o
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REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
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ý
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 2017
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to
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SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of event requiring this shell company report
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Title of class:
Common Shares, par value EUR 0.01 per share
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Name of each exchange on which registered:
New York Stock Exchange
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ý
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U.S. GAAP
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o
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International Financial Reporting Standards as issued by the International Accounting Standards Board
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o
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Other
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o
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Item 17
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Item 18
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Page
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Item 1.
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Item 2.
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Item 3.
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Item 4.
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Item 4A.
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Item 5.
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Item 6.
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Item 7.
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Item 8.
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Item 9.
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Item 10.
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Item 11.
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Item 12.
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Item 13.
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Item 14.
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Item 15.
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Item 16A.
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Item 16B.
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Item 16C.
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Item 16D.
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Item 16E.
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Item 16F.
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Item 16G.
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Item 16H.
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Item 17.
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Item 18.
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Item 19.
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Item 1.
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Identity of Directors, Senior Management and Advisors
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Item 2.
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Offer Statistics and Expected Timetable
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Item 3.
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Key Information
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Years ended December 31,
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||||||||||||||||||
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2017
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2016
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2015
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|
2014
|
|
2013
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||||||||||
Consolidated Statement of Income Data:
(amounts in thousands, except per share data)
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|
|
|
|
|
|
|
|
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||||||||||
Net sales
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$
|
1,417,536
|
|
|
$
|
1,337,991
|
|
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$
|
1,280,986
|
|
|
$
|
1,344,777
|
|
|
$
|
1,301,984
|
|
Cost of sales
|
494,975
|
|
|
493,338
|
|
|
454,328
|
|
|
479,570
|
|
|
487,321
|
|
|||||
Gross profit
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922,561
|
|
|
844,653
|
|
|
826,658
|
|
|
865,207
|
|
|
814,663
|
|
|||||
Operating expenses:
|
|
|
|
|
|
|
|
|
|
||||||||||
Research and development
|
154,084
|
|
|
149,841
|
|
|
146,830
|
|
|
163,666
|
|
|
147,157
|
|
|||||
Sales and marketing
|
375,562
|
|
|
376,321
|
|
|
359,598
|
|
|
376,141
|
|
|
373,719
|
|
|||||
General and administrative, restructuring, integration and other
|
200,098
|
|
|
180,573
|
|
|
102,066
|
|
|
126,637
|
|
|
200,815
|
|
|||||
Acquisition-related intangible amortization
|
39,398
|
|
|
39,091
|
|
|
38,666
|
|
|
37,070
|
|
|
35,495
|
|
|||||
Total operating expenses
|
769,142
|
|
|
745,826
|
|
|
647,160
|
|
|
703,514
|
|
|
757,186
|
|
|||||
Income from operations
|
153,419
|
|
|
98,827
|
|
|
179,498
|
|
|
161,693
|
|
|
57,477
|
|
|||||
Other expense
|
(39,044
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)
|
|
(41,919
|
)
|
|
(43,195
|
)
|
|
(42,304
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)
|
|
(25,992
|
)
|
|||||
Income before income taxes
|
114,375
|
|
|
56,908
|
|
|
136,303
|
|
|
119,389
|
|
|
31,485
|
|
|||||
Income taxes
|
73,981
|
|
|
(23,395
|
)
|
|
6,401
|
|
|
2,456
|
|
|
(33,164
|
)
|
|||||
Net income
|
$
|
40,394
|
|
|
$
|
80,303
|
|
|
$
|
129,902
|
|
|
$
|
116,933
|
|
|
$
|
64,649
|
|
Net (loss) income attributable to noncontrolling interest
|
—
|
|
|
(101
|
)
|
|
(246
|
)
|
|
568
|
|
|
25
|
|
|||||
Net income attributable to QIAGEN N.V.
|
$
|
40,394
|
|
|
$
|
80,404
|
|
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$
|
130,148
|
|
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$
|
116,365
|
|
|
$
|
64,624
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Basic net income per common share attributable to the owners of QIAGEN N.V.
(1)
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$
|
0.18
|
|
|
$
|
0.34
|
|
|
$
|
0.56
|
|
|
$
|
0.50
|
|
|
$
|
0.28
|
|
Diluted net income per common share attributable to the owners of QIAGEN N.V.
(1)
|
$
|
0.17
|
|
|
$
|
0.34
|
|
|
$
|
0.55
|
|
|
$
|
0.48
|
|
|
$
|
0.27
|
|
Weighted-average common shares outstanding
|
|
|
|
|
|
|
|
|
|
||||||||||
Basic
|
228,074
|
|
|
234,800
|
|
|
233,483
|
|
|
232,644
|
|
|
234,000
|
|
|||||
Diluted
|
233,009
|
|
|
238,993
|
|
|
238,647
|
|
|
242,806
|
|
|
243,400
|
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(1)
|
See Note 18 of the “Notes to Consolidated Financial Statements” for the computation of the weighted average number of Common Shares.
|
|
As of December 31,
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||||||||||||||||||
|
2017
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2016
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|
2015
|
|
2014
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|
2013
|
||||||||||
Consolidated Balance Sheet Data:
(amounts in thousands)
|
|
|
|
|
|
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|
||||||||||
Cash and cash equivalents
|
$
|
657,714
|
|
|
$
|
439,180
|
|
|
$
|
290,011
|
|
|
$
|
392,667
|
|
|
$
|
330,303
|
|
Working capital
(1)
|
$
|
1,323,181
|
|
|
$
|
729,140
|
|
|
$
|
693,043
|
|
|
$
|
717,124
|
|
|
$
|
583,851
|
|
Total assets
|
$
|
5,038,516
|
|
|
$
|
4,308,194
|
|
|
$
|
4,179,117
|
|
|
$
|
4,454,372
|
|
|
$
|
4,088,392
|
|
Total long-term liabilities, including current portion
|
$
|
2,174,087
|
|
|
$
|
1,393,668
|
|
|
$
|
1,343,616
|
|
|
$
|
1,490,114
|
|
|
$
|
1,024,389
|
|
Total equity
|
$
|
2,540,996
|
|
|
$
|
2,607,096
|
|
|
$
|
2,568,070
|
|
|
$
|
2,664,876
|
|
|
$
|
2,731,891
|
|
Common shares, par value
|
$
|
2,702
|
|
|
$
|
2,812
|
|
|
$
|
2,812
|
|
|
$
|
2,812
|
|
|
$
|
2,812
|
|
Common shares issued
|
230,829
|
|
|
239,707
|
|
|
239,707
|
|
|
239,707
|
|
|
239,707
|
|
|||||
Common shares outstanding
|
226,557
|
|
|
234,561
|
|
|
233,006
|
|
|
232,023
|
|
|
233,890
|
|
•
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A base business risk that is specific to us or our industry and threatens our existing business;
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•
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A business growth risk that is specific to us or our industry and threatens our future business growth; and
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•
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An underlying business risk that is not specific to us or our industry, but applies to a larger number of public companies.
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•
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availability, quality and price relative to competitive products;
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•
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the timing of introduction of the new product relative to competitive products;
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•
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opinions of the new product’s utility;
|
•
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citation of the new product in published research;
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•
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regulatory trends and approvals; and
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•
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general trends in life sciences research, applied markets and molecular diagnostics.
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•
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assimilation of new products, technologies, operations, sites and personnel;
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•
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integration and retention of fundamental personnel and technical expertise;
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•
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application for and achievement of regulatory approvals or other clearances;
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•
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diversion of resources from our existing products, business and technologies;
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•
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generation of sales to offset associated acquisition costs;
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•
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implementation and maintenance of uniform standards and effective controls and procedures;
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•
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maintenance of relationships with employees and customers and integration of new management personnel;
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•
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issuance of dilutive equity securities;
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•
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incurrence or assumption of debt and contingent liabilities;
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•
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amortization or impairment of acquired intangible assets or potential businesses; and
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•
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exposure to liabilities of and claims against acquired entities.
|
•
|
severely limited access to financing over an extended period of time, which may affect our ability to fund our growth strategy and could result in delays to capital expenditures, acquisitions or research and development projects;
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•
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failures of currently solvent financial institutions, which may cause losses from our short-term cash investments or our hedging transactions due to a counterparty’s inability to fulfill its payment obligations;
|
•
|
inability to refinance existing debt at competitive rates, reasonable terms or sufficient amounts; and
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•
|
increased volatility or adverse movements in foreign currency exchange rates.
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•
|
make it difficult for us to make required payments on our debt;
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•
|
make it difficult for us to obtain any financing in the future necessary for working capital, capital expenditures, debt service requirements or other purposes;
|
•
|
limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we compete; and
|
•
|
make us more vulnerable in the event of a downturn in our business.
|
•
|
marketing, sales and customer support efforts;
|
•
|
research and development activities;
|
•
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expansion of our facilities;
|
•
|
consummation of possible future acquisitions of technologies, products or businesses;
|
•
|
demand for our products and services;
|
•
|
repayment or refinancing of debt; and
|
•
|
payments in connection with our hedging activities.
|
•
|
announcements of technological innovations or the introduction of new products by us or our competitors;
|
•
|
developments in our relationships with collaborative partners;
|
•
|
quarterly variations in our operating results or those of our peer companies;
|
•
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changes in government regulations, tax laws or patent laws;
|
•
|
developments in patent or other intellectual property rights;
|
•
|
developments in government spending budgets for life sciences-related research;
|
•
|
general market conditions relating to the diagnostics, applied testing, pharmaceutical and biotechnology industries; and
|
•
|
impact from foreign exchange rates.
|
Item 4.
|
Information on the Company
|
•
|
QIAGEN is aiding the global fight against tuberculosis (TB), a contagious bacterial infection that strikes more than 10 million new persons and kills about 1.8 million annually. The global epidemic is complicated because an estimated one out of three people have latent TB infection, a phase in which the bacterium infects a person but produces no detectable symptoms. About 5-10% of those individuals, if untreated, will progress to the active TB disease, so screening of high-risk individuals and treatment for latent TB plays an important role in global tuberculosis control efforts.
|
•
|
QIAGEN's novel QuantiFERON tests, the fourth-generation QuantiFERON-TB Gold Plus (QFT-Plus) and third-generation QuantiFERON-TB Gold (QFT), are the market-leading modern diagnostic tools for latent TB infection. In a class known
|
•
|
In October 2017 QIAGEN launched QuantiFERON-TB Gold Plus in the United States after it received Food and Drug Administration approval. Japan also recently approved QFT-Plus. These market introductions follow adoption of QFT-Plus in more than 75 countries across Europe, the Middle East, Africa, Asia and Latin America, where nearly two million of the tests have been used. QFT-Plus advances the science of TB testing with innovative antigens that measure each patient’s cell-mediated immune response from both CD4+ and CD8+ T cells, a unique capability. An increasing number of peer-reviewed publications support the efficacy of QFT-Plus, which is the only interferon-gamma release assay (IGRA) test on the pathway to evaluation by the World Health Organization (WHO) for its global campaign to eradicate TB.
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•
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In January 2018, QIAGEN began a new partnership with DiaSorin that will provide a state-of-the-art automation option for QuantiFERON-TB Gold Plus customers, embedding QFT-Plus in a broad and highly synergistic assay menu for DiaSorin's LIAISON-family analyzers. More than 7,000 LIAISON-family analyzers are already in use worldwide.
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•
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As a leader in “universal” technologies for use with any next-generation sequencing system, as well as creator of the innovative GeneReader NGS System for benchtop sequencing, QIAGEN continues to expand its presence in the rapidly growing market for NGS solutions in laboratories around the world. QIAGEN’s NGS portfolio produced more than $115 million in sales in 2017.
|
•
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In 2017 QIAGEN continued to broaden its portfolio of platform-agnostic NGS solutions, streamlining tasks such as automated sample and library preparation, reliable detection of DNA and RNA variations, and bioinformatics for analysis and interpretation. Our industry-leading solutions for preparation of liquid biopsy samples, along with a diverse offering of off-the-shelf and customized QIAseq panels, continued to expand to new applications.
|
•
|
QIAGEN’s GeneReader NGS System, the first complete Sample to Insight next-generation sequencing solution designed for any laboratory to deliver actionable results, continued to gain acceptance with strong growth in placements in 2017.
|
•
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We expanded the GeneReader system's capabilities and content menu for clinical researchers in 2017. Going beyond the original GeneRead QIAact Actionable Insights Tumor Panel (AIT), we launched the GeneRead QIAact Lung DNA Panel and Lung RNA Panel for deep analysis of lung cancer samples and the GeneRead QIAact BRCA 1/2 Panel for in-depth insights into breast and ovarian cancers. All of the QIAact NGS panels run with the GeneReader system and integrate seamlessly with our QCI bioinformatics software for analysis and interpretation. We have incorporated the GeneReader NGS System into collaborations with pharmaceutical companies for co-development of companion diagnostics.
|
•
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Multiple studies demonstrating the efficacy of QIAGEN’s GeneReader system, panels and other NGS solutions were presented in major scientific meetings in 2017, including the American Society of Clinical Oncology (ASCO), American Society of Human Genetics (ASHG) and Association for Molecular Pathology (AMP). At the AMP annual meeting in November 2017, about 10 percent of the more than 500 papers presented relied on QIAGEN solutions for some aspect of molecular testing, from sample technologies for NGS to bioinformatics for interpretation of data.
|
•
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To accelerate the growth of the GeneReader system in China, QIAGEN formed a joint venture in 2017 with Maccura, a leading in vitro diagnostics company in China. The venture, MAQGEN Biotechnology Co., Ltd. (MAQGEN), will develop local adaptations, pursue regulatory paths to maximize the GeneReader’s value and leverage Maccura’s broad customer network to expand adoption in laboratories across China. The NGS market in China is growing rapidly in personalized medicine and clinical research. MAQGEN China is 60% owned by Maccura and 40% by QIAGEN.
|
•
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In late 2017, QIAGEN created a new unit, Enterprise Genomics Services, to serve the growing demand for customization of NGS gene panels with integrated bioinformatics for dedicated applications. This initiative offers benefits to customers in implementation time, expense and risk mitigation across the continuum from NGS discovery to panel development, optimization, verification and implementation. QIAGEN's capabilities support customized solutions for any NGS platform, including the GeneReader NGS System.
|
•
|
In Applied Testing, QIAGEN collaborated with the International Commission on Missing Persons (ICMP) in 2017 to launch a cutting-edge next-generation sequencing workflow for DNA identification at the ICMP's laboratory in The Hague. The lab integrates the GeneReader system, other QIAGEN instruments and a new NGS panel specifically designed to
|
•
|
QIAGEN strengthened its leading position in Personalized Healthcare in 2017, surpassing a milestone of 25 master collaboration agreements with pharma and biotech companies to develop companion and complementary diagnostics providing individualized genomic insights to guide clinical decision-making. QIAGEN launched 15 new companion diagnostic projects in 2017, a record high for QIAGEN. In addition, we continued to achieve regulatory approvals of companion diagnostics and to launch them commercially.
|
•
|
A major initiative in 2017 was QIAGEN’s expansion into developing biomarker tests to support emerging therapies in immuno-oncology (I-O), a novel approach using drugs to target the body’s immune system to help fight cancer. QIAGEN and Bristol-Myers Squibb launched a groundbreaking collaboration to explore the use of NGS technology to develop gene expression profiles (GEPs) as predictive or prognostic tools for use with a number of novel immuno-oncology molecules Bristol-Myers Squibb is developing. QIAGEN subsequently has entered into other agreements with undisclosed industry partners to co-develop molecular tests to identify patients who could benefit from I-O therapies. QIAGEN obtained a worldwide license in 2017 from The Johns Hopkins University for biomarkers that play roles in identifying patients for I-O therapies.
|
•
|
QIAGEN continues to roll out regulator-approved companion diagnostics that deliver actionable insights for treatment decisions based on patients’ genomic information. We launched the
ipsogen
JAK2 RGQ PCR Kit in 2017 as the only FDA-cleared JAK2 kit for blood cancers, diagnosing gene mutations in patients with Polycythemia Vera. The FDA approval was expanded in early 2018 to other myeloproliferative neoplasms. The FDA indicated use of QIAGEN's
therascreen
EGFR RGQ PCR Kit as a companion diagnostic also was expanded in early 2018 to diagnose additional EGFR gene mutations involved in treatment decisions for first-line treatment of metastatic non-small cell lung cancer (NSCLC).
|
•
|
We added a new liquid biopsy assay in 2017 for clinical research - the AdnaTest Prostate Cancer Panel AR-V7, using circulating tumor cells to monitor RNA expression of a biomarker indicating resistance to prostate cancer treatments.
|
•
|
As one of the world’s leading independent developers of molecular technologies, with a diverse portfolio of sequencing platforms and solutions, QIAGEN is a preferred industry partner for developing companion or complementary diagnostics.
|
•
|
QIAGEN surpassed its 2017 goal of 2,000 cumulative placements of QIAsymphony, a cost-effective modular system that integrates PCR molecular testing workflows from initial biological sample processing to final insights. The platform’s rapid dissemination and growing content menu fueled double-digit growth in consumables for QIAsymphony.
|
•
|
The QIAsymphony automation system serves laboratories around the world, with the broadest test menu of any platform in its category in Europe and other markets, plus the unique ability to handle laboratory-developed tests. Nearly 30 diagnostic tests in infectious disease, oncology and transplant care are marketed for use on the Rotor-Gene
®
Q, a component of the modular QIAsymphony workflow. In the United States, eight FDA-approved diagnostic tests, including three companion diagnostics to guide treatment decisions in cancer, are marketed for this detection platform.
|
•
|
Two new QIAGEN test kits were approved by the FDA in 2017 for use on QIAsymphony instruments: the
ipsogen
JAK2 RGQ PCR Kit, a qualitative test for the detection of an important genetic variant in blood cancers; and the
artus
CMV QS-RGQ MDx kit, to monitor solid organ transplant patients for cytomegalovirus (CMV), a common infection that can be life-threatening in vulnerable patients.
|
•
|
The QIAsymphony system's sample processing module, QIAsymphony SP, is a market-leading “front end” automated solution for downstream molecular testing. The growth of next-generation sequencing has highlighted the critical need of laboratories for reliable, automated processing of samples, including liquid biopsies. QIAsymphony SP automates the processing of nucleic acids for analysis with the GeneReader NGS System or other sequencers.
|
•
|
As a world leader in sample technologies enabling laboratories to obtain highest-quality DNA and RNA for molecular testing, QIAGEN continued to expand its offerings in 2017 with differentiated solutions for front-end challenges. QIAGEN technologies process an estimated 50,000 biological samples a day. Our strategic focus is on rapidly growing applications in research and clinical diagnostics, such as handling microbiome samples, where we have an estimated 75% market share.
|
•
|
Innovation in “liquid biopsy” technologies is increasingly enabling QIAGEN customers to unlock molecular insights from blood or other fluids as a non-invasive alternatives to surgical biopsies. Our solutions based on several different technologies for isolation and stabilization of nucleic acids are used in an estimated 80% of liquid biopsy testing.
|
•
|
Partnering with leading providers of molecular testing services, QIAGEN continues to incorporate its differentiated solutions in liquid biopsy testing. In 2017, for example, QIAGEN’s PAXgene
®
Blood ccfDNA Tube was adopted by Clinical Genomics for sample collection with its assay to monitor patients for recurrence of colorectal cancer.
|
•
|
To facilitate the growing trend toward liquid biopsies for routine use in clinical testing, QIAGEN joined CANCER-ID, a public-private consortium working to establish standard protocols and clinical validation for blood-based biomarkers in lung and breast cancer. QIAGEN is helping create standardized methods and Sample to Insight workflows.
|
•
|
QIAGEN launched a Custom Solutions business in 2017 to serve life science and molecular diagnostics customers with the tools and expertise to quickly build and commercialize products that meet unique workflow requirements. The new unit offers custom and OEM sample technologies, oligo and enzyme product options for PCR, qPCR and NGS product development, as well as a range of other platform technologies.
|
•
|
In forensics, QIAGEN’s long-standing leadership in developing international standards of quality for products to collect and test samples for human identification gained support in 2017 with third-party certification that QIAGEN meets state-of-the-art requirements for forensics supply chain and manufacturing (ISO18385:2016).
|
•
|
QIAGEN’s broad offering of content-enabled bioinformatics software continues to grow both as a standalone franchise and as a driver integrated into QIAGEN’s Sample to Insight workflows. Our bioinformatics turn vast amounts of genomic data into actionable insights for customers, addressing a critical bottleneck in next-generation sequencing, especially for clinical research and diagnostics. Studies by leading institutions often use solutions such as QIAGEN Clinical Insight (QCI) or CLC Genomics Workbench to analyze and interpret genomic data. QIAGEN pursues collaborations across the genomics and bioinformatics community to offer customers the richest access possible to insights for research and diagnostics.
|
•
|
In January 2017, QIAGEN acquired OmicSoft Corporation to expand its solutions and enable scientists to visualize and mine large institutional and publicly available “omics” datasets, in addition to the expertly curated, literature-based datasets marketed by QIAGEN. Its OmicSoft solutions meet a growing need in discovery and translational research to access and manage huge amounts of data on DNA, RNA and other sequencing insights.
|
•
|
In October 2017, QIAGEN partnered with CENTOGENE AG, a leader in testing for rare diseases and hereditary disorders, to provide customers of both companies with more complete insights. QIAGEN integrated CENTOGENE’s rare disease variant database into its bioinformatics offerings for genomic interpretation, while CENTOGENE licensed QIAGEN's bioinformatics solutions for use in its diagnostic testing services for rare diseases.
|
•
|
Advancing the potential of precision medicine for the diagnosis and treatment of cancer, in November 2017 we launched enhancements in our QIAGEN Clinical Insight (QCI) bioinformatics software to automate guidelines published by leading oncology and pathology groups for the use of next-generation sequencing in genetic profiling of cancers. QIAGEN’s QCI-Interpret software integrates the consensus AMP/ASCO/CAP standards with our comprehensive biomedical knowledge base to guide the selection of treatments based on findings from each patient’s genomic testing and diagnosis.
|
•
|
Also in November 2017, a collaboration in women’s health with Counsyl, a company based in California, demonstrated the value of QIAGEN Clinical Insight for interpretation of results from prenatal testing and hereditary disease screening. Counsyl reported that using QCI for interpreting and scoring genetic variants reduced search time for literature references by 75%, while maintaining accuracy.
|
•
|
In 2017, QIAGEN fulfilled its commitment to return $300 million to shareholders through share repurchase transactions, including the return of $245 million through a synthetic share repurchase in January 2017 and the open-market repurchase of 1.9 million shares on the Frankfurt Stock Exchange for approximately $60 million in September 2017. Reaffirming its commitment to a disciplined approach to capital allocation, QIAGEN announced a new commitment to return $200 million to shareholders beginning in 2018 via open-market repurchases. Shares will be repurchased on the Frankfurt Stock Exchange.
|
•
|
In 2017, QIAGEN continued to execute previously announced restructuring actions to improve efficiency and profitability, while supporting momentum in sales growth. Key areas include consolidating activities into shared service centers and global centers of excellence, gaining efficiencies in marketing, and embracing digital tools across the business. In 2017, we launched a shared service center for administrative functions in the Philippines, expanding on the efficiencies and complementing the geographic footprint of our first shared service center in Poland. A pre-tax restructuring charge of
$19.8 million
(
$0.06
per share after taxes) was recorded in 2017 for these changes. In addition, following enactment of the new U.S. tax law in December 2017, QIAGEN announced restructuring initiatives to mitigate some of its impacts, resulting in a pre-tax restructuring charge of
$13.8 million
(
$0.04
per share after taxes) in the fourth quarter. Operating results in 2017 show the benefits in cost reduction and profitability, and targeted actions are continuing into 2018.
|
•
|
In a review aimed at freeing resources to focus on high-growth market opportunities, QIAGEN took steps in late 2017 to streamline its product portfolio in China, the company's second-largest market, by discontinuing the commercialization of some non-core PCR tests and externalizing the HPV test (cervical cancer screening) franchise to a third-party company in China. A partnership became effective in January 2018 with a Chinese company that has absorbed R&D, commercial distribution, and the related QIAGEN employees and infrastructure of the HPV test franchise in China. QIAGEN has become a minority shareholder of this company. QIAGEN China will focus additional resources on QuantiFERON-TB, the new MAQGEN China joint venture with Maccura for the GeneReader NGS System, and the life sciences portfolio.
|
•
|
Molecular Diagnostics
- healthcare providers engaged in patient care including hospitals, public health organizations, reference laboratories and physician practices
|
•
|
Applied Testing
- government or industry customers using molecular technologies in fields such as forensics, veterinary diagnostics and food safety testing
|
•
|
Pharma
- pharmaceutical and biotechnology companies using molecular testing to support drug discovery, translational medicine and clinical development efforts
|
•
|
Academia
- researchers exploring the secrets of life such as disease mechanisms and pathways, in some cases translating findings into drug targets or other products
|
•
|
Oncology
- accurately diagnosing cancer, enabling prevention or early detection, and guiding selection of therapies with individualized molecular insights. QIAGEN offers a broad portfolio of companion diagnostic kits and panels to detect mutations of genes such as KRAS, EGFR, BRAF, BRCA1/2 and others that influence the efficacy and safety of medicines. We also provide industry-leading tests to screen for human papillomavirus (HPV) and protect women from cervical cancer.
|
•
|
Infectious diseases
- detecting and differentiating a broad range of viral and bacterial infections, including diseases such as HIV, hepatitis, influenza and healthcare-associated infections. Use of molecular testing to differentiate among pathogens can be useful in guiding treatment, such as selection of antibiotic or antiviral therapies.
|
•
|
Immune monitoring
- using advanced technologies that detect immune-system markers as a preventive strategy, such as screening patients for latent TB infection to guard against active TB disease, as well as for monitoring immune function, such as in transplantation patients.
|
(in thousands)
|
2017
|
|
2016
|
|
2015
|
||||||
Net Sales
|
|
|
|
|
|
||||||
Consumables and related revenues
|
$
|
1,242,715
|
|
|
$
|
1,166,131
|
|
|
$
|
1,114,580
|
|
Instrumentation
|
174,821
|
|
|
171,860
|
|
|
166,406
|
|
|||
Total
|
$
|
1,417,536
|
|
|
$
|
1,337,991
|
|
|
$
|
1,280,986
|
|
(in thousands)
|
2017
|
|
2016
|
|
2015
|
||||||
Net Sales
|
|
|
|
|
|
||||||
Americas:
|
|
|
|
|
|
||||||
United States
|
$
|
579,906
|
|
|
$
|
555,676
|
|
|
$
|
525,532
|
|
Other Americas
|
73,478
|
|
|
71,797
|
|
|
79,578
|
|
|||
Total Americas
|
653,384
|
|
|
627,473
|
|
|
605,110
|
|
|||
Europe, Middle East and Africa
|
462,980
|
|
|
428,055
|
|
|
409,955
|
|
|||
Asia Pacific and Rest of World
|
301,172
|
|
|
282,463
|
|
|
265,921
|
|
|||
Total
|
$
|
1,417,536
|
|
|
$
|
1,337,991
|
|
|
$
|
1,280,986
|
|
•
|
Creating new systems for automation of workflows - platforms for laboratories, hospitals and other users of these novel molecular technologies.
|
•
|
Expanding our broad portfolio of novel “content” - including assays to detect and measure biomarkers for disease or genetic identification.
|
•
|
Integrating bioinformatics with the testing process - software and cloud-based resources to interpret and transform raw molecular data into useful insights.
|
•
|
The referral of an individual for a service or product for which payment may be made by Medicare, Medicaid or other government-sponsored healthcare program; or
|
•
|
purchasing, ordering, arranging for, or recommending the ordering of, any service or product for which payment may be made by a government-sponsored healthcare program.
|
Item 4A.
|
Unresolved Staff Comments
|
Item 5.
|
Operating and Financial Review and Prospects
|
•
|
Molecular Diagnostics
- healthcare providers engaged in many aspects of patient care including Prevention, Profiling of diseases, Personalized Healthcare and Point of Need testing
|
•
|
Applied Testing
- government or industry customers using molecular technologies in fields such as forensics, veterinary diagnostics and food safety testing
|
•
|
Pharma
- pharmaceutical and biotechnology companies using molecular testing to support drug discovery, translational medicine and clinical development efforts
|
•
|
Academia
- researchers exploring the secrets of life such as the mechanisms and pathways of diseases, and in some cases translating that research into drug targets or commercial applications
|
•
|
In early 2018, QIAGEN entered into a purchase agreement to acquire STAT-Dx, a privately-held company developing advanced multiplex diagnostics for widespread syndromes such as serious respiratory or gastrointestinal infections. Subject to successful completion of defined development activities by STAT-Dx, QIAGEN has agreed to acquire all shares of STAT-Dx for approximately $147 million in cash and additional payments of up to about $44 million based on the achievement of regulatory and commercial milestones. The acquisition is expected to be completed in the second quarter of 2018 and funded from existing cash reserves. The transaction will expand QIAGEN's instrument and consumables portfolio by adding a novel CE-IVD marked system, to be branded as QIAstat-Dx, enabling Sample to Insight processing of up to 48 molecular targets with cost-efficient, easy-to-use assays. The first two QIAstat-Dx tests, extensive respiratory and gastrointestinal panels, are expected to be launched in Europe and other markets in the second half of 2018, and in the U.S. following expected regulatory approval in 2019.
|
•
|
QIAGEN entered into a joint venture in May 2017 with Maccura Biotechnology Co., Ltd., a leading in vitro diagnostics company in China, to accelerate the growth of QIAGEN’s GeneReader NGS System. Known as MAQGEN China and based in Chengdu, Sichuan Province, the venture will develop local adaptations, pursue regulatory paths for the GeneReader and leverage Maccura’s broad customer network to expand the system’s adoption in laboratories across China. Maccura owns 60% of the joint venture and QIAGEN owns 40%. QIAGEN’s own operations in China continue as a stand-alone company, focusing on our other products and services for customers such as QuantiFERON-TB and the Life Sciences portfolio.
|
•
|
QIAGEN took steps in late 2017 to streamline its product portfolio and focus on growth areas by discontinuing commercialization of some non-core PCR tests and externalizing the HPV test franchise for cervical cancer screening in China to a third-party company. In January 2018, a partnership became effective with a Chinese company that has taken over R&D, commercial distribution, and the related QIAGEN employees and infrastructure of the HPV test franchise in China. QIAGEN is a minority shareholder of this company.
|
•
|
In January 2017, QIAGEN acquired OmicSoft Corporation, a privately held company based in the Research Triangle area of North Carolina, to expand our industry-leading bioinformatics offering with complementary solutions enabling scientists to visualize and mine large institutional and publicly available “omics” datasets. The OmicSoft software solutions meet a growing need in discovery and translational research to access and manage huge amounts of data on DNA, RNA and other biological variables generated by next-generation sequencing studies.
|
•
|
In 2016, QIAGEN acquired Exiqon A/S, a publicly traded company based in Vedbaek, Denmark, expanding our leadership position in Sample to Insight solutions for RNA analysis. Exiqon’s RNA analysis solutions, with proprietary Locked Nucleic Acid (LNA) technology, are used by academic, biotech and pharmaceutical researchers worldwide to explore correlations between gene activity and the development of cancer and other diseases. In two steps during 2016, we paid a total of $100.7 million for 100% of the shares of Exiqon. In 2017, Exiqon’s product offering was fully integrated into QIAGEN, providing customers of both companies ready access to the combined portfolio of solutions.
|
•
|
In 2015, we acquired MO BIO Laboratories, Inc., a privately-held provider of cutting-edge sample technologies for studies of the microbiome and metagenomics, analyzing the impact of microbial diversity on health and the environment. The acquisition added a complementary portfolio of sample technologies to QIAGEN's universal solutions for next-generation sequencing. MO BIO kits, based on proprietary Inhibitor Removal Technology, enable the isolation of pure DNA from challenging samples like soil, water, plants and stool.
|
•
|
In 2015, we acquired an innovative technology from AdnaGen GmbH, a subsidiary of Alere Inc., that enables enrichment and molecular analysis of circulating tumor cells (CTCs) from blood samples. The acquisition added to QIAGEN’s pipeline of technologies for molecular testing through non-invasive liquid biopsies as an alternative to costly and risky tissue biopsies. Other assets acquired include two marketed CE-IVD marked products, AdnaTest BreastCancer and AdnaTest Prostate Cancer, for treatment monitoring and detection of tumor relapse.
