EXHIBIT 99.2
OMNIBUS AMENDMENT
This Omnibus Amendment (this "Amendment"), dated as of August 31, 2006, by
and between Icoria, Inc., a Delaware corporation (the "COMPANY"), Clinical Data,
Inc., a Delaware corporation ("CLINICAL DATA") and Laurus Master Fund, Ltd., a
Cayman Islands company (the "PURCHASER"), amends that certain Securities
Purchase Agreement, dated as of October 19, 2004, by and between the Company and
the Purchaser (as amended, modified and/or supplemented from time to time, the
"SECURITIES PURCHASE AGREEMENT"); that certain Secured Convertible Term Note
issued as of October 19, 2004 by the Company in favor of Purchaser in the
initial principal amount of $5,000,000 (as amended, modified and/or supplemented
from time to time, the "TERM NOTE"); and that certain Registration Rights
Agreement, dated as of October 19, 2004, by and between the Company and the
Purchaser (as amended, modified and/or supplemented from time to time, the
"REGISTRATION RIGHTS AGREEMENT" and, together with the Securities Purchase
Agreement, the Term Note and the other Related Agreements (as defined in the
Securities Purchase Agreement), each as amended, modified and/or supplemented
from time to time, the "DOCUMENTS"). Capitalized terms used but not defined
herein shall have the meanings given them in the Securities Purchase Agreement.
PREAMBLE
WHEREAS, on or prior to October 19, 2004, the Company authorized the sale
to the Purchaser of Term Note in the aggregate principal amount of Five Million
Dollars ($5,000,000), which Term Note is convertible into shares of the
Company's common stock, $0.01 par value per share (the "COMMON STOCK") at an
initial fixed conversion price of $0.53 per share of Common Stock;
WHEREAS, on October 19, 2004, the Company issued warrants (the "WARRANTS")
to the Purchaser to purchase up to 1,650,943 shares of the Company's Common
Stock (subject to adjustment as set forth therein) in connection with
Purchaser's purchase of the Term Note;
WHEREAS, on October 19, 2004, Purchaser purchased the Term Note and the
Warrants;
WHEREAS, on December 20, 2005, Clinical Data, Irides Acquisition
Corporation, a Delaware corporation and wholly-owned subsidiary of Clinical Data
and the Company consummated a merger (the "MERGER"), the result of which was the
acquisition by Clinical Data of 100% of the outstanding equity interests of the
Company and to otherwise assume the obligations and liabilities of the Company;
WHEREAS, as a result of the Merger, the Company has deregistered its shares
of Common Stock and as a result caused the Registration Statement (as defined in
the Registration Right Agreement) to not remain effective as required pursuant
to Section 2(b)(ii) of the Registration Rights Agreement and as a result thereof
owes Laurus certain liquidated damages (the "LIQUIDATED DAMAGES") as determined
in accordance with Section 2(b) of the Registration Rights Agreement;
WHEREAS, the Company has failed to pay to Laurus when due the Liquidated
Damages;
WHEREAS, Laurus has agreed to waive on the terms and conditions set forth
herein, the Events of Default that may have occurred and are continuing as a
result of the failure by the Company to pay to Laurus the Liquidated Damages
when due; and
WHEREAS, Clinical Data has agreed to issue to Laurus on the terms set forth
herein shares of its common stock, par value $0.01, upon conversion of the Term
Note, to issue to Laurus on the terms set forth herein common stock purchase
warrants in replacement of the Warrants, to provide on the terms set forth
herein a limited guaranty of the obligations of the Company to Laurus, as well
as to amend and restate certain of the Documents in the forms attached hereto,
all in order to incorporate certain mutually agreed-to terms.
NOW, THEREFORE, in consideration of the covenants, agreements and
conditions hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. WAIVERS
(i) Laurus hereby waives each Event of Default that may have arisen under
Section 4.1 of the Term Note solely as a result of the failure by the
Company to pay to Laurus the Liquidated Damages as determined pursuant
to Section 2(b) of the Registration Rights Agreement. Laurus hereby
further waives any Liquidated Damages due and payable to Laurus by the
Company up to and including the date hereof.
(ii) Laurus hereby reaffirms its consent granted to the Company to postpone
payment of the Monthly Amounts (as defined in the Term Note) otherwise
due on the first business day of each of June, July and August of 2006
with the understanding that (x) the interest portion of the Monthly
Amounts so postposned (i.e. $103,400) shall be added to and
capitalized with the outstanding Principal Amount of the Term Note
(i.e. $2,903,226) as evidenced by the Amended and Retstated Term Note
(as defined below) and (y) and Principal Amount portion of the Monthly
Amounts so postponed shall be payable pursuant to the terms of the
revised amortization schedule as set forth in the Amended and Restated
Term Note.
