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EXHIBIT 2.2
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
Amendment No. 1 dated as of February 26, 1998, to the Asset Purchase
Agreement dated as of December 15, 1997 (the "ASSET PURCHASE AGREEMENT") by and
among DynaGen, Inc., a Delaware corporation ("PARENT") and Superior
Pharmaceutical Company, an Ohio Corporation and a wholly-owned subsidiary of
Parent ("SUPERIOR"), Generic Distributors Incorporated, a Delaware corporation
and a wholly owned subsidiary of Superior ("GDI" and, collectively with Parent
and Superior, the "BUYERS") and Generic Distributors Limited Partnership, a
Louisiana limited partnership ("GDLP"); United Pharmacists, Inc., a Louisiana
corporation and general partner of GDLP (the "GENERAL PARTNER") and Xx. Xxx
Xxxxxxxxx ("XX. XXXXXXXXX") (collectively with GDLP, the General Partner, and
Xx. Xxxxxxxxx, the "SELLERS"). Terms used herein but not defined herein shall
have the meanings used in the Asset Purchase Agreement; and
WHEREAS, the parties desire to amend the Asset Purchase Agreement, the
Xxxx of Sale between Buyers and Sellers, the Employment Agreement of Xx.
Xxxxxxxxx and the Consulting Agreement of Xx. Xxxxxxx (collectively, the
"Operative Documents") and reconfirm their obligations under the Asset Purchase
Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the adequacy of which is hereby acknowledged, the parties
hereby specifically amend the Asset Purchase Agreement and Operative Documents
as set forth below:
1. PARTIES TO THE AGREEMENT. Superior will hereby cease to be a party
to the Asset Purchase Agreement and any all representations, warranties,
covenants, obligations and Conditions to Closing previously applicable to
Superior will hereby cease to exist, and Superior shall be relieved and
discharged of any and all obligations under the Asset Purchase Agreement and
Operative Documents. Any and all references to Superior in the Asset Purchase
Agreement and Operative Documents are hereby removed. Furthermore, as a result
of a corporate reorganization, GDI shall be recognized as a wholly owned
subsidiary of Parent. Any and all references to GDI's status as a wholly owned
subsidiary of Superior are hereby revised to reflect GDI's status as a
wholly-owned subsidiary of Parent.
2. PURCHASE PRICE. (a) Paragraph (a) of Section 1.05 Purchase Price, is
hereby amended by renumbering (iii) to (iv) and inserting the following
immediately before the newly numbered (iv): "(iii) 1,500 shares of Series F
Convertible Preferred Stock of the Parent (the "SERIES F PREFERRED") which is
convertible into $100,000 in value of Common Stock of the Parent commencing 120
days from the Closing Date," The amended paragraph shall read as follows:
"(a) The purchase price for the Purchased Assets (the "PURCHASE PRICE")
is (i)$1,200,000 in cash, and (ii) $1,050,000 in Series E Convertible Preferred
Stock of the Parent (the "SERIES E PREFERRED") which is convertible into Common
Stock of the Parent after twelve (12) months from the Closing Date, (iii) 1,500
shares of Series F Convertible Preferred Stock of the Parent (the "SERIES F
PREFERRED"), which is convertible into $100,000 in value of Common Stock of the
Parent commencing 120 days
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from the Closing; and (iv) the assumption of the Assumed Liabilities. The
Purchase Price shall be paid as provided in Section 1.07."
b. Paragraph (b) of Section 1.05 Purchase Price, is hereby amended by
striking both references to $1,617,000 in the first sentence of paragraph (b)
and replacing such number with $1,717,000. The amended paragraph shall read as
follows:
"(b) Buyers and Sellers hereby agree that if the total amount of
Partners' Equity (as determined according to Section 1.08) on the
Closing Date is less than $1,717,000, the cash payment of the Purchase
Price from Buyers to Sellers will be reduced on a dollar- for-dollar
basis for each dollar amount of Partners' Equity below $1,717,000. The
Sellers will be responsible for paying to Buyers any refundable
difference in cash within three (3) business days after the Closing
Audit contemplated under Section 1.08."