|
•
|
In February 2015, we announced the spin-off of teams and activities of QIAGEN Marseille S.A. (formerly Ipsogen S.A.), a majority-owned and fully consolidated entity. In the divestiture, QIAGEN Marseille agreed to the sale of all its assets and liabilities, except its intellectual property portfolio, to a stand-alone company. QIAGEN retained rights to commercialize the
ipsogen
line of products, including companion diagnostics for blood cancers. As part of this initiative, we acquired the remaining QIAGEN Marseille shares through a tender offer during 2015 and 2016.
|
|
|
Full-year 2017
|
||
|
|
Sales
(In $ m) |
%
change
|
% of
sales |
Americas
|
|
$653
|
+4%
|
46%
|
Europe / Middle East / Africa
|
|
$463
|
+8%
|
33%
|
Asia-Pacific / Japan
|
|
$299
|
+7%
|
21%
|
|
|
Full-year 2017
|
||
|
|
Sales
(In $ m) |
%
change
|
% of
sales |
Consumables and related revenues
|
|
$1,243
|
+7%
|
88%
|
Instruments
|
|
$175
|
+2%
|
12%
|
|
|
|
|
|
Molecular Diagnostics
(1)
|
|
$683
|
+5%
|
48%
|
Applied Testing
|
|
$137
|
+14%
|
10%
|
Pharma
|
|
$275
|
+7%
|
19%
|
Academia
|
|
$323
|
+4%
|
23%
|
|
|
Full-year 2016
|
||
|
|
Sales
(In $ m) |
%
change
|
% of
sales |
Americas
(1)
|
|
$627
|
+4%
|
47%
|
Europe / Middle East / Africa
|
|
$428
|
+4%
|
32%
|
Asia-Pacific / Japan
|
|
$279
|
+10%
|
21%
|
|
|
|
|
|
Top 7 emerging markets
(2)
|
|
$209
|
+13%
|
16%
|
|
|
Full-year 2016
|
||
|
|
Sales
(In $ m) |
%
change
|
% of
sales |
Consumables and related revenues
|
|
$1,166
|
+5%
|
87%
|
Instruments
|
|
$172
|
+3%
|
13%
|
|
|
|
|
|
Molecular Diagnostics
(1)
|
|
$663
|
+4%
|
50%
|
Of which: U.S. HPV test solutions
|
|
$33
|
-29%
|
3%
|
MDx excluding U.S. HPV
(1)
|
|
$630
|
+7%
|
47%
|
Applied Testing
|
|
$120
|
+5%
|
9%
|
Pharma
|
|
$262
|
+5%
|
19%
|
Academia
|
|
$293
|
+4%
|
22%
|
Contractual Obligations
(in thousands)
|
Payments Due by Period
|
||||||||||||||||||||||||||
Total
|
|
2018
|
|
2019
|
|
2020
|
|
2021
|
|
2022
|
|
Thereafter
|
|||||||||||||||
Long-term debt
(1)
|
$
|
1,865,393
|
|
|
$
|
24,426
|
|
|
$
|
510,267
|
|
|
$
|
20,485
|
|
|
$
|
330,029
|
|
|
$
|
493,910
|
|
|
$
|
486,276
|
|
Purchase obligations
|
99,489
|
|
|
65,073
|
|
|
22,556
|
|
|
10,472
|
|
|
943
|
|
|
11
|
|
|
434
|
|
|||||||
Operating leases
|
64,877
|
|
|
18,483
|
|
|
16,011
|
|
|
11,762
|
|
|
8,457
|
|
|
6,126
|
|
|
4,038
|
|
|||||||
License and royalty payments
(2)
|
55,092
|
|
|
12,907
|
|
|
11,858
|
|
|
11,558
|
|
|
8,860
|
|
|
6,161
|
|
|
3,748
|
|
|||||||
Capital lease obligations
(3)
|
1,470
|
|
|
1,411
|
|
|
45
|
|
|
14
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||||
Total contractual cash obligations
|
$
|
2,086,321
|
|
|
$
|
122,300
|
|
|
$
|
560,737
|
|
|
$
|
54,291
|
|
|
$
|
348,289
|
|
|
$
|
506,208
|
|
|
$
|
494,496
|
|
Item 6.
|
Directors, Senior Management and Employees
|
Name
|
Age
|
Position
|
Peer M. Schatz
|
52
|
Managing Director, Chief Executive Officer
|
Roland Sackers
|
49
|
Managing Director, Chief Financial Officer
|
Name
|
Age
|
Position
|
Stéphane Bancel
|
45
|
Supervisory Director, Member of the Compensation Committee, Audit Committee and Science and Technology Committee
|
Dr. Håkan Björklund
|
61
|
Supervisory Director, Member of the Compensation Committee and Selection and Appointment Committee
|
Dr. Metin Colpan
|
63
|
Supervisory Director, Chairman of the Science and Technology Committee and Member of the Selection and Appointment Committee
|
Prof. Dr. Manfred Karobath
|
77
|
Chairman of the Supervisory Board, Supervisory Director, Chairman of the Selection and Appointment Committee, Member of the Compensation Committee and Member of the Science and Technology Committee
|
Dr. Ross L. Levine
|
46
|
Supervisory Director and Member of the Science and Technology Committee
|
Dr. Elaine Mardis
|
55
|
Supervisory Director and Member of the Science and Technology Committee
|
Lawrence A. Rosen
|
60
|
Supervisory Director and Chairman of the Audit Committee
|
Elizabeth E. Tallett
|
68
|
Supervisory Director, Chairwoman of the Compensation Committee, Member of the Audit Committee and Member of the Selection and Appointment Committee
|
|
Annual Compensation
|
|
Long-Term Compensation
|
|||||||||||||
Name
|
Fixed Salary
|
Variable Cash
Bonus
|
Other
(1)
|
Total
|
|
Defined
Contribution
Benefit Plan
|
Performance
Stock Units Granted
(2)
|
|||||||||
Managing Board
|
|
|
|
|
|
|
|
|||||||||
Peer M. Schatz
|
$
|
1,192,000
|
|
671,000
|
|
5,000
|
|
$
|
1,868,000
|
|
|
$
|
74,000
|
|
445,000
|
|
Roland Sackers
|
$
|
535,000
|
|
237,000
|
|
38,000
|
|
$
|
810,000
|
|
|
$
|
76,000
|
|
186,075
|
|
(1)
|
Amounts include, among others, car lease and reimbursed personal expenses such as tax consulting. We also occasionally reimburse our Managing Directors' personal expenses related to attending out-of-town meetings but not directly related to their attendance. Amounts do not include the reimbursement of certain expenses relating to travel incurred at the request of QIAGEN, other reimbursements or payments that in total did not exceed $10,000 or tax amounts paid by the Company to tax authorities in order to avoid double-taxation under multi-tax jurisdiction employment agreements.
|
(2)
|
The Performance Stock Units Granted amount includes a special incentive grant of 100,000 PSUs which was not achieved.
|
Fee payable to the Chairman of the Supervisory Board
|
$150,000
|
Fee payable to the Vice Chairman of the Supervisory Board
|
$90,000
|
Fee payable to each member of the Supervisory Board
|
$57,500
|
Additional compensation payable to members holding the following positions:
|
|
Chairman of the Audit Committee
|
$25,000
|
Chairman of the Compensation Committee
|
$18,000
|
Chairman of the Selection and Appointment Committee and other board committees
|
$12,000
|
Fee payable to each member of the Audit Committee
|
$15,000
|
Fee payable to each member of the Compensation Committee
|
$11,000
|
Fee payable to each member of the Selection and Appointment Committee and other board committees
|
$6,000
|
Name
|
Fixed
Remuneration
|
|
Committee Chairman/
Chairwoman
|
|
Committee
Membership
|
|
|
Total
(1)
|
|
Restricted
Stock Units
|
|||||||
Supervisory Board
|
|
|
|
|
|
|
|
|
|
|
|||||||
Stéphane Bancel
|
$
|
57,500
|
|
|
—
|
|
|
32,000
|
|
|
|
$
|
89,500
|
|
|
10,732
|
|
Dr. Håkan Björklund
|
$
|
43,125
|
|
|
—
|
|
|
12,750
|
|
|
|
$
|
55,875
|
|
|
—
|
|
Dr. Metin Colpan
|
$
|
57,500
|
|
|
12,000
|
|
|
6,000
|
|
|
|
$
|
75,500
|
|
|
10,732
|
|
Prof. Dr. Manfred Karobath
|
$
|
150,000
|
|
|
12,000
|
|
|
17,000
|
|
|
|
$
|
179,000
|
|
|
10,732
|
|
Dr. Ross L. Levine
|
$
|
57,500
|
|
|
—
|
|
|
6,000
|
|
|
|
$
|
63,500
|
|
|
10,732
|
|
Dr. Elaine Mardis
|
$
|
57,500
|
|
|
—
|
|
|
6,000
|
|
|
|
$
|
63,500
|
|
|
10,732
|
|
Lawrence A. Rosen
|
$
|
57,500
|
|
|
25,000
|
|
|
—
|
|
|
|
$
|
82,500
|
|
|
10,732
|
|
Elizabeth E. Tallett
|
$
|
57,500
|
|
|
18,000
|
|
|
21,000
|
|
|
|
$
|
96,500
|
|
|
10,732
|
|
Name of Supervisory Director
|
|
Member of Audit
Committee
|
|
Member of
Compensation Committee
|
|
Member of Selection
and Appointment
Committee
|
|
Member of Science
and Technology Committee
|
Stéphane Bancel
|
|
l
|
|
l
|
|
|
|
l
|
Dr. Håkan Björklund
|
|
|
|
l
|
|
l
|
|
|
Dr. Metin Colpan
|
|
|
|
|
|
l
|
|
l
(Chairman)
|
Prof. Dr. Manfred Karobath
|
|
|
|
l
|
|
l
(Chairman)
|
|
l
|
Dr. Ross L. Levine
|
|
|
|
|
|
|
|
l
|
Dr. Elaine Mardis
|
|
|
|
|
|
|
|
l
|
Lawrence A. Rosen
|
|
l
(Chairman)
|
|
|
|
|
|
|
Elizabeth E. Tallett
|
|
l
|
|
l
(Chairwoman)
|
|
l
|
|
|
|
Shares Beneficially Owned
(1)
|
||||
Name and Country of Residence
|
Number
(2)
|
|
Percent Ownership
|
||
Peer M. Schatz, Germany
|
2,681,395
|
|
(3)
|
1.18
|
%
|
Roland Sackers, Germany
|
40,000
|
|
(4)
|
*
|
|
Stéphane Bancel, United States
|
2,081
|
|
(5)
|
*
|
|
Dr. Håkan Björklund, Sweden
|
—
|
|
|
—
|
|
Dr. Metin Colpan, Germany
|
3,529,123
|
|
(6)
|
1.56
|
%
|
Prof. Dr. Manfred Karobath, Austria
|
22,631
|
|
(7)
|
*
|
|
Dr. Ross L. Levine, United States
|
—
|
|
|
—
|
|
Dr. Elaine Mardis, United States
|
—
|
|
(8)
|
—
|
|
Lawrence A. Rosen, United States
|
—
|
|
(9)
|
—
|
|
Elizabeth Tallett, United States
|
10,130
|
|
(10)
|
*
|
|
(1)
|
The number of Common Shares outstanding as of
January 31, 2018
was 226,556,855. The persons and entities named in the table have sole voting and investment power with respect to all shares shown as beneficially owned by them and have the same voting rights as shareholders with respect to Common Shares.
|
(2)
|
Does not include Common Shares subject to options or awards held by such persons at
January 31, 2018
. See footnotes below for information regarding options now exercisable or that could become exercisable within 60 days of the date of this table.
|
(3)
|
Does not include
628,045
shares issuable upon the exercise of options now exercisable having exercise prices ranging from
$15.59 to $22.25
per share. Options expire in increments during the period between February 2019 and February 2023. Does not include 387,518 shares issuable upon the release of unvested stock awards that could become releasable within 60 days from the date of this table.
|
(4)
|
Does not include
162,483
shares issuable upon the exercise of options now exercisable having exercise prices ranging from
$15.59 to $22.25
per share. Options expire in increments during the period between February 2019 and February 2023. Does not include 117,966 shares issuable upon the release of unvested stock awards that could become releasable within 60 days from the date of this table.
|
(5)
|
Does not include 4,496 shares issuable upon the release of unvested stock awards that could become releasable within 60 days from the date of this table.
|
(6)
|
Does not include
7,893
shares issuable upon the exercise of options now exercisable having exercise prices ranging from
$15.59 to $22.43
per share. Options expire in increments during the period between April 2018 and February 2022. Includes 2,741,579 shares held by CC Verwaltungs GmbH, of which Dr. Colpan is the sole stockholder and 770,370 shares held by Colpan GbR. Does not include 10,496 shares issuable upon the release of unvested stock awards that could become releasable within 60 days from the date of this table.
|
(7)
|
Does not include
7,893
shares issuable upon the exercise of options now exercisable having exercise prices ranging from
$15.59 to $22.43
per share. Options expire in increments during the period between April 2018 and February 2022. Does not include 10,496 shares issuable upon the release of unvested stock awards that could become releasable within 60 days from the date of this table.
|
(8)
|
Does not include 4,496 shares issuable upon the release of unvested stock awards that could become releasable within 60 days from the date of this table.
|
(9)
|
Does not include 4,496 shares issuable upon the release of unvested stock awards that could become releasable within 60 days from the date of this table.
|
(10)
|
Does not include
1,563
shares issuable upon the exercise of options now exercisable having exercise prices of
$15.59
per share. Options expire on February 2022. Does not include 10,496 shares issuable upon the release of unvested stock awards that could become releasable within 60 days from the date of this table.
|
Name
|
Total Vested
Options
|
|
Expiration Dates
|
|
Exercise Prices
|
|
Peer M. Schatz
|
628,045
|
|
|
2/27/2019 to 2/28/2023
|
|
$15.59 to $22.25
|
Roland Sackers
|
162,483
|
|
|
2/27/2019 to 2/28/2023
|
|
$15.59 to $22.25
|
Dr. Metin Colpan
|
7,893
|
|
|
4/29/2018 to 2/28/2022
|
|
$15.59 to $22.43
|
Prof. Dr. Manfred Karobath
|
7,893
|
|
|
4/29/2018 to 2/28/2022
|
|
$15.59 to $22.43
|
Elizabeth E. Tallett
|
1,563
|
|
|
2/28/2022
|
|
$15.59
|
Region
|
Research &
Development
|
|
Sales
|
|
Production
|
|
Marketing
|
|
Administration
|
|
Total
|
||||||
Americas
|
218
|
|
|
592
|
|
|
279
|
|
|
66
|
|
|
90
|
|
|
1,245
|
|
Europe, Middle East & Africa
|
691
|
|
|
718
|
|
|
679
|
|
|
154
|
|
|
325
|
|
|
2,567
|
|
Asia Pacific & Rest of World
|
44
|
|
|
575
|
|
|
123
|
|
|
58
|
|
|
76
|
|
|
876
|
|
December 31, 2017
|
953
|
|
|
1,885
|
|
|
1,081
|
|
|
278
|
|
|
491
|
|
|
4,688
|
|
Item 7.
|
Major Shareholders and Related Party Transactions
|
|
Shares Beneficially Owned
|
|||||
Name and Country of Residence
|
Number
|
|
|
Percent Ownership
(1)
|
||
BlackRock, Inc., United States
|
21,813,445
|
|
(2)
|
|
9.63
|
%
|
Franklin Resources, Inc., United States
|
18,757,447
|
|
(3)
|
|
8.28
|
%
|
PRIMECAP Management Company, United States
|
16,566,194
|
|
(4)
|
|
7.31
|
%
|
(1)
|
The percentage ownership was calculated based on
226,556,855
Common Shares outstanding as of
December 31, 2017
.
|
(2)
|
Of the
21,813,445
shares attributed to BlackRock, Inc., it has sole voting power over 20,045,447 and sole dispositive power over all 21,813,445 shares. This information is based solely on the Schedule 13G filed by BlackRock, Inc. with the Securities and Exchange Commission on January 30, 2018, which reported ownership as of
December 31, 2017
.
|
(3)
|
Of the
18,757,447
shares attributed to Franklin Resources, Inc., it shares voting and dispositive powers over all
18,757,447
shares with various members of a reporting group of which it is part. This information is based solely on the Schedule 13G filed by Franklin Resources Inc. with the Securities and Exchange Commission on February 7, 2018, which reported ownership as of
December 31, 2017
.
|
(4)
|
Of the
16,566,194
shares attributed to PRIMECAP Management Company, it has sole voting power over 8,022,006 and sole dispositive power over all
16,566,194
shares. This information is based solely on the Schedule 13G filed by PRIMECAP Management Company with the Securities and Exchange Commission on February 27, 2018, which reported ownership as of
December 31, 2017
.
|
Item 8.
|
Financial Information
|
Item 9.
|
The Offer and Listing
|
|
High ($)
|
|
Low ($)
|
||
Annual:
|
|
|
|
||
2013
|
24.74
|
|
|
18.30
|
|
2014
|
25.32
|
|
|
19.46
|
|
2015
|
28.53
|
|
|
22.11
|
|
2016
|
28.84
|
|
|
19.94
|
|
2017
|
36.34
|
|
|
27.40
|
|
|
High ($)
|
|
Low ($)
|
||
Quarterly 2016:
|
|
|
|
||
First Quarter
|
26.89
|
|
|
20.10
|
|
Second Quarter
|
24.05
|
|
|
19.94
|
|
Third Quarter
|
27.70
|
|
|
21.38
|
|
Fourth Quarter
|
28.84
|
|
|
23.94
|
|
Quarterly 2017:
|
|
|
|
||
First Quarter
|
30.25
|
|
|
27.40
|
|
Second Quarter
|
35.26
|
|
|
27.74
|
|
Third Quarter
|
34.76
|
|
|
31.02
|
|
Fourth Quarter
|
36.34
|
|
|
30.20
|
|
Quarterly 2018:
|
|
|
|
||
First Quarter (through February 28, 2018)
|
34.79
|
|
|
30.78
|
|
|
|
|
|
||
|
High ($)
|
|
Low ($)
|
||
Monthly:
|
|
|
|
||
September 2017
|
32.87
|
|
|
31.23
|
|
October 2017
|
36.34
|
|
|
31.56
|
|
November 2017
|
34.32
|
|
|
30.20
|
|
December 2017
|
32.97
|
|
|
30.64
|
|
January 2018
|
34.79
|
|
|
30.78
|
|
February 2018
|
34.47
|
|
|
31.01
|
|
|
High (EUR)
|
|
Low (EUR)
|
||
Annual:
|
|
|
|
||
2013
|
18.15
|
|
|
13.67
|
|
2014
|
19.64
|
|
|
14.38
|
|
2015
|
26.05
|
|
|
18.72
|
|
2016
|
27.26
|
|
|
17.76
|
|
2017
|
31.52
|
|
|
25.41
|
|
|
High (EUR)
|
|
Low (EUR)
|
||
Quarterly 2016:
|
|
|
|
||
First Quarter
|
24.96
|
|
|
17.76
|
|
Second Quarter
|
21.40
|
|
|
18.16
|
|
Third Quarter
|
24.77
|
|
|
19.27
|
|
Fourth Quarter
|
27.26
|
|
|
21.77
|
|
Quarterly 2017:
|
|
|
|
||
First Quarter
|
28.50
|
|
|
25.41
|
|
Second Quarter
|
31.52
|
|
|
26.03
|
|
Third Quarter
|
30.02
|
|
|
25.89
|
|
Fourth Quarter
|
30.08
|
|
|
25.78
|
|
Quarterly 2018:
|
|
|
|
||
First Quarter (through February 28, 2018)
|
28.33
|
|
|
25.42
|
|
|
High (EUR)
|
|
Low (EUR)
|
||
Monthly:
|
|
|
|
||
September 2017
|
27.70
|
|
|
26.48
|
|
October 2017
|
30.08
|
|
|
26.70
|
|
November 2017
|
29.60
|
|
|
25.78
|
|
December 2017
|
27.93
|
|
|
25.92
|
|
January 2018
|
28.15
|
|
|
25.54
|
|
February 2018
|
28.33
|
|
|
25.42
|
|
Item 10.
|
Additional Information
|
(i)
|
the transfer of our enterprise or practically our entire enterprise to a third party;
|
(ii)
|
the entry into or termination of a long-term cooperation by us or one of our subsidiaries (
dochtermaatschappijen
) with another legal person or partnership or as a fully liable general partner of a limited partnership or a general partnership, if such cooperation or termination is of a far-reaching significance for us; and
|
(iii)
|
the acquisition or divestment by us or one of our subsidiaries (
dochtermaatschappijen
) of a participating interest in the capital of a company with a value of at least one-third of the sum of our assets according to our consolidated balance sheet and explanatory notes in our last adopted annual accounts.
|
•
|
fails to provide an accurate taxpayer identification number;
|
•
|
is notified by the Internal Revenue Service that the individual has failed to report all interest or dividends required to be shown on the Federal income tax returns; or
|
•
|
in certain circumstances, fails to comply with applicable certification requirements.
|
Item 11.
|
Quantitative and Qualitative Disclosures About Market Risk
|
Item 12.
|
Description of Securities Other than Equity Securities
|
Item 13.
|
Defaults, Dividend Arrearages and Delinquencies
|
Item 14.
|
Material Modifications to the Rights of Security Holders and Use of Proceeds
|
Item 15.
|
Controls and Procedures
|
Item 16A.
|
Audit Committee Financial Expert
|
Item 16B.
|
Code of Ethics
|
Item 16C.
|
Principal Accountant Fees and Services
|
(in millions)
|
2017
|
|
2016
|
||||
Audit fees
|
$
|
1.8
|
|
|
$
|
1.9
|
|
-Consolidated financial statements
|
1.2
|
|
|
1.2
|
|
||
-Statutory financial statements
|
0.6
|
|
|
0.7
|
|
||
Audit-related fees
|
0.5
|
|
|
0.5
|
|
||
Total
|
$
|
2.3
|
|
|
$
|
2.4
|
|
Item 16D.
|
Exemptions From the Listing Standards for Audit Committees
|
Item 16E.
|
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
|
Period
|
(a)Total number of shares purchased
|
(b)Average price paid per share in $
(1)
|
(c) Total number of shares purchased as part of publicly announced plans and programs
|
(d) Approximate dollar value of shares that may yet be purchased under these plans and programs
(in millions)
(2)
|
January 1 to July 31, 2017
|
—
|
—
|
—
|
$60.0
|
August 1-31, 2017
|
913,686
|
$31.94
|
913,686
|
$30.8
|
September 1-30, 2017
|
995,197
|
$31.92
|
995,197
|
$0.0
|
October 1 to December 31, 2017
|
—
|
—
|
—
|
$0.0
|
Total
|
1,908,883
|
$31.93
|
1,908,883
|
|
Item 16F.
|
Change in Registrant’s Certifying Accountant
|
Item 16G.
|
Corporate Governance
|
1.
|
Best practice provision 2.2.2 recommends that a supervisory board member is appointed for a period of four years. A member may be reappointed for a term of additional two years, which appointment may be extended by at most two years.
|
2.
|
Best practice provision 2.1.5 recommends that the Supervisory Board should draw up a diversity policy for the composition of the Management Board, the Supervisory Board and, if applicable, the Executive Committee. The policy should address concrete targets relating to diversity and the diversity aspects to the Company, such as nationality, age, gender and education and work background.
|
3.
|
Best practice provision 3.1.2 vi. recommends that when formulating the remuneration policy, it should be considered that shares awarded to management board should be held for a period of at least five years
|
4.
|
Best practice provision 3.2.3 recommends that the maximum remuneration in the event of dismissal of a management board member may not exceed one year's salary (the "fixed" remuneration component).
|
5.
|
Best practice provision 2.2.4 recommends that the supervisory board should draw up a retirement schedule in order to avoid, as far as possible, a situation in which many supervisory board members retire simultaneously. The retirement schedule should be made generally available and should be posted on the company’s website.
|
7.
|
Best practice provision 3.3.2 recommends that a supervisory board member may not be granted any shares and/or rights to shares by way of remuneration.
|
•
|
QIAGEN is exempt from NYSE’s quorum requirements applicable to meetings of ordinary shareholders. In keeping with the law of The Netherlands and generally accepted business practices in The Netherlands, QIAGEN’s Articles of Association provide that there are no quorum requirements generally applicable to meetings of the General Meeting.
|
•
|
QIAGEN is exempt from NYSE’s requirements that shareholder approval be obtained prior to the establishment of, or material amendments to, stock option or purchase plans and other equity compensation arrangements pursuant to which options or stock may be acquired by directors, officers, employees or consultants. QIAGEN is also exempt from NYSE’s requirements that shareholder approval be obtained prior to certain issuances of stock resulting in a change of control, occurring in connection with acquisitions of stock or assets of another company
|
Item 16H.
|
Mine Safety Disclosure
|
Item 17.
|
Financial Statements
|
Item 18.
|
Financial Statements
|
(A)
|
The following financial statements, together with the reports of KPMG thereon, are filed as part of this annual report:
|
Item 19.
|
Exhibits
|
Articles of Association as confirmed by notarial deed as of January 24, 2017 (English translation) (1)
|
|
|
|
$400 Million Note Purchase Agreement dated as of October 16, 2012 (filed as Exhibit 2.9) (2)
|
|
|
|
2019 Bonds Indenture dated March 19, 2014 (Filed as Exhibit 2.7) (3)
|
|
|
|
2021 Bonds Indenture dated March 19, 2014 (Filed as Exhibit 2.8) (3)
|
|
|
|
2019 Form of Warrant Confirmation dated March 12, 2014 (Filed as Exhibit 2.9) (3)
|
|
|
|
2021 Form of Warrant Confirmation dated March 12, 2014 (Filed as Exhibit 2.10) (3)
|
|
|
|
2019 Form of Bond Hedge Confirmation dated March 12, 2014 (Filed as Exhibit 2.11) (3)
|
|
|
|
2021 Form of Bond Hedge Confirmation dated March 12, 2014 (Filed as Exhibit 2.12) (3)
|
|
|
|
Schuldscheindarlehensvertrag Form of Loan Agreement dated as of June 19, 2017
|
|
|
|
$400 Million Note Purchase Agreement dated as of September 6, 2017
|
|
|
|
2023 Bonds Indenture dated September 13, 2017
|
|
|
|
2023 Form of Warrant Confirmation dated September 6, 2017
|
|
|
|
2023 Form of Bond Hedge Confirmation dated September 6, 2017
|
|
|
|
4.1
|
Lease Between QIAGEN GmbH and Gisantus Grundstuecksverwaltungsgesellschaft mbH, dated January 13, 1997 (the “Max-Volmer-Strasse 4 Lease”) (Filed as Exhibit 10.3) (4)
|
|
|
4.2
|
The Max-Volmer-Strasse 4 Lease Summary (Filed as Exhibit 10.3(a)) (4)
|
|
|
QIAGEN N.V. Amended and Restated 2005 Stock Plan (Filed as Exhibit 99.1) (5)
|
|
|
|
QIAGEN N.V. 2014 Stock Plan (Filed as Exhibit 99.1) (6)
|
|
|
|
List of Subsidiaries
|
|
|
|
Certification under Section 302; Peer M. Schatz, Managing Director and Chief Executive Officer
|
|
|
|
Certification under Section 302; Roland Sackers, Managing Director and Chief Financial Officer
|
|
|
|
Certifications under Section 906; Peer M. Schatz, Managing Director and Chief Executive Officer and Roland Sackers, Managing Director and Chief Financial Officer
|
|
|
|
Consent of Independent Registered Public Accounting Firm
|
|
|
|
†*101
|
XBRL Interactive Data File
|
*
|
Filed herewith.
|
†
|
Pursuant to Rule 406(T) of Regulation S-T, the Interactive Data Files on Exhibit 101 hereto are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933 as amended, are deemed not filed for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended, and otherwise are not subject to liability under those sections.
|
(1)
|
Incorporated by reference to Form 20-F Annual Report of QIAGEN N.V. filed with the Securities and Exchange Commission on March 6, 2017.
|
(2)
|
Incorporated by reference to Form 20-F Annual Report of QIAGEN N.V. filed with the Securities and Exchange Commission on March 1, 2013.
|
(3)
|
Incorporated by reference to Form 20-F Annual Report of QIAGEN N.V. filed with the Securities and Exchange Commission on March 2, 2015.
|
(4)
|
Incorporated by reference to Form 20-F Annual Report of QIAGEN N.V. filed with the Securities and Exchange Commission on March 31, 2000.
|
(5)
|
Incorporated by reference to Registration Statement of QIAGEN N.V. on Form S-8 filed with the Securities and Exchange Commission on November 17, 2011.
|
(6)
|
Incorporated by reference to Registration Statement of QIAGEN N.V. on Form S-8 filed with the Securities and Exchange Commission on April 2, 2015.
|
|
|
|
QIAGEN N.V.
|
|
Dated:
|
March 5, 2018
|
|
|
|
|
|
|
By:
|
/s/ Peer M. Schatz
|
|
|
|
|
Peer M. Schatz, Chief Executive Officer
|
|
|
|
|
|
|
|
|
|
/s/ Roland Sackers
|
|
|
|
|
Roland Sackers, Chief Financial Officer
|
|
Page
|
|
|
|
As of December 31,
|
||||||
|
Note
|
|
2017
|
|
2016
|
||||
Assets
|
|
|
|
|
|
||||
Current assets:
|
|
|
|
|
|
||||
Cash and cash equivalents
|
(3)
|
|
$
|
657,714
|
|
|
$
|
439,180
|
|
Short-term investments
|
(7)
|
|
359,198
|
|
|
92,999
|
|
||
Accounts receivable, net of allowance for doubtful accounts of $8,008 and $7,614 in 2017 and 2016, respectively
|
(3, 22)
|
|
329,138
|
|
|
278,244
|
|
||
Income taxes receivable
|
|
|
39,509
|
|
|
23,795
|
|
||
Inventories, net
|
(3)
|
|
155,927
|
|
|
136,552
|
|
||
Prepaid expenses and other current assets
|
(8)
|
|
106,487
|
|
|
66,799
|
|
||
Total current assets
|
|
|
1,647,973
|
|
|
1,037,569
|
|
||
Long-term assets:
|
|
|
|
|
|
||||
Property, plant and equipment, net of accumulated depreciation of $564,588 and $451,160 in 2017 and 2016, respectively
|
(9)
|
|
494,321
|
|
|
436,655
|
|
||
Goodwill
|
(11)
|
|
2,012,904
|
|
|
1,925,518
|
|
||
Intangible assets, net of accumulated amortization of $1,117,423 and $948,072 in 2017 and 2016, respectively
|
(11)
|
|
499,318
|
|
|
557,159
|
|
||
Deferred income taxes
|
(16)
|
|
39,353
|
|
|
68,384
|
|
||
Other long-term assets (of which $17,713 and $13,067 in 2017 and 2016 due from related parties, respectively)
|
(10, 13, 22)
|
|
344,647
|
|
|
282,909
|
|
||
Total long-term assets
|
|
|
3,390,543
|
|
|
3,270,625
|
|
||
Total assets
|
|
|
$
|
5,038,516
|
|
|
$
|
4,308,194
|
|
|
|
|
As of December 31,
|
||||||
|
Note
|
|
2017
|
|
2016
|
||||
Liabilities and equity
|
|
|
|
|
|
||||
Current liabilities:
|
|
|
|
|
|
||||
Accounts payable
|
(22)
|
|
$
|
59,205
|
|
|
$
|
51,218
|
|
Accrued and other current liabilities (of which $9,028 and $3,926 due to related parties in 2017 and 2016, respectively)
|
(10, 22)
|
|
244,114
|
|
|
230,305
|
|
||
Income taxes payable
|
|
|
21,473
|
|
|
26,906
|
|
||
Total current liabilities
|
|
|
324,792
|
|
|
308,429
|
|
||
Long-term liabilities:
|
|
|
|
|
|
||||
Long-term debt, net of current portion
|
(15)
|
|
1,758,258
|
|
|
1,067,096
|
|
||
Deferred income taxes
|
(16)
|
|
76,727
|
|
|
40,621
|
|
||
Other long-term liabilities (of which $3,075 and $5,889 due to related parties in 2017 and 2016, respectively)
|
(10, 13, 22)
|
|
337,743
|
|
|
284,952
|
|
||
Total long-term liabilities
|
|
|
2,172,728
|
|
|
1,392,669
|
|
||
Commitments and contingencies
|
(19)
|
|
|
|
|
|
|
||
Equity:
|
|
|
|
|
|
||||
Preference shares, 0.01 EUR par value, authorized—450,000 shares, no shares issued and outstanding
|
|
|
—
|
|
|
—
|
|
||
Financing preference shares, 0.01 EUR par value, authorized—40,000 shares, no shares issued and outstanding
|
|
|
—
|
|
|
—
|
|
||
Common Shares, 0.01 EUR par value, authorized—410,000 shares, issued — 230,829 and 239,707 shares in 2017 and 2016, respectively
|
|
|
2,702
|
|
|
2,812
|
|
||
Additional paid-in capital
|
|
|
1,630,095
|
|
|
1,794,665
|
|
||
Retained earnings
|
|
|
1,247,945
|
|
|
1,263,464
|
|
||
Accumulated other comprehensive loss
|
(17)
|
|
(220,759
|
)
|
|
(333,839
|
)
|
||
Less treasury shares, at cost— 4,272 and 5,147 shares in 2017 and 2016, respectively
|
(17)
|
|
(118,987
|
)
|
|
(120,006
|
)
|
||
Total equity
|
|
|
2,540,996
|
|
|
2,607,096
|
|
||
Total liabilities and equity
|
|
|
$
|
5,038,516
|
|
|
$
|
4,308,194
|
|
|
|
|
Years ended December 31,
|
||||||||||
|
Note
|
|
2017
|
|
2016
|
|
2015
|
||||||
Net sales
|
(3, 4, 22)
|
|
$
|
1,417,536
|
|
|
$
|
1,337,991
|
|
|
$
|
1,280,986
|
|
Cost of sales
|
|
|
494,975
|
|
|
493,338
|
|
|
454,328
|
|
|||
Gross profit
|
|
|
922,561
|
|
|
844,653
|
|
|
826,658
|
|
|||
Operating expenses:
|
|
|
|
|
|
|
|
||||||
Research and development
|
(3)
|
|
154,084
|
|
|
149,841
|
|
|
146,830
|
|
|||
Sales and marketing
|
|
|
375,562
|
|
|
376,321
|
|
|
359,598
|
|
|||
General and administrative, restructuring, integration and other
|
(3)
|
|
200,098
|
|
|
180,573
|
|
|
102,066
|
|
|||
Acquisition-related intangible amortization
|
|
|
39,398
|
|
|
39,091
|
|
|
38,666
|
|
|||
Total operating expenses
|
|
|
769,142
|
|
|
745,826
|
|
|
647,160
|
|
|||
Income from operations
|
|
|
153,419
|
|
|
98,827
|
|
|
179,498
|
|
|||
Other income (expense):
|
|
|
|
|
|
|
|
||||||
Interest income
|
|
|
10,645
|
|
|
6,776
|
|
|
4,753
|
|
|||
Interest expense
|
|
|
(49,685
|
)
|
|
(39,022
|
)
|
|
(37,396
|
)
|
|||
Other expense, net
|
(6)
|
|
(4
|
)
|
|
(9,673
|
)
|
|
(10,552
|
)
|
|||
Total other expense, net
|
|
|
(39,044
|
)
|
|
(41,919
|
)
|
|
(43,195
|
)
|
|||
Income before income taxes
|
|
|
114,375
|
|
|
56,908
|
|
|
136,303
|
|
|||
Income taxes
|
(3, 16)
|
|
73,981
|
|
|
(23,395
|
)
|
|
6,401
|
|
|||
Net income
|
|
|
40,394
|
|
|
80,303
|
|
|
129,902
|
|
|||
Net loss attributable to noncontrolling interest
|
|
|
—
|
|
|
(101
|
)
|
|
(246
|
)
|
|||
Net income attributable to the owners of QIAGEN N.V.
