-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, G+uSjuS6PSboZSEAsdy8lR6NHJGnrvBK0b/MaEDxDAs0nR5xYunVQTmVueFYQrbw d6P/PF44za68Z7vDk4tuXQ== 0001012975-06-000164.txt : 20060405 0001012975-06-000164.hdr.sgml : 20060405 20060405171239 ACCESSION NUMBER: 0001012975-06-000164 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20060405 DATE AS OF CHANGE: 20060405 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SEQUENOM INC CENTRAL INDEX KEY: 0001076481 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMMERCIAL PHYSICAL & BIOLOGICAL RESEARCH [8731] IRS NUMBER: 770365889 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-60383 FILM NUMBER: 06742870 BUSINESS ADDRESS: STREET 1: 3595 JOHN HOPKINS CT CITY: SAN DIEGO STATE: CA ZIP: 92121 BUSINESS PHONE: 8582029000 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: PEQUOT CAPITAL MANAGEMENT INC CENTRAL INDEX KEY: 0001071955 IRS NUMBER: 061524885 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 500 NYALA FARM ROAD CITY: WESTPORT STATE: CT ZIP: 06880 BUSINESS PHONE: 2034292200 MAIL ADDRESS: STREET 1: 500 NYALA FARM ROAD CITY: WESTPORT STATE: CT ZIP: 06880 FORMER COMPANY: FORMER CONFORMED NAME: PEQUOT CAPITAL MANAGEMENT INC/CT/ DATE OF NAME CHANGE: 19981118 SC 13D 1 e8428781.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. __)* Sequenom, Inc. -------------- (Name of Issuer) Common Stock, par value $0.001 per share ---------------------------------------- (Title of Class of Securities) 817337108 --------- (CUSIP Number) Aryeh Davis, General Counsel Pequot Capital Management, Inc. 500 Nyala Farm Road, Westport, CT 06880 (203) 429-2200 ----------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 27, 2006 -------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. |_| NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 817337108 --------- 1 Names of Reporting Persons. Pequot Capital Management, Inc. I.R.S. Identification Nos. of above persons (entities only) 06-1524885 -------------------------------------------------------------------------- 2 Check the Appropriate Box if a Member of a Group (See Instructions) (a) |_| (b) |X| - -------------------------------------------------------------------------------- 3 SEC Use Only - -------------------------------------------------------------------------------- 4 Source of Funds (See Instructions) 00 - -------------------------------------------------------------------------------- 5 Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) |_| - -------------------------------------------------------------------------------- 6 Citizenship or Place of Organization Connecticut - -------------------------------------------------------------------------------- 7 Sole Voting Power 32,000,000 Number of ------------------------------------------------------ 8 Shared Voting Power 0 Shares Bene- ------------------------------------------------------ ficially Owned 9 Sole Dispositive Power 32,000,000 ------------------------------------------------------ 10 Shared Dispositive Power 0 ------------------------------------------------------ 11 Aggregate Amount Beneficially Owned by Each Reporting Person 32,000,000 - -------------------------------------------------------------------------------- 12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) |_| -------------------------------------------------------------------------- 13 Percent of Class Represented by Amount in Row (11) 44.3% - -------------------------------------------------------------------------------- 14 Type of Reporting Person (See Instructions) IA - -------------------------------------------------------------------------------- 2 ITEM 1. SECURITY AND ISSUER This Schedule 13D (the "Schedule 13D") relates to the common stock, par value $0.001 per share (the "Common Stock"), of Sequenom, Inc., a Delaware corporation (the "Issuer"). The address of the principal executive offices of the Issuer is 3595 John Hopkins Court, San Diego, California 92121. ITEM 2. IDENTITY AND BACKGROUND This Schedule 13D is filed on behalf of Pequot Capital Management, Inc., a Connecticut corporation (the "Reporting Person"). The Reporting Person is an investment adviser registered under the Investment Advisers Act of 1940, and acts as investment adviser to certain managed accounts over which the Reporting Person exercises discretionary authority (the "Accounts"). The address of the principal business and office of the Reporting Person, and of the Executive Officer, Director and Controlling Person (as defined below) is 500 Nyala Farm Road, Westport, CT 06880. The Reporting Person is the investment adviser/manager of, and exercises sole voting and investment discretion over, Pequot Private Equity Fund IV, L.P., a Delaware limited partnership (the "Fund"), which is an Account. Mr. Arthur J. Samberg is the executive officer, director and the controlling shareholder of the Reporting Person (collectively, the "Executive Officer, Director and Controlling Person"). Mr. Samberg is a citizen of the United States. Patrick G. Enright, an employee of the Reporting Person, will be a director of the Issuer upon the closing of the transactions contemplated by the Purchase Agreement (as defined below). Neither the Reporting Person nor Mr. Samberg has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). Neither the Reporting Person nor Mr. Samberg has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction which resulted in a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION As more fully described in Item 4 hereof, pursuant to the Purchase Agreement, the Reporting Person will acquire the Shares and the Warrants (each, as defined below) for aggregate consideration of approximately $11,000,000. The funds for