exv10w52



 


Exhibit 10.52



[EXECUTION COPY]




FIRST AMENDMENT,



dated as of September 2, 2003,



to the



ASSET SALE AND PURCHASE AGREEMENT,



dated as of July 21, 2003,



by and among



FERMPRO MANUFACTURING, LP,



ASTRAL TECHNOLOGIES, INC.,



the LIMITED PARTNERS

of Seller identified on Schedule 1 to the Purchase Agreement,



and


MARTEK BIOSCIENCES CORPORATION







 






 





FIRST AMENDMENT TO ASSET SALE AND PURCHASE AGREEMENT


     THIS
FIRST AMENDMENT, dated as of September 2, 2003 (this
“Amendment”), is
made in respect of the Asset Sale and Purchase Agreement, dated as of July 21,
2003 (the “Purchase Agreement”), by and among FermPro Manufacturing, LP, a
Georgia limited partnership (“Seller”), Astral Technologies, Inc., a South
Carolina corporation and the general partner of Seller
(“Astral”), the limited
partners of Seller identified on Schedule 1 to the Purchase Agreement (the
“Management Employees”) and Martek Biosciences Corporation, a Delaware
corporation (“Martek”). Capitalized terms used but not defined herein shall
have the meanings given to such terms in the Purchase Agreement, as amended by
this Amendment. Unless otherwise specified, section references herein refer to
section references set forth in the Purchase Agreement, as amended by this
Amendment.


     Each of the parties hereto agree to amend the Purchase Agreement upon the
terms and conditions set forth herein.


STATEMENT OF AGREEMENT



     NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, for
themselves and their successors and assigns, agree as follows:


ARTICLE I



AMENDMENT TO PURCHASE AGREEMENT



     Section 1.1 Section 1.2(d) is hereby amended to read in full as follows:



		
	 	     (d) Martek hereby acknowledges that Seller will distribute the
Initial Shares to Astral, the Management Employees and the other limited partners of
Seller as specified on Schedule 1.2(d) attached hereto (Astral, the
Management Employees and such other limited partners, the “Partners”)
effective as of the Closing Date and that, at Closing, Martek shall cause
to be issued certificates evidencing the Initial Shares to the Partners
in the denominations reflected on Schedule 1.2(d).



     Section 1.2 Sections 2.28 and 2.29 are hereby to read in full as follows:



		
	 	     “2.28. Investment Intent




		
	 	           Except
as contemplated by Section 1.2(d), each of Seller and each
Partner is acquiring the Initial Shares to be issued at Closing for its
own account, and neither Seller nor any Partner is acquiring the Initial
Shares with the view to, or for resale in connection with, any
transaction that would be in violation of the Act.




		
	 	     2.29. Experience




		
	 	           Each of Seller and each Partner: (i) has specific knowledge and
experience in financial and business matters such that it is capable of
evaluating the



2






 







		
	 	merits and risks of its purchase of the Initial Shares; (ii) is an
“accredited investor” within the meaning of Rule 501 under the Act; and
(iii) understands and is able to evaluate the Initial Shares and is able
to bear any economic risks associated with such investment (including,
without limitation, the necessity of holding the securities as may be
required by Section 4, inasmuch as the Initial Shares to be issued at
Closing will not have been registered under the Act or any state
securities laws at the time of the Closing).”



     Section 1.3 Article 4 of the Purchase Agreement is hereby amended by
making the blacklined changes to such article as set forth in
Exhibit A
attached hereto.


     Section 1.4 Section 26 is hereby amended by inserting in appropriate
alphabetical order a new definition which shall read in full as follows:


“Partners” shall
have the meaning specified in Section 1.2(d).