|
|
|
$
|
40,394
|
|
|
$
|
80,404
|
|
|
$
|
130,148
|
|
Basic net income per common share attributable to the owners of QIAGEN N.V.
|
|
|
$
|
0.18
|
|
|
$
|
0.34
|
|
|
$
|
0.56
|
|
Diluted net income per common share attributable to the owners of QIAGEN N.V.
|
|
|
$
|
0.17
|
|
|
$
|
0.34
|
|
|
$
|
0.55
|
|
|
|
|
|
|
|
|
|
||||||
Weighted-average common shares outstanding
|
|
|
|
|
|
|
|
||||||
Basic
|
(18)
|
|
228,074
|
|
|
234,800
|
|
|
233,483
|
|
|||
Diluted
|
(18)
|
|
233,009
|
|
|
238,993
|
|
|
238,647
|
|
|
|
|
Years ended December 31,
|
||||||||||
|
Note
|
|
2017
|
|
2016
|
|
2015
|
||||||
Net income
|
|
|
$
|
40,394
|
|
|
$
|
80,303
|
|
|
$
|
129,902
|
|
Other comprehensive income (loss) to be reclassified to profit or loss in subsequent periods:
|
|
|
|
|
|
|
|
||||||
(Losses) Gains on cash flow hedges, before tax
|
(13)
|
|
(50,067
|
)
|
|
(3,969
|
)
|
|
5,337
|
|
|||
Reclassification adjustments on cash flow hedges, before tax
|
(13)
|
|
26,136
|
|
|
(6,228
|
)
|
|
(5,273
|
)
|
|||
Cash flow hedges, before tax
|
|
|
(23,931
|
)
|
|
(10,197
|
)
|
|
64
|
|
|||
(Losses) gains on marketable securities, before tax
|
|
|
(854
|
)
|
|
(1,421
|
)
|
|
1,215
|
|
|||
Gains (losses) on pensions, before tax
|
|
|
886
|
|
|
929
|
|
|
(1,809
|
)
|
|||
Foreign currency translation adjustments, before tax
|
|
|
135,945
|
|
|
(65,910
|
)
|
|
(124,639
|
)
|
|||
Other comprehensive income (loss), before tax
|
|
|
112,046
|
|
|
(76,599
|
)
|
|
(125,169
|
)
|
|||
Income tax relating to components of other comprehensive income (loss)
|
|
|
1,034
|
|
|
2,562
|
|
|
1,140
|
|
|||
Total other comprehensive income (loss), after tax
|
|
|
113,080
|
|
|
(74,037
|
)
|
|
(124,029
|
)
|
|||
Comprehensive income
|
|
|
153,474
|
|
|
6,266
|
|
|
5,873
|
|
|||
Comprehensive (income) attributable to noncontrolling interest
|
|
|
—
|
|
|
(545
|
)
|
|
(146
|
)
|
|||
Comprehensive income attributable to the owners of QIAGEN N.V.
|
|
|
$
|
153,474
|
|
|
$
|
5,721
|
|
|
$
|
5,727
|
|
(in thousands)
|
Note
|
|
Common Shares
|
|
Additional
Paid-In
Capital
|
|
Retained
Earnings
|
|
Accumulated
Other
Comprehensive
Income (Loss)
|
|
Treasury Shares
|
|
Equity Attributable to the Owners of QIAGEN N.V.
|
|
Non-controlling Interest
|
|
Total
Equity
|
||||||||||||||||||||||
|
|
|
Shares
|
|
Amount
|
|
|
|
|
|
|
|
Shares
|
|
Amount
|
|
|
|
|
|
|
||||||||||||||||||
BALANCE AT DECEMBER 31, 2014
|
|
|
239,707
|
|
|
$
|
2,812
|
|
|
$
|
1,851,404
|
|
|
$
|
1,104,329
|
|
|
$
|
(134,735
|
)
|
|
(7,684
|
)
|
|
$
|
(167,190
|
)
|
|
$
|
2,656,620
|
|
|
$
|
8,255
|
|
|
$
|
2,664,875
|
|
Acquisition of QIAGEN Marseille S.A. shares from noncontrolling interests
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(6,367
|
)
|
|
(6,367
|
)
|
||||||||
Net income
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
130,148
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
130,148
|
|
|
(246
|
)
|
|
129,902
|
|
||||||||
Unrealized loss, net on pension
|
(17)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,266
|
)
|
|
—
|
|
|
—
|
|
|
(1,266
|
)
|
|
—
|
|
|
(1,266
|
)
|
||||||||
Unrealized gain, net on hedging contracts
|
(13)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
4,003
|
|
|
—
|
|
|
—
|
|
|
4,003
|
|
|
—
|
|
|
4,003
|
|
||||||||
Realized gain, net on hedging contracts
|
(13)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(3,955
|
)
|
|
—
|
|
|
—
|
|
|
(3,955
|
)
|
|
—
|
|
|
(3,955
|
)
|
||||||||
Unrealized gain, net on marketable securities
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,215
|
|
|
—
|
|
|
—
|
|
|
1,215
|
|
|
—
|
|
|
1,215
|
|
||||||||
Translation adjustment, net
|
(17)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(124,418
|
)
|
|
—
|
|
|
—
|
|
|
(124,418
|
)
|
|
392
|
|
|
(124,026
|
)
|
||||||||
Purchase of treasury shares
|
(17)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(842
|
)
|
|
(20,818
|
)
|
|
(20,818
|
)
|
|
—
|
|
|
(20,818
|
)
|
||||||||
Issuance of common shares in connection with stock plan
|
(20)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(25,280
|
)
|
|
—
|
|
|
1,824
|
|
|
35,596
|
|
|
10,316
|
|
|
—
|
|
|
10,316
|
|
||||||||
Excess tax benefit of employee stock plans
|
|
|
—
|
|
|
—
|
|
|
3,328
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
3,328
|
|
|
—
|
|
|
3,328
|
|
||||||||
Share-based compensation
|
(20)
|
|
—
|
|
|
—
|
|
|
23,761
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
23,761
|
|
|
—
|
|
|
23,761
|
|
||||||||
Proceeds from subscription receivables
|
|
|
—
|
|
|
—
|
|
|
97
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
97
|
|
|
—
|
|
|
97
|
|
||||||||
Redemption of subscription receivables
|
|
|
—
|
|
|
—
|
|
|
(112,995
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(112,995
|
)
|
|
—
|
|
|
(112,995
|
)
|
||||||||
BALANCE AT
DECEMBER 31, 2015 |
|
|
239,707
|
|
|
$
|
2,812
|
|
|
$
|
1,765,595
|
|
|
$
|
1,209,197
|
|
|
$
|
(259,156
|
)
|
|
(6,702
|
)
|
|
$
|
(152,412
|
)
|
|
$
|
2,566,036
|
|
|
$
|
2,034
|
|
|
$
|
2,568,070
|
|
Acquisition of QIAGEN Marseille S.A. shares from noncontrolling interests
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(2,624
|
)
|
|
(2,624
|
)
|
||||||||
Acquisition of Exiqon A/S
|
(5)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
5,519
|
|
|
5,519
|
|
||||||||
Acquisition of Exiqon A/S shares from noncontrolling interests
|
(5)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(5,474
|
)
|
|
(5,474
|
)
|
||||||||
Net income
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
80,404
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
80,404
|
|
|
(101
|
)
|
|
80,303
|
|
||||||||
Unrealized gain, net on pension
|
(17)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
650
|
|
|
—
|
|
|
—
|
|
|
650
|
|
|
—
|
|
|
650
|
|
||||||||
Unrealized loss, net on hedging contracts
|
(13)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(2,977
|
)
|
|
—
|
|
|
—
|
|
|
(2,977
|
)
|
|
—
|
|
|
(2,977
|
)
|
||||||||
Realized gain, net on hedging contracts
|
(13)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(4,671
|
)
|
|
—
|
|
|
—
|
|
|
(4,671
|
)
|
|
—
|
|
|
(4,671
|
)
|
||||||||
Unrealized loss, net on marketable securities
|
(10)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,371
|
)
|
|
—
|
|
|
—
|
|
|
(1,371
|
)
|
|
—
|
|
|
(1,371
|
)
|
||||||||
Translation adjustment, net
|
(17)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(66,314
|
)
|
|
—
|
|
|
—
|
|
|
(66,314
|
)
|
|
646
|
|
|
(65,668
|
)
|
||||||||
Issuance of common shares in connection with stock plan
|
(20)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(26,137
|
)
|
|
—
|
|
|
1,555
|
|
|
32,406
|
|
|
6,269
|
|
|
—
|
|
|
6,269
|
|
||||||||
Excess tax benefit of employee stock plans
|
|
|
—
|
|
|
—
|
|
|
782
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
782
|
|
|
—
|
|
|
782
|
|
||||||||
Share-based compensation
|
(20)
|
|
—
|
|
|
—
|
|
|
28,288
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
28,288
|
|
|
—
|
|
|
28,288
|
|
||||||||
BALANCE AT
DECEMBER 31, 2016 |
|
|
239,707
|
|
|
$
|
2,812
|
|
|
$
|
1,794,665
|
|
|
$
|
1,263,464
|
|
|
$
|
(333,839
|
)
|
|
(5,147
|
)
|
|
$
|
(120,006
|
)
|
|
$
|
2,607,096
|
|
|
$
|
—
|
|
|
$
|
2,607,096
|
|
Capital repayment
|
(17)
|
|
(8,878
|
)
|
|
(110
|
)
|
|
(244,319
|
)
|
|
—
|
|
|
—
|
|
|
191
|
|
|
—
|
|
|
(244,429
|
)
|
|
—
|
|
|
(244,429
|
)
|
||||||||
Issuance of warrants
|
(17)
|
|
—
|
|
|
—
|
|
|
45,307
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
45,307
|
|
|
—
|
|
|
45,307
|
|
||||||||
Net income
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
40,394
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
40,394
|
|
|
—
|
|
|
40,394
|
|
||||||||
Unrealized gain, net on pension
|
(17)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
620
|
|
|
—
|
|
|
—
|
|
|
620
|
|
|
—
|
|
|
620
|
|
||||||||
Unrealized loss, net on hedging contracts
|
(13)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(42,489
|
)
|
|
—
|
|
|
—
|
|
|
(42,489
|
)
|
|
—
|
|
|
(42,489
|
)
|
||||||||
Realized loss, net on hedging contracts
|
(13)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
19,602
|
|
|
—
|
|
|
—
|
|
|
19,602
|
|
|
—
|
|
|
19,602
|
|
||||||||
Unrealized loss, net on marketable securities
|
(10)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(786
|
)
|
|
—
|
|
|
—
|
|
|
(786
|
)
|
|
—
|
|
|
(786
|
)
|
||||||||
Translation adjustment, net
|
(17)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
136,133
|
|
|
—
|
|
|
—
|
|
|
136,133
|
|
|
—
|
|
|
136,133
|
|
||||||||
Purchase of treasury shares
|
(17)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,909
|
)
|
|
(60,970
|
)
|
|
(60,970
|
)
|
|
—
|
|
|
(60,970
|
)
|
|
|
|
Years ended December 31,
|
||||||||||
(in thousands)
|
Note
|
|
2017
|
|
2016
|
|
2015
|
||||||
Cash flows from operating activities:
|
|
|
|
|
|
|
|
||||||
Net income
|
|
|
$
|
40,394
|
|
|
$
|
80,303
|
|
|
$
|
129,902
|
|
Adjustments to reconcile net income to net cash provided by operating activities, net of effects of businesses acquired:
|
|
|
|
|
|
|
|
||||||
Depreciation and amortization
|
|
|
216,448
|
|
|
213,056
|
|
|
191,473
|
|
|||
Non-cash impairments
|
(6)
|
|
5,137
|
|
|
44,399
|
|
|
5,471
|
|
|||
Amortization of debt discount and issuance costs
|
|
|
24,773
|
|
|
20,451
|
|
|
19,955
|
|
|||
Share-based compensation expense
|
(20)
|
|
34,442
|
|
|
28,288
|
|
|
23,760
|
|
|||
Excess tax benefits from share-based compensation
|
|
|
—
|
|
|
(782
|
)
|
|
(3,328
|
)
|
|||
Deferred income taxes
|
(16)
|
|
60,176
|
|
|
(63,981
|
)
|
|
(32,280
|
)
|
|||
Loss on early redemption of debt
|
(15)
|
|
—
|
|
|
—
|
|
|
7,564
|
|
|||
Loss (gain) on marketable securities
|
|
|
1,055
|
|
|
(1,360
|
)
|
|
6,039
|
|
|||
Reversals of contingent consideration
|
(14)
|
|
(3,269
|
)
|
|
(6,501
|
)
|
|
(5,225
|
)
|
|||
Other items, net including fair value changes in derivatives
|
|
|
(4,521
|
)
|
|
19,435
|
|
|
2,609
|
|
|||
Net changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
||||||
Accounts receivable
|
(3)
|
|
(34,165
|
)
|
|
(12,238
|
)
|
|
(24,764
|
)
|
|||
Inventories
|
(3)
|
|
(21,633
|
)
|
|
(20,346
|
)
|
|
(33,194
|
)
|
|||
Prepaid expenses and other current assets
|
(8)
|
|
(5,245
|
)
|
|
6,640
|
|
|
52,315
|
|
|||
Other long-term assets
|
|
|
(16,786
|
)
|
|
3,549
|
|
|
2,730
|
|
|||
Accounts payable
|
|
|
4,321
|
|
|
(1,466
|
)
|
|
7,732
|
|
|||
Accrued and other current liabilities
|
(12)
|
|
2,828
|
|
|
10,618
|
|
|
(25,570
|
)
|
|||
Income taxes
|
(16)
|
|
(41,266
|
)
|
|
13,483
|
|
|
(4,242
|
)
|
|||
Other long-term liabilities
|
|
|
24,090
|
|
|
8,054
|
|
|
(3,450
|
)
|
|||
Net cash provided by operating activities
|
|
|
286,779
|
|
|
341,602
|
|
|
317,497
|
|
|||
Cash flows from investing activities:
|
|
|
|
|
|
|
|
||||||
Purchases of property, plant and equipment
|
|
|
(90,081
|
)
|
|
(74,536
|
)
|
|
(97,778
|
)
|
|||
Proceeds from sale of equipment
|
|
|
42
|
|
|
63
|
|
|
103
|
|
|||
Purchases of intangible assets
|
|
|
(34,324
|
)
|
|
(19,388
|
)
|
|
(19,703
|
)
|
|||
Purchases of investments
|
|
|
(4,777
|
)
|
|
(23,448
|
)
|
|
(6,053
|
)
|
|||
Cash paid for acquisitions, net of cash acquired
|
(5)
|
|
(50,549
|
)
|
|
(90,490
|
)
|
|
(66,930
|
)
|
|||
Purchases of short-term investments
|
(7)
|
|
(450,564
|
)
|
|
(496,304
|
)
|
|
(317,570
|
)
|
|||
Proceeds from sales of short-term investments
|
(7)
|
|
189,006
|
|
|
533,847
|
|
|
367,714
|
|
|||
Cash paid for collateral asset
|
(13)
|
|
(20,707
|
)
|
|
(1,200
|
)
|
|
—
|
|
|||
Other investing activities
|
|
|
(2,310
|
)
|
|
(7,600
|
)
|
|
(5,983
|
)
|
|||
Net cash used in investing activities
|
|
|
(464,264
|
)
|
|
(179,056
|
)
|
|
(146,200
|
)
|
|||
Cash flows from financing activities:
|
|
|
|
|
|
|
|
||||||
Proceeds from long-term debt, net of issuance costs
|
(15)
|
|
329,875
|
|
|
—
|
|
|
—
|
|
|||
Proceeds from issuance of cash convertible notes, net of issuance costs
|
(15)
|
|
394,391
|
|
|
—
|
|
|
(86
|
)
|
|||
Purchase of call option related to cash convertible notes
|
(15)
|
|
(73,646
|
)
|
|
—
|
|
|
—
|
|
|||
Proceeds from issuance of warrants, net of issuance costs
|
(17)
|
|
45,396
|
|
|
—
|
|
|
—
|
|
|||
Capital repayment
|
(17)
|
|
(243,945
|
)
|
|
—
|
|
|
—
|
|
|||
Repayment of long-term debt
|
(15)
|
|
—
|
|
|
(6,738
|
)
|
|
(251,868
|
)
|
|||
Principal payments on capital leases
|
|
|
(1,402
|
)
|
|
(1,322
|
)
|
|
(1,079
|
)
|
|||
Excess tax benefits from share-based compensation
|
|
|
—
|
|
|
782
|
|
|
3,328
|
|
|||
Proceeds from issuance of common shares
|
|
|
6,075
|
|
|
6,269
|
|
|
10,316
|
|
|||
Purchase of treasury shares
|
(17)
|
|
(60,970
|
)
|
|
—
|
|
|
(20,818
|
)
|
|||
Other financing activities
|
|
|
(8,587
|
)
|
|
(9,595
|
)
|
|
1,594
|
|
|||
Net cash provided by (used in) financing activities
|
|
|
387,187
|
|
|
(10,604
|
)
|
|
(258,613
|
)
|
|||
Effect of exchange rate changes on cash and cash equivalents
|
|
|
8,832
|
|
|
(2,773
|
)
|
|
(15,340
|
)
|
|||
Net increase (decrease) in cash and cash equivalents
|
|
|
218,534
|
|
|
149,169
|
|
|
(102,656
|
)
|
|||
Cash and cash equivalents, beginning of period
|
|
|
439,180
|
|
|
290,011
|
|
|
392,667
|
|
|||
Cash and cash equivalents, end of period
|
|
|
$
|
657,714
|
|
|
$
|
439,180
|
|
|
$
|
290,011
|
|
Supplemental cash flow disclosures:
|
|
|
|
|
|
|
|
||||||
Cash paid for interest
|
|
|
$
|
20,252
|
|
|
$
|
18,227
|
|
|
$
|
20,799
|
|
Cash paid for income taxes
|
|
|
$
|
40,499
|
|
|
$
|
22,670
|
|
|
$
|
34,441
|
|
Supplemental disclosure of non-cash investing and financing activities:
|
|
|
|
|
|
|
|
||||||
Equipment purchased through capital lease
|
|
|
$
|
88
|
|
|
$
|
113
|
|
|
$
|
231
|
|
Intangible assets acquired in non-monetary exchange
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
5,900
|
|
•
|
requiring equity investments (except those accounted for under the equity method of accounting, or those that result in consolidation of the investee) to be measured at fair value with changes in fair value recognized in net income;
|
•
|
requiring public business entities to use the exit price notion when measuring the fair value of financial instruments for disclosure purposes;
|
•
|
requiring separate presentation of financial assets and financial liabilities by measurement category and form of financial asset (i.e., securities or loans and receivables) on the balance sheet or the accompanying notes to the financial statements;
|
•
|
eliminating the requirement for public business entities to disclose the method(s) and significant assumptions used to estimate the fair value that is required to be disclosed for financial instruments measured at amortized cost on the balance sheet; and
|
•
|
requiring a reporting organization to present separately in other comprehensive income the portion of the total change in the fair value of a liability resulting from a change in the instrument-specific credit risk (also referred to as “own
|
•
|
debt prepayment or debt extinguishment costs;
|
•
|
settlement of zero-coupon bonds;
|
•
|
contingent consideration payments made after a business combination;
|
•
|
proceeds from the settlement of insurance claims;
|
•
|
proceeds from the settlement of corporate-owned life insurance policies, including bank-owned life insurance policies;
|
•
|
distributions received from equity method investees;
|
•
|
beneficial interests in securitization transactions; and
|
•
|
separately identifiable cash flows and application of the predominance principle.
|
|
|
Closing rate at December 31,
|
|
Annual average rate
|
||||||
(US$ equivalent for one)
|
|
2017
|
|
2016
|
|
2017
|
|
2016
|
|
2015
|
Euro (EUR)
|
|
1.1993
|
|
1.0541
|
|
1.1292
|
|
1.1068
|
|
1.1100
|
Pound Sterling (GBP)
|
|
1.3517
|
|
1.2312
|
|
1.2882
|
|
1.3560
|
|
1.5286
|
Swiss Franc (CHF)
|
|
1.0249
|
|
0.9816
|
|
1.0156
|
|
1.0153
|
|
1.0406
|
Australian Dollar (AUD)
|
|
0.7815
|
|
0.7222
|
|
0.7666
|
|
0.7439
|
|
0.7522
|
Canadian Dollar (CAD)
|
|
0.7975
|
|
0.7430
|
|
0.7710
|
|
0.7552
|
|
0.7836
|
Japanese Yen (JPY)
|
|
0.0089
|
|
0.0085
|
|
0.0089
|
|
0.0092
|
|
0.0083
|
Chinese Yuan (CNY)
|
|
0.1537
|
|
0.1440
|
|
0.1480
|
|
0.1506
|
|
0.1592
|
•
|
The delivered items have value to the client on a stand-alone basis;
|
•
|
If the arrangement includes a general right of return relative to the delivered item, delivery or performance of the undelivered item or items is considered probable and substantially in the control of the Company.
|
(in thousands)
|
Total
|
||
BALANCE AT DECEMBER 31, 2015
|
$
|
2,637
|
|
Provision charged to cost of sales
|
3,562
|
|
|
Usage
|
(2,936
|
)
|
|
Adjustments to previously provided warranties, net
|
(424
|
)
|
|
Currency translation
|
(60
|
)
|
|
BALANCE AT DECEMBER 31, 2016
|
$
|
2,779
|
|
Provision charged to cost of sales
|
3,024
|
|
|
Usage
|
(2,859
|
)
|
|
Adjustments to previously provided warranties, net
|
(54
|
)
|
|
Currency translation
|
161
|
|
|
BALANCE AT DECEMBER 31, 2017
|
$
|
3,051
|
|
(in thousands)
|
|
2017
|
|
2016
|
||||
Cash at bank and on hand
|
|
$
|
139,597
|
|
|
$
|
137,615
|
|
Short-term bank deposits
|
|
518,117
|
|
|
301,565
|
|
||
Cash and Cash Equivalents
|
|
$
|
657,714
|
|
|
$
|
439,180
|
|
(in thousands)
|
2017
|
|
2016
|
||||
Raw materials
|
$
|
23,717
|
|
|
$
|
29,402
|
|
Work in process
|
33,153
|
|
|
28,123
|
|
||
Finished goods
|
99,057
|
|
|
79,027
|
|
||
Total inventories, net
|
$
|
155,927
|
|
|
$
|
136,552
|
|
•
|
adverse financial conditions of a specific issuer, segment, industry, region or other variables;
|
•
|
the length of time and the extent to which the fair value has been less than cost; and
|
•
|
the financial condition and near-term prospects of the issuer.
|
(in thousands)
|
2017
|
|
2016
|
|
2015
|
||||||
Net Sales
|
|
|
|
|
|
||||||
Consumables and related revenues
|
$
|
1,242,715
|
|
|
$
|
1,166,131
|
|
|
$
|
1,114,580
|
|
Instrumentation
|
174,821
|
|
|
171,860
|
|
|
166,406
|
|
|||
Total
|
$
|
1,417,536
|
|
|
$
|
1,337,991
|
|
|
$
|
1,280,986
|
|
(in thousands)
|
2017
|
|
2016
|
|
2015
|
||||||
Net Sales
|
|
|
|
|
|
||||||
Americas:
|
|
|
|
|
|
||||||
United States
|
$
|
579,906
|
|
|
$
|
555,676
|
|
|
$
|
525,532
|
|
Other Americas
|
73,478
|
|
|
71,797
|
|
|
79,578
|
|
|||
Total Americas
|
653,384
|
|
|
627,473
|
|
|
605,110
|
|
|||
Europe, Middle East and Africa
|
462,980
|
|
|
428,055
|
|
|
409,955
|
|
|||
Asia Pacific and Rest of World
|
301,172
|
|
|
282,463
|
|
|
265,921
|
|
|||
Total
|
$
|
1,417,536
|
|
|
$
|
1,337,991
|
|
|
$
|
1,280,986
|
|
(in thousands)
|
2017
|
|
2016
|
||||
Long-lived assets
|
|
|
|
||||
Americas:
|
|
|
|
||||
United States
|
$
|
148,694
|
|
|
$
|
145,813
|
|
Other Americas
|
4,488
|
|
|
4,544
|
|
||
Total Americas
|
153,182
|
|
|
150,357
|
|
||
Germany
|
286,567
|
|
|
237,190
|
|
||
Other Europe
|
41,188
|
|
|
37,057
|
|
||
Asia Pacific and Rest of World
|
13,384
|
|
|
12,051
|
|
||
Total
|
$
|
494,321
|
|
|
$
|
436,655
|
|
(in thousands)
|
|
Exiqon acquisition
|
||
|
|
|
||
Purchase Price:
|
|
|
||
Cash consideration
|
|
$
|
95,163
|
|
Fair value of remaining shares
|
|
5,519
|
|
|
|
|
$
|
100,682
|
|
|
|
|
||
Final Allocation:
|
|
|
||
Cash and cash equivalents
|
|
$
|
4,824
|
|
Accounts receivable
|
|
3,581
|
|
|
Inventory
|
|
1,553
|
|
|
Prepaid expenses and other current assets
|
|
1,853
|
|
|
Accounts payable
|
|
(1,289
|
)
|
|
Accruals and other current liabilities
|
|
(11,587
|
)
|
|
Debt assumed
|
|
(6,068
|
)
|
|
Other long-term liabilities
|
|
(197
|
)
|
|
Deferred tax asset on tax loss carry forwards
|
|
10,016
|
|
|
Fixed and other long-term assets
|
|
2,870
|
|
|
Developed technology
|
|
18,500
|
|
|
Customer relationships
|
|
3,800
|
|
|
Tradenames
|
|
1,400
|
|
|
Goodwill
|
|
76,807
|
|
|
Deferred tax liability on fair value of identifiable intangible assets acquired
|
|
(5,381
|
)
|
|
|
|
$
|
100,682
|
|
(in thousands)
|
Personnel Related
|
|
Consulting Costs
|
|
Total
|
||||||
Costs incurred in 2017
|
$
|
6,174
|
|
|
$
|
4,583
|
|
|
$
|
10,757
|
|
Foreign currency translation adjustment
|
48
|
|
|
2
|
|
|
50
|
|
|||
Liability at December 31, 2017
|
$
|
6,222
|
|
|
$
|
4,585
|
|
|
$
|
10,807
|
|
(in thousands)
|
Personnel Related
|
|
Facility Related
|
|
Contract and Other Costs
|
|
Asset Impairments & Disposals
|
|
Total
|
||||||||||
Cost of sales
|
$
|
1,222
|
|
|
$
|
205
|
|
|
$
|
43
|
|
|
$
|
10,490
|
|
|
$
|
11,960
|
|
General and administrative, restructuring, integration and other
|
17,998
|
|
|
6,960
|
|
|
8,272
|
|
|
22,963
|
|
|
56,193
|
|
|||||
Other expense, net
|
—
|
|
|
—
|
|
|
—
|
|
|
10,946
|
|
|
10,946
|
|
|||||
Total 2016 costs
|
$
|
19,220
|
|
|
$
|
7,165
|
|
|
$
|
8,315
|
|
|
$
|
44,399
|
|
|
$
|
79,099
|
|
Cost of sales
|
$
|
1,141
|
|
|
$
|
—
|
|
|
$
|
238
|
|
|
$
|
—
|
|
|
$
|
1,379
|
|
General and administrative, restructuring, integration and other
|
$
|
8,399
|
|
|
$
|
350
|
|
|
$
|
9,612
|
|
|
$
|
—
|
|
|
$
|
18,361
|
|
Total 2017 costs
|
$
|
9,540
|
|
|
$
|
350
|
|
|
$
|
9,850
|
|
|
$
|
—
|
|
|
$
|
19,740
|
|
Total cumulative costs
|
$
|
28,760
|
|
|
$
|
7,515
|
|
|
$
|
18,165
|
|
|
$
|
44,399
|
|
|
$
|
98,839
|
|
(in thousands)
|
Personnel Related
|
|
Facility Related
|
|
Contract and Other Costs
|
|
Total
|
||||||||
Costs incurred in 2016
|
$
|
21,252
|
|
|
$
|
7,165
|
|
|
$
|
8,315
|
|
|
$
|
36,732
|
|
Payments
|
(2,742
|
)
|
|
(601
|
)
|
|
(2,391
|
)
|
|
(5,734
|
)
|
||||
Facility deferred rent reclassified to restructuring liability
|
—
|
|
|
1,326
|
|
|
—
|
|
|
1,326
|
|
||||
Foreign currency translation adjustment
|
(30
|
)
|
|
(8
|
)
|
|
19
|
|
|
(19
|
)
|
||||
Liability at December 31, 2016
|
$
|
18,480
|
|
|
$
|
7,882
|
|
|
$
|
5,943
|
|
|
$
|
32,305
|
|
Additional costs in 2017
|
13,357
|
|
|
1,798
|
|
|
9,883
|
|
|
25,038
|
|
||||
Release of excess accrual
|
(3,083
|
)
|
|
(1,448
|
)
|
|
(30
|
)
|
|
(4,561
|
)
|
||||
Payments
|
(25,586
|
)
|
|
(7,478
|
)
|
|
(14,887
|
)
|
|
(47,951
|
)
|
||||
Facility deferred rent reclassified to restructuring liability
|
—
|
|
|
241
|
|
|
—
|
|
|
241
|
|
||||
Foreign currency translation adjustment
|
1,126
|
|
|
57
|
|
|
157
|
|
|
1,340
|
|
||||
Liability at December 31, 2017
|
$
|
4,294
|
|
|
$
|
1,052
|
|
|
$
|
1,066
|
|
|
$
|
6,412
|
|
(in thousands)
|
Personnel Related
|
|
Facility Related
|
|
Contract and Other Costs
|
|
Total
|
||||||||
Balance at December 31, 2014
|
$
|
6,341
|
|
|
$
|
7,627
|
|
|
$
|
652
|
|
|
$
|
14,620
|
|
Payments
|
(4,789
|
)
|
|
(4,199
|
)
|
|
(418
|
)
|
|
(9,406
|
)
|
||||
Release of excess accrual
|
(453
|
)
|
|
—
|
|
|
(20
|
)
|
|
(473
|
)
|
||||
Foreign currency translation adjustment
|
(630
|
)
|
|
—
|
|
|
—
|
|
|
(630
|
)
|
||||
Balance at December 31, 2015
|
$
|
469
|
|
|
$
|
3,428
|
|
|
$
|
214
|
|
|
$
|
4,111
|
|
Payments
|
(143
|
)
|
|
(3,428
|
)
|
|
(214
|
)
|
|
(3,785
|
)
|
||||
Release of excess accrual
|
(325
|
)
|
|
—
|
|
|
—
|
|
|
(325
|
)
|
||||
Foreign currency translation adjustment
|
(1
|
)
|
|
—
|
|
|
—
|
|
|
(1
|
)
|
||||
Balance at December 31, 2016
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
(in thousands)
|
2017
|
|
2016
|
||||
Prepaid expenses
|
$
|
41,775
|
|
|
$
|
35,529
|
|
Cash collateral
|
21,907
|
|
|
1,200
|
|
||
Value added tax
|
17,870
|
|
|
14,985
|
|
||
Other receivables
|
15,902
|
|
|
9,699
|
|
||
Fair value of derivative instruments
|
9,033
|
|
|
5,386
|
|
||
Total prepaid expenses and other current assets
|
$
|
106,487
|
|
|
$
|
66,799
|
|
(in thousands)
|
Estimated useful life
(in years) |
|
2017
|
|
2016
|
||||
Land
|
—
|
|
$
|
18,188
|
|
|
$
|
16,327
|
|
Buildings and improvements
|
5-40
|
|
328,938
|
|
|
301,092
|
|
||
Machinery and equipment
|
3-10
|
|
299,175
|
|
|
257,349
|
|
||
Computer software
|
3-7
|
|
243,809
|
|
|
176,227
|
|
||
Furniture and office equipment
|
3-10
|
|
103,257
|
|
|
89,560
|
|
||
Construction in progress
|
—
|
|
65,542
|
|
|
47,260
|
|
||
|
|
|
1,058,909
|
|
|
887,815
|
|
||
Less: Accumulated depreciation and amortization
|
|
|
(564,588
|
)
|
|
(451,160
|
)
|
||
Property, plant and equipment, net
|
|
|
$
|
494,321
|
|
|
$
|
436,655
|
|
|
|
|
Equity investments
as of December 31,
|
|
Share of income (loss)
for the years ended December 31,
|
|||||||||||||||||
($ in thousands)
|
Ownership
Percentage
|
|
2017
|
|
2016
|
|
2017
|
|
2016
|
|
2015
|
|||||||||||
PreAnalytiX GmbH
|
50.00
|
%
|
|
$
|
7,562
|
|
|
$
|
3,519
|
|
|
$
|
3,818
|
|
|
$
|
3,067
|
|
|
$
|
1,878
|
|
Biotype Innovation GmbH
|
24.90
|
%
|
|
3,821
|
|
|
3,339
|
|
|
39
|
|
|
(335
|
)
|
|
(595
|
)
|
|||||
MAQGEN Biotechnology Co., Ltd
|
40.00
|
%
|
|
3,285
|
|
|
—
|
|
|
(542
|
)
|
|
—
|
|
|
—
|
|
|||||
Pyrobett
|
19.00
|
%
|
|
2,639
|
|
|
2,444
|
|
|
195
|
|
|
333
|
|
|
(600
|
)
|
|||||
Hombrechtikon Systems Engineering AG
|
19.00
|
%
|
|
1,155
|
|
|
1,524
|
|
|
(346
|
)
|
|
—
|
|
|
—
|
|
|||||
QIAGEN (Suzhou) Institute of Translation Research Co., Ltd.
