology (NIST) Advanced Technology Program, which commenced on March 1, 1995
and ran through February 28, 2000. This grant is for the development of a DNA
sequencing time-of-flight mass spectrometer with a total project cost of
$7 million, of which $3.5 million will be reimbursed from NIST. The Company's
expenditures were $1.3 million and $2.1 million in 1998 and 1999, respectively.
Amounts reimbursed from NIST were $594,000 and $1 million in 1998 and 1999,
respectively, and are classified in other revenues.
The Company's wholly-owned subsidiary, Bruker Daltonik GmbH and its
subsidiary Bruker Saxonia Analytik GmbH, are the recipients of six grants from
German government authorities. The grants were made in connection with the
Company's development of specific spectrometers and components of spectrometers.
Total grants awarded amount to $4.8 million and expire through December 31,
2001. Amounts received under these grants during 1998 and 1999 totaled
$1.5 million and $3 million, respectively, and are classified in other revenues.
Total expenditures related to these grants were $3 million and $3.2 million in
1998 and 1999, respectively.
LEGAL
The Company's wholly-owned subsidiary, Bruker Daltonik GmbH, has a
$6.8 million and $5.8 million accrued liability at December 31, 1998 and 1999,
respectively, related to certain patent infringement litigation filed by a
competitor. In 1997, the competitor initiated an action in the United States
District Court of Massachusetts alleging patent infringement against the Company
and Hewlett-Packard. The competitor has also filed a request for an
investigation of its patent infringement claims with the United States
International Trade Commission (ITC) and has filed suit against the Company in
Germany, France and the United Kingdom. The Massachusetts patent action has been
pending the final determination of the ITC action while the actions in Germany,
France and the United Kingdom are on going.
In 1998, the ITC found in favor of the Company and in 1999 the Court of
Appeals for the Federal Circuit confirmed, in part, the ITC decision in favor of
the Company. The Company has filed counterclaims in relation to these patent
claims and in 1999 filed an anti-trust suit against the competitor in
Massachusetts Federal Court. The Company believes that it has a meritorious
defense to the competitor's claims and intends to vigorously defend itself.
Based on a review of the current facts and circumstances, management of
the Company and its subsidiary believe that the amount of the accrued liability
is a reasonable estimate of the exposure to loss associated with these matters,
representing, principally, anticipated legal fees. While acknowledging the
uncertainties of litigation, the Company believes that these
F-18
BRUKER DALTONICS INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
12. Commitments and Contingencies (Continued)
matters will be resolved without a material effect on the Company's financial
position or results of operations. However, an unfavorable outcome of these
matters could result in a material adverse impact on the Company's financial
statements.
Other lawsuits, claims and proceedings of a nature considered normal to
its businesses are pending against the Company and its subsidiary. The Company
believes the outcome of these proceedings will not have a material impact on the
Company's financial position or results of operations.
13. Subsequent Events
STOCK SPLIT
On February 14, 2000, the Board of Directors of Bruker Daltonics, Inc.
authorized a seven-for-one stock split in the form of a stock dividend.
Shareholders of record received six additional shares of common stock for every
share they owned. All common shares and per share data in the accompanying
financial statements have been restated to reflect the stock split.
STOCK OPTIONS
In February 2000, the Board of Directors adopted and the Stockholders
approved the 2000 Stock Option Plan ("the Plan"). The Plan provides for the
issuance of up to 2,220,000 shares of Common Stock in connection with stock
options or other awards under the Plan. The Plan allows a committee of the Board
of Directors (the "Committee") to grant incentive stock options, non-qualified
stock options, stock appreciation rights and stock awards (including the use of
restricted stock and phantom shares). The Committee has the authority to
determine which employees will receive the rewards, the amount of the awards,
and other terms and conditions of the award. In February 2000, the Committee
granted stock options for 783,135 shares of common stock, which vest over
three-to-five year periods.
F-19
Report of BDO, Independent Auditors
The Board of Directors
Bruker Daltonics Inc.
We have audited the accompanying combined balance sheet as of
December 31, 1997 of the entities listed in Note 1, and the related combined
statements of operations, stockholders' equity, and cash flows for the year then
ended. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audit. We did not audit the financial statements of
Bruker Daltonics Inc., which statements reflect total assets of approximately
$5.5 million as of December 31, 1997 and total revenues of approximately
$14.7 million for the year then ended. Those statements were audited by other
auditors whose report has been furnished to us, and our opinion, insofar as it
relates to data included for Bruker Daltonics Inc., is based solely on the
report of other auditors.
We conducted our audit in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, based on our audit and the report of other auditors, the
financial statements referred to above present fairly, in all material respects,
the combined financial position at December 31, 1997 of the entities listed in
Note 1, and the results of their operations and their cash flows for the year
then ended, in conformity with accounting principles generally accepted in the
United States.
We have audited the balance sheet of Bruker Daltonics Inc. (formerly Bruker
Analytical Systems, Inc.) (the Company) as of December 31, 1997, and the related
statements of income, stockholders' equity, and cash flows for the year then
ended (not presented separately herein). These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audit.
We conducted our audit in accordance with the auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Bruker Daltonics Inc. at
December 31, 1997, and the results of its operations and its cash flows for the
year then ended in conformity with accounting principles generally accepted in
the United States.
/s/ ERNST & YOUNG LLP
Boston, Massachusetts
February 3, 2000
F-21
BRUKER DALTONICS INC.
COMBINED BALANCE SHEET
December 31,
------------
1997
------------
ASSETS
Current assets:
Cash and cash equivalents................................. $ 2,021,435
Accounts receivable, less allowance for doubtful accounts
of $1,028................................................ 2,449,755
Inventories............................................... 14,436,816
Deferred tax asset........................................ 133,176
Other assets.............................................. 135,743
-----------
Total current assets.................................. 19,176,925
-----------
Restricted cash............................................. 6,680,002
Property, plant and equipment, net.......................... 26,173,305
Intangible and other assets................................. 218,396
-----------
Total assets...................................... $52,248,628
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Short-term borrowings..................................... $ 182,881
Accounts payable.......................................... 4,290,956
Due to affiliated companies, net.......................... 8,218,007
Accrued expenses.......................................... 1,494,795
Accrued payroll........................................... 1,340,363
Customer deposits......................................... 10,470,046
Warranty reserve.......................................... 1,269,862
Note payable to stockholder............................... 50,000
Income taxes payable...................................... 705,513
-----------
Total current liabilities............................. 28,022,423
-----------
Deferred revenue............................................ 381,640
Deferred tax liability...................................... 7,323,929
Contingent liabilities...................................... 6,650,850
Stockholders' equity:
Bruker Daltonics Inc.
Common stock $.01 par value, authorized 7,000,000 shares,
issued and outstanding 5,250,000 shares.................. 52,500
Additional paid-in capital................................ 697,500
Bruker Daltonik GmbH
Common stock no par value, authorized 1 share, issued and
outstanding 1 share...................................... 3,489,184
Accumulated other comprehensive loss...................... (1,969,494)
Retained earnings......................................... 7,600,096
-----------
Total stockholders' equity............................ 9,869,786
-----------
Total liabilities and stockholders' equity........ $52,248,628
===========
The accompanying notes are an integral part of these statements.
F-22
BRUKER DALTONICS INC.
COMBINED STATEMENT OF OPERATIONS
Year Ended
December 31,
------------
1997
------------
Product revenue............................................. $49,246,709
Other revenue............................................... 1,878,298
-----------
Net revenue................................................. 51,125,007
Costs and operating expenses:
Cost of product revenue................................... 24,537,719
Sales and marketing....................................... 7,178,180
General and administrative................................ 2,119,792
Research and development.................................. 9,166,087
Patent litigation costs................................... 5,525,306
-----------
Total costs and operating expenses.................. 48,527,084
Operating income from continuing operations................. 2,597,923
Other income................................................ 127,255
Interest expense, net....................................... (743,199)
-----------
Income before provision for income taxes.................... 1,981,979
Provision for income taxes.................................. 1,626,785
-----------
Income from continuing operations........................... 355,194
Income from discontinued operations, net of income taxes.... 208,851
-----------
Net income.................................................. $ 564,045
===========
The accompanying notes are an integral part of these statements.
F-23
BRUKER DALTONICS INC.
COMBINED STATEMENT OF STOCKHOLDERS' EQUITY
Common Stock
------------------------ Accumulated
Bruker Bruker Additional Other Total
Daltonics Daltonik Paid-in Retained Comprehensive Stockholders'
Inc. GmbH Capital Earnings Loss Equity
---------- ----------- ---------- ----------- --------------- --------------
Balance as of December 31,
1996 (unaudited)........... $ 7,000 $3,489,184 $ 93,000 $7,036,051 $ (628,822) $9,996,413
Issuance of common stock... 45,500 -- 604,500 -- -- 650,000
Foreign currency
translation adjustment... -- -- -- -- (1,340,672) (1,340,672)
Net income................. -- -- -- 564,045 -- 564,045
----------
Net comprehensive loss..... -- -- -- -- -- (776,627)
------- ---------- -------- ---------- ----------- ----------
Balance as of December 31,
1997....................... $52,500 $3,489,184 $697,500 $7,600,096 $(1,969,494) $9,869,786
======= ========== ======== ========== =========== ==========
The accompanying notes are an integral part of these statements.
F-24
BRUKER DALTONICS INC.
COMBINED STATEMENT OF CASH FLOWS
Year Ended
December 31,
------------
1997
------------
Operating activities:
Income from continuing operations........................... $ 355,194
Adjustments to reconcile income from continuing operations
to net cash provided by continuing operations:
Depreciation and amortization............................. 2,572,850
Deferred income taxes..................................... 1,024,312
Changes in operating assets and liabilities:
Accounts receivable..................................... 4,393,788
Inventories............................................. (325,147)
Other assets............................................ 780,460
Accounts payable and accrued expenses................... 1,556,147
Warranty reserve........................................ (1,080,366)
Contingent liabilities.................................. 3,585,381
Income taxes payable.................................... 663,583
Deferred revenue........................................ 248,820
Customer deposits....................................... (1,409,458)
------------
Net cash provided by continuing operations.................. 12,365,564
Net cash provided by discontinued operations................ 320,904
------------
Net cash provided by operating activities............... 12,686,468
Investing activities:
Purchases of property and equipment......................... (3,911,879)
------------
Net cash used in investing activities................... (3,911,879)
Financing activities:
Payments on line of credit.................................. (5,399,472)
Changes in due to affiliated companies...................... (5,366,415)
Issuance of common stock.................................... 650,000
------------
Net cash used in financing activities................... (10,115,887)
Effect of exchange rate changes............................. (403,760)
------------
Net decrease in cash and cash equivalents................... (1,745,058)
Cash and cash equivalents at beginning of year.............. 3,766,493
------------
Cash and cash equivalents at end of year.................... $ 2,021,435
============
Supplemental cash flow information:
Cash paid for interest.................................... $ 1,252,112
Cash paid for income taxes................................ 517,461
The accompanying notes are an integral part of these statements.
F-25
BRUKER DALTONICS INC.
NOTES TO COMBINED FINANCIAL STATEMENTS
1. Description of Business
These financial statements represent the combined accounts of Bruker
Daltonics Inc. (formally Bruker Analytical Systems, Inc.) and Bruker Daltonik
GmbH (formally Bruker-Franzen Analytik GmbH) including its subsidiary Bruker
Saxonia Analytik GmbH (collectively "Bruker Daltonics" or the "Company"), for
the year ended December 31, 1997. All significant intercompany accounts and
transactions have been eliminated in combination.
The Company designs, manufactures and markets proprietary life science
systems based on its mass spectrometry core technology platforms. The Company
also sells a broad range of field analytical systems for pathogen identification
and substance detection. The Company maintains major technical centers in Europe
and North America. Bruker Daltonics allocates substantial amounts to research
and development and are parties to various collaborations and strategic
alliances. The Company's diverse customer base includes pharmaceutical and
biotechnology companies, academic institutions and government agencies.
2. Summary of Significant Accounting Policies
USE OF ESTIMATES
The preparation of financial statements in conformity with accounting
principles generally accepted in the United States requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and reported amounts of revenues and expenses during
the reporting period. Actual results could differ from those estimates.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with original
maturities of 90 days or less at date of purchase to be cash equivalents. Cash
and cash equivalents are carried at cost, which approximates fair market value
at year end. The Company has repurchase agreements with a bank. The repurchase
agreements are collateralized by investments principally consisting of U.S.
Government Agency securities in the amount of at least 100% of such obligation.
RESTRICTED CASH
At December 31, 1997, $6,680,002 of cash was restricted as part of an
advance deposit for a product distribution agreement between Bruker Daltonik
GmbH and Hewlett-Packard Company (HP). The Company withdrew amounts for payment
as products were delivered and accepted by HP.
CONCENTRATION OF CREDIT RISK
Financial instruments which subject the Company to credit risk consist of
cash and cash equivalents and accounts receivables. The risk with respect to
cash and cash equivalents is minimized by the Company's policy of investing in
short-term financial instruments issued by highly-rated financial institutions.
The risk with respect to accounts receivable is minimized by
F-26
BRUKER DALTONICS INC.
NOTES TO COMBINED FINANCIAL STATEMENTS (Continued)
2. Summary of Significant Accounting Policies (Continued)
the credit worthiness of the Company's customers. The Company performs periodic
credit evaluations of its customers' financial condition and generally does not
require collateral. Credit losses have been within management's expectations.
For the year ended December 31, 1997, two customers accounted for an aggregate
of 31% of the Company's product revenue. Accounts receivables, as of
December 31, 1997, for these two customers accounted for an aggregate of 28% of
total receivables.
INVENTORIES
Inventories are stated at the lower of cost or market with cost determined
by the first-in, first-out, ("FIFO") method.
Inventories include demonstration equipment which the Company offers to
current and potential customers. The Company amortizes its demonstration
equipment over a three year period. Amortization expense for demonstration
equipment was $105,981 for the year ended December 31, 1997.
PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment are stated at cost and are being depreciated
on a straight-line basis over the estimated useful lives of the assets as
follows:
Buildings................................................... 25 years
Machinery and equipment..................................... 5--10 years
Furniture and fixtures...................................... 3--5 years
SOFTWARE COSTS
Purchased software is capitalized at cost and amortized over the estimated
useful life, generally three years. Software developed for use in the Company's
products is expensed as incurred and is classified as research and development
expense.
OTHER ASSETS
Other assets consist principally of patents and licenses. Patents, patent
applications and rights are stated at acquisition cost. Amortization of patents
is recorded using the straight-line method over the legal lives of the patents,
generally for periods ranging up to ten years. Accumulated amortization of these
assets amounted to $694,104 as of December 31, 1997.
LONG-LIVED ASSETS
The Company reviews long-lived assets for impairment, in accordance with
Statement of Financial Accounting Standard (SFAS) No. 121, "Accounting for the
Impairment of Long-Lived Assets to Be Disposed Of," whenever events or
circumstances indicate that the carrying amount of an asset may not be
recoverable. Assets are written-down to fair value when the carrying costs
exceed this amount. Any impairment losses are determined based upon estimated
future cash flows and fair values. To date, no such indicators of impairment
have been identified.
F-27
BRUKER DALTONICS INC.
NOTES TO COMBINED FINANCIAL STATEMENTS (Continued)
2. Summary of Significant Accounting Policies (Continued)
WARRANTY COSTS
The Company provides a one year parts and labor warranty with the purchase
of equipment. The anticipated cost for this one year warranty is accrued upon
recognition of the sale and is included as a current liability on the
accompanying balance sheets.
CUSTOMER DEPOSITS
Under the terms and conditions of contracts with certain customers, the
Company requires an advance deposit. These deposit amounts are recorded as a
liability until revenue is recognized against the specific contract at time of
acceptance of the system.
FOREIGN CURRENCY TRANSLATION
In accordance with Statement of Financial Accounting Standards ("SFAS")
No. 52, "Accounting for Foreign Exchange," all balance sheet accounts of foreign
subsidiaries are translated into United States dollars at the current exchange
rate, and income statement items are translated at the average exchange rate for
the period; resulting translation adjustments are made directly to accumulated
other comprehensive income in stockholders' equity. Realized exchange gains and
losses are included in current operations and were not material.
REVENUE RECOGNITION
Revenue is recognized from system sales when a product is accepted by the
customer, except when sold through a non-combined Bruker affiliate that assumes
responsibility for installation, in which case the system sale is recognized
upon shipment. Revenue from accessories and parts is recognized upon shipment,
and revenue from services, when actually performed.
The Company also offers to its customers extended warranty and service
agreements extending beyond the initial year of warranty for a fee. These fees
are recorded as deferred revenue and amortized into income over the life of the
contract.
ADVERTISING COSTS
Advertising costs are expensed as incurred. Advertising expenses included
in sales and marketing were $256,360 for the year ended December 31, 1997.
RESEARCH AND DEVELOPMENT COSTS
Research and development costs are expensed as incurred.
INCOME TAXES
The Company provides for income taxes under the liability method
prescribed by SFAS No. 109, "Accounting for Income Taxes." Under this method,
deferred tax assets and liabilities are determined based on the difference
between the financial statements and tax basis of
F-28
BRUKER DALTONICS INC.
NOTES TO COMBINED FINANCIAL STATEMENTS (Continued)
2. Summary of Significant Accounting Policies (Continued)
assets and liabilities using enacted tax rates in effect for the year in which
the difference is expected to reverse. Valuation allowances are established when
necessary to reduce deferred tax assets to the amounts expected to be realized.
ACCOUNTING DEVELOPMENTS
In 1997, the Company adopted SFAS No. 130, "Reporting Comprehensive
Income," which establishes rules for reporting of comprehensive income and its
components. The components of comprehensive income that relate to the Company
are net earnings and foreign currency translation adjustments.
In June 1997, the Financial Accounting Standards Board ("FASB") issued
SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities."
The provisions of the statement require the recognition of all derivatives as
either assets or liabilities in the statement of financial position and the
measurement of those instruments at fair value. The accounting for changes in
the fair value of a derivative depends on the intended use of the derivative and
the resulting designation. The Company is required to implement the statement in
the first quarter of fiscal 2001. The Company does not believe that this new
accounting standard will have a material impact on the financial statements.
3. Inventories
The components of inventories at December 31, 1997 were as follows:
December 31,
------------
1997
------------
Raw materials............................................... $ 3,808,502
Work-in-process............................................. 4,269,997
Finished goods.............................................. 6,358,317
-----------
$14,436,816
===========
4. Property, Plant and Equipment
Property, plant and equipment at December 31, 1997 consisted of the
following:
December 31,
------------
1997
------------
Land........................................................ $ 1,118,789
Buildings................................................... 24,899,552
Office furniture, machinery and equipment................... 16,639,063
------------
42,657,404
Less accumulated depreciation............................... (16,484,099)
------------
$ 26,173,305
============
Depreciation expense for the year ended December 31, 1997 was $2,340,780.
F-29
BRUKER DALTONICS INC.
NOTES TO COMBINED FINANCIAL STATEMENTS (Continued)
5. Income Taxes
The components of income before provision for income taxes consisted of
the following for the year ended December 31, 1997:
Year Ended
December 31,
-------------
1997
-------------
United States............................................... $ 129,039
Foreign..................................................... 1,852,940
----------
$1,981,979
==========
Significant components of the provision (benefit) for income taxes for the
year ended December 31, 1997 are as follows:
Year Ended
December 31,
-------------
1997
-------------
Current:
Federal................................................... $ 14,752
State..................................................... 3,950
Foreign................................................... 27,311
----------
46,013
----------
Deferred:
Federal................................................... (49,806)
Foreign................................................... 1,630,578
----------
1,580,772
----------
Total income taxes on continuing operations................. $1,626,785
==========
The reconciliation of income tax computed at the U.S. federal statutory
tax rates to income tax expense for the year ended December 31, 1997 was as
follows:
Year Ended
December 31,
-------------
1997
-------------
Income tax (benefit) at statutory rate...................... $ 674,000
Add (deduct)
Tax differentials on foreign earnings..................... 985,000
State income taxes........................................ 4,000
Other..................................................... (36,215)
----------
$1,626,785
==========
F-30
BRUKER DALTONICS INC.
NOTES TO COMBINED FINANCIAL STATEMENTS (Continued)
5. Income Taxes (Continued)
The components of the Company's deferred income taxes at December 31, 1997
were as follows:
December 31,
-------------
1997
-------------
Deferred tax assets:
Inventory................................................. $ 131,610
Warranty accrual.......................................... 49,000
Net operating loss credit carryforward.................... 1,523,000
Other..................................................... 498,637
-----------
2,202,247
Deferred tax liabilities:
Patent litigation costs................................... (3,385,000)
Excess tax over book depreciation......................... (6,004,000)
Other..................................................... (4,000)
-----------
Total deferred tax liabilities.............................. (9,393,000)
-----------
Net deferred tax liability.................................. $(7,190,753)
===========
As of December 31, 1997, the Company had approximately $3 million of net
operating loss tax credit carryforwards available to reduce future tax
liabilities. These credits expire through the year 2013.
6. Financing Arrangements
The Company maintains revolving lines of credit, of approximately
$5,300,000 among German banks at interest rates ranging between 7.25% and 7.50%.
At December 31, 1997, $182,881 were outstanding against these revolving lines of
credit. The lines are renewable annually in October 1998.
7. Segment and Geographic Information
The Company operates in one business segment and engages in the design,
manufacturing and marketing of proprietary life science systems, process
analysis systems, and analytical instruments based primarily on mass
spectrometry technology.
F-31
BRUKER DALTONICS INC.
NOTES TO COMBINED FINANCIAL STATEMENTS (Continued)
7. Segment and Geographic Information (Continued)
GEOGRAPHIC AREAS
Information concerning principal geographic areas for 1997 are as follows:
Year Ended
December 31,
-------------
1997
-------------
Net product revenues from external customers
Germany................................................... $36,019,815
United States............................................. 13,226,894
-----------
Combined.................................................. $49,246,709
===========
Net product revenues are attributable to geographic areas based on the
region of sale.
December 31,
------------
1997
------------
Long-lived assets (excluding intangible assets)
Germany................................................... $26,026,746
United States............................................. 146,559
-----------
Combined.................................................. $26,173,305
===========
Net assets
Germany................................................... $ 9,146,007
United States............................................. 841,695
-----------
9,987,702
Elimination entries....................................... (117,916)
-----------
Combined.................................................. $ 9,869,786
===========
8. Discontinued Operations
The Company plans to complete the sale of its FT-IR business to Bruker Optik
GmbH in the first half of 2000. The FT-IR business sells and services FT-IR
instruments to a variety of markets, outside the Company's core technology
platform of mass spectrometry.
Summary results for the discontinued operations for the year ended
December 31, 1997 are as follows:
Year Ended
December 31,
------------
1997
------------
Net product revenues........................................ $1,643,857
Total costs and expenses.................................... 1,295,352
Provision for income taxes.................................. 139,654
----------
Income from discontinued operations......................... $ 208,851
==========
F-32
BRUKER DALTONICS INC.
NOTES TO COMBINED FINANCIAL STATEMENTS (Continued)
8. Discontinued Operations (Continued)
The assets and liabilities of the discontinued operations as of
December 31, 1997 consisted of accounts payable of $385,869.
9. Related-Party Transactions
As of December 31, 1997, Bruker Daltonik GmbH has two demand loans
outstanding aggregating $8,262,617 to Techneon AG, an affiliated company. The
loans, which are unsecured, bear interest at 5.25% and 7.50%.
At December 31, 1997, the Group had a $50,000 demand note to the President
of the Group. The note, which is unsecured, bears interest at prime (8.50% at
December 31, 1997).
The Company recognized sales to affiliated entities of $14,256,695 and
purchases from affiliated entities of $3,019,177 in 1997.
In 1997, Bruker Instruments, Inc., a related party, provided
administrative and other services to the Company at a cost of $370,391 based on
its assessment of the estimated fair market value of such services.
10. Employee Benefit Plans
The Company maintains or sponsors various defined contribution retirement
plans that cover domestic and international employees. The Company may make
contributions to these plans at its discretion. Retirement benefits earned are
generally based on years of service and compensation during active employment.
Eligibility is generally determined in accordance with local statutory
requirements. However, the level of benefits and terms of vesting may vary among
plans. The Company contributed $49,037 in 1997.
11. Commitments and Contingencies
LEASES
The Company leases office and production space from Bruker
Instruments, Inc. under a renewable lease. The term of this lease, which was
entered into on June 27, 1996, is for three years and four months with one year
extensions thereafter. Total rent expense was $125,123 in 1997.
Future minimum rental payments under the Company's operating lease,
excluding real estate taxes, insurance and operating costs paid by the Company,
are $131,962, $213,782 and $184,350 for 1998, 1999 and 2000, respectively.
GRANTS
The Company has a grant from the National Institute of Standards and
Technology (NIST) Advanced Technology Program, which commenced on March 1, 1995
and runs through February 28, 2000. This grant is for the development of a DNA
sequencing time-of-flight mass spectrometer with a total project cost of
$7.0 million, of which $3.5 million will be reimbursed from NIST. The Company's
expenditures were $953,852 in 1997. Amounts reimbursed from NIST were $487,780,
and are classified in other revenues.
F-33
BRUKER DALTONICS INC.
NOTES TO COMBINED FINANCIAL STATEMENTS (Continued)
11. Commitments and Contingencies (Continued)
Bruker Daltonik GmbH and its subsidiary Bruker Saxonia Analytik GmbH, are
the recipients of five grants from German government authorities. The grants
were made in connection with the Company's development of specific spectrometers
and components of spectrometers. Grants range from $1,203,382 to $6,183,027 and
aggregate $16,483,699. The grants expire from December 31, 1997 through
January 31, 2001. Aggregate expenditures during the year ended December 31, 1997
totaled $3,744,857. Amounts reimbursed in the aggregate during 1997 totaled
$1,390,518 and are classified in other revenues. At December 31, 1997, the
Company had no grants receivable.
LEGAL
Various lawsuits, claims and proceedings of a nature considered normal to
its businesses are pending against the Company and its subsidiary. The most
significant of these are described below.
The Company has a $6.7 million accrued liability at December 31, 1997
related to certain patent infringement litigation filed by a competitor. In
1997, the competitor initiated an action in the United States District Court of
Massachusetts alleging patent infringement against the Company and
Hewlett-Packard. The competitor has also filed a request for an investigation of
its patent infringement claims with the United States International Trade
Commission (ITC) and has filed suit against the Company in Germany, France and
the United Kingdom. The Massachusetts patent action has been pending the final
determination of the ITC action while the actions in Germany, France and the
United Kingdom are on going.
Based on a review of the current facts and circumstances, management of
the Company believe that the amount of the accrued liability is a reasonable
estimate of the exposure to the loss associated with these matters,
representing, principally, anticipated legal fees. While acknowledging the
uncertainties of litigation, the Company believes that these matters will be
resolved without a material effect on the Company's financial position or
results of operations. However, an unfavorable outcome of these matters could
result in a material adverse impact on the Company's financial statements.
F-34
You should rely only on the information contained in this prospectus. We have
not authorized anyone to provide information different from that contained in
this prospectus. We are offering to sell, and seeking offers to buy, shares of
common stock only in jurisdictions where offers and sales are permitted. The
information contained in this prospectus is accurate only as of the date of this
prospectus, regardless of the time of delivery of this prospectus or of any sale
of our common stock.
TABLE OF CONTENTS
Page
--------
Prospectus Summary............... 2
The Offering..................... 4
Summary Financial Data........... 5
Risk Factors..................... 6
Special Note Regarding
Forward-Looking Statements..... 17
Use of Proceeds.................. 18
Dividend Policy.................. 18
Capitalization................... 19
Dilution......................... 20
Selected Financial Data.......... 21
Management's Discussion and
Analysis of Financial Condition
and Results of Operations...... 23
Business......................... 29
Management....................... 44
Principal Stockholders........... 40
Related Transactions............. 51
Description of Capital Stock..... 54
Shares Eligible for Future
Sale........................... 57
Underwriting..................... 58
Tax Matters...................... 61
Legal Matters.................... 65
Experts.......................... 65
Where You Can Find More
Information.................... 65
Index to Financial Statements.... F-1
Until , 2000 (25 days after the date of this prospectus), all
dealers that buy, sell or trade in these securities, whether or not
participating in this offering, may be required to deliver a prospectus. Dealers
are also obligated to deliver a prospectus when acting as underwriters and with
respect to their unsold allotments or subscriptions.
[LOGO]
Shares
Common Stock
Deutsche Banc Alex. Brown
Warburg Dillon Read LLC
Thomas Weisel Partners LLC
Prospectus
, 2000
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses (other than the underwriting discount) payable in
connection with the sale of the common stock offered hereby are as follows, all
of which will be paid by the Company:
AMOUNT
--------
SEC registration fee........................................ $33,000
NASD filing fee............................................. *
Nasdaq National Market fee.................................. *
Printing expenses........................................... *
Legal fees and expenses..................................... *
Accounting fees and expenses................................ *
Transfer agent and registrar fees and expenses.............. *
Miscellaneous............................................... *
-------
Total....................................................... $ *
=======
* To be completed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
provides as follows:
A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact the he is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent or another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suite or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interest
of the corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorney's fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and a manner he
reasonably believed to in or not opposed to the best interest of the corporation
and except that no indemnification shall be made in respect to any claim, issue
or matter as to which such person shall have been adjudged to be
II-1
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
In addition, pursuant to our certificate of incorporation and bylaws, we
shall indemnify our directors and officers against expenses (including judgments
or amounts paid in settlement) incurred in any action, civil or criminal, to
which any such person is a party by reason of any alleged act or failure to act
in his capacity as such, except as to a matter as to which such director or
officer shall have been finally adjudged not to have acted in good faith in the
reasonable belief that his action was in the best interest of the corporation.
