Exhibit 2.2
AMENDMENT NO. 1 TO ASSET PURCHASE
AGREEMENT
This Amendment No. 1 (this
“ Amendment ”) to Asset Purchase Agreement is
made as of May 29, 2009 by and among Financière Elitech
SAS, a société par actions simplifiée
formed under the laws of France (“ Buyer ”),
Nanogen, Inc., a Delaware corporation (“ Nanogen
”), Epoch Biosciences, Inc., a Delaware corporation and
wholly-owned subsidiary of Nanogen (“ Epoch ”),
and Nanotronics, Inc., a California corporation and wholly-owned
subsidiary of Nanogen (“ Nanotronics ” and,
collectively with Nanogen and Epoch, the “ Sellers
” and each a “ Seller ”), and amends the
Asset Purchase Agreement dated as of May 13, 2009 by and among
Buyer and each of the Sellers (the “ Asset Purchase
Agreement ”). All capitalized terms that are used in this
Amendment and not defined herein shall have the respective meanings
ascribed thereto in the Asset Purchase Agreement.
PRELIMINARY
STATEMENTS
A. Buyer and Sellers deem it
advisable to amend the Asset Purchase Agreement to provide for the
matters hereinafter set forth.
B. Pursuant to Section 12.9 of
the Asset Purchase Agreement, the Asset Purchase Agreement may be
amended by written agreement of Buyer and Sellers.
AGREEMENT
In consideration of the mutual
agreements, covenants and other premises set forth herein, the
mutual benefits to be gained by the performance thereof, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged and accepted, the parties hereto
hereby agree as follows:
1. Amendments .
A. In Section 1.1, the
definition of “Permitted Liens” is hereby amended and
restated as follows:
““ Permitted
Liens ” means (i) easements and other non-material
encumbrances on real property that run with the land, and
(ii) any Liens contemplated by the Drug Royalty Agreements (as
defined in Schedule 2.1(j)).”
B. In Section 1.1, the
definition of “Retained Contracts” is hereby amended
and restated as follows:
““ Retained
Contracts ” means all Contracts to which any Seller is a
party and which are not specifically defined as Assumed Contracts,
including the Toronto Lease, the San Diego Lease and any Contract
to which a Governmental Authority is a party if such Governmental
Authority has not consented to an assignment of such Contract,
including the Contract with the United States Centers for Disease
Control and Prevention for development of a rapid influenza
test.”
C. Section 2.2 is hereby
amended by adding the following provision to the end of the first
sentence thereof:
“and provided ,
further , that Buyer shall not be entitled to delete any of
the following Contracts from the Purchased Assets: (i) the
Drug Royalty Agreements (as defined in Schedule 2.1(j)), and
(ii) the Contracts listed in items 1 and 7 under the heading
“Molecular Diagnostics” and the subheading
“Collaboration and License/Supply Agreements” in
Schedule 2.1(j) (as amended by Amendment No. 1 to the Asset
Purchase Agreement dated May 29, 2009)”.
D. Section 8.13(a) is hereby
amended and restated as follows:
“(a) Each Seller agrees that,
at any time and from time to time after the Closing, it will, upon
the request of Buyer, do all such further acts, including executing
documents or instruments, as may be reasonably required to further
transfer and assign to Buyer any of the Purchased Assets, or to
vest in Buyer good and marketable title to the Purchased Assets. In
the case of any Contract of a Seller to which a Governmental
Authority is a party, if such Governmental Authority has not
consented to an assignment of such Contract, Sellers will cooperate
with Buyer both prior to and following the Closing to seek to
obtain such Governmental Authority’s consent to a novation,
assignment or similar approval with respect to such
Contract.”
E. Section 9.3(b) is hereby
amended and restated as follows:
(b) Sellers shall pay to Buyer, by
wire transfer of immediately available funds to an account
designated by Buyer, (i) a fee (the “ Break-up
Fee ”) in the amount of six hundred twenty-five thousand
dollars ($625,000), and (ii) reimbursement for Buyer’s
reasonable and documented costs and expenses, inclu