|
0.00
|
%
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(244
|
)
|
|
(107
|
)
|
|||||
QIAGEN Finance
|
100.00
|
%
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
85
|
|
|||||
|
|
|
$
|
18,462
|
|
|
$
|
10,826
|
|
|
$
|
3,164
|
|
|
$
|
2,821
|
|
|
$
|
661
|
|
|
|
|
2017
|
|
2016
|
||||||||||||
(in thousands)
|
Weighted Average Life
(in years)
|
|
Gross
Carrying
Amount
|
|
Accumulated
Amortization
|
|
Gross
Carrying
Amount
|
|
Accumulated
Amortization
|
||||||||
Amortized Intangible Assets:
|
|
|
|
|
|
|
|
|
|
||||||||
Patent and license rights
|
9.41
|
|
$
|
407,635
|
|
|
$
|
(280,434
|
)
|
|
$
|
373,609
|
|
|
$
|
(233,406
|
)
|
Developed technology
|
11.82
|
|
771,893
|
|
|
(544,633
|
)
|
|
708,825
|
|
|
(469,312
|
)
|
||||
Customer base, trademarks, and non-compete agreements
|
10.28
|
|
437,213
|
|
|
(292,356
|
)
|
|
422,797
|
|
|
(245,354
|
)
|
||||
|
10.76
|
|
$
|
1,616,741
|
|
|
$
|
(1,117,423
|
)
|
|
$
|
1,505,231
|
|
|
$
|
(948,072
|
)
|
Unamortized Intangible Assets:
|
|
|
|
|
|
|
|
|
|
||||||||
Goodwill
|
|
|
$
|
2,012,904
|
|
|
|
|
$
|
1,925,518
|
|
|
|
(in thousands)
|
Intangibles
|
|
Goodwill
|
||||
BALANCE AT DECEMBER 31, 2015
|
$
|
636,421
|
|
|
$
|
1,875,698
|
|
Additions
|
70,937
|
|
|
—
|
|
||
Purchase adjustments
|
(321
|
)
|
|
316
|
|
||
Additions from acquisitions
|
23,700
|
|
|
76,807
|
|
||
Amortization
|
(137,949
|
)
|
|
—
|
|
||
Disposals
|
(29
|
)
|
|
(2,650
|
)
|
||
Impairment losses
|
(21,423
|
)
|
|
—
|
|
||
Foreign currency translation adjustments
|
(14,177
|
)
|
|
(24,653
|
)
|
||
BALANCE AT DECEMBER 31, 2016
|
$
|
557,159
|
|
|
$
|
1,925,518
|
|
Additions
|
15,527
|
|
|
—
|
|
||
Additions from acquisitions
|
28,700
|
|
|
26,934
|
|
||
Amortization
|
(133,797
|
)
|
|
—
|
|
||
Disposals
|
(897
|
)
|
|
—
|
|
||
Foreign currency translation adjustments
|
32,626
|
|
|
60,452
|
|
||
BALANCE AT DECEMBER 31, 2017
|
$
|
499,318
|
|
|
$
|
2,012,904
|
|
(in thousands)
|
Amortization
|
||
Years ended December 31:
|
|
||
2018
|
$
|
114,009
|
|
2019
|
$
|
92,717
|
|
2020
|
$
|
65,503
|
|
2021
|
$
|
56,214
|
|
2022
|
$
|
40,692
|
|
(in thousands)
|
2017
|
|
2016
|
||||
Accrued expenses and other liabilities
|
$
|
85,986
|
|
|
$
|
74,245
|
|
Payroll and related accruals
|
63,525
|
|
|
54,772
|
|
||
Deferred revenue
|
49,357
|
|
|
44,629
|
|
||
Restructuring
|
14,667
|
|
|
27,590
|
|
||
Accrued contingent consideration and milestone payments
|
11,539
|
|
|
2,957
|
|
||
Accrued royalties
|
6,714
|
|
|
7,801
|
|
||
Accrued interest on long-term debt
|
5,543
|
|
|
4,239
|
|
||
Cash collateral
|
3,000
|
|
|
6,984
|
|
||
Fair value of derivative instruments
|
2,424
|
|
|
6,089
|
|
||
Current portion of capital lease obligations
|
1,359
|
|
|
999
|
|
||
Total accrued and other current liabilities
|
$
|
244,114
|
|
|
$
|
230,305
|
|
|
Derivatives in Asset Positions
Fair value
|
|
Derivatives in Liability Positions
Fair value
|
||||||||||||
(in thousands)
|
2017
|
|
2016
|
|
2017
|
|
2016
|
||||||||
Derivative instruments designated as hedges
|
|
|
|
|
|
|
|
||||||||
Interest rate contracts
|
$
|
2,409
|
|
|
$
|
6,655
|
|
|
$
|
(28,942
|
)
|
|
$
|
—
|
|
Total derivative instruments designated as hedges
|
$
|
2,409
|
|
|
$
|
6,655
|
|
|
$
|
(28,942
|
)
|
|
$
|
—
|
|
Undesignated derivative instruments
|
|
|
|
|
|
|
|
||||||||
Call spread overlay
|
$
|
223,164
|
|
|
$
|
185,750
|
|
|
$
|
(224,286
|
)
|
|
$
|
(187,546
|
)
|
Foreign exchange contracts
|
7,480
|
|
|
3,154
|
|
|
(2,424
|
)
|
|
(6,089
|
)
|
||||
Total derivative instruments
|
$
|
230,644
|
|
|
$
|
188,904
|
|
|
$
|
(226,710
|
)
|
|
$
|
(193,635
|
)
|
Year-Ended December 31, 2017 (in thousands)
|
|
Gain/(loss)
recognized in AOCI |
|
Location of
gain/loss in income statement |
|
(Gain) loss
reclassified from AOCI into income |
|
Gain (loss) recognized
in income |
||||||
Non-derivative instruments
|
|
|
|
|
|
|
|
|
||||||
Net investment hedge
|
|
$
|
(19,757
|
)
|
|
Other expense, net
|
|
$
|
—
|
|
|
n/a
|
||
|
|
|
|
|
|
|
|
|
||||||
Cash flow hedges
|
|
|
|
|
|
|
|
|
||||||
Interest rate contracts
|
|
$
|
(30,310
|
)
|
|
Other expense, net
|
|
$
|
26,136
|
|
|
n/a
|
||
|
|
|
|
|
|
|
|
|
||||||
Fair value hedges
|
|
|
|
|
|
|
|
|
||||||
Interest rate contracts
|
|
$
|
—
|
|
|
Other expense, net
|
|
$
|
—
|
|
|
$
|
(2,199
|
)
|
|
|
|
|
|
|
|
|
|
||||||
Undesignated derivative instruments
|
|
|
|
|
|
|
|
|
||||||
Call spread overlay
|
|
n/a
|
|
Other expense, net
|
|
n/a
|
|
$
|
1,573
|
|
||||
Foreign exchange contracts
|
|
n/a
|
|
Other expense, net
|
|
n/a
|
|
11,813
|
|
|||||
|
|
|
|
|
|
|
|
$
|
13,386
|
|
Year-Ended December 31, 2016 (in thousands)
|
|
Gain/(loss)
recognized in AOCI |
|
Location of
(gain) loss in income statement |
|
(Gain) loss
reclassified from AOCI into income |
|
Gain (loss) recognized
in income |
||||||
Cash flow hedges
|
|
|
|
|
|
|
|
|
||||||
Interest rate contracts
|
|
$
|
(3,969
|
)
|
|
Other expense, net
|
|
$
|
(6,228
|
)
|
|
n/a
|
||
|
|
|
|
|
|
|
|
|
||||||
Fair value hedges
|
|
|
|
|
|
|
|
|
||||||
Interest rate contracts
|
|
$
|
—
|
|
|
Other expense, net
|
|
$
|
—
|
|
|
$
|
(1,930
|
)
|
|
|
|
|
|
|
|
|
|
||||||
Undesignated derivative instruments
|
|
|
|
|
|
|
|
|
||||||
Call spread overlay
|
|
n/a
|
|
Other expense, net
|
|
n/a
|
|
$
|
118
|
|
||||
Foreign exchange contracts
|
|
n/a
|
|
Other expense, net
|
|
n/a
|
|
(6,072
|
)
|
|||||
|
|
|
|
|
|
|
|
$
|
(5,954
|
)
|
Year-Ended December 31, 2015 (in thousands)
|
|
Gain/(loss)
recognized in AOCI |
|
Location of
(gain) loss in income statement |
|
(Gain) loss
reclassified from AOCI into income |
|
Gain (loss) recognized
in income |
||||||
Cash flow hedges
|
|
|
|
|
|
|
|
|
||||||
Interest rate contracts
|
|
$
|
5,337
|
|
|
Other expense, net
|
|
$
|
(5,273
|
)
|
|
n/a
|
||
|
|
|
|
|
|
|
|
|
||||||
Fair value hedges
|
|
|
|
|
|
|
|
|
||||||
Interest rate contracts
|
|
$
|
—
|
|
|
Other expense, net
|
|
$
|
—
|
|
|
$
|
1,691
|
|
|
|
|
|
|
|
|
|
|
||||||
Undesignated derivative instruments
|
|
|
|
|
|
|
|
|
||||||
Call spread overlay
|
|
n/a
|
|
Other expense, net
|
|
n/a
|
|
$
|
(171
|
)
|
||||
Foreign exchange contracts
|
|
n/a
|
|
Other expense, net
|
|
n/a
|
|
$
|
21,434
|
|
||||
|
|
|
|
|
|
|
|
$
|
21,263
|
|
|
As of December 31, 2017
|
|
As of December 31, 2016
|
||||||||||||||||||||||||||||
(in thousands)
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
Total
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
Total
|
||||||||||||||||
Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Short-term investments
|
$
|
—
|
|
|
$
|
359,198
|
|
|
$
|
—
|
|
|
$
|
359,198
|
|
|
$
|
3,699
|
|
|
$
|
89,300
|
|
|
$
|
—
|
|
|
$
|
92,999
|
|
Marketable securities
|
3,208
|
|
|
—
|
|
|
—
|
|
|
3,208
|
|
|
4,064
|
|
|
—
|
|
|
—
|
|
|
4,064
|
|
||||||||
Call option
|
—
|
|
|
223,164
|
|
|
—
|
|
|
223,164
|
|
|
—
|
|
|
185,750
|
|
|
—
|
|
|
185,750
|
|
||||||||
Foreign exchange contracts
|
—
|
|
|
7,480
|
|
|
—
|
|
|
7,480
|
|
|
—
|
|
|
3,154
|
|
|
—
|
|
|
3,154
|
|
||||||||
Interest rate contracts
|
—
|
|
|
2,409
|
|
|
—
|
|
|
2,409
|
|
|
—
|
|
|
6,655
|
|
|
—
|
|
|
6,655
|
|
||||||||
|
$
|
3,208
|
|
|
$
|
592,251
|
|
|
$
|
—
|
|
|
$
|
595,459
|
|
|
$
|
7,763
|
|
|
$
|
284,859
|
|
|
$
|
—
|
|
|
$
|
292,622
|
|
Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Foreign exchange contracts
|
$
|
—
|
|
|
$
|
(2,424
|
)
|
|
$
|
—
|
|
|
$
|
(2,424
|
)
|
|
$
|
—
|
|
|
$
|
(6,089
|
)
|
|
$
|
—
|
|
|
$
|
(6,089
|
)
|
Interest rate contracts
|
—
|
|
|
(28,942
|
)
|
|
—
|
|
|
(28,942
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||||||
Cash conversion option
|
—
|
|
|
(224,286
|
)
|
|
—
|
|
|
(224,286
|
)
|
|
—
|
|
|
(187,546
|
)
|
|
—
|
|
|
(187,546
|
)
|
||||||||
Contingent consideration
|
—
|
|
|
—
|
|
|
(11,539
|
)
|
|
(11,539
|
)
|
|
—
|
|
|
—
|
|
|
(8,754
|
)
|
|
(8,754
|
)
|
||||||||
|
$
|
—
|
|
|
$
|
(255,652
|
)
|
|
$
|
(11,539
|
)
|
|
$
|
(267,191
|
)
|
|
$
|
—
|
|
|
$
|
(193,635
|
)
|
|
$
|
(8,754
|
)
|
|
$
|
(202,389
|
)
|
(in thousands)
|
|
Contingent Consideration
|
||
BALANCE AT DECEMBER 31, 2015
|
|
$
|
(17,678
|
)
|
Additions from acquisitions
|
|
(692
|
)
|
|
Payments
|
|
3,120
|
|
|
Gain included in earnings
|
|
6,501
|
|
|
Foreign currency translation adjustments
|
|
(5
|
)
|
|
BALANCE AT DECEMBER 31, 2016
|
|
$
|
(8,754
|
)
|
Additions
|
|
(10,954
|
)
|
|
Payments
|
|
4,900
|
|
|
Gain included in earnings
|
|
3,269
|
|
|
BALANCE AT DECEMBER 31, 2017
|
|
$
|
(11,539
|
)
|
(in thousands)
|
2017
|
|
2016
|
||||
0.375% Senior Unsecured Cash Convertible Notes due 2019
|
$
|
414,843
|
|
|
$
|
402,806
|
|
0.875% Senior Unsecured Cash Convertible Notes due 2021
|
270,762
|
|
|
262,371
|
|
||
0.500% Senior Unsecured Cash Convertible Notes due 2023
|
322,902
|
|
|
—
|
|
||
3.19% Series A Senior Notes due October 16, 2019
|
72,742
|
|
|
73,408
|
|
||
3.75% Series B Senior Notes due October 16, 2022
|
300,276
|
|
|
301,601
|
|
||
3.90% Series C Senior Notes due October 16, 2024
|
26,921
|
|
|
26,910
|
|
||
Schuldschein Private Placement
|
349,812
|
|
|
—
|
|
||
Total long-term debt
|
$
|
1,758,258
|
|
|
$
|
1,067,096
|
|
Year ending December 31,
|
(in thousands)
|
||
2018
|
$
|
—
|
|
2019
|
487,585
|
|
|
2020
|
—
|
|
|
2021
|
311,743
|
|
|
2022
|
479,070
|
|
|
thereafter
|
479,860
|
|
|
|
$
|
1,758,258
|
|
•
|
during any calendar quarter commencing after the calendar quarter ending on
March 31, 2014
(and only during such calendar quarter), if the last reported sale price of our common stock for at least
20
trading days (whether or not consecutive) during a period of
30
consecutive trading days ending on the last trading day of the immediately preceding calendar quarter is greater than or equal to
130%
of the conversion price on each applicable trading day;
|
•
|
if we undergo certain fundamental changes as defined in the agreement;
|
•
|
during the
5
business day period immediately after any
10
consecutive trading day period in which the quoted price for the
2019
Notes or the
2021
Notes for each trading day of the measurement period was less than
98%
of the product of the last reported sale price of our common stock and the conversion rate on each such trading day;
|
•
|
if we elect to distribute assets or property to all or substantially all of the holders of our common stock and those assets or other property have a value of more than
25%
of the average daily volume-weighted average trading price of our common stock for the prior
20
consecutive trading days;
|
•
|
if we elect to redeem the Cash Convertible Notes; or
|
•
|
if we experience certain customary events of default, including defaults under certain other indebtedness.
|
•
|
during any fiscal quarter ending after September 30, 2017, if the arithmetic mean of the last reported sale prices of the Common Stock during a period of
20
consecutive trading days selected from the
30
consecutive trading days ending on and including the final trading day of the immediately preceding quarter is equal to or more than
130%
of the conversion price (i.e., USD
200,000
minimum denomination divided by the applicable Conversion Ratio) applicable on the last day of such preceding quarter;
|
•
|
in the event of early redemption at the option of the Issuer of all the outstanding Notes, where the conversion date falls in the period from (and including) the date on which the notice of redemption is published up to the 10th calendar day preceding the date of such early redemption;
|
•
|
in the event of a planned distribution by the Issuer of cash, assets, securities or other property, which has a per share value greater than
25%
of the arithmetic mean of the volume weighted average price (VWAP) of the Common Stock during the
20
consecutive trading day period immediately preceding the date on which the planned distribution is announced by the
Issuer, at
any time following such notice, which shall be at least
20
scheduled trading days prior to the ex-dividend date for such distribution, until the earlier of (i) the fifth business day immediately preceding the ex-dividend date for such distribution and (ii) the Issuer's announcement that such planned distribution will not take place;
|
•
|
in the event of certain Fundamental Changes or Make-Whole Fundamental Changes (each as described below), where the conversion date falls in the period from the 60th scheduled trading day prior to the anticipated effective date of such Fundamental Change or Make-Whole Fundamental Change (or, if later, public announcement of the same by the Issuer), until (i) the fifth business day immediately preceding the related Fundamental Change Repurchase Date, or (ii) in the case of a Make-Whole Fundamental Change that does not constitute a Fundamental Change, the 60th trading day immediately following such effective date (or, if later in either case, the 60th calendar day following the notification of such Fundamental Change or Make-Whole Fundamental Change);
|
•
|
at any time from and after the occurrence of an event of default, until such event of default has been cured or waived or the principal amount of the Notes shall have been accelerated; or
|
•
|
if a Parity Event or a Trading Price Unavailability Event, as the case may be, occurs, the period of
10
Business Days from and including the first Business Day following the relevant Trading Price Notification Date.
|
|
|
Year-Ended December 31
|
||||||
(in thousands)
|
|
2017
|
|
2016
|
||||
Coupon interest
|
|
$
|
4,832
|
|
|
$
|
4,238
|
|
Amortization of original issuance discount
|
|
21,377
|
|
|
17,503
|
|
||
Amortization of debt issuance costs
|
|
2,615
|
|
|
2,279
|
|
||
Total interest expense related to the Cash Convertible Notes
|
|
$
|
28,824
|
|
|
$
|
24,020
|
|
|
|
|
|
Carrying Value as of
|
||
|
|
|
|
December 31, 2017
|
||
Currency
|
Notional Amount
|
Interest Rate
|
Maturity
|
(in thousands)
|
||
EUR
|
€11.5 million
|
Fixed 0.4%
|
March 2021
|
$
|
13,660
|
|
EUR
|
€23.0 million
|
Floating EURIBOR + 0.4%
|
March 2021
|
27,320
|
|
|
EUR
|
€21.5 million
|
Fixed 0.68%
|
October 2022
|
25,535
|
|
|
EUR
|
€64.5 million
|
Floating EURIBOR + 0.5%
|
October 2022
|
76,605
|
|
|
USD
|
$45.0 million
|
Floating LIBOR + 1.2%
|
October 2022
|
44,862
|
|
|
EUR
|
€25.0 million
|
Floating EURIBOR + 0.5%
|
October 2022
|
31,792
|
|
|
EUR
|
€64.0 million
|
Fixed 1.09%
|
June 2024
|
76,005
|
|
|
EUR
|
€31.0 million
|
Floating EURIBOR + 0.7%
|
June 2024
|
36,815
|
|
|
EUR
|
€14.5 million
|
Fixed 1.61%
|
June 2027
|
17,218
|
|
|
|
|
|
|
$
|
349,812
|
|
(in thousands)
|
2017
|
|
2016
|
|
2015
|
||||||
Pretax income in The Netherlands
|
$
|
42,220
|
|
|
$
|
20,695
|
|
|
$
|
1,310
|
|
Pretax income from foreign operations
|
72,155
|
|
|
36,213
|
|
|
134,993
|
|
|||
|
$
|
114,375
|
|
|
$
|
56,908
|
|
|
$
|
136,303
|
|
(in thousands)
|
2017
|
|
2016
|
|
2015
|
||||||
Current—The Netherlands
|
$
|
3,430
|
|
|
$
|
6,043
|
|
|
$
|
973
|
|
—Foreign
|
10,375
|
|
|
34,543
|
|
|
37,708
|
|
|||
|
13,805
|
|
|
40,586
|
|
|
38,681
|
|
|||
Deferred—The Netherlands
|
151
|
|
|
188
|
|
|
250
|
|
|||
—Foreign
|
60,025
|
|
|
(64,169
|
)
|
|
(32,530
|
)
|
|||
|
60,176
|
|
|
(63,981
|
)
|
|
(32,280
|
)
|
|||
Total income tax expense (benefit)
|
$
|
73,981
|
|
|
$
|
(23,395
|
)
|
|
$
|
6,401
|
|
|
2017
|
|
2016
|
|
2015
|
|||||||||||||||
(in thousands)
|
Amount
|
|
Percent
|
|
Amount
|
|
Percent
|
|
Amount
|
|
Percent
|
|||||||||
Income taxes at The Netherlands statutory rate
|
$
|
28,594
|
|
|
25.0
|
%
|
|
$
|
14,227
|
|
|
25.0
|
%
|
|
$
|
34,076
|
|
|
25.0
|
%
|
Taxation of foreign operations, net
(1)
|
(38,635
|
)
|
|
(33.8
|
)
|
|
(43,265
|
)
|
|
(76.0
|
)
|
|
(36,407
|
)
|
|
(26.7
|
)
|
|||
Tax impact from permanent items
|
(1,586
|
)
|
|
(1.4
|
)
|
|
5,938
|
|
|
10.4
|
|
|
14,219
|
|
|
10.4
|
|
|||
Tax impact from tax-exempt income
|
(1,558
|
)
|
|
(1.4
|
)
|
|
(3,331
|
)
|
|
(5.9
|
)
|
|
(5,810
|
)
|
|
(4.3
|
)
|
|||
Tax contingencies, net
(2)
|
23,189
|
|
|
20.3
|
|
|
1,761
|
|
|
3.1
|
|
|
1,163
|
|
|
0.9
|
|
|||
Taxes due to changes in tax rates
(3)
|
12,958
|
|
|
11.3
|
|
|
399
|
|
|
0.7
|
|
|
(836
|
)
|
|
(0.6
|
)
|
|||
Stock Compensation
(4)
|
(5,237
|
)
|
|
(4.6
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||
Government incentives and other deductions
(5)
|
(4,949
|
)
|
|
(4.3
|
)
|
|
(2,543
|
)
|
|
(4.5
|
)
|
|
(2,754
|
)
|
|
(2.0
|
)
|
|||
Prior year taxes
|
(2,319
|
)
|
|
(2.0
|
)
|
|
1,411
|
|
|
2.5
|
|
|
(1,201
|
)
|
|
(0.9
|
)
|
|||
Valuation allowance
(3)
|
62,644
|
|
|
54.8
|
|
|
1,521
|
|
|
2.7
|
|
|
3,450
|
|
|
2.5
|
|
|||
Other items, net
|
880
|
|
|
0.8
|
|
|
487
|
|
|
0.9
|
|
|
501
|
|
|
0.4
|
|
|||
Total income tax expense (benefit)
|
$
|
73,981
|
|
|
64.7
|
%
|
|
$
|
(23,395
|
)
|
|
(41.1
|
)%
|
|
$
|
6,401
|
|
|
4.7
|
%
|
(in thousands)
|
Unrecognized Tax Benefits
|
||
BALANCE AT DECEMBER 31, 2015
|
$
|
16,735
|
|
Additions based on tax positions related to the current year
|
4,218
|
|
|
Additions for tax positions of prior years
|
5,162
|
|
|
Decrease for tax position of prior years
|
(6,796
|
)
|
|
Reductions due to lapse of statute of limitations
|
(288
|
)
|
|
Decrease from currency translation
|
(737
|
)
|
|
BALANCE AT DECEMBER 31, 2016
|
$
|
18,294
|
|
Additions based on tax positions related to the current year
|
12,212
|
|
|
Additions for tax positions of prior years
|
9,933
|
|
|
Increase from currency translation
|
3,594
|
|
|
BALANCE AT DECEMBER 31, 2017
|
$
|
44,033
|
|
|
2017
|
|
2016
|
||||||||||||
(in thousands)
|
Deferred
Tax Assets
|
|
Deferred
Tax Liability
|
|
Deferred
Tax Assets
|
|
Deferred
Tax Liability
|
||||||||
Net operating loss carryforwards
|
$
|
30,966
|
|
|
$
|
—
|
|
|
$
|
46,627
|
|
|
$
|
—
|
|
Accrued and other current liabilities
|
15,748
|
|
|
—
|
|
|
24,663
|
|
|
—
|
|
||||
Inventories
|
4,163
|
|
|
(778
|
)
|
|
2,919
|
|
|
(1,567
|
)
|
||||
Allowance for bad debts
|
739
|
|
|
(475
|
)
|
|
1,060
|
|
|
(451
|
)
|
||||
Currency revaluation
|
4,095
|
|
|
(167
|
)
|
|
3,474
|
|
|
(73
|
)
|
||||
Property, plant and equipment
|
1,103
|
|
|
(23,649
|
)
|
|
2,096
|
|
|
(19,733
|
)
|
||||
Capital lease
|
531
|
|
|
—
|
|
|
830
|
|
|
—
|
|
||||
Tax credit carryforwards
|
1,563
|
|
|
—
|
|
|
915
|
|
|
—
|
|
||||
Unremitted profits and earnings
|
—
|
|
|
(998
|
)
|
|
—
|
|
|
(923
|
)
|
||||
Intangible assets
|
1,289
|
|
|
(93,771
|
)
|
|
586
|
|
|
(137,682
|
)
|
||||
Share-based compensation
|
18,143
|
|
|
—
|
|
|
20,282
|
|
|
—
|
|
||||
Deferred interest deductions
|
60,790
|
|
|
—
|
|
|
76,793
|
|
|
—
|
|
||||
Convertible debt
|
10,865
|
|
|
—
|
|
|
12,313
|
|
|
—
|
|
||||
Other
|
2,632
|
|
|
(2,315
|
)
|
|
2,652
|
|
|
(1,507
|
)
|
||||
|
152,627
|
|
|
(122,153
|
)
|
|
195,210
|
|
|
(161,936
|
)
|
||||
Valuation allowance
|
(67,849
|
)
|
|
—
|
|
|
(5,511
|
)
|
|
—
|
|
||||
|
$
|
84,778
|
|
|
$
|
(122,153
|
)
|
|
$
|
189,699
|
|
|
$
|
(161,936
|
)
|
Net deferred tax assets (liabilities)
|
|
|
$
|
(37,375
|
)
|
|
|
|
$
|
27,763
|
|
(in thousands)
|
2017
|
|
2016
|
||||
Net unrealized loss on hedging contracts, net of tax
|
$
|
(30,487
|
)
|
|
$
|
(7,600
|
)
|
Net unrealized loss on marketable securities, net of tax
|
(942
|
)
|
|
(156
|
)
|
||
Net unrealized loss on pension, net of tax
|
(878
|
)
|
|
(1,498
|
)
|
||
Foreign currency effects from intercompany long-term investment transactions, net of tax of $7.9 million and $7.7 million in 2017 and 2016, respectively
|
(16,144
|
)
|
|
(15,901
|
)
|
||
Foreign currency translation adjustments
|
(172,308
|
)
|
|
(308,684
|
)
|
||
Accumulated other comprehensive loss
|
$
|
(220,759
|
)
|
|
$
|
(333,839
|
)
|
|
Years ended December 31,
|
||||||||||
(in thousands, except per share data)
|
2017
|
|
2016
|
|
2015
|
||||||
Net income attributable to the owners of QIAGEN N.V.
|
$
|
40,394
|
|
|
$
|
80,404
|
|
|
$
|
130,148
|
|
|
|
|
|
|
|
||||||
Weighted average number of common shares used to compute basic net income per common share
|
228,074
|
|
|
234,800
|
|
|
233,483
|
|
|||
Dilutive effect of stock options and restrictive stock units
|
4,760
|
|
|
4,193
|
|
|
5,028
|
|
|||
Dilutive effect of outstanding warrants
|
175
|
|
|
—
|
|
|
136
|
|
|||
Weighted average number of common shares used to compute diluted net income per common share
|
233,009
|
|
|
238,993
|
|
|
238,647
|
|
|||
Outstanding options and awards having no dilutive effect, not included in above calculation
|
52
|
|
|
210
|
|
|
37
|
|
|||
Outstanding warrants having no dilutive effect, not included in above calculation
|
30,434
|
|
|
25,800
|
|
|
26,071
|
|
|||
|
|
|
|
|
|
||||||
Basic earnings per common share attributable to the owners of QIAGEN N.V.