c. Paragraph (c) of Section 1.05 Purchase Price, is hereby amended by
striking both references to $1,617,000 in the first sentence of paragraph (c)
and replacing such number with $1,717,000. The amended paragraph shall read as
follows:
"(c) Buyers and Sellers hereby agree that if the total amount of
Partners' Equity in GDLP on the Closing Date is greater than
$1,717,000, all dollar amounts in excess of $1,717,000 will be refunded
directly to GDLP as additional consideration for the purchase of the
Business. The refund contemplated under this section shall be paid as
follows: (i) in cash, to the extent that the Closing Balance Sheet (as
determined by the Closing Audit contemplated under Section 1.08)
represents a cash balance in excess of $300,000, each dollar above
$300,000 shall be paid in cash within three (3) business days of the
completion and delivery of the Closing Financial Statement (as that
term is definedin Section 1.08) to eliminate the refund due the Sellers
if any, and (ii) to the extent ththe cash amount in (i) is insufficient
to satisfy the total refund due, any excess amount owed the Sellers
will be paid by the Buyers in cash no later than 105 days after the
Closing Date (as that term is defined in Section 1.07)."
d. Paragraph (d) of Section 1.05 Purchase Price, is hereby amended by
inserting "or Series F Preferred" after Series E Preferred. The amended
paragraph shall read as follows:
"(d) Buyers and Sellers hereby agree that none of the shares of Series
E Preferred or Series F Preferred to be transferred from the Parent to
the Sellers (under Section 1.05 (a)) may be distributed as either
Preferred Stock or Common Stock to the Limited Partners of GDLP. Only
proceeds from the sale of the Parent's Common Stock may be distributed
to the Limited Partners of GDLP."
e. Section 1.05 Purchase Price, is hereby amended by inserting new
paragraph (e) after paragraph (d). The new paragraph shall read as follows:
Amendment No. 1 to asset Purchase Agreement
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"(e) Buyers and Sellers hereby agree that if all of the shares of
Series E Preferred are converted by GDLP in accordance with the
Certificate of Designations, Preferences and Rights of Series E
Preferred Stock, as such document was filed with the Secretary of State
of Delaware on December 15, 1997 (the "Series E CERTIFICATE OF
DESIGNATION"), and the Stockholder's Total Value Account (as that term
is defined in the Series E Certificate of Designation) does not equal
$1,050,000, after all of the shares of Series E Preferred have been
converted into Common Stock of the Parent and the Common Stock issued
upon conversion has subsequently been sold or held in excess of five
(5) trading days by GDLP, then the difference between the Stockholder's
Total Value Account after all such conversions and $1,050,000 shall be
equal to a dollar amount referred to as the "DEFICIENCY IN NET
PROCEEDS." In the event that such a Deficiency in Net Proceeds shall
arise, Buyers agree that in order to reduce the dollar amount of the
Deficiency in Net Proceeds to a dollar amount equal to zero, additional
shares of Series F Preferred shall be issued to the Sellers. The shares
of Series F Preferred issued in accordance with this section shall be
immediately convertible into Common Stock of the Parent in accordance
with the Certificate of Designations, Preferences and Rights of Series
F Preferred Stock, as such document was filed with the Secretary of
State of Delaware on February 27, 1998 (the "SERIES F CERTIFICATE OF
DESIGNATION"). The number of shares of Series F Preferred to be issued
by Buyers to Sellers to reduce the Deficiency in Net Proceeds to a
dollar amount equal to zero shall be determined as follows: (i) Buyers
shall initially issue an additional 100 shares of Series F Preferred to
Sellers (the "ADDITIONAL SERIES F SHARES"); (ii) Sellers may then
convert the Additional Series F Shares into Common Stock of the Parent
according to the terms of the Series F Certificate of Designation and
such conversions shall be appropriately reflected in the GDLP
Deficiency in Net Proceeds Total Value Account (as such term is defined
in the Series F Certificate of Designation); (iii) when the dollar
amount of the GDLP Deficiency in Net Proceeds Total Value Account is
equal to (or greater than) the dollar amount of the Deficiency in Net
Proceeds, any unconverted Additional Series F Shares will be
automatically canceled by Parent without consideration; (iv) in the
event that all 100 shares of the Additional Series F Shares are
converted and the dollar amount of the GDLP Deficiency in Net Proceeds
Total Value Account is still not equal to (or greater than) the dollar
amount of the Deficiency in Net Proceeds, the Buyers shall repeat the
provisions of (i), (ii), (iii) and (iv) of this paragraph. Once the
dollar amount of the GDLP Deficiency in Net Proceeds Total Value
Account is equal to (or greater than) the dollar amount of the
Deficiency in Net Proceeds, any unconverted Additional Series F Shares
will be automatically canceled by Parent without consideration. The
Additional Series F Shares issued in accordance with this section, at
the time of issuance will be duly authorized, validly issued, fully
paid and nonassessable and will not be subject to preemptive rights."