The underwriting agreement between Bruker Daltonics and the underwriters
of this offering provides that the underwriters are obligated, under certain
circumstances, to indemnify our directors, officers and controlling persons
against certain liabilities, including liabilities under the Securities Act.
Reference is made to the form of Underwriting Agreement filed at Exhibit 1.1
hereto.
We maintain directors and officers liability insurance for the benefit of
our directors and certain of our officers.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
During the three year period ending December 31, 1999, Bruker Daltonics
has issued the following securities, none of which has been registered under the
Securities Act:
1. On February 1, 1997, we sold 350,000 shares of common stock to Frank H.
Laukien for a purchase price of $500 and a capital contribution of $49,500.
2. On June 30, 1997, we sold 1,750,000 shares of common stock to Isolde
Laukien for a purchase price of $2,500 and a capital contribution of
$247,500; 1,050,000 shares of common stock to Joerg C. Laukien for a
purchase price of $1,500 and a capital contribution of $148,500; 1,050,000
shares of common stock to Marc M. Laukien for a purchase price of $1,500
and a capital contribution of $148,500; and 350,000 shares of common stock
to Dirk D. Laukien for a purchase price of $500 and a capital contribution
of $49,500.
3. On December 21, 1998, we sold 5,750,000 shares of common stock for $11,500
and a capital contribution of $1,138,500 to each of Frank H. Laukien,
Isolde Laukien, Joerg C. Laukien, Marc M. Laukien and Dirk D. Laukien.
4. As of April 10, 2000, options to purchase 783,135 shares of common stock
were outstanding under Bruker Daltonics' 2000 Stock Option Plan. None of
the options are exercisable within 60 days. All of these options were
granted in February 2000 to officers, directors, employees and advisors of
Bruker Daltonics.
The sales of securities set forth in paragraphs one to three above were
exempt from the registration requirements of the Securities Act in reliance on
Section 4(2) thereof, or Regulation D promulgated thereunder, as transactions by
an issuer not involving a public offering. The sale of securities set forth in
paragraph four above was exempt from the registration requirements of the
Securities Act in reliance on Rule 701 promulgated under Section 3(b) of the
Securities Act as transactions by an issuer pursuant to compensatory benefit
plans and contracts relating to compensation as provided under such Rule 701.
The
II-2
granting of stock options described in paragraph four above did not require
registration under the Securities Act, or an exemption therefrom, insofar as
such grants did not involve a "sale" of securities as such term is used in
Section 2(3) of the Securities Act.
II-3
ITEM 16. EXHIBITS
NO. DESCRIPTION OF DOCUMENTS
--- ------------------------------------------------------------
*1.1 Form of Underwriting Agreement
2.1 Asset Purchase Agreement dated July 1, 1996 between the
Registrant and Spectrospin AG
2.2 Share Purchase Agreement dated December 9, 1998 among the
Registrant, Bruker Physik AG and the estate of Dr.
Guenther R. Laukien
2.3 Asset Purchase Agreement dated May 28, 1999 between the
Registrant and Viking Instruments Corp
2.4 ProteiGene Share Purchase Agreement dated December 6, 1999
between the Registrant and Frank H. Laukien
2.5 ProteiGene Share Purchase Agreement dated March 1, 2000
between the Registrant and Sidney R. Kaufman
3.1 Amended and Restated Certificate of Incorporation of the
Registrant
3.2 Amended and Restated Bylaws of the Registrant
*4.1 Specimen stock certificate representing shares of common
stock of the Registrant
*5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional
Corporation
10.1 2000 Stock Option Plan
10.2 Sharing Agreement dated as of February 28, 2000 among the
Registrant and 13 affiliates of the Registrant
+10.3 Collaboration and OEM Agreement dated March 6, 2000 between
PerkinElmer Instruments LLC and its Affiliates and the
Registrant and its Affiliates
+10.4 Cooperation Agreement dated November 15, 1999 between Bruker
Daltonik GmbH and MWG-Biotech AG
+10.5 License Agreement dated August 10, 1998 between the
Registrant and Indiana University's Advanced Research &
Technology Institute
10.6 Lease dated June 27, 1996 between the Registrant and Bruker
Instruments, Inc., as amended
+10.7 ITMS Collaboration Agreement by and between Hewlett-Packard,
the Registrant and Bruker Daltonik GmbH, dated April 28,
1999
+10.8 Collaboration Agreement dated December 4, 1997 between
Bruker-Franzen Analytik GmbH and Sequenom Instruments GmbH
*10.9 Agreement by and between the Registrant and Bruker Optik
GmbH dated March 30, 2000
21.1 Subsidiaries of the Registrant
23.1 Consent of Ernst & Young LLP
23.2 Consent of BDO
23.3 Consent of Hutchins, Wheeler & Dittmar, A Professional
Corporation (included in Exhibit 5.1)
24.1 Power of Attorney (included on page II-5)
27.1 Financial Data Schedule
* To be filed by amendment
II-4
+ Confidential treatment requested as to certain portions, which portions
have been omitted and filed separately with the Commission.
All other schedules for which provisions are made in the applicable
accounting regulations of the Securities and Exchange Commission are not
required under the related instructions or are inapplicable, and therefore have
been omitted.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes to provide to the
underwriters at the closing of this offering specified in the underwriting
agreement certificates in such denomination and registered in such names as
required by the underwriters to permit proper delivery to each purchaser.
The undersigned registrant hereby undertakes that: (1) for purposes of
determining any liability under the Securities Act, the information omitted from
the form of prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time it was declared
effective; and (2) for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to provisions described in Item 14 above, or otherwise, the
registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this amended registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in Billerica, Massachusetts, on
April 14, 2000.
BRUKER DALTONICS INC.
By: /s/ FRANK H. LAUKIEN, PH.D.
-----------------------------------------
Frank H. Laukien, Ph.D.
PRESIDENT, CHIEF EXECUTIVE OFFICER AND
CHAIRMAN
We, the undersigned officers and directors of Bruker Daltonics, hereby
severally constitute and appoint each of Frank H. Laukien and David E. Plunkett
to sign for us and in our names in the capacities indicated below, the
Registration Statement on Form S-1 filed herewith and any and all pre-effective
and post-effective amendments to said Registration Statement, and, in connection
with any registration of additional securities pursuant to Rule 464(b) under the
Securities Act of 1933, to sign any abbreviated registration statement and any
and all amendments thereto, and to file the same, with all exhibits thereto and
other documents in connection therewith, in each case, with the Securities and
Exchange Commission, and generally do all such things in our names and on our
behalf in our capacities consistent with the provisions of the Securities Act of
1933, as amended, and all requirements of the Securities and Exchange
Commission.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
President and Chief Executive
/s/ FRANK H. LAUKIEN, PH.D. Officer and Chairman of the
------------------------------------------- Board (Principal Executive April 14, 2000
Frank H. Laukien, Ph.D. Officer)
/s/ DAVID E. PLUNKETT Chief Financial Officer
------------------------------------------- (Principal Financial and April 14, 2000
David E. Plunkett Accounting Officer)
/s/ DIETER KOCH, PH.D.
------------------------------------------- Director April 14, 2000
Dieter Koch, Ph.D.
/s/ BERNHARD WANGLER
------------------------------------------- Director April 14, 2000
Bernhard Wangler
/s/ TIMOTHY J. HANSBERRY
------------------------------------------- Director April 14, 2000
Timothy J. Hansberry
/s/ WILLIAM A. LINTON
------------------------------------------- Director April 14, 2000
William A. Linton
/s/ COLLIN D'SILVA
------------------------------------------- Director April 14, 2000
Collin D'Silva
/s/ RICHARD M. STEIN
------------------------------------------- Director April 14, 2000
Richard M. Stein
EXHIBIT INDEX
NO. DESCRIPTION OF DOCUMENTS
--- ------------------------------------------------------------
*1.1 Form of Underwriting Agreement
2.1 Asset Purchase Agreement dated July 1, 1996 between the
Registrant and Spectrospin AG
2.2 Share Purchase Agreement dated December 9, 1998 among the
Registrant, Bruker Physik AG and the estate of Dr.
Guenther R. Laukien
2.3 Asset Purchase Agreement dated May 28, 1999 between the
Registrant and Viking Instruments Corp.
2.4 ProteiGene Share Purchase Agreement dated December 6, 1999
between the Registrant and Frank H. Laukien
2.5 ProteiGene Share Purchase Agreement dated March 1, 2000
between the Registrant and Sidney R. Kaufman
3.1 Amended and Restated Certificate of Incorporation of the
Registrant
3.2 Amended and Restated Bylaws of the Registrant
*4.1 Specimen stock certificate representing shares of common
stock of the Registrant
*5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional
Corporation
10.1 2000 Stock Option Plan
10.2 Sharing Agreement dated as of February 28, 2000 among the
Registrant and 13 affiliates of the Registrant
+10.3 Collaboration and OEM Agreement dated March 6, 2000 between
PerkinElmer Instruments LLC and its Affiliates and the
Registrant and its Affiliates
+10.4 Cooperation Agreement dated November 15, 1999 between Bruker
Daltonik GmbH and MWG-Biotech AG
+10.5 License Agreement dated August 10, 1998 between the
Registrant and Indiana University's Advanced Research &
Technology Institute
10.6 Lease dated June 27, 1996 between the Registrant and Bruker
Instruments, Inc., as amended
+10.7 ITMS Collaboration Agreement by and between Hewlett-Packard,
the Registrant and Bruker Daltonik GmbH, dated April 28,
1999
+10.8 Collaboration Agreement dated December 4, 1997 between
Bruker-Franzen Analytik GmbH and Sequenom Instruments GmbH
*10.9 Agreement by and between the Registrant and Bruker Optik
GmbH dated March 30, 2000
21.1 Subsidiaries of the Registrant
23.1 Consent of Ernst & Young LLP
23.2 Consent of BDO
23.3 Consent of Hutchins, Wheeler & Dittmar, A Professional
Corporation (included in Exhibit 5.1)
24.1 Power of Attorney (included on page II-5)
27.1 Financial Data Schedule
* To be filed by amendment
+ Confidential treatment requested as to certain portions, which portions
have been omitted and filed separately with the Commission.
Exhibit 2.1
FTMS ASSET PURCHASE AGREEMENT
BETWEEN SPECTROSPIN AG, FALLANDEN,
SWITZERLAND ("SAG"), AND BRUKER ANALYTICAL
SYSTEMS, INC., BILLERICA, MA, USA ("BASI")
1. AS OF JULY 1ST, 1996, BASI HEREBY ASSUME SAG'S LIABILITY, VALUED AS A
US $100,000 SAG LIABILITY, FOR PROVIDING SERVICE, INCLUDING WARRANTY
SERVICE, SPARE PARTS, AND UPGRADES, TO THE CUSTOMERS LISTED IN
ATTACHMENT A, TO WHICH SAG HAS SOLD FOURIER TRANSFORM MASS SPECTROMETRY
("FTMS") EQUIPMENT OVER THE YEARS.
2. SAG HAS TRANSFERRED ITS REMAINING SUBUNIT AND COMPONENT FTMS INVENTORY,
UNDER BASI PURCHASE ORDER BE601441, DATED APRIL 11, 1996, WITH A
NEGLIGIBLE SAG BOOK VALUE, TO BASI FOR A TOTAL AMOUNT OF $100,000. THIS
AMOUNT OF US $100,000 WILL BE THE FINAL AND ONLY INVOICE TO BE ISSUED
BY SAG TO BASI FOR BE601441, AND ALL OTHER INVOICES FOR THIS PURCHASE
ORDER NO. WILL BE CREDITED OUT BY SAG.
3. AS OF JULY 1ST, 1996, SAG HEREBY TRANSFERS AND / OR EXCLUSIVELY
LICENSES TO BASI ALL ITS WORLDWIDE FTMS INTELLECTUAL PROPERTY RIGHTS,
INCLUDING BUT NOT LIMITED TO FTMS INVENTIONS, PATENTS, PATENT
APPLICATIONS, COPYRIGHTS, TRADEMARKS AND TRADEMARK APPLICATIONS, AND
ALL FTMS KNOW-HOW, TRADE-SECRETS, TECHNICAL AND BUSINESS INFORMATION
RELATING TO FTMS, VALUED AT US $100,000.
4. SAG MAKES NO WARRANTIES AND REPRESENTATIONS ABOUT USEABILITY OF
INVENTORIES, UPPER LIMIT ON TRANSFERRED SERVICE LIABILITY, VALIDITY AND
ENFORCEABILITY OF INTELLECTUAL PROPERTY, OR ANY OTHER WARRANTY, UNLESS
EXPLICITLY STATED IN THIS AGREEMENT. BASI DOES NOT ASSUME ANY PRODUCT
OR PATENT LIABILITY FOR SAG SALES, OR ANY OTHER SAG CONTRACTUAL OR
OTHER LIABILITY, IF ANY, UNLESS EXPLICITLY AGREED UPON IN THIS
AGREEMENT.
FOR SAG: FOR BASI:
/s/ WERNER SCHITTENHELM /s/ JOHN WRONKA
--------------------------- ------------------------
WERNER SCHITTENHELM, DIRECTOR DR. JOHN WRONKA, V.P.
ATTACHMENT A: LIST OF SAG FTMS CUSTOMERS
Institution and Address Installation Spectrometer
------------------------- ------------ -------------
------------------------- ------------ -------------
Dr. Rick Willis 11.95 BioAPEX 47E
Australian Institute of Marine Sciences ESI, MALDI, APCI
PMB No. 3 NanoSPRAY
Townsville, M.C. GC, EI/CI, SIMS
Q1d. 4810 AUSTRALIA QEA, Pulsed Valves
Phone: 61 77 789 375
Fax: 61 66 625 752
EMAIL: R_WLLIS@AIMS.GOV.AU
Prof. Jon Amster 1.96 BioAPEX 70e
University of Georgia ESI and MALDI
Chemistry Department
Athens, GA 30602
Phone: 706 542-2001
Fax: 706-542-9454
EMAIL: amster@sunchem.chem.uga.edu
Prof. Terrance B. McMahon 6.95 CMS to APEX Upgrade
Department of Chemistry
University of Waterloo
Waterloo, Ontario N2L 3G1 CANADA
Phone: 519 888 4591
Fax: 519 746 0435
EMAIL: mcmahon@watsci.uwaterloo.ca
Prof. Einar Uggerud 6.95 BioAPEX 47e
University of Oslo ESI and MALDI
Postboks 1033 Blindern EI/CI
N-0315-Oslo Laser Vaporization Cluster
Norway Source
Phone: 47 22 85 55 37
Fax: 47 22 85 54 41
email: einar.uggerud@kjemi.uio.no
Prof. Roger Giese 2.95 APEX 47e with GC/MS
Barnett Institute
Mugar Building
Northeastern University
Boston, MA 02115 USA
Phone: 617 373 3227
Fax: 617 373 8720
Chinese University of Hong Kong 10.94 BioAPEX 47e
Department of Chemistry Electrospray Ionization
Dr. Dominic Chan MALD Ionization
Shatin, New Territories
HONG KONG
Phone: 85 2 2 609 6344
Fax: 85 2 2 603 5057
University of Florida 2.94 APEX 70e
Department of Chemistry Infinity Cell
Professor John Eyler EI/CI Source
Gainesville, Florida Glow Discharge
USA Electrospray Ionization
Phone: 904 392-0532
Fax: 904 392-0872
Brigham Young University 1.94 APEX 47e
Department of Chemistry Infinity Cell
Dr. Dave Dearden EI/CI Source
Salt Lake City, Utah Pulsed Valve
USA
Phone: 801 378 2355
Fax: 801 378 5474
EMAIL: deardend@chem.byu.edu
FOM-AMOLF 11.93 APEX 70e
Atomic and Molecular Physics Infinity Cell
Professor Jaap Boon EI/CI Source
Kruislaan 407 Pyrolysis Source
1098 SJ Amsterdam
THE NETHERLANDS
Phone: 31 20 608 1234
Fax: 31 20 668 4106
EMAIL: ron@kookaburra.amolf.nl
Prof. Luc VanVaeck 92 APEX 47e
Department of Chemistry Laser MicroFocus
University of Antwerp
Universiteitsplein 1
B-2160 Wilrijk
BELGIUM
Phone: 32 3 820 2348
Fax: 32 3 820 2249
Agency for Defense Development 92 APEX 70e
Dept. ATRC-6-6 EI/CI Source
Dr. Hwang SIMS Ionization
Yuseong, Taejon Excimer Laser Dissociation
THE REPUBLIC OF KOREA
University of Rome `La Sapienza' 92 APEX 47e
Institute of Pharmaceutical Chemistry Infinity Cell
Professor Fulvio Cacace Nd:YAG Laser Desorption
Piazza Aldo Moro 5 EI/CI Source
00185 Rome
ITALY
Phone: 39 49 913 698
Fax: 39 49 913 888
Technical University of Berlin CMS 70X
Institute for Organic Chemistry EI/CI Source
Professor Helmut Schwarz GC Interface
Strasse des 17 Juni 135 FAB Ionization
1000 Berlin Two Pulsed Valves
GERMANY Laser Desorption
Phone: 49 30 314 23483
Fax: 49 30 314 21102
Technical University of Munich CMS 47X
Institute for Physical and Theoretical Laser Desorption
Chemistry
Professor Vladimir Bondybey
Lichtenbergstrasse 4
8046 Garching
GERMANY
Phone: 49 89 3209 3426
Fax: 49 89 3209 3418
Email: Dr. Gereon Niedner-
Scahttebourg, gereon@anionx.phys.
chemie.tu-muenchen.de
Miami University CMS 47X
Dr. Carolyn Cassady EI/CI Source
Dept. of Chemistry Pulsed Valve
112, Hughes Hall
Oxford, Ohio 45056
USA
Phone: 513 529 2494
Fax: 513 529 1667
University of Waterloo CMS 47X
Department of Chemistry Infinity Cell
Professor Terry McMahon Pulsed Valve
Waterloo, Ontario N2L 3G1
CANADA
Phone: 519 888 4591
University of Bielefeld CMS 47X
Faculty for Chemistry Infinity Cell
Professor H.-Fr. Gruetzmacher EI/CI Source
Universitaetstrasse 25 Laser Desorption
4800 Bielefeld
GERMANY
Phone: 49 521 106 2072
Fax: 49 521 106 6146
email: gruetzmacher@chema.uni-
bielefeld
University of Bremen CMS 70
Natural Sciences II Laser Desorption
Prof. K.-P. Wanczek
Loebenerstrasse
2800 Bremen 33
GERMANY
Phone: 49 421 218 3402
Fax: 49 421 218 7215
University of Amsterdam CMS 47X
Institute for Mass Spectrometry EI/CI Source
Professor Nico Nibbering FAB Ionization
Nieuwe Achtergacht 129
1018 Amsterdam
THE NETHERLANDS
Phone: 31 205 255 457
Fax: 31 205 256 971
Wiomi Pty. Ltd. CMS 47X
Dr. D.M. Kemp GC Interface
P.O. Box 3063 SIMS Ionization
0001 Pretoria
SOUTH AFRICA
Ecole Polytechnique CMS 47X
Chemistry Department EI/CI Source
Prof. Audier Pulsed Valve
91128 Palaiseau
FRANCE
Phone: 33 1 693 34878
Fax: 33 1 693 33010
Academy of Internal Affairs CMS 47X
Institute of Criminalistics GC Interface
Mrs. Krystyna Zawalska FAB Ionization
Ksawerov 13 Laser Desorption
00-904 Warsaw
POLAND
SASOL Technology Ltd. CMS 47X
Instrumental Techniques EI/CI Source
Research & Development GC Interface
Dr. Abrie Augustyn Laser Desorption
9570 Sasolburg
SOUTH AFRICA
Technical University Darmstadt CMS 47
Institute for Physical Chemistry
Dr. Manfred Irion
Petersenstrasse 20
6100 Darmstadt
GERMANY
Phone: 49 61 511 65438
Fax: 49 6151 166015
Consejo Superior de Investigaciones CMS 47
Cientificas Pulsed Valve
Instituto Rocasolano
Dr. J.-L. Abboud
Serrano 119
28006 Madrid
SPAIN
Russian Academy of Sciences CMS 47
Institute of Chemical Physics
Professor V.L. Talrose
Ul. Kosygina 4
117987 Moscow GSP-1
RUSSIA
University of New South Wales CMS 47
School of Chemistry Solid Probe
Professor Gary Willett Nd:YAG Laser Desorption
Kensington 2033
NSW AUSTRALIA
Phone: 61 2 697 4723
Fax: 61 2 662 2835
University of Nice CMS 47
Laboratory for Physical Organic
Chemistry
Dr. Jean-Francois Gal
Parc Valrose
06034 Nice Cedex
FRANCE
Phone: 33 93 529 852
Fax: 33 93 529 919
Institute of Chemical and Biological CMS 47
Physics
Professor E.T. Lipmaa
Lenini Priestee 10
2000001 Tallinn
ESTONIA
Institute for Catalysis CMS 47
Dr. S. Iwanow
Prospekt Nauki 7
630090 Novosibirsk 90
RUSSIA
EXHIBIT 2.2
CERTIFIED COPY
/crest/
Document
of
Dr. Stiegeler
Notary
Karlsruhe Notary's Offices
Helmholtzstrasse 9 - 76133 Karlsruhe
P. O. Box 46 08 - 76030 Karlsruhe
Telephone: 07 21/9 26-62 63
DOCUMENT REGISTER 2 UR 4682/98
Bruker Daltonics, Inc.,
44 Manning Road, Billerica, MA 01821
USA
PLACE OF NOTARIAL RECORDING:
Helmholtzstrasse 9-11, Karlsruhe
DATE OF NOTARIAL RECORDING:
December ninth,
nineteen hundred ninety-eight
- December 9, 1998 -
Present:
1. Ms. Isolde Laukien nee Mahler, born January 4, 1940, residing at
Silberstreifen 8, 76287 Rheinstetten
acting as sole executive of
BRUKER-PHYSIK AKTIENGESELLSCHAFT
located in Rheinstetten (Silberstreifen 4, 76287 Rheinstetten)
listed in the Commercial Register of the Karlsruhe Amtsgericht [District
Court], HRB 84.
The notary has certified this power of representation based on inspection
of the Commercial Register of the Karlsruhe District Court on December 4,
1998.
2. Mr. Jorg Laukien, born December 10, 1954, residing at Uhlandstrasse 10,
76275 Ettlingen,
acting on his own account, and for account of
the other heirs of the late Prof. Dr. Gunter Rudi Fritz Laukien
as listed in the joint certificate of inheritance dated July 21, 1997
(Notary's Office 2, Karlsruhe - Probate Court - 2 GRN 157/97), the original
of which is present today, a photocopy of which is attached to this
document, the conformity of which with the original is hereby certified,
based on the power of attorney dated May 15, 1998, submitted in the
original, returned, and a photocopy of which is attached to this document,
the conformity of which with the original is hereby certified.
3. Mr. Frank H. Laukien, born February 4, 1960, residing at 12 Smith Hill
Road, Lincoln, MA 01773, USA,
acting as President and Authorized Representative for
BRUKER DALTONICS, INC., 44 MANNING ROAD, BILLERICA, MASSACHUSETTS 01821
who submitted the originals of the elements of proof adjoining this
document.
After their identities were established by means of Federal identity
cards/passports, the persons appearing before me made the following declaration:
-3-
AT THE REQUEST OF THE PERSONS APPEARING BEFORE ME, I HEREBY DOCUMENT THEIR
DECLARATIONS, WHICH THEY MADE WHILE BEING PRESENT TOGETHER AT THE SAME TIME, AS
FOLLOWS:
I.
PRELIMINARY REMARKS
1. The
BRUKER DALTONIK GmbH
company, with headquarters in Bremen, is listed in the Commercial Register
of the Bremen District Court HRB 8150.
2. The nominal capital of the company is DM 5,000,000.00.
3. The nominal capital is held as follows:
a) Bruker Physik AG
Rheinstetten,
A participating share in the amount of DM 1,275,000.00
b) Community of heirs of Prof. Dr. G. Laukien
A participating share in the amount of DM 3,725,000.00
4. According to information from the parties concerned, the nominal capital is
fully paid in.
-4-
II.
TRANSFER OF INTEREST
The appearing parties as defined in paragraph 1 above hereby transfer their
interest in the amount of DM 1,275,000.00 in the above-mentioned GmbH, along
with all rights and in rem components in exclusive rights, to the appearing
parties as defined in paragraph 3 above.
The appearing parties as defined in paragraph 2 above hereby transfer their
interest in the amount of DM 3,725,000.00 in the above-mentioned GmbH, along
with all rights and in rem components in exclusive rights, to the appearing
parties as defined in paragraph 3 above.
Agreement has been reached concerning this transfer of rights. The transferee
accepts this transfer. Security of the trade relationship is not desired.
III.
TERMS/CONSIDERATION
1. The transfer made today is effective as of today's date.
2. The transferee is entitled to the claim on a pro rata share in annual net
profits for previous years and the current year, unless already paid out to
the shareholders.
3. The contract price for the transferred interests is DM 9,030,000.00 (in
words: nine million thirty thousand). Of that amount, the community of
heirs receives DM 6,727,350.00 and Bruker Physik AG receives DM
2,302,650.00.
4. The contract price must be paid by December 31, 1998.
- 5 -
-5-
IV.
GUARANTEE
The transferor guarantees only the existence of the interest, the fact that it
is paid up in the amount indicated, and the free and unfettered transfer of
rights. More extensive liability, specifically for the quality of the business
undertakings of the company, is ruled out.
V.
CONSENT
Pursuant to the partnership agreement, no consent of the company/shareholders is
required for today's transfer of interest. By way of precaution, this consent is
hereby given.
The manager here present, Mr. Frank Laukien, hereby accepts the application for
transfer.
VI.
COSTS
All costs associated with this document and any inheritance taxes shall be paid
by the appearing party as defined in paragraph 3 above. The bill of charges
shall be sent to the Wangler Law Offices.
VII.
CONCLUSION
The notary informed those present of the Beurkundungsgesetz [Document
Authentication Act], specifically section 16 GmbHG [Law on Limited Liability
Companies], section 24 GmbHG, and the joint and several liability for costs of
the interested parties. According to information provided by the interested
parties, the company has real property in Bremen and Leipzig.
-6-
The interested parties expressly waived verification by the notary of the
information regarding the content of the partnership agreement.
The notary recommended that tax professionals be consulted for purposes of
obtaining tax advice and information.
CONCLUSION:
1. The notary provided the requisite information. Specifically, he informed
the parties of the liability of transferors and transferees with respect to
shares not fully paid in, the risk of advance performance, as well as the
need to document any collateral agreements.
The notary mentioned the duty of the general manager, pursuant to section
40 GmbHG, to file a revised shareholder list with the registration court.
2. The following are to be distributed:
- a certified photocopy to each of the interested parties;
- a certified photocopy to the Bremen Tax Office, pursuant to section 54
EStDV [Income Tax Implementing Regulation]
- a certified photocopy for information to: Wangler Law Offices,
Kriegsstrasse 133, 76135 Karlsruhe
- announcement of the transfer to the registration court, Bremen
District Court
- 2 certified photocopies to the Bremen Tax Office
- Real Property Transfer Tax Office -
- 2 certified photocopies to the Leipzig Tax Office
- Real Property Transfer Tax Office -.
The notary read the foregoing document aloud to the interested parties; it was
approved by them, and signed by hand by them and by the notary, as follows:
/signatures/
ACKNOWLEDGMENT OF TRANSLATION
April 13, 2000
The undersigned officer of the Registrant hereby acknowledges on behalf
of the Registrant that the foregoing translation of the Share Purchase
Agreement dated December 9, 1998 among the Registrant, Bruker Physik AG and
the estate of Dr. Guenther R. Laukien is a fair and accurate English
translation from German of the original executed agreement.
BRUKER DALTONICS INC.
By: /s/ David E. Plunkett
--------------------------------
Name: David E. Plunkett
Title: Treasurer
Exhibit 2.3
Thomas Kuehn, Ph.D., President
May 28, 1999
May 28, 1999
VIA TELECOPIER (301) 320-1690
Thomas Kuehn, Ph.D., President
Viking Instruments Corporation
c/o Woodmont Asset Management, Inc.
6403 Kirby Road
Bethesda, MD 20817
Dear Dr. Kuehn:
As you are aware, on May 25, 1999, the Bankruptcy Court extended the time
to submit offers to purchase the business and assets of Viking Instruments
Corporation ("Viking") until June 8, 1999. The following constitutes Bruker's
final offer for it or its nominee to acquire from Viking the business and
certain assets of Viking for One Hundred Fifty Thousand Dollars ($150,000.00)
cash, including an initial advance in the amount of up to Thirty Thousand
Dollars ($30,000.00) as post-petition debtor-in-possession financing to be
credited to the purchase price (such initial advance being referred to herein as
the "DIP Financing"), subject to the terms set forth in this letter. This offer
replaces and supercedes all previous offers to Viking.
Bruker continues to believe that a prompt approval of a sale to it and
closing of the transaction remain absolutely critical to the viability of this
offer. Every day of delay runs the risk of further diminishing the goodwill of
Viking and its value as an ongoing business. Bruker believes that this offer is
in the best interests of all parties, including Viking's employees, creditors,
vendors and customers, and urge that it be considered promptly. It is urgent
that the steps referred to below proceed as expeditiously as possible if this
transaction is to succeed.