the purchase of such securities held by the Account will be obtained from the contributions of the Account's partners/shareholders. A copy of the Purchase Agreement is incorporated herein by reference as Exhibit 1, and the description herein of the Purchase Agreement is qualified in its entirety by reference to the Purchase Agreement. ITEM 4. PURPOSE OF TRANSACTION Pursuant to the terms of the Purchase Agreement, the Reporting Person will acquire the Shares and the Warrants. The Reporting Person considers the shares of Common Stock that it will beneficially owns an investment made in the ordinary course of its business. The Reporting Person intends to review on a continuing basis its investment in the Issuer, including the Issuer's business, financial condition and operating results and general market and industry conditions and, based upon such review, may acquire additional shares of Common Stock, Warrants or other securities of the Issuer, or dispose of shares of Common Stock, Warrants or other securities, in each case, in the open market, in privately negotiated transactions or in any other lawful manner. PURCHASE AGREEMENT Pursuant to the terms of a Securities Purchase Agreement, dated as of March 27, 2006, as amended and restated on March 30, 2006 (the "Purchase Agreement"), by and among the Issuer, the Reporting Person, Comvest Investment Partners II LLC, a Delaware limited liability company ("Comvest"), LB I Group Inc., a Delaware corporation ("LBIG"), and Siemens Venture Capital GmbH ("Siemens," and together with the Reporting Person, Comvest and LBIG, the "Purchasers"), the Issuer agreed to issue and sell to the Fund (i) 3 20,000,000 shares of Common Stock (the "Shares"), and (ii) warrants to purchase up to 12,000,000 shares of Common Stock (the "Warrants"), in each case, subject to certain adjustments in accordance with the terms of the Purchase Agreement and the Warrant. The Purchase Agreement contains certain customary closing conditions, including the requisite approval of the stockholders, as well as the requirement that the Issuer cause: (i) Larry Lenig or another individual designated by ComVest, Patrick Enright or another individual designated by the Fund and a third individual mutually agreeable to ComVest and the Fund to be elected to the board of directors of the Issuer (the "Board") prior to the closing of the transactions contemplated by the Purchase Agreement (the "Transactions"); and (ii) each of the three designees of the Purchasers to be appointed to a different committee of the Board, so that there is one designee on each of the Board's audit committee, compensation committee and nominating and corporate governance committee. The Purchase Agreement provides that, following the closing of the Transactions (the "Closing"), each Purchaser holding 10% or more of the then outstanding Common Stock shall have the right to nominate one director for election to the Board, subject to compliance with relevant Nasdaq rules and regulations and subject to the approval of such nominees by the nominating and corporate governance committee of the Board. Upon such nominations, the Issuer would be obligated to use commercially reasonable efforts to place such nominees on the slate of directors presented to its stockholders at each meeting at which directors are elected. The Issuer agreed to seek approval from its stockholders (the "Stockholder Approval") to: (i) approve (a) the Transaction, and (b) an increase in the authorized number of shares of Common Stock from 75,000,000 shares to 185,000,000 shares; and (ii) to amend its certificate of incorporation and bylaws to remove the classification of its Board effective upon the closing of the Transactions (the "Declassification Proposal"). The Issuer agreed to use commercially reasonable efforts to call a meeting of its stockholders to be held within 60 days after the Closing for the purpose of seeking stockholder approval of the following matters if the stockholders have not approved such matters prior to the Closing: (1) the Declassification Proposal; (2) the amendment of the Issuer's bylaws to remove certain supermajority approval requirements, to permit stockholders holding a majority of the outstanding shares of Common Stock to call special meetings of stockholders and to permit stockholders to act by written consent; and (3) either the adoption of a new equity incentive plan or the amendment of the Issuer's existing equity incentive plan to increase the number of shares reserved for issuance thereunder. Following the Closing and until the Issuer's bylaws have been amended, the Issuer has agreed to use commercially reasonable efforts to call a special meeting of stockholders to be held within 60 days following the written request of at least two of the three directors nominated by the Purchasers to seek approval from its stockholders of the foregoing matters or any other matter that at least three directors request be submitted to the stockholders for approval. Pursuant to the Purchase Agreement, the Issuer agreed and acknowledged that (i) the Fund was acting as agent for one or more parallel funds that are affiliates of the Fund, and (ii) the Fund may transfer any of the Shares or Warrants to such parallel funds, subject to compliance with the other terms and conditions of the Purchase Agreement. REGISTRATION RIGHTS AGREEMENT In connection with the Transactions, the Issuer agreed to enter into a registration rights agreement with the Purchasers (the "Registration Rights Agreement") as a condition to the Closing, pursuant to which the Issuer will be required to, among other things, prepare and file a shelf registration statement (or other form of registration statement as is then