3. ALLOCATION OF PURCHASE PRICE. Section 1.06 Allocation of Purchase
Price, is hereby amended by striking $2,250,000 and inserting $2,350,000 in its
place, and further by striking $1,617,000 and inserting $1,717,000 in its place.
The amended section shall read as follows:
Amendment No. 1 to asset Purchase Agreement
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"The Purchase Price shall be allocated among the Purchased Assets in a
reasonable manner (in order to reduce the valuation assigned to
goodwill) between the payment for the assets of the Business and
assumption of stated liabilities of the Business and for the consulting
and the non-compete agreements to be signed by Xx. Xxxxxxxxx and Xx.
Xxxxxxx at the Closing. The amount of the Assumed Liabilities will not
cause an adjustment of the $2,350,000 Purchase Price, provided GDLP
maintains the Partners' Equity requirement of $1,717,000 as provided in
Section 1.05."
4. CLOSING. Section 1.07 Closing, is hereby amended by striking "on
December 16, 1997" in paragraph (a) and replacing it with "at the time of
Closing." The amended paragraph shall read as follows:
"(a) Buyers shall pay the Purchase Price of $1,200,000 in cash at the
time of Closing by a certified or official bank check payable to the
order of Generic Distributors LimitedPartnership, or if Buyers receive
wire transfer instructions at least two business days prior to the
Closing, send wire transfers of $1,200,000 to an account specified by
the Sellers."
b. Paragraph (b) of Section 1.07 Closing, is hereby amended inserting
"(with the exception of the Series F Preferred Stock, in which case the Series E
will be on a parity with the Series F Preferred Stock), provided however that
Parent shall not create or designate a series of preferred stock senior to the
Series E Preferred Stock if the sole purpose of such new series of preferred
stock is the acquisition of the capital stock or assets of another corporation
in any business combination. Parent may create or designate a new series of
preferred stock senior to or on a parity with the Series E Preferred Stock if
the purpose of such new series of preferred stock is a financing for working
capital obligations and general corporate purposes." after "currently
outstanding or issued in the future" in the seventh sentence. Paragraph (b) of
Section 1.07 Closing is hereby further amended by striking the parenthetical
"(if sold within 2 days of conversion)" in the eighth sentence and replacing it
with "(if sold within five (5) days of conversion)." The amended paragraph shall
read as follows:
"(b) Buyers shall deliver one stock certificate representing the shares
of Series E Preferred to the Sellers in the name of Generic
Distributors Limited Partnership. None of the shares of Series E
Preferred to be transferred from the Parent to the Sellers may be
distributed as either Preferred Stock or Common Stock to the Limited
Partners of GDLP. Only proceeds from the sale of the Parent's Common
Stock may be distributed to the Limited Partners of GDLP. The Series E
Preferred may be converted into Common Stock of the Parent after twelve
(12) months from the Closing Date. No more than $42,000 of the
preferred stock may be converted in any five (5) business days. The
Conversion price will be based on the average closing bid price of
Common Stock of the Parent as reported by NASDAQ over the three (3) day
trading period prior to conversion. GDLP may decide to sell the Common
Stock immediately or hold the shares as an investment. However, when
net proceeds from the sale of the Common Stock (if sold within five (5)
days of conversion) and conversion value of the unsold Common Stock
equals $1,050,000, the remaining convertible shares held by GDLP will
be canceled. The shares of Series E Preferred will rank higher than
shares of Common Stock in liquidation
Amendment No. 1 to asset Purchase Agreement
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preference, but will rank lower than any other series of preferred
stock of Parent currently outstanding or issued in the future (with the
exception of the Series F Preferred Stock, in which case the Series E
will be on a parity with the Series F Preferred Stock), provided
however that Parent shall not create or designate a series of preferred
stock senior to the Series E Preferred Stock if the sole purpose of
such new series of preferred stock is the acquisition of the capital
stock or assets of another corporation in any business combination.
