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EXHIBIT 10.46
OMNIBUS AMENDMENT AGREEMENT
This Omnibus Amendment Agreement (the "Amendment") is entered into this
18th day of December, 1996, by and between ChemGenics Pharmaceuticals Inc.
(formerly known as Myco Pharmaceuticals Inc.), a Delaware corporation
("ChemGenics") and PerSeptive Biosystems, Inc., a Delaware corporation
("PerSeptive" or "PBIO").
WHEREAS, ChemGenics and PerSeptive are parties to a Master Agreement dated
May 7, 1996 (the "Master Agreement");
WHEREAS, at the Closing under the Master Agreement, the parties executed
and delivered among other documents the various documents listed in Section 1.03
of the Master Agreement (the "Ancillary Agreements"), including without
limitation the Consulting and Interim Services Agreement, the Standstill and
Registration Rights Agreement and the Warrant (as such terms are defined in the
Master Agreement) and stock certificates for the Shares (as defined in the
Master Agreement); and
WHEREAS, ChemGenics and PerSeptive have agreed upon modifications to the
terms of the transaction reflected in the Master Agreement and the Ancillary
Agreements, and wish to set forth such modifications herein, to be effective
retroactively to the Closing Date (as defined in the Master Agreement), as if
initially set forth in the Master Agreement and the Ancillary Agreements.
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained in the Master Agreement, the Ancillary Agreements and this Amendment,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties, intending to be legally bound, agree
as follows:
1. Definitions.
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1.1 Terms which are defined in the Master Agreement and the Ancillary
Agreements are used herein as so defined.
2. Amendments to the Master Agreement.
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The Master Agreement is hereby amended as follows:
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2.01 The first seven lines of Section 1.01.B are deleted from the Master
Agreement, and the following is inserted in lieu thereof:
"In consideration for the License Agreement and the transfer of
the Transferred Assets, upon the terms and subject to the
conditions set forth in this Agreement, on the Closing Date,
ChemGenics shall issue to PerSeptive an aggregate of 6,792,679
shares (the "Shares") of ChemGenics' Common Stock, $.001 par
value per share (the "Common Stock") and shall deliver to
PerSeptive a Promissory Note in the principal amount of
$3,000,000, such Note to be in the form of Exhibit 1.03(B). Of
such shares, 662,500"
Section 1.01(B) is further amended by deleting the numbers "979,268,
652,844 and 326,422" from the chart on page 3, and inserting, in lieu
thereof, the numbers "662,500, 441,667 and 220,833".
2.02 Section 8.04 is amended by deleting clause (ii) thereof, and inserting
in lieu thereof the following:
"(ii) PerSeptive will agree to restrictions on its sale or
transfer of Capital Stock of ChemGenics,"
2.03 Section 8.06 is amended by deleting the text thereof in its entirety,
and replacing it with the following:
"ChemGenics will use commercially reasonable efforts to
accomplish an underwritten registered initial public offering of
its Common Stock (a "Public Offering"), in which ChemGenics will
seek to raise at least $15,000,000 in gross proceeds on or before
June 30, 1997. If a Public Offering is not consummated by June
30, 1997, then PerSeptive will deliver to ChemGenics a
certificate for 2,000,000 of the Shares delivered to PerSeptive
hereunder, leaving PerSeptive with an aggregate of
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4,792,679 Shares, and ChemGenics will deliver to PerSeptive a
Promissory Note in the principal amount of $2,000,000 in the form
of Exhibit 8.06. PerSeptive shall at its own cost, assist and
cooperate with ChemGenics as ChemGenics may reasonably request in
effecting the Public Offering in a timely manner."
2.04 Section 8.07 is deleted from the Master Agreement.
2.05 It is understood and agreed that the terms of Exhibits 1.03(C)(i),
1.03(C)(ii), 1.03(C)(iii), 1.03(C)(iv) and Exhibit 1.03(C)(v) are
superseded in their entirety by the agreements executed at the Closing
as amended by this Agreement.
2.06 The last sentence of Section 8.03 and clause (i) of Section 10.15 of
the Master Agreement are hereby deleted from the Master Agreement.
