applied_defa14a.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
SCHEDULE
14A
(Rule 14A-101)
Proxy
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Securities
Exchange Act of 1934
(Amendment
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FOR IMMEDIATE
RELEASE
INVITROGEN
AND APPLIED BIOSYSTEMS AMEND MERGER AGREEMENT TO ELIMINATE TAX OPINION
CONDITION;
STOCKHOLDER
MEETINGS TO BE MOVED TO OCTOBER 28, 2008
Carlsbad, Calif. & Foster City,
Calif. – October 15, 2008 – Invitrogen Corporation (NASDAQ:IVGN) and
Applied Biosystems Inc. (NYSE:ABI) today announced that they have amended their
pending merger agreement to eliminate a condition to closing requiring that the
parties receive certain opinions of their respective counsel as to the tax
treatment of the transaction.
Under
the prior terms of the merger agreement, completion of the merger was
conditioned on the receipt of an opinion from each party's counsel to the effect
that the merger will be treated as a tax-free reorganization under Section
368(a) of the Internal Revenue Code. Given the unprecedented market
conditions of the past few weeks, and the current trading price of Invitrogen's
common stock, the parties determined that they currently might not be able to
obtain the necessary opinions because of the relative value of the cash
consideration to be received by Applied Biosystems stockholders as compared to
the value of the stock consideration they will receive. Applicable
tax regulations generally limit the percentage of the consideration that can be
paid in cash if the transaction is to qualify as a tax-free
reorganization.
In
order to allow shareholders of Invitrogen and Applied Biosystems more time to
consider the merger agreement amendment, the parties have agreed to delay their
previously scheduled special stockholder meetings in connection with the
merger. The special stockholder meetings for both Invitrogen and
Applied Biosystems will now be held on October 28, 2008. Applied
Biosystems will convene its scheduled October 16, 2008 special meeting for the
sole purpose of adjourning the meeting, and Invitrogen's scheduled October 16,
2008 special meeting will be postponed.
Although
voting on the merger is still in process, stockholders have thus far
overwhelmingly voted in favor of the merger. Any proxies or votes
already submitted by stockholders in connection with the special meetings will
remain valid, therefore, there is no need to for any stockholders to vote
again. In addition, any elections to receive cash, stock or mixed
consideration that have already been submitted by Applied Biosystems
stockholders will remain valid and will be unaffected by the delay in holding
the special meetings or the amendment of the merger agreement.
Invitrogen
and Applied Biosystems will be mailing a supplement to the joint proxy
statement/prospectus in connection with the merger that was previously sent to
stockholders of record as of the close of business on the September 5, 2008
record date. This supplement will provide detailed information
regarding the amendment to the merger agreement and the tax implications of the
merger. Stockholders are encouraged to read the supplement in its
entirety, as well as the joint proxy statement / prospectus. The
supplement will be filed with the Securities Exchange Commission and an
electronic version will be available on each company’s website.
Stockholders
who have not yet voted may do so until the special stockholder meetings, and all
proxies will remain revocable until the applicable meeting has been
concluded. Applied Biosystems stockholders who have not made their
cash, stock or mixed consideration elections may do so until the election
deadline two business days prior to the closing of the merger. All
elections will remain revocable until the election deadline.
The
parties do not expect the delay in holding the special meetings or the amendment
of the merger agreement to delay the projected closing date of the merger, which
is still expected to occur in November. In addition to the approval
of Applied Biosystems and Invitrogen stockholders, the merger is conditioned on,
among other matters, receipt of antitrust clearance under the European Council
Merger Regulation.
The
special meeting of Invitrogen shareholders to consider the proposed acquisition
of Applied Biosystems will now be held on October 28, 2008, at 9:30 a.m. Pacific
Standard Time at Invitrogen’s headquarters, 5781Van Allen Way, Carlsbad, CA
92008. Applied Biosystems' special meeting of shareholders will now
be held on October 28, 2008, at 9:00 a.m. Eastern Daylight Time at the
headquarters of Applied Biosystems, 301 Merritt 7, Norwalk, CT
06851.