Parent may create or designate a new series of preferred stock senior
to or on a parity with the Series E Preferred Stock if the purpose of
such new series of preferred stock is a financing for working capital
obligations and general corporate purposes. Preferred shares will not
carry dividends and will be non-transferable. The terms of the Series E
Preferred Stock are set forth on EXHIBIT E.
c. Section 1.07 Closing, is hereby amended by relettering paragraphs
(c) and (d) to become paragraphs (d) and (e) respectively; the following shall
be inserted immediately before the newly lettered paragraphs (d) and (e):
"(c) Buyers shall deliver one stock certificate representing the shares
of Series F Preferred to the Sellers in the name of Generic
Distributors Limited Partnership. None of the shares of Series F
Preferred to be transferred from the Parent to the Sellers may be
distributed as either Preferred Stock or Common Stock to the Limited
Partners of GDLP. Only proceeds from the sale of the Parent's Common
Stock may be distributed to the Limited Partners of GDLP. The Series F
Preferred may be converted into Common Stock of the Parent any time
after June 25, 1998. No more 200 shares of the Series F Preferred Stock
may be converted in any five (5) business days. The Conversion price
will be based on the average closing bid price of Common Stock of the
Parent as reported by NASDAQ over the three (3) day trading period
prior to conversion. GDLP may decide to sell the Common Stock
immediately or hold the shares as an investment. However, when net
proceeds from the sale of the Common Stock (if sold within five (5)
days of conversion) and conversion value of the unsold Common Stock
equals $100,000, the remaining convertible shares held by GDLP (with
the exception of any Additional Shares of Series F issued pursuant to
Section 1.05(e)) will be canceled. The shares of Series F Preferred
will rank higher than shares of Common Stock in liquidation preference,
but will rank lower than any other series of preferred stock of Parent
currently outstanding or issued in the future (with the exception of
the Series E Preferred Stock, in which case the Series F Preferred
Stock will be on a parity with the Series E Preferred Stock), provided
however that Parent shall not create or designate a series of preferred
stock senior to the Series F Preferred Stock if the sole purpose of
such new series of preferred stock is the acquisition of the capital
stock or assets of another corporation in any business combination.
Parent may create or designate a new series of preferred stock senior
to or on a parity with the Series F Preferred Stock if the purpose of
such new series of preferred stock is a financing for working capital
obligations and general corporate purposes. The Series F Preferred
Stock will not carry dividends and will be non-transferable. The terms
of the Series F Preferred Stock are set forth on EXHIBIT H."
