December 14, 2007
Exhibit
10.99(b)
December
14, 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
No. 2 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”), amended by that
certain letter agreement made by and among Company, Purchaser and
Parent
dated December 12, 2007
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Gentlemen:
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.
1. Waiver
and Indemnification. In consideration for proceeding to a
Closing, including the waiver by Purchaser and Parent of the condition precedent
pursuant to Section 1.06(a)(v) that a third party’s signature be obtained, the
Parties have agreed as follows:
A. Section
7.09 is deleted in its entirety and replaced with the following:
“Section
7.09. Exclusive Remedies. The remedies of the
parties set forth in this Article VII and Article XI are intended
to be the sole and exclusive remedies and sole and exclusive liabilities of
the
parties for all matters related to breaches of this Agreement, or the
Transactions contemplated by this Agreement, regardless of the legal theory
pursuant to which liability is claimed, except for (i) the remedies of
injunctive relief provided in Section 10.09 with respect to the specific
matters to which such Section relates and (ii) in the case of
fraud.
B. Article
XI below is inserted to follow Article X.
“ARTICLE
XI
LEASE
INDEMNIFICATION
Section
11.1 Indemnification
by Company. Subject to the limitations contained in this
Article VII, (i) Company shall, from and after Closing, indemnify and
hold Purchaser, Parent and their respective affiliates harmless and (ii)
Purchaser and Parent shall, from and after Closing, indemnify and hold Company
and its affiliates harmless against all Lease Losses (as hereinafter
defined).
Section
11.2 Lease
Losses. For purpose of this Agreement, “Lease Losses” shall mean
one-half (1/2) of the aggregate amount of all claims, losses, liabilities,
damages, deficiencies, penalties, costs and expenses, including, without
limitation, increases in rent, relocation expenses to the extent of packing,
moving, storage and transportation costs, reasonable expenses of investigation
and reasonable attorneys’ fees and expenses, incurred by any Party hereto in
connection with any Legal Action, which (i) arise from, are related
to or are in connection with a claim or assertion by the landlord under the
00
Xxxx Xxxxxxx Xxxx Xxxx Lease, or its successors or assigns (“Landlord”), that
the execution, delivery and performance by the Parties of the 50 West Xxxxxxx
Lease Assignment and Assumption Agreement without, or prior to, the Landlord
providing consent, if any, required pursuant to the 00 Xxxx Xxxxxxx Xxxx Xxxx
Lease was improper, a breach or an event of default, and (ii) are in excess
of
the base rent and additional rent, as those terms are defined in the 00 Xxxx
Xxxxxxx Xxxx Xxxx Lease. Notwithstanding the foregoing, “Lease
Losses” shall expressly not include lost revenues or profits of a
Party.
Section
11.3 Indemnification
Additional. Notwithstanding anything to the contrary elsewhere in
this Agreement, (i) the indemnification in this Article XI is in addition to,
and not in lieu of, the indemnification set forth in Article VII, and
(ii) the provisions of Sections 7.03 and 7.04 shall not apply to this Article
XI. The Parties agree that the procedures set forth in Section 7.07,
(“Third Party Claims”) shall apply to this Article XI.
Section
11.4 Termination. The
provisions of this Article XI shall terminate upon the earlier to occur of:
(i)
the written consent of the Landlord to the assignment and assumption of the
00
Xxxx Xxxxxxx Xxxx Xxxx Lease without any conditions or changes to such lease,
(ii) the written agreement of the Parties or (iii) the date of the expiration
of
the statute of limitations applicable to the subject matter thereof to which
the
claim for indemnification relates.
2. Except
as expressly amended herein, the APA shall remain otherwise unamended and in
full force and effect.
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Please
acknowledge your agreement to the terms set forth in this letter agreement
further amending the APA by executing this letter and returning a copy to me
not
later than December 14, 2007.
Regards,
GENE
LOGIC
INC. (Company):
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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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{Signature
Page to APA Amendment No. 2}
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