Thomas Kuehn, Ph.D., President
May 28, 1999
I. Objectives
Bruker has certain key objectives which must be realized if this offer to
purchase the business and certain assets of Viking is to be consummated.
First, it is critical that the goodwill of the business be preserved.
Thus, Bruker would contemplate a closing as soon as practicable but not later
than June 23, 1999. In the interim, it is important that satisfactory
arrangements be made to preserve relationships with existing customers of
Viking.
Second, a significant asset of Viking is its organization. All parties
must act quickly if the Viking organization, with its many skills and talents,
is to remain intact. As a condition to the closing of the transaction, Bruker
would expect that the following Viking employees would become employees of, or
consultants to, Bruker: Thomas Kuehn, Ph.D.; Mark Wilson, Ph.D.; Yuchi Huang,
Ph.D., Brian Eckenrode, Ph.D.; Paul Groves; and Ken Cope (the "Employees"). As
set forth below, Bruker contemplates that, between the time this offer is
accepted and the close of business on June 7, 1999, it shall obtain from each of
the Employees agreements (on terms acceptable to Bruker in its sole discretion)
that the Employees will make themselves available to be employed by, or
consultants to, Bruker.
Third, Bruker must be able to acquire the tangible and intangible assets
described below free and clear of all liens, claims, interests and encumbrances
of any kind. Bruker understands that, on October 29, 1998, Viking filed under
Chapter 11 of the United States Bankruptcy Code (the "Bankruptcy Code"). Given
Viking's present financial condition, Bruker believes that the transactions
outlined in this letter will not be possible except under the umbrella of court
supervision.
Fourth, it is contemplated that after the closing Viking's business will
be integrated into Bruker as a focused business unit. Brian Abraham, Ph.D. of
Bruker will oversee the transition of the assets and business acquired pursuant
to this offer to Bruker's operations in Massachusetts.
To accomplish these objectives, Bruker is prepared to purchase certain
assets of Viking, and pending consummation of this purchase (and subject to the
limitations contained herein) to provide Viking, as additional consideration for
the purchase, with the DIP Financing.
- 2 -
Thomas Kuehn, Ph.D., President
May 28, 1999
II. The Acquisition
A. Assumption of Liabilities. Bruker will not assume any liabilities of Viking
of any kind.
B. Included Assets. Bruker will acquire all of Viking's assets other than the
Excluded Assets identified below (the "Included Assets"), including, without
limitation the following:
a. Intangible Assets. The assets to be acquired include all
intangible assets of Viking of every kind, including but not
limited to (i) all Viking trademarks and associated goodwill,
including registration and applications for registrations,
renewals and extensions; (ii) all patents, patent
applications, interest in inventions, know-how, trade secrets,
confidential information, techniques, specifications,
schematics, and logic diagrams including, without limitation,
all patents for or related to the Transportable Gas
Chromatograph Mass Spectometer; (iii) interest in customer
lists, sales prospect lists including, without limitation, all
files and records related to transactions with customers of
all kinds; (iv) copyrights and interest in copyrightable
subject matter, including, without limitation, all works of
authorship, software, firmware, microcode, computer programs,
documentation and designs, and unregistered trade names
including SpectraTrak, SpectraScan, Viking GC/MS, and Viking
Instrument; (v) all rights, including without limitation, all
intellectual property rights, under Viking's contracts with
its employees, contractors and consultants; (vi) all right,
title and interest in SpectraScan(TM) Software Operating
System for SpectraTrak 573 System including the object and
source code and the copyrights thereto; and (vii) all right,
title and interest in SpectraTrak(TM) Model 573 Transportable
GC/MS Design Package including mechanical design drawings,
electrical and wiring harness design drawings and bill of
materials.
b. Machinery, Equipment, Furnishing, Fixtures, and Supplies. The
transaction would include all machinery, equipment (including,
without limitation, computers, printers and laboratory
equipment), furniture, fixtures, and supplies of Viking.
c. Work in Process. In addition, the transaction includes an
assignment of so much of Viking's present work in process as
shall not have been filled as of the closing of this
transaction and any additional work in process which may be
developed by Viking during the period of the DIP Financing and
not filled as of the closing of this transaction, subject to
any required consents of third parties (collectively, the
"Work In Process"), including but not limited to unfilled
purchase orders and other contract rights related to the order
from Viking customers for Viking products; provided, however,
that Bruker reserves the right not to accept an assignment of
those Work In Process orders which Bruker, upon further review
and in its sole discretion, determines not to accept for
credit or any other reason.
- 3 -
Thomas Kuehn, Ph.D., President
May 28, 1999
Bruker shall notify Viking in writing on or before June 22,
1999 whether it intends not to accept any Work In Process
orders.
d. Certain Leases and Executory Contracts. In addition, the
transaction would include the assumption and assignment of
such leases and executory contracts of Viking as Bruker may
deem appropriate, which leases and executory contracts shall
be identified by Bruker at any time before closing or within
30 days thereafter. Viking shall take any and all steps,
including obtaining any necessary orders from the Bankruptcy
Court, and pay any and all cure and/or compensation amounts,
necessary to effectuate the assumption and assignment of the
identified leases and executory contracts.
e. Inventory. All inventory, including without limitation: all
raw materials; all finished products; all manufacturing
inventory including, without limitation, all SpectraTrak(TM)
Model 573 GL sub-assemblies, SpectraTrak(TM) Model 572 chassis
components and GL sub-assemblies and all mechanical,
electronic, and vacuum components and parts; all open stock;
all service parts inventory including, without limitation, all
new and used parts for SpectraTrak(TM) Models 600, 620,
SpectraTrak(TM) Model 572 Transportable GC/MS and
SpectraTrak(TM) Model 772 Process GC/MS, SpectraScan operating
system software master duplication disks for SpectraTrak(TM)
Models 620, 672, 572 and 772 and operating, maintenance,
specifications, and design documents and manuals for
out-of-production ST600, 620, 672, 572, 772 and other
prototype products.
f. Listed Assets. Without limiting any of the foregoing, the
Included Assets includes the assets listed on the attached
Exhibit A.
C. Excluded Assets. The transaction would exclude (1) all causes of action
pursuant to Section 544, 547, 548, 549 and 550 of the Bankruptcy Code (11 U.S.C.
ss.ss.101 et seq.) ("Avoidance Actions"), (2) any cash of Viking on hand as of
the closing of the sale, (3) any accounts receivable and (4) any executory
contracts not specifically assumed and assigned to Bruker in accordance with the
terms of this Letter Agreement.
D. Purchase Price. In consideration for the Included Assets, Bruker shall pay
Viking One Hundred Fifty Thousand Dollars ($150,000.00) (the "Purchase Price")
in immediately available funds at the closing of the sale the Assets subject to
the satisfaction of the conditions set forth below.
E. Conditions This offer is subject to the following conditions, all of which
must be satisfied by the date indicated, or if no date is indicated, prior to
the closing, unless waived in writing by Bruker:
- 4 -
Thomas Kuehn, Ph.D., President
May 28, 1999
1. It shall have been accepted in writing by Viking or Viking's
successor in interest entitled to so accept by signing and returning
to the undersigned a copy of this letter no later than 5:00 p.m.
(Boston time) on June 2, 1999.
2. The sale of the Assets shall have been authorized and confirmed by
order of a Bankruptcy Court Judge having authority to do so (the
"Sale Order") on or before June 8, 1999, upon proper notice to all
creditors of Viking's bankruptcy estate and other parties entitled
to such notice by the Federal Rules of Bankruptcy Procedure or by
the Local Bankruptcy Rules of the United States Bankruptcy Court for
the Eastern District of Virginia, or otherwise by operation of law,
with the appeal period from such order having finally passed without
a notice of appeal having been filed, or each appeal having been
dismissed or withdrawn within thirty (30) days after such notice was
filed. At Bruker's option, the closing may take place if an appeal
is filed, but no stay pending appeal has been issued.
3. The Sale Order referenced above shall have authorized the transfer
of title to the Included Assets free and clear of liens,
encumbrances, interests, security interests, taxes and adverse
claims of every nature and character. To the extent a complaint must
be filed in the Bankruptcy Court to accomplish the foregoing, a
judgment shall have entered thereon in the Plaintiffs favor and
proof of service on all Defendants shall have been filed of record
with the Bankruptcy Court. In addition, the Sale Order shall contain
a specific finding that Bruker is purchasing the Assets in good
faith; (b) be substantially similar to the form of order attached
hereto as Exhibit B, and (c) otherwise be satisfactory to Bruker.
4. The DIP Financing shall have been authorized and confirmed by an
interim and final order of a Bankruptcy Court Judge having authority
to do so (the "DIP Financing Order") entered contemporaneously with
the entry of the Sale Order, upon proper notice to all creditors of
Viking's bankruptcy estate and other parties entitled to such notice
by the Federal Rules of Bankruptcy Procedure or by the Local
Bankruptcy Rules of the United States Bankruptcy Court for the
Eastern District of Virginia, or otherwise by operation of law, with
the appeal period from such order having finally passed without a
notice of appeal having been filed, or each appeal having been
dismissed or withdrawn within thirty (30) days after such notice was
filed. At Bruker's option, funding under the DIP Financing may take
place if an appeal is filed, but no stay pending appeal has been
issued.
5. The DIP Financing Order shall have authorized the DIP Financing on
the terms and conditions set forth below. In addition, the DIP
Financing Order shall contain a specific finding that Bruker is
furnishing the DIP Financing in good faith; (b) be substantially
similar to the form of order attached hereto as Exhibits C, and (c)
otherwise be satisfactory to Bruker.
6. A Bankruptcy Court having jurisdiction over Viking's Chapter 11 case
and authority to do so shall have entered the Procedure Order (as
hereinafter defined).
- 5 -
Thomas Kuehn, Ph.D., President
May 28, 1999
7. After the acceptance of this offer, Bruker shall have met with the
Employees and, no later than June 7, 1999, shall have received from
each of the Employees agreements that the Employees will make
themselves available to be employed by, or consultants to, Bruker on
terms acceptable to Bruker.
8. Bruker shall have the right to rescind this Offer if between the
date hereof and the Closing there shall be a material adverse change
in the condition of the Included Assets, irrespective of whether or
not they shall have been insured; provided, however, that Bruker,
with respect to each of the Included Assets not in the same
condition, shall have the right at its election to complete the
purchase contemplated hereby and either (a) become entitled to all
insurance proceeds collected or to be collected by reason of damage
to or loss of the respective Asset or (b) receive a credit against
the Purchase Price for the diminution in the fair market value of
the respective Asset by reason of damage to or loss of such Asset.
So long as the value of the Assets shall not have been diminished by
more than Twenty-Five Thousand Dollars ($25,000.00) in the aggregate
as a result of changes in their condition, Bruker shall not exercise
its right to rescind this Offer and, thereby terminate this
Agreement, but rather will complete the purchase and exercise one of
the options above.
9. There shall be no injunction, restraining order, or order of any
nature issued by a court of competent jurisdiction, restraining or
preventing the carrying out of the transactions contemplated hereby,
and no proceeding challenging this transaction shall have been
instituted or threatened.
10. Execution of security documentation for the DIP Financing referred
to below, in form and substance satisfactory to Bruker.
11. Unless extended by Bruker, as provided below, closing not later than
June 23, 1999 (the "Closing Date").
12. By June 7, 1999, Bruker shall have received (a) the certified
year-end financials of Viking for fiscal year 1998, and (b) the
financials of Viking for January, February and March, 1999
(collectively, the "Financials"); and further said Financials shall
not vary from the representations made to Bruker regarding the
condition of Viking.
13. Bruker being satisfied (in its absolute discretion) with the results
of a due diligence investigation to be completed by Bruker and/or
its representative by 6:00 p.m. (Boston time) June 22, 1999 (the
"Diligence Deadline") including but not limited to satisfaction that
Bruker will have available to it all resources necessary for the
continued operation of Viking's business on acceptable terms. If
Bruker is not satisfied with its due diligence, it shall so notify
Viking in writing by the Diligence Deadline and upon such notice
this offer and the Sale Order shall be of no further force or
effect, and neither Viking nor Bruker shall have any liability or
obligation to the other arising from or related to this offer and
the Sale
- 6 -
Thomas Kuehn, Ph.D., President
May 28, 1999
Order and the transaction contemplated hereby, other than in respect
of the DIP Financing. In addition, Bruker shall have the right in
its sole discretion on or before the Diligence Deadline not to
accept any Work In Process order. Bruker shall have no liability for
or any obligation under any Work In Process not accepted.
14. On or before the Closing Date, Viking shall obtain authority from
the Bankruptcy Court or from its landlord that authorizes Bruker to
enter and occupy the premises located at 44901 Falcon Place, Suite
116, Dulles, Virginia (the "Premises") from the Closing Date up to
and including August 31, 1999, to operate Viking's business and/or
to remove the Included Assets on terms where Bruker's only
obligation is to pay on Viking's behalf, in accordance with the
terms of its lease for the Premises, the current rent due under that
lease for the period from the Closing Date through and including
August 31, 1999.
15. Promptly upon Viking's acceptance of this offer, Viking will proceed
to seek authority from the Bankruptcy Court (a) to sell the Included
Assets and obtain the DIP Financing and otherwise to perform in
accordance with this offer and (b) use its best efforts to obtain a
Bankruptcy Court order approving the sales procedures described in
Article IV of this offer (the "Procedure Order").
F. Closing of Acquisition. There shall be a closing of the acquisition within
thirty (30) business days following the entry of the Sale Order of the
Bankruptcy Court as contemplated under the Conditions sections of this offer;
provided that the closing shall occur no later than June 23, 1999 except as
provided below. If the closing shall not have occurred by such date, Bruker
shall have the right, at its sole election and from time to time, to extend such
period for one or more additional periods of not more than 10 days each by
giving written notice thereof to Viking prior to the expiration of the then
current period, except that Bruker may not, without the written consent of
Viking, extend such period for more than 90 days from the date of this letter.
At the closing, Viking shall execute and deliver to Bruker such bills of sale,
assignments and other instruments of transfer and documentation as Bruker may
request, in form and substance acceptance to Bruker.
III. The DIP Financing
As additional consideration for the purchase contemplated hereby, Bruker
would provide to Viking, from and after the entry of the Sale Order through the
date of the acquisition, but in any event, no longer than through June 23, 1999,
financing for its post-petition operations in an amount not to exceed Thirty
Thousand Dollars ($30,000.00), subject to the following terms and conditions:
1. All DIP Financing extended by Bruker to Viking shall bear interest
at a rate per annum of 12% (such interest rate being referred to
herein as the "Interest Rate"); provided, however, that such
interest shall be waived and shall not be payable by Viking except
if the closing of the sale of the Included Assets to Bruker shall
not
- 7 -
Thomas Kuehn, Ph.D., President
May 28, 1999
have occurred by June 23, 1999, the DIP Financing and all
accumulated interest thereon shall be immediately due and payable.
2. No DIP Financing shall be used to pay any pre-petition liabilities,
except as otherwise agreed to in writing by Bruker and approved by
the Bankruptcy Court.
3. Before the DIP Financing is extended, Bruker must be granted by
order of the Bankruptcy Court the following security interests and
protections to secure such DIP Financing (including any interest
payable pursuant to the provisions of this agreement and reasonable
costs of collection, including reasonable attorneys' fees) on such
terms and subject to such documentation as shall be acceptable to
Bruker:
a. The DIP Financing shall be secured by a first priority
security interest and lien in favor of Bruker on all assets of
Viking whether now owned or hereinafter acquired, pursuant to
ss.364(c)(2) of the Bankruptcy Code, which security interest
and lien shall be valid, fully perfected and enforceable by
action of law, provided, however, that this security interest
and lien shall not extend to Avoidance Actions and shall be
subordinate only to Hewlett-Packard Company's security
interest on certain Viking assets and securing a claim of not
more than $24,000.00;
b. The DIP Financing shall be an obligation of Viking with
priority over all administrative expenses of the kind
specified in ss.ss.503(b) or 507(b) of the Bankruptcy Code,
pursuant to ss.364(c)(1) of the Bankruptcy Code; and
c. Bruker shall be deemed to be a good faith lender, pursuant
to ss.364(e) of the Bankruptcy Code.
4. As a condition to such DIP Financing, the Bankruptcy Court must have
entered the DIP Financing Order in the form attached as Exhibit C,
which among other things, prescribes various events of default and
authorizes the borrowing by Viking and granting to Bruker the
security interests and protections described above, and Bruker must
be provided a certified copy of such orders.
5. During the period any DIP Financing is outstanding, and as a
condition to the extension of such DIP Financing by Bruker, Viking
shall provide Bruker with copies of Viking's monthly reports of cash
flow and expenditures filed with the United States Trustee's office,
such copies to be provided to Bruker when and as filed with such
office; and, by the third business day of each week, a report
substantially the same as such reports filed with the United States
Trustee, containing substantially the same information with respect
to the preceding week.
6. The proceeds of any DIP Financing provided by Bruker to Viking shall
be used and applied only in accordance with a weekly budget of cash
receipts and disbursements for the period June 9, 1999 through and
including June 23, 1999,
- 8 -
Thomas Kuehn, Ph.D., President
May 28, 1999
prepared by Viking and submitted to Bruker for approval at least
twenty-four (24) hours earlier than the earliest to occur of (a) the
first date scheduled for a hearing on the DIP Financing and (b) June
8, 1999. Bruker's advances under the DIP Financing shall be made
weekly in accordance with the expected needs under such an approved
budget. It shall be an event of the default and the full amount of
all DIP Financing together with accrued interest at the Interest
Rate shall immediately become due if for any individual week,
without Bruker's written consent, (1) Viking's actual cash receipts
are less than ninety percent (90%) of budgeted cash receipts in any
one week or less than eighty-five percent (85%) of budgeted cash
receipts from the beginning of the budget through any given date; or
(2) Viking's actual disbursements for any budgeted line item in any
one week exceed budgeted amounts for that line item in that week by
more than 10%, or (3) Viking's actual disbursements for all budgeted
line items on a cumulative basis at any given time during the budget
period exceed all budgeted disbursements as of that time by 25%. By
Wednesday of each week, Viking shall provide Bruker with a report
showing any variance between its actual performance and its budget
performance through the prior Friday on a weekly and cumulative
basis.
7. Notwithstanding anything to the contrary contained elsewhere herein,
all outstanding DIP Financing plus interest at the Interest Rate
shall become immediately due and payable upon the sale of all or any
material portion of the Included Assets, individually or
collectively, to one or more persons or entities other than Bruker
or its nominee, or the termination of this offer pursuant to Article
II, ss.ss.8 and 13.
8. Any DIP Financing which does not otherwise become due and payable by
Viking in accordance with the foregoing provisions shall be repaid
by Viking on the sale or other disposition of any assets in which
Bruker is granted a security interest hereunder.
9. In addition to any other rights granted to it hereunder, Bruker
shall have the right to obtain and make copies of all files and
records of Viking related to any assets in which Bruker is granted a
security interest hereunder for the purpose of collecting any monies
owed to Bruker under the DIP Financing; and, if Viking sells or
otherwise disposes of any such assets, it shall make reasonable
arrangements to allow Bruker continued access to such files and
records for such purposes.
10. As a condition to the DIP Financing, the Bankruptcy Court shall have
entered the Sale Order authorizing the sale of the Included Assets
to Bruker.
11. At a closing of the sale of the Included Assets to Bruker in
accordance with the terms of this offer, the DIP Financing (without
interest) shall be credited against the Purchase Price.
IV. Sale of the Assets to a Third Party
- 9 -
Thomas Kuehn, Ph.D., President
May 28, 1999
1. Bruker understands that its offer in this letter will be subject to
higher and better counteroffers before the Bankruptcy Court. Notwithstanding
this, Bruker, by this offer, has evidenced its strong desire to assist Viking in
resolving its immediate financial problems and, in doing so, has incurred, and
may in the future incur, material risks and costs, including but not limited to
the risks and costs of the DIP Financing, due diligence and negotiations with
the Employees which Bruker would not have offered or incurred except as part of
its integrated purchase offer set forth herein. Accordingly, in the event that a
third party submits a higher and better counteroffer, which is accepted by
Viking and approved by the Bankruptcy Court, Viking shall, concurrently with the
closing of such third party acquisition, pay or cause to be paid to Bruker: (i)
the full amount of all DIP Financing outstanding at the date of such third party
closing together with accrued interest at the Interest Rate from the date such
DIP Financing was provided plus (ii) the sum of Fifteen Thousand Dollars
($15,000.00), such amount representing an agreed amount to compensate Bruker for
its risks, costs and expenses associated with this transaction, including but
not limited to attorneys' fees. Furthermore, for a counteroffer to qualify as a
higher and better counteroffer, it must be at least five percent (5%) greater
than the Purchase Price.
2. Bruker also understands that Viking's acceptance of this offer is
subject to the condition that if there are any qualified counter-offers for the
Included Assets that the highest and best final offer for the Included Assets
shall be determined by traditional auction procedures rather than by the use of
sealed bids and hereby consents to such sale procedures.
3. As a condition to this transaction, the Bankruptcy Court must enter the
Procedure Order approving the provisions of this Article IV and the time line
for this transaction as set forth above such that the Sale Order is entered by
June 8, 1999.
- 10 -
Thomas Kuehn, Ph.D., President
May 28, 1999
V. General
1. This agreement shall be governed by the laws of the Commonwealth of
Massachusetts, without giving effect to principles of conflicts of
laws.
2. This agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
3. This agreement may not be amended or modified without the prior
written agreement of the parties. No waiver of any provision
contained herein shall be effective unless in writing and signed by
the party against which such waiver is sought to be enforced, nor
shall a waiver in any instance operate as a general waiver unless
expressly stated in such signed writing.
4. This agreement shall be binding upon the parties hereto and their
respective successors and assigns; provided, however, that Viking
may not assign any of its interests hereunder without the prior
written consent of Bruker.
5. Neither party shall be liable to the other for any consequential
damages arising out of or in connection with this agreement.
6. The provisions of this agreement and any rights, duties and
obligations pursuant hereto shall survive (a) the closing
contemplated hereby, (b) any sale to a third party, and/or (c) the
entry of any order which may be entered (i) confirming any plan of
reorganization, (ii) converting this case from Chapter 11 to Chapter
7, or (iii) dismissing this case; and the terms and provisions of
this agreement as well as the rights, duties and obligations
pursuant hereto shall continue in full force and effect
notwithstanding any such sale or the entry of any such order.
7. All notices, requests, demands or other communications required or
permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand or mailed, first class
certified mail with postage prepaid or by overnight receipted
courier service, or when sent by confirmed telefax, to the intended
recipient at the address for notices specified below or, as to
either party, at such other address as shall be designated by such
party in any notice to the other party:
- 11 -
Thomas Kuehn, Ph.D., President
May 28, 1999
If to Bruker:
Frank H. Laukien, Ph.D., President
Bruker Daltonics, Inc.
44 Manning Road
Billerica, MA 01821
with a copy to:
Andrew M. Troop, Esq.
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, Massachusetts 02110
Fax: (617) 951-1295
If to Viking:
Viking Instruments Corporation
44901 Falcon Place, Suite 116
Dulles, Virginia 20166
Attention: Thomas Kuehn, Ph.D., President
Fax:
with a copy to:
John E. Carter, P.C.
10560 Main Street, Suite 311
P.O. Box 890
Fairfax, VA 22030
Fax:
- 12 -
Thomas Kuehn, Ph.D., President
May 28, 1999
VI. Conclusion
Again, if this offer is acceptable, please so indicate by executing
a copy of this letter and returning it to Bruker no later than 5:00 p.m. (Boston
time) on June 2, 1999. If this offer is not accepted in writing by that time,
the offer shall be of no further force or effect.
Very truly yours,
BRUKER DALTONICS, INC.
By: /s/ Frank H. Laukien
------------------------------
Frank H. Laukien, Ph.D.
Its President, Duly Authorized
Agreed and Accepted:
By: /s/ Thomas J. Kuehn
-------------------------
Thomas Kuehn, Ph.D.
Its President, Duly Authorized
Date: June 2, 1999
--------------
- 13 -
List of Assets for Sale by
Viking Instruments Corporation
1. Transportable Gas Chromatograph Mass Spectrometer Patent
a. International publication #WO 90/15658, "Miniaturized Mass Spectrometer
System" Awarded 12/27/90
b. US Patent #5,313,061, "Miniaturized Mass Spectrometer System" Awarded
5/17/94
c. European Patent #0476062, "Miniaturized Mass Spectrometer System" Dated
6/6/90
d. German Patent #690283041.0, "Miniaturized Mass Spectrometer System" Dated
6/6/90
e. UK Patent #2249662, "Miniaturized Mass Spectrometer System" Dated 6/6/90
f. Canada Patent #2,058,763-6, "Miniaturized Mass Spectrometer System"
Awarded 4/21/98
g. Japan Patent #Hei-2-509224, "Miniaturized Mass Spectrometer System",
(Pending)
2. SpectraTrak(TM) Model 573 Transportable GC/MS Design Package (Incomplete)
a. Mechanical design drawings
b. Electrical and wiring harness design drawings
c. Bill of materials
d. Operating and maintenance manual not available
e. Assembly drawings or schematics not available
f. Requires HP5973 mass selective detector OEM component kit for manufacture
and operation
3. SpectraScan(TM) Software Operating System for SpectraTrak 573 System
(Incomplete)
a. Copyright of user interface and code
b. Master duplication disk
c. Undocumented assembly code
d. Software manual not available
e. Requires OEM version of HP Chemstation 3.x license for operation
f. Requires OEM version of NIST mass spectral library license for operation
g. Requires Windows 95 and other software utility licenses for operation
4. Manufacturing Inventory and Open Stock
a. Miscellaneous SpectraTrak(TM) Model 573 GC subassemblies (2 sets)
b. Miscellaneous SpectraTrak(TM) Model 572 chassis components and GC
subassemblies (2 sets)
c. Miscellaneous mechanical, electronic, and vacuum components and parts
d. Inventory excludes any components, parts, and instruments manufactured by
Hewlett Packard
5. Service Parts Inventory, Documentation, and Service Contracts
a. Miscellaneous new and used parts for SpectraTrak(TM) Models 600, 620, and
672 Transportable GC/MS (1989-1997) with rack-mounted transport case
design
b. Miscellaneous new and used parts for SpectraTrak(TM) Model 572
Transportable GC/MS (1997-1998)
c. Miscellaneous new and used parts for SpectraTrak(TM) Model 772 Process
GC/MS (1995-1998)
d. SpectraScan operating system software master duplication disks for
SpectraTrak models 620, 672, 572, and 772 (requires HP Chemstation 2.x,
Windows 3.1, and other software utility licenses for operation)
e. Operating, maintenance, specifications, and design documents and manuals
for out-of-production and obsolete ST600, 620, 672, 572, 772 and other
prototype products
f. Service inventory excludes components, parts, and instruments manufactured
by Hewlett Packard
g. Current and on-going service contracts and warranty obligations
6. Marketing and Sales Assets
a. Customer list
b. Sales prospect list
c. Product literature and brochure copyrights
d. Unregistered software copyrights
e. Unregistered tradenames: "SpectraTrak", "SpectraScan", "Viking GC/MS",
"Viking Instruments"
Exhibit 2.4
AGREEMENT
This Agreement, dated as of December 6th, 1999, is concluded by and
among Frank H. Laukien, with an address at 12 Smith Hill Road, Lincoln, MA 01773
(the "Seller"), and Bruker Daltonics, Inc., a Massachusetts Corporation with its
principal place of business at 15 Fortune Drive, Manning Park, Billerica, MA
01821 (the "Buyer").
WHEREAS, the Seller owns fifty thousand (50,000) shares (the "Shares")
of the Common Stock, $.01 par value per share, of ProteiGene, Inc., a Delaware
corporation (the "Company"); and
WHEREAS, the Buyer desires to purchase from the Seller the Shares,
NOW THEREFORE, in consideration of mutual covenants, promises and
agreements contained herein, as well as other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged by each of the parties
hereto, and intending to be legally bound hereby, the parties hereto agree as
follows:
1.0 PURCHASE AND SALE OF SHARES
No later than December 6th, 1999 (the "Closing"), the Seller will sell
to the Buyer the Shares for an aggregate purchase price of fifty thousand
dollars ($50,000). At or before the Closing, the Buyer shall make payment of the
aggregate purchase price to the Seller and the Seller shall deliver to each
Buyer a certificate representing the Shares purchased by the Buyer. The parties
shall also exchange such other documents and instruments as may be reasonably
requested by any of them.
2.0 REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Buyers as follows:
2.1 ORGANIZATION AND CORPORATE POWER. The Company and the Buyer are
each duly organized, validly existing and in good standing under the laws of the
jurisdictions of their organization and have all requisite power and authority
to own their properties and to carry on their businesses as presently conducted.
The Company and the Buyer are duly licensed or qualified to do business as a
foreign entity in each jurisdiction wherein the character of their property, or
the nature of the activities presently conducted by them, makes such
qualification necessary.
2.2 AUTHORIZATION. The Seller has all necessary power and has taken, or
will take before the Closing, all necessary action required for the due
authorization, execution, delivery and performance by the Seller of this
Agreement and any other agreements or instruments executed by the Seller in
connection herewith or therewith (collectively the "Related Agreements"), the
consummation of the transactions contemplated herein or therein, and for the due
authorization, issuance and delivery of the Shares. This
Agreement and the Related Agreements will each be a valid and binding obligation
of the Seller enforceable in accordance with its respective terms.