|
$
|
0.18
|
|
|
$
|
0.34
|
|
|
$
|
0.56
|
|
Diluted earnings per common share attributable to the owners of QIAGEN N.V.
|
$
|
0.17
|
|
|
$
|
0.34
|
|
|
$
|
0.55
|
|
(in thousands)
|
Capital
Leases
|
|
Operating
Leases
|
||||
2018
|
$
|
1,411
|
|
|
$
|
18,483
|
|
2019
|
45
|
|
|
16,011
|
|
||
2020
|
14
|
|
|
11,762
|
|
||
2021
|
—
|
|
|
8,457
|
|
||
2022
|
—
|
|
|
6,126
|
|
||
Thereafter
|
—
|
|
|
4,038
|
|
||
|
1,470
|
|
|
$
|
64,877
|
|
|
Less: Amount representing interest
|
(54
|
)
|
|
|
|||
|
1,416
|
|
|
|
|||
Less: Current portion
|
(1,359
|
)
|
|
|
|||
Long-term portion
|
$
|
57
|
|
|
|
(in thousands)
|
Purchase
Commitments
|
|
License & Royalty
Commitments
|
||||
2018
|
$
|
65,073
|
|
|
$
|
12,907
|
|
2019
|
22,556
|
|
|
11,858
|
|
||
2020
|
10,472
|
|
|
11,558
|
|
||
2021
|
943
|
|
|
8,860
|
|
||
2022
|
11
|
|
|
6,161
|
|
||
Thereafter
|
434
|
|
|
3,748
|
|
||
|
$
|
99,489
|
|
|
$
|
55,092
|
|
All Employee Options
|
Number of
Shares (in thousands)
|
|
Weighted
Average
Exercise
Price
|
|
Weighted
Average
Contractual
Term (in years)
|
|
Aggregate
Intrinsic
Value
(in thousands)
|
|||||
Outstanding at January 1, 2017
|
1,439
|
|
|
$
|
19.84
|
|
|
|
|
|
||
Exercised
|
(287
|
)
|
|
$
|
21.08
|
|
|
|
|
|
||
Expired
|
(3
|
)
|
|
$
|
18.63
|
|
|
|
|
|
||
Outstanding at December 31, 2017
|
1,149
|
|
|
$
|
19.54
|
|
|
3.32
|
|
$
|
13,088
|
|
Vested at December 31, 2017
|
1,149
|
|
|
$
|
19.54
|
|
|
3.32
|
|
$
|
13,088
|
|
Vested and expected to vest at December 31, 2017
|
1,149
|
|
|
$
|
19.54
|
|
|
3.32
|
|
$
|
13,088
|
|
Stock Units
|
Stock
Units (in thousands)
|
|
Weighted
Average
Contractual
Term (in years)
|
|
Aggregate
Intrinsic
Value
(in thousands)
|
|||
Outstanding at January 1, 2017
|
10,198
|
|
|
|
|
|
||
Granted
|
1,976
|
|
|
|
|
|
||
Vested
|
(2,306
|
)
|
|
|
|
|
||
Forfeited
|
(1,766
|
)
|
|
|
|
|
||
Outstanding at December 31, 2017
|
8,102
|
|
|
2.30
|
|
$
|
250,603
|
|
Vested and expected to vest at December 31, 2017
|
6,914
|
|
|
2.15
|
|
$
|
213,861
|
|
Compensation Expense (in thousands)
|
2017
|
|
2016
|
|
2015
|
||||||
Cost of sales
|
$
|
2,641
|
|
|
$
|
2,553
|
|
|
$
|
2,177
|
|
Research and development
|
5,367
|
|
|
4,735
|
|
|
5,686
|
|
|||
Sales and marketing
|
6,820
|
|
|
4,824
|
|
|
4,815
|
|
|||
General and administrative
|
19,614
|
|
|
16,176
|
|
|
11,083
|
|
|||
Share-based compensation expense
|
34,442
|
|
|
28,288
|
|
|
23,761
|
|
|||
Less: income tax benefit
(1)
|
7,407
|
|
|
6,223
|
|
|
5,751
|
|
|||
Net share-based compensation expense
|
$
|
27,035
|
|
|
$
|
22,065
|
|
|
$
|
18,010
|
|
|
As of December 31,
|
|
For the years ended December 31,
|
||||||||||||||||
(in thousands)
|
2017
|
|
2016
|
|
2017
|
|
2016
|
|
2015
|
||||||||||
Net sales
|
—
|
|
|
—
|
|
|
$
|
3,852
|
|
|
$
|
1,360
|
|
|
$
|
418
|
|
||
Reimbursements against research and development costs
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
$
|
2,032
|
|
||||
Accounts receivable
|
$
|
3,802
|
|
|
$
|
1,302
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||
Other long-term assets
|
$
|
17,713
|
|
|
$
|
13,067
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||
Accounts payable
|
$
|
1,921
|
|
|
$
|
391
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||
Accrued and other current liabilities
|
$
|
9,028
|
|
|
$
|
3,926
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||
Other long-term liabilities
|
$
|
3,075
|
|
|
$
|
5,889
|
|
|
—
|
|
|
—
|
|
|
—
|
|
(in thousands)
|
Balance at
Beginning of
Year
|
|
Provision
Charged to
Expense
|
|
Write-Offs
|
|
Foreign
Exchange
and Other
|
|
Balance at
End of Year
|
||||||||||
Year Ended December 31, 2015:
|
|
|
|
|
|
|
|
|
|
||||||||||
Allowance for doubtful accounts
|
$
|
8,847
|
|
|
$
|
2,093
|
|
|
$
|
(2,022
|
)
|
|
$
|
(1,663
|
)
|
|
$
|
7,255
|
|
Year Ended December 31, 2016:
|
|
|
|
|
|
|
|
|
|
||||||||||
Allowance for doubtful accounts
|
$
|
7,255
|
|
|
$
|
2,135
|
|
|
$
|
(1,642
|
)
|
|
$
|
(134
|
)
|
|
$
|
7,614
|
|
Year Ended December 31, 2017:
|
|
|
|
|
|
|
|
|
|
||||||||||
Allowance for doubtful accounts
|
$
|
7,614
|
|
|
$
|
3,094
|
|
|
$
|
(3,233
|
)
|
|
$
|
533
|
|
|
$
|
8,008
|
|
Currency
|
Notional Amount
|
Interest Rate
|
Maturity
|
EUR
|
€11.5 million
|
Fixed 0.4%
|
March 2021
|
EUR
|
€23.0 million
|
Floating EURIBOR + 0.4%
|
March 2021
|
EUR
|
€21.5 million
|
Fixed 0.68%
|
October 2022
|
EUR
|
€64.5 million
|
Floating EURIBOR + 0.5%
|
October 2022
|
USD
|
$45.0 million
|
Floating LIBOR + 1.2%
|
October 2022
|
EUR
|
€25.0 million
|
Floating EURIBOR + 0.5%
|
October 2022
|
EUR
|
€64.0 million
|
Fixed 1.09%
|
June 2024
|
EUR
|
€31.0 million
|
Floating EURIBOR + 0.7%
|
June 2024
|
EUR
|
€14.5 million
|
Fixed 1.61%
|
June 2027
|
Schuldscheindarlehensvertrag
(der „Darlehensvertrag“) |
Loan Agreement
(the “ Loan Agreement ”) |
über ein Darlehen in Höhe von
|
for a loan in the amount of
|
[mit einem festen Zinssatz von % per annum/ mit einem variablen Zinssatz]
|
[with a fixed rate of interest of per cent per annum/ with a floating rate]
|
fällig am 1
|
due on
|
arrangiert von der Bayerischen Landesbank, BNP Paribas, HSBC Trinkaus und UniCredit Bank AG, zusammen die „
Arranger
“ genannt
|
arranged by Bayerische Landesbank, BNP Paribas, HSBC Trinkaus and UniCredit Bank AG, jointly the "
Arrangers
"
|
mit der Bayerischen Landesbank als „
Zahlstelle“
|
with Bayerische Landesbank as the "
Paying Agent
"
|
Die
Bayerische Landesbank
Brienner Straße 18
80333 München
- nachfolgend die „
Darlehensgeberin
“ oder die
„Anfängliche Darlehensgeberin
“-
|
Bayerische Landesbank
Brienner Strasse 18
80333 Munich, Germany
- hereinafter the “
Lender
” or the “
Initial Lender
“ -
|
||
gewährt der
|
grants to
|
||
QIAGEN N.V.
Hulsterweg 82
5912 PL Venlo
Niederlande
|
QIAGEN N.V.
Hulsterweg 82
5912 PL Venlo
The Netherlands
|
||
nachfolgend die „Darlehensnehmerin" -
ein Darlehen (das „Darlehen") im Gesamtnennbetrag von (in Worten: ) |
hereinafter the "Borrower" -
a loan (the "Loan") in the aggregate principal amount of (in words ) |
||
Die Darlehensnehmerin und die Darlehensgeberin gemeinsam nachfolgend die „Parteien" -
|
The Borrower and the Lender hereinafter jointly the "Parties" –
|
||
§ 1 Auszahlung, Schuldschein, Definitionen
|
§ 1 Disbursement, Certificate of Indebtedness, Definitions
|
||
(1) Das Darlehen wird am 23. Juni 2017 (der „
Auszahlungstag
“) nach Weisung der Darlehensnehmerin ausgezahlt, sofern die Auszahlungsvoraussetzungen nach Anlage 1 mindestens zwei (2) Bankarbeitstage vor dem Auszahlungstag erfüllt und an die Darlehensgeberin geliefert worden sind.
|
(1) The Loan shall be disbursed on June 23
rd
, 2017 (the “
Disbursement Date
”) in accordance with the instructions of the Borrower, provided that the conditions precedent listed in Annex 1 are delivered to the Lender at least two (2) Banking Days prior to the Disbursement Date.
|
QIAGEN N.V
.
als Darlehensnehmerin
as Borrower
Venlo, den 19. Juni 2017
Venlo, June 19th, 2017
Unterschrift(en): __________________________________
Signature(s)
Name(n):
Name(s)
Bayerische Landesbank
als Darlehensgeberin und Zahlstelle
as Lender and Paying Agent
München, den 19. Juni 2017
Munich, June 19th, 2017
Unterschrift(en): __________________________________
Signature(s)
Name(n):
Name(s)
|
(8) Bestätigung der Darlehensnehmerin über das Nichtvorliegen eines Kündigungsgrundes, wie in § 8 (1) genannt.
|
(8) Confirmation of the Borrower that no events of default as stated in clause 8 para. 1 have occurred.
|
|
7.
Sollte irgendeine Bestimmung dieses Übertragungszertifikats ganz oder teilweise rechtlich unwirksam oder undurchsetzbar sein oder werden, so bleibt die Wirksamkeit und Durchsetzbarkeit der übrigen Bestimmungen dieses Übertragungszertifikats davon unberührt. Eine sich daraus ergebende Regelungslücke ist durch ergänzende Auslegung unter ordnungsgemäßer Berücksichtigung der Interessen der Parteien dieses Übertragungszertifikats zu schließen.
|
7.
Should any provision of this Transfer Certificate be or become entirely or partially invalid or unenforceable, the validity or enforceability of the remaining provisions shall not be affected thereby. Any omission resulting therefrom shall be remedied by supplemental interpretation under due consideration to the interests of the Parties.
|
8.
Dieses Übertragungszertifikat unterliegt deutschem Recht. Nicht ausschließlicher Gerichtsstand für alle Rechtsstreitigkeiten aus oder im Zusammenhang mit diesem Übertragungszertifikat ist [●].
|
8.
This Transfer Certificate shall be governed by German law. Non-exclusive place of jurisdiction for any disputes arising in connection with this agreement shall be [●].
|
Die Derzeitige Darlehensgeberin:
●
The Existing Lender:
●
Unterschrift(en):
Signature(s): _____________________________________
Name(n):
Name(s) _____________________________________
Die Neue Darlehensgeberin:
●
The New Lender:
●
Unterschrift(en):
Signature(s): _____________________________________
Name(n):
Name(s) _____________________________________
|
(i)
|
the reduction of all, or a portion, of such Liability;
|
(ii)
|
the conversion of all, or a portion, of such Liability into shares, other securities, or other obligations of such Initial Purchaser or another person (and the issue to or conferral on the Company of such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of this Agreement;
|
(iii)
|
the cancellation of such Liability;
|
(iv)
|
the amendment or alteration of the amounts due in relation to such Liability, including any interest, if applicable, thereon, or the dates on which any payments are due, including by suspending payment for a temporary period;
|
Very truly yours,
|
||
QIAGEN N.V.
|
||
By:
|
/s/ Thomas Neidert
|
|
|
Name:
|
Thomas Neidert
|
|
Title:
|
Vice President
|
|
||
/s/ David Jeal
|
|
|
Name:
|
David Jeal
|
|
Title:
|
Director
|
|
|
||
/s/ Frank Heitmann
|
|
|
Name:
|
Frank Heitmann
|
|
Title:
|
Managing Director
|
|
GOLDMAN SACHS INTERNATIONAL
|
||
/s/ Celine Assouline
|
|
|
Name:
|
Celine Assouline
|
|
Title:
|
Managing Director
|
|
J.P. MORGAN SECURITIES PLC
|
||
By:
|
/s/ Virginie De Grivel Nigam
|
|
|
Name:
|
Virginie De Grivel Nigam
|
|
Title:
|
Executive Director
|
MERRILL LYNCH INTERNATIONAL
|
||
/s/ James Fleming
|
|
|
Name:
|
James Fleming
|
|
Title:
|
Managing Director
|
|
Initial Purchasers
|
Aggregate principal amount of Securities
(U.S.$) |
|
Barclays Bank PLC
|
73,333,333
|
|
Credit Suisse Securities (Europe) Limited
|
73,333,333
|
|
Goldman Sachs International
|
90,000,000
|
|
J.P. Morgan Securities PLC
|
90,000,000
|
|
Merrill Lynch International
|
73,333,334
|
|
Total
|
400,000,000
|
|
1.
|
The Securities have not been and will not be registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Regulation S or pursuant to an exemption from the registration requirements of the Securities Act. Each of the Initial Purchasers, severally and not jointly, represents that it has not offered and sold the Securities, and will not offer and sell the Securities (i) as part of their distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering and the Time of Delivery, except in accordance with Rule 903 of Regulation S. Accordingly, each of the Initial Purchasers agrees that neither it, its affiliates nor any persons acting on its or their behalf has engaged or will engage in any directed selling efforts with respect to the Securities.
|
2.
|
Each of the Initial Purchasers has complied and will comply with the offering restrictions requirement of Regulation S.
|
3.
|
Each of the Initial Purchasers shall have, at or prior to the confirmation of sale of Securities, sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the distribution compliance period a confirmation or notice to substantially the following effect:
|
4.
|
Each of the Initial Purchasers further agrees that it has not entered and will not enter into any contractual arrangement with respect to the distribution or delivery of the Securities, except with its affiliates or with the prior consent of the Company.
|
5.
|
Terms used in paragraphs 1-4 of this Annex I have the meanings given to them by Regulation S.
|
6.
|
Each of the Initial Purchasers, severally and not jointly, further represents, warrants and agrees that:
|
(a)
|
it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000, as amended (the “
FSMA
”) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
|
(b)
|
it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
|
Section 1.01.
|
Definitions 1
|
Section 2.01.
|
Designation and Amount 11
|
Section 2.02.
|
Form of Notes 11
|
Section 2.03.
|
Date and Denomination of Notes 12
|
Section 2.04.
|
Execution, Authentication and Delivery of Notes 13
|
Section 2.05.
|
Paying Agent, Conversion Agent, Note Registrar and Transfer Agent 13
|
Section 2.06.
|
Paying Agent Not Party to this Indenture to Hold Money 14
|
Section 2.07.
|
Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Common Depositary 14
|
Section 2.08.
|
Mutilated, Destroyed, Lost or Stolen Notes 18
|
Section 2.09.
|
Temporary Notes 19
|
Section 2.10.
|
Cancellation of Notes Paid, Etc 19
|
Section 2.11.
|
ISIN and Common Code Numbers 19
|
Section 2.12.
|
Additional Notes; Repurchases 19
|
Section 2.13.
|
No Mandatory Redemption; No Sinking Fund 20
|
Section 2.14.
|
Defaulted Interest 20
|
Section 3.01.
|
Satisfaction and Discharge 20
|
Section 4.01.
|
Payment of Principal and Interest 21
|
Section 4.02.
|
Maintenance of Office or Agency; Paying Agent and Conversion Agent 22
|
Section 4.03.
|
Appointments to Fill Vacancies in Trustee’s Office 22
|
Section 4.04.
|
Provisions as to Paying Agent 22
|
Section 4.05.
|
Existence 23
|
Section 4.06.
|
[Intentionally Omitted] 23
|
Section 4.07.
|
Stay, Extension and Usury Laws 23
|
Section 4.08.
|
Compliance Certificate; Statements as to Defaults 23
|
Section 4.09.
|
Limitation on Liens 23
|
Section 4.10.
|
Maintenance of Listing 24
|
Section 4.11.
|
Further Instruments and Acts 24
|
Section 5.01.
|
Lists of Noteholders 24
|
Section 6.01.
|
Events of Default 24
|
Section 6.02.
|
Acceleration 26
|
Section 6.03.
|
[Intentionally Omitted] 26
|
Section 6.04.
|
Payments of Notes on Default; Suit Therefor 26
|
Section 6.05.
|
Application of Monies Collected by Trustee 28
|
Section 6.06.
|
Proceedings by Noteholders 28
|
Section 6.07.
|
Proceedings by Trustee 29
|
Section 6.08.
|
Remedies Cumulative and Continuing 29
|
Section 6.09.
|
Direction of Proceedings and Waiver of Defaults by Majority of Noteholders 29
|
Section 6.10.
|
Notice of Defaults 30
|
Section 6.11.
|
Undertaking to Pay Costs 30
|
Section 7.01.
|
Duties and Responsibilities of Trustee 31
|
Section 7.02.
|
Reliance on Documents, Opinions, Etc 32
|
Section 7.03.
|
No Responsibility for Recitals, Etc 34
|
Section 7.04.
|
Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes 34
|
Section 7.05.
|
Monies to Be Held in Trust 34
|
Section 7.06.
|
Compensation and Expenses of Trustee 34
|
Section 7.07.
|
Officers’ Certificate as Evidence 35
|
Section 7.08.
|
Conflicting Interests of Trustee 35
|
Section 7.09.
|
Eligibility of Trustee 35
|
Section 7.10.
|
Resignation or Removal of Trustee 35
|
Section 7.11.
|
Acceptance by Successor Trustee 36
|
Section 7.12.
|
Succession by Merger, Etc 37
|
Section 7.13.
|
Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee 37
|
Section 7.14.
|
Agents; General Provisions 38
|
Section 8.01.
|
Action by Noteholders 39
|
Section 8.02.
|
Proof of Execution by Noteholders 39
|
Section 8.03.
|
Who Are Deemed Absolute Owners 39
|
Section 8.04.
|
Company-Owned Notes Disregarded 39
|
Section 8.05.
|
Revocation of Consents; Future Noteholders Bound 40
|
Section 9.01.
|
Supplemental Indentures Without Consent of Noteholders 40
|
Section 9.02.
|
Supplemental Indentures With Consent of Noteholders 41
|
Section 9.03.
|
Effect of Supplemental Indentures 42
|
Section 9.04.
|
Notation on Notes 42
|
Section 9.05.
|
Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee 42
|
Section 10.01.
|
Company May Consolidate, Etc. on Specified Terms 42
|
Section 10.02.
|
Successor Corporation to Be Substituted 43
|
Section 10.03.
|
Opinion of Counsel to Be Given to Trustee 43
|
Section 11.01.
|
Indenture and Notes Solely Corporate Obligations 43
|
Section 12.01.
|
Conversion Right 44
|
Section 12.02.
|
Conversion Procedure 46
|
Section 12.03.
|
Increased Conversion Ratio Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes 48
|
Section 12.04.
|
Adjustment of Conversion Ratio 50
|
Section 12.05.
|
Effect of Reclassification, Consolidation, Merger or Sale 58
|
Section 12.06.
|
Responsibility of Trustee; Conversion Agent 60
|
Section 12.07.
|
Notice to Noteholders Prior to Certain Actions 60
|
Section 12.08.
|
Stockholder Rights Plans 61
|
Section 13.01.
|
Repurchase at Option of Noteholders upon a Fundamental Change 61
|
Section 13.02.
|
Withdrawal of Fundamental Change Repurchase Notice 63
|
Section 13.03.
|
Deposit of Fundamental Change Repurchase Price 64
|
Section 14.01.
|
Right of Redemption 65
|
Section 14.02.
|
Notice to Trustee
65
|
Section 14.03.
|
Redemption Notice
65
|
Section 14.04.
|
Deposit of
Redemption Price 66
|
Section 14.05.
|
Restrictions on Redemption
66
|
Section 15.01.
|
Provisions Binding on Company’s Successors 66
|
Section 15.02.
|
Official Acts by Successor Corporation 66
|
Section 15.03.
|
Addresses for Notices, Etc 66
|
Section 15.04.
|
Governing Law 67
|
Section 15.05.
|
Submission to Jurisdiction 67
|
Section 15.06.
|
Legal Holidays 68
|
Section 15.07.
|
No Security Interest Created 68
|
Section 15.08.
|
Benefits of Indenture 68
|
Section 15.09.
|
Table of Contents, Headings, Etc 68
|
Section 15.10.
|
Authentication Agent 68
|
Section 15.11.
|
Execution in Counterparts 69
|
Section 15.12.
|
Severability 69
|
Section 15.13.
|
Waiver of Jury Trial 69
|
Section 15.14.
|
Calculations; Calculation Agent 69
|
(i)
|
subject to satisfaction of the conditions set forth in Section 12.01(b), at any time during the Contingent Conversion Period under the circumstances and during the periods set forth in Section 12.01(b), and
|
(ii)
|
irrespective of the conditions set forth in Section 12.01(b), at any time following the Contingent Conversion Period that is prior to the close of business on the fifth Business Day immediately preceding the Maturity Date,
|
(i)
|
if a Parity Event or a Trading Price Unavailability Event, as the case may be, occurs, during the period of ten Business Days from and including the first Business Day following the relevant Trading Price Notification Date.
|
(I)
|
received by the Paying Agent no later than at 4:00 p.m. (London time) on the fifth Business Day after the last Trading Day of the specified Investor Measurement Period;
|
(II)
|
delivered together with reasonable evidence that either of the conditions set out in the definition of the term "Investor Notice" were satisfied; and
|
(III)
|
delivered together with proof that the Notifying Noteholder at the time of such notice is a holder of the relevant Notes by means of a certificate of its custodian or in any other appropriate manner.
|
(I)
|
that the Parity Event or the Trading Price Unavailability Event, as the case may be, has occurred in the relevant Measurement Period, the Issuer shall so notify the Noteholders, the Trustee and the Conversion Agent no later than on the Trading Price Notification Date; or
|
(II)
|
that no Parity Event or Trading Price Unavailability Event has occurred in the relevant Measurement Period, the Issuer shall notify the Notifying Noteholder thereof no later than on the Trading Price Notification Date.
|
(C)
|
If, upon receipt of any valid Investor Notice, the Issuer fails to duly notify, by the Trading Price Notification Date,
|
(x)
|
the Noteholders in accordance with Section 12.01(b)(i)(B)(I) of the occurrence of the Parity Event or the Trading Price Unavailability Event, as the case may be, or
|
(y)
|
the Notifying Noteholder in accordance with Section 12.01(b)(i)(B)(II) that such alleged Parity Event or Trading Price Unavailability Event, as the case may be, has not occurred,
|
(i)
|
the Trading Price could not be determined pursuant to clause (i) of the definition of the term "Trading Price"; or
|
(ii)
|
the Trading Price as determined pursuant to clause (i) of the definition of the term "Trading Price" was less than the Adjusted Parity Value on such Trading Day.
|
(i)
|
The "
Trading Price
" is equal to the mid Bloomberg Generic Price (or any successor thereto) per $200,000 principal amount of Notes as at the close of business on such Trading Day as displayed on or derived from Bloomberg page XS1682511818 Corp HP (using the setting "Last Price" or any successor page or setting), as determined by the Calculation Agent.
|
(ii)
|
If the "
Trading Price
" cannot be determined pursuant to clause (i) above, it will be equal to such mid market price per $200,000 principal amount of Notes as displayed on or derived from any other page on Bloomberg or any successor to Bloomberg providing substantially similar data to those that would otherwise have been determined pursuant to clause (i) above (as determined by an Independent Expert).
|
(iii)
|
If the "
Trading Price
" cannot be determined pursuant to clause (i) or (ii) above, it will be equal to such mid market price per $200,000 principal amount of Notes as derived from any other public source (if any) providing substantially similar data to those that would otherwise have been determined pursuant to clause (i) above (as determined by an Independent Expert).
|
(iv)
|
If the "
Trading Price
" cannot be determined pursuant to clause (i), (ii) or (iii) above, it will be equal to such mid market price per $200,000 principal amount of Notes as provided by leading financial institutions (as shall be considered to be appropriate by an Independent Expert).
|
(i)
|
a Daily Trading Price Unavailability Event has occurred on at least six Trading Days during the relevant Measurement Period; and
|
(ii)
|
the Trading Price (if any) per $200,000 principal amount of Notes as at the Trading Price Determination Date, or where no such Trading Price is available, the fair market value per $200,000 principal amount of Notes as at the Trading Price Determination Date (as determined by an Independent Expert not later than on the Trading Price Determination Date), is less than the Adjusted Parity Value as at the Trading Price Determination Date.
|
(x)
|
the provisions of Section 12.06 apply to the determinations and procedures contemplated by this Section 12.01(b)(i); and
|
(y)
|
neither the Issuer nor the Calculation Agent shall be under any duty to monitor whether, or (aside from the Issuer's obligation to notify the Noteholders, the Trustee and the Conversion Agent pursuant to Section 12.01(b)(i)(B)(I)) to notify Noteholders that, a Parity Event or a Trading Price Unavailability Event has occurred at any time during the Contingent Conversion Period; and
|
|
Share Price
|
|||||||||||
Effective Date
|
$31.85
|
$40.00
|
$41.41
|
$50.00
|
$60.00
|
$70.00
|
$80.00
|
$90.00
|
$100.00
|
$110.00
|
$120.00
|
$140.00
|
September 13, 2017
|
1,448.9184
|
875.8571
|
794.9250
|
449.7681
|
238.7254
|
127.8321
|
67.2346
|
33.4543
|
14.6781
|
4.7248
|
0.4704
|
0.0000
|
September 13, 2018
|
1,448.9184
|
851.2771
|
768.1731
|
418.6321
|
211.7521
|
107.3921
|
52.8771
|
23.9877
|
8.9121
|
1.8066
|
0.0000
|
0.0000
|
September 13, 2019
|
1,448.9184
|
812.2821
|
727.1156
|
375.7201
|
177.1754
|
82.8321
|
36.7521
|
14.1521
|
3.6081
|
0.0000
|
0.0000
|
0.0000
|
September 13, 2020
|
1,448.9184
|
753.7521
|
666.6136
|
317.3081
|
133.7921
|
54.6264
|
20.0321
|
5.2543
|
0.2141
|
0.0000
|
0.0000
|
0.0000
|
September 13, 2021
|
1,448.9184
|
666.0421
|
576.9835
|
237.2761
|
81.0388
|
25.0464
|
5.4646
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
September 13, 2022
|
1,448.9184
|
517.1221
|
426.7886
|
120.8361
|
22.3254
|
1.8807
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
September 13, 2023
|
1,448.9184
|
170.2721
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
0.0000
|
CR = CR
0
|
x
|
OS
OS 0 |
CR
0
|
= the applicable Conversion Ratio in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution, or
|
CR
|
= the applicable Conversion Ratio in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the Business Day immediately following the effective date of such share split or share combination, as the case may be;
|
OS
0
|
= the number of shares of Common Stock outstanding immediately prior to such dividend, distribution share split or share combination, as the case may be; and
|
OS
|
= the number of shares of Common Stock outstanding immediately after such dividend distribution share split or share combination, as the case may be.
|
CR = CR
0
|
x
|
OS
0
+ X
OS 0 + Y |
CR
0
|
= the applicable Conversion Ratio in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
|
CR
|
= the applicable Conversion Ratio in effect immediately after the open of business on the Ex-Dividend Date for such distribution;
|
OS
0
|
= the number of shares of the Common Stock that are outstanding immediately prior to the open of business on the Ex-Dividend Date for such distribution;
|
X
|
= the total number of shares of the Common Stock issuable pursuant to such rights, options or warrants; and
|
Y
|
= the number of shares of the Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the arithmetic average of the Last Reported Sale Prices of the Common Stock over the shorter of (i) the period of Trading Days from, and including, the date of announcement of the terms of such rights, options or warrants distribution (if announced prior to the close of business, or, otherwise, the immediately following Trading Day) to, and including, the Trading Day immediately preceding the Ex-Dividend Date relating to such rights, options or warrants distribution; and (ii) the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date relating to such rights, options or warrants distribution.
|
CR = CR
0
|
x
|
SP
0
SP 0 – FMV |
CR
0
|
= the applicable Conversion Ratio in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
|
CR
|
= the applicable Conversion Ratio in effect immediately after the open of business on the Ex-Dividend Date for such distribution.
|
SP
0
|
= the arithmetic average of the Last Reported Sale Prices of the Common Stock over the shorter of (i) the period of Trading Days from, and including, the date of announcement of the terms of such distribution (if announced prior to the close of business, or, otherwise, the immediately following Trading Day) to, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and (ii) the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and
|
FMV
|
= the fair market value (as determined by an Independent Expert) of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of the Common Stock.
|
CR = CR
0
|
x
|
FMV
0
+ MP
0
MP 0 |
CR
0
|
= the applicable Conversion Ratio in effect immediately prior to the open of business on the Ex-Dividend Date for the Spin-Off;
|
CR
|
= the applicable Conversion Ratio in effect immediately after the open of business on the Ex-Dividend Date for the Spin-Off;
|
FMV
0
|
= the arithmetic average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to
|
MP
0
|
= the arithmetic average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.
|
CR = CR
0
|
x
|
SP
0
SP 0 – C |
CR
0
|
= the applicable Conversion Ratio in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;
|
CR
|
= the applicable Conversion Ratio in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution;
|
SP
0
|
= the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and
|
C
|
= the amount in cash per share the Company pays or distributes to holders of its Common Stock.
|
CR = CR
0
|
x
|
AC + (SP x OS)
OS 0 x SP |
CR
0
|
= the applicable Conversion Ratio in effect immediately prior to the open of business on the Trading Day next succeeding the Expiration Date;
|
CR
|
= the applicable Conversion Ratio in effect immediately after the open of business on the Trading Day next succeeding the Expiration Date;
|
AC
|
= the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer;
|
OS
0
|
= the number of shares of Common Stock outstanding immediately prior to the time (the “
Expiration Time
”) such tender or exchange offer expires (prior to giving effect to such tender offer or exchange offer);
|
OS
|
= the number of shares of Common Stock outstanding immediately after the Expiration Time (after giving effect to such tender offer or exchange offer); and
|
SP
|
= the arithmetic average of the Last Reported Sale Prices of Common Stock over the ten consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date.
|
By:
|
/s/ Thomas Neidert
Name: Thomas Neidert Title: Vice President Global Treasury |
By:
|
/s/ Kieran Odedra
Name: Kieran Odedra Title: Associate Director |
By:
|
/s/ Miriam Keeler
Name: Miriam Keeler Title: Associate Director |
By:
|
/s/ Paul Yetton
Name: Paul Yetton Title: Assistant Vice President |
By:
|
/s/ Kieran Odedra
Name: Kieran Odedra Title: Vice President |
By:
|
/s/ Paul Yetton
Name: Paul Yetton Title: Attorney |
By:
|
/s/ Kieran Odedra
Name: Kieran Odedra Title: Attorney |
By:
|
Name: Title: |
TEN COM -as tenants in common
|
UNIF GIFT MIN ACT
|
|
|
|
Custodian
|
|
(Cust)
|
|
TEN ENT -as tenants by the entireties
|
|
|
|
_______________________
(Minor) |
|
JT TEN -as joint tenants with right of
survivorship and not as tenants in common |
Uniform Gifts to Minors Act
________________________ |
(State)
|
Date
|
Amount of decrease in Principal Amount of this Global Note
|
Amount of increase in Principal Amount of this Global Note
|
Principal Amount of this Global Note following such decrease or increase
|
Signature of
authorized signatory of Note Registrar |
_________
|
__________________
|
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|
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|
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|
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|
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General Terms:
|
|
Trade Date:
|
September 6, 2017.