Amendment No. 1 to asset Purchase Agreement
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5. CLOSING AUDIT AND ADJUSTMENTS. Paragraph (a) of Section 1.08 Closing
Audit and Adjustments, is hereby amended by striking both references to
"November 25, 1997" and replacing both with "the Closing Date." Furthermore,
Section 1.08 Closing Audit and Adjustments is hereby amended by striking both
references to $1,617,000 in the second sentence of paragraph (a) are replacing
such number with $1,717,000. The amended paragraph shall read as follows:
"(a) The Sellers, in good faith, have prepared an estimate of the
Closing Balance Sheet as of the Closing Date (the "ESTIMATED CLOSING
BALANCE SHEET"), and an estimate of the Closing Statement of Partners'
Equity as of the Closing Date (the "ESTIMATED CLOSING STATEMENT OF
PARTNERS' EQUITY") utilizing the books and records of GDLP and the
taking of a physical inventory, in accordance with generally accepted
accounting principles. If the Partners' Equity of GDLP as set forth on
the Estimated Closing Statement of Partners' Equity reflects (i)
Partners' Equity of less than $1,717,000 as of the Closing Date, the
Purchase Price shall be reduced, dollar for dollar, by an amount equal
to such shortfall, or(ii) Partners' Equity of more than $1,717,000 as
of the Closing Date, the Purchase Price shall be increased, dollar for
dollar, by an amount equal to such excess. Any increase in the Purchase
Price will be paid to the Sellers in the manner explained in Section
1.05(c)."
b. Paragraph (c) of Section 1.08 Closing Audit and Adjustments, is
hereby amended by striking "with an appropriate adjustment made to reflect a
"roll back" to the Closing Date to be used in creating the Closing Financial
Statements." and replacing it with "with an appropriate adjustment made to
reflect a "roll forward to the Closing Date to be used in creating the Closing
Financial Statements." The amended paragraph shall read as follows:
"(c) The scope of the audit and the procedures to be followed shall be
agreed upon by Xxxxx, Sellers and Buyers prior to the commencement of
field work. The audit is to be made as of December 31, 1997 with an
appropriate adjustment made to reflect a "roll forward" to the Closing
Date to be used in creating the Closing Financial Statements. Buyers
and its accountants shall be provided with all information used to
value or record items on the Closing Financial Statements and have the
right to witness or participate inthe taking and pricing of the
physical inventory. In addition, Buyers and its accountantsshall have
full access to review the work papers of Xxxxx, and shall have access
to the books and records of the Sellers as shall be necessary in
connection with such audit simultaneously with the delivery of such
books and records to Xxxxx."
d. Paragraph (e) of Section 1.08 Closing Audit and Adjustments, is
hereby amended by striking the reference to $1,617,000 in the first sentence of
paragraph (e) and replacing such number with $1,717,000. The amended paragraph
shall read as follows:
"(e) If the Partner's Equity of GDLP showing in the Closing Financial
Statements as finally determined in accordance with the above shall be
more or less than $1,717,000 (the shortfall or excess being referred to
as the "FINAL ADJUSTMENT"), Buyers or Sellers shall pay to each other,
within three (3) business days of the completion and delivery ofthe
Closing Financial Statements an amount necessary to reconcile the
Estimated
Amendment No. 1 to asset Purchase Agreement
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Adjustment and the Final Adjustments. Any payments contemplated under
this Section shall be paid according to Sections 1.05(b) and 1.05(c)."
6. SERIES F PREFERRED AUTHORIZATION. Article III representations and
Warranties of Parent and GDI is amended by adding Section 3.11 Series F
Preferred Authorization. The New Section shall read as follows:
"SECTION 3.11. SERIES F PREFERRED AUTHORIZATION. The shares of Series F
Preferred to be issued pursuant to this Agreement will, at the time of
Closing, be duly authorized, validly issued, fully paid and
nonassessable and will not be subject to preemptive rights."
