AMENDMENT TO ASSET PURCHASE AGREEMENT
Exhibit
2.2
***
Text Omitted and Filed Separately
Confidential
Treatment Requested
Under
17 C.F.R. §§ 200.80(b)(4) and 17 C.F.R. 24b-2
AMENDMENT
TO ASSET PURCHASE AGREEMENT
This
Amendment
(the “Amendment”)
to that certain Asset Purchase Agreement (the “Asset
Purchase Agreement”),
dated as of November 29, 2010, by and among PGxHealth, LLC, a Delaware limited
liability company (“Seller”),
Clinical
Data, Inc., a Delaware corporation (“Seller
Parent”), and Transgenomic,
Inc., a Delaware corporation (“Buyer”),
amends the Asset Purchase Agreement effective as of this 29th day of December,
2010, as follows:
Whereas,
Buyer has determined to extend offers of employment to a greater number of the
Business Employees than was previously contemplated by the Parties, thereby
decreasing the amount of severance payable to certain Business
Employees;
Whereas,
in connection with the sublease of the Leased Real Property to Buyer, Seller and
Seller Parent will be required to make certain modifications to the Leased Real
Property to accommodate Buyer’s occupation of such space and, in doing so, will
incur certain costs related thereto; and
Whereas,
in connection with the foregoing, the Parties have agreed to adjust certain
payment provisions in the Asset Purchase Agreement.
Now,
Therefore, in consideration of the covenants and agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the Parties hereto
covenant and agree as follows:
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1.
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All
capitalized terms not otherwise defined herein shall have their respective
meanings as defined in the Asset Purchase
Agreement.
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2.
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Section
2.2(c) of the Asset Purchase Agreement is hereby deleted in its entirety
and is replaced by the following:
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“(c)
issue to Seller the Second Note in the initial aggregate principal amount of
$988,500 (the “Second Note
Consideration” and, together with the First Note Consideration and the
Closing Cash Consideration, the “Closing
Consideration”).”
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3.
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The
table set forth in Section 2.3 of the Asset Purchase Agreement is hereby
deleted in its entirety and is replaced by the
following:
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Collected A/R Amount
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Percentage Owed
to Seller
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First
$1,000,000 collected during the A/R Collection Period
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[…***…]%
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Next
$1,500,000 collected during the A/R Collection Period
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[…***…]%
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All
remaining amounts collected during the A/R Collection
Period
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[…***…]%
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*Confidential
Treatment Requested
1
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4.
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No Further
Amendments. The Asset Purchase Agreement and all terms
therein not so amended by this Amendment shall remain in full force and
effect pursuant to its terms as amended hereby. In the event of
a conflict or inconsistency between this Amendment and the Asset Purchase
Agreement and the exhibits thereto, the provisions of this Amendment shall
govern.
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5.
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Counterparts. This
Amendment may be executed in counterparts and by facsimile signatures, any
one of which need not contain the signatures of more than one Party and
each of which shall be an original, but all such counterparts taken
together shall constitute one and the same instrument. The
exchange of copies of this Amendment and of signature pages by facsimile
transmission or by e-mail transmission in portable digital format (or
similar format) shall constitute effective execution and delivery of such
instrument(s) as to the Parties and may be used in lieu of the original
Amendment for all purposes. Signatures of the Parties
transmitted by facsimile or by e-mail transmission in portable digital
format (or similar format) shall be deemed to be their original signatures
for all purposes.
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6.
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References. Upon
effectiveness of this Amendment, all references in the Asset Purchase
Agreement to “the Agreement,” “hereunder,” “herein,” “hereof,” or words of
like import referring to the Asset Purchase Agreement shall be deemed to
refer to the Asset Purchase Agreement, as
amended.
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7.
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Entire
Agreement. This Amendment reflects the entire agreement
of the Parties with respect to its subject matter, and supersedes all
previous written or oral negotiations, commitments and writings with
respect to such subject matter. This Amendment shall be binding
upon and inure to the benefit of the Parties hereto and their respective
successors and assigns. This Amendment and any provisions
hereof may not be modified, amended, waived, extended, or changed orally,
but only by an agreement in writing signed by the Party (or Parties)
against whom the enforcement of any modification, amendment, waiver,
extension, or change is sought.
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8.
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[Remainder
of Page Intentionally Left Blank]
2
In Witness
Whereof, Seller, Seller Parent and Buyer have executed this Amendment to
Asset Purchase Agreement as of the date first above mentioned.
| SELLER: | ||
| PGxHealth, LLC | ||
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By:
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PGxHealth
Holding, Inc.
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Its:
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Sole
Member
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By:
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/s/ Xxxxxx X.
Xxxxxx
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Xxxxxx
X. Xxxxxx
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Executive
Vice President and Chief Legal
Officer
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| SELLER PARENT: | ||
| Clinical Data, Inc. | ||
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By:
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/s/ Xxxxxx X.
Xxxxxx
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Xxxxxx
X. Xxxxxx
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Executive
Vice President and Chief Legal
Officer
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| BUYER: | ||
| Transgenomic, Inc. | ||
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By:
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/s/ Xxxxx X.
Xxxxxx
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Xxxxx
X. Xxxxxx
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President
and Chief Executive
Officer
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Signature
Page to Amendment to Asset Purchase Agreement
