Exhibit 2.2
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment") is
dated as of March 17, 2004 (the "Effective Date"), by and between ANTIGENICS
INC., a Massachusetts corporation and a wholly-owned subsidiary of ANTIGENICS
INC., a Delaware corporation, having its offices at 0 Xxxxxx Xxxx, Xxxxxxxxx, XX
00000 X.X.X. ("SELLER") and PP MANUFACTURING CORPORATION, a Delaware corporation
that will have offices located on or after the Closing at 000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx, 00000-0000 ("SUB") and VIRBAC S.A., a
French corporation having its offices at 1 ere Avenue-2065 m X.X.X.-00000 XXXXXX
XXXXXX ("PARENT," and together with SUB, "BUYER"). Capitalized terms used in
this Amendment and not otherwise defined herein shall have those meanings
attributed to them in the Agreement (as defined below).
WITNESSETH
WHEREAS, SELLER and BUYER are parties to that certain Asset Purchase
Agreement dated December 10, 2003 (the "Agreement"); and WHEREAS, SELLER and
BUYER desire to amend the Agreement, to provide for, among other things, the
acknowledgement that the Permits (as defined therein) relating to USDA Product
Licenses are Non-Transferable Permits.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth below, the parties hereby agree as follows:
1. The third "WHEREAS" clause contained in the preamble to the Agreement
is hereby deleted in its entirety and replaced with the following:
WHEREAS, SELLER desires to sell to SUB, and SUB desires to purchase
from SELLER, certain equipment and other tangible assets listed on
Schedule 1.1.1 hereto and utilized (i) in the manufacture of (x) the
antigen described in Appendix B to this Agreement ("P45") and (y) a
veterinary grade extract of Quillaja Saponaria bark as more
specifically described on Appendix C to this Agreement ("QA-21
Adjuvant"), and (ii) to fulfill SUB's obligations under the Supply
Agreement (as defined in Section 1.6.2(j) below);
2. Schedule 1.1.1 of the Agreement is hereby amended to add the following
items as Tangible Assets:
HPLC RELATED EQUIPMENT:
Prep-Systems:
Dynamax SD-1 Pumps (pair) A (01157) B (01156)
with 800 ml/min. heads
ProStar Load Pump (200 ml) 141814
Absorbance Detector (UV-1) E30566
Fraction Collector (FC-1) 188098
COLUMNS:
5 cm Prochrom (w/ Jacket) N/A
11 cm Prochrom 413-10-VE-95
Solvent Ex. Clmn. (5 x 25 cm) N/A
ANALYTIC SYSTEMS:
HP Solvent Delivery System 135941 / 132923
with Pump A and B
Xxxxxx Detector 35633
Pressure Monitor 136214
Xxxxxx Injector 132378
Dilutor 649F2S-808
Control Xxx X00000
COMPUTERS:
Dell Opti-Plex System PC ( 84ZHT01) Screen (9172802101
80709670H7K421 H) Xxx X-4 HPLC System G-4 (XB0202FUHSE) Disk
Drive (1010118178A) Screen (EW01602555)
MAJOR ITEMS:
Water Bath (VWR) 704406
UPS System 328601014
UPS System 328601024
Explosion Proof Refrigerator 1538 / ANTI0049
3. Schedule 2.7 of the Agreement is hereby deleted in its entirety and
replaced with the Schedule 2.7 attached hereto and incorporated herein.
4. Section 4 of the Agreement is hereby amended by adding the following
Section:
4.12. USDA Product Licenses. SELLER and BUYER acknowledge and agree
that obtaining permits substantially similar to the Non-Transferable
Permits set forth on Schedule 2.7 of the Agreement identified as "USDA
Product Licenses" is necessary in order for the parties to effectuate
the purposes for which they have entered into this Agreement.
Therefore, the parties acknowledge and agree that, in the event that,
notwithstanding its good faith, best efforts, BUYER is unable to obtain
such permits within ninety (90) days of the Closing Date (or such
longer period as may be necessary to obtain the permits in the event
the submitted applications are delayed at the USDA and remain under
consideration), and BUYER is not able to legally operate the
Manufacturing Site without such permits, then the parties shall use
their good faith, best efforts to work together to put the parties back
in the positions that they would have been in had the Closing not taken
place and the Agreement had been mutually terminated without further
liability to either party for failure of a condition precedent to the
Closing to be met.