2. AMENDMENTS AND AGREEMENT.
(i) Effective as of the Amendment Effective Date (as defined below), the
Term Note is hereby amended and restated in the form attached hereto
as Exhibit A (the "AMENDED AND RESTATED TERM NOTE"). For the avoidance
of doubt, the amendment and restatement of the Term Note as set forth
in
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this Section 1(i) shall be in substitution for and not in satisfaction
of the Term Note;
(ii) Effective as of the Amendment Effective Date, the Securities Purchase
Agreement is hereby amended and restated in the form attached hereto
as Exhibit B (the "AMENDED AND RESTATED SECURITIES PURCHASE
AGREEMENT");
(iii) On the Amendment Effective Date, in further consideration of the
amendments in this Section 1, Clinical Data shall issue a two-year
warrant (the "TWO-YEAR Warrant") to the Purchaser to purchase up to
12,811 shares of the common stock of Clinical Date with an exercise
price of $30.00, such Two-Year Warrant to be in the form attached
hereto as Exhibit C;
(iv) On the Amendment Effective Date, in further consideration of the
amendments in this Section 1, Clinical Data shall issue a five-year
warrant (the "FIVE-YEAR Warrant") to the Purchaser to purchase up to
12,811 shares of the common stock of Clinical Date with an exercise
price of $30.00, such Five-Year Warrant to be in the form attached
hereto as Exhibit D;
(v) On the Amendment Effective Date, in further consideration of the
amendments in this Section 1, Clinical Data shall duly execute and
deliver to the Purchaser (i) a Guaranty (the "CLINICAL DATA GUARANTY")
to the Purchaser in the form attached hereto as Exhibit E; and (ii) a
Registration Rights Agreement (the "CLINICAL DATA REGISTRATION RIGHTS
AGREEMENT") to the Purchaser in the form attached hereto as Exhibit F;
(vi) Promptly following the Amendment Effective Date, (i) the Registration
Rights Agreement shall be deemed terminated and shall be of no further
force or effect and (ii) the original Term Note (which is substituted,
but not satisfied, by the issuance of the Amended and Restated Term
Note) shall be returned to the Company and (iii) the Warrants shall be
marked cancelled and returned to the Company.
3. ACKNOWLEDGMENTS AND AGREEMENTS WITH RESPECT TO VARIOUS RELATED
AGREEMENTS.
(i) For the avoidance of doubt, the Company hereby acknowledges and
confirms its due authorization, execution and delivery of the
Securities Purchase Agreement and all Related Agreements referred to
therein (each as amended, restated, modified and/or supplemented
through and including the date hereof) to which it is a party,
including all instruments, financing statements, agreements,
certificates and documents executed and delivered in connection
therewith, and hereby ratifies all actions heretofore taken in
connection therewith, including, without limitation, the
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acknowledgement, ratification and confirmation of the grant by the
Company to the Purchaser of a security interest and charge, to the
extent applicable, in the assets of the Company as more specifically
set forth in the Securities Purchase Agreement and the Related
Agreements referred to therein.
4. EFFECTIVENESS. This Amendment shall be effective as of the date (the
"AMENDMENT EFFECTIVE DATE") when:
(i) Each of the Company, Clinical Data and the Purchaser (to the extent
party thereto) shall have executed and each of the Company and
Clinical Data shall have delivered to the Purchaser its respective
counterpart to: (A) this Amendment; (B) the Amended and Restated Term
Note; (C) the Amended and Restated Securities Purchase Agreement; (D)
the Clinical Data Guaranty; (E) the Clinical Data Registration Rights
Agreement; (F) the Two-Year Warrant and (G) the Five-Year Warrant.
(ii) The Purchaser shall have received from each of the Company and
Clinical Data, true and correct certified copies of resolutions of the
Board of Directors (or equivalent) of such Person with respect to the
matters set forth in this Amendment, and such resolutions shall be in
form and substance satisfactory to the Purchaser;
(iii) Clinical Data shall have cause its general counsel to provide to the
Purchaser an opinion of counsel in form and substance satisfactory to
the Purchaser addressing such matters as shall arise in connection
with this Amendment and the transactions described herein.
5. MISCELLANEOUS.
(i) Except as specifically set forth in this Amendment, there are no
other amendments to the Term Note, and all of the other forms,
terms and provisions of the Term Note remain in full force and
effect.
(ii) The Company hereby represents and warrants to the Purchaser that
(i) no Event of Default exists on the date hereof, after giving
effect to this Amendment, (ii) on the date hereof, after giving
effect to this Amendment, all representations and warranties
referenced in (iii) below made by the Company and the Parent
(provided that the Parent is only making the representations and
warranties contained in Sections 4.1, 4.2, 4.3(d), 4.4 and 4.21
of the Amended and Restated Securities Purchase Agreement and
such representations should be read in such context by
substituting "Parent" for "Company" where such substitution is
reasonably applicable) in connection with the Documents are true,
correct and complete
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(each as of the date that they were given to the extent such date
is specified therein), and (iii) on the date hereof, after giving
effect to this Amendment, all of the Company's and the Parent's
covenant requirements, as applicable, are currently being met.
(iii) From and after the Amendment Effective Date, all references in
the Documents to the Term Note and Securities Purchase Agreement
shall be deemed to be references to such documents as modified
hereby.
(iv) Clinical Data understands that it has an affirmative obligation
to make prompt public disclosure of material agreements and
material amendments to such agreements. It is Clinical Data's
determination that this Amendment is material. Clinical Data
agrees to file an 8-K within 4 business days of the date hereof
and in the form otherwise prescribed by the SEC.
(v) This Amendment shall be binding upon the parties hereto and their
respective successors and permitted assigns and shall inure to
the benefit of and be enforceable by each of the parties hereto
and its successors and permitted assigns. THIS AMENDMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK. This Amendment may be executed in any
number of counterparts, each of which shall be an original, but
all of which shall constitute one instrument.
[signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment
or has caused this Amendment to be executed on its behalf by a representative
duly authorized, all as of the date first above set forth.
COMPANY: PURCHASER:
ICORIA, INC. LAURUS MASTER FUND, LTD.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx Grin
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx Grin
Title: Secretary Title: Director
CLINCAL DATA:
CLINICAL DATA, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Legal Officer
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ANNEX A
FORM OF AMENDED AND RESTATED TERM NOTE
ANNEX B
FORM OF AMENDED AND RESTATED
SECURITIES PURCHASE AGREEMENT
EXHIBIT C
FORM OF TWO-YEAR WARRANT
ANNEX D
FORM OF FIVE-YEAR WARRANT
ANNEX E
FORM OF CLINICAL DATA GUARANTY
ANNEX F
FORM OF CLINICAL DATA
REGISTRATION RIGHTS AGREEMENT
