Exhibit 10.47
AMENDMENT TO ASSET PURCHASE AGREEMENT
This amendment dated as of November
13 , 2006 (this “Amendment”) by and between
BIO-RAD LABORATORIES, INC ., a Delaware corporation, with
offices at 1000 Alfred Nobel Drive, Hercules, California 94547
(“Buyer”), and CIPHERGEN BIOSYSTEMS, INC ., a
Delaware corporation, with offices at 6611 Dumbarton Circle,
Fremont, California 94555 (“Seller”).
RECITALS
A. WHEREAS, Buyer and Seller
entered into the Asset Purchase Agreement dated as of
August 14, 2006 (the “Agreement”); and
B. WHEREAS, Buyer and Seller
desire to amend the Agreement upon the terms and subject to the
conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of
the respective covenants and promises contained herein and for
other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as
follows:
| 1. |
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The definition of “Ancillary Agreements” in
Section 1.1 of the Agreement shall be deleted in its entirety
and replaced with the following: |
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“ Ancillary Agreements ” shall mean the
Indemnification Escrow Agreement, Sublease Agreement, Cross License
Agreement, Transition Services Agreement, Stock Purchase Agreement,
Manufacture and Supply Agreement, Sublicense Agreement and UK
Letter, substantially in the forms attached hereto as Exhibits I,
J, K, L, M, N, Q and R respectively. |
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| 2. |
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The following shall be inserted at the end of Section 2.1
of the Agreement and at the end of the first sentence of
Section 4.5: |
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“ provided , however , that with respect to
the MAS Agreements, as defined in Section 10.4(a), Seller will
not transfer or assign such agreements to Buyer but instead will
sublicense to Buyer certain rights granted to Seller under such
agreements pursuant to the Sublicense Agreement, as defined in
Section 3.2(k), and Seller shall continue to perform its
obligations under such agreements, including without limitation its
obligation to pay royalties.” |
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| 3. |
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The following shall be inserted at the end of Section 2.2
of the Agreement: |
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“; provided , however , that the MAS
Agreements, as defined in Section 10.4(a), shall not be included in
this Section 2.2.” |
| 4. |
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The following shall be inserted at the end of Section 3.2
of the Agreement: |
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“(k) Sublicense . Buyer and Seller shall execute
and deliver the sublicense agreement substantially in the form
attached hereto as Exhibit Q (the “ Sublicense
Agreement ”). |
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“(l) UK Letter . Buyer and Seller shall execute
and deliver the letter in the form attached hereto as
Exhibit R .” |
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| 5. |
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The following shall be inserted at the end of
Section 10.4(a) of the Agreement: |
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“; or (vii) any Liability imposed upon or asserted
against Buyer arising out of or relating to (1) any challenge
to the validity or enforceability of the Sublicense Agreement or
the assignment of any or all of the MAS Agreements to Buyer
pursuant to Section 10.8 or the e |
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