|
|
1
|
|
Components:
|
The Transaction will be divided into individual components (each, a “
Component
”), each with the terms set forth in this Confirmation, and, in particular, with the Number of Warrants and Expiration Date set forth in this Confirmation. The payments and deliveries to be made upon settlement of the Transaction will be determined separately for each Component as if each Component were a separate Transaction under the Agreement.
|
Warrant Style:
|
European.
|
Warrant Type:
|
Call.
|
Seller:
|
Counterparty.
|
Buyer:
|
Dealer.
|
Shares:
|
The ordinary shares, par value EUR 0.01 per share, of Counterparty (NASDAQ ticker symbol “QGEN”).
|
Number of Warrants:
|
For each Component of the Transaction, as provided in
Schedule B
to this Confirmation.
|
Warrant Entitlement:
|
One Share per Warrant.
|
Strike Price:
|
As provided in
Schedule A
to this Confirmation.
|
Premium:
|
As provided in
Schedule A
to this Confirmation.
|
Premium Payment Date:
|
As provided in
Schedule A
to this Confirmation.
|
Exchange:
|
The NASDAQ Global Select Market.
|
Related Exchange(s):
|
All Exchanges.
|
Calculation Agent:
|
Dealer;
provided
that all calculations, determinations and adjustments made by Calculation Agent shall be made in good faith and in a commercially reasonable manner;
provided
further
that (i) upon receipt of written request from Counterparty, the Calculation Agent shall promptly provide Counterparty with a written explanation describing in reasonable detail any calculation, adjustment, or determination made by it (including any quotation, market data or information from internal or external sources used in making such calculation, adjustment or determination, as the case may be, but without disclosing the Calculation Agent’s proprietary models or other information that may be proprietary or confidential) and shall use commercially reasonable efforts to provide such written explanation within five (5) Exchange Business Days from receipt of such request, (ii) if an Event of Default described in Section 5(a)(vii) of the Agreement has occurred and is continuing with respect to Dealer, the Calculation Agent shall be a leading recognized dealer in equity derivatives designated in good faith by Counterparty for so long as such Event of Default is continuing and (iii) if Counterparty promptly disputes in writing any calculation, adjustment or determination and provides reasonable detail as to the basis for such dispute, the Calculation Agent shall discuss the dispute with Counterparty and shall consider in good faith any alternative calculations, adjustments or determinations proposed by Counterparty, it being understood that the Calculation Agent’s calculation, adjustment or determination, modified to the extent the Calculation Agent determines appropriate after such consideration, shall apply to the Transaction.
|
Procedures for Exercise:
In respect of any Component
|
|
Expiration Time:
|
The Valuation Time.
|
|
2
|
|
Expiration Date(s):
|
As provided in
Schedule B
to this Confirmation (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day that is not already an Expiration Date for another Component);
provided
that if that date is a Disrupted Day, the Expiration Date for such Component shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and is not or is not deemed to be an Expiration Date in respect of any other Component of the Transaction hereunder; and
provided further
that if the Expiration Date has not occurred pursuant to the preceding proviso as of the Final Disruption Date, the Calculation Agent shall have the right to elect, in its discretion, that the Final Disruption Date shall be the Expiration Date (irrespective of whether such date is a Disrupted Day or an Expiration Date in respect of any other Component for the Transaction) and the Settlement Price for the Final Disruption Date shall be determined by the Calculation Agent in a commercially reasonable manner. Notwithstanding the foregoing and anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Expiration Date, (i) the Calculation Agent may determine that such Expiration Date is a Disrupted Day only in part, in which case the Calculation Agent shall make adjustments to the Number of Warrants for the relevant Component for which such day shall be the Expiration Date and shall designate the Scheduled Trading Day determined in the manner described in the immediately preceding sentence as the Expiration Date for the remaining Warrants for such Component and (ii) the Settlement Price for such Disrupted Day may be adjusted by the Calculation Agent as appropriate on the basis of the nature and duration of the relevant Market Disruption Event. Any day on which the Exchange is scheduled as of the Trade Date to close prior to its normal closing time shall be considered a Disrupted Day in whole. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date occurring on an Expiration Date.
|
Final Disruption Date:
|
As provided in
Schedule A
to this Confirmation.
|
Automatic Exercise:
|
Applicable for each Component and its related Expiration Date;
provided
that Section 3.4(a) of the Equity Definitions shall apply as if Cash Settlement applied, it being understood that Net Share Settlement shall apply to this Transaction.
|
Market Disruption Event:
|
Section 6.3(a) of the Equity Definitions shall be amended (i) by deleting the words “at any time during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” and replacing them with the words “at any time during the regular trading session on the Exchange, without regard to after hours or any other trading outside of the regular trading session hours”; (ii) by amending and restating clause (a)(iii) thereof in its entirety to read as follows: “(iii) an Early Closure that the Calculation Agent determines is material”; and (iii) by adding the words “or (iv) a Regulatory Disruption” after clause (a)(iii) as restated above.
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
|
Regulatory Disruption:
|
A “Regulatory Disruption” shall occur if Calculation Agent determines in its reasonable discretion that it is appropriate in light of legal, regulatory or self-regulatory requirements or related policies or procedures for Dealer to refrain from all or any part of the market activity in which it would otherwise engage in connection with this Transaction.
|
|
3
|
|
|
4
|
|
|
5
|
|
Tender Offer:
|
Applicable;
provided
that (i) the definition of “Tender Offer” in Section 12.1 of the Equity Definitions shall be amended by replacing the words “voting shares” in the fourth line thereof with the word “Shares”; (ii) the definition of “Tender Offer Date” in Section 12.1 of the Equity Definitions shall be amended by replacing the words “voting shares” in the first line thereof with the word “Shares”; and (iii) if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and an Additional Termination Event under paragraph 5(f) of this Confirmation, Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.3 of the Equity Definitions or paragraph 5(f) will apply.
|
Share-for-Share:
|
Modified Calculation Agent Adjustment.
|
Share-for-Other:
|
Modified Calculation Agent Adjustment.
|
Share-for-Combined:
|
Modified Calculation Agent Adjustment.
|
Modified Calculation Agent Adjustment:
|
For greater certainty, the definition of “Modified Calculation Agent Adjustment” in Sections 12.2 and 12.3 of the Equity Definitions shall be amended by adding the following italicized language after the parenthetical provision: “(including adjustments to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares or to the Transaction)
during the period from the Exchange Business Day immediately preceding the Announcement Date or the Determination Date, as applicable, to the first Exchange Business Day immediately following the Merger Date (Section 12.2) or Tender Offer Date (Section 12.3)
”.
If, in respect of any Merger Event to which Modified Calculation Agent Adjustment applies, the adjustments to be made in accordance with Section 12.2(e)(i) of the Equity Definitions would result in Counterparty being different from the issuer of the Shares or Counterparty or such issuer being organized in a jurisdiction other than the Netherlands (a “
Foreign Merger
”), then with respect to such Merger Event, as a condition precedent to the adjustments contemplated in Section 12.2(e)(i) of the Equity Definitions, Dealer, the issuer of the Affected Shares and the entity that will be the issuer of the New Shares (the “
New Issuer
”) shall work in good faith to negotiate and enter into such documentation containing representations, warranties and agreements relating to securities law and other issues as requested by Dealer that Dealer has determined, in its reasonable discretion, to be reasonably necessary or appropriate to allow Dealer and Counterparty to continue, or the New Issuer to accede, as applicable, as a party to the Transaction, as adjusted under Section 12.2(e)(i) of the Equity Definitions (which adjustments shall be made without duplication of any adjustments determined pursuant to any other provision of this Transaction), and to preserve Dealer’s hedging or hedge unwind activities in connection with the Transaction in a manner compliant with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer, and if such documentation has not been mutually agreed to on or prior to the Merger Date or if the Calculation Agent determines that no adjustment that it could make under Section 12.2(e)(i) of the Equity Definitions will produce a commercially reasonable result, then, at Dealer’s election, the consequences set forth in Section 12.2(e)(ii) of the Equity Definitions shall apply or the Transaction shall continue without such documentation or adjustment.
|
|
6
|
|
Announcement Date:
|
The definition of “Announcement Date” in Section 12.1 of the Equity Definitions shall be amended by (i) replacing the word “leads to the” in the third and the fifth lines thereof with the words “, if completed, would lead to a”; (ii) replacing the words “voting shares” in the fifth line thereof with the word “Shares”; (iii) inserting the words “by any entity” after the word “announcement” in the second and the fourth lines thereof; (iv) replacing the words “a firm” with the word “any” in the second and fourth lines thereof; (v) inserting the words “or to explore the possibility of engaging in” after the words “engage in” in the second line thereto; and (vi) inserting the words “or to explore the possibility of purchasing or otherwise obtaining” after the word “obtain” in the fourth line thereto.
|
Announcement Event:
|
If an Announcement Event has occurred, the Calculation Agent shall have the right to determine
the economic effect of the Announcement Event on the theoretical value of the Transaction (which is limited to any change in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares or to the Transaction, the ability to maintain a commercially reasonable hedge position in the underlying Shares and/or any input in a Black-Scholes-based option pricing model) (i) at a time that it deems appropriate, from the Announcement Date to the date of such determination (the “
Determination Date
”), and (ii) on the Valuation Date or on a date on which a payment amount is determined pursuant to Section 6 of the Agreement or Sections 12.7 or 12.8 of the Equity Definitions, from the Exchange Business Day immediately preceding the Announcement Date or the Determination Date, as applicable, to the Valuation Date or the date on which a payment amount is determined pursuant to Section 6 of the Agreement or Sections 12.7 or 12.8 of the Equity Definitions. If any such economic effect is material, the Calculation Agent may either (i) adjust the terms of the Transaction to reflect such economic effect or (ii) terminate the Transaction, in which case the Determining Party will determine the Cancellation Amount payable by one party to the other;
provided
that the reference in Section 12.8(a) of the Equity Definitions to “Extraordinary Event” shall be replaced for this purpose with a reference to “Announcement Event.” “
Announcement Event
” shall mean the occurrence of the Announcement Date of a Merger Event or Tender Offer or of a potential Merger Event or potential Tender Offer, or any publicly announced change or amendment to any such announced transaction or event (including any announcement relating to the abandonment thereof)
|
Composition of Combined Consideration:
|
Not Applicable;
provided
that, notwithstanding Sections 12.5(b) and 12.1(f) of the Equity Definitions, to the extent that the composition of the consideration for the relevant Shares pursuant to a Tender Offer or Merger Event could be elected by an actual holder of the Shares, the Calculation Agent will, in its discretion, determine such composition.
|
|
7
|
|
Nationalization, Insolvency or Delisting:
|
Cancellation and Payment (Calculation Agent Determination);
provided
that Section 12.6(a)(iii) of the Equity Definitions is hereby amended and restated in its entirety as follows:
“‘Delisting’ means that the Shares, as adjusted pursuant to the terms of the Transaction, cease (or the Exchange announces that, pursuant to the rules of such Exchange, such Shares will cease) to be listed, traded or publicly quoted on the Exchange for any reason and are not (or will not be) immediately re-listed, re-traded or re-quoted (and fail (or will fail) to continue to be listed, traded or quoted) on any of the Frankfurt Stock Exchange (Prime Standard), the London Stock Exchange (Main Market), Euronext (in Paris or Amsterdam), the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted (or continue to be listed, traded or quoted) on any such exchange or quotation system (or, if more than one, the exchange or quotation system selected by the Calculation Agent), such exchange or quotation system shall thereafter be deemed to be the Exchange and the Calculation Agent shall make any adjustments to the terms of the Transaction (including, for the avoidance of doubt, modifying the definition of Shares and Settlement Price), as if Modified Calculation Agent Adjustment were applicable to such event.”
|
Additional Disruption Events:
|
|
Change in Law:
|
Applicable;
provided
that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or announcement or statement of, the formal or informal interpretation”, (ii) by replacing the word “Shares” where it appears in clause (X) thereof with the words “Hedge Positions”, (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date” and (iv) adding the following proviso to the end of clause (Y) thereof: “provided that (1) such party has used commercially reasonable efforts to avoid such increased cost on terms reasonably acceptable to such party, as long as (i) such party would not incur a materially increased cost (including, without limitation, due to any increase in tax liability, decrease in tax benefit or other adverse effect on its tax position), as reasonably determined by such party, in doing so, (ii) such party would not violate any applicable law, rule, regulation or policy of such party, as reasonably determined by such party, in doing so, (iii) such party would not suffer a material penalty, injunction, non-financial burden, reputational harm or other material adverse consequence in doing so, (iv) such party would not incur any material operational or administrative burden in doing so and (v) such party would not, in doing so, be required to take any action that is contrary to the intent of the law or regulation that is subject to the Change in Law and (2) Dealer may exercise its termination right with respect to an event described in this clause (Y) only if Dealer determines, based upon advice of counsel the costs of which are borne by the Dealer, that it is generally exercising its rights to terminate or adjust as a result of such event with respect to any similarly situated customers in the context of the event constituting such Change in Law”.
In addition, Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may elect” with “Dealer may elect” and (2) replacing “notice to the other party” with “notice to Counterparty” in the first sentence of such section.
|
Failure to Deliver:
|
Not Applicable.
|
|
8
|
|
Insolvency Filing:
|
Applicable.
|
Hedging Disruption:
|
Applicable;
provided
that:
(I) Section 12.9(a)(v) of the Equity Definitions is hereby modified by (i) inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date”, and (ii) inserting the following two phrases at the end of such Section:
“For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. For the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms. Any inability of the Hedging Party referred to in phrases (A) and (B) above that is solely attributable to the deterioration of the creditworthiness of the Hedging Party shall not be deemed a Hedging Disruption.”, and
(II) Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
|
Increased Cost of Hedging:
|
Applicable.
|
Loss of Stock Borrow:
|
Applicable;
provided
that (a) Sections 12.9(a)(vii) and 12.9(b)(iv) of the Equity Definitions are amended by deleting the words “at a rate equal to or less than the Maximum Stock Loan Rate” and replacing it with the words “at a Borrow Cost equal to or less than the Maximum Stock Loan Rate” and (b) Section 12.9(b)(iv) of the Equity Definitions is hereby amended by (I) deleting (1) subsection (A) in its entirety, (2) the phrase “or (B)” following subsection (A) and (3) the phrase “in each case” in subsection (B); and (II) replacing the phrase “neither the Non-Hedging Party nor the Lending Party lends Shares” with the phrase “such Lending Party does not lend Shares” in the penultimate sentence.
|
Borrow Cost:
|
The cost to borrow the relevant Shares, as determined by the Calculation Agent on the relevant date of determination. Such costs shall include, without duplication, (a) the spread below FED FUNDS earned on collateral posted in connection with such borrowed Shares, net of any costs or fees, and (b) any stock loan borrow fee payable for such Shares, expressed as a fixed rate per annum.
|
Maximum Stock Loan Rate:
|
200 basis points
|
Increased Cost of Stock Borrow:
|
Applicable;
provided
that (a) Section 12.9(a)(viii) of the Equity Definitions shall be amended by deleting “rate to borrow Shares” and replacing it with “Borrow Cost” and (b) Section 12.9(b)(v) of the Equity Definitions shall be amended by (i) adding the word “or” immediately before the phrase “(B)”, (ii) deleting subsection (C) in its entirety, (iii) replacing “either party” in the penultimate sentence with “the Hedging Party”, (iv) replacing the word “rate” in clause (Y) of the final sentence therein with the words “Borrow Cost”, and (v) deleting clause (X) of the final sentence.
|
Initial Stock Loan Rate:
|
25 basis points, as adjusted by the Calculation Agent to reflect any subsequent Price Adjustment due to an Increased Cost of Stock Borrow.
|
|
9
|
|
FED FUNDS:
|
For any day, the rate set forth for such day opposite the caption “Overnight bank funding rate”, as such rate is displayed on the page “OBFR01 <Index> <GO>” on the BLOOMBERG Professional Service, or any successor page;
provided
that if no rate appears for any day on such page, the rate for the immediately preceding day for which a rate does so appear shall be used for such day.
|
Hedging Party:
|
Dealer or an affiliate of Dealer that is involved in the hedging of this Transaction for all applicable Additional Disruption Events.
|
Hedge Positions:
|
The definition of “Hedge Positions” in Section 13.2(b) of the Equity Definitions shall be amended by inserting the words “or an affiliate thereof” after the words “a party” in the third line.
|
Determining Party:
|
Dealer for all applicable Extraordinary Events and any Announcement Event.
|
Acknowledgments:
|
|
Non-Reliance:
|
Applicable.
|
Agreements and Acknowledgments Regarding Hedging Activities:
|
Applicable.
|
Additional Acknowledgments:
|
Applicable.
|
(a)
|
Commodity Exchange Act.
It is an “eligible contract participant” within the meaning of Section 1a(18) of the U.S. Commodity Exchange Act, as amended (the “
CEA
”). The Transaction has been subject to individual negotiation by the parties. The Transaction has not been executed or traded on a “trading facility” as defined in the CEA.
|
(b)
|
Securities Act.
It is a “qualified institutional buyer” as defined in Rule 144A under the Securities Act, or an “accredited investor” as defined in Section 2(a)(15)(ii) of the Securities Act.
|
(c)
|
ERISA.
The assets used in the Transaction (1) are not assets of any “plan” (as such term is defined in Section 4975 of the U.S. Internal Revenue Code (the “
Code
”)) subject to Section 4975 of the Code or any “employee benefit plan” (as such term is defined in Section 3(3) of the U.S. Employee Retirement Income Security Act of 1974, as amended (“
ERISA
”)) subject to Title I of ERISA, and (2) do not constitute “plan assets” within the meaning of Department of Labor Regulation 2510.3-101, 29 CFR Section 2510-3-101.
|
(d)
|
Notice of Event of Default
. It shall promptly provide written notice to the other party upon obtaining knowledge of the occurrence of any event that would constitute an Event of Default;
provided, however
, that should it be in possession of material non-public information regarding itself, it shall not communicate such information to the other party.
|
(e)
|
No Registration
. It understands, agrees and acknowledges that the other party has no obligation or intention to register the Transaction under the Securities Act, any state securities law or other applicable federal or non-U.S. securities law.
|
(f)
|
Non-reliance
. (A) It is acting for its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary, (B) It is not relying
|
|
10
|
|
(a)
|
The representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement dated as of the Trade Date between Counterparty, Goldman Sachs International, J.P. Morgan Securities PLC, Barclays Bank PLC, Credit Suisse Securities (Europe) Limited and Merrill Lynch International (the “
Initial Purchasers
”) (the “
Purchase Agreement
”) relating to the issuance of 0.50% Senior Unsecured Convertible Notes due 2023 (the “
Convertible Notes
”) are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein;
|
(b)
|
Without prejudice to the right of Counterparty to deliver (existing) treasury Shares rather than issue new Shares, the Maximum Amount of Shares of Counterparty issuable in connection with this Warrant Transaction (the “
Warrant Shares
”) are available for issuance by all required corporate action of Counterparty. The Warrant Shares have been duly authorized, including by the Counterparty’s general meeting of shareholders. When delivered as contemplated by the terms of the Warrants in accordance with the terms and conditions hereof, the Warrant Shares will be validly issued, fully-paid and non-assessable; and the issuance of the Warrant Shares will not be subject to any pre-emptive or similar rights;
|
(c)
|
Counterparty has full right, power and authority to enter into this Confirmation, to grant the Warrant issue and deliver any Warrant Shares and there are no legal restrictions affecting the issue and delivery thereof.
|
(d)
|
Taking into account the rights already granted to subscribe for any ordinary shares in the capital of the Counterparty and to convert securities into ordinary shares in the capital of the Counterparty and taking into account the number of shares in the capital of the Counterparty already issued, the authorised share capital (
maatschappelijk kapitaal
) as included in its articles of association will provide sufficient headroom for the grant of the Warrant or the issuance of any Warrant Shares upon the exercise thereof and upon the exercise of the rights already granted. Furthermore, Counterparty shall ensure that, from time to time, its authorised share capital (
maatschappelijk kapitaal
) as included in its articles of association, shall provide sufficient headroom for the issuance of any Warrant Shares upon the exercise of the Warrant;
|
(e)
|
Neither the grant of the Warrant nor the issuance of any Warrant Shares by Counterparty to Dealer upon the exercise of the Warrant in accordance with the terms and conditions hereof, shall require Counterparty to issue a prospectus within the meaning of EU Directive 2003/71/EC, as amended, or under or pursuant to any other applicable laws;
|
(f)
|
Counterparty complies, and will comply, with any applicable filing and notice requirements in connection with the transactions contemplated hereby;
|
(g)
|
Counterparty shall promptly provide written notice to Dealer upon obtaining knowledge of the occurrence of any event that would constitute a Potential Adjustment Event, a Merger Event or any other Extraordinary Event;
provided, however
, that should Counterparty be in possession of material
|
|
11
|
|
(h)
|
Counterparty has total assets of at least USD 50,000,000 as of the date hereof;
|
(i)
|
Counterparty is entering into the Transaction, solely for the purposes stated in the board resolution authorizing the Transaction (a copy of which, and such other certificates as Dealer may reasonably request, Counterparty shall deliver to Dealer on or before the Trade Date) and in its public disclosure, and there is no internal policy, whether written or oral, of Counterparty that would prohibit Counterparty from entering into any aspect of the Transaction, including, but not limited to, the issuance of Shares to be made pursuant hereto;
|
(j)
|
Counterparty has not violated and will not violate any applicable law (including, without limitation, the Securities Act, the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”) and Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC, in each case and the regulations promulgated thereunder) in connection with the Transaction;
|
(k)
|
As of the Trade Date and as of the date on which Counterparty delivers any Termination Delivery Units, Counterparty (i) has not filed a request for bankruptcy or been declared bankrupt by a judgment of a competent court in the Netherlands within the meaning of Section 1 of the Netherlands Bankruptcy Act (“Faillisementswet”) or filed a request for a supension of payments within the meaning of Section 213 of the Netherlands Bankruptcy Act and (ii) is not and shall not be after giving effect to the Transactions, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “
Bankruptcy Code
”));
|
(l)
|
Each of Counterparty’s filings under the Securities Act, the Exchange Act, or other applicable securities laws that are required to be filed have been filed and that, as of the respective dates thereof and as of the Trade Date, such filings when considered as a whole (with the more recent such filings deemed to amend inconsistent statements contained in any earlier such filings) do not contain any misstatement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading;
|
(m)
|
On the Trade Date, none of Counterparty and its officers and directors is aware or in possession of any material non-public information or inside information (
voorwetenschap
), as defined in article 5:53 of the Dutch Financial Markets Supervision Act (Wet op het financieel toezicht) (the "
FMSA
"), regarding Counterparty, the Shares or trading in the Shares. “Material” information for these purposes is any information to which an investor would reasonably attach importance in reaching a decision to buy, sell or hold any securities of Counterparty;
|
(n)
|
Counterparty is not, and after giving effect to the Transactions will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
|
(o)
|
Counterparty understands, agrees and acknowledges that no obligations of Dealer to it hereunder shall be entitled to the benefit of deposit insurance and that such obligations shall not be guaranteed by any affiliate of Dealer or any governmental agency;
|
(p)
|
Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Dealer is not making any representations or warranties with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260,
Earnings Per Share
, ASC Topic 815,
Derivatives and Hedging
, ASC Topic 480,
Distinguishing Liabilities from Equity
and ASC
|
|
12
|
|
(q)
|
Counterparty is not entering into the Transaction for the purpose of (i) creating actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or (ii) raising or depressing or otherwise manipulating the price of, or facilitating a distribution of, the Shares (or any security convertible into or exchangeable for the Shares);
|
(r)
|
Counterparty shall deliver to Dealer an opinion of counsel, dated as of the Trade Date and reasonably acceptable to Dealer in form and substance, with respect to the matters set forth in Section 3(a) of the Agreement and paragraph 4(b) of this Confirmation;
provided
that such opinion of counsel may contain customary exceptions, assumptions and qualifications;
|
(s)
|
No federal, state or local (including non-U.S. jurisdictions) law, rule, regulation or regulatory order applicable to Counterparty or the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares;
|
(t)
|
Counterparty has not entered into any obligation or undertaking that would contractually limit it from effecting Net Share Settlement under this Transaction and it agrees not to enter into any such obligation or undertaking during the term of this Transaction;
|
(u)
|
Counterparty shall not take any action to decrease the number of Available Shares below the Maximum Amount (each as defined below);
|
(v)
|
(x)(A) On the Trade Date, the Shares or securities that are convertible into, or exchangeable or exercisable for Shares, are not, and shall not be, subject to a “restricted period,” as such term is defined in Regulation M under the Exchange Act (“
Regulation M
”) other than the distribution of the convertible notes subject to the Purchase Agreement and (B) Counterparty shall not engage in any “distribution,” as such term is defined in Regulation M, other than a distribution meeting the requirements of the exceptions set forth in sections 101(b)(10) and 102(b)(7) of Regulation M until the second Exchange Business Day immediately following the Initial Period (as defined below), and (y)(A) during the period starting on the first Expiration Date and ending on the last Expiration Date (the “
Settlement Period
”), the Shares or securities that are convertible into, or exchangeable or exercisable for Shares, are not, and shall not be, subject to a “restricted period,” as defined in Regulation M and (B) Counterparty shall not engage in any “distribution,” as such term is defined in Regulation M, other than a distribution meeting the requirements of the exceptions set forth in sections 101(b)(10) and 102(b)(7) of Regulation M, until the second Exchange Business Day immediately following the Settlement Period;
|
(w)
|
During (A) the period starting on the Trade Date and ending on the Last Initial Hedge Date (the “
Initial Period
”) and (B) the Settlement Period, and on any other Exercise Date, neither Counterparty nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“
Rule 10b-18
”)) shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except through Dealer;
|
(x)
|
Counterparty agrees that it (A) will not during the Initial Period or the Settlement Period make, or permit to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any Merger Transaction or potential Merger Transaction unless such public announcement is made prior to the opening or after the close of the regular trading session on the Exchange for the Shares (a “
Public Announcement
”); (B) shall promptly (but in any event prior to the next opening of the
|
|
13
|
|
(y)
|
Counterparty has discussed the Transaction contemplated hereunder with its outside tax advisors and has received appropriate comfort from such tax advisors that the tax treatment Counterparty will apply to the Transaction is proper under applicable law.
|
(a)
|
Designation by Dealer.
Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty solely to the extent of and upon any such performance; provided that Dealer’s obligation shall be reinstated (and Dealer shall have the right to designate another of its affiliates to perform such obligation), as though such performance had not been rendered by such affiliate, in the event and to the extent Counterparty is required to repay or reimburse the amount or value of any payment or other performance by such affiliate on the grounds of the insolvency or other legal, regulatory or contractual constraint on affiliate’s payment or performance of such obligation.
|
(b)
|
Repurchase and Par Value Notices.
|
(i)
|
On any day on which both (A) Counterparty effects any repurchase of Shares and (B) Counterparty does not qualify as a “foreign private issuer” as defined in Rule 3b-4 under the Exchange Act, Counterparty shall promptly give Dealer a written notice of such repurchase (a “
Repurchase Notice
”) on such day if following such repurchase, the Warrant Equity Percentage as determined on such day is (1) equal to or greater than 5.0% or (2) greater by 0.5% than the Warrant Equity Percentage included in the immediately preceding Repurchase Notice (or, in the case of the first such Repurchase Notice, greater than the Warrant Equity Percentage as of the Trade Date). The “
Warrant Equity Percentage
” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the product of the Number of Warrants in aggregate and the Warrant Entitlement under this Transaction or any other warrant transaction between the parties and (B) the denominator of which is the number of Shares outstanding on such day. Counterparty agrees to indemnify and hold harmless Dealer and its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each, an “
Indemnified Person
”) from and against any and all losses (including losses relating to Dealer’s hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider”, including without limitation, any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with respect to the Transaction), claims, damages,
|
|
14
|
|
(ii)
|
Counterparty shall notify Dealer in writing in reasonable detail no less than 30 days prior to the record date or other date of effectiveness of any event (a “
Par Value Event
”) that could result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event, which notice shall also contain the anticipated record or other effective date of such event (a “
Par Value Notice
”);
provided
,
however
, that should Counterparty be in possession of material non-public information regarding Counterparty (without limiting Counterparty’s obligations to disclose such information generally pursuant to the FMSA), Counterparty shall not communicate such information to Dealer.
|
(c)
|
Transfer or Assignment.
Counterparty may not transfer or assign any of its rights or obligations under the Transaction or the Agreement without the prior written consent of Dealer. Notwithstanding any provision of the Agreement to the contrary, Dealer may, subject to applicable law, freely transfer and assign all of its rights and obligations under the Transaction and the Agreement without the consent of Counterparty to any affiliate of Dealer, or to any third party with a rating (or whose guarantor has a rating) for its long term, unsecured and unsubordinated indebtedness of A- or better by Standard & Poor’s Ratings Services or its successor (“
S&P
”), or A3 or better by Moody’s Investors Service, Inc. or its successor (“
Moody’s
”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer;
provided
that Dealer shall not transfer or assign any of its rights and obligations under
|
|
15
|
|
(d)
|
Reserved.
|
(e)
|
Bail-In Protocol
. Notwithstanding anything contained in this Agreement, the parties agree that the provisions of the ISDA 2016 Bail-In Article 55 BRRD Protocol published by the International Swaps and Derivatives Association, Inc. on 14 July 2016 (the “
Bail-In Protocol
”) shall be deemed to be incorporated into and apply to the Agreement with effect from the date of this Confirmation as if references in those provisions to “Protocol Covered Agreement” as defined in the Bail-in Protocol were references to the Agreement, and on the basis that references to the “Implementation Date” in the Bail-in Protocol shall be deemed to be references to the date of this Confirmation.
|
(f)
|
Additional Termination Events.
The occurrence of any of the following shall constitute an Additional Termination Event with respect to which (1) Counterparty shall be the sole Affected Party and (2) the Transaction shall be the sole Affected Transaction;
provided
that with respect to any of the following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose
|
|
16
|
|
(i)
|
if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this Transaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
|
(ii)
|
if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated as of September 6, 2017 (the “
Bond Hedge Transaction
”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; or
|
(iii)
|
if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in the amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “
Par Value ATE
”);
provided
that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value Notice.
|
(g)
|
No Collateral.
Notwithstanding any provision of this Confirmation, the Agreement, Equity Definitions or any other agreement between the parties to the contrary, the obligations of Counterparty under the Transaction are not secured by any collateral.
|
(h)
|
Netting and Setoff
. Obligations under the Transaction shall not be netted, recouped or set off (including pursuant to Section 6 of the Agreement) against any other obligations of the parties, whether arising under the Agreement, this Confirmation, under any other agreement between the parties hereto, by operation of law or otherwise, and no other obligations of the parties shall be netted, recouped or set off (including pursuant to Section 6 of the Agreement) against obligations under the Transaction, whether arising under the Agreement, this Confirmation, under any other agreement between the parties hereto, by operation of law or otherwise, and each party hereby waives any such right of setoff, netting or recoupment; provided that both parties agree that subparagraph (ii) of Section 2(c) of the Agreement shall apply to the Transaction.
|
(i)
|
Alternative Calculations and Counterparty Payment on Early Termination and on Certain Extraordinary Events
. If Counterparty owes Dealer any amount in connection with the Transaction (i) pursuant to Sections 12.2, 12.3, 12.6, 12.7 or 12.9 of the Equity Definitions (except in the case of an Extraordinary Event in which the consideration or proceeds to be paid to all holders of Shares as
|
|
17
|
|
(j)
|
Registration/Private Placement Procedures.
