Exhibit 10.2
AMENDMENT NO. 1 TO
ASSET PURCHASE
AGREEMENT
This Amendment No. 1 (the
“Amendment”) to the Asset Purchase Agreement (the
“Agreement”) dated April 20, 2007 by and among
MOMENTA PHARMACEUTICALS, INC., a Delaware corporation (the
“Buyer”), PARIVID, LLC, a Massachusetts limited
liability company (the “Seller”) and S. RAGURAM, an
individual (“Primary Member”) is entered into as of
August 4, 2009.
Capitalized terms used in this
Agreement and not defined shall have the meanings ascribed to them
in the Agreement.
In consideration of the
representations, warranties and covenants herein contained, the
Parties agree as to amend the Agreement as set forth
herein.
1.
Capability Build Submilestone
Payment.
(a)
The parties
acknowledge and agree that the timeline for completing the
Capabilities Build Milestone as described in
Section 1.4(a) of the Agreement is extended from the
second (2 nd ) anniversary of the Closing
Date to June 30, 2009. The parties further acknowledge
and agree that as of June 30, 2009, the Seller had satisfied
Submilestone A and Submilestone B of the Capabilities Build
Milestone.
(b)
The parties
hereby agree that in lieu of the wire transfer from Buyer to Seller
in satisfaction of Submilestone A and Submilestone B as set forth
in Section 1.4(a) of the Agreement, Buyer shall
(i) pay the Seller, by wire transfer to an account designated
by the Seller, $500,000 within 10 days following the Submilestone
Effective Date (as defined below) and (ii) issue to the
Seller, pursuant to the terms of this Amendment, 91,576 shares of
Buyer Common Stock (the “Submilestone
Shares”).
(c)
Within five
(5) days following either (i) the end of the time period
beginning on the effective date of the Registration Statement
covering the Submilestone Shares and ending fifteen (15) days
thereafter, or (ii) in the event that the Registration
Statement covering the Submilestone Shares is not declared
effective, the end of the time period beginning on the first date
that the Seller is able to sell the Submilestone Shares pursuant to
Rule 144 of the Securities Act of 1933 and ending fifteen (15)
days thereafter, whichever is earlier, (the “Initial Sale
Period”), Seller shall provide Buyer with a report detailing
that number of Submilestone Shares sold during the Initial Sale
Period (“Initial Period Shares”) and the net proceeds
(i.e. the sale price less broker’s commissions) from the
sales of such Initial Period Shares. In the event that such
net proceeds are less than the sum of the Initial Period Shares
times the last reported sale price per share of the Buyer Common
Stock on the date of the Submilestone Effective Date, then Buyer
shall pay by check or wire transfer to Seller, within thirty (30)
days of receipt of the report, an amount equal to such
difference.
2.
Amendments of Article
VIII.
(a)
The definition of
“Milestone Shares” set forth in Article VIII of
the Agreement is hereby amended is hereby amended by deleting such
section in its entirety and substituting in lieu therefor the
following:
“
Milestone Shares ” shall mean the Submilestone Shares
and the shares of Buyer Common Stock issuable upon the satisfaction
of each of the M-Enoxaparin Milestone and the Second Generic
Milestone.”
(b)
The definition of
“Registration Statement” set forth in Article VIII
of the Agreement is hereby amended by deleting such section in its
entirety and substituting in lieu therefor the
following:
“ Registration
Statement ” shall mean a registration statement on
Form S-3 or, if the Buyer is not eligible to use form S-3,
Form S-1 (or such other form as the Buyer shall
deem
appropriate) covering the resale to
the public by the Seller of the Milestone Shares or the
Submilestone Shares as applicable.”
(c)
A new definition,
“Submilestone Effective Date,” shall be added to
Article VIII in appropriate alphabetical order and shall read
in its entirety as follows:
“Submilestone Effective
Date” shall be August 4, 2009.”
3.
Amendment of Section
7.1. Section 7.1
of the Agreement is hereby amended by deleting such section in its
entirety and substituting in lieu therefor the
following:
“7.1
Registration of Shares . The Buyer shall file a
Registration Statement with the SEC within 90 days following the
completion and satisfaction of each of the M-Enoxaparin Milestone
and the Second Generic Milestone and as soon as practicable, but no
later than within 30 days, after the Submilestone Effective
Date. The Buyer shall use its best efforts to cause each
Registration Statement to be declared effective by the SEC as soon
as practicable. The Buyer shall as expeditiously as possible
prepare and file with the SEC any amendments and supplements to the
Registration Statement and the prospectus included in the
Registration Statement as may be necessary to comply with the
provisions of the Securities Act (including the anti-fraud
provisions thereof), and shall cause each Registration Statement to
remain effective until the date one (1) year after the
issuance of the Milestone Shares issued in connection with the
completion and satisfaction of the M-Enoxaparin Milestone, the
Second Generic Milestone, or the Submilestone Effective Date, as
the case may be, or such earlier time as all of the applicable
Milestone Shares covered by such Registration Statement have been
sold pursuant thereto; provided, that such one-year period shall be
extended to 30 months in the event that at the termination thereof
the Seller is not able to sell such Milestone Shares pursuant to
and in accordance with Rule 144 under the Securities Act of
1933, as such Rule may then be in effect, or any similar
rule or regulation hereafter adopted by the
SEC.”
4.
Requirements of the
Seller . Seller
hereby agrees:
(a)
to indemnify the
Buyer and each of its directors and officers against, and hold the
Buyer and each of its directors and officers harmless from, any
losses, claims, damages, expenses or liabilities (including
reasonable attorneys fees) to which the Buyer or such directors and
officers may become subject by reason of any statement or omission
in the Registration Statement covering the Submilestone Shares made
in reliance supon, or in conformity with, a written statement by
the Seller furnished pursuant to Section 7.4 of the Agreement;
and
(b)
to report to the
Buyer sales made pursuant to the Registration Statement covering
the Submilestone Shares.
5.
Representations of the
Seller. The Seller
and the Primary Member jointly and severally represent and warrant
to the Buyer that the statements contained in this Section 5 are
true and correct as of the date of this Agreement.
(a)
Organization,
Qualification and Corporate Power . The Seller is a
limited liability company duly organized, validly existing and in
good standing under the laws of the Commonwealth of
Massachusetts.
(b)
Authorization
of Transaction . The Seller has all
requisite power and authority to execute and deliver this Amendment
and to perform its obligations hereunder. The execution and
delivery by the Seller of this Amendment and the performance by the
Seller of this Amendment and the consumm
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