2.3 GOVERNMENT APPROVALS. No consent, approval, license or
authorization of, or designation, declaration or filing with, any court or
governmental authority is or will be required on the part of the Seller in
connection with the execution, delivery and performance by the Seller of this
Agreement and any of the Related Agreements.
2.4 COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS. The Seller is in
compliance with all of the provisions of this Agreement, and in all material
respects with the provisions of each mortgage, indenture, lease, license, other
agreement or instrument, judgment, decree, judicial order, statute, and
regulation by which it is bound or to which any of its properties are subject.
The execution, delivery or performance of this Agreement and the Related
Agreements with or without the giving of notice or passage of time, or both,
will not violate, or result in any breach of, or constitute a default under, or
result in the imposition of any encumbrance upon any asset of the Seller or the
Company pursuant to any provision of the charter or by-laws of the Seller or the
Company, or any statute, rule or regulation, contract, lease, judgment, decree
or other document or instrument by which the Seller or the Company is bound or
to which any of their respective properties are subject.
2.5 DISCLOSURES. Neither this Agreement, the Related Agreements, nor
any other agreement, document or written statement made by the Seller and
furnished by the Seller to the Buyer in connection with the transactions
contemplated hereby, contains any untrue statement of material fact or omits to
state any material fact necessary to make the statements contained herein or
therein not misleading.
2.6 SHARES. The Seller owns the entire right, title and interest in and
to the Shares, free and clear of any liens and encumbrances of any nature
whatsoever. The Shares are validly issued, fully paid and non-assessable.
3.0 REPRESENTATIONS AND WARRANTIES OF THE BUYERS
The Buyer hereby warrants to the Seller the following:
3.1 AUTHORIZATION. The Buyer has all requisite corporate power and
authority and has taken all necessary corporate action required for the due
authorization, execution, delivery and performance of this Agreement and the
Related Agreements and the consummation of the transactions contemplated herein
or therein. This Agreement and the Related Agreements to which the Buyer is a
party constitute legal, valid and binding obligations of such Buyer, enforceable
against such Buyer in accordance with their respective terms.
3.2 GOVERNMENT APPROVALS. No consent, approval, license or
authorization of, or designation, declaration or filing with, any court or
governmental authority is or
will be required on the part of the Buyer in connection with the execution,
delivery and performance by the Buyer of this Agreement and the Related
Agreements.
3.3 INVESTMENT REPRESENTATIONS. The Buyer is acquiring the Shares
solely for its own account as an investment and not with a view to any
distribution or resale thereof in violation of the Securities Act of 1933, as
amended (the "Act"). The Buyer has been advised that the Shares have not been
registered under the Act or under the provisions of any state securities or
"blue sky" law. The Buyer, by accepting the Shares, agrees and acknowledges that
it will not transfer such Shares unless such transfer is made (i) pursuant to an
effective registration statement under the Act and in compliance with all
applicable state securities or "blue sky" laws, or (ii) pursuant to an available
exemption from registration under, or otherwise in compliance with the Act and
all applicable state securities or "blue sky" laws. The Buyer has been further
advised and understands that no public market now exists for any of the
securities issued by the Company and that a public market may never exist for
the Shares. The Buyer is an accredited investor for purpose of the Act.
4.0 CONDITIONS OF BUYER'S OBLIGATION
4.1 EFFECT OF CONDITIONS. The obligation of the Buyer to purchase and
pay for the Shares at or before the Closing shall be subject to the satisfaction
of each of the conditions stated in the following Sections of this Article.
4.2 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Seller contained in this Agreement shall be true and correct on the date
of the Closing, with the same effect as though made on and as of that date.
4.3 PERFORMANCE. The Seller shall have performed and complied with all
of the agreements, covenants and conditions contained in this Agreement required
to be performed at or prior to the Closing.
4.4 NO MATERIAL ADVERSE CHANGE. The business, properties, assets and
condition (financial or otherwise) of the Seller and the Company shall not have
been materially adversely affected since the date of this Agreement whether by
fire, casualty, act of God or otherwise, and there shall have been no other
changes in the business, properties, assets, condition (financial or otherwise),
management or prospects of the Seller and the Company that would have a material
adverse effect on their respective businesses or assets.
5.0 CONDITIONS OF SELLER'S OBLIGATION
5.1 EFFECT OF CONDITIONS. The obligation of the Seller to sell the
Shares at the Closing shall be subject at its election to the satisfaction of
each of the conditions stated in the following Section of this Article.
5.2 REPRESENTATIONS AND WARRANTIES; PERFORMANCE. The representations
and warranties of the Buyer contained in this Agreement shall be true and
correct on the date of such Closing with the same effect as though made on and
as of that date.
6.0 TERMINATION
This Agreement may be terminated, and the transactions contemplated
hereby abandoned, at any time prior to the Closing by the written agreement of
the Seller and the Buyer.
7.0 MISCELLANEOUS
7.1 SURVIVAL OF REPRESENTATIONS. The representations, warranties,
covenants and agreements made herein or in any certificates or documents
executed in connection herewith shall survive for three (3) months after
Closing.
7.2 AMENDMENTS AND WAIVERS. Amendments or additions to this Agreement
may be made and compliance with any term, covenant, agreement, condition or
provision set forth herein may be omitted or waived (either generally or in a
particular instance and either retroactively or prospectively) upon the written
consent of the Seller and the Buyer.
7.3 NOTICES. All notices, requests, consents, reports and demands shall
be in writing and shall be hand delivered, sent by facsimile or other electronic
medium, or mailed, postage prepaid, to the Seller or the Buyer at the address
set forth below or to such other address as may be furnished in writing to the
other parties hereto. All such notices and communications shall be deemed to
have been duly given three (3) business days after being deposited in the mail,
postage prepaid, if mailed, one (1) business day after being sent by overnight
courier, delivery charges prepaid; when receipt acknowledged, if telecopied or
sent by electronic medium; and upon delivery, if delivered by hand.
The Seller: Frank H. Laukien, Ph.D.
12 Smith Hill Road
Lincoln, MA 01773
Fax: 781-259-1235
The Buyers: Bruker Daltonics, Inc.
15 Fortune Drive
Billerica, MA 01821
Fax: 978-667-0985
Attn: President or Treasurer
7.4 EXPENSES. Each party hereto will pay its own expenses in connection
with the transactions contemplated hereby.
7.5 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original but all of which shall
constitute but one and the same instrument. One or more counterparts of this
Agreement or any exhibit hereto may be delivered via telecopier, with the
intention that they shall have the same effect as an original counterpart
hereof.
7.6 EFFECT OF HEADINGS. The article and section headings herein are for
convenience only and shall not affect the construction hereof.
7.7 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the internal laws of the Commonwealth of
Massachusetts without giving effect to the conflicts of laws principles thereof.
IN WITNESS WHEREOF, the parties have executed hereto this Agreement as
of the date first written above.
SELLER:
FRANK H. LAUKIEN
By: /s/ Frank H. Laukien
---------------------------
BUYER:
BRUKER DALTONICS, INC.
By: /s/ David E. Plunkett
---------------------------
David E. Plunkett
Title: TREASURER
------------------------
Exhibit 2.5
AGREEMENT
This Agreement, dated as of March 1, 2000 by and between Sidney R.
Kaufman of Natick, Massachusetts (the "Seller") and Bruker Daltonics Inc., a
Delaware corporation with its principal place of business in Billerica,
Massachusetts (the "Buyer").
WHEREAS, the Seller owns twenty-six thousand (26,000) shares (the
"Shares") of the Common Stock, $.01 par value per share, of the Buyer; and
WHEREAS, the Buyer desires to purchase from the Seller the Shares;
NOW, THEREFORE, in consideration of mutual covenants, promises and
agreements contained herein, as well as other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged by each of the parties
hereto, and intending to be legally bound hereby, the parties hereto agree as
follows:
1.0 PURCHASE AND SALE OF SHARES
No later than March 1, 2000 (the "Closing"), the Seller will sell to
the Buyer the Shares for an aggregate purchase price of Twenty-Six Thousand
Dollars ($26,000). At or before the Closing, the Buyer shall make payment of the
aggregate purchase price to the Seller and the Seller shall deliver to Buyer a
certificate representing the Shares purchased by the Buyer. The parties shall
also exchange such other documents and instruments as may be reasonably
requested by any of them.
2.0 REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Buyer as follows:
2.1 GOVERNMENT APPROVALS. No consent, approval, license or
authorization of, or designation, declaration or filing with any court or
governmental authority is or will be required on the part of the Seller in
connection with the execution, delivery and performance by the Seller of this
Agreement.
2.2 COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS. The Seller is in
compliance with all of the provisions of this Agreement, and in all material
respects with the provisions of each mortgage, indenture, lease, license, other
agreement or instrument, judgment, decree, judicial order, statute, and
regulation by which he is bound or to which any of his properties are subject.
The execution, delivery or performance of this Agreement with or without the
giving of notice or passage of time, or both, will not violate, or result in any
breach of or constitute a default under, or result in the imposition of any
encumbrance upon any asset of the Seller pursuant to any statute, rule or
regulation, contract, lease, judgment, decree or other document or instrument by
which the Seller is bound or to which any of his properties are subject.
2.3 DISCLOSURES. Neither this Agreement nor any other agreement,
document or written statement made by the Seller is furnished by the Seller to
the Buyer in connection with the transactions contemplated hereby, contains any
untrue statement of material fact
or omits to state any material fact necessary to make the statements contained
herein or therein not misleading.
2.4 SHARES. The Seller owns the entire right, title and interest in and
to the Shares, free and clear of any liens and encumbrances of any nature
whatsoever. The Shares are validly issued, fully paid and non-assessable.
3.0 REPRESENTATIONS AND WARRANTIES OF THE BUYERS
The Buyer hereby warrants to the Seller the following:
3.1 AUTHORIZATION. The Buyer has all requisite corporate power and
authority and has taken all necessary corporate action required for the due
authorization, execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein. This Agreement constitutes
the legal, valid and binding obligations of the Buyer enforceable against Buyer
in accordance with its terms.
3.2 GOVERNMENTAL APPROVALS. No consent, approval, license or
authorization of, or designation, declaration or filing with, any court or
governmental authority is or will be required on the part of the Buyer in
connection with the execution, delivery and performance by the Buyer of this
Agreement.
4.0 MISCELLANEOUS
4.1 SURVIVAL OF REPRESENTATIONS. The representations, warranties,
covenants and agreements made herein or in any certificates or documents
executed in connection herewith shall survive for three (3) months after
Closing.
4.2 AMENDMENTS AND WAIVERS. Amendments or additions to this Agreement
may be made and compliance with any term, covenant, agreement, condition or
provision set forth herein may be omitted or waived (either generally or in a
particular instance and either retroactively or prospectively) upon the written
consent of the Seller and the Buyer.
4.3 EXPENSES. Each party hereto will pay its own expenses in connection
with the transactions contemplated hereby.
4.4 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original but all of which shall
constitute but one and the same instrument. One or more counterparts of this
Agreement or any exhibit hereto may be delivered via telecopier, with the
intention that they shall have the same effect as an original counterpart
hereof.
4.5. EFFECT OF HEADINGS. The article and section headings herein are
for convenience only and shall not affect the construction hereof.
4.6 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the internal laws of the Commonwealth of
Massachusetts without giving effect to the conflicts of laws principles thereof.
-2-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BRUKER DALTONICS INC.
By: /s/ DAVID E. PLUNKETT /s/ SIDNEY R. KAUFMAN
---------------------------- --------------------------------
David E. Plunkett Sidney R. Kaufman
Treasurer
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Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
BRUKER DALTONICS INC.
FIRST: The name of this corporation shall be:
Bruker Daltonics Inc.
SECOND: Its registered office in the State of Delaware is to be located
at 1209 Orange Street, in the City of Wilmington, County of New Castle, 19801,
and its registered agent at such address is: THE CORPORATION TRUST COMPANY.
THIRD: The purpose or purposes of the corporation shall be:
To carry on any and all business and to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 105,000,000 shares, which shares shall be divided
into two classes consisting of: (i) 100,000,000 shares of Common Stock (with
$.01 par value per share) ("Common Stock") and (ii) 5,000,000 shares of
Preferred Stock (with $.01 par value per share) ("Blank Check Preferred Stock").
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions of the Common Stock and the
Preferred Stock shall be as follows:
A. COMMON STOCK
1. VOTING RIGHTS. Except as otherwise required by law or this
Certificate of Incorporation, each holder of Common Stock shall have one vote in
respect of each share of Common Stock held by him of record on the books of the
Corporation for the election of directors and on all matters submitted to a vote
of stockholders of the Corporation.
2. DIVIDENDS. The holders of shares of Common Stock shall be entitled
to receive, when and if declared by the Board of Directors, out of the assets of
the Corporation which are by law available therefor, dividends payable either in
cash, in property or in shares of capital stock, subject, however, to the
limitations contained in Part B below.
3. DISSOLUTION, LIQUIDATION OR WINDING UP. After distribution in full
of the preferential amount, if any, to be distributed to the holders of series
of the Blank Check Preferred Stock (in accordance with the relative preferences
among such series) in the event of involuntary liquidation, distribution,
dissolution or winding-up, of the Corporation, the holders of the Common Stock
shall be entitled to receive all of the remaining assets of the Corporation,
tangible and intangible, or whatever kind available for distribution to
stockholders, ratably in proportion to the number of shares of Common Stock held
by them respectively.
B. BLANK CHECK PREFERRED STOCK
1. ISSUANCE. Shares of Blank Check Preferred Stock may be issued from
time to time in one or more series as designated by the Board of Directors, each
of said series to be distinctly designated. Shares of Blank Check Preferred
Stock may be issued when deemed by the Board of Directors to be necessary to
protect the Corporation from an actual, threatened or potential hostile or
undesired takeover or takeover attempt. All shares of any one series of the
Blank Check Preferred Stock shall be alike in every particular, except that
there may be different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers, if any, and the designations,
relative preferences, participating, optional or other special rights or
privileges of each such series, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other series
at any time outstanding.
2. AUTHORITY OF THE BOARD OF DIRECTORS. The Board of Directors is
authorized, subject to limitations prescribed by law and the provisions of this
Article FOURTH, to provide for the issuance of the shares of the Blank Check
Preferred Stock in series, and by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time the
number of shares to be included in each such series, and to fix in the
resolution or resolutions providing for the issue of such stock adopted by the
Board of Directors of the Corporation the voting powers, if any, and the
designations, relative preferences, participating, optional or other special
rights or privileges, and the qualifications, limitations or restrictions of
such series, including, but without limiting the generality of the foregoing,
the following:
(a) The distinctive designation of, and the number of shares of the
Blank Check Preferred Stock which shall constitute such series. The
designation of a series of preferred stock need not include the
words "preferred" or "preference" and may be designated "special" or
other distinctive term. Unless otherwise provided in the resolution
issuing such series, the number of shares of any series of the Blank
Check Preferred Stock may be increased or decreased (but not below
the number of shares thereof then outstanding) by the Board of
Directors in the manner prescribed by law;
(b) The rate and times at which, and the terms and conditions upon
which, dividends, if any, on the Blank Check Preferred Stock of such
series shall be paid, the extent of the preference or relation, if
any, of such dividends to the dividends payable on any other class
or classes, or series of the same or other classes of stock and
whether such dividends shall be cumulative or non-cumulative and, if
cumulative, the date from which such dividends shall be cumulative;
(c) Whether the series shall be convertible into, or exchangeable
for, at the option of the holders of the Blank Check Preferred Stock
of such series or the Corporation or upon the happening of a
specified event, shares of any other class or classes or any other
series of the same or any other class or classes of stock of the
Corporation, and the terms and conditions of such conversion or
exchange, including provisions for the adjustment of any such
conversion rate in such events as the Board of Directors shall
determine;
-2-
(d) Whether or not the Blank Check Preferred Stock of such series
shall be subject to redemption at the option of the Corporation or
the holders of such series or upon the happening of a specified
event, and the redemption price or prices and the time or times at
which, and the terms and conditions upon which, the Blank Check
Preferred Stock of such series may be redeemed;
(e) The rights, if any, of the holders of the Blank Check Preferred
Stock of such series upon the voluntary or involuntary liquidation,
merger, consolidation, distribution or sale of assets, dissolution
or winding-up, of the Corporation;
(f) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Blank Check Preferred Stock of such
series; and
(g) Subject to subparagraph 5 of Paragraph C hereof, whether such
series of the Blank Check Preferred Stock shall have full, limited
or no voting powers including, without limiting the generality of
the foregoing, whether such series shall have the right, voting as a
series by itself or together with other series of the Blank Check
Preferred Stock or all series of the Blank Check Preferred Stock as
a class, to elect one or more directors of the Corporation if there
shall have been a default in the payment of dividends on any one or
more series of the Blank Check Preferred Stock or under such other
circumstances and on such conditions as the Board of Directors may
determine.
C. OTHER PROVISIONS.
1. No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series of
stock or of other securities of the Corporation shall have any preemptive right
to purchase or subscribe for any unissued stock of any class or series or any
additional shares of any class or series to be issued by reason of any increase
of the authorized capital stock of the Corporation of any class or series, or
bonds, certificates of indebtedness, debentures or other securities convertible
into or exchangeable for stock of the Corporation of any class or series, or
carrying any right to purchase stock of any class or series, but any such
unissued stock, additional authorized issue of shares of any class or series of
stock or securities convertible into or exchangeable for stock, or carrying any
right to purchase stock, may be issued and disposed of pursuant to resolution of
the Board of Directors to such persons, firms, corporations or associations
(including such holders or others) and upon such terms as may be deemed
advisable by the Board of Directors in the exercise of its sole discretion.
2. The relative powers, preferences and rights of each series of the
Blank Check Preferred Stock in relation to the powers, preferences and rights of
each other series of the Blank Check Preferred Stock shall, in each case, be as
fixed from time to time by the Board of Directors in the resolution or
resolutions adopted pursuant to authority granted in Paragraph B hereof. The
consent, by class or series vote or otherwise, of the holders of such of the
series of the Blank Check Preferred Stock as are from time to time outstanding
shall not be required for the issuance by the Board of Directors of any other
series of the Blank Check Preferred Stock whether or not the powers, preferences
and rights of such other series shall be fixed by the Board
-3-
of Directors as senior to, or on a parity with, the powers, preferences and
rights of such outstanding series, or any of them; provided, however, that the
Board of Directors may provide in the resolution or resolutions as to any series
of the Blank Check Preferred Stock adopted pursuant to Paragraph B hereof, the
conditions, if any, under which the consent of the holders of a majority (or
such greater proportion as shall be fixed therein) of the outstanding shares of
such series shall be required for the issuance of any or all other series of the
Blank Check Preferred Stock.
3. Subject to the provisions of subparagraph 2 of this Paragraph C,
shares of any series of the Blank Check Preferred Stock may be issued from time
to time as the Board of Directors of the Corporation shall determine and on such
terms and for such consideration as shall be fixed by the Board of Directors.
4. Shares of authorized Common Stock may be issued from time to time as
the Board of Directors of the Corporation shall determine and on such terms and
for such consideration as shall be fixed by the Board of Directors.
5. The number of authorized shares of Common Stock and of the Blank
Check Preferred Stock, without a class or series vote, may be increased or
decreased from time to time (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote thereon.
FIFTH: The name and mailing address of the sole incorporator is as
follows:
NAME MAILING ADDRESS
---- ---------------
Nancy A. Valente c/o Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, Massachusetts 02110
The names and mailing addresses of the persons who are to serve as the
Directors until the first annual meeting of the stockholders or until successors
are elected and qualified are as follows:
NAME MAILING ADDRESS
---- ---------------
Frank H. Laukien 44 Manning Road
Billerica, MA 01821
Richard M. Stein 74 Kirkstall Road
Newtonville, MA 02460
Timothy J. Hansberry 97 Adams Street
Lexington, MA 02420
-4-
Bernhard Wangler Kriegsstr. 133
76135 Karlsruhe, Germany
Dr. Dieter Koch Fahrenheitstrasse 4, D-28359
Bremen, Germany
Collin D'Silva 2032 Concourse Drive
San Jose, California 95131
William Linton 2800 Woods Hollow Road
Madison, Wisconsin 53711
The number of Directors shall be fixed from time to time exclusively by
the Board of Directors pursuant to a resolution adopted by the Board of
Directors. The Directors of the Corporation shall be divided into three classes:
Class I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the whole number of the Board of Directors. If the
Board of Directors is not evenly divisible by three, the Board of Directors
shall determine the number of Directors to be elected to each class. The initial
members of Class I shall hold office for a term to expire at the Annual Meeting
of the Stockholders to be held in 2001; the initial members of Class II shall
hold office for a term to expire at the Annual Meeting of the Stockholders to be
held in 2002, the initial members of Class III shall hold office for a term to
expire at the Annual Meeting of the Stockholders to be held in 2003, and in the
case of each class, until their respective successors are duly elected and
qualified. At each annual election held commencing with the annual election in
2001, the Directors elected to succeed those whose terms expire shall be
identified as being of the same class as the Directors they succeed and shall be
elected to hold office for a term to expire at the third Annual Meeting of the
Stockholders after their election, and until their respective successors are
duly elected and qualified. If the number of Directors changes, any increase or
decrease in Directors shall be apportioned among the classes so as to maintain
all classes as equal in number as possible, and any additional Director elected
to any class shall hold office for a term which shall coincide with the terms of
the other Directors in such class and until his successor is duly elected and
qualified.
SIXTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware:
A. The Board of Directors of the corporation is expressly
authorized to adopt, amend, or repeal the by-laws of the
Corporation.
B. Elections of Directors need not be by written ballot unless the
by-laws of the corporation shall so provide.
C. The books of the Corporation may be kept at such place within
or without the State of Delaware as the by-laws of the
Corporation may provide or as may be designated from time to
time by the Board of Directors of the Corporation.
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SEVENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
EIGHTH: The Corporation hereby elects in this original certificate of
incorporation not to be governed by Section 203 of the General Corporation Law
of Delaware.
NINTH: Except as stated in Article Tenth of this certificate of
incorporation, the corporation reserves the right to amend or repeal any
provision contained in this certificate of incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon a stockholder
herein are granted subject to this reservation.
TENTH: No director shall be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director
notwithstanding any provision of law imposing such liability; provided, however,
that, to the extent required by applicable law, this provision shall not
eliminate the liability of a director (i) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the General Corporation Law of Delaware, or
(iv) for any transaction from which the director derived an improper personal
benefit. No amendment to or repeal of this provision shall apply to or have any
effect on the liability or alleged liability of any director for or with respect
to any acts or omissions of such director occurring prior to such amendment or
repeal.
ELEVENTH: The Corporation is to have perpetual existence.
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IN WITNESS WHEREOF, the undersigned, being the incorporator
hereinbefore named, has executed, signed, and acknowledged this certificate of
incorporation this 4th day of February, 2000.
/s/ Nancy A. Valente
----------------------------
Nancy A. Valente
Sole Incorporator
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Exhibit 3.2
BY-LAWS
OF
BRUKER DALTONICS INC.
(A Delaware Corporation)
BY-LAWS
OF
BRUKER DALTONICS INC.
(A Delaware Corporation)
ARTICLE 1........................................................................4
Section 1.1 Contents.........................................................4
Section 1.2 Certificate in Effect............................................4
ARTICLE 2........................................................................4
Section 2.1 Place............................................................4
Section 2.2 Annual Meeting...................................................5
Section 2.3 Notice of Stockholder Business...................................5
Section 2.4 Special Meetings.................................................6
Section 2.5 Notice of Meetings...............................................7
Section 2.6 Affidavit of Notice..............................................7
Section 2.7 Quorum...........................................................7
Section 2.8 Voting Requirements..............................................8
Section 2.9 Proxies and Voting...............................................8
Section 2.10 Action Without Meeting..........................................8
Section 2.11 Stockholder List................................................9
Section 2.12 Record Date....................................................10
ARTICLE 3.......................................................................11
Section 3.1 Number; Election and Term of Office.............................11
Section 3.2 Duties..........................................................11
Section 3.3 Compensation....................................................12
Section 3.4 Reliance on Books...............................................12
ARTICLE 4.......................................................................12
Section 4.1 Place...........................................................12
Section 4.2 Annual Meeting..................................................12
Section 4.3 Regular Meetings................................................13
Section 4.4 Special Meetings................................................13
Section 4.5 Quorum..........................................................13
Section 4.6 Action Without Meeting..........................................13
Section 4.7 Telephone Meetings..............................................14
ARTICLE 5.......................................................................15
Section 5.1 Designation.....................................................15
Section 5.2 Records of Meetings.............................................16
ARTICLE 6.......................................................................16
Section 6.1 Method of Giving Notice.........................................16
Section 6.2 Waiver..........................................................16
ARTICLE 7.......................................................................17
Section 7.1 In General......................................................17
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Section 7.2 Election of President, Secretary and Treasurer..................17
Section 7.3 Election of Other Officers......................................17
Section 7.4 Salaries........................................................17
Section 7.5 Term of Office..................................................17
Section 7.6 Duties of President and Chairman of the Board...................18
Section 7.7 Duties of Vice President........................................18
Section 7.8 Duties of Secretary.............................................19
Section 7.9 Duties of Assistant Secretary...................................19
Section 7.10 Duties of Treasurer............................................20
Section 7.11 Duties of Assistant Treasurer..................................20
ARTICLE 8.......................................................................20
Section 8.1 Directors.......................................................21
Section 8.2 Officers........................................................22
ARTICLE 9.......................................................................22
Section 9.1 Issuance of Stock...............................................22
Section 9.2 Right to Certificate; Form......................................22
Section 9.3 Facsimile Signature.............................................23
Section 9.4 Lost Certificates...............................................23
Section 9.5 Transfer of Stock...............................................24
Section 9.6 Registered Stockholders.........................................24
ARTICLE 10......................................................................24
Section 10.1 Third Party Actions............................................24
Section 10.2 Derivative Actions.............................................25
Section 10.3 Expenses.......................................................26
Section 10.4 Authorization..................................................26
Section 10.5 Advance Payment of Expenses....................................26
Section 10.6 Non-Exclusiveness..............................................27
Section 10.7 Insurance......................................................27
Section 10.8 Constituent Corporations.......................................27
Section 10.9 Additional Indemnification.....................................28
ARTICLE 11......................................................................28
ARTICLE 12......................................................................28
ARTICLE 13......................................................................29
ARTICLE 14......................................................................29
ARTICLE 15......................................................................29
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BRUKER DALTONICS INC.
BY-LAWS
ARTICLE 1
CERTIFICATE OF INCORPORATION
SECTION 1.1 CONTENTS. The name, location of principal office and purposes
of the Corporation shall be as set forth in its Certificate of Incorporation.
These By-laws, the powers of the Corporation and of its Directors and
stockholders, and all matters concerning the conduct and regulation of the
business of the Corporation shall be subject to such provisions in regard
thereto, if any, as are set forth in said Certificate of Incorporation. The
Certificate of Incorporation is hereby made a part of these By-laws.
SECTION 1.2 CERTIFICATE IN EFFECT. All references in these By-laws to the
Certificate of Incorporation shall be construed to mean the Certificate of
Incorporation of the Corporation as from time to time amended, including (unless
the context shall otherwise require) all certificates and any agreement of
consolidation or merger filed pursuant to the Delaware General Corporation Law,
as amended.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
SECTION 2.1 PLACE. All meetings of the stockholders may be held at such
place either within or without the State of Delaware as shall be designated from
time to time by the Board of Directors, the Chairman of the Board of Directors
or the President and stated in the notice of the meeting or in any duly executed
waiver of notice thereof.
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SECTION 2.2 ANNUAL MEETING. Annual meetings of stockholders, shall be
held on the 2nd Tuesday of April in each year, if not a legal holiday, and if a
legal holiday, then on the next secular day following, at 10:00 A.M., or at such
other date and time as shall be designated from time to time by the Board of
Directors, the Chairman of the Board of Directors or the President and stated in
the notice of the meeting. If such annual meeting has not been held on the day
herein provided therefor, a special meeting of the stockholders in lieu of the
annual meeting may be held, and any business transacted or elections held at
such special meeting shall have the same effect as if transacted or held at the
annual meeting, and in such case all references in these By-laws, except in this
Section 2.2, to the annual meeting of the stockholders shall be deemed to refer
to such special meeting.
SECTION 2.3 NOTICE OF STOCKHOLDER BUSINESS. To be properly brought before
the meeting, business must be of a nature that is appropriate for consideration
at an Annual Meeting and must be (i) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, or
(ii) otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (iii) otherwise properly brought before the meeting by a
stockholder. In addition to any other applicable requirements, for business to
be properly brought before the Annual Meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, each such notice must be given either by personal
delivery or by United States mail, postage prepaid, to the Secretary of the
Corporation not later than (1) with respect to a matter to be brought before an
Annual Meeting of Stockholders or a Special Meeting in Lieu of an Annual
Meeting, not later than the close of business on the 90th day nor earlier than
the close of business on the 120th day
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prior to the date set forth in the By-laws for the Annual Meeting and (2) with
respect to a matter to be brought before a Special Meeting of the Stockholders
not in lieu of an Annual Meeting, the close of business on the tenth day
following the date on which notice of such meeting is first given to
stockholders. The notice shall set forth (i) information concerning the
stockholder, including his or her name and address, (ii) a representation that
the stockholder is entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to present the matter specified in the notice,
and (iii) such other information as would be required to be included in a proxy
statement soliciting proxies for the presentation of such matter to the meeting.
Notwithstanding anything in these By-laws to the contrary, no business
shall be transacted at the Annual Meeting except in accordance with the
procedures set forth in this section; provided, however, that nothing in this
section shall be deemed to preclude discussion by any stockholder of any
business properly brought before the Annual Meeting in accordance with these
By-laws.