If, following (x) the designation of an Early Termination Date or any other cancellation or termination of the Transaction prior to its expiration or (y) the adoption of or any change in any applicable law or regulation, or the promulgation of or any change in, or announcement or statement of, the formal or informal interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation, in each case on or after the Trade Date, in the reasonable opinion of Dealer, following any delivery of Shares or Termination Delivery Units to Dealer hereunder, such Shares or Termination Delivery Units would be in the hands of Dealer subject to any applicable restrictions with respect to any registration or qualification requirement or prospectus delivery requirement for such Shares or Termination Delivery Units pursuant to any applicable federal or state securities law (including, without limitation, any such requirement arising under Section 5 of the Securities Act as a result of such Shares or Termination Delivery Units being “restricted securities”, as such term is defined in Rule 144 under the Securities Act, or as a result of the sale of such Shares or Termination Delivery Units) (such Shares or Termination Delivery Units, “
Restricted Shares
”), then delivery of such Restricted Shares shall be effected pursuant to either clause (i) or (ii) below at the election of Counterparty, unless waived by Dealer. Notwithstanding the foregoing, solely in respect of any Number of Warrants exercised or deemed exercised on any Expiration Date, Counterparty shall elect, prior to the first Settlement
|
|
18
|
|
(i)
|
If Counterparty elects to settle the Transaction pursuant to this clause (i) (a “
Private Placement Settlement
”), then delivery of Restricted Shares by Counterparty shall be effected in customary private placement procedures with respect to such Restricted Shares reasonably acceptable to Dealer;
provided
that Counterparty may not elect a Private Placement Settlement if, on the date of its election, it has taken, or caused to be taken, any action that would make unavailable either the exemption pursuant to Section 4(a)(2) of the Securities Act for the sale by Counterparty to Dealer (or any affiliate designated by Dealer) of the Restricted Shares or the exemption pursuant to Section 4(a)(1) or Section 4(a)(3) of the Securities Act for resales of the Restricted Shares by Dealer (or any such affiliate of Dealer). The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated buyer of the Restricted Shares by Dealer), opinions and certificates, and such other documentation as is customary for private placement agreements, all reasonably acceptable to Dealer. In the case of a Private Placement Settlement, Dealer shall determine the appropriate discount (in the case of settlement of Termination Delivery Units pursuant to paragraph 5(i) above) or any Settlement Price (in the case of settlement of Shares pursuant to Section 2 above) applicable to such Restricted Shares in a commercially reasonable manner and appropriately adjust the number of such Restricted Shares to be delivered to Dealer hereunder. Notwithstanding the Agreement or this Confirmation, the date of delivery of such Restricted Shares shall be the Scheduled Trading Day following notice by Dealer to Counterparty, of such applicable discount and the number of Restricted Shares to be delivered pursuant to this clause (i). For the avoidance of doubt, delivery of Restricted Shares shall be due as set forth in the previous sentence and not be due on the date described in paragraph 5(i) (in the case of settlement of Termination Delivery Units) or on the Settlement Date (in the case of settlement in Shares pursuant to Section 2 above).
|
(ii)
|
If Counterparty elects to settle the Transaction pursuant to this clause (ii) (a “
Registration Settlement
”), then Counterparty shall promptly (but in any event no later than the beginning of the Resale Period (as defined below)) file and use its reasonable best efforts to make effective under the Securities Act a registration statement or supplement or amend an outstanding registration statement in form and substance reasonably satisfactory to Dealer, to cover the resale of such Restricted Shares (and any Make-whole Shares) in accordance with customary resale registration procedures, including covenants, conditions, representations, underwriting discounts (if applicable), commissions (if applicable), indemnities, due diligence rights, opinions and certificates, and such other documentation as is customary for equity resale underwriting agreements, all reasonably acceptable to Dealer. If Dealer, in its sole reasonable discretion, is not satisfied with such procedures and documentation Private Placement Settlement shall apply. If Dealer is satisfied with such procedures and documentation, it shall sell the Restricted Shares pursuant to such registration statement as promptly as commercially
|
|
19
|
|
(iii)
|
(A) If (ii) above is applicable and the aggregate Option Cash Settlement Amount for all Valuation Dates (the “
Aggregate Option Cash Settlement Amount
”) or the Payment Obligation, as applicable, exceeds the realized net proceeds from such resale, or if (i) above is applicable and the Freely Tradeable Value (as defined below) of the Aggregate Option Cash Settlement Amount or the Payment Obligation (in each case as adjusted pursuant to (i) above), as applicable, exceeds the realized net proceeds from such resale, Counterparty shall transfer to Dealer by the open of the regular trading session on the Exchange on the Scheduled Trading Day immediately following the last day of the Resale Period the amount of such excess (the “
Additional Amount
”), at Counterparty’s option, either in cash or in a number of Shares (“
Make-whole Shares
”;
provided
that the aggregate number of Shares and Make-whole Shares delivered shall not exceed the Maximum Amount) that, based on the Settlement Price on the last day of the Resale Period (as if such day was the “
Valuation Date
” for purposes of computing such Settlement Price), has a value equal to the Additional Amount. The Resale Period shall continue to enable the sale of the Make-whole Shares. If Counterparty elects to pay the Additional Amount in Make-whole Shares, the requirements and provisions for either Private Placement Settlement or Registration Settlement shall apply to such payment. This provision shall be applied successively until the Additional Amount is equal to zero, subject to paragraph 5(m) below. “
Freely Tradeable Value
” means the value of the number of Shares delivered to Dealer which such Shares would have if they were freely tradeable (without prospectus delivery) upon receipt by Dealer, as determined by the Calculation Agent by commercially reasonable means.
|
|
20
|
|
(iv)
|
Without limiting the generality of the foregoing, Counterparty agrees that any Restricted Shares delivered to Dealer, as purchaser of such Restricted Shares, (A) may be transferred by and among Dealer and its affiliates and Counterparty shall effect such transfer without any further action by Dealer and (B) after the minimum “holding period” within the meaning of Rule 144(d) under the Securities Act has elapsed after any settlement date for such Restricted Shares, Counterparty shall promptly remove, or cause the transfer agent for such Restricted Shares to remove, any legends referring to any such restrictions or requirements from such Restricted Shares upon delivery by Dealer (or such affiliate of Dealer) to Counterparty or such transfer agent of any seller’s and broker’s representation letters customarily delivered by Dealer in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by Dealer (or such affiliate of Dealer).
|
(k)
|
Limit on Beneficial Ownership.
Notwithstanding any other provisions hereof, Dealer may not exercise any Warrant hereunder, Automatic Exercise shall not apply with respect thereto, and no delivery hereunder (including pursuant to paragraphs 5(j), (l) or (m)) shall be made, to the extent (but only to the extent) that, the receipt of any Shares upon such exercise or delivery would result in the existence of an Excess Ownership Position. Any purported delivery hereunder shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the existence of an Excess Ownership Position. Subject to paragraph 5(c), if any delivery owed to Dealer hereunder or any exercise is not made, in whole or in part, as a result of this provision, Counterparty’s obligation to make such delivery and Dealer’s right to exercise a Warrant shall not be extinguished and Counterparty shall make such delivery as promptly as practicable after, but in no event later than one Scheduled Trading Day after, Dealer gives notice to Counterparty that, such exercise or delivery would not result in the existence of an Excess Ownership Position. Dealer shall use commercially reasonable efforts to take steps so that it is able to accept delivery as soon as reasonably practicable.
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21
|
|
(l)
|
Share Deliveries.
Counterparty acknowledges and agrees that, to the extent that Dealer is not then an affiliate, as such term is used in Rule 144 under the Securities Act, of Counterparty and has not been such an affiliate of Counterparty for 90 days (it being understood that Dealer shall not be considered such an affiliate of Counterparty solely by reason of its receipt of or right to receive Shares pursuant to this Transaction), and otherwise satisfies all holding period and other requirements of Rule 144 under the Securities Act applicable to it, any Shares or Termination Delivery Units delivered hereunder at any time after 1 year from the Premium Payment Date shall be eligible for resale under Rule 144 under the Securities Act, and Counterparty agrees to promptly remove, or cause the transfer agent for such Shares or Termination Delivery Units to remove, any legends referring to any restrictions on resale under the Securities Act from such Shares or Termination Delivery Units. Counterparty further agrees that with respect to any Shares or Termination Delivery Units delivered hereunder at any time after 6 months from the Premium Payment Date but prior to 1 year from the Premium Payment Date, to the extent that Counterparty then satisfies the current information requirement of Rule 144 under the Securities Act, Counterparty shall promptly remove, or cause the transfer agent for such Shares or Termination Delivery Units to remove, any legends referring to any such restrictions or requirements from such Shares or Termination Delivery Units upon delivery by Dealer to Counterparty or such transfer agent of any customary seller’s and broker’s representation letters in connection with resales of such Shares or Termination Delivery Units pursuant to Rule 144 under the Securities Act, without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by Dealer. Counterparty further agrees and acknowledges that Dealer shall run a holding period under Rule 144 under the Securities Act with respect to the Warrants and/or any Shares or Termination Delivery Units delivered hereunder notwithstanding the existence of any other transaction or transactions between Counterparty and Dealer relating to the Shares. Counterparty further agrees that Shares or Termination Delivery Units delivered hereunder prior to the date that is 6 months from the Premium Payment Date may be freely transferred by Dealer to its affiliates, and Counterparty shall effect such transfer without any further action by Dealer. Notwithstanding anything to the contrary herein, Counterparty agrees that any delivery of Shares or Termination Delivery Units shall be effected by book-entry transfer through the facilities of the Clearance System if, at the time of such delivery, such Shares or Termination Delivery Units would not contain any restrictive legend as described above. Notwithstanding anything to the contrary herein, to the extent the provisions of Rule 144 under the Securities Act or any successor rule are amended, or the applicable interpretation thereof by the Securities and Exchange Commission or any court changes after the Trade Date, including without limitation to lengthen or shorten the holding periods, the agreements of Counterparty herein shall be deemed modified to the extent necessary, in the opinion of outside counsel of Counterparty, to comply with Rule 144 under the Securities Act, including Rule 144, as in effect at the time of delivery of the relevant Shares or Termination Delivery Units.
|
(m)
|
Maximum Share Delivery.
Notwithstanding any other provision of this Confirmation or the Agreement, in no event will Counterparty be required to deliver more than [ ] Shares (the “
Maximum Amount
”) in the aggregate to Dealer in connection with the Transaction, subject to the provisions below regarding Deficit Shares and to adjustment from time to time in accordance with the provisions of this Confirmation or the Equity Definitions. Counterparty represents and warrants to Dealer (which representation and warranty shall be deemed to be repeated on each day that the Transaction is outstanding) that the Maximum Amount is equal to or less than the number of authorized but unissued Shares of Counterparty in respect of which rights to subscribe have not been granted (“reserved”) in connection with transactions in the Shares (other than the Transaction) on the date of the determination of the Maximum Amount (such Shares, the “
Available Shares
”). In the event Counterparty shall not have delivered the full number of Shares otherwise due in connection with the Transaction as a result of the first sentence of this paragraph relating to the Maximum Amount (such deficit, the “
Deficit Shares
”), Counterparty shall be continually obligated to deliver, from time to time until the full number of Deficit Shares have been delivered pursuant to this paragraph, Shares when, and to the extent, that (i) Shares are repurchased, acquired or otherwise received by Counterparty or any of its
|
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22
|
|
(n)
|
Par Value of Shares.
The parties acknowledge and agree that Counterparty may allocate all or any portion of the Premium to reflect the payment of the par value of the Shares delivered to Dealer under this Transaction. Counterparty covenants that it will not cause or permit anything to be done that would cause the Premium to be inadequate in respect of the par value for any Shares delivered to Dealer hereunder.
|
(o)
|
No Material Non-Public Information.
Dealer shall provide a written notice to Counterparty promptly following the date on which Dealer has completed all purchases or sales of Shares or other transactions to hedge initially its exposure with respect to the Transaction (such date, the “
Last Initial Hedge Date
”), which it shall complete as soon as reasonably practicable. On each day during the period beginning on the Trade Date and ending on the earlier of (i) the 3
rd
Exchange Business Day following the Trade Date and (ii) the Last Initial Hedge Date, Counterparty represents and warrants to Dealer that none of Counterparty and its officers and directors is aware or in possession of any material non-public information or any information constituting inside information (
voorwetenschap
), as defined in article 5:53 of the FMSA, concerning Counterparty, the Shares or trading in the Shares. “Material” information for these purposes is any information to which an investor would reasonably attach importance in reaching a decision to buy, sell or hold any securities of Counterparty.
|
(p)
|
Tax Disclosure.
Notwithstanding anything to the contrary herein, in the Equity Definitions or in the Agreement, and notwithstanding any express or implied claims of exclusivity or proprietary rights, the parties (and each of their employees, representatives or other agents) are authorized to disclose to any and all persons, beginning immediately upon commencement of their discussions and without limitation of any kind, the tax treatment and tax structure of the Transaction, and all materials of any kind (including opinions or other tax analyses) that are provided by either party to the other relating to such tax treatment and tax structure.
|
(q)
|
Status of Claims in Bankruptcy.
Dealer acknowledges and agrees that this Confirmation is not intended to convey to Dealer rights with respect to the Transaction that are senior to the claims of common stockholders of Counterparty in any Dutch bankruptcy proceedings of Counterparty;
provided
that nothing herein shall limit or shall be deemed to limit Dealer’ right to pursue remedies in the event of a breach by Counterparty of its obligations and agreements with respect to the Transaction;
provided
further
that nothing in this paragraph shall limit or shall be deemed to limit Dealer’ rights in respect of any transactions other than the Transaction.
|
(r)
|
Securities Contract.
The parties hereto agree and acknowledge that Dealer is one or more of a “financial institution” and “financial participant” within the meaning of Sections 101(22) and 101(22A) of the Bankruptcy Code. The parties hereto further agree and acknowledge (A) that this Confirmation is a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement payment” (as such term is defined in Section 741(8)
|
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23
|
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(s)
|
Right to Extend.
Dealer may postpone any potential Expiration Date or postpone or extend any other date of valuation or delivery with respect to some or all of the relevant Warrants (in which event the Calculation Agent shall make appropriate adjustments to the Net Share Amount for such Expiration Date), if Dealer determines, in its commercially reasonable discretion, that such postponement or extension is necessary or appropriate to (i) preserve Dealer’s or its affiliate’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions in the cash market, the stock loan market or any other relevant market or (ii) enable Dealer or its affiliate to effect purchases or sales of Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer or such affiliate were Issuer or an affiliated purchaser of Issuer, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer and/or such affiliate;
provided
that Dealer may not postpone or extend any such date by more than 100 Exchange Business Days.
|
(t)
|
Adjustments.
For the avoidance of doubt, whenever the Calculation Agent is called upon to make an adjustment pursuant to the terms of this Confirmation or the Equity Definitions to take into account the effect of an event, the Calculation Agent shall make such adjustment by reference to the effect of such event on the Hedging Party, assuming that the Hedging Party maintains a commercially reasonable hedge position.
|
(u)
|
Wall Street Transparency and Accountability Act of 2010.
The parties hereby agree that none of (i) Section 739 of the Wall Street Transparency and Accountability Act of 2010 (the “
WSTAA
”), (ii) any similar legal certainty provision included in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, (iii) the enactment of the WSTAA or any regulation under the WSTAA, (iv) any requirement under the WSTAA or (v) any amendment made by the WSTAA shall limit or otherwise impair either party’s right to terminate, renegotiate, modify, amend or supplement this Confirmation, any Transaction hereunder or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased cost, regulatory change or similar event under this Confirmation, the Equity Definitions or the Agreement (including, but not limited to, any right arising from any Change in Law, Insolvency Filing, Hedging Disruption, Increased Cost of Hedging, Loss of Stock Borrow, Increased Cost of Stock Borrow, or Illegality (as defined in the Agreement)).
|
(v)
|
Payments on Early Termination
. The parties hereto agree that for the Transaction, for the purposes of Section 6(e) of the Agreement, Second Method and Loss will apply. The Termination Currency shall be USD.
|
(w)
|
Governing Law.
This Confirmation and the Agreement, and any claims, causes of action or disputes arising hereunder or thereunder or relating hereto or thereto, shall be governed by the laws of the State of New York (without reference to choice of law doctrine that would lead to the application of the laws of any jurisdiction other than New York).
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(x)
|
Waiver of Jury Trial.
EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATING TO THE TRANSACTION. EACH PARTY (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF SUCH A SUIT, ACTION OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THE TRANSACTION, AS
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24
|
|
(y)
|
Submission to Jurisdiction.
THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.
|
(z)
|
Process Agent.
For purposes of Section 13(c) of the Agreement, Counterparty appoints QIAGEN North American Holdings, Inc. at 19300 Germantown Road, Germantown, MD 20874 as its Process Agent.
|
(aa)
|
Understanding and Acknowledgement.
Counterparty understands and acknowledges that notwithstanding any other relationship between Counterparty and Dealer (and Dealer’s affiliates), in connection with this Transaction and any other over-the-counter derivative transaction between Counterparty and Dealer or Dealer’s affiliates, Dealer or its affiliates, as the case may be, is acting as principal and is not a fiduciary or adviser to Counterparty in respect of any such transaction, including any entry into or exercise, amendment, unwind or termination thereof.
|
(bb)
|
Reserved
.
|
(cc)
|
Reserved
.
|
(dd)
|
Part 2(b) of the ISDA Schedule – Payee Representation:
|
(ee)
|
Part 3(a) of the ISDA Schedule – Tax Forms:
|
|
25
|
|
|
Form/Document/Certificate
|
Date by which to be Delivered
|
Counterparty
|
A complete and duly executed United States Internal Revenue Service Form W-8BEN-E (or successor thereto.)
|
(i) Upon execution and delivery of this Agreement; (ii) promptly upon reasonable demand by Dealer; and (iii) promptly upon learning that any such Form previously provided by Counterparty has become obsolete or incorrect.
|
Dealer
|
A complete and duly executed United States Internal Revenue Service Form W-8BEN-E (or successor thereto.)
|
(i) Upon execution and delivery of this Agreement; (ii) promptly upon reasonable demand by Counterparty; and (iii) promptly upon learning that any such Form previously provided by Dealer has become obsolete or incorrect.
|
(ff)
|
2015 Section 871(m) Protocol
: Dealer is adherent to the ISDA 2015 Section 871(m) Protocol published by the International Swaps and Derivatives Association, Inc. on November 2, 2015, as may be amended or modified from time to time (the “
2015 Section 871(m) Protocol
”). In the event that Counterparty is not an adherent to the 2015 Section 871(m) Protocol, Dealer and Counterparty hereby agree that this Agreement shall be treated as a Covered Master Agreement (as that term is defined in the 2015 Section 871(m) Protocol) and this Agreement shall be deemed to have been amended in accordance with the modifications specified in the Attachment to the 2015 Section 871(m) Protocol.
|
(gg)
|
Additional ISDA Schedule Terms
|
(hh)
|
Foreign Merger.
If, at any reasonable time following the occurrence of any Foreign Merger, the Calculation Agent reasonably determines in its good faith judgment that (x) such Foreign Merger has had a material adverse effect on Dealer’s rights and obligations under the Transaction or (y) Dealer would incur an increased (as compared with circumstances existing on the Trade Date) amount of tax, duty, expense or fee (other than brokerage commissions and excluding (I) any
de minimis
increased amount of tax, duty, expense or fee, as determined by the Calculation Agent, and (II) such increased amount that is incurred solely due to the deterioration of the creditworthiness of Dealer and/or any of its affiliates that are conducting hedging in connection with this Transaction), to (1)
|
|
26
|
|
(ii)
|
Contractual Recognition of UK Stay in Resolution
. Notwithstanding anything contained in Agreement, the parties agree that the provisions of paragraphs 1 to 4 (inclusive) of the UK (PRA Rule) Jurisdictional Module (the “
UK Module
”) published by the International Swaps and Derivatives Association, Inc. on 3 May 2016, as amended from time to time, shall be deemed to be incorporated into the Agreement as if references in those provisions to “Covered Agreement” were references to the Agreement, and on the basis that: (i) Dealer shall be treated as a “Regulated Entity” and as a “Regulated Entity Counterparty” with respect to Counterparty, (ii) Counterparty shall be treated as a “Module Adhering Party”, and (iii) references to the “Implementation Date” in the UK Module shall be deemed to be references to 1 January 2017.
|
(jj)
|
Withholding Tax Imposed on Payments to Non-US Counterparties Under the United States Foreign Account Tax Compliance Act
. “Indemnifiable Tax” as defined in Section 14 of this Agreement shall not include any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “
Code
”), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “
FATCA Withholding Tax
”). For the avoidance of
|
|
27
|
|
(kk)
|
Reporting Confidentiality.
The parties agree that solely as between Dealer and Counterparty, the definitions and provisions contained in the ISDA 2013 Reporting Protocol published by the International Swaps and Derivatives Association, Inc. on May 10, 2013, including the Attachment thereto (the “
Reporting Protocol”
), will be deemed to be incorporated into this Confirmation, mutatis mutandis, as though such definitions and provisions were set out in full herein, with such conforming changes as are necessary to deal with what would otherwise be inappropriate or incorrect cross references. The parties further agree that the Implementation Date (as such term is defined in the Reporting Protocol) shall be the Trade Date of this Confirmation.
|
(a)
|
Account for payments to Counterparty:
|
(b)
|
Account for payments to Dealer:
|
(a)
|
Address for notices or communications to Counterparty:
|
|
28
|
|
(b)
|
Address for notices or communications to Dealer:
|
|
29
|
|
By:
|
___________________________
Name: Title: |
By:
|
___________________________
Name: Title: |
|
|
|
2.
|
USD Premium: [ ].
|
3.
|
Premium: The USD Premium, as converted into EUR at the “ask” spot rate of exchange of EUR for USD as quoted on Bloomberg page “WMCO”, at 4:00 p.m. New York time on the first day that is both a New York Banking Day and a London Banking Day after the Trade Date, or if such rate of exchange is not quoted thereon at such time, as converted into EUR by the Calculation Agent in a commercially reasonable manner. Promptly following the determination thereof, the Calculation Agent shall provide written notice to Counterparty specifying the Premium.
|
4.
|
Premium Payment Date: The closing date for the initial issuance of the Convertible Notes.
|
|
1
|
|
Component Number
|
Number of Warrants
|
Expiration Date
|
1.
|
[ ]
|
6/26/2023
|
2.
|
[ ]
|
6/27/2023
|
3.
|
[ ]
|
6/28/2023
|
4.
|
[ ]
|
6/29/2023
|
5.
|
[ ]
|
6/30/2023
|
6.
|
[ ]
|
7/5/2023
|
7.
|
[ ]
|
7/6/2023
|
8.
|
[ ]
|
7/7/2023
|
9.
|
[ ]
|
7/10/2023
|
10.
|
[ ]
|
7/11/2023
|
11.
|
[ ]
|
7/12/2023
|
12.
|
[ ]
|
7/13/2023
|
13.
|
[ ]
|
7/14/2023
|
14.
|
[ ]
|
7/17/2023
|
15.
|
[ ]
|
7/18/2023
|
16.
|
[ ]
|
7/19/2023
|
17.
|
[ ]
|
7/20/2023
|
18.
|
[ ]
|
7/21/2023
|
19.
|
[ ]
|
7/24/2023
|
20.
|
[ ]
|
7/25/2023
|
21.
|
[ ]
|
7/26/2023
|
22.
|
[ ]
|
7/27/2023
|
23.
|
[ ]
|
7/28/2023
|
24.
|
[ ]
|
7/31/2023
|
25.
|
[ ]
|
8/1/2023
|
26.
|
[ ]
|
8/2/2023
|
27.
|
[ ]
|
8/3/2023
|
28.
|
[ ]
|
8/4/2023
|
29.
|
[ ]
|
8/7/2023
|
30.
|
[ ]
|
8/8/2023
|
31.
|
[ ]
|
8/9/2023
|
32.
|
[ ]
|
8/10/2023
|
33.
|
[ ]
|
8/11/2023
|
34.
|
[ ]
|
8/14/2023
|
35.
|
[ ]
|
8/15/2023
|
36.
|
[ ]
|
8/16/2023
|
37.
|
[ ]
|
8/17/2023
|
38.
|
[ ]
|
8/18/2023
|
39.
|
[ ]
|
8/21/2023
|
40.
|
[ ]
|
8/22/2023
|
41.
|
[ ]
|
8/23/2023
|
|
42.
|
[ ]
|
8/24/2023
|
43.
|
[ ]
|
8/25/2023
|
44.
|
[ ]
|
8/28/2023
|
45.
|
[ ]
|
8/29/2023
|
46.
|
[ ]
|
8/30/2023
|
47.
|
[ ]
|
8/31/2023
|
48.
|
[ ]
|
9/1/2023
|
49.
|
[ ]
|
9/5/2023
|
50.
|
[ ]
|
9/6/2023
|
|
|
|
|
1
|
|
General Terms:
|
|
Trade Date:
|
September 6, 2017.
|
Option Style:
|
Modified American, as described below under “Procedures for Exercise”.
|
Option Type:
|
Call.
|
Buyer:
|
Counterparty.
|
Seller:
|
Dealer.
|
Shares:
|
The ordinary shares, par value EUR 0.01 per share, of Counterparty (NASDAQ ticker symbol “QGEN”).
|
Number of Options:
|
[ ]
|
Option Entitlement:
|
As of any date, a number of Shares per Option equal to the Applicable Percentage
multiplied
by
the “Conversion Ratio” (as defined in the Indenture) as of such date (but without regard to any adjustments to the “Conversion Ratio” pursuant to Section 12.03 or to Section 12.04(h) of the Indenture).
|
Strike Price:
|
As provided in
Schedule A
to this Confirmation.
|
Applicable Percentage:
|
[ ]%.
|
Premium:
|
As provided in
Schedule A
to this Confirmation.
|
Premium Payment Date:
|
As provided in
Schedule A
to this Confirmation.
|
Exchange:
|
The NASDAQ Global Select Market.
|
Related Exchange(s):
|
All Exchanges.
|
Calculation Agent:
|
Dealer;
provided
that all determinations made by Calculation Agent shall be made in good faith and in a commercially reasonable manner;
provided
further
that (i) upon receipt of written request from Counterparty, the Calculation Agent shall promptly provide Counterparty with a written explanation describing in reasonable detail any calculation, adjustment, or determination made by it (including any quotation, market data or information from internal or external sources used in making such calculation, adjustment or determination, as the case may be, but without disclosing Calculation Agent’s proprietary models or other information that may be proprietary or confidential) and shall use commercially reasonable efforts to provide such written explanation within five (5) Exchange Business Days from receipt of such request, (ii) if an Event of Default described in Section 5(a)(vii) of the Agreement has occurred and is continuing with respect to Dealer, the Calculation Agent shall be a leading recognized dealer in equity derivatives designated in good faith by Counterparty for so long as such Event of Default is continuing and (iii) if Counterparty promptly disputes in writing any calculation, adjustment or determination and provides reasonable detail as to the basis for such dispute, the Calculation Agent shall discuss the dispute with Counterparty and shall consider in good faith any alternative calculations, adjustments or determinations proposed by Counterparty, it being understood that the Calculation Agent’s calculation, adjustment or determination, modified to the extent the Calculation Agent determines appropriate after such consideration, shall apply to the Transaction.
|
Procedures for Exercise:
|
|
2
|
|
Conversion Dates:
|
Each “Conversion Date” (as defined in the Indenture) occurring during the Exercise Period for Convertible Notes in denominations of USD 200,000 principal amount that are surrendered for conversion on such Conversion Date in accordance with the terms of the Indenture, subject to “Notice of Exercise” below (such Convertible Notes, the “
Relevant Convertible Notes
”).
|
Exercisable Options:
|
In respect of each Conversion Date, a number of Options equal to the number of Relevant Convertible Notes in denominations of USD 200,000 principal amount surrendered for conversion on such Conversion Date in accordance with the terms of the Indenture, subject to “Notice of Exercise” below, but no greater than the Number of Options.
|
Free Convertibility Date:
|
March 13, 2023.
|
Exercise Period:
|
The period from and including the Premium Payment Date to and including the Expiration Date.
|
Expiration Date:
|
Notwithstanding anything to the contrary in Section 3.1(f) of the Equity Definitions, “Expiration Date” shall mean the earlier of (x) the last day on which any Convertible Notes remain outstanding and (y) the fifth Scheduled Trading Day immediately preceding the “Maturity Date” (as defined in the Indenture).
|
Multiple Exercise:
|
Applicable, as provided under “Exercisable Options” above.
|
Automatic Exercise:
|
Applicable;
provided
that such Exercisable Options shall be exercised or deemed exercised only if Counterparty has provided a Notice of Exercise to Dealer in accordance with “Notice of Exercise” below.
|
|
3
|
|
Notice of Exercise:
|
Notwithstanding anything to the contrary in the Equity Definitions or under “Exercisable Options” above, Counterparty shall notify Dealer in writing prior to 5:00 p.m., New York City time, on the day that is at least two Scheduled Trading Days prior to the first day of the applicable Conversion Period (as defined below) in respect of the Options being exercised (or, in the case of an Early Conversion prior to the Conversion Period, prior to 5:00 p.m., New York City time, on the day that is at least two Scheduled Trading Days’ prior to the first day of the applicable “Calculation Period” (as defined in the Indenture)) (the “
Exercise Notice Deadline
”) of (i) the number of such Options (including, if applicable, whether all or any portion of the Convertible Notes relating to such Options are Convertible Notes as to which additional Shares would be added to the “Conversion Ratio” (as defined in the Indenture) pursuant to Section 12.03 of the Indenture (the “
Make-Whole Convertible Notes
”)) and (ii) the scheduled first day of the applicable Conversion Period (or, in the case of an Early Conversion, the scheduled first day of the applicable “Calculation Period” (as defined in the Indenture));
provided
that (I) in respect of any Options relating to Relevant Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date (other than Make-Whole Convertible Notes), such notice may be given on or prior to the Scheduled Trading Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (II) with respect to (a) any Exercisable Options exercised prior to the Free Convertibility Date or (b) any Exercisable Options relating to Make-Whole Convertible Notes exercised on or after the Free Convertibility Date (any exercise pursuant to clause (a) or (b), an “
Early Conversion
”), an Additional Termination Event shall be deemed to occur with respect to a number of Options equal to the number of Exercisable Options so exercised, as provided in clause (D) under “Additional Termination Events” in paragraph 5(b) below.