7. SECURITIES REGISTRATION. Section 4.06 Securities Registration, is
hereby amended by inserting "or Series F Preferred" after "Series E Preferred"
in the first sentence of Section 4.06. The amended section shall read as
follows:
"The Parent shall use its best efforts to take all action as may be
required as a condition to the availability of Rule 144 under the
Securities Act (or any successor exemptive rule hereinafter in effect)
including but not limited to the timely filing of all reports required
to be filed pursuant to said Securities Act in order to permit the
sale, transfer or other disposition under Rule 144 with respect to such
Common Stock as is acquired upon conversion of the Series E Preferred
or Series F Preferred in accordance with thisagreement. The Buyers
shall furnish to any holder of registrable shares forthwith n
uporequest (i) a written statement by the Company as to its compliance
with the reporting requirements of Rule 144, (ii) a copy of the most
recent annual or quarterly report of theParent as filed with the SEC,
and (iii) such other reports and documents as a holder may reasonably
request in availing itself of any rule or regulation of the SEC
allowing a holder to sell any such registrable shares without
registration."
8. ESCROW OBLIGATION. Section 6.03 Conditions Applicable to the
Sellers, shall be amended by adding new paragraph (h) after paragraph (g). The
new paragraph (h) shall read as follows:
Sellers shall deposit the sum of $100,000 in a Cash Collateral Account
at Fleet National Bank in Boston, Massachusetts ("FLEET"). Such account is being
established to protect the Buyers against further liability arising under the
DEA judgment entered against GDLP on March 12, 1997 (the "DEA Judgment") wherein
GDLP was ordered to pay a civil penalty of $200,000 of which $196,000 was
suspended for five years from March 12, 1997. At the conclusion of the five year
judgment suspension period, the remaining balance in the Cash Collateral Account
shall become the property of GDI.
9. XXXX OF SALE. Schedule D, the Xxxx of Sale between Sellers and
Buyers (the "Xxxx of Sale") is hereby amended by striking the reference to
December 15, 1997 in the first sentence of the first paragraph and the first
sentence of the second paragraph and replacing such date with "as of the Closing
Date." The Xxxx of Sale is further amended to remove DynaGen, Inc. as a party to
Amendment No. 1 to asset Purchase Agreement
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the Xxxx of Sale and any and all references to DynaGen, Inc. in the Xxxx of Sale
are hereby removed. The amended Xxxx of Sale shall read as follows:
"XXXX OF SALE dated of the Closing Date, from Generic Distributors
Limited Partnership, United Pharmacists, Inc., and Xx. Xxx Xxxxxxxxx
(collectively the "SELLERS") to Generic Distributors Incorporated
("GDI")( the "BUYERS").
WHEREAS, on the terms and subject to the conditions set forth in the
Asset Purchase Agreement dated as of the Closing Date between the
Sellers and the Buyers (the "Agreement"), the Sellers have agreed to
transfer to the Buyers, and the Buagreed to purchase and acquire, all
of the Sellers' rights, title and interest in and tsubstantially all of
the Sellers' assets relating to the Business (as defined in the
Agreement), as further specified in the Agreement and the exhibits
thereto (the "PURCHASED ASSETS")."
10. XXXXXXXXX EMPLOYMENT AGREEMENT. Exhibit A to Exhibit B of the Asset
Purchase Agreement (the "Xxxxxxxxx Employment Agreement") is hereby amended by
striking the sentence "You will receive as a signing bonus 100,000 shares of
Common Stock of DynaGen, Inc. paid at the Closing." in the second paragraph and
replacing it with "You will receive at the Closing, as a signing bonus, 700
shares of Series F Convertible Preferred Stock of DynaGen, Inc., which is
convertible into $50,000 in value of Common Stock of DynaGen, Inc. commencing
120 days from the Closing." Exhibit A to Exhibit B of the Asset Purchase
Agreement is hereby further amended by adding "(such bonus may be payable in
Common Stock of DynaGen, Inc. at your option)." to the third sentence of
paragraph 2. The amended Exhibit A to the Xxxxxxxxx Employment Agreement shall
read as follows:
"2. COMPENSATION. Your Base Salary shall be $110,000 per annum payable
at the rate of $9,166.66 per month. The salary shall be reviewed, but
not reduced, by GDI's Board of Directors on each anniversary date of
this Agreement or at any intermediate stage in the discretion of the
Board. You will receive a bonus of $25,000 to be paid in cash one
hundred and twenty (120) days after the Closing of the Asset Purchase
Agreement (such bonus may be payable in Common Stock of DynaGen, Inc.