SECTION 2.4 SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the President, the Chairman of
the Board, or by the Board of Directors and shall be called by the President or
Secretary at the request in writing of a majority of the Directors then in
office. Such request shall state the purpose or purposes of the proposed
meeting, which need not be the exclusive purposes for which the meeting is
called. The stockholder shall not have the right, in their capacity as
stockholders, to call a special meeting of the stockholders.
SECTION 2.5 NOTICE OF MEETINGS. A written notice of all meetings of
stockholders stating the place, date and hour of the meeting and, in the case of
a special meeting, the purpose or
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purposes for which the special meeting is called, shall be given to each
stockholder entitled to vote at such meeting. Except as otherwise provided by
law, such notice shall be given not less than ten nor more than sixty days
before the date of the meeting. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
SECTION 2.6 AFFIDAVIT OF NOTICE. An affidavit of the Secretary or an
Assistant Secretary or the transfer agent of the Corporation that notice of a
stockholders meeting has been given shall, in the absence of fraud, be prima
facie evidence of the facts stated therein.
SECTION 2.7 QUORUM. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented by proxy at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, except as hereinafter provided, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented any business may be transacted which might have
been transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
SECTION 2.8 VOTING REQUIREMENTS. When a quorum is present at any meeting,
the vote of the holders of a majority of the stock having voting power present
in person or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon
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which by express provision of any applicable statute or of the Certificate of
Incorporation, a different vote is required in which case such express provision
shall govern and control the decision of such question.
SECTION 2.9 PROXIES AND VOTING. Unless otherwise provided in the
Certificate of Incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date, unless the proxy provides for a
longer period. Persons holding stock in a fiduciary capacity shall be entitled
to vote the shares so held, and persons whose stock is pledged shall be entitled
to vote the pledged shares, unless in the transfer by the pledgor on the books
of the Corporation he shall have expressly empowered the Pledgee to vote said
shares, in which case only the pledgee, or his proxy, may represent and vote
such shares. Shares of the capital stock of the Corporation owned by the
Corporation shall not be voted, directly or indirectly.
SECTION 2.10 ACTION WITHOUT MEETING. Unless otherwise provided in the
Certificate of Incorporation, until the closing of an underwritten public
offering of the Corporation's Common Stock (a "Public Offering") any action
referred or permitted to be taken at any annual or special meeting of
stockholders may be taken without a meeting, without prior notice and without
vote, if a consent in writing, setting forth the action so taken, is signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote on such action were present and voted. Prompt
notice of the taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
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Effective upon the closing of a Public Offering, any action required or
permitted to be taken at any annual or special meeting of stockholders may be
taken without a meeting, without prior notice and without vote, only if all
stockholders entitled to vote on the matter consent to the action in writing and
written consents are filed with the records of the meetings of the stockholders.
Such consents shall be treated for all purposes as a vote at a meeting.
SECTION 2.11 STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present. The original or duplicate stock ledger shall be the only evidence as to
who are the stockholders entitled to examine such list, the stock ledger or the
books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
SECTION 2.12 RECORD DATE. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights
-9-
in respect of any change, conversion or exchange of stock or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty nor less than ten days before the date
of such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
If no record date is fixed by the Board of Directors:
(a) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held.
(b) The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors is necessary, shall be the day on which the
first written consent is expressed.
(c) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
ARTICLE 3
DIRECTORS
SECTION 3.1 NUMBER; ELECTION AND TERM OF OFFICE. There shall be a Board
of Directors of the Corporation consisting of not less than one member, the
number of members to be determined by resolution of the Board of Directors,
unless the Certificate of Incorporation fixes
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the number of Directors, in which case a change in the number of Directors shall
be made only by amendment of the Certificate. The Board of Directors shall be
divided into such classes for such terms as are provided for in the Certificate
of Incorporation. Subject to any limitation which may be contained within the
Certificate of Incorporation, the number of the Board of Directors may be
increased at any time by vote of a majority of the Directors then in office. The
Directors shall be elected at the annual meeting of the stockholders at which
the term of office of the class to which they have been elected expires, except
as provided in paragraph (c) of Section 8.1, and each Director elected shall
hold office until his successor is elected and qualified or until his earlier
resignation or removal. Directors need not be stockholders.
SECTION 3.2 DUTIES. The business of the Corporation shall be managed by
or under the direction of its Board of Directors which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these By-laws directed or
required to be exercised or done by the stockholders.
SECTION 3.3 COMPENSATION. Unless otherwise restricted by the Certificate
of Incorporation or these By-laws, the Board of Directors shall have the
authority to fix the compensation of Directors. The Directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary as Directors. No such payment shall preclude any Director
from serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
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SECTION 3.4 RELIANCE ON BOOKS. A member of the Board of Directors or a
member of any committee designated by the Board of Directors shall, in the
performance of his duties, be fully protected in relying in good faith upon the
books of account or reports made to the Corporation by any of its officers, or
by an independent certified public accountant, or by an appraiser selected with
reasonable care by the Board of Directors or by any committee, or in relying in
good faith upon other records of the Corporation.
ARTICLE 4
MEETINGS OF THE BOARD OF DIRECTORS
SECTION 4.1 PLACE. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
SECTION 4.2 ANNUAL MEETING. The first meeting of each newly elected
Board of Directors shall be held immediately following the annual meeting of
stockholders or any special meeting held in lieu thereof, and no notice of
such meeting shall be necessary to the newly elected Directors in order
legally to constitute the meeting.
SECTION 4.3 REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without notice at such time and at such place as shall from time to
time be determined by the Board.
SECTION 4.4 SPECIAL MEETINGS. Special meetings of the Board may be called
by the President on two days' notice to each Director either personally or by
mail or by email; special meetings shall be called by the President or Secretary
in like manner and on like notice on the written request of two Directors unless
the Board consists of only one Director, in which case
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special meetings shall be called by the President or Secretary in like manner
and on like notice on the written request of the sole Director.
SECTION 4.5 QUORUM. At all meetings of the Board a majority of the
Directors then in office shall constitute a quorum for the transaction of
business and the act of a majority of the Directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute or by the Certificate of
Incorporation. If a quorum shall not be Present at any meeting of the Board of
Directors, the Directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
SECTION 4.6 ACTION WITHOUT MEETING. Unless otherwise restricted by the
Certificate of Incorporation or these By-laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
SECTION 4.7 TELEPHONE MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation or these By-laws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
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ARTICLE 5
COMMITTEES OF DIRECTORS
SECTION 5.1 DESIGNATION.
(a) The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, including, if the
Board of Directors deems appropriate, an audit committee and a compensation
committee, each committee to consist of one or more of the Directors of the
Corporation. The Board may designate one or more Directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee.
(b) In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
(c) Any such committee, to the extent provided in the resolution
of the Board of Directors designating the committee, shall have and may exercise
all the powers and authority of the Board of Directors in the management of the
business and affairs of the corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the By-laws of the Corporation; and, unless the resolution or the
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Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors.
SECTION 5.2 RECORDS OF MEETINGS. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
ARTICLE 6
NOTICES
SECTION 6.1 METHOD OF GIVING NOTICE. Whenever, under any provision of the
law or of the Certificate of Incorporation or of these By-laws, notice is
required to be given to any Director or stockholder, such notice shall be given
in writing by the Secretary or the person or persons calling the meeting by
leaving such notice with such Director or stockholder at his residence or usual
place of business or by mailing it addressed to such Director or stockholder, at
his address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail. Notice to Directors may
also be given by email.
SECTION 6.2 WAIVER. Whenever any notice is required to be given under any
provision of law or of the Certificate of Incorporation or of these By-laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends the meeting for
the express purpose of
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objecting at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened.
ARTICLE 7
OFFICERS
SECTION 7.1 IN GENERAL. The officers of the Corporation shall be chosen
by the Board of Directors and shall include a President, a Secretary and a
Treasurer. The Board of Directors may also choose a Chairman of the Board, one
or more Vice Presidents, Assistant Secretaries and Assistant Treasurers. Any
number of offices may be held by the same person, unless the Certificate of
Incorporation or these By-laws otherwise provide.
SECTION 7.2 ELECTION OF PRESIDENT, SECRETARY AND TREASURER. The Board of
Directors at its first meeting after each annual meeting of stockholders shall
choose a President, a Secretary and a Treasurer.
SECTION 7.3 ELECTION OF OTHER OFFICERS. The Board of Directors may
appoint such other officers and agents as it shall deem appropriate who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board.
SECTION 7.4 SALARIES. The salaries of all officers and agents of the
Corporation may be fixed by the Board of Directors.
SECTION 7.5 TERM OF OFFICE. The officers of the Corporation shall hold
office until their successors are chosen and qualify or until their earlier
resignation or removal. Any officer elected or appointed by the Board of
Directors may be removed at any time in the manner specified in Section 8.2.
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SECTION 7.6 DUTIES OF PRESIDENT AND CHAIRMAN OF THE BOARD. The Chairman
of the Board shall be the Chief Executive Officer of the Corporation. The
President shall report to the Chairman of the Board and the Chief Executive
Officer and shall preside at all meetings of the stockholders and, if he is a
Director, at all meetings of the Board of Directors. Subject to the control and
direction of the Directors, the President shall have general and active
management of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The President
shall execute bonds, mortgages and other contracts requiring a seal, under the
seal of the Corporation, except where required or permitted by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation. The Chairman of the Board, if any, shall make his
counsel available to the other officers of the Corporation, shall be authorized
to sign stock certificates on behalf of the Corporation, shall preside at all
meetings of the Directors at which he is present, and, in the absence of the
President at all meetings of the stockholders, and shall have such other duties
and powers as may from time to time be conferred upon him by the Directors.
SECTION 7.7 DUTIES OF VICE PRESIDENT. In the absence of the President or
in the event of his inability or refusal to act, the Vice President (or in the
event there be more than one Vice President, the Vice Presidents in the order
designated by the Directors, or in the absence of any designation, then in the
order of their election) shall perform the duties of the President not otherwise
conferred upon the Chairman of the Board, if any, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the President. The
Vice Presidents shall
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perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
SECTION 7.8 DUTIES OF SECRETARY. The Secretary shall attend all meetings
of the Board of Directors and all meetings of the stockholders and record all
the proceedings of the meetings of the Corporation and of the Board of Directors
in a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the Board of
Directors, except as otherwise provided in these By-laws, and shall perform such
other duties as may be prescribed by the Board of Directors or President, under
whose supervision he shall be. He shall have charge of the stock ledger (which
may, however, be kept by any transfer agent or agents of the Corporation under
his direction) and of the corporate seal of the Corporation.
SECTION 7.9 DUTIES OF ASSISTANT SECRETARY. The Assistant Secretary, or if
there be more than one, the Assistant Secretaries in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election) shall, in the absence of the Secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
SECTION 7.10 DUTIES OF TREASURER. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the
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Board of Directors, taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors, at its regular meetings, or
when the Board of Directors so requires, an account of all of his transactions
as Treasurer and of the financial condition of the Corporation. If required by
the Board of Directors, he shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors
for the faithful performance of the duties of this office and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
SECTION 7.11 DUTIES OF ASSISTANT TREASURER. The Assistant Treasurer, or
if there shall be more than one, the Assistant Treasurers in the order
determined by the Board of Directors (or if there be no such determination, then
in the order of their election), shall, in the absence of the Treasurer or in
the event of his inability or refusal to act, perform the duties and exercise
the powers of the Treasurer and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
ARTICLE 8
RESIGNATIONS, REMOVALS AND VACANCIES
SECTION 8.1 DIRECTORS.
(a) RESIGNATIONS. Any Director may resign at any time by giving
written notice to the Board of Directors or the President or the Secretary. Such
resignation shall take effect at the time specified therein; and unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
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(b) REMOVALS. Subject to any provisions of the Certificate of
Incorporation, any Director or the entire Board of Directors may be removed with
or without cause, at any meeting called for the purpose, by vote of the holders
of a majority of the shares entitled to vote for the election of Directors, or a
majority vote of the Board of Directors. This Section 8.1(b) may not be altered,
amended or repealed except by the holders of a majority of the shares of stock
issued and outstanding and entitled to vote for the election of the Directors.
(c) VACANCIES. Vacancies occurring in the office of Director and
newly created Directorships resulting from any increase in the authorized number
of Directors shall be filled by a majority of the Directors then in office,
though less than a quorum, unless previously filled by the stockholders entitled
to vote for the election of Directors, and the Directors so chosen shall hold
office subject to the By-laws until the next annual meeting of Stockholders at
which the term of office of the class to which they have been elected expires
and until their successors are duly elected and qualify or until their earlier
resignation or removal. If there are no Directors in office, then an election of
Directors may be held in the manner provided by statute.
SECTION 8.2 OFFICERS. Any officer may resign at any time by giving
written notice to the Board of Directors or the President or the Secretary. Such
resignation shall take effect at the time specified therein; and unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. The Board of Directors may, at any meeting
called for the purpose, by vote of a majority of their entire number, remove
from office any officer of the Corporation or any member of a committee, with or
without cause. Any vacancy occurring in the office of President, Secretary or
Treasurer shall be filled by the Board of Directors and the
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officers so chosen shall hold office subject to the By-laws for the unexpired
term in respect of which the vacancy occurred and until their successors shall
be elected and qualify or until their earlier resignation or removal.
ARTICLE 9
CERTIFICATE OF STOCK
SECTION 9.1 ISSUANCE OF STOCK. The Directors may, at any time and from
time to time, if all of the shares of capital stock which the Corporation is
authorized by its Certificate of Incorporation to issue have not been issued,
subscribed for, or otherwise committed to be issued, issue or take subscriptions
for additional shares of its capital stock up to the amount authorized in its
Certificate of Incorporation. Such stock shall be issued and the consideration
paid therefor in the manner prescribed by law.
SECTION 9.2 RIGHT TO CERTIFICATE; FORM. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by, or in the name
of the Corporation by, the Chairman of the Board, the President or a Vice
President and the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, certifying the number of shares owned by
him in the Corporation; provided that the Directors may provide by one or more
resolutions that some or all of any or all classes or series of the
Corporation's stock shall be uncertified shares. Certificates may be issued for
partly paid shares and in such case upon the face or back of the certificates
issued to represent any such partly paid shares, the total amount of the
consideration to be paid therefor, and the amount paid thereon shall be
specified.
SECTION 9.3 FACSIMILE SIGNATURE. Any of or all the signatures on the
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile
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signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
SECTION 9.4 LOST CERTIFICATES. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
SECTION 9.5 TRANSFER OF STOCK. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
SECTION 9.6 REGISTERED STOCKHOLDERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to
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or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
ARTICLE 10
INDEMNIFICATION
SECTION 10.1 THIRD PARTY ACTIONS. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a Director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 10.2 DERIVATIVE ACTIONS. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or
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suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a Director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
SECTION 10.3 EXPENSES. To the extent that a Director, officer, employee
or agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Sections 10.1 and 10.2,
or in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
SECTION 10.4 AUTHORIZATION. Any indemnification under Sections 10.1 and
10.2 (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
Director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Sections 10.1
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and 10.2. Such determination shall be made (a) by the Board of Directors by a
majority vote of a quorum consisting of Directors who were not parties to such
action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested Directors so directs, by independent
legal counsel in a written opinion, or (c) by the stockholders.
SECTION 10.5 ADVANCE PAYMENT OF EXPENSES. Expenses incurred by an officer
or Director in defending a civil or criminal action, suit or proceeding may be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding as authorized by the Board of Directors in the specific case upon
receipt of an undertaking by or on behalf of such officer or Director to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation as authorized in this Article 10. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
SECTION 10.6 NON-EXCLUSIVENESS. The indemnification provided by this
Article 10 shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested Directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 10.7 INSURANCE. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a Director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer,
-25-
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article 10.
SECTION 10.8 CONSTITUENT CORPORATIONS. The Corporation shall have power
to indemnify any person who is or was a director, officer, employee or agent of
a constituent corporation absorbed in a consolidation or merger with this
Corporation or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, in the same manner as hereinabove
provided for any person who is or was a Director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
SECTION 10.9 ADDITIONAL INDEMNIFICATION. In addition to the foregoing
provisions of this Article 10, the Corporation shall have the power, to the full
extent provided by law, to indemnify any person for any act or omission of such
person against all loss, cost, damage and expense (including attorney's fees) if
such person is determined (in the manner prescribed in Section 10.4 hereof) to
have acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interest of the Corporation.
ARTICLE 11
EXECUTION OF PAPERS
Except as otherwise provided in these By-laws or as the Board of
Directors may generally or in particular cases otherwise determine, all deeds,
leases, transfers, contracts, bonds, notes,
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checks, drafts and other instruments authorized to be executed on behalf of the
Corporation shall be executed by the President or the Treasurer.
ARTICLE 12
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
ARTICLE 13
SEAL
The Corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the word "Delaware". The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE 14
OFFICES
In addition to its principal office, the Corporation may have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE 15
AMENDMENTS
Except as otherwise provided herein, these By-laws may be altered,
amended or repealed or new By-laws may be adopted by the stockholders or by the
Board of Directors, when such power is conferred upon the Board of Directors by
the Certificate of Incorporation, at any regular meeting of the stockholders or
of the Board of Directors, or at any special meeting of the stockholders or of
the Board of Directors if notice of such alteration, amendment, repeal or
adoption of new By-laws is contained in the notice of such special meeting, or
by the written
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consent of a majority in interest of the outstanding voting stock of the
Corporation or by the unanimous written consent of the Directors. If the power
to adopt, amend or repeal by-laws is conferred upon the Board of Directors by
the Certificate of Incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
741443
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Exhibit 10.1
BRUKER DALTONICS INC.
2000 STOCK OPTION PLAN
1. PURPOSE OF THE PLAN.
This stock option plan (the "2000 Stock Option Plan") is intended to
encourage ownership of the stock of Bruker Daltonics Inc. (the "Company") by
management, employees, directors, consultants and advisors ("Optionees") of the
Company and its subsidiaries, to induce qualified personnel to enter and remain
in the employ of the Company or its subsidiaries and otherwise to provide
additional incentive for Optionees to promote the success of its business.
2. STOCK SUBJECT TO THE 2000 STOCK OPTION PLAN.
(a) The total number of shares of the authorized but unissued or
Treasury shares of the common stock, $.01 par value, of the Company ("Common
Stock") for which options may be granted under the 2000 Stock Option Plan shall
not exceed two million two hundred twenty thousand (2,220,000) shares,
corresponding to four percent (4%) of the issued and outstanding shares of
Common Stock after the completion of the Company's initial public offering,
subject to adjustment as provided in Section 12 hereof.
(b) If an option granted hereunder shall expire or terminate for any
reason without having vested fully or having been exercised in full, the
unvested and/or unpurchased shares subject thereto shall again be available for
subsequent option grants under the 2000 Stock Option Plan.
(c) Stock issuable upon exercise of an option granted under the 2000
Stock Option Plan may be subject to such restrictions on transfer, repurchase
rights (but not to exceed 20% of the stock issuable upon exercise of options
granted under the 2000 Stock Option Plan) or other restrictions as shall be
determined by the Board of Directors of the Company (the "Board").
(d) Notwithstanding any other provision of this Plan to the contrary,
the Committee shall have the right, in its sole discretion, to allocate and
grant up to twenty percent (20%) of the Common Stock authorized to be granted as
options hereunder as restricted stock to employees of
the Company on such terms and conditions and pursuant to such restricted stock
agreements as the Committee, in its discretion, shall deem appropriate.
3. ADMINISTRATION OF THE 2000 STOCK OPTION PLAN.
At the discretion of the Board, the 2000 Stock Option Plan shall be
administered either by (i) the Board, or (ii) the compensation committee (the
"Compensation Committee") consisting of two or more members of the Board. In the
event the Board is the administrator of the 2000 Stock Option Plan, references
herein to the Compensation Committee shall be deemed to include the full Board.
The Board may from time to time appoint a member or members of the Compensation
Committee in substitution for or in addition to the member or members then in
office and may fill vacancies on the Compensation Committee however caused. The
Compensation Committee shall choose one of its members as Chairman and shall
hold meetings at such times and places as it shall deem advisable. A majority of
the members of the Compensation Committee shall constitute a quorum and any
action may be taken by a majority of those present and voting at any meeting.
Any action may also be taken without the necessity of a meeting by a
written instrument signed by a majority of the Compensation Committee. The
decision of the Compensation Committee as to all questions of interpretation and
application of the 2000 Stock Option Plan shall be final, binding and conclusive
on all persons. The Compensation Committee shall have the authority to adopt,
amend and rescind such rules and regulations as, in its opinion, may be
advisable in the administration of the 2000 Stock Option Plan. The Compensation
Committee may correct any defect or supply any omission or reconcile any
inconsistency in the 2000 Stock Option Plan or in any option agreement granted
hereunder in the manner and to the extent it shall deem expedient to carry the
2000 Stock Option Plan into effect and shall be the sole and final judge of such
expediency. No Compensation Committee member shall be liable for any action or
determination made in good faith.
2
4. TYPE OF OPTIONS.
Options granted pursuant to the 2000 Stock Option Plan shall be
authorized by action of the Compensation Committee and may be designated as
either incentive stock options meeting the requirements of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), or non-qualified options
which are not intended to meet the requirements of such Section 422 of the Code,
the designation to be in the sole discretion of the Compensation Committee. The
2000 Stock Option Plan shall be administered by the Compensation Committee in
such manner as to permit options granted as incentive stock options to qualify
as incentive stock options under the Code.
5. ELIGIBILITY
(a) As required by U.S. law, incentive stock options shall
only be granted to Optionees who are employees. As a result, options designated
as incentive stock options shall, subject to the limitation on amounts of more
than 10% of the combined voting power of the Company as designated in Section
5(e), be granted only to employees (including officers and directors who are
also employees) of the Company or any of its subsidiaries, including
subsidiaries which become such after adoption of the 2000 Stock Option Plan.
(b) The law permits more flexibility for the grant of
non-qualified stock options. Accordingly, options designated as non-qualified
options may be granted to officers, employees, consultants, advisors and
directors of the Company or of any of its subsidiaries, including subsidiaries
which become such after adoption of the 2000 Stock Option Plan.
(c) As used herein, "subsidiary" or "subsidiaries" shall be as
defined in Section 424 of the Code and the Treasury Regulations promulgated
thereunder (the "Regulations").
(d) The Compensation Committee shall, from time to time, at
its sole discretion, select from such eligible persons those to whom options
shall be granted and shall determine the number of shares to be subject to each
option. In determining the eligibility of a person to be granted an option, as
well as in determining the number of shares to be granted to
3
any person, the Compensation Committee in its sole discretion shall take into
account the position and responsibilities of the person being considered, the
nature and value to the Company or its subsidiaries of his or her service and
accomplishments, his or her present and potential contribution to the success of
the Company or its subsidiaries, and such other factors as the Compensation
Committee may deem relevant.
(e) As required by law, no option designated as an incentive
stock option shall be granted to any employee of the Company or any subsidiary
if such employee owns, immediately prior to the grant of an option, stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company or of a parent or a subsidiary, unless the purchase price
for the stock under such option shall be at least 110% of its fair market value
at the time such option is granted and the option, by its terms, shall not be
exercisable more than five years from the date it is granted. In determining the
stock ownership under this paragraph, the provisions of Section 424(d) of the
Code shall be controlling.
(f) In determining the fair market value under this paragraph,
the provisions of Section 7 hereof shall apply.
6. OPTION AGREEMENT.
Each option shall be evidenced by an option agreement (the
"Agreement") duly executed on behalf of the Company and by the Optionee to whom
such option is granted, which Agreement shall comply with and be subject to the
terms and conditions of the 2000 Stock Option Plan. The Agreement may contain
such other terms, provisions and conditions which are not inconsistent with the
2000 Stock Option Plan as may be determined by the Compensation Committee;
provided that (a) options designated as incentive stock options shall meet all
of the conditions for incentive stock options as defined in Section 422 of the
Code; (b) the vesting schedule contained in the form of incentive stock option
agreement approved by the Board shall not be altered by the Compensation
Committee for any grant of an incentive stock option; and (c) the vesting
schedule contained in the form of non-qualified stock option agreement approved
by the Board shall be the recommended vesting schedule for the grant of
non-qualified stock options
4
by the Compensation Committee but may be altered by the Compensation Committee.
The date of grant of an option shall be as determined by the Compensation
Committee. More than one option may be granted to an individual.
7. OPTION PRICE.
The option price or prices of shares of the Company's Common Stock for
options designated as non-qualified stock options shall be as determined by the
Compensation Committee, but in no event shall the option price of a
non-qualified stock option be less than 50% of the fair market value of such
Common Stock at the time the option is granted, as determined by the
Compensation Committee. The option price or prices of shares of the Company's
Common Stock for incentive stock options shall be not less than the fair market
value of such Common Stock at the time the option is granted as determined by
the Compensation Committee in accordance with the Regulations promulgated under
Section 422 of the Code. If such shares are then listed on any national
securities exchange, the fair market value shall be the mean between the high
and low sales prices, if any, on the largest such exchange on the date of the
grant of the option or, if none, shall be determined by taking a weighted
average of the means between the highest and lowest sales prices on the nearest
date before and the nearest date after the date of grant in accordance with
Treasury Regulations Section 25.2512-2. If the shares are not then listed on any
such exchange, the fair market value of such shares shall be the mean between
the high and low sales prices, if any, as reported in the National Association
of Securities Dealers Automated Quotation National Market ("NASDAQ/NM") for the
date of the grant of the option, or, if none, shall be determined by taking a
weighted average of the means between the highest and lowest sales on the
nearest date before and the nearest date after the date of grant in accordance
with Treasury Regulations Section 25.2512-2. If the shares are not then either
listed on any such exchange or quoted in NASDAQ/NM, the fair market value shall
be the mean between the average of the "Bid" and the average of the "Ask"
prices, if any, as reported in the National Daily Quotation Service for the date
of the grant of the option, or, if none, shall be determined by taking a
weighted average of the means between the highest and lowest sales
5
prices on the nearest date before and the nearest date after the date of grant
in accordance with Treasury Regulations Section 25.2512-2. If the fair market
value cannot be determined under the preceding three sentences, it shall be
determined in good faith by the Compensation Committee.
8. MANNER OF PAYMENT; MANNER OF EXERCISE.
(a) Options granted under the 2000 Stock Option Plan may provide for
the payment of the exercise price, as determined by the Compensation Committee,
and as set forth in the Option Agreement, by delivery of cash or a check payable
to the order of the Company in an amount equal to the exercise price of such
options.
(b) To the extent that the right to purchase shares under an option has
accrued and is in effect, options may be exercised in full at one time or in
part from time to time, by giving written notice, signed by the Optionee
exercising the option, to the Company, stating the number of shares with respect
to which the option is being exercised, accompanied by payment in full for such
shares as provided in subparagraph (a) above. Upon such exercise, delivery of a
certificate for paid-up non-assessable shares shall be made at the principal
office of the Company to the Optionee exercising the option at such time, during
ordinary business hours, not more than thirty (30) days from the date of receipt
of the notice by the Company, as shall be designated in such notice, or at such
time, place and manner as may be agreed upon by the Company and the person or
persons exercising the option. Upon exercise of the option and payment as
provided above, the Optionee shall become a shareholder of the Company as to the
Shares acquired upon such exercise.
9. EXERCISE OF OPTIONS.
Each option granted under the 2000 Stock Option Plan shall, subject to
Section 6, Section 10(b) and Section 12 hereof, be exercisable at such time or
times and during such period as determined by the Compensation Committee which
shall be set forth in the Agreement; provided, however, that no option granted
under the 2000 Stock Option Plan shall have a term in excess of ten (10) years
from the date of grant.
6
To the extent that an option to purchase shares is not exercised by an
Optionee when it becomes initially exercisable, it shall not expire but shall be
carried forward and shall be exercisable, on a cumulative basis, until the
expiration of the exercise period. No partial exercise may be made for less than
fifty (50) full shares of Common Stock.
Notwithstanding the foregoing, the Compensation Committee may in its
discretion accelerate the exerciseability of any option subject to such terms
and conditions as the Compensation Committee deems necessary and appropriate.
10. TERM OF OPTIONS; EXERCISEABILITY.
(a) TERM.
(1) Each option shall expire not more than ten (10) years from
the date of the granting thereof, but shall be subject to earlier termination as
herein provided.
(2) Except as otherwise provided in this Section 10, an option
granted to any employee who ceases to be an employee of the Company, or an
option granted to any other Optionee who ceases to have the same relationship
with the Company or one of its subsidiaries which was in effect on the date the
option was granted, shall terminate immediately on the date such Optionee ceases
to be an employee, or ceases to have such relationship with the Company or one
of its subsidiaries, or on the date on which the option expires by its terms,
whichever occurs first.
(3) If such termination of employment or relationship is
because the Optionee has become permanently disabled (within the meaning of
Section 22(e)(3) of the Code), such option shall terminate thirty (30) days
after the date such Optionee ceases to be an employee or to have such
relationship, or on the date on which the option expires by its terms, whichever
occurs first.
(4) In the event of the death of any Optionee, any option
granted to such Optionee shall terminate ninety (90) days after the date of
death, or on the date on which the option expires by its terms, whichever occurs
first.
7
(5) Notwithstanding subparagraphs (2), (3) and (4) above, the
Compensation Committee shall have the authority to extend the expiration date of
any outstanding option in circumstances in which it deems such action to be
appropriate, provided that no such extension shall extend the term of an option
beyond the date on which the option would have expired if no termination of the
Optionee's employment or relationship with the Company or its subsidiary had
occurred.