ARTICLE II



MISCELLANEOUS



     Section 2.1 Any individual or collective references to the Purchase
Agreement in any of the other documents delivered in connection with the
Purchase Agreement (collectively, the “Transaction
Documents”) shall mean,
unless otherwise specifically provided, the Purchase Agreement, as amended by
this Amendment. In addition, as used in the Purchase Agreement and the
Transaction Documents, the words “hereinafter,” “hereto,” “hereof,” and words
of similar import shall, unless the context otherwise requires, mean the
Purchase Agreement, as amended by this Amendment. However, all other terms
and provisions of the Purchase Agreement and the Transaction Documents shall
continue in full force and effect and unchanged and are hereby confirmed in all
respects by each of the parties hereto.


     Section 2.2 This Amendment, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by and
construed under and in accordance with the laws of the State of Maryland,
excluding the choice of law rules thereof.


     Section 2.3 This Amendment may be executed in separate counterparts, none
of which need contain the signatures of all parties, each of which shall be
deemed to be an original, and all of which taken together constitute one and
the same instrument. It shall not be necessary in making proof of this
Amendment to produce or account for more than the number of counterparts
containing the respective signatures of, or on behalf of, all the parties
hereto.


     Section 2.4 The parties hereto acknowledge that this Amendment complies in
all respects with Section 22 of the Purchase Agreement.


3






 


     IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or has caused this Agreement to be duly executed and delivered in
its name on its behalf, all as of the day and year first above written.



	 	 	 	 	 
	WITNESS:	 	SELLER:
	 	 	 	 	 
	[Seal]	 	FermPro Manufacturing L.P.
	 	 	 	 	 
	 	 	By: Astral Technologies, Inc., its General Partner
	 	 	 	 	 
	 	 	
By:	 	/s/ BARNEY B. EASTERLING, JR.
	
	 	 	 	

	 	 	 	 	Name: Barney B. Easterling
	 	 	 	 	Title: President and CEO
	 	 	 	 	 
	[Seal]	 	Astral Technologies, Inc.
	 	 	 	 	 
	 	 	
By:	 	/s/ BARNEY B. EASTERLING, JR.
	
	 	 	 	

	 	 	 	 	Barney B. Easterling, Jr.
	 	 	 	 	President and Chief Executive Officer
	 	 	 	 	 
	 	 	Management Employees:
	 	 	 	 	 
	
	 	/s/ FLINT HARDING, III

Flint Harding, III
	 	 	 	 	 
	
	 	/s/ RACHEL S. MONTGOMERY

Rachel S. Montgomery
	 	 	 	 	 
	
	 	/s/ MICHAEL L. HORTON

Michael L. Horton



S-1






 




	 	 	 	 	 
	
	 	/s/ H. RONALD EASLER

H. Ronald Easler
	 	 	 	 	 
	
	 	/s/ ROGER H. GAUSE

Roger H. Gause
	 	 	 	 	 
	
	 	/s/ BARNEY B. EASTERLING, JR.

Barney B. Easterling, Jr.
	 	 	 	 	 
	 	 	BUYER:
	 	 	 	 	 
	[Seal]	 	Martek Biosciences Corporation
	 	 	 	 	 
	 	 	
By:	 	/s/ GEORGE P. BARKER

	
	 	
Name:
	 	George P. Barker

	 	 	
Title:
	 	Sr. Vice President & General Counsel




S-2






 



Schedule 1.2(d)



	 	 	 	 	 
	Flint Harding, III
	 	5,287 Initial Shares
	Rachel S. Montgomery
	 	5,287 Initial Shares
	Michael L. Horton
	 	5,287 Initial Shares
	H. Ronald Easler
	 	5,287 Initial Shares
	Roger H. Gause
	 	5,287 Initial Shares
	Barney B. Easterling, Jr.
	 	5,287 Initial Shares
	Jack K. Howard, Jr.
	 	6,239 Initial Shares
	James W. Godfrey, Jr.
	 	11,950 Initial Shares
	Astral Technologies, Inc.
	 	        4 Initial Shares



 






 