at your option). You will receive at the Closing, as a signing bonus,
700 shares of Series F Convertible Preferred Stock of DynaGen, Inc.,
which is convertible into $50,000 in value of Common Stock of DynaGen,
Inc. commencing 120 days from the Closing. You will receive additional
consideration of $33,333 per year (as separate and specific
consideration for undertaking the restrictive covenants contained in
the non-competition and non-solicitation subsections of Section 6 of
this Agreement) for each year of this agreement that you remain
employed by GDI and do not breach any agreement or undertaking
involving the Employee's covenants on non-competition,
non-solicitation, confidentiality and assignment of inventions."
Amendment No. 1 to asset Purchase Agreement
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11. XXXXXXX CONSULTING AGREEMENT. Exhibit A to Exhibit C of the Asset
Purchase Agreement (the "Xxxxxxx Consulting Agreement") is hereby amended by
striking the sentence "You will receive as a signing bonus 100,000 shares of
Common Stock of DynaGen, Inc. paid at the Closing." in the second paragraph. The
removed sentence shall be replaced with "You will receive at the Closing, as a
signing bonus, 700 shares of Series F Convertible Preferred Stock of DynaGen,
Inc., which is convertible into $50,000 in value of Common Stock of DynaGen,
Inc. commencing 120 days from the Closing." The amended Exhibit A to the Xxxxxxx
Consulting Agreement shall read as follows:
"2. COMPENSATION. Your Base Salary shall be $4,166 per month. You will
receive at the Closing, as a signing bonus, 700 shares of Series F
Convertible Preferred Stock of DynaGen, Inc., which is convertible into
$50,000 in value of Common Stock of DynaGen, Inc. commencing 120 days
from the Closing. You will receive additional consideration of $33,333
per year (as separate and specific consideration for undertaking the
restrictive covenants contained in the non-competition and
non-solicitation subsections of Section 6 of this Agreement) for each
of the three (3) years after the Closing Date provided that you do not
breach any agreement or undertaking involving the covenants on
non-competition, non-solicitation, confidentiality and assignment of
inventions."
12. EXHIBIT H. The Asset Purchase Agreement is hereby amended by adding
Exhibit H, Certificate of Designations, Preferences and Rights of Series F
Preferred Stock.
Except as expressly set forth above, the Asset Purchase Agreement shall remain
in full force and effect and the parties hereby reconfirm their representations,
obligations and covenants as set forth in the Asset Purchase Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Amendment No. 1 to asset Purchase Agreement
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IN WITNESS WHEREOF, this Asset Purchase Agreement has been duly
executed and delivered by the parties on the date first above written.
BUYERS: SELLERS:
DynaGen, Inc. Generic Distributors Limited Partnership
(a Delaware corporation) (a Louisiana limited partnership)
By: /s/ XXXXXXXXX X. XXXXXXX By: /s/ GENERIC DISTRIBUTORS LIMITED PARTNERSHIP
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Title: Xxxxxxxxx X. Xxxxxxx
Chairman of the Board and By: Xxxxxx Xxxxxxxxx
Executive Vice President
Superior Pharmaceutical Company United Pharmacists, Inc.
(an Ohio corporation, and subsidiary of (a Louisiana corporation)
DynaGen, Inc.)
By: /s/ XXXX XXXXXXXXXXX By: /s/ XXXXXX XXXXXXXXX
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Title: Treasurer Title: President
Generic Distributors Incorporated /s/ XXXXXX XXXXXXXXX
(a Delaware corporation, and subsidiary of Superior --------------------
Pharmaceutical Company.) Xx. Xxx Xxxxxxxxx, Individually
By: /s/ XXXXXXXXX XXXXXXX
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Title: Executive Vice President