(b) EXERCISEABILITY.
An option granted to an Optionee who ceases to be an employee,
or ceases to have the same relationship with the Company or one of its
subsidiaries which was in existence on the date the option was granted shall be
exercisable only to the extent that the right to purchase shares under such
option has accrued and is in effect on the date such Optionee ceases to be an
employee, or ceases to have such relationship with the Company or one of its
subsidiaries.
11. OPTIONS NOT TRANSFERABLE.
The right of any Optionee to exercise any option granted to him or her
shall not be assignable or transferable by such Optionee otherwise than by will
or the laws of descent and distribution, and any such option shall be
exercisable during the lifetime of such Optionee only by him or her. Any option
granted under the 2000 Stock Option Plan shall be null and void and without
effect upon the bankruptcy of the Optionee to whom the option is granted, or
upon any attempted assignment or transfer, except as herein provided, including
without limitation any purported assignment, whether voluntary or by operation
of law, pledge, hypothecation or other disposition, attachment, divorce, trustee
process or similar process, whether legal or equitable, upon such option.
12. RECAPITALIZATIONS, REORGANIZATIONS AND THE LIKE.
(a) In the event that the outstanding shares of the Common Stock of the
Company are changed into or exchanged for a different number or kind of shares
or other securities of the Company or of another corporation by reason of any
reorganization, merger, consolidation,
8
recapitalization, reclassification, stock split-up, combination of shares, or
dividends payable in capital stock, appropriate adjustment shall be made in the
number and kind of shares as to which options may be granted under the 2000
Stock Option Plan and as to which outstanding options or portions thereof then
unexercised shall be exercisable, to the end that the proportionate interest of
the Optionee shall be maintained as before the occurrence of such event; such
adjustment in outstanding options shall be made without change in the total
price applicable to the unexercised portion of such options and with a
corresponding adjustment in the option price per share.
(b) In addition, unless otherwise determined by the Board in its sole
discretion, in the case of any (i) sale or conveyance to another entity of all
or substantially all of the property and assets of the Company, including,
without limitation, by way of merger or consolidation, or (ii) Change in Control
(as hereinafter defined) of the Company, the purchaser(s) of the Company's
assets or stock may, in his, her or its discretion, deliver to the Optionee the
same kind of consideration that is delivered to the shareholders of the Company
as a result of such sale, conveyance or Change in Control, or the Board may
cancel all outstanding options in exchange for consideration in cash or in kind
which consideration in both cases shall be equal in value to the value of those
shares of stock or other securities the Optionee would have received had the
option been exercised (to the extent then exercisable) and no disposition of the
shares acquired upon such exercise been made prior to such sale, conveyance or
Change in Control, less the option price therefor. Upon receipt of such
consideration by the Optionee, his or her option shall immediately terminate and
be of no further force and effect. The value of the stock or other securities
the Optionee would have received if the option had been exercised shall be
determined in good faith by the Board, and in the case of shares of the Common
Stock of the Company, in accordance with the provisions of Section 7 hereof. The
Board shall also have the power and right to accelerate the exerciseability of
any options, notwithstanding any limitations in this 2000 Stock Option Plan or
in the Agreement upon such a sale, conveyance or Change in Control. Upon such
acceleration, any options or portion thereof originally designated as incentive
stock options that no longer qualify as incentive stock options under Section
422 of the Code as a
9
result of such acceleration shall be redesignated as non-qualified stock
options. A "Change in Control" shall be deemed to have occurred if any person,
or any two or more persons acting as a group, and all affiliates of such person
or persons, who prior to such time owned less than twenty percent (20%) of the
then outstanding Common Stock of the Company, shall acquire, whether by
purchase, exchange, tender offer, merger, consolidation or otherwise, such
additional shares of the Company's Common Stock in one or more transactions, or
series of transactions, such that following such transaction or transactions,
such person or group and affiliates beneficially own at least fifty percent
(50%) of the Company's Common Stock outstanding.
(c) Upon dissolution or liquidation of the Company, all options granted
under this 2000 Stock Option Plan shall terminate, but each Optionee (if at such
time in the employ of or otherwise associated with the Company or any of its
subsidiaries) shall have the right, immediately prior to such dissolution or
liquidation, to exercise his or her option to the extent then exercisable.
(d) No fraction of a share shall be purchasable or deliverable upon the
exercise of any option, but in the event any adjustment hereunder of the number
of shares covered by the option shall cause such number to include a fraction of
a share, such fraction shall be adjusted to the nearest smaller whole number of
shares.
13. NO SPECIAL EMPLOYMENT OR OTHER RIGHTS.
Nothing contained in the 2000 Stock Option Plan or in any option
granted under the Plan shall confer upon any Optionee right with respect to the
continuation of his or her employment or other relationship by the Company (or
any subsidiary) or interfere in any way with the right of the Company (or any
subsidiary), subject to the terms of any separate employment or other agreement,
at any time to terminate such employment or other relationship or to increase or
decrease the compensation of the option holder from the rate in existence at the
time of the grant of an option. Whether an authorized leave of absence, or
absence in military or government service, shall constitute termination of
employment or another relationship shall be determined by the Compensation
Committee at the time.
10
14. WITHHOLDING.
The Company's obligation to deliver shares upon the exercise of any
option granted under the 2000 Stock Option Plan and any payments or transfers
under Section 12 hereof shall be subject to the Optionee's satisfaction of all
applicable Federal, state and local income, excise, employment and any other tax
withholding requirements. All non-U.S. Optionees must pay all applicable
employee and employers wage and other withholding taxes in advance of receiving
shares upon exercise of any vested option.
15. RESTRICTIONS ON ISSUE OF SHARES.
(a) Notwithstanding the provisions of Section 8, the Company may delay
the issuance of shares covered by the exercise of an option and the delivery of
a certificate for such shares until one of the following conditions shall be
satisfied:
(i) The shares with respect to which such option has
been exercised are at the time of the issue of such shares effectively
registered or qualified under applicable Federal and state securities acts now
in force or as hereafter amended; or
(ii) Counsel for the Company shall have given an
opinion, which opinion shall not be unreasonably conditioned or withheld, that
such shares are exempt from registration and qualification under applicable
Federal and state securities acts now in force or as hereafter amended.
(b) It is intended that all exercises of options shall be effective,
and the Company shall use its best efforts to bring about compliance with the
above conditions within a reasonable time, except that the Company shall be
under no obligation to qualify shares or to cause a registration statement or a
post-effective amendment to any registration statement to be prepared for the
purpose of covering the issue of shares in respect of which any option may be
exercised, except as otherwise agreed to by the Company in writing.
16. PURCHASE FOR INVESTMENT; RIGHTS OF HOLDER ON SUBSEQUENT
REGISTRATION.
Unless the shares to be issued upon exercise of an option granted under
the 2000 Stock Option Plan have been effectively registered under the Securities
Act of 1933, as now in force or
11
hereafter amended, the Company shall be under no obligation to issue any shares
covered by any option unless the Optionee, in whole or in part, shall give a
written representation and undertaking to the Company which is satisfactory in
form and scope to counsel for the Company and upon which, in the opinion of such
counsel, the Company may reasonably rely, that he or she is acquiring the shares
issued pursuant to such exercise of the option for his or her own account as an
investment and not with a view to, or for sale in connection with, the
distribution of any such shares, and that he or she will make no transfer of the
same except in compliance with any rules and regulations in force at the time of
such transfer under the Securities Act of 1933, or any other applicable law, and
that if shares are issued without such registration, a legend to this effect may
be endorsed upon the securities so issued. In the event that the Company shall,
nevertheless, deem it necessary or desirable to register under the Securities
Act of 1933 or other applicable statutes any shares with respect to which an
option shall have been exercised, or to qualify any such shares for exemption
from the Securities Act of 1933 or other applicable statutes, then the Company
may take such action and may require from each Optionee such information in
writing for use in any registration statement, supplementary registration
statement, prospectus, preliminary prospectus or offering circular as is
reasonably necessary for such purpose and may require reasonable indemnity to
the Company and its officers and directors and controlling persons from such
holder against all losses, claims, damages and liabilities arising from such use
of the information so furnished and caused by any untrue statement of any
material fact therein or caused by the omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made.
17. MODIFICATION OF OUTSTANDING OPTIONS.
The Board may authorize the amendment of any outstanding option with
the consent of the Optionee when and subject to such conditions as are deemed to
be in the best interests of the Company and in accordance with the purposes of
this 2000 Stock Option Plan.
12
18. APPROVAL OF STOCKHOLDERS.
The 2000 Stock Option Plan shall be subject to approval by the vote of
stockholders holding at least a majority of the voting stock of the Company
present, or represented, and entitled to vote at a duly held stockholders'
meeting, or by written consent of the stockholders as provided for under
applicable state law, within twelve (12) months after the adoption of the 2000
Stock Option Plan by the Board of Directors and shall take effect as of the date
of adoption by the Board of Directors upon such approval. The Compensation
Committee may grant options under the 2000 Stock Option Plan prior to such
approval, but any such option shall become effective as of the date of grant
only upon such approval and, accordingly, no such option may be exercisable
prior to such approval.
19. TERMINATION AND AMENDMENT.
Unless sooner terminated as herein provided, the 2000 Stock Option Plan
shall terminate ten (10) years from the date upon which the 2000 Stock Option
Plan was duly adopted by the Board. The Board may at any time terminate the 2000
Stock Option Plan or make such modification or amendment thereof as it deems
advisable; provided, however, that except as provided in this Section 20, the
Board may not, without the approval of the stockholders of the Company obtained
in the manner stated in Section 19, increase the maximum number of shares for
which options may be granted or change the designation of the class of persons
eligible to receive options under the 2000 Stock Option Plan, or make any other
change in the 2000 Stock Option Plan which requires stockholder approval under
applicable law or regulations.
20. RESERVATION OF STOCK.
The Company shall at all times during the term of the 2000 Stock Option
Plan reserve and keep available such number of shares of stock as will be
sufficient to satisfy the requirements of the 2000 Stock Option Plan and shall
pay all fees and expenses necessarily incurred by the Company in connection
therewith.
13
21. LIMITATION OF RIGHTS IN THE OPTION SHARES.
An Optionee shall not be deemed for any purpose to be a stockholder of
the Company with respect to any of the options except to the extent that the
option shall have been exercised with respect thereto and, in addition, a
certificate shall have been issued theretofore and delivered to the Optionee.
22. NOTICES.
Any communication or notice required or permitted to be given under
the 2000 Stock Option Plan shall be in writing, and mailed by registered or
certified mail or delivered by hand, if to the Company, to its principal place
of business, attention: Treasurer, and, if to an Optionee, to the address as
appearing on the records of the Company.
14
Exhibit 10.2
SHARING AGREEMENT
This Agreement made and entered into as of the 28th day of February, 2000,
(the "Date of the Agreement"), and as amended on April 7, 2000, by and among
o Bruker Physik AG ("BPAG-DE"), a German corporation,
o Techneon AG ("TAG-CH"), a Swiss corporation,
o Bruker Analytik GmbH ("BA-DE"), a German corporation,
o Bruker Elektronik GmbH ("BE-DE"), a German corporation,
o SBI Holding AG ("SBI-CH"), a Swiss corporation,
o Bruker Instruments, Inc. ("BII-US"), a Massachusetts corporation,
o Rhena Invest AG ("RIAG-CH"), a Swiss corporation,
o Bruker AG ("B-CH"), a Swiss corporation,
o Bruker-Spectrospin SA ("BS-FR"), a French corporation,
o Bruker SA("B-FR"), a French corporation,
o Bruker Daltonics Inc. ("BDAL-US"), a Delaware corporation,
o Bruker Optics, Inc. ("BOPT-US"), a Massachusetts corporation,
o Bruker AXS Inc. ("BAXS-US"), a Delaware corporation, and
o Bruker Medical AG ("BMED-CH"), a Swiss corporation.
WITNESSETH:
WHEREAS, the parties hereto presently are all affiliates of each other;
WHEREAS, each party hereto uses certain names, trademarks and other
intellectual property owned by other of the parties hereto and may use certain
services, facilities, products and related items of other of the parties hereto;
and
WHEREAS, the parties hereto desire to confirm by a written agreement the
arm's-length terms and conditions under which all such use has taken place and
shall take place in the future;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the parties hereto hereby agree as follows:
1.0 Definitions
1.1 "Affiliate" shall mean any person or entity which, directly or
indirectly, controls a party hereto, or is controlled by a party hereto, it
being understood that for such purposes "control" shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such person or entity, whether through the ownership
of voting securities or by contract or otherwise.
1.2 "Change of Control" shall mean, with respect to any party
hereto, a change in the possession to a third party who is presently not an
Affiliate, directly or indirectly, of the power to direct or cause the direction
of the management of policies of such party, whether through a change in the
ownership of voting securities or by contract or otherwise which occurs prior to
completion of a public offering of at least $25,000,000 (twenty five million
dollars) on a well-established public stock market (e.g. NASDAQ, Neuer Markt, or
others). An initial public offering and transfer of control of a party to public
ownership shall specifically not constitute a Change of Control.
1.3 "Intellectual Property" shall mean all patents, patent
applications, inventions, trademarks, trademark applications, copyrights,
copyright applications, trade secrets, common law rights and other intellectual
property rights of any nature whatsoever in existence as of the Date of the
Agreement, provided, however, that in the
case of any patents and patent applications of Bruker Daltonics, only those
patents and patent applications listed on Attachment B shall be included in
Intellectual Property.
1.4 "Lien" shall mean, with respect to any item, any mortgage, deed
of trust, pledge, hypothecation, assignment, security interest, lien, charge,
restriction, adverse claim by a third party, title defect or encumbrance of any
kind.
1.5 The "Name" shall mean the name "Bruker", any logos associated
therewith, and all Intellectual Property rights related thereto together with
all goodwill associated therewith.
2.0 Name
2.1 The parties acknowledge that BA-DE owns the entire right, title
and interest in and to the Name in Germany, as well as various international
countries listed in Attachment A. The parties acknowledge that BPAG-DE owns the
entire right, title and interest in and to the Name in the U.S., Israel and the
rest of the world, except where the rights to the Name are specifically owned by
BA-DE.
2.2 BA-DE and BPAG-DE hereby confirm that the other parties have
properly used the Name prior to the date hereof.
2.3 BA-DE and BPAG-DE hereby grant the other parties hereto a
perpetual, irrevocable, non-exclusive, royalty-free, non-transferable right and
license to use the Name in connection with the conduct and operation of the
business, as the same may be conducted from time to time, of each such party,
subject to and in accordance with the following:
2.3.1 Each party shall use the Name in such a manner that it
does not interfere with any other party's use of the Name. Moreover, all parties
hereto have or will endeavour to adopt additional names in conjunction with the
Name Bruker to
identify clearly the scope and purpose of each autonomous business (e.g. Bruker
Optics, Bruker Daltonics(R), Bruker AXS, Bruker Medical, etc.)
2.3.2 No party shall at any time, directly or indirectly, take
any material action which materially detracts from the goodwill associated with
the Name.
2.3.3 Notwithstanding the irrevocable, perpetual nature of the
license set forth in this Section 2.3, for ten (10) years after the signing of
this Agreement, a Party's license under this Section 2.3 may become null and
void at the option of BPAG-DE and BA-DE, which option must be exercised in
writing within ninety (90) days of the occurrence if a party (a) files a
voluntary petition for bankruptcy, (b) has an involuntary petition for
bankruptcy filed against it which remains undismissed for at least sixty (60)
consecutive days, (c) fails to comply with the provisions of this Section 2.3,
(d) suffers a major loss of its reputation in its industry or marketplace, such
as by the distribution of defective, harmful, illegal, or dangerous goods or
merchandise which materially detracts from the goodwill associated with the
Name, or (e) undergoes a Change of Control. Provided, however, that each party
hereto which may receive such written notice under this section, shall be given
a ninety (90) day period after receipt of written notice to cure the problem or
occurrence which led to the notice.
2.3.4 While the license set forth in this Section 2.3 is
non-transferable, a party shall have the right to have its Affiliates use the
Name subject to and in accordance with the following:
2.3.4.1 Use by an Affiliate shall be subject to all the
conditions of this Section 2.3.
2.3.4.2 The party to this Agreement which permits its
Affiliate to use the Name shall be fully responsible under this Agreement for
the use of the Name by such Affiliate.
2.3.5 No party shall take any action which would cause a Lien
to be placed on the Name or on a party's license rights under this Section 2.3.
2.4 In the event a party at any time believes a person or entity not
a party to this Agreement is infringing the Name or in the event any party's use
of the Name at any time leads to a claim that it is infringing the rights of a
third party, the parties hereto will work together and cooperate in good faith
with respect to the handling of such matter. The financial burden of enforcing
the rights in the Name will be shared equitably between the parties hereto.
3.0 Technology
3.1 The parties acknowledge that each party hereto (a) owns various
technology and the Intellectual Property relating thereto, and (b) has used and
uses the technology and Intellectual Property of other parties hereto, provided,
however, that use of the patents and patent applications included in such
Intellectual Property by each party hereto (other than use pursuant to the
separate written agreements referred to in Section 3.3 below) is limited to use
of these patents and patent applications as it is in effect prior to the Date of
the Agreement, and (c) that the Bruker Daltonics patents and patent applications
described in Schedule B are used only by those parties specified as using such
patents and patent applications in such Schedule B.
3.2 Each party confirms that the other parties hereto have properly
used its technology and related Intellectual Property prior to the date hereof.
3.3 Each party acknowledges that certain specific written agreements
are in place between certain parties hereto defining the use, royalties and
terms and conditions of use of technology and related intellectual property
between the specific parties to such separate previously existing written
agreements. This Agreement shall not supersede or replace any existing written
agreements pertaining to the subject matter hereof. For all technology and
related intellectual property which is not governed by a specific separate
written agreement between the parties or between any one or more parties and a
third party, each party hereby grants each of the other parties hereto a
perpetual, irrevocable, non-exclusive, royalty free, non-transferable right and
license to use the technology and related Intellectual Property of the granting
party in connection with the conduct and operation of the business, as the same
may be conducted from time to time, of each such other party, unless such other
party hereto undergoes a Change of Control, subject to and in accordance with
the following:
3.3.1 In the event a party (the "First Party") desires to make
a broader use of the technology or Intellectual Property of another party (the
"Second Party") hereto than the use of such Intellectual Property by the First
Party as of the Date of this Agreement, the two parties shall negotiate in good
faith regarding the possibility of entering into a written agreement permitting
the First Party to make such broader use, on arm's length terms and conditions
such as would be utilized in a typical transaction with a person or entity not a
party to this Agreement, provided, however, that neither the First Party nor the
Second Party shall have any obligation to enter into any such agreement.
3.3.2 No party (the "First Party") shall at any time take any
action which would materially adversely affect the value of any technology or
Intellectual Property of any other party hereto, which has been made available
to the First Party hereunder.
3.3.3 Each party shall use the technology and Intellectual
Property of the other parties in such a manner that it does not materially
interfere with any other party's use thereof.
3.3.4 While the license set forth in this Section 3.3 is
non-transferable, a party shall have the right to have its Affiliates use the
technology or Intellectual Party of another party hereto subject to and in
accordance with the following:
3.3.4.1 Use by an Affiliate shall be subject to all of
the conditions of this Section 3.3.
3.3.4.2 The party to this Agreement which permits its
Affiliate to use the technology or Intellectual Property of another party shall
be fully responsible for the use thereof by such Affiliate.
3.3.5 No party shall take any action which shall cause a Lien
to be placed on the technology or Intellectual Property of another party hereto
or on such party's license rights under this Section 3.3.
3.4 In the event a party at any time believes a person or
entity not a party to this Agreement is infringing the technology or
Intellectual Property of any party to this Agreement or in the event any party's
use of the technology or Intellectual Property of a party to this Agreement at
any time leads to a claim that such using party is infringing the rights of a
third party, the party which owns such technology or Intellectual Property will
be responsible for the handling of such matter, provided that such owning
party shall receive reasonable cooperation in connection therewith from the
other parties hereto which use such technology or Intellectual Property.
4.0 Distribution
4.1 The parties acknowledge that prior to the date hereof they have
used, and may continue to use after the date hereof, selected common
distribution channels for their respective products, including through the
Affiliates of the parties hereto.
4.2 Such common distribution channels shall continue, and no party
shall take any action which would interfere with the right of any other party
hereto to use such distribution channels.
4.3 The terms and conditions of sale and the transfer pricing for
such distribution will be on an arm's length basis as would be utilized in a
typical transaction with a person or entity not a party to this Agreement.
4.4 No common sales channel shall have any exclusivity in any
country or other geographic area and any party hereto shall have the right to
establish its own subsidiary sales channel or third-party sales channels in any
country or other geographic area at any time for any reason. However, in this
case sixty (60) days written notice shall be given.
4.5 In addition to the ability to establish a new sales channel as
described in Section 4.4 hereof, a party hereto shall have the right at any time
to establish additional exclusive or non-exclusive sales channels in any
country, geographic area or market segment with sixty (60) days written notice.
5.0 Shared Services
Any subleases of facilities, sharing of employees, shared services
such as payroll services and any related matters may occur as two (2) or more of
the parties hereto may agree from time to time as evidenced by a written
agreement containing arm's length terms, conditions and pricing.
6.0 Components and Subunits
To the extent that prior to the date hereof a party has purchased
subunits or components from another party hereto, such purchases may occur after
the date hereof subject to and in accordance with the following:
6.1 Purchases may occur for seven (7) years after the date hereof,
and spare parts purchases may occur for twelve (12) years after the date hereof.
6.2 The prices shall be the prices in effect as of the date hereof,
provided that there may be a yearly price increase in an amount not to exceed
the yearly increase in the Consumer Price Index, or corresponding index, of the
country in which the manufacture occurs.
6.3 The terms and conditions shall be the previously established
terms and conditions, provided that all such terms and conditions shall be
reasonable arm's length terms and conditions. In any case, the prices shall be
competitive, and from time to time may have to be adjusted by mutual agreement
bases on cost and market conditions.
7.0 Miscellaneous Provisions
7.1 This Agreement shall be governed by and construed in accordance
with either the laws of the Federal Republic of Germany or the laws of the
Commonwealth of Massachusetts, USA. If a party (or parties) hereto has a
complaint against another party (or parties) hereto, then the defendant shall
have the choice of law and jurisdiction between Massachusetts and Germany.
7.2 All notices given hereunder shall be in writing and sent by
certified mail, return receipt requested or by facsimile (receipt confirmed) to
the principal place of business of each party hereto, provided that a party may
change its address for notice in writing.
7.3 Subject to the prohibitions on transferability set forth herein,
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. To the extent set forth
herein, this Agreement shall bind the Affiliates of the parties hereto.
7.4. The headings of the provisions of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be part of
this Agreement.
7.5 This Agreement may be executed in any number of counterparts and
by the different parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all of which together shall
constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart. Facsimile signatures may be treated as original signatures.
7.6 In the event that any one or more of the provisions contained
herein is held to be void or unenforceable for any reason, the validity or
enforceability of the remainder of this Agreement shall continue in full force
and effect, and such void or unenforceable provision shall be enforced to the
maximum extent permissible.
7.7 This Agreement does not supersede any prior or contemporaneous
written agreements in connection therewith. This Agreement may be amended or
waived only by a written instrument executed by all parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal in a series of counterpart originals as of the date first written above.
BRUKER PHYSIK AG BRUKER ANALYTIK GMBH
By:_______________________________ By:_______________________________
Title:____________________________ Title:____________________________
TECHNEON AG BRUKER ELEKTRONIK GMBH
By:_______________________________ By:_______________________________
Title:____________________________ Title:____________________________
SBI Holding AG BRUKER INSTRUMENTS, INC.
By:_______________________________ By:_______________________________
Title:____________________________ Title:____________________________
RHENA INVEST AG BRUKER AG
By:_______________________________ By:_______________________________
Title:____________________________ Title:____________________________
BRUKER-SPECTROSPIN SA BRUKER SA
By:_______________________________ By:_______________________________
Title:____________________________ Title:____________________________
BRUKER DALTONICS INC. BRUKER OPTICS, INC.
By:_______________________________ By:_______________________________
Title:____________________________ Title:____________________________
BRUKER AXS INC. BRUKER MEDICAL AG
By:_______________________________ By:_______________________________
Title:____________________________ Title:____________________________
Attachment A
Country Date of Filing Present Owner Number Remarks
------- -------------- ------------- ------ -------
Germany 10.21.71 Bruker Analytik GmbH 893509
Int'l Reg. 25.5.72 Bruker Analytik GmbH 388454 CH BE NL LU FR IT ES
AT LI CS
Israel 31.5.72 Bruker Physik AG 35545
US 9.8.72 Bruker Physik AG 1133028 Includes Logo
Attachment B
Ward and Olivo Status Report For Bruker Daltonics, Inc.
As of 03/21/00
------------------------------------------------------------------------------------------------------------------------------
Application Title or W&O Doc. Application Application Assignee Patent Number Current Status
Project Description No. Serial Number Filing Date Issue Date of Application
or Project
------------------------------------------------------------------------------------------------------------------------------
Extended Bradbury 140-011 08/548,012 10/5/95 Bruker (see 140-023) Re-filed as a
Nielson Gate Analytical continuation
Instruments (see 140-023)
------------------------------------------------------------------------------------------------------------------------------
Multideflector 140-012 08/560,396 11/17/95 Bruker 5,696,375-12/9/97 Issued.
Analytical Application for
Instruments reissue pending
------------------------------------------------------------------------------------------------------------------------------
High Resolution Post 140-013 08/561,635 11/17/95 Bruker 5,753,909-5/19/98 Issued
Selector for Time of Analytical
Flight Mass Instruments
Spectrometry
------------------------------------------------------------------------------------------------------------------------------
Deflection Based 140-014 08/561,635 11/22/95 Bruker 5/,821,534-5/13/98 Issued
Daughter Ion Selector Analytical
Instruments
------------------------------------------------------------------------------------------------------------------------------
Split Field Interface 140-015 08/561,634 11/22/95 Bruker 5,744,791-4/28/98 Issued
Analytical
Instruments
------------------------------------------------------------------------------------------------------------------------------
Metal Ion Directed 140-016 08/652,708 5/30/96 Bruker N/A Pending.
Cleavage of Peptide Analytical Awaiting
Bonds Instruments Instructions
from the client
------------------------------------------------------------------------------------------------------------------------------
Nth Order Delayed 140-017 08/644,854 5/10/96 Bruker 5,861,623-1/19/99 Issued
Extraction Analytical
Instruments
------------------------------------------------------------------------------------------------------------------------------
Gas Flow Focusing 140-018 N/A N/A Bruker N/A Application
Based Ion Source Daltonics, draft provided
Application Inc. to client, but
no instructions
to proceed - NO
ACTION
------------------------------------------------------------------------------------------------------------------------------
Co-Axial Multiple 140-019A 08/866,134 5/30/97 Bruker N/A Pending.
Reflection Time of Daltonics, Awaiting PTO
Flight Mass Inc. response
Spectrometer
------------------------------------------------------------------------------------------------------------------------------
Shield Lens 140-021 08/926,541 9/10/97 Bruker 5,942,758-8/24/99 Issued
Daltonics,
Inc.
------------------------------------------------------------------------------------------------------------------------------
Extended Bradbury 140-023 08/911,639 8/15/97 Bruker 5,986,258-11/16/99 Issued
Nielson Gate Daltonics,
(Continuation of Inc.
140-011)
------------------------------------------------------------------------------------------------------------------------------
Kinetic Energy 140-026 09/032,510 2/27/98 Bruker N/A Pending.
Focusing for Pulsed Daltonics, Awaiting PTO
Ion Desorption Mass Inc. response
Spectroscopy
------------------------------------------------------------------------------------------------------------------------------
Ward and Olivo Status Report For Bruker Daltonics, Inc.
As of 03/21/00
----------------------------------------------------------------------------------------------------------------------
Application Title or W&O Doc. Application Application Assignee Patent Current Status
Project Description No. Serial Filing Date Number of Application
Number Issue Date or Project
----------------------------------------------------------------------------------------------------------------------
Increased MS/MS 140-028 N/A N/A Bruker N/A Invention
Sensitivity in Time of Daltonics, Disclosure - NO
Flight Mass Inc. ACTION
Spectroscopy
----------------------------------------------------------------------------------------------------------------------
Surface Induced 140-029 09/087,535 5/29/98 Bruker N/A Pending.
Dissociation with Daltonics, Awaiting PTO
Pulsed Ion Extraction Inc. response.
----------------------------------------------------------------------------------------------------------------------
RF-DC Ion Guide 140-030 N/A N/A Bruker N/A Application
Daltonics, Draft provided
Inc. to client. To
be finalized
and filed ASAP
----------------------------------------------------------------------------------------------------------------------
Co-Axial Multiple 140-031 09/282,076 3/30/99 Bruker N/A Pending.
Reflection Time of Daltonics, Awaiting PTO
Flight Mass Inc. response.
Spectrometer (CIP of
140-019A)
----------------------------------------------------------------------------------------------------------------------
Multiple Ion Trap 140-032 N/A N/A Bruker N/A Application
Orthogonal Time of Daltonics, Draft provided
Flight Mass Spectrometer Inc. to client. To
be finalized
and filed ASAP.
----------------------------------------------------------------------------------------------------------------------
"Multipart" Capillary 140-033 N/A 2/18/00 Bruker N/A Patent
for API Source Daltonics, Application
Inc. filed. Awaiting
PTO Response.