Exhibit A


4. REGISTRATION EXPENSES AND PROCEDURES



     4.1. Registration Expenses And Procedures


          The Buyer shall:



          (a) no later than ten (10) days following the Closing Date, prepare and
file with the SEC a Registration Statement on Form S-3 or such other form as
may be appropriate (the “Registration Statement”) under Rule 415 under the Act
relating to the resale by the Partners of the Initial Shares issued to
the Partners at Closing from time to time on the NASDAQ National Market
or the facilities of any national securities exchange or over-the-counter
market on which Martek’s common stock is then traded or in privately-negotiated
transactions; provided that Martek’s obligations under this Section 4.1 are
contingent upon each Partner providing promptly all information concerning the
Partner and its or his proposed plan of distribution as Martek may reasonably
request in connection with its obligations herein;



          (b) use its commercially reasonable efforts to cause the staff of the SEC
to grant acceleration of the effective date of each Registration Statement as
soon as reasonably possible after the Registration Statement is filed by Martek
and promptly notify the Partners of the declaration of effectiveness and
will also promptly notify the Partners of any stop orders issued by the
SEC;



          (c) prepare and file with the SEC such amendments and supplements to the
Registration Statement and the prospectus used in connection therewith as may
be necessary to keep the Registration Statement effective until the earlier of
(i) two years after the Closing Date and (ii) the date on which all Initial
Shares may be resold by the Partners without registration by reason of
Rule 144(k) under the Act or any other successor rule of similar effect;



          (d) furnish
to the Partners with respect to the Initial Shares
registered under the Registration Statement such number of copies of
prospectuses and such other documents as the Partners may reasonably
request, in order to facilitate the public sale or other disposition of all or
any of the Initial Shares by the Partners;



          (e) file documents required of Martek for normal blue sky clearance in
states specified in writing by the Partners and keep such qualification
or registration in effect for so long as the Registration Statement is in
effect;



          (f) notify
the Partners at any time (i) when a prospectus or any
prospectus supplement or post-effective amendment with respect to the
Registration Statement is proposed to be filed; (ii) when the Registration
Statement has become effective; (iii) of any request by the SEC for amendments
or supplements to the Registration Statement or related prospectus or for
additional information; (iv) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceeding for

 






 




that purpose; (v) of the receipt by Martek of any notification with
respect to the suspension of the qualification or exemption from qualification
of any Initial Shares for sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose;



          (g) provide a transfer agent and registrar for all Initial Shares covered
by the Registration Statement not later than the effective date of the
Registration Statement;



          (h) bear all expenses in connection with the procedures in paragraphs (a)
through (l) of this Section 4.1 and the registration of the Initial Shares
pursuant to the Registration Statement, other than fees and expenses, if any,
of counsel or other advisers to the Partners or underwriting discounts,
brokerage fees and commissions incurred by the Partners.



          (i) cause the Registration Statement to comply as to form in all material
respects with the requirements of Form S-3 and include all financial statements
required to be filed therewith;



          (j) cause the New Shares to be listed on the NASDAQ National Market or
such principal securities exchange(s), or over-the-counter market as the shares
of Martek are then traded;