Under
the U.S. tax code, if the merger qualifies as a tax-free reorganization for tax
purposes, gain realized by a U.S. holder of Applied Biosystems stock will only
be taxable to the extent of the cash portion of the merger consideration. Loss,
if any, will not be recognized at the time of the merger. If the merger does not
qualify as a tax-free reorganization, then U.S. holders of Applied Biosystems
stock will recognize gain (or loss) to the extent that the value of the cash and
stock consideration they receive exceeds (or is less than) the tax basis of the
Applied Biosystems shares they own. There should be no consequences for U.S.
holders of Invitrogen common stock if the merger does not qualify as a tax-free
reorganization. Stockholders are encouraged to obtain the advice of
their personal tax advisors to make their own determination on the tax
consequences to them of the merger.
Invitrogen
and Applied Biosystems have received opinions from their respective counsel
that, regardless of whether the merger qualifies as a tax-free reorganization,
the merger will not be taxable to either company.
About
Invitrogen
Invitrogen
Corporation (NASDAQ: IVGN) provides products and services that support academic
and government research institutions and pharmaceutical and biotech companies
worldwide in
their
efforts to improve the human condition. The company provides
essential life science technologies for disease research, drug discovery, and
commercial bioproduction. Invitrogen’s own research and development efforts are
focused on breakthrough innovation in all major areas of biological discovery
including functional genomics, proteomics, stem cells, cell therapy and cell
biology – placing Invitrogen’s products in nearly every major laboratory in the
world. Founded in 1987, Invitrogen is headquartered in Carlsbad, CA, and
conducts business in more than 70 countries around the world. The
company employs approximately 4,700 scientists and other professionals and had
revenues of approximately $1.3 billion in 2007. For more information,
visit www.Invitrogen.com.
About
Applied Biosystems Inc.
Applied
Biosystems Inc. (formerly known as Applera Corporation) is a global leader in
the development and marketing of instrument-based systems, consumables,
software, and services for academic research, the life science industry and
commercial markets. Driven by its employees' belief in the power of
science to improve the human condition, the company commercializes innovative
technology solutions for DNA, RNA, protein and small molecule
analysis. Customers across the disciplines of academic and clinical
research, pharmaceutical research and manufacturing, forensic DNA analysis, and
agricultural biotechnology use the company’s tools and services to accelerate
scientific discovery, improve processes related to drug discovery and
development, detect potentially pathogenic microorganisms, and identify
individuals based on DNA sources. Applied Biosystems has a comprehensive service
and field applications support team for a global installed base of
high-performance genetic and protein analysis solutions. Applied Biosystems is
headquartered in Norwalk, CT. Information about Applied Biosystems,
including reports and other information filed by the company with the Securities
and Exchange Commission, is available at http://www.appliedbiosystems.com. All
information in this news release is as of the date of the release, and Applied
Biosystems does not undertake any duty to update this information unless
required by law.
ADDITIONAL
INFORMATION AND WHERE TO FIND IT
In
connection with the proposed transaction, Invitrogen and Applied Biosystems have
filed a joint proxy statement/prospectus as part of a registration statement on
Form S-4 regarding the proposed transaction with the Securities and Exchange
Commission, or SEC. The definitive joint proxy statement/prospectus
has been mailed to shareholders of both companies. A supplement to
the definitive joint proxy statement / prospectus will be filed with the SEC and
mailed to stockholders of both companies. Investors and security
holders are urged to read the joint proxy statement/prospectus in its entirety,
including the supplement thereto, because it contains important information
about Invitrogen and Applied Biosystems and the proposed
transaction. Investors and security holders may obtain a free copy of
the definitive joint proxy statement/prospectus, including the supplement
thereto, and other documents at the SEC’s website at www.sec.gov. The definitive
joint proxy statement/prospectus, including the supplement thereto, and other
relevant documents may also be obtained free of charge from Invitrogen by
directing such requests to: Invitrogen Corporation, Attention: Investor
Relations, 5791 Van Allen Way, Carlsbad, CA 92008, and from Applied Biosystems
Inc. at: Applied Biosystems Inc., Attention: Investor Relations 850 Lincoln
Center Drive, Foster City, CA 94404.