----------------------------------------------------------------------------------------------------------------------
Method and Apparatus 140-034 09/374,477 8/13/99 Bruker N/A Pending.
for Multiple Frequency Daltonics, Missing parts
Multipole Inc. filed.
Preliminary
Amendment
to be filed ASAP.
----------------------------------------------------------------------------------------------------------------------
Reissue Application re 140-035 09/324,098 6/1/99 Indiana N/A Pending.
Reilly et al. US Pat. Univ. Missing parts
No. 5,712,479 Foundation filed 11/15/99.
----------------------------------------------------------------------------------------------------------------------
Ionization Chamber for 140-036 09/263,659 3/5/99 Bruker N/A Pending.
Atmospheric Pressure Daltonics, Missing parts
Ionization Mass Inc. filed.
Spectroscopy Preliminary
Amendment to be
filed ASAP.
----------------------------------------------------------------------------------------------------------------------
Shielded Lens 140-038 09/324,232 6/2/99 Bruker N/A Pending.
(Continuation of Daltonics, Missing parts
140-021) Inc. filed.
Preliminary
Amendment
to be filed ASAP.
----------------------------------------------------------------------------------------------------------------------
Multiple Ion Trap for 140-039 N/A N/A N/A. N/A Invention
Othogonal TOFMS Disclosure - NO
ACTION
----------------------------------------------------------------------------------------------------------------------
Extended Bradbury 140-041 09/344,598 6/25/99 Bruker N/A Pending.
Nielson Gate Daltonics, Missing parts
(Continuation of Inc. filed.
140-023) Preliminary
Amendment to be
filed ASAP.
----------------------------------------------------------------------------------------------------------------------
Ward and Olivo Status Report For
Bruker Daltonics, Inc.
As of 03/21/00
------------------------------------------------------------------------------------------------------------------------------
Application Title or W&O Doc. Application Application Assignee Patent Current Status
Project Description No. Serial Number Filing Date Number of Application
Issue Date or Project
------------------------------------------------------------------------------------------------------------------------------
Ionization Source for 140-042 N/A N/A Bruker N/A Application
Mass Spectrometry Daltonics, Draft provided
Inc. to client. To be
finalized and
filed ASAP.
------------------------------------------------------------------------------------------------------------------------------
Means and Method for a 140-043 N/A N/A Bruker N/A Application
Quill Sprayer for Daltonics, Draft provided
Electrospray Inc. to client. To be
finalized and
filed ASAP.
------------------------------------------------------------------------------------------------------------------------------
Method and Apparatus for 140-044 N/A N/A Bruker N/A Draft being
a Multipole Ion Guide Daltonics, prepared.
for an Electrospray Inc.
Ionization Source
(HEXAPOLE)
------------------------------------------------------------------------------------------------------------------------------
Method and Apparatus for 140-045 N/A N/A Bruker N/A Patent
an Electrospray Daltonics, Application
Ionization Source Inc. Filed. Awaiting
(NANOSPRAY) PTO Response.
------------------------------------------------------------------------------------------------------------------------------
Zero Adjust System for 140-047 N/A N/A Bruker N/A Awaiting More
an E2 Microspray Device Daltonics, Detail From
Inc. Inventors.
------------------------------------------------------------------------------------------------------------------------------
Method and Apparatus for 140-048 N/A N/A Bruker N/A Draft being
an Automated Ionization Daltonics, prepared.
System for Mass Inc.
Spectrometry (MULTIPART
CAPILLARY - ROBOT)
------------------------------------------------------------------------------------------------------------------------------
Mass Spectrometer 140-049 N/A N/A Bruker N/A Draft being
Daltonics, prepared.
Inc.
------------------------------------------------------------------------------------------------------------------------------
Method for the Automatic 140-050 N/A N/A Bruker N/A Application
Acquisition, Analysis Daltonics, Draft provided
and Electronic Delivery Inc. to client. To be
of High Resolution Exact finalized and
Mass ESI Mass Spectral filed ASAP.
------------------------------------------------------------------------------------------------------------------------------
Listing of licensed patents and patent applications as of 3/31/00.
No. Assignee Technology Covered Remarks
-----------------------------------------------------------------
1 Indiana Spatial-Velocity USPNs: 5,504,326
University Correlation Focusing 5,510,613
in Time-of-Flight 5,712,479
Mass Spectrometry Bruker Daltonics
holds the exclusive
right to practice
these patents.
2 Battelle Capillary Electro- USPN 4,842,701
Memorial phoresis - Electro- RE34,757
Institute spray Interface and 5,423,964
Method one pending app.
Japan 2647941
Canada 1,340,133
Bruker Daltonics
has non-exclusive
rights to practice
these patents.
3 ISIS Pharma- "Methods and Apparatus Pending US patent
ceuticals, Inc. for External Accumulation application. Bruker
and Photodissociation of has exclusive rights
Ions Prior to Mass Spectro- to practice any
metric Analysis" patents issued.
4 Imperial Research Method for multiplexed WO 96/27681
Technology, Ltd. genotyping PCT /GB96/00476
Bruker Daltonics
has exclusive right
to practice this
patent in
conjunction with
mass spectrometry.
Patents acquired via Viking.
No. Assignee Technology Covered Remarks
-----------------------------------------------------------------
1 Bruker Daltonics Miniaturized Mass USPN 5,313,061
Spectrometer System Euro. PN 0476062
German PN
690283041.0
UKPN 2249662
Canadian PN
2,058,763
Japanese PN
Hei-2-509224
Granted Patents: Bruker Daltonik GmbH, Bremen as of 12. Apr. 00
(in Sequence of Priority)
P5047 Family: MM Owner: BFA Priority: 10.03.80
German Title: Eingangskopf eines Mess/Nachweissystems fur chemische Agenzien
English Title: Input head of a measuring or identification system for chemical
agents
Inventors: Dr. B. Odernheimer Johannes Kremer K. Kranich
DE 3 009 069 21.10.82
EP 0 047 286 16.01.85
US 4 433 982 28.02.84
P5048 Family: MM Owner: BFA Priority: 23.09.81
German Title: Verfahren und Vorrichtung zur probenahme von Spurenkomponenten
in Gasen, Flussigkeiten, an Festkorpern oder in Oberflachenschichten
English Title: Method and device for the sampling of trace elements in gases,
liquids, solids or in surface layers
Inventors: Dr. B. Odernheimer
DE 3 137 765 27.04.89
EP 0 089 356 27.08.86
US 4 541 268 17.09.85
P4643 Family: TOF Owner: BAM Priority: 10.07.85
German Title: Flugzeitmassenspektrometer mit einem Ionenreflektor
English Title: Time-of-flight mass spectrometer using an ion reflector
Inventors: Dr. Rudiger Frey Prof. E. W. Schlag
EP 0 208 894 23.10.91
US ???
P5234 Family: CB Owner: BFA Priority: 23.12.87
German Title: Verfahren zur massenspektroskopischen Untersuchung eines
Gasgemisches und Massenspektrometer zur Durchfuhrung dieses Verfahrens
English Title: Method for mass-spectroscopic examination of a gas mixyture and
mass spectrometer intended for carrying out this method
Inventors: Dr. Jochen Franzen Dr. R.-H. Gabling Gerhard Heinen
Gerhard WeiB
US 5 028 777 02.07.91
P5242 Family: TOF Owner: BFA Priority: 22.03.88
German Title: Verfahren zum Verdampfen einer Probensubstanz
English Title: Method of vaporizing a sample substance
Inventors: Prof. E. W. Schlag J. Lindner Prof. R. C. Beavis
Prof. J. Grotemeyer
DE 3 809 504 21.09.89
EP 0 333 912 28.06.95
US 5 062 935 05.11.91
BDAL.DE Page 1
DAR08 Family: CB Owner: USA Priority: 13.04.88
German Title: Verfahren zur massenspektrometrischen Untersuchung eines
Gasgemisches und Massenspektrometer zur Durchfuhrung dieses Verfahrens
English Title: Method of mass analyzing a sample by use of a quistor and a
quistor designed for performing this method
Inventors: Dr. Jochen Franzen Dr. R.-H. Gabling Gerhard Heinen
Gerhard WeiB
US 4 882 484 21.11.89
P5197 Family: CB Owner: BFA Priority: 13.04.88
German Title: Verfahren zur massenspektrometrischen Untersuchung eines
Gasgemisches und Massenspektrometer zur Durchfuhrung dieses Verfahrens
English Title: Method of mass analyzing a sample by use of a quistor and a
quistor designed for performing this method
Inventors: Dr. Jochen Franzen Dr. R.-H. Gabling Gerhard Heinen
Gerhard WeiB
EP 0 336 990 13.04.88
P5464 Family: MM Owner: BFA Priority: 28.05.88
German Title: Verfahren zur nicht intrusiven kontinuierlichen und
automatischen Analysenprobennahme, Abspeicherung und Bereitstellung der Proben
und Daten fur eine eventuelle Auswertung
English Title: Method for non-intrusive continuous and automatic taking of
samples, storing and supplying of samples and data for a possible evaluation
Inventors: Dr. B. Odernheimer
CA 1 335 866 13.06.95
DE 3 818 210 23.11.89
EP 0 407 469 07.04.93
Hei7-11475 07.07.95
PCT/DE89/00330
SU 4 831 972
US 5 216 925 08.06.93
P5464A Family: MM Owner: BFA Priority: 28.05.88
German Title:
English Title: Apparatus for non-intrusive continuous and automatic taking of
samples, storing and supplying of samples and data for a possible evaluation
Inventors: Dr. B. Odernheimer
US 5 205 178 27.04.93
P5368 Family: MM Owner: BFA Priority: 15.10.88
German Title: Vorrichtung zur Probenahme fur Uberwachungsfahrzeuge
English Title: Sampling device for inspection vehicles
Inventors: Dr. Dieter Koch Hans J. Baum
DE 3 835 207 03.08.89
EP 0 364 687 26.05.93
US 4 982 616 08.01.91
BDAL.DE Page 2
P5357 Family: LC Owner: BFA Priority: 03.11.88
German Title: Flussigkeits-Kolbenpumpe fur chromatographische Analysegerate
English Title: Liquid plunger pump for chromatographic analyzer
Inventors: Dr. W. Risler
DE 3 837 325 03.09.90
P5511 Family: CB Owner: BFA Priority: 18.02.89
German Title:
English Title: Method and instrument for mass analyzing samples with a quistor
Inventors: Dr. Jochen Franzen Dr. R.-H. Gabling Gerhard Heinen
Gerhard WeiB
DE689 13 290 26.05.94
EP 0 383 961 23.02.94
P5467 Family: TOF Owner: BFA Priority: 23.06.89
German Title: MS-MS-Flugzeitmassenspektrometer
English Title: MS-MS time-of-flight mass spectrometer
Inventors: Priv.Doz. U. Boesl Prof. E. W. Schlag R. Weinkauf K. Walter
DE 3 920 566 01.04.93
EP 0 403 965 15.09.94
US 5 032 722 16.07.91
DAR15 Family: CB Owner: USA Priority: 18.12.89
German Title:
English Title: Method and instrument for mass analyzing samples with a quistor
Inventors: Dr. Jochen Franzen Dr. R.-H. Gabling Gerhard Heinen
Gerhard WeiB
US 4 975 577 04.12.90
P5505 Family: XQ Owner: BFA Priority: 08.01.90
German Title:
English Title: Generation of an exact three-dimensional quadrupole electric
field
Inventors: Dr. Yang Wang
CA 2 033 753 21.11.95
EP 0 509 986 31.05.95
US 5 283 436 01.02.94
B2321 Family: XQ Owner: BFA Priority: 29.05.90
German Title: Masenspektrometrischer Hochfrequenz-Quadrupolkafig mit
uberlagerten Multipolfeldern
English Title: Mass spectrometric high-frequency quadrupole cage with overlaid
multipole fields
Inventors: Dr. Jochen Franzen
DE 4 017 264 22.06.92
US 5 170 054 08.12.92
BDAL.DE Page 3
B2326 Family: EM Owner: BFA Priority: 02.07.90
German Title: Verfahren und Vorrichtung zum Extrahieren geloster fluchtiger
Substanzen aus Flussigkeiten in die Gasphase
English Title: Method and apparatus for extracting dissolved, volatile
substances from liquids into the vapor phase
Inventors: Dr. Gokhan Baykut
DE 4 021 239 17.05.94
US 5 258 057 02.11.93
B2442 Family: TOF Owner: BFA Priority: 13.03.91
German Title: Verfahren und Vorrichtung zum Erzeugen von Ionen aus thermisch
instabilen, nichtfluchtigen gro(beta)en Molekulen
English Title: Method and Apparatus for generating ions from thermally
unstable, non-volatile, large molecules, particularly for
a mass spectrometer such as a time-of-flight mass spectrometer
Inventors: Dr. Rudiger Frey Dr. Armin Holle Gerhard WeiB
DE 4 108 462 28.04.94
EP 0 503 748 11.12.96
US 5 294 797 28.04.94
B2524 Family: TOF Owner: BFA Priority: 05.09.91
German Title: Verfahren und Detektor zum Nachweis schwerer Molekulionen in
einem Flugzeitmassenspektrometer
English Title: Method and detector for detecting heavy molecule ions in a
time-of-flight mass
Inventors: Dr. Armin Holle
DE 4 129 791 17.06.93
B2534 Family: XQ Owner: BFA Priority: 27.11.91
German Title: Verfahren zum Isolieren von Ionen einer auswahlbaren Masse
English Title: Method of clean removal of ions
Inventors: Dr. Jochen Franzen
German Title: Verfahren und Vorrichtung fur phasenrichtige Anregung des
Ionenauswurfs aus Ionenfallen-Massenspektrometern
English Title: Method and device for in-phase excitation of ion ejection from
ion trap mass spectrometers
Inventors: Dr. Jochen Franzen
DE 41 42 871 19.05.93
GB 9 226 835 03.05.95
US 5 347 127 13.09.94
BDAL.DE Page 4
02/91 Family: XQ Owner: BFA Priority: 23.12.91
German Title: Verfahren fur phasenrichtiges Messen der Ionen aus
Ionenfallen-Massenspektrometern
English Title: Method and device for in-phase measuring of ions from ion trap
mass spectrometers
Inventors: Dr. Jochen Franzen
German Title: Verfahren und Vorrichtung fur die Steuerung der
Anregungsspannung fur den Ionenauswurf aus
Ionenfallen-Massenspektrometern
English Title: Method and device for control of the excitation voltage for ion
ejection from ion trap mass spectrometers
Inventors: Dr. Jochen Franzen
DE 41 42 869 19.05.93
GB 2 263 191 30.08.95
US 5 298 746 29.03.94
01/92 Family: EM Owner: BFA Priority: 20.01.92
German Title: Einla(beta)ventil fur ein Hochvakuum-Analysengerat mit
Bypass-Bepumpung
English Title: Inlet valve for a high vacuum analyzer with a bypass evacuation
Inventors: Dr. Jochen Franzen Gerhard WeiB Alfred Kraffert
German Title: Vorrichtung fur die massenspektrometrische Untersuchung
schneller organischer Ionen
English Title: Method and device for the mass spectrometric examination of
fast organic ions
Inventors: Dr. Jochen Franzen
DE 42 02 123 02.11.94
US 5 373 156 13.12.94
04/92 Family: EM Owner: BFA Priority: 27.02.92
German Title: Verfahren und Vorrichtung zur Aufbereitung fester Proben mit
Hilfe pyrolytischer Verdampfung fur eine Analyse mittels eines
Massenspektrometers oder eines Gaschromatographen
English Title:
Inventors: Dr. Gokhan Baykut Anatoly Schiller
DE 42 06 109 24.01.94
BDAL.DE Page 5
P5997 Family: MM Owner: BFA Priority: 13.11.92
German Title: Mobiles Massenspektrometer mit einer Probenahmevorrichtung mit
drehbarem Spurrad mit Metallfelge
English Title: Sampling device comprising a revolvable sampling wheel with a
metal wheel rim
Inventors: Dr. Dieter Koch G. Menne Alfred Kraffert R. Spudich
Gerhard WeiB
DE 4 238 399 27.08.93
FR 9 312 064 22.12.95
GB 2 272 518 10.07.96
US 5 437 203 01.08.95
10/93 Family: TOF Owner: BFA Priority: 26.02.93
German Title: Verfahren und Vorrichtung zur quantitativen Analyse von
Gasgemischen mittels resonanter Laser-Massenspektrometrie bei stark
fluktuierenden Me(beta)signalen
English Title:
Inventors: Christian Weikhardt Priv.Doz. U. Boesl Prof. E. W. Schlag
DE 43 05 981
01/93 Family: XQ Owner: BFA Priority: 19.05.93
German Title: Verfahren zur digitalen Erzeugung einer zusatzlichen
Wechselspannung fur die resonante Anregung von Ionen in Ionenfallen
English Title: Method and device for the digital generation of an additional
alternating voltage for the resonant excitation of ions in an ion trap
Inventors: Dr. Jochen Franzen Gerhard Heinen Dr. R.-H. Gabling
German Title: Auswurf von Ionen aus Ionenfallen durch kombinierte elektrische
Dipol- und Quadrupolfelder
English Title: Ejection of ions from ion traps by combined electrical dipole
and quadrupole fields
Inventors: Dr. Jochen Franzen
German Title: Nachweis schwerer Ionen in einem Flugzeitmassenspektrometer
English Title: Detection of very large molecular ions in a time-of-flight mass
spectrometer
Inventors: Dr. Armin Holle
DE 43 16 805 06.03.97
GB 2 278 494 25.09.96
US 5 463 218 31.10.95
BDAL.DE Page 6
04/93 Family: XQ Owner: BFA Priority: 20.07.93
German Title: Quadrupol-Ionenfallen mit schaltbaren Multipolanteilen
English Title: Quadrupole ion trap with switchable multipole fractions
Inventors: Dr. Jochen Franzen Dr. Yang Wang
German Title: Verfahren zur Auswahl der Reaktionspfade in Ionenfallen
English Title: Method of selecting reaction paths in ion traps
Inventors: Dr. Jochen Franzen Dr. R.-H. Gabling
German Title: Verfahren fur eine Regelung der Raumladung in Ionenfallen
English Title: Method of automatically controlling the space charge in ion
traps
Inventors: Dr. Jochen Franzen
German Title: Verfahren zur Ionisierung von gelosten Atomen oder Molekulen aus
Flussigkeiten durch elektrisches Verspruhen
English Title: Method of ionizing atoms or molecules by electrospraying
Inventors: Dr. Matthias Mann Matthias Wilm
US 5 504 329 02.04.96
03/94 Family: TOF Owner: BFA Priority: 10.03.94
German Title: Verfahren zur massenspektrometrischen Analyse von Proben aus
2-D-Gel-Elektrophoreseplatten mit matrixunterstutzter, ionisierender
Laserdesorption
English Title: Method for mass spectrometric analysis of samples from
electrophoresis plates
Inventors: Dr. Jochen Franzen
German Title: Virtueller Impaktor mit schlitzformigen Dusen
English Title: Virtual impactor
Inventors: Dr. Ulrich Geise
DE 44 15 014 29.07.96
GB 2 280 305 02.04.97
US 5 533 406 09.07.96
BDAL.DE Page 7
06/94 Family: XQ Owner: BFA Priority: 03.05.94
German Title: Vorrichtung und Verfahren zur massenspektrometrischen
Untersuchung von Substanzgemischen durch Kopplung kapillarelektrophoretischer
Separation (CE) mit Elektrospray-Ionisation (ESI)
English Title: Device and method for mass spectrometric analysis of substance
mixtures by coupling capillary electrophoretic separation (CE) with electrospray
ionization (ESI)
Inventors: Dr. Jochen Franzen Dr. Frank Laukien
DE 44 15 480 02.09.99
GB 2 289 161 08.04.98
US 5 505 832 09.04.96
07/94 Family: XQ Owner: BFA Priority: 19.07.94
German Title: Verfahren zur Sto(beta)induzierten Fragmentierung von Ionen in
Ionenfallen
English Title: Collisionally induced decomposition of ions in nonlinear ion
traps
Inventors: Dr. Jochen Franzen
German Title: Verfahren und Vorrichtung zur Elektrospruh-Ionisierung fur
speichernde Massenspektrometer
English Title: Electrospraying Method for mass spectrometric analysis
Inventors: Dr. Jochen Franzen Dr. Matthias Mann Matthias Wilm
DE 44 44 229 25.07.96
GB 2 288 061 15.10.97
US 5,608,217
P6403 Family: TOF Owner: BFA Priority: 29.11.94
German Title: Verfahren und Vorrichtung zur verbesserten Massenauflosung eines
Flugzeitmassenspektrometers mit Ionenreflektor
English Title: Device and method for the improved mass resolution of
time-of-flight mass spectrometer with ion reflector
Inventors: Dr. Frank Laukien Prof. J. Grotemeyer Dr. Claus Koster
Johann Grundwurmer
DE 44 42 348
GB 9 524 247 29.07.98
US 5,739,529 14.04.98
11/95 Family: XQ Owner: BFA Priority: 21.01.95
German Title: Verfahren zur Anregung der Schwingungen von Ionen in Ionenfallen
mit Frequenzgemischen
English Title: Method for exciting the oscillations of ions in ion traps with
frequency mixtures
Inventors: Dr. Jochen Franzen Dr. Michael Schubert
DE 195 01 835 08.01.98
GB 2 297 192 28.10.98
US 5 654 542
BDAL.DE Page 8
12/95 Family: XQ Owner: BFA Priority: 21.01.95
German Title: Verfahren zur Regelung der Erzeugungsrate fur massenselektives
Einspeichern von Ionen in Ionenfallen
English Title: Method for controlling the ion generation rate for mass
selective loading of ions in ion traps
Inventors: Dr. Jochen Franzen Dr. Michael Schubert
GB 2 297 191 04.11.98
US 5,710,427 20.01.98
13/95 Family: CB Owner: BFA Priority: 09.02.95
German Title: Virtuelle Impaktoren mit schlitzformigen Dusen ohne Schlitzende
English Title: Virtual impactors with slit shaped nozzles without slit ends
Inventors: Dr. Ulrich Geise
DE 195 04 275 10.02.00
GB 2 297 706 28.07.99
US 5,858,043 12.01.99
16/95 Family: XQ Owner: BFA Priority: 28.03.95
German Title:
English Title: Method for ionization of heavy molecules at atmospheric
pressure
Inventors: Dr. Jochen Franzen Dr. Claus Koster
GB 2 299 445 09.12.98
US 5 663 561 02.09.97
17/95 Family: TOF Owner: BFA Priority: 28.03.95
German Title: Verfahren und Vorrichtung fur orthogonalen Einschu(beta)von
Ionen in ein Flugzeit-Massenspektrometer
English Title: Method and device for orthogonal ion injection into a
time-of-flight mass spectrometer
Inventors: Dr. Jochen Franzen
DE 195 11 333 26.03.96
GB 2 299 446 25.11.98
US 5,763,878 09.06.98
18/95 Family: IMS Owner: BSA Priority: 26.04.95
German Title: Verfahren zur Messung von Ionenmobilitatsspektren
English Title: Method of measuring ion mobility spectra
Inventors: Dr. Jochen Franzen
German Title: Vorrichtung fur den gasgefuhrten Transport von Ionen durch
Kapillarrohr
English Title: Method and device for transport of ions in gas through a
capillary
Inventors: Dr. Jochen Franzen
DE 195 15 271 02.09.99
GB 2 300 295 14.10.98
US 5,736,740 07.04.98
BDAL.DE Page 9
20/95 Family: XQ Owner: BFA Priority: 12.05.95
German Title: Hochfrequenz-Ionenleitsystem
English Title: Method and device for the transport of ions in vacuum
Inventors: Dr. Jochen Franzen
German Title: Vorrichtung fur die Einfuhrung von Ionen in ein
Massenspektrometer
English Title: Method and device for the introduction of ions into the gas
stream of an aperture to a mass
spectrometer
Inventors: Dr. Jochen Franzen
DE 195 20 276 26.08.99
GB 2 301 703 22.10.99
US 5,747,799 05.05.98
23/95 Family: XQ Owner: BFA Priority: 02.06.95
German Title:
English Title: Method and device for the introduction of ions into quadrupole
ion traps
Inventors: Dr. Jochen Franzen
German Title: Ionenfallen-Massenspektrometer mit vakuum-externer
Ionenerzeugung
English Title: Ion trap mass spectrometer with vacuum-external ion generation
Inventors: Dr. Jochen Franzen
German Title: Verfahren und Vorrichtung fur die Reflektion von geladenen
Teilchen
English Title: Method and device for the reflection of charged particles on
surfaces
Inventors: Dr. Jochen Franzen
German Title: Zwischenspeichern von Ionen fur massenspektrometrische
Untersuchungen
English Title: Temporary storage of ions for mass spectrometric analyses
Inventors: Dr. Jochen Franzen Dr. Michael Schubert
EP 0 738 000 A 16.02.00
US 5,811,800 22.09.98
BDAL.DE Page 10
28/95 Family: TOF Owner: BFA Priority: 19.09.95
German Title: Verbesserte Massenauflosung in Flugzeitmassenspektrometern mit
Reflektoren
English Title: Mass Resolution in time-of-flight mass spectrometers with
reflectors
Inventors: Dr. Armin Holle Dr. Claus Koster Dr. Jochen Franzen
US 5 654 545 05.08.97
30/95 Family: TOF Owner: BFA Priority: 27.11.95
German Title: Verfahren und Vorrichtungen zur Massenspektrometrie von
Tochterionen
English Title: Method for time-of-flight mass spectrometry of daughter ions
Inventors: Dr. Claus Koster
DE 195 44 808
US 5,734,161 31.03.98
31/95 Family: TOF Owner: BFA Priority: 14.12.95
German Title: Flugzeitmassenspektrometrie verbesserter Massenauflosung durch
Schalten einer Zwischenblende
English Title: Method for improved mass resolution with a TOF-LD source
Inventors: Dr. Armin Holle Dr. Claus Koster Dr. Jochen Franzen
US 5 641 959 24.06.97
32/95 Family: TOF Owner: BFA Priority: 15.12.95
German Title: Flugzeitmassenspektrometrie mit verbesserter Massenauflosung
English Title: Methjod of improving mass resolution in time-of-flight mass
spectrometry
Inventors: Dr. Armin Holle Dr. Claus Koster Dr. Jochen Franzen
US 195 47 949
US 5,742,049 21.04.98
34/96 Family: TOF Owner: BFA Priority: 24.04.96
German Title: Verfahren zur matrix-unterstutzten ionisierenden Laserdesorption
English Title: Method for matrix-assisted laser desorption and ionization
Inventors: Dr. Claus Koster Dr. Jochen Franzen
US 5,828,063 27.11.98
36/96 Family: TOF Owner: BFA Priority: 03.05.96
German Title: Lagerfahig vorpraparierte MALDI-Probentrager
English Title: Prefabricated MALDI layers suitable for storage
Inventors: Dr. Claus Koster Dr. Jochen Franzen Dr. Detlef Suckau
DE 196 18 032
37/96 Family: XQ Owner: BFA Priority: 20.06.96
German Title: Vorrichtung und Verfahren zum Einschuss von Ionen in eine
Ionenfalle
English Title: Method and device for injection of ions into an ion trap
Inventors: Dr. Jochen Franzen
DE 196 28 179 24.11.97
US 5,818,055 06.10.98
BDAL.DE Page 11
38/96 Family: TOF Owner: BFA Priority: 01.07.96
German Title: Vorrichtung zum Einschleusen von Probentragern in ein
Massenspektrometer
English Title: Device and method for introduction of sample supports into a
mass spectrometer
Inventors: Dr. Armin Holle Dr. Claus Koster Rebettge
US 5,841,136 24.11.98
39/96 Family: TOF Owner: BFA Priority: 02.07.96
German Title: Verfahren zum Beladen von Probentragern fur Massenspektrometer
English Title: Method for loading sample supports for mass spectrometers
Inventors: Dr. Jochen Franzen
DE 196 28 178 18.09.97
US 5,770,860 23.06.98
41/96 Family: TOF Owner: BFA Priority: 15.08.96
German Title: Verfahren und Vorrichtung fur die genaue Massenbestimmung in
einem Flugzeitmassenspektrometer
English Title: Adjustment of sample support in time-of-flight mass
spectrometers
Inventors: Dr. Claus Koster Dr. Armin Holle Dr. Jochen Franzen
DE 196 33 441 26.02.98
US 5,910,656 08.06.99
42/96 Family: ICR Owner: BFA Priority: 19.08.96
German Title: Vorrichtung zur Uberfuhrung von Ionen und mit dieser
durchgefuhrtes Messverfahren
English Title: Introduction of ions from ion sources into mass spectrometers
Inventors: Dr. Gokhan Baykut
DE 196 29 134
US 5,825,026 20.10.98
43/96 Family: TOF Owner: BFA Priority: 20.08.96
German Title: Genaue Massensbestimmung mit MALDI-Flugzeitmassenspektrometern
English Title: Exact mass determination with MALDI time-of-flight mass
spectrometers
Inventors: Dr. Jochen Franzen Dr. Claus Koster
DE 196 33 507 21.12.97
US 5,869,830 09.02.99
44/96 Family: TOF Owner: BFA Priority: 30.08.96
German Title: Korrektur der Massenbestimmung mit
MALDI-Flugzeitmassenspektrometern
English Title: Accurate mass determination with MALDI time-of-flight mass
spectrometers using internal
reference substances
Inventors: Dr. Claus Koster Dr. Jochen Franzen Dr. Armin Holle
DE 196 35 646 29.01.98
US 5,886,345 23.03.99
BDAL.DE Page 12
45/96 Family: TOF Owner: BFA Priority: 30.08.96
German Title: Hochstauflosendes lineares Flugzeitmassenspektrometer
English Title: Linear time-of-flight mass spectrometer with high mass
resolution
Inventors: Dr. Jochen Franzen
US 5,905,259 18.05.99
46/96 Family: TOF Owner: BFA Priority: 31.08.96