          (k) promptly
notify  the Partners of the existence of any fact of
which Martek becomes aware that results in the Registration Statement, the
prospectus related thereto or any document incorporated therein by reference
containing an untrue statement of a material fact or omitting to state a
material fact required to be stated therein or necessary to make any statement
therein not misleading, and promptly prepare and furnish to the Partners
a reasonable number of copies of a prospectus supplemented or amended so that,
as thereafter delivered to the Partners, such prospectus shall not
include any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
in the light of the circumstances under which they were made not misleading;
provided, however, that  as a condition to participating as a
selling shareholder under the Registration Statement, each Partner shall agree
that, upon receipt of any such notice from Martek or notice from Martek of the
existence of any state of facts (such as a pending major corporate transaction)
that would make the existence of an affirmative disclosure obligation by Martek
seriously detrimental to Martek, such Partner shall immediately
discontinue disposition of the Initial Shares until such Partner receives
copies of the supplemented or amended prospectus, or until it is advised in
writing by Martek that the use of the prospectus may be resumed, and has
received copies of any additional or supplemental filings which are
incorporated by reference in the prospectus, which period shall not exceed 60
consecutive days in any one instance or 120 calendar days in any twelve-month
period, and, if so directed by Martek, such Partners will deliver to
Martek all copies, other than permanent file copies then in such the
Partner’s possession, of the prospectus covering the Initial Shares current at
the time of receipt of such notice. In the event Martek shall give any such
notice, the time periods during which the Registration Statement shall be
maintained effective shall be extended by the number of days during the period
from and including the date of the giving of such notice to and including the
date when the Partner either receives the copies



 






 





of the supplemented or amended prospectus or is advised in writing by
Martek that the use of the prospectus may be resumed; and



          (l) take all such other commercially reasonable actions as are necessary
in order to expedite or facilitate the disposition of the Initial Shares in the
manner contemplated hereby.



     4.2. New Share Indemnification


          For
the purpose of this Section 4.2: (i) the term “Seller Affiliate”
shall mean any person who controls, or is controlled by or under common control
with any Seller Party within the meaning of Section 15 of the Act or Section 20
of the Exchange Act; and (ii) the term “Registration Statement” shall include
any final prospectus, exhibit, supplement or amendment included in or relating
to the Registration Statements referred to in Section 4.1.



          (a) Martek agrees to indemnify and hold harmless Seller Parties and each
Seller Affiliate and each Partner (collectively, the “Seller
Indemnified Parties”), against any losses, claims, damages, liabilities or
expenses, joint or several, to which Seller Indemnified Parties may become
subject, under the Act, the Exchange Act, or any other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of Martek, which shall not be unreasonably withheld), insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof
as contemplated below) (i) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, as amended at the time of effectiveness of the Registration
Statement, including any information deemed to be a part thereof as of the time
of effectiveness pursuant to paragraph (b) of Rule 430A, or pursuant to Rule
434, of the Rules and Regulations, or the prospectus, in the form first filed
with the SEC pursuant to Rule 424(b) of the Regulations, or filed as part of
the Registration Statement at the time of effectiveness if no Rule 424(b)
filing is required (the “Prospectus”), or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state in
any of them a material fact required to be stated therein or necessary to make
the statements in the Registration Statement or any amendment or supplement
thereto not misleading or in the Prospectus or any amendment or supplement
thereto not misleading in light of the circumstances under which they were
made, (ii) arise out of or are based on any violation or alleged violation by
Martek of any federal or state law, rule or regulation, or any common law,
applicable to Martek and relating to action required of or inaction by Martek
in connection with any such registration, or (iii) arise out of or are based in
whole or in part on any inaccuracy in the representations and warranties of
Martek contained in this Agreement, or any failure of Martek to perform its
obligations hereunder, and will reimburse the Seller Indemnified Parties for
any legal and other expenses as such expenses are reasonably incurred by the
Seller Indemnified Parties in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however,that Martek will not be liable in any
such case to any Seller Indemnified Party to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Prospectus or any amendment or

 






 




supplement thereto in reliance upon and in conformity with written
information furnished to Martek by such Seller Indemnified
Party expressly for use therein.