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5. Section 4 of the Agreement is hereby amended by adding the following
Section:
4.13. Assignment of Prime Lease. SELLER agrees that from and after
the Closing Date until December 31, 2004 BUYER may, at its sole option,
by written notice to the SELLER (the "Assignment Notice") request that
the SELLER request that the Prime Lessor (as defined in the Sublease)
consent to an assignment (the "Assignment") of the Prime Lease (as
defined in the Sublease) by SELLER to SUB or PARENT. SELLER hereby
agrees that it will in good faith use commercially reasonable efforts
to negotiate an assignment with BUYER and assist BUYER to effect such
an assignment on terms that are reasonably acceptable to BUYER for
sixty (60) days after the date of the Assignment Notice. If the
Assignment is not complete within said sixty (60) day period, SELLER
shall not be obligated to make further efforts with respect to the
Assignment; provided, however, that so long as BUYER, SELLER and Prime
Lessor have made and continue to make significant progress in the
negotiation of the Assignment, SELLER shall continue in good faith to
make commercially reasonable efforts to complete the Assignment for a
reasonable period of time after said sixty (60) day period. BUYER
agrees that it will reimburse SELLER and Prime Lessor for all costs and
expenses incurred by SELLER or Prime Lesser, as the case may be, in
connection with the Assignment regardless of whether the Assignment is
executed, including attorney's fees; provided that, BUYER shall not
reimburse or pay to SELLER and/or Prime Landlord, any consideration for
the Assignment unless BUYER has provided its prior consent to such
consideration. However, SELLER shall not be required to pay Prime
Landlord any consideration for the Assignment. BUYER acknowledges and
agrees that in accepting any such assignment of the Prime Lease it
shall also assume all of SELLER's obligations under any subleases of
the Premises (as defined in the Sublease). BUYER further agrees that it
shall provide Prime Landlord and SELLER with reasonable and customary
guarantees and indemnities in the documentation related to the
assignment of the Prime Lease, including without limitation an
indemnity by the assignee in favor of the SELLER for any loss, cost or
damage that SELLER may incur under the Prime Lease from and after the
date of the Assignment and a guaranty of such indemnity by PARENT if
SUB is the assignee. In addition, BUYER understands and agrees that in
the event that the Assignment is effected, upon the effective date of
the Assignment, all of SELLER's obligations and agreements related to
and contained in the third full paragraph of Section 6 of the Sublease
(i.e., the obligations and agreements related to "Restoration Costs" as
such term is defined in the Sublease) shall be extinguished and void
and shall no longer be enforceable against BUYER or SELLER.
6. BUYER acknowledges that any and all representations, warranties and
other covenants or agreements related to the specific Tangible Assets identified
on Exhibit A hereto, may under certain circumstances be subject to certain
claims of the Prime Landlord as described and set forth in the written consent
of the Prime Landlord related to the Sublease Agreement or in the Prime Lease.
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7. Section 9.4 (ii) of the Agreement is hereby amended by deleting it in
its entirety and replacing it with the following:
(ii) if to SELLER, to:
Antigenics Inc.
0 Xxxxxx Xx.
Xxxxxxxxx, XX 00000
Attn: Vice President, Business Development
With a copy to:
Antigenics Inc.
0 Xxxxxx Xx.
Xxxxxxxxx, XX 00000
Attn: Senior Attorney
8. Except as set forth in this Amendment, the Agreement shall remain in
full force and effect.
9. This Amendment shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, U.S.A. without regard to the
conflicts of law principles thereof.
10. This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a number of copies hereof each signed by less
than all, but together signed by all of the parties hereto.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Asset Purchase Agreement under seal as of the date first above
written. SELLER:
ANTIGENICS INC., a Massachusetts corporation
and a wholly-owned subsidiary of ANTIGENICS
INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President, Business Development
PARENT:
VIRBAC, S.A., a French corporation
By: /s/ Pierre PAGES
---------------------------------------
Name: Pierre PAGES
Title: Directeur General
SUB:
PP MANUFACTURING CORPORATION, a
Delaware corporation
By: /s/ Pierre PAGES
---------------------------------------
Name: Pierre PAGES
Title: President
SCHEDULE 2.7
PERMITS
Transferable Permits:
--------------------
None.
Non-Transferable Permits:
------------------------
USDA Product Licenses:
o USDA A555.R1 (antigen)
o USDA A555.R0 (vaccine)
o USDA Establishment license 317
MWRA (Massachusetts Water Resource Authority) Waste Water Permit
Flammable Storage Permit (Fire department)
Department of Public Health, Controlled Substance Permit
Department of Environmental Protection- Hazardous Waste
Recombinant DNA Permit (town)
EXHIBIT A
Tangible Assets that May Be Subject to Landlord Claims
Autoclave #5 Room 215
Depyrogenation Oven Room 215
Solvent Delivery System
Integral Diaphragm Pump/Filtration System
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