Exhibit 2.3
AMENDMENT NO. 2 TO ASSET PURCHASE
AGREEMENT
This Amendment No. 2 (this
“ Amendment ”) to Asset Purchase Agreement is
made as of June 19, 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, as amended by Amendment No. 1 to Asset Purchase
Agreement dated as of May 29, 2009 (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. Section 2.1(n) is hereby
amended and restated as follows:
“(n) Other Equity
Interests . All equity interests owned by the Sellers in
(i) Recognomics, (ii) Pharmacogenetics Diagnostics
Laboratory LLC (the “ PGx Interest ”),
(iii) Delta Point, and (iv) Hx Diagnostics,
Inc.”
B. Section 2.3(c) is hereby
amended and restated as follows:
“(c) Equity Interests .
Any equity interests or other ownership interests in Sellers and
their Affiliates (including Nanogen Point of Care, Inc.) other than
the NAD Quotas, the Mirina Stock, Recognomics, the PGx Interest,
Delta Point, and Hx Diagnostics, Inc.”
C. The first sentence of
Section 5.4(c) is hereby amended and restated as
follows:
“Except as set forth in
Section 5.4(c) and Section 5.4(h) of Seller’s
Disclosure Schedule , the Owned Intellectual Property is free
of all payment obligations and other Claims and is not subject to
any known limitations or restrictions on use or
otherwise.”
D. Section 7.1(g)(v) and
Section 7.2(e) are hereby deleted.
E. Sections 5.3(a) and 5.3(b) of
Exhibit F (Sellers’ Disclosure Schedule) are hereby amended
to add the following provision:
“Except as may otherwise be
ordered by the Bankruptcy Court, the shares of common
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