PARTICIPANTS
IN THE SOLICITATION
Invitrogen
and Applied Biosystems and their respective directors, executive officers and
certain other members of their management and employees may be deemed to be
participants in the solicitation of proxies in connection with the proposed
transaction. Information concerning all of the participants in the
solicitation is included in the joint proxy statement/prospectus relating to the
proposed merger. This document is available free of charge at the
Securities and Exchange Commission’s Web site at http://www.sec.gov and from:
Invitrogen Investor Relations, telephone: 760-603-7200 or on Invitrogen’s
website at http://www.invitrogen.com; or from Applied Biosystems Investor
Relations, telephone: (650) 554-2449 or on the Applied Biosystems’ web site at
http://www.appliedbiosystems.com.
Safe
Harbor Statement
Certain
statements contained in this press release are considered "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995, and it is Invitrogen's and Applied Biosystems’ intent that such
statements be protected by the safe harbor created thereby. Forward looking
statements include but are not limited to statements regarding the timing of and
satisfaction of conditions to the merger, whether any of the anticipated
benefits of the merger will be realized, future revenues, future net income,
future cash flows, financial forecasts, future competitive positioning and
business synergies, future acquisition cost savings, future expectations that
the merger will be accretive to GAAP and cash earnings per share, future market
demand, future benefits to stockholders, future debt payments and future
economic and industry conditions. Potential risks and uncertainties
include, but are not limited to potential difficulties that may be encountered
in integrating the merged businesses; potential uncertainties regarding market
acceptance of the combined company; uncertainties as to the timing of the
merger; uncertainties regarding approval of the transaction by the stockholders
of the companies and the satisfaction of other closing conditions to the
transaction; Invitrogen’s and Applied Biosystems’ ability to protect their
respective intellectual property rights; competitive responses to the merger; an
economic downturn, including the deterioration in economic and market conditions
currently being experienced; risks that revenues following the merger may be
lower than expected; Invitrogen’s and Applied Biosystems’ ability to make
accurate estimates and control costs; Invitrogen’s and Applied Biosystems’ and
their respective partners’ ability to bid on, win, perform and renew contracts
and projects; the need to develop new products and adapt to significant
technological change; exposure to environmental liabilities and litigation;
liabilities for pending and future litigation; the impact of changes in laws and
regulations; industry competition; Invitrogen’s ability to obtain the financing
required to complete the merger, and the terms of such financing; Invitrogen’s
and Applied Biosystems’ ability to attract and retain key employees; employee,
agent or partner misconduct; risks associated with changes in equity-based
compensation requirements; Invitrogen’s and Applied Biosystems’ leveraged
position and ability to service debt; risks associated with international
operations; third-party software risks; terrorist and natural disaster risks;
anti-takeover risks and other factors; and other risks and uncertainties
detailed from time to time in Invitrogen's and Applied Biosystems’ SEC
filings.