Notwithstanding the foregoing, notice in respect of any exercise of Options hereunder (and the related exercise of Options) shall be effective if given after 5:00 p.m., New York City time, on the Exercise Notice Deadline, but prior to 5:00 p.m., New York City time, on the fifth Scheduled Trading Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Cash Settlement Amount as appropriate to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Exercise Notice Deadline and, if appropriate, to delay the Settlement Date.
|
Settlement Terms:
|
|
Settlement Method:
|
For any Option, Cash Settlement.
|
Cash Settlement:
|
In lieu of Section 8.1 of the Equity Definitions, Dealer will pay to Counterparty, on the relevant Settlement Date for each Option, an amount of cash (the “
Cash Settlement Amount
”) equal to the
sum
of the amounts determined for each Trading Day during the applicable Conversion Period for such Option consisting of (i) the Daily Option Value for such Trading Day,
divided by
(ii) the number of Trading Days in the applicable Conversion Period.
|
Daily Option Value:
|
For any Trading Day, an amount equal to (i) the Option Entitlement on such Trading Day,
multiplied by
(ii)(x) the VWAP Price on such Trading Day
minus
(y) the Strike Price on such Trading Day;
provided
that if the calculation contained in clause (ii) above results in a negative number, the Daily Option Value for such Trading Day shall be deemed to be zero. In no event will the Daily Option Value be less than zero.
|
Trading Day:
|
A day on which trading in the Shares generally occurs on the Exchange and there is no Market Disruption Event. If the Shares are not so traded or quoted, “Trading Day” means Business Day.
|
|
4
|
|
Scheduled Trading Day:
|
Any day that is scheduled to be a Trading Day.
|
Business Day:
|
A day (other than a Saturday or Sunday) on which banks are open for general business in New York City, London, Amsterdam and Frankfurt and (in relation to any date for the payment or purchase of a currency other than U.S. dollars) the principal financial center of the country of that currency.
|
Market Disruption Event:
|
Section 6.3(a) of the Equity Definitions is hereby replaced in its entirety by the following:
“‘Market Disruption Event’ means (a) a failure by the Exchange to open for trading during its regular trading session or (b) the occurrence or existence, prior to 1:00 p.m., local time, on any Trading Day for the Shares, of an aggregate one half-hour period of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or quotation system or otherwise) in the Shares or in any options, contracts or futures contracts relating to the Shares.”
|
VWAP Price:
|
On any Trading Day, the per Share volume-weighted average price of the Shares as displayed under the heading “Bloomberg VWAP” on Bloomberg page “QGEN US <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled opening of trading of the primary trading session on the Exchange until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable on any such Trading Day, the market value of one Share on such Trading Day as determined by the Calculation Agent using a volume-weighted average price method), determined without regard to after-hours trading or any other trading outside of the regular trading session.
|
Conversion Period:
|
For any Option, the 50 consecutive Trading Days commencing on, and including, the 55th Scheduled Trading Day immediately prior to the “Maturity Date” (as defined in the Indenture).
|
Settlement Date:
|
For any Option, the third Business Day immediately following the final Trading Day of the applicable Conversion Period for such Option.
|
Settlement Currency:
|
USD.
|
|
5
|
|
Share Adjustments:
|
|
Method of Adjustment:
|
Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any adjustment to the “Conversion Ratio” (as defined in the Indenture) and/or the nature of the Shares under the Convertible Notes pursuant to the Indenture (other than an increase in the “Conversion Ratio” pursuant to Sections 12.03 and 12.04(h) of the Indenture), the Calculation Agent will make a corresponding adjustment to any one or more of the Strike Price, Number of Options, the Option Entitlement and any other term relevant to the exercise, settlement, payment or other terms of the Transaction. Counterparty agrees that it will notify Dealer prior to the effectiveness of any such adjustment and, if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty, its board of directors or the “Calculation Agent” or an “Independent Expert” under the Indenture (including, without limitation, pursuant to Section 12.04(g) of the Indenture or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent will determine the adjustment to be made to any one or more of the Strike Price, Number of Options, Option Entitlement and any other terms relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner.
|
Potential Adjustment Events:
|
Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in Section 12.04(a)-(e) and (g) of the Indenture that would result in an adjustment to the “Conversion Ratio” (as defined in the Indenture) of the Convertible Notes;
provided
that in no event shall there be any adjustment hereunder as a result of an adjustment to the “Conversion Ratio” pursuant to Sections 12.03 or 12.04(h) of the Indenture.
|
Extraordinary Events:
|
|
Merger Events:
|
Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in Section 12.05 of the Indenture.
|
Notice of Merger Consideration:
|
Upon the occurrence of a Merger Event that causes the Shares to be converted into or exchanged for more than a single type of consideration (determined based in part upon the form of election of the holders of the Shares), Counterparty shall promptly notify the Calculation Agent in writing of the types and amounts of consideration that holders of Shares have affirmatively elected to receive upon consummation of such Merger Event;
provided
that in no event shall the date of such notification be later than the date on which such Merger Event is consummated.
|
|
6
|
|
|
7
|
|
Change in Law:
|
Applicable;
provided
that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or announcement or statement of, the formal or informal interpretation”, (ii) by replacing the word “Shares” where it appears in clause (X) thereof with the words “Hedge Positions”, (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date” and (iv) adding the following proviso to the end of clause (Y) thereof: “provided that (1) such party has used commercially reasonable efforts to avoid such increased cost on terms reasonably acceptable to such party, as long as (i) such party would not incur a materially increased cost (including, without limitation, due to any increase in tax liability, decrease in tax benefit or other adverse effect on its tax position), as reasonably determined by such party, in doing so, (ii) such party would not violate any applicable law, rule, regulation or policy of such party, as reasonably determined by such party, in doing so, (iii) such party would not suffer a material penalty, injunction, non-financial burden, reputational harm or other material adverse consequence in doing so, (iv) such party would not incur any material operational or administrative burden in doing so and (v) such party would not, in doing so, be required to take any action that is contrary to the intent of the law or regulation that is subject to the Change in Law and (2) Dealer may exercise its termination right with respect to such event described in this clause (Y) only if Dealer determines, based upon advice of counsel the costs of which are borne by the Dealer, that it is generally exercising its rights to terminate or adjust as a result of such event with respect to any similarly situated customers in the context of the event constituting such Change in Law”.
|
Failure to Deliver:
|
Not Applicable.
|
Insolvency Filing:
|
Applicable.
|
Hedging Disruption:
|
Applicable;
provided
that:
(I) Section 12.9(a)(v) of the Equity Definitions is hereby modified by (i) inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date”, and (ii) inserting the following two phrases at the end of such Section:
“For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. For the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms. Any inability of the Hedging Party referred to in phrases (A) and (B) above that is solely attributable to the deterioration of the creditworthiness of the Hedging Party shall not be deemed a Hedging Disruption.”, and
(II) Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
|
Increased Cost of Hedging:
|
Applicable.
|
Hedging Party:
|
Dealer or an affiliate of Dealer that is involved in the hedging of this Transaction for all applicable Additional Disruption Events.
|
Hedge Positions:
|
The definition of “Hedge Positions” in Section 13.2(b) of the Equity Definitions shall be amended by inserting the words “or an affiliate thereof” after the words “a party” in the third line.
|
Determining Party:
|
Dealer for all applicable Extraordinary Events.
|
|
8
|
|
Acknowledgments:
|
|
Non-Reliance:
|
Applicable.
|
Agreements and Acknowledgments Regarding Hedging Activities:
|
Applicable.
|
Additional Acknowledgments:
|
Applicable.
|
(a)
|
Commodity Exchange Act.
It is an “eligible contract participant” within the meaning of Section 1a(18) of the U.S. Commodity Exchange Act, as amended (the “
CEA
”). The Transaction has been subject to individual negotiation by the parties. The Transaction has not been executed or traded on a “trading facility” as defined in the CEA.
|
(b)
|
Securities Act.
It is a “qualified institutional buyer” as defined in Rule 144A under the Securities Act, or an “accredited investor” as defined in Section 2(a)(15)(ii) of the Securities Act.
|
(c)
|
ERISA.
The assets used in the Transaction (1) are not assets of any “plan” (as such term is defined in Section 4975 of the U.S. Internal Revenue Code (the “
Code
”)) subject to Section 4975 of the Code or any “employee benefit plan” (as such term is defined in Section 3(3) of the U.S. Employee Retirement Income Security Act of 1974, as amended (“
ERISA
”)) subject to Title I of ERISA, and (2) do not constitute “plan assets” within the meaning of Department of Labor Regulation 2510.3-101, 29 CFR Section 2510-3-101.
|
(d)
|
Notice of Event of Default
. It shall promptly provide written notice to the other party upon obtaining knowledge of the occurrence of any event that would constitute an Event of Default;
provided, however
, that should it be in possession of material non-public information regarding itself, it shall not communicate such information to the other party.
|
(e)
|
No Registration
. It understands, agrees and acknowledges that the other party has no obligation or intention to register the Transaction under the Securities Act, any state securities law or other applicable federal or non-U.S. securities law.
|
(f)
|
Non-reliance
. (A) It is acting for its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary, (B) it is not relying on any communication (written or oral) of the other party or any of its affiliates as investment advice or as a recommendation to enter into the Transaction (it being understood that information and explanations related to the terms and conditions of the Transaction shall not be considered investment advice or a recommendation to enter into the Transaction), and (C) no communication (written or oral) received from the other party or any of its affiliates shall be deemed to be an assurance or guarantee as to the expected results of the Transaction.
|
(a)
|
The representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement dated as of the Trade Date between Counterparty, Goldman Sachs International, J.P. Morgan Securities PLC, Barclays Bank PLC, Credit Suisse Securities (Europe) Limited and Merrill Lynch International
|
|
9
|
|
(b)
|
As of the Trade Date or the Premium Payment Date, Counterparty (i) has neither (A) filed a request for bankruptcy or been declared bankrupt by a judgment of a competent court in the Netherlands within the meaning of Section 1 of the Netherlands Bankruptcy Act (“Faillisementswet”) nor (B) filed a request for a suspension of payments within the meaning of Section 213 of the Netherlands Bankruptcy Act and (ii) is not and shall not be after giving effect to the Transactions, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “
Bankruptcy Code
”)); and on each such date Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization;
|
(c)
|
Counterparty shall promptly provide written notice to Dealer upon obtaining knowledge of the occurrence of any event that would constitute a Potential Adjustment Event, a Merger Event or any other Extraordinary Event;
provided, however
, that should Counterparty be in possession of material non-public information regarding Counterparty, Counterparty shall not communicate such information to Dealer;
|
(d)
|
Counterparty has not violated and will not violate any applicable law (including, without limitation, the Securities Act, the Exchange Act and Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC, in each case and the regulations promulgated thereunder) in connection with the Transaction;
|
(e)
|
Counterparty has not entered into the Transaction with the intent to avoid any regulatory filings;
|
(f)
|
Each of Counterparty’s filings under the Securities Act, the Exchange Act, or other applicable securities laws that are required to be filed have been filed and that, as of the respective dates thereof and as of the Trade Date, such filings when considered as a whole (with the more recent such filings deemed to amend inconsistent statements contained in any earlier such filings) do not contain any misstatement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading;
|
(g)
|
Counterparty is not, and after giving effect to the Transactions will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
|
(h)
|
Counterparty understands, agrees and acknowledges that no obligations of Dealer to it hereunder shall be entitled to the benefit of deposit insurance and that such obligations shall not be guaranteed by any affiliate of Dealer or any governmental agency;
|
(i)
|
Counterparty has total assets of at least USD 50,000,000 as of the date hereof;
|
(j)
|
Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Dealer is not making any representations or warranties with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project;
|
(k)
|
Counterparty is not entering into the Transaction for the purpose of (i) creating actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or (ii) raising or depressing or otherwise manipulating the price of, or facilitating a distribution of, the Shares (or any security convertible into or exchangeable for the Shares);
|
|
10
|
|
(l)
|
Counterparty has not entered into any obligation or undertaking that would contractually limit it from effecting Cash Settlement under this Transaction and it agrees not to enter into any such obligation or undertaking during the term of this Transaction;
|
(m)
|
Counterparty shall deliver to Dealer an opinion of counsel, dated as of the Trade Date and reasonably acceptable to Dealer in form and substance, with respect to the matters set forth in Section 3(a) of the Agreement;
provided
that such opinion of counsel may contain customary exceptions, assumptions and qualifications;
|
(n)
|
Counterparty is entering into the Transaction, solely for the purposes stated in the board resolution authorizing the Transaction (a copy of which, and such other certificates as Dealer may reasonably request, Counterparty shall deliver to Dealer on or before the Trade Date) and in its public disclosure, and there is no internal policy, whether written or oral, of Counterparty that would prohibit Counterparty from entering into any aspect of the Transaction;
|
(o)
|
To Counterparty’s knowledge, other than reporting requirements pursuant to Chapter 5.3 of the Dutch Financial Supervision Act (
Wet op het financieel toezicht
) and Sections 13 or 16 of the Exchange Act, no federal, state or local (including non-U.S. jurisdictions) law, rule, regulation or regulatory order applicable to Counterparty or the Shares as a result of Counterparty’s particular business would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares;
provided
that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer or its affiliates solely as a result of their being a financial institution or broker-dealer; and
|
(p)
|
Counterparty has discussed the Transaction with its outside tax advisors and has received appropriate comfort from such tax advisors that the tax treatment Counterparty will apply to the Transaction is proper under applicable law.
|
(a)
|
Designation by Dealer.
Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any securities or other assets to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such securities or other assets and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty solely to the extent of and upon any such performance;
provided
that Dealer’s obligation shall be reinstated (and Dealer shall have the right to designate another of its affiliates to perform such obligation), as though such performance had not been rendered by such affiliate, in the event and to the extent Counterparty is required to repay or reimburse the amount or value of any payment or other performance by such affiliate on the grounds of the insolvency or other legal, regulatory or contractual constraint on affiliate’s payment or performance of such obligation.
|
(b)
|
Additional Termination Events.
|
|
11
|
|
(c)
|
Understanding and Acknowledgement.
Counterparty understands and acknowledges that notwithstanding any other relationship between Counterparty and Dealer (and Dealer’s affiliates), in connection with this Transaction and any other over-the-counter derivative transaction between Counterparty and Dealer or Dealer’s affiliates, Dealer or its affiliates, as the case may be, is acting as principal and is not a fiduciary or adviser to Counterparty in respect of any such transaction, including any entry into or exercise, amendment, unwind or termination thereof.
|
(d)
|
Amendments to Equity Definitions.
Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may elect” with “Dealer may elect” and (2) replacing “notice to the other party” with “notice to Counterparty” in the first sentence of such section.
|
(e)
|
Repurchase Notices.
On any day on which both (i) Counterparty effects any repurchase of Shares and (ii) Counterparty does not qualify as a “foreign private issuer” as defined in Rule 3b-4 under the Exchange Act, Counterparty shall promptly give Dealer a written notice of such repurchase (a
|
|
12
|
|
(f)
|
Rule 10b-18.
Except as disclosed to Dealer in writing prior to the date on which the offering of the Convertible Notes was first announced, Counterparty represents and warrants to Dealer that it has not made any purchases of blocks by or for itself or any of its Affiliated Purchasers pursuant to the one block purchase per week exception in Rule 10b-18(b)(4) under the Exchange Act during each of the four calendar weeks preceding such date and the calendar week in which such date occurs (“
Rule 10b-18 purchase
,” “
blocks
” and “
Affiliated Purchaser
” each as defined in Rule 10b-18 under the Exchange Act (“
Rule
10b-18
”)). Counterparty agrees and acknowledges that it shall not, and shall cause its affiliates and Affiliated Purchasers not to, directly or indirectly (including by means of a derivative instrument), enter into any transaction to purchase any Shares during the period beginning on such date and ending on the Last Initial Hedge Date (as defined below).
|
|
13
|
|
(g)
|
Regulation M.
Counterparty represents and warrants to Dealer that Counterparty (A) was not on the date on which the offering of the Convertible Notes was first announced, has not since such date, and is not on the date hereof, engaged in a distribution, as such term is used in Regulation M under the Exchange Act (“
Regulation M
”), of any securities of Counterparty, other than the distribution of the Convertible Notes and (B) shall not engage in any “distribution,” as such term is defined in Regulation M, other than a distribution meeting the requirements of the exceptions set forth in sections 101(b)(10) and 102(b)(7) of Regulation M, until the second Exchange Business Day immediately following the Last Initial Hedge Date (as defined below).
|
(h)
|
Early Unwind.
In the event (x) the sale of Convertible Notes is not consummated with the Initial Purchasers for any reason by 12:00 p.m. London time on September 13, 2017 (or such later date as agreed upon by the parties) or (y) the Initial Purchasers have terminated the Purchase Agreement pursuant to Section 10 thereof (September 13, 2017, such later agreed date, or the date Dealer becomes aware that the Initial Purchasers have terminated the Purchase Agreement, as applicable, the “
Early Unwind Date
”), the Transaction shall automatically terminate (the “
Early Unwind
”), on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Dealer and Counterparty under the Transaction shall be cancelled and terminated and (ii) each party shall be released and discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of the other party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date;
provided
that, unless the Early Unwind Date occurred as a result of a breach of the Purchase Agreement by Dealer, Counterparty shall purchase from Dealer on the Early Unwind Date all Shares purchased by Dealer or one of more of its affiliates for the purpose of hedging the Transaction and reimburse Dealer for any costs or expenses (including, without duplication, market losses) relating to the unwinding of its hedging activities in connection with the Transaction (including any loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position)
less
any gain for the Dealer for the unwind of such hedging activity. Any such unwind must be performed by the Dealer in a commercially reasonable manner, it being understood that Dealer shall not increase its hedge positions after the Early Unwind Date. The amount of any such reimbursement shall be determined by Dealer in its sole good faith discretion and, upon request by Counterparty, documented to Counterparty in reasonable detail. Dealer shall notify Counterparty of such amount and Counterparty shall pay such amount in immediately available funds on the Early Unwind Date. Dealer and Counterparty represent and acknowledge to the other that, subject to the proviso included in this paragraph, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally discharged.
|
(i)
|
Transfer or Assignment.
Counterparty may not transfer or assign any of its rights or obligations under the Transaction or the Agreement without the prior written consent of Dealer. Notwithstanding any provision of the Agreement to the contrary, Dealer may, subject to applicable law, freely transfer and assign all of its rights and obligations under the Transaction or the Agreement without the consent of Counterparty to any affiliate of Dealer with a rating (or whose guarantor has a rating) for its long term, unsecured and unsubordinated indebtedness of A- or better by Standard & Poor’s Ratings Services or its successor (“
S&P
”), or A3 or better by Moody’s Investors Service, Inc. or its successor (“
Moody’s
”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer.
|
|
14
|
|
(j)
|
Ratings Decline
. If at any time the long term, unsecured and unsubordinated indebtedness of Dealer is rated lower than Baa3 by Moody’s and lower than BBB- by S&P (any such rating, a “
Ratings Downgrade
”), then Counterparty may, at any time following the occurrence and during the continuation of such Ratings Downgrade, provide written notice to Dealer specifying that it elects for this provision to apply (a “
Trigger Notice
”). Upon receipt by Dealer of a Trigger Notice from Counterparty, Dealer shall promptly elect that either (i) the parties shall negotiate in good faith terms for collateral arrangements (including, at Dealer’s election, custody by a third party) pursuant to which Dealer is required to provide collateral (including, but not limited to, equity or equity-linked securities issued by Counterparty) to Counterparty in respect of the Transaction with a value equal to the full mark-to-market exposure of Counterparty under the Transaction, as determined by Dealer in a good faith commercially reasonable manner, or (ii) an Additional Termination Event shall occur and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, and (B) the Transaction shall be the sole Affected Transaction. If requested by Counterparty at any time following the Premium Payment Date, the parties shall commence negotiation of documentation for such collateral arrangements.
|
(k)
|
Reserved.
|
(l)
|
Bail-In Protocol
. Notwithstanding anything contained in this Agreement, the parties agree that the provisions of the ISDA 2016 Bail-In Article 55 BRRD Protocol published by the International Swaps and Derivatives Association, Inc. on 14 July 2016 (the “
Bail-In Protocol
”) shall be deemed to be incorporated into and apply to the Agreement with effect from the date of this Confirmation as if references in those provisions to “Protocol Covered Agreement” as defined in the Bail-in Protocol were references to the Agreement, and on the basis that references to the “Implementation Date” in the Bail-in Protocol shall be deemed to be references to the date of this Confirmation.
|
(m)
|
Netting and Setoff.
In addition to any rights of set-off a party may have as a matter of law or otherwise, upon the occurrence of an Event of Default or Termination Event with respect to a party who is the Defaulting Party or the Affected Party (“
X
”), the other party (“
Y
”) will have the right (but not be obliged) without prior notice to X or any other person to set off or apply any obligation of X owed to Y (whether or not matured or contingent and whether or not arising under the Agreement,
|
|
15
|
|
(n)
|
Contractual Recognition of UK Stay in Resolution
. Notwithstanding anything contained in Agreement, the parties agree that the provisions of paragraphs 1 to 4 (inclusive) of the UK (PRA Rule) Jurisdictional Module (the “
UK Module
”) published by the International Swaps and Derivatives Association, Inc. on 3 May 2016, as amended from time to time, shall be deemed to be incorporated into the Agreement as if references in those provisions to “Covered Agreement” were references to the Agreement, and on the basis that: (i) Dealer shall be treated as a “Regulated Entity” and as a “Regulated Entity Counterparty” with respect to Counterparty, (ii) Counterparty shall be treated as a “Module Adhering Party”, and (iii) references to the “Implementation Date” in the UK Module shall be deemed to be references to 1 January 2017.
|
(o)
|
Withholding Tax Imposed on Payments to Non-US Counterparties Under the United States Foreign Account Tax Compliance Act
. “Indemnifiable Tax” as defined in Section 14 of this Agreement shall not include any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “
Code
”), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “
FATCA Withholding Tax
”). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of this Agreement.
|
(p)
|
Registration.
Counterparty hereby agrees that if, in the good faith reasonable judgment of Dealer, the Shares (“
Hedge Shares
”) acquired by Dealer for the purpose of hedging its obligations pursuant to the Transaction cannot be sold in the public market by Dealer without registration under the Securities Act, Counterparty shall, at its election, either (i) in order to allow Dealer to sell the Hedge Shares in a registered offering, make available to Dealer an effective registration statement under the Securities Act and (A) enter into an agreement, in form and substance satisfactory to Dealer, substantially in the form of an underwriting agreement for a registered offering (without any underwriter compensation), (B) provide accountant’s “comfort” letters customary in form for registered offerings of equity securities, (C) provide disclosure opinions of nationally recognized outside counsel to Counterparty reasonably acceptable to Dealer, (D) provide other customary opinions, certificates and closing documents customary in form for registered offerings of equity securities and (E) afford Dealer a reasonable opportunity to conduct a due diligence investigation with respect to Counterparty customary in scope for underwritten offerings of equity securities;
provided
,
however
, that if Dealer, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this paragraph shall apply at the election of Counterparty; (ii) in order to allow Dealer to sell the Hedge Shares in a private placement, enter into and comply with a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance satisfactory to Dealer (in which case, the Calculation Agent shall make any adjustments
|
|
16
|
|
(q)
|
Tax Disclosure.
Notwithstanding anything to the contrary herein, in the Equity Definitions or in the Agreement, and notwithstanding any express or implied claims of exclusivity or proprietary rights, the parties (and each of their employees, representatives or other agents) are authorized to disclose to any and all persons, beginning immediately upon commencement of their discussions and without limitation of any kind, the tax treatment and tax structure of the Transaction, and all materials of any kind (including opinions or other tax analyses) that are provided by either party to the other relating to such tax treatment and tax structure.
|
(r)
|
2015 Section 871(m) Protocol
: Dealer is adherent to the ISDA 2015 Section 871(m) Protocol published by the International Swaps and Derivatives Association, Inc. on November 2, 2015, as may be amended or modified from time to time (the “
2015 Section 871(m) Protocol
”). In the event that Counterparty is not an adherent to the 2015 Section 871(m) Protocol, Dealer and Counterparty hereby agree that this Agreement shall be treated as a Covered Master Agreement (as that term is defined in the 2015 Section 871(m) Protocol) and this Agreement shall be deemed to have been amended in accordance with the modifications specified in the Attachment to the 2015 Section 871(m) Protocol.
|
(s)
|
Securities Contract.
The parties hereto agree and acknowledge that Dealer is one or more of a “financial institution” and “financial participant” within the meaning of Sections 101(22) and 101(22A) of the Bankruptcy Code. The parties hereto further agree and acknowledge (A) that this Confirmation is a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement payment” (as such term is defined in Section 741(8) of the Bankruptcy Code) or a “transfer” within the meaning of Section 546 of the Bankruptcy Code and (B) that Dealer is entitled to the protections afforded by, among other sections, Section 362(b)(6), 362(b)(27), 362(o), 546(e), 546(j), 548(d)(2), 555 and 561 of the Bankruptcy Code.
|
(t)
|
No Material Non-Public Information.
Dealer shall provide a written notice to Counterparty promptly following the date on which Dealer has completed all purchases of Shares or other transactions to hedge initially its exposure with respect to the Transaction (such date, the “
Last Initial Hedge Date
”), which it shall complete as soon as reasonably practicable. On each day during the period beginning on the Trade Date and ending on the earlier of (i) the 3
rd
Exchange Business Day following the Trade Date and (ii) the Last Initial Hedge Date, Counterparty represents and warrants to Dealer that none of Counterparty and its officers and directors is aware or in possession of any material non-public information or any information constituting inside information (
voorwetenschap
), as defined in article 5:53 of the Dutch Financial Markets Supervision Act, concerning Counterparty, the Shares or trading in the shares. “Material” information for these purposes is any information to which an investor would reasonably attach importance in reaching a decision to buy, sell or hold any securities of Counterparty.
|
(u)
|
Right to Extend.
Dealer may postpone any Exercise Date or postpone or extend any other date of valuation or delivery with respect to some or all of the relevant Options (in which event the Calculation Agent shall make appropriate adjustments to the Cash Settlement Amount for such Options), if Dealer determines, in its commercially reasonable discretion, that such postponement or extension is necessary or appropriate to preserve Dealer’ or its affiliate’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions or to enable Dealer or its affiliate to effect purchases of Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer or such affiliate were Issuer or an affiliated purchaser of Issuer, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer and/or such affiliate; provided that Dealer may not postpone or extend any such date by more than 100 Trading Days.
|
|
17
|
|
(v)
|
Wall Street Transparency and Accountability Act of 2010.
The parties hereby agree that none of (i) Section 739 of the Wall Street Transparency and Accountability Act of 2010 (the “
WSTAA
”), (ii) any similar legal certainty provision included in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, (iii) the enactment of the WSTAA or any regulation under the WSTAA, (iv) any requirement under the WSTAA or (v) any amendment made by the WSTAA shall limit or otherwise impair either party’s right to terminate, renegotiate, modify, amend or supplement this Confirmation, any Transaction hereunder or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased cost, regulatory change or similar event under this Confirmation, the Equity Definitions or the Agreement (including, but not limited to, any right arising from any Change in Law, Insolvency Filing, Hedging Disruption, Increased Cost of Hedging, Loss of Stock Borrow, Increased Cost of Stock Borrow, or Illegality (as defined in the Agreement)).
|
(w)
|
Payments on Early Termination
. The parties hereto agree that for the Transaction, for the purposes of Section 6(e) of the Agreement, Second Method and Loss will apply and in the event that (i) an Early Termination Date occurs or is designated with respect to the Transaction as a result of a Termination Event or an Event of Default (other than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement) and, as a result, Counterparty owes to Dealer pursuant to Section 6(e) of the Agreement an amount calculated thereunder, such amount shall be deemed to be zero. The Termination Currency shall be USD.
|
(x)
|
Governing Law.
This Confirmation and the Agreement, and any claims, causes of action or disputes arising hereunder or thereunder or relating hereto or thereto, shall be governed by the laws of the State of New York (without reference to choice of law doctrine that would lead to the application of the laws of any jurisdiction other than New York).
|
(y)
|
Waiver of Jury Trial.
EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATING TO THE TRANSACTION. EACH PARTY (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF SUCH A SUIT, ACTION OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THE TRANSACTION, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS PROVIDED HEREIN.
|
(z)
|
Submission to Jurisdiction.
THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.
|
(aa)
|
Process Agent.
For purposes of Section 13(c) of the Agreement, Counterparty appoints QIAGEN North American Holdings, Inc. at 19300 Germantown Road, Germantown, MD 20874 as its Process Agent.
|
(bb)
|
Reserved.
|
(cc)
|
Reserved
.
|
(dd)
|
Part 2(b) of the ISDA Schedule – Payee Representation:
|
|
18
|
|
(ee)
|
Part 3(a) of the ISDA Schedule – Tax Forms:
|
|
Form/Document/Certificate
|
Date by which to be Delivered
|
Counterparty
|
A complete and duly executed United States Internal Revenue Service Form W-8BEN-E (or successor thereto.)
|
(i) Upon execution and delivery of this Agreement; (ii) promptly upon reasonable demand by Dealer; and (iii) promptly upon learning that any such Form previously provided by Counterparty has become obsolete or incorrect.
|
Dealer
|
A complete and duly executed United States Internal Revenue Service Form [ ] (or successor thereto.)
|
(i) Upon execution and delivery of this Agreement; (ii) promptly upon reasonable demand by Counterparty; and (iii) promptly upon learning that any such Form previously provided by Dealer has become obsolete or incorrect.
|
(ff)
|
Additional ISDA Schedule Terms
|
(gg)
|
Foreign Merger.
If, at any reasonable time following the occurrence of any Foreign Merger, the Calculation Agent reasonably determines in its good faith judgment that (x) such Foreign Merger has had a material adverse effect on Dealer’s rights and obligations under the Transaction or (y) Dealer would incur an increased (as compared with circumstances existing on the Trade Date) amount of tax, duty, expense or fee (other than brokerage commissions and excluding (I) any
de minimis
increased amount of tax, duty, expense or fee, as determined by the Calculation Agent, and (II) such increased amount that is incurred solely due to the deterioration of the creditworthiness of Dealer and/or any of its affiliates that are conducting hedging in connection with this Transaction), to (1) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary to hedge the economic risk of entering into and performing its obligations with respect to the Transaction, or (2) realize, recover or remit the proceeds of any such transaction(s) or
|
|
19
|
|
(hh)
|
Reporting Confidentiality.
The parties agree that solely as between Dealer and Counterparty, the definitions and provisions contained in the ISDA 2013 Reporting Protocol published by the International Swaps and Derivatives Association, Inc. on May 10, 2013, including the Attachment thereto (the “
Reporting Protocol”
), will be deemed to be incorporated into this Confirmation, mutatis mutandis, as though such definitions and provisions were set out in full herein, with such conforming changes as are necessary to deal with what would otherwise be inappropriate or incorrect cross references. The parties further agree that the Implementation Date (as such term is defined in the Reporting Protocol) shall be the Trade Date of this Confirmation.
|
(a)
|
Account for payments to Counterparty:
|
(b)
|
Account for payments to Dealer:
|
|
20
|
|
(a)
|
Address for notices or communications to Counterparty:
|
(b)
|
Address for notices or communications to Dealer:
|
|
21
|
|
By:
|
___________________________
Name: Title: |
By:
|
___________________________
Name: Title: |
1.
|
Strike Price: USD200,000.00
divided
by 4,829.7279, or approximately USD41.4102
|
2.
|
Premium: [ ]
|
3.
|
Premium Payment Date: The closing date for the initial issuance of the Convertible Notes
|
Company Name
|
Jurisdiction
of Incorporation |
Amnisure International, LLC
|
USA
|
Cellestis Ltd.
|
Australia
|
MO BIO Laboratories, Inc.
|
USA
|
QIAGEN Aarhus A/S
|
Denmark
|
QIAGEN AB
|
Sweden
|
QIAGEN AG
|
Switzerland
|
QIAGEN Australia Holding Pty. Ltd.
|
Australia
|
QIAGEN Benelux B.V.
|
Netherlands
|
QIAGEN Beverly, Inc.
|
USA
|
QIAGEN China (Shanghai) Co. Ltd.
|
China
|
QIAGEN Deutschland Holding GmbH
|
Germany
|
QIAGEN Finance (Ireland) Ltd.
|
Ireland
|
QIAGEN Finance (Malta) Ltd.
|
Malta
|
QIAGEN France S.A.S.
|
France
|
QIAGEN Gaithersburg, Inc.
|
USA
|
QIAGEN GmbH
|
Germany
|
QIAGEN Hamburg GmbH
|
Germany
|
QIAGEN Inc. (Canada)
|
Canada
|
QIAGEN Inc. (USA)
|
USA
|
QIAGEN Instruments AG
|
Switzerland
|
QIAGEN K.K.
|
Japan
|
QIAGEN Lake Constance GmbH
|
Germany
|
QIAGEN Ltd.
|
UK
|
QIAGEN Manchester Ltd.
|
UK
|
QIAGEN Marseille SA
|
France
|
QIAGEN North American Holdings Inc.
|
USA
|
QIAGEN Pty. Ltd.
|
Australia
|
QIAGEN Redwood City, Inc.
|
USA
|
QIAGEN Sciences, LLC
|
USA
|
QIAGEN S.r.l.
|
Italy
|
QIAGEN U.S. Finance Holdings (Luxembourg) SARL
|
Luxembourg
|
QIAGEN U.S. Finance, Inc.
|
USA
|
QIAGEN Waltham, Inc.
|
USA
|
1.
|
I have reviewed this annual report on Form 20-F of QIAGEN N.V;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
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3.
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Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
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4.
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The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
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(a)
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Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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(b)
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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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(c)
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Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
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(d)
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Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
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5.
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The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
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(a)
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All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
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(b)
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.
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/s/ Peer M. Schatz
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Peer M. Schatz
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Managing Director and Chief Executive Officer
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1.
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I have reviewed this annual report on Form 20-F of QIAGEN N.V;
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2.
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
|
4.
|
The company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
|
(a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
(b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c)
|
Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
(d)
|
Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
|
5.
|
The company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
|
(a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
|
(b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.
|
/s/ Roland Sackers
|
Roland Sackers
|
Managing Director and Chief Financial Officer
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Dated:
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March 5, 2018
|
|
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/s/ Peer M. Schatz
|
|
|
|
|
|
|
Peer M. Schatz
|
|
|
|
|
|
|
Managing Director and Chief Executive Officer
|
|
|
|
|
|
|
|
|
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Dated:
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March 5, 2018
|
|
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/s/ Roland Sackers
|
|
|
|
|
|
|
Roland Sackers
|
|
|
|
|
|
|
Managing Director and Chief Financial Officer
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