available) to effect a registration within 30 days after the issuance of the Shares and the Warrants covering the resale of (i) the Shares and shares of Common Stock issuable upon exercise of the Warrants, (ii) the shares of Common Stock and the shares of Common Stock issuable upon exercise of the warrants issued to the other Purchasers, and (iii) and any other securities of the Issuer or its successor issued or issuable in exchange therefor (the "Registrable Securities"). The Issuer will be required to keep such registration statement effective until the earlier of: (x) the second anniversary of the date that such registration statement is first declared effective by the SEC (the "Effective Date"); (y) such time as all Registrable Securities covered by such registration statement have been sold pursuant to any registration statement, Rule 144 of the Securities Act of 1933, as amended (the "Act") or any exemption from registration under the Act; or (z) such time as all of the Registrable Securities covered by such registration statement may be sold in open market transactions pursuant to Rule 144(k) of the Act. AMENDMENT TO RIGHTS PLAN 4 On March 27, 2006, the Issuer also entered into an amendment (the "Rights Agreement Amendment") of the Rights Agreement, dated as of October 21, 2001 (the "Rights Agreement"), by and between the Issuer and American Stock Transfer & Trust Company, which provides that the execution of the Purchase Agreement does not trigger any obligation to issue right certificates and that the Rights Agreement and all rights thereunder shall terminate immediately prior to the Closing. Copies of the Purchase Agreement, the Registration Rights Agreement and the Rights Agreement Amendment are incorporated herein by reference as Exhibits 1, 2 and 3, respectively. The descriptions herein of such agreements are qualified in their entirety by reference to such agreements. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) Upon consummation of the Transactions, the Reporting Person will beneficially own 32,000,000 shares of Common Stock, representing approximately 44.3% of shares of Common Stock outstanding as of March 20, 2006 (assuming the issuance of (i) 20,000,000 shares of Common Stock issuable to the Purchasers at the Closing, and (ii) 12,000,000 shares of Common Stock issuable upon exercise of the Warrants). (b) Upon consummation of the Transactions, the Reporting Person will have the sole power to vote or direct the vote of, and the sole power to dispose or direct the disposition of, 32,000,000 shares of Common Stock. (c) Except for the information set forth, or incorporated by reference, in Items 3 and 4, which is incorporated herein by reference, the Reporting Person has not effected any transaction relating to the Common Stock during the past 60 days. (d) Not applicable. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Reference is made to the Purchase Agreement and the Registration Rights Agreement, which are incorporated by reference herein. WARRANTS In connection with the transactions contemplated by the Purchase Agreement, the Issuer agreed to issue the Warrants to the Funds. The Warrants have a term of seven years and are exercisable in whole or in part at any time after the Closing at an exercise price of $0.70 per share, subject to adjustment for any reverse split of the Issuer's Common Stock, certain dilutive equity issuances and for stock splits, stock dividends, mergers, reclassifications, reorganizations and other similar events. Cashless exercise is permitted. A form of the Warrants is incorporated herein by reference as Exhibit 4 and the description herein of the Warrants is qualified in its entirety by reference to the Warrants. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit 1 Amended and Restated Securities Purchase Agreement, dated March 30, 2006, by and among the Issuer and the Purchasers (incorporated by reference to Exhibit 99.1 to the Issuer's Form 8-K, dated March 30, 2006 (filed April 3, 2006)). Exhibit 2 Form of Amended and Restated Registration Rights Agreement (incorporated by reference to Exhibit 99.2 to the Issuer's Form 8-K, dated March 30, 2006 (filed April 3, 2006)). 5 Exhibit 3 Amendment of Rights Agreement, dated as of March 27, 2006, by and between the Issuer and American Stock Transfer & Trust Company (incorporated by reference to Exhibit 99.5 to the Issuer's Form 8-K, dated March 27, 2006 (filed March 28, 2006)). Exhibit 4 Form of Warrant (incorporated by reference to Exhibit 99.3 to the Issuer's Form 8-K, dated March 30, 2006 (filed April 3, 2006)). 6 S I G N A T U R E After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete, and correct. Date: April 5, 2006 Pequot Capital Management, Inc. /s/ Aryeh Davis ------------------------------------- Aryeh Davis, Chief Operating Officer, General Counsel and Secretary 7 EXHIBIT INDEX Exhibit 1 Amended and Restated Securities Purchase Agreement, dated March 30, 2006, by and among the Issuer and the Purchasers (incorporated by reference to Exhibit 99.1 to the Issuer's Form 8-K, dated March 30, 2006 (filed April 3, 2006)). Exhibit 2 Form of Amended and Restated Registration Rights Agreement (incorporated by reference to Exhibit 99.2 to the Issuer's Form 8-K, dated March 30, 2006 (filed April 3, 2006)). Exhibit 3 Amendment of Rights Agreement, dated as of March 27, 2006, by and between the Issuer and American Stock Transfer & Trust Company (incorporated by reference to Exhibit 99.5 to the Issuer's Form 8-K, dated March 27, 2006 (filed March 28, 2006)). Exhibit 4 Form of Warrant (incorporated by reference to Exhibit 99.3 to the Issuer's Form 8-K, dated March 30, 2006 (filed April 3, 2006)). 8 -----END PRIVACY-ENHANCED MESSAGE-----