3. AMENDMENT OF CONSULTING AND INTERIM SERVICES AGREEMENT. The Consulting and
Interim Services Agreement is hereby amended as follows:
3.01 Section 3 is amended by adding the following sentence immediately
after the first sentence thereof:
"The Supplies will be provided free of charge until the later of
(i) March 31, 1997 or (ii) the closing of the first Public
Offering (as defined in the Master Agreement), and thereafter
will be supplied for the balance of the three-year period at a
price equal to (a) fully-burdened manufacturing cost for Supplies
manufactured by PBIO, and (b) and the actual cost of acquisition
for Supplies distributed by PBIO."
3.02 Section 4.A is amended by deleting the words "During the three year
period commencing on the date hereof, PBIO shall loan to ChemGenics"
at the beginning thereof, and replacing them with the words:
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"Until the earlier of (i) June 30, 1997 or (ii) the closing of
the first Public Offering (as defined in the Master Agreement),
PBIO shall loan to ChemGenics, and thereafter through June 27,
1999, shall sell to ChemGenics at fully-burdened manufacturing
cost for Equipment manufactured by PBIO and the actual cost of
acquisition for Equipment distributed by PBIO"
Section 4.A is further amended by adding the phrase "or sold as
provided above" following the word "loaned" in the twelfth line on
page 4.
3.03 Section 5 is amended by deleting the numbers "979,268, 652,844 and
326,422" from the chart on page 7, and inserting, in lieu thereof, the
numbers "662,500, 441,667 and 220,833".
3.04 Section 9 is amended by deleting the third sentence thereof and
inserting the following:
"PBIO will on demand pay or reimburse ChemGenics for the payment
of all Severance Pay and other severance related costs in excess
of the Space Value for Drug Discovery Program Employees
terminated on or before the earlier of the closing of the Public
Offering or March 31, 1997."
and by adding the following to the last sentence of the first
paragraph thereof:
", provided the employment of such employee is terminated on or
before the earlier of the closing of the Public Offering or March
31, 1997."
4. AMENDMENT OF STANDSTILL AND REGISTRATION RIGHTS AGREEMENT. The Standstill
and Registration Rights Agreement is hereby amended as follows:
4.01 The number 9,792,679 in the first "whereas" clause is replaced with
the number 6,792,679.
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4.02 Section 2.02 is amended by deleting the first paragraph thereof, but
not subparagraphs (a), (b), (c) and (d), and replacing it with the
following:
"A. PBIO agrees that until the Initial Release Date (which shall
be the earlier of (i) twelve months following the Closing of the
Company's first Public Offering ("IPO") or (ii) December 30,
1998), it will not, nor will it permit any of its affiliates or
associates, to (x) distribute to its shareholders, or (y) sell,
solicit an offer to sell, agree to sell, offer or propose to sell
(collectively, "Sell") any Voting Securities of the Company or
derivative securities relating thereto ("Company Securities").