Contact
Information:
Invitrogen
contact:
Investors:
Amanda
Clardy
(760)
603-7200
ir@invitrogen.com
|
Applied
Biosystems contact:
Investors:
Peter
Dworkin
(650)
554-2479
peter.dworkin@appliedbiosystems.com
|
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##End##
*
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FORWARD
LOOKING STATEMENTS
Some
statements made by Applied Biosystems Inc. (formerly Applera Corporation, the
“Company”) or Invitrogen Corporation (“Invitrogen”) contained in, or
incorporated by reference in, this communication are forward-looking and are
subject to a variety of risks and uncertainties. These forward-looking
statements may be identified by the use of forward-looking words or phrases such
as “believe,” “expect,” “intend,” and “anticipate,” among others. Such
forward-looking statements include statements regarding our decision to enter
into an agreement for a sale of the Company, the ability of the Company and
Invitrogen to complete the transaction contemplated by the definitive agreement,
including the parties’ ability to satisfy the conditions set forth in the
definitive agreement, and the possibility of any termination of the definitive
agreement. The forward-looking statements contained in this report are based on
our current expectations, and those made at other times will be based on our
expectations when the statements are made. We cannot guarantee that any
forward-looking statements will be realized.
The
Private Securities Litigation Reform Act of 1995 provides a “safe harbor” for
forward-looking statements. To comply with the terms of the safe
harbor, we note that a variety of factors could cause actual results and
experience to differ materially from anticipated results or other expectations
expressed in forward-looking statements. We also note that achievement of
anticipated results or expectations in forward-looking statements is subject to
the possibility that assumptions underlying forward-looking statements will
prove to be inaccurate. Investors should bear this in mind as they consider
forward-looking statements. These forward-looking statements are subject to
risks and uncertainties that may cause actual results to differ materially,
including required approvals by the stockholders of the Company and Invitrogen,
as well as of regulatory agencies, the possibility that the anticipated benefits
from the merger cannot be fully realized, the possibility that costs or
difficulties related to the integration of the Company’s operations and those of
Invitrogen will be greater than expected, the impact of competition and other
risk factors included in the Company’s and Invitrogen’s reports filed with the
SEC. The risks and uncertainties that may affect the operations, performance,
development, and results of our
business
include, but are not limited to, those described under the heading “Risks
Factors” in our Annual Report on Form 10-K for the fiscal year ended June 30,
2008, as updated by our subsequent Quarterly Reports on Form 10-Q. We
note that our business could be affected by other factors that we have not
disclosed because we think they are immaterial. Also, there may be
additional risks and uncertainties that could affect our businesses but that are
not currently known to us. Readers are cautioned not to place undue reliance on
these forward-looking statements, which speak only as of their dates. The
Company undertakes no obligation to publicly update or revise any forward
looking statements, whether as a result of new information, future events, or
otherwise.
ADDITIONAL
INFORMATION AND WHERE TO FIND IT
In
connection with the proposed merger contemplated in the Agreement and Plan of
Merger, dated as of June 11, 2008, as amended on September 9, 2008, by and among
Invitrogen, Atom Acquisition, LLC and the Company, Invitrogen filed a definitive
joint proxy statement/prospectus of the Company and Invitrogen with the
Securities and Exchange Commission (the “SEC”) on September 11,
2008. Copies of the definitive joint proxy statement/prospectus were
mailed to stockholders of the Company and Invitrogen on September 12,
2008. Investors and security holders are urged to read the definitive
joint proxy statement/prospectus because it contains important
information. You may obtain a free copy of the definitive joint proxy
statement/prospectus and other related documents filed with the SEC by the
Company and Invitrogen at the SEC’s website at www.sec.gov. The
definitive joint proxy statement/prospectus and the other documents may also be
obtained for free at the Company’s website at http://www.appliedbiosystems.com
or at Invitrogen’s website at http://www.invitrogen.com.
The
Company and Invitrogen and their respective directors and executive officers may
be deemed to be participants in the solicitation of proxies from stockholders in
respect of the transactions contemplated in connection with the proposed
merger. You can find information about the Company’s executive
officers and directors in the definitive joint proxy
statement/prospectus. You can find information about Invitrogen’s
executive officers and directors in the definitive joint proxy
statement/prospectus and in Invitrogen’s definitive proxy statement filed with
the SEC on March 5, 2008. You may obtain free copies of these
documents from the Company or Invitrogen, as applicable, by using the contact
information above.