German Title: Hochauflosende Ionendetektion fur lineare
Flugzeitmassenspektrometer
English Title: High resolution ion detection for linear time-of-flight mass
spectrometers
Inventors: Dr. Jochen Franzen
US 5,898,173 27.04.99
47/96 Family: TOF Owner: BFA Priority: 09.09.96
German Title: Hochstauflosende Geometrie fur lineares
Flugzeitmassenspektrometer
English Title: Geometry for a linear time-of-flight mass spectrometer with
very high resolution
Inventors: Dr. Jochen Franzen
US 5,898,174 27.04.99
48/96 Family: TOF Owner: BFA Priority: 13.09.96
German Title: Simultane Fokussierung aller Massen in
Flugzeitmassenspektrometern
English Title: Wide mass range focusing in time-of-flight mass spectrometers
Inventors: Dr. Jochen Franzen
DE 196 38 577 15.01.98
US 5,969,348 19.10.99
50/97 Family: TOF Owner: BFA Priority: 24.02.97
German Title: Zwei-Schritt-Verfahren der DNA-Amplifikation fur
MALDI-TOF-Messungen
English Title: Two-step method of DNA amplification for MALDI-TOF measurement
Inventors: Dr. Ivo Gut Dr. Jochen Franzen
DE 197 10 166 10.12.98
51/97 Family: XQ Owner: B+H Priority: 04.03.97
German Title: Verfahren der vergleichenden Analyse mit
Ionenfallen-Massenspektrometern
English Title: Methods of comparative analyses using ion trap mass
spectrometers
Inventors: Dr. Michael Schubert Dr. John Fjeldsted Dr. Jochen Franzen
US 5,903,003 11.05.99
52/97 Family: XQ Owner: B+H Priority: 04.03.97
German Title: Verfahren der Raumladungsregelung von Tochterionen in
Ionenfallen
English Title: Method for space-charge control of daughter ions in ion traps
Inventors: Dr. Jochen Franzen Dr. Michael Schubert
US 5,936,241 10.08.99
BDAL.DE Page 13
53/97 Family: TOF Owner: BFA Priority: 14.04.97
German Title: Verfahren und Gerate fur extrem schnelle DNA-Vervielfachung
durch Polymerase-Kettenreaktionen (PCR)
English Title: Methods for extremely fast DNA replication by polymerase chain
reactions (PCR)
Inventors: Dr. Jochen Franzen
DE 197 17 085 17.06.99
54/97 Family: XQ Owner: B+H Priority: 04.08.97
German Title: Axialsymmetrische Ionenfalle fur massenspektrometrische
Messungen
English Title: Ion trap mass spectrometer of high mass-constancy
Inventors: Gerhard WeiB Alfred Kraffert Dr. Michael Schubert
Dr. Jochen Franzen
DE 197 33 834 04.03.99
55/97 Family: TOF Owner: BFA Priority: 30.08.97
German Title: Flugzeitmassenspektrometer mit thermokompensierter Fluglange
English Title: Time-of-flight mass spectrometer with constant flight path
length
Inventors: Dr. Jochen Franzen
US 6,049,077 11.04.00
59/97 Family: TOF Owner: BFA Priority: 08.12.97
German Title: Probentrager fur die MALDI-Massenspektrometrie nebst Verfahren
zur Herstellung der Platten und zum Aufbringen der Proben
English Title: Sample support plates for MALDI mass spectrometry including
methods for manufacture of plates and application of samples
Inventors: Dr. Martin Dr. Jochen Franzen
DE 197 54 978
61/98 Family: TOF Owner: BFA Priority: 26.01.98
German Title: Massenspektrometrisches Verfahren zur genauen Massenbestimmung
unbekannter Ionen
English Title: Mass spectrometry method for accurate mass determination of
unknown ions
Inventors: Dr. Claus Koster
DE 198 03 309 07.10.99
62/98 Family: TOF Owner: BFA Priority: 23.02.98
German Title: Verfahren zur qualitativen Schnellauswertung analytischer
Massenspektren
English Title: Method of fast evaluation of analytical mass spectra
Inventors: Dr. Jochen Franzen
DE 198 08 584 26.08.99
66/98 Family: TOF Owner: BFA Priority: 10.06.98
German Title: Thermostabile Flugzeiten in Flugzeitmassenspektrometern
English Title: Method and apparatus for thermally stabilizing flight times in
time-of-flight mass spectrometers
Inventors: Horst Rache
DE 198 27 841 10.02.00
BDAL.DE Page 14
71/98 Family: DA Owner: BFA Priority: 28.09.98
German Title: Verfahren fur die interaktive Steuerung von Me(beta)- oder
Auswerteverfahren in Chromatographie, Spektroskopie oder Elektrophorese
English Title: Method of using the mouse for interactive control in
chromatography or spectroscopy
Inventors: Dr. Carsten Bassmann
DE 198 45 699 02.12.99
BDAL.DE Page 15
Bruker Daltonik GmbH, Bremen: Patent Applications as of 12. Apr. 00
(in sequence of priority dates)
P5511 Family: CB Owner: BFA Priority: 18.02.89
German Titel:
English Titel: Method and instrument for mass analyzing samples with a quistor
Inventors: Dr. Jochen Franzen Dr. R.-H. Gabling Gerhard Heinen
Gerhard WeiB
P5997 Family: MM Owner: BFA Priority: 13.11.92
German Title: Mobiles Massenspektrometer mit einer Probenahmevorrichtung mit
drehbarem Spurrad mit Metallfelge
English Titel: Sampling device comprising a revolvable sampling wheel with a
metal wheel rim
Inventors: Dr. Dieter Koch G. Menne Alfred Kraffert R. Spudich
Gerhard WeiB
18/95 Family: IMS Owner: BSA Priority: 26.04.95
German Title: Verfahren zur Messung von Ionenmobilitatsspektren
English Titel: Method of measuring ion mobility spectra
Inventors: Dr. Jochen Franzen
28/95 Family: TOF Owner: BFA Priority: 19.09.95
German Title: Verbesserte Massenauflosung in Flugzeitmassenspektrometern mit
Reflektoren
English Titel: Mass Resolution in time-of-flight mass spectrometers with
reflectors
Inventors: Dr. Armin Holle Dr. Claus Koster Dr. Jochen Franzen
30/95 Family: TOF Owner: BFA Priority: 27.11.95
German Title: Verfahren und Vorrichtungen zur Massenspektrometrie von
Tochterionen
English Titel: Method for time-of-flight mass spectrometry of daughter ions
Inventors: Dr. Claus Koster
32/95 Family: TOF Owner: BFA Priority: 15.12.95
German Title: Flugzeitmassenspektrometrie mit verbesserter Massenauflosung
English Titel: Methjod of improving mass resolution in time-of-flight mass
spectrometry
Inventors: Dr. Armin Holle Dr. Claus Koster Dr. Jochen Franzen
33/96 Family: TOF Owner: BFA Priority: 08.03.96
German Title: Ionisierung schwerer Molekule bei Atmospharendruck
English Titel: Method for the ionization of heavy molecules at atmospheric
pressure
Inventors: Dr. Jochen Franzen Dr. Claus Koster
BDAL.DE Patent Page 1
34/96 Family: TOF Owner: BFA Priority: 24.04.96
German Title: Verfahren zur matrix-unterstutzten ionisierenden Laserdesorption
English Titel: Method for matrix-assisted laser desorption and ionization
Inventors: Dr. Claus Koster Dr. Jochen Franzen
GB 2 299 445 A
36/96 Family: TOF Owner: BFA Priority: 03.05.96
German Title: Lagerfahig vorpraparierte MALDI-Probentrager
English Titel: Prefabricated MALDI layers suitable for storage
Inventors: Dr. Claus Koster Dr. Jochen Franzen Dr. Detlef Suckau
37/96 Family: XQ Owner: BFA Priority: 20.06.96
German Title: Vorrichtung und Verfahren zum Einschuss von Ionen in eine
Ionenfalle
English Titel: Method and device for injection of ions into an ion trap
Inventors: Dr. Jochen Franzen
38/96 Family: TOF Owner: BFA Priority: 01.07.96
German Title: Vorrichtung zum Einschleusen von Probentragern in ein
Massenspektrometer
English Titel: Device and method for introduction of sample supports into a
mass spectrometer
Inventors: Dr. Armin Holle Dr. Claus Koster Jens Rebettge
39/96 Family: TOF Owner: BFA Priority: 02.07.96
German Title: Verfahren zum Beladen von Probentragern fur Massenspektrometer
English Titel: Method for loading sample supports for mass spectrometers
Inventors: Dr. Jochen Franzen
41/96 Family: TOF Owner: BFA Priority: 15.08.96
German Title: Verfahren und Vorrichtung fur die genaue Massenbestimmung in
einem Flugzeitmassenspektrometer
English Titel: Adjustment of sample support in time-of-flight mass
spectrometers
Inventors: Dr. Claus Koster Dr. Armin Holle Dr. Jochen Franzen
42/96 Family: ICR Owner: BFA Priority: 19.08.96
German Title: Vorrichtung zur Uberfuhrung von Ionen und mit dieser
durchgefuhrtes Messverfahren
English Titel: Introduction of ions from ion sources into mass spectrometers
Inventors: Dr. Gokhan Baykut
BDAL.DE Patent Page 2
43/96 Family: TOF Owner: BFA Priority: 20.08.96
German Title: Genaue Massensbestimmung mit MALDI-Flugzeitmassenspektrometern
English Titel: Exact mass determination with MALDI time-of-flight mass
spectrometers
Inventors: Dr. Jochen Franzen Dr. Claus Koster
44/96 Family: TOF Owner: BFA Priority: 30.08.96
German Title: Korrektur der Massenbestimmung mit
MALDI-Flugzeitmassenspektrometern
English Titel: Accurate mass determination with MALDI time-of-flight mass
spectrometers using internal reference substances
Inventors: Dr. Claus Koster Dr. Jochen Franzen Dr. Armin Holle
45/96 Family: TOF Owner: BFA Priority: 30.08.96
German Title: Hochstauflosendes lineares Flugzeitmassenspektrometer
English Titel: Linear time-of-flight mass spectrometer with high mass
resolution
Inventors: Dr. Jochen Franzen
46/96 Family: TOF Owner: BFA Priority: 31.08.96
German Title: Hochauflosende Ionendetektion fur lineare
Flugzeitmassenspektrometer
English Titel: High resolution ion detection for linear time-of-flight mass
spectrometers
Inventors: Dr. Jochen Franzen
47/96 Family: TOF Owner: BFA Priority: 09.09.96
German Title: Hochstauflosende Geometrie fur lineares
Flugzeitmassenspektrometer
English Titel: Geometry for a linear time-of-flight mass spectrometer with
very high resolution
Inventors: Dr. Jochen Franzen
48/96 Family: TOF Owner: BFA Priority: 13.09.96
German Title: Simultane Fokussierung aller Massen in
Flugzeitmassenspektrometern
English Titel: Wide mass range focusing in time-of-flight mass spectrometers
Inventors: Dr. Jochen Franzen
49/96 Family: TOF Owner: BFA Priority: 25.10.96
German Title: Hochauflosender Hochmassendetektor fur
Flugzeitmassenspektrometer
English Titel: Ion detector
Inventors: Dr. Claus Koster
BDAL.DE Patent Page 3
50/97 Family: TOF Owner: BFA Priority: 24.02.97
German Title: Zwei-Schritt-Verfahren der DNA-Amplifikation fur
MALDI-TOF-Messungen
English Titel: Two-step method of DNA amplification for MALDI-TOF measurement
Inventors: Dr. Ivo Gut Dr. Jochen Franzen
51/97 Family: XQ Owner: B+H Priority: 04.03.97
German Title: Verfahren der vergleichenden Analyse mit
Ionenfallen-Massenspektrometern
English Titel: Methods of comparative analyses using ion trap mass
spectrometers
Inventors: Dr. Michael Schubert Dr. John Fjeldsted Dr. Jochen Franzen
52/97 Family: XQ Owner: B+H Priority: 04.03.97
German Title: Verfahren der Raumladungsregelung von Tochterionen in
Ionenfallen
English Titel: Method for space-charge control of daughter ions in ion traps
Inventors: Dr. Jochen Franzen Dr. Michael Schubert
GB 2 322 961
53/97 Family: TOF Owner: BFA Priority: 14.04.97
German Title: Verfahren und Gerate fur extrem schnelle DNA-Vervielfachung
durch Polymerase-Kettenreaktionen (PCR)
English Titel: Methods for extremely fast DNA replication by polymerase chain
reactions (PCR)
Inventors: Dr. Jochen Franzen
54/97 Family: XQ Owner: B+H Priority: 04.08.97
German Title: Axialsymmetrische Ionenfalle fur massenspektrometrische
Messungen
English Titel: Ion trap mass spectrometer of high mass-constancy
Inventors: Gerhard WeiB Alfred Kraffert Dr. Michael Schubert
Dr. Jochen Franzen
55/97 Family: TOF Owner: BFA Priority: 30.08.97
German Title: Flugzeitmassenspektrometer mit thermokompensierter Fluglange
English Titel: Time-of-flight mass spectrometer with constant flight path
length
Inventors: Dr. Jochen Franzen
GB 2 329 066
BDAL.DE Patent Page 4
56/97 Family: XQ Owner: B+H Priority: 17.11.97
German Title: Quadrupol-Hochfrequenz-Ionenfallen fur Massenspektrometer
English Titel: Quadrupole RF ion traps for mass spectrometers
Inventors: Dr. Jochen Franzen Prof.Dr. Arne Kasten
57/97 Family: XQ Owner: B+H Priority: 25.11.97
German Title: Vorselektion extern erzeugter Ionen fur Quadrupol-Ionenfallen
English Titel: Preselection of externally generated ions for quadrupole ion
traps
Inventors: Dr. Michael Schubert Dr. Jochen Franzen
59/97 Family: TOF Owner: BFA Priority: 08.12.97
German Title: Probentrager fur die MALDI-Massenspektrometrie nebst Verfahren
zur Herstellung der Platten und zum Aufbringen der Proben
English Titel: Sample support plates for MALDI mass spectrometry including
methods for manufacture of plates and application of samples
Inventors: Dr. Martin Schurenberg Dr. Jochen Franzen
60/98 Family: TOF Owner: BFA Priority: 19.01.98
German Title: Verfahren zur bevorzugten Herstellung nur eines Stranges
selektierten Genmaterials fur massenspektrometrische Messungen
English Titel: Method for preferred production of only one strand of selected
genetic material for mass spectrometric measurements
Inventors: Dr. Jorn Mosner Dr. Jochen Franzen
61/98 Family: TOF Owner: BFA Priority: 26.01.98
German Title: Massenspektrometrisches Verfahren zur genauen Massenbestimmung
unbekannter Ionen
English Titel: Mass spectrometry method for accurate mass determination of
unknown ions
Inventors: Dr. Claus Koster
BDAL.DE Patent Page 5
62/98 Family: TOF Owner: BFA Priority: 23.02.98
German Title: Verfahren zur qualitativen Schnellauswertung analytischer
Massenspektren
English Titel: Method of fast evaluation of analytical mass spectra
Inventors: Dr. Jochen Franzen
65/98 Family: TOF Owner: BFA Priority: 30.04.98
German Title: Mutationsanalyse mitteld Massenspektrometrie
English Titel: Mutation analysis using mass spectrometry
Inventors: Dr. Ivo Gut
66/98 Family: TOF Owner: BFA Priority: 10.06.98
German Title: Thermostabile Flugzeiten in Flugzeitmassenspektrometern
English Titel: Method and apparatus for thermally stabilizing flight times in
time-of-flight mass spectrometers
Inventors: Horst Rache
GB 2 338 824
67/98 Family: TOF Owner: BFA Priority: 15.06.98
German Title: Ionisierung hochmolekularer Substanzen durch Laserdesorption aus
flussigen Matrices
English Titel: Ionization of high-molecular substances by laser desorption
from liquid matrices
Inventors: Dr. Claus Koster Dr. Jochen Franzen
GB 2 340 298
68/98 Family: TOF Owner: BFA Priority: 20.06.98
German Title: Me(beta)verfahren fur Polymorphismen und Mutationen in
Nukleinsauren
English Titel: Methods of screening nucleic acids using mass spectrometry
Inventors: Thomas Bonk Dr. Andreas Humeny Prof. Cord-Michael
Prof. M. von Knebel Dr. Jochen Franzen
70/98 Family: XQ Owner: BFA Priority: 28.09.98
German Title: Verfahren zur Darstellung von Tochterionespektren der
Ionenfallen-Massenspektrometrie
English Titel: Methods for library searches and extraction of structural
information from daughter ion spectra in ion trap mass spectrometry
Inventors: Dr. Jochen Franzen
BDAL.DE Patent Page 6
71/98 Family: DA Owner: BFA Priority: 28.09.98
German Title: Verfahren fur die interaktive Steuerung von Me(beta)- oder
Auswerteverfahren in Chromatographie, Spektroskopie oder Elektrophorese
English Titel: Method of using the mouse for interactive control in
chromatography or spectroscopy
Inventors: Dr. Carsten Bassmann
*72/98 Family: XQ Owner: BFA Priority: 28.09.98
German Title: Verfahren zur Verwaltung von Tochterionen uber mehrere
Generationen
English Titel: Method for management of daughter ion spectra over several
generations
Inventors: Dr. Andreas Germanus
07/98 Family: TOF Owner: BSA Priority: 10.11.98
German Title: Einfache SNP-Analyse mittels Massenspektrometrie
English Titel: Simple SNP analysis using mass spectrometry
Inventors: Dr. Markus Kostrzewa Dr. Thomas Frohlich Dr. Thomas Wenzel
74/98 Family: TOF Owner: BDAL Priority: 30.11.98
German Title: Tochterionenspektren mit Flugzeitmassenspektrometern
English Titel: Daughter ion spectra with time-of-flight mass spectrometers
Inventors: Dr. Claus Koster Dr. Armin Holle Dr. Jochen Franzen
75/99 Family: TOF Owner: BDAL Priority: 27.01.99
German Title: Validierbare Punktmutationsanalyse mittels Massenspektrometrie
English Titel:
Inventors: Dr. Ivo Gut Dr. Jochen Franzen
76/99 Family: ICR Owner: BDAL Priority: 12.03.99
German Title: Verfahren und Vorrichtung zur matrixunterstutzten
Laserdesorptions-Ionisierung von Substanzen
English Titel: A method and device for matrix assisted laser desorption
ionization of substances
Inventors: Dr. Gokhan Baykut
77/99 Family: ICR Owner: BDAL Priority: 15.05.99
German Title: Verfahren und Vorrichtung zur Regelung der Ionenzahl in
Ionenfallen-Massenspektrometern
English Titel:
Inventors: Dr. Gokhan Baykut Dr. Jochen Franzen
* This patent is used from time to time by parties to this agreement other than
BDAL in connection with the use by such parties of BDAL's HyStar software.
BDAL.DE Patent Page 7
78/99 Family: TOF Owner: BDAL Priority: 16.05.99
German Title: Aufreinigende Probentrager fur die MALDI-Massenspektrometrie
English Titel:
Inventors: Dr. Jochen Franzen
79/99 Family: TOF Owner: BDAL Priority: 30.06.99
German Title: Kopplung Dunnschicht-Chromatographie und Massenspektrometrie
(TLC/MS)
English Titel:
Inventors: Dr. F.-J. Mayer-Posner Dr. Jochen Franzen
*80/99 Family: XQ Owner: BDAL Priority: 01.07.99
German Title: Steuerung von Mess- und Auswerteverfahren mit der Computermaus
English Titel:
Inventors: Rudiger Dreier Dr: Gerd Eden Dr. Jochen Franzen
81/99 Family: XQ Owner: BDAL Priority: 12.07.99
German Title: Fragmentierung in Quadrupol-Ionenfallenmassenspektrometern
English Titel:
Inventors: Dr. Andeas Brekenfeld Dr. Michael Schubert Dr. Jochen Franzen
82/99 Family: ICR Owner: BDAL Priority: 03.08.99
German Title: Vorrichtung und Verfahren zum abwechselnden Betrieb mehrerer
Ionenquellen
English Titel:
Inventors: Dr. Gokhan Baykut
83/99 Family: TOF Owner: BDAL Priority: 01.10.99
German Title: Kompaktes Reflektor-Flugzeitmassenspektrometer hochster
Massenauflosung
English Titel:
Inventors: Dr. Armin Holle
84/99 Family: TOF Owner: BDAL Priority: 04.10.99
German Title: Prozessieren von Proben in Losung mit definiert kleiner
Wandkontaktflache
English Titel:
Inventors: Dr. Martin Schurenberg Dr. Jochen Franzen
Dr. Eckehard Nordhof Dr. Holger Eickhoff
* This patent is used from time to time by parties to this agreement other than
BDAL in connection with the use by such parties of BDAL's HyStar software.
BDAL.DE Patent Page 8
85/99 Family: TOF Owner: BDAL Priority: 04.11.99
German Title: Kontaminationsfreie Ubertragung von Bioproben
English Titel:
Inventors: Dr. Jochen Franzen
86/99 Family: TOF Owner: BDAL Priority: 10.12.99
German Title: Ionenselektor fur Tochterionenspektren in
Flugzeitmassenspektrometern
English Titel:
Inventors: Platzhalter
87/99 Family: Owner: B+E Priority: 19.12.99
German Title: Massenspektrometrische Genotypisiserung des Gens MDR-1
English Titel:
Inventors: Platzhalter
88/00 Family: TOF Owner: BDAL Priority: 08.02.00
German Title: Gitterloses Reflektor-Flugzeitmassenspektrometer fur
orthogonalen Ioneneinschuss
English Titel:
Inventors: Dr. Jochen Franzen
89/00 Family: TOF Owner: BDAL Priority: 27.02.00
German Title: Konditionierung eines Ionenstrahls fur den Einschuss in ein
Flugzeitmassenspektrometer
English Titel:
Inventors: Dr. Jochen Franzen
90/00 Family: Owner: BDAL Priority: 06.03.00
German Title: Tandem-Massenspektrometer aus zwei Quadrupolfiltern
English Titel:
Inventors: Dr. Jochen Franzen
BDAL.DE Patent Page 9
Exhibit 10.3
MALDI-TOF Mass Spectrometry
Collaboration and OEM Agreement
between
PerkinElmer Instruments LLC and its Affiliates ("PKI")
and
Bruker Daltonics Inc. and its Affiliates ("BDAL")
1. BACKGROUND
o PKI wishes to offer and distribute a MALDI-TOF system to its North
American pharmaceutical, biotech, food and chemical industry customers, as
well as to certain international markets by Q2-2000.
o PKI requires a high-quality MALDI-TOF for a diverse range of customer
applications from a supplier with a strong reputation.
o PKI has particularly strong distribution channels into pharmaceutical and
food QA/QC, pharma/biotech and chemical manufacturing, pharma/biotech drug
development, pre-clinical and clinical trials.
o PKI also has international distribution strength in certain markets where
BDAL is not well established, e.g. Latin America, Italy, Eastern Europe,
Israel, India;
o If PKI rolls out a MALDI-TOF, it intends to sell such a product in
significant numbers. Eventually, PKI wishes to sell such a product
globally.
o Based on the performance, automation and quality of its systems, BDAL has
recently become the leading MALDI-TOF company for high-end research
applications in proteomics, PKIs, and drug discovery.
1
o BDAL has significant MALDI-TOF sales into universities, medical schools,
government research labs, and pharma/biotech research and drug discovery
labs.
o BDAL presently does not have strong distribution into industrial QA/QC,
manufacturing, clinical trials, and drug development, and BDAL does not
have complete international distribution coverage
o At Pittcon 2000, BDAL will introduce a high-performance, bench-top,
PC/NT-driven MALDI-TOF system called OmniFLEXT(TM). This new product has
very good performance/price ratio compared to otherbench-top MALDI-TOFs on
the market. It is arguably "the first bench-top MALDI-TOF worth buying".
The OmniFLEX also features an attractive industrial design, and a well
thought-out intuitive GUI.
2. OBJECTIVE
PKI and BDAL wish to enter into a strategic alliance in MALDI-TOF mass
spectrometry. In particular, PKI and BDAL wish to collaborate on the
distribution of BDAL's linear bench-top OMNIFLEXTm MALDI-TOF system via PKI's
international distribution system.
3. TERM AND NON-COMIPETE CLAUSE
Once signed by both parties this Agreement shall initially be valid until
Dec. 31, 2001 ("Phase I"). If both PKI and BDAL are satisfied with Phase I of
this Agreement, and if and when the numerical targets agreed to herein for Phase
I have been reached, then this Agreement shall be automatically extended to Dec.
31st , 2003 ("Phase 2"). Thereafter, this Agreement is renewable for additional
two-year periods by mutual written consent.
2
During the Term of this Agreement, and, except as described below, for one
(1) year following the expiration or termination of this Agreement, PKI will not
develop, manufacture, offer to sell, sell or deliver any other benchtop
MALDI-TOF system comparable to the OmniFLEX, i.e. in the selling price range
between $80,000 to $140,000, and not built by BDAL, unless BDAL cannot deliver
systems without sustained, substantial and non-solvable delivery or quality
problems which negatively impact PKI's ability to sell the OmniFLEX.
Any MALDI-TOF system manufactured and/or sold by Genomic Solutions Inc. as
part of a complete proteomics solution (presently called Investigator(TM)
proteomics solution) via PKI or other sales channels shall be specifically
excluded from this non-compete clause. Also, this non-compete clause shall not
apply if PKI acquires an instrument company with a MALDI-TOF product line if
that line represents less than 30% of the acquired company's business. Finally,
this non-compete clause shall not apply if BDAL is not willing to sell and
deliver OmniFLEX systems to PKI, for example by refusing to extend this
Collaboration into a Phase 2 (see below), even though PKI may have achieved the
minimum quantities of Phase I (see below).
4. PRODUCT DEFINITION & CO-LABELLING
The mass spectrometer that may be resold by PKI as an authorized
OEM-dealer for BDAL is a linear OMNIFLEX(TM) MALDI-TOF, as described in
Attachment A, which will meet the specifications contained in Attachment B. PKI
may also resell additional BDAL MALDI-TOF accessories, such as MAP(TM) MALDI
AutoPrep robots, AnchorChip(TM) high-sensitivity targets, various
post-processing software packages, and MALDI-TOF consumables (collectively the
"Accessories"), which are described on
3
BDAL's standard U.S. MALDI-TOF price list from time to time. The linear OmniFLEX
system to be sold by PKI will be co-labeled with both, equally-sized PKI and
BDAL decals on the system.
If, during the term of this Agreement BDAL introduces a system that
replaces or supersedes the OmniFLEX or introduces new Accessories, BDAL will
sell such products to PKI under the terms of this Agreement.
PKI is specifically not authorized to sell the reflector version of the
OmniFLEX. If a research customer absolutely needs a reflector OmniFLEX system
from the beginning, then PKI will pass this customer lead on to BDAL. The only
exception to this policy is that PKI upon specific request by its linear
OmniFLEX customer, may sell the reflector upgrade to PKI linear OmniFLEX
customers who have accepted their PKI-purchased linear OnmiFLEX more than twelve
(12) months before those customers request an upgrade. The transfer price to PKI
will be the BDAL U.S. list price minus a 10% finders' fee for PKI. BDAL will
install the reflector upgrade, and provide a limited 90-day warranty on the
reflector upgrade. Moreover, PKI agrees not to incentivize its sales force or
product manager for reflectron upgrades sold via PKI to its customer base of
linear OmniFLEX customers.
For customer leads passed from PKI to BDAL which result in an accepted
purchase order for a reflectron OmniFLEX, or a reflectron upgrade, to BDAL, BDAL
will pay PKI a 5% finder's fee of the purchase order net amount, provided that
PKI played a significant and substantial role in assisting BDAL with the systems
sale (i.e. this would apply if a joint sales call took place, but it would not
apply for passing on lists of potential customers, unqualified general leads,
etc.).
4
It is understood that BDAL itself will also continue to sell the OmniFLEX,
including a version with an optional reflector, and nothing contained in this
Agreement shall prevent BDAL from selling or distributing its OmniFLEX system
also via additional third-party distribution channels in the future.
PKI and BDAL agree that on-time deliveries and high quality are important
for the success of this Collaboration. If repeated substantially late deliveries
and major quality problems arise, PKI and BDAL will try to resolve these issues
mutually. If BDAL cannot deliver OmniFLEX systems to PKI without sustained,
substantial and non-solvable delivery or quality problems which negatively
impact PKI's ability to sell the OmniFLEX, then PKI can terminate this Agreement
with one hundred twenty (120) days written notice, including a ninety (90) day
period during which BDAL is afforded an opportunity to fix the delivery or
quality problems.
5. INTRODUCTION AND PHASE 1
PKI and BDAL intend to announce their strategic alliance and
simultaneously introduce the OmniFLEX at Pittcon 2000 on March 13th, 2000. BDAL
will loan an OmniFLEX shell or system to PKI for Pittcon 2000. If PKI can
provide paint color requests and decals to BDAL very soon, then BDAL will make a
best effort to have a co-labeled OmniFLEX shell or system in the PKI selected
colors at the PKI booth at Pittcon.
This strategic alliance will be announced in a joint mutually agreeable
pre
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