After such period:
(1) (a) during the period from the Initial Release Date until six
(6) months thereafter, PBIO may distribute to the shareholders of
PBIO (i) up to one-third of the number of shares of ChemGenics
Common Stock held by PBIO as of the earlier of the closing of the
IPO or December 30, 1998, excluding for this purpose any shares
of ChemGenics Common Stock issued upon exercise of the Warrant
(the "Non-Warrant Shares") and/or (ii) up to one-third of the
number of shares of Common Stock issuable to PBIO upon exercise
of the Warrant ("Warrant Shares"), but only to the extent PBIO
has exercised the Warrant and acquired Warrant Shares ("Exercised
Warrant Shares"), (b) in the next two succeeding six-month
periods thereafter, PBIO may distribute to its shareholders (i)
up to one-third of the Non-Warrant Shares and/or (ii) up to
one-third of the Exercised Warrant Shares and/or (iii) the
Non-Warrant Shares and the Exercised Warrant Shares permitted
to be
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but not distributed by PBIO in the prior six-month period and (c)
thereafter, subject to the following clause 3 of this paragraph,
Section 3.09 and applicable securities laws, PBIO shall be
permitted to distribute any or all of its Non-Warrant Shares and
Exercised Warrant Shares to its shareholders;
(2) (a) during the six-month period beginning on the earlier of
(i) 18 months from the closing of the Company's IPO or (ii)
December 30, 1998, PBIO may Sell up to one-third of PBIO's
Non-Warrant Shares and/or up to one-third of PBIO's Exercised
Warrant Shares and (b) in the next two succeeding six-month
periods thereafter, PBIO may Sell an additional one-third of
PBIO's Non-Warrant Shares and/or up to one-third of PBIO's
Exercised Warrant Shares and/or PBIO's Non-Warrant Shares and
Exercised Warrant Shares permitted to be but not sold by PBIO in
the prior six-month period and (c) thereafter, subject to the
following clause 3 of this paragraph, Section 3.09 and applicable
securities laws, PBIO shall be permitted to Sell any or all of
its Non-Warrant Shares and Exercised Warrant Shares; and
(3) In addition to the restrictions and limitations set forth in
the preceding clauses, in any six (6) month period ending on (i)
twenty four (24) months after the closing of the IPO, if the IPO
closes on or before June 30, 1997 or (ii) until the later of
twelve months after the closing of the IPO or June 30, 1999 if
the IPO closes after June 30, 1997, PBIO shall not distribute or
Sell more than a total of one-third of the Non-Warrant Shares and
one-third of the Exercised Warrant
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Shares. As used herein, "Public Offering" shall mean an
underwritten public offering of ChemGenics Common Stock
registered with the SEC. Notwithstanding the foregoing:"
4.03 Section 3.01 is amended by deleting the words commencing immediately
following the words "PROVIDED, HOWEVER," where appearing in the first
sentence thereof and ending with the word "Shares" at the beginning of
the fifth line on page 6 and inserting the following words: "that the
Company shall not be required to include in any such registration
statement any Registrable Shares which PBIO is not permitted to Sell
pursuant to the initial paragraph of Section 2.02 and provided further
that as a condition to including any shares issued or issuable upon
exercise of the Warrant ("Warrant Shares")
4.04 Sections 3.01 and 3.02 are amended by deleting the words "at any time
after the third anniversary of this Agreement" from the first sentence
thereof and replacing them with the words "at any time when PBIO is
permitted to Sell Company Securities pursuant to the initial paragraph
of Section 2.02,".
4.05 Section 3.09 is amended by inserting after the words "held by it"
where appearing in the first sentence thereof, the following words:
"for such period of time, and on such other terms, as shall be agreed
to among the Company, the underwriters and a majority of the venture
capital partnerships that hold Company Securities as of the IPO, nor
will PBIO permit any of its affiliates to do any of the foregoing" and
deleting the remainder of the first sentence. Section 3.09 is further
amended by deleting the words "180-day" where appearing in the last
sentence thereof and inserting the words "agreed-upon."
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5. Exchange of Warrants.
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5.01 Contemporaneously with the execution hereof, PerSeptive will deliver
to ChemGenics the Warrant as delivered at the Closing, and ChemGenics
shall deliver to PerSeptive a new Warrant in the form attached hereto.
The new Warrant shall, for all purposes, be deemed to be the "Warrant"
under the Master Agreement and the Ancillary Agreements.
6. EXCHANGE OF STOCK CERTIFICATES. Contemporaneously with the execution
hereof, PerSeptive shall deliver to ChemGenics certificates numbered
C0028-31 for 8,813,411, 326,423, 326,423 and 326,422 shares of Common Stock
of ChemGenics and ChemGenics shall deliver to PerSeptive certificates for
4,130,179, 2,000,000, 220,833, 220,833 and 220,834 shares of Common Stock
of ChemGenics.
7. NO OTHER CHANGES. In all other respects, the Master Agreement and the
Ancillary Agreements shall not be affected hereby, and shall remain in
force and effect as initially executed and delivered.
IN WITNESS WHEREOF, ChemGenics and PerSeptive have executed this Amendment
as of the day and year first above written.
CHEMGENICS PHARMACEUTICALS INC.
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
President
PERSEPTIVE BIOSYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
President
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