          (b) Promptly after receipt by any Seller Indemnified Party under this
Section 4.2  of notice of the threat or commencement of any action, the Seller
Indemnified Party will, if a claim in respect thereof is to be made against
Martek under this Section 4.2, promptly notify Martek in writing thereof; but
the omission so to notify Martek will not relieve it from any liability which
it may have to the Seller Indemnified Party for contribution or otherwise under
the indemnity agreement contained in this Section 4.2 except to the extent that
Martek incurs damages as a direct result of such failure. In case any such
action is brought against a Seller Indemnified Party and such Seller
Indemnified Party seeks or intends to seek indemnity from Martek, Martek will
be entitled to participate in, and, to the extent that it may wish, jointly
with all other indemnifying parties similarly notified, to assume the defense
thereof with counsel reasonably satisfactory to such Seller Indemnified Party;
provided, however, if the defendants in any such action include both the Seller
Indemnified Party and Martek and the Seller Indemnified Party shall have
reasonably concluded, based upon the advice of counsel, that there may be a
conflict between the positions of Martek and the Seller Indemnified Party in
conducting the defense of any such action or that there may be legal defenses
available to it and/or other Seller Indemnified Parties that are different from
or additional to those available to Martek, the Seller Indemnified Party or
parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf
of such Seller Indemnified Party or parties. Upon receipt of notice from
Martek to such Seller Indemnified Party of its election so to assume the
defense of such action and approval by the Seller Indemnified Party of counsel,
which approval shall not be unreasonably withheld or delayed, Martek will not
be liable to such Seller Indemnified Party under this
Section 4.2 for any legal
or other expenses subsequently incurred by such Seller Indemnified Party in
connection with the defense thereof unless (i) the Seller Indemnified Party
shall have employed such counsel in connection with the assumption of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that Martek shall not be liable for the expenses of more
than one separate counsel representing the Seller Indemnified Parties who are
parties to such action, plus one local counsel per jurisdiction, if
appropriate) or (ii) the Seller Indemnified Party shall not have employed
counsel reasonably satisfactory to the Seller Indemnified Party to represent
the Seller Indemnified Party within a reasonable time after notice of
commencement of action, in each of which cases the reasonable fees and expenses
of counsel shall be at the expense of Martek.



          (c) If
the indemnification provided for in this Section 4.2 is required by
its terms but is for any reason held to be unavailable to or otherwise
insufficient to hold harmless a Seller Indemnified Party under paragraphs (a)
or (b) of this Section 4.2 in respect to any losses, claims, damages,
liabilities or expenses referred to herein, then Martek shall contribute to the
amount paid or payable by such Seller Indemnified Party as a result of any
losses, claims, damages, liabilities or expenses referred to herein (i) in such
proportion as is appropriate to reflect the relative fault of Martek, on the
one hand, and the Seller Indemnified Party, on the other hand. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact, the omission or alleged
omission to state a material fact, the violation or alleged violation of law,
or the inaccuracy in the representations and warranties relate to information
supplied by Martek or the Seller Indemnified Party and the



 






 





parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement, omission or representation and
warranty. If the allocation provided in the second preceding sentence is not
permitted by applicable law, then Martek shall contribute to the amount paid or
payable by the Seller Indemnified Party in such proportion as is appropriate to
reflect not only such relative faults but also the relative benefits of Martek
and the Seller Indemnified Party as well as any other relevant equitable
considerations. The parties hereto agree that it would not be just and
equitable if contributions pursuant to this Section 4.2(c) were to be
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
preceding sentences of this Section 4.2(c). The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in paragraph (b) of this Section 4.2, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim. The provisions set forth in paragraph
(b) of this Section
4.2 with respect to the notice of the threat or commencement of any threat or
action shall apply if a claim for contribution is to be made under this
paragraph (c); provided, however, that no additional notice shall be required
with respect to any threat or action for which notice has been given under
paragraph (b) for purposes of indemnification pursuant to this
Section 4.2.
Martek and the Seller Indemnified Parties agree that it would not be just and
equitable if contribution pursuant to this Section 4.2 were determined solely
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in this paragraph. No
person guilty of fraudulent misrepresentation (within the meaning of
Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.


     4.3 Rule 144


Martek will take all such actions as may be reasonably required such that Rule
144 (or similar rule or regulation hereafter adopted) will be available in
connection with any sale of the New Shares by Seller Parties.