December 12, 2007
Exhibit
10.99(a)
December
12, 2007
Ocimum
Biosolutions Inc.
#0000
Xxxxx Xxxx, Xxxxx #X
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxx Xxxxxxxxxx
O3
Capital
Advisors Pvt. Ltd.
#3
Xxxxxxx
Xxxx,
Xxxxxxxxx
000 000, Xxxxx
Attention: Shiraz
Bugwadia
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RE:
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Amendment
to the Asset Purchase Agreement (the
“APA”) by and between Gene
Logic
Inc., a Delaware corporation
(“Company”),
Ocimum Biosolutions Limited, a company incorporated under the Company
Act,
1956 in the Republic of India
(“Parent”), and Ocimum
Biosolutions Inc., a Delaware corporation
(“Purchaser”)
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Gentlemen:
In
connection with the change in
circumstances of Company, Parent and Purchaser since the time of the execution
of the APA, the Parties wish to, and hereby do, amend the APA as provided
below. Capitalized terms used herein, but not otherwise defined
herein, shall have the meanings given to such terms in the APA.
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1.
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The
term “Parent” shall refer to Ocimum Biosolutions (India) Limited, a
company incorporated under the Company Act, 1956 in the Republic
of
India.
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2.
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Any
cash, cash equivalent or other payment (the “Customer 1 or Customer 2
Payments”) made by Customer 1 and Customer 2 (as defined on Exhibit
A hereto) to the Company, and received by the Company, on or after
December 6, 2007, for perpetual database licenses granted pursuant
to
license agreements entered into by and between Company and
Customer 1 or Company and Customer 2 on or after December 6, 2007
but
prior to the Closing Date or, in the case of Customer 2 only, subsequent
to the Closing Date but prior to December 31, 2007 (the “Perpetual
Licenses”) shall be included in the term “Acquired Assets” for
purposes of the APA and all right, title and interest therein shall
therefore be transferred and assigned by Company to Purchaser as
of the
Effective Time in connection with the Closing. Further any and
all obligations of Company pursuant to the Perpetual Licenses shall
be
included in the term “Assumed Liabilities” for purposes of the APA and
shall therefore be transferred by Company to Purchaser and Purchaser
shall
assume any and all obligations thereunder. In the event that
the Company (i) receives the Customer 1 or Customer 2 Payments or
(ii)
receives any monies erroneously sent by Customer 1 or Customer 2
and which
relate to a Perpetual License between Purchaser and Customer 1 or
Customer
2 which relate to periods from and after the Effective Time, such
amounts
shall be transferred to Purchaser within five (5) Business Days of
the
later of Closing and the receipt by the Company of such Customer
1 or
Customer 2 Payments.
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3.
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Notwithstanding
the calculation provided for in Section 1.03(c)(i) of the APA, the
Company, Parent and Purchaser hereby agree that for purposes of the
APA
that the Net Current Assets Adjustment shall be deemed to be equal
to zero
dollars ($0.00).
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4.
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The
Parties agree that the APA is hereby amended such that any reimbursement
or payment provided to be due and payable pursuant to Section 9.01
of the
APA prior to the date that the Purchase Price Adjustment becomes
due and
payable pursuant to Section 1.03(c) of the APA (the “Purchase Price
Adjustment Payment Date”) shall not be due and payable until the
Purchase Price Adjustment Payment Date; provided, that the amount
that shall be due and payable at such time shall include all amounts
due
and payable as of the Purchase Price Adjustment Date pursuant to
Section
9.01 of the APA and any and all other amounts then due pursuant to
the
APA. Notwithstanding the previous sentence, any payments that
become due and payable pursuant to Section 9.01 of the APA after
the
Purchase Price Adjustment Date shall continue to be due and payable
in
accordance with Section 9.01 of the
APA.
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5.
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The
Parties hereby agree that any payroll expenses paid by Company to
the
Business Employees in respect of time periods from and after the
Closing
Date shall be the responsibility of Purchaser and such expenses shall
be
due and payable from Purchaser or Parent to the Company as of the
Purchase
Price Adjustment Payment Date. Any other payments due between
the Parties pursuant to Section 4.08 of the APA shall also be due
and
payable on the Purchase Price Adjustment Payment
Date.
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6.
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The
Parties hereby agree that the Company shall reimburse Purchaser for
its
actual costs incurred pursuant to the Licensor 1 (as defined on Exhibit
A hereto) database license with respect to the period from April
1,
2007 through the day prior to the Closing Date and such expenses
shall be
due and payable from Company to Purchaser as of the Purchase Price
Adjustment Payment Date.
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7.
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The
Parties hereby agree that Section 9.02(a) of the APA is hereby deleted
and
replaced with the following:
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“(a)
If at
any time prior to satisfaction of the Promissory Note, the Purchaser delivers
a
Backstop Letter of Credit consistent with the terms provided for in Section
1.03(b)(iii)(Y), then Company shall release the Guarantee and the Security
Agreement delivered pursuant to Section 1.03(b)(iii)(X).”
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8.
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Except
as expressly amended herein, the APA shall remain otherwise unamended
and
in full force and effect.
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9.
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The
Parties hereby agree that the following exhibits to the APA are hereby
replaced with the exhibits attached hereto with the same
names:
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·
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Exhibit
1.03(b)(ii)– Form of Promissory
Note
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·
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Exhibit
1.06(a)(x)– Form of Diagnostic Development MSA
Agreement
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·
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Exhibit
1.06(a)(xi)– Form of Transition Services
Agreement
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Please
acknowledge your agreement to the terms set forth in this letter agreement
amending the APA by executing this letter and returning a copy to me not later
than December 12, 2007.
Regards,
GENE
LOGIC
INC. (Company):
By:
/s/
Xxxxxxx X. Xxxxxxx
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Xxxxxxx
X. Xxxxxxx, III, Chief Executive
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Officer
and President
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Acknowledged
and Accepted by:
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OCIMUM
BIOSOLUTIONS (INDIA) LIMITED
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(Parent):
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By: /s/
X.X. Xxxxxx
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Xxxxxx Xxxxxxxxxx, President and Chief
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Financial Officer
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OCIMUM
BIOSOLUTIONS INC.
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(Purchaser):
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By: /s/
X.X. Xxxxxx
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Xxxxxx Xxxxxxxxxx, President and Chief
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Financial Officer
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Date:
December 12, 2007