exv10w53



 


Exhibit 10.53






SECOND AMENDMENT ,



dated as of September 5, 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,



MARTEK BIOSCIENCES CORPORATION,



and



MARTEK BIOSCIENCES KINGSTREE CORPORATION







 






 


SECOND AMENDMENT TO ASSET SALE AND PURCHASE AGREEMENT



     THIS
SECOND AMENDMENT, dated as of September 5, 2003 (this “Second
Amendment”), is made in respect of the Asset Sale and Purchase Agreement, dated
as of July 21, 2003, 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”), Martek Biosciences Corporation, a Delaware corporation (“Martek”),
and, pursuant to the Joinder Agreement dated as of September 5, 2003 (the
“Joinder Agreement”), Martek Biosciences Kingstree Corporation, a Delaware
corporation and a wholly owned subsidiary of Martek, as Buyer under the
Purchase Agreement, as amended by the First Amendment to Asset Sale and
Purchase Agreement dated as of September 2, 2003 by and among each of the
parties referred to above (such Asset Sale and Purchase Agreement, as amended,
the “Purchase Agreement”). Capitalized terms used but not defined herein shall
have the meanings given to such terms in the Purchase Agreement, as amended by
this Second Amendment. Unless otherwise specified, section references herein
refer to section references set forth in the Purchase Agreement, as amended by
this Second 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(a)(i) is hereby amended by deleting the phrase “,
of which $75,000 already has been paid to Seller, in cash, as an earnest money
deposit (the “Deposit”), and the remainder of”.


     Section 1.2 Section 1.3 is amended by adding a new Section 1.3(e) which
shall read in full as follows:



		
	 	     (e)     Buyer agrees to pay Seller an amount equal to thirty percent
(30%) of the revenue obtained by Martek upon final sale of the following
lots of inventory produced by Seller prior to June 30, 2003: M325, P029,
P036, K666, and K668. This inventory will be sold on a FIFO basis along
with Martek’s other applicable inventory.



     Section 1.3 Section 2.25(e) is hereby amended by adding the phrase “as of
July 21, 2003,” after the words “possession or under its control” in the first
sentence thereof.


     Section 1.4 Article 4 of the Purchase Agreement is hereby amended by
adding a new Section 4.4 to read in full as follows:


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	 	     “4.4. S-8 Registration Statement




		
	 	          Martek shall take all corporate action necessary to reserve for
issuance a sufficient number of shares of its common stock for delivery
upon the exercise of all options issued under its 2003 New Employee Stock
Option Plan, including the options to be issued to the Management
Employees (the “2003 Plan Options”). As soon as reasonably practicable
after the Closing Date, Martek shall file a registration statement or
registration statements on Form S-8, or such other form as may be
appropriate, with respect to the shares of its common stock subject to
the 2003 Plan Options and shall use its reasonable efforts to maintain
the effectiveness of such registration statement or registration
statements (and maintain the current status of the prospectus or
prospectuses contained therein) for so long as such options remain
outstanding.”



      Section 1.5 Section 6.4 is hereby amended by (A) inserting the phrase
“subject to Section 4.4,” immediately after the first reference to “Martek
common stock,” in clause (ii) of such section and (B) replacing the term
“three-year” with the term “two-year” in clause (ii) of such section.


     Section 1.6 Section 9.2.13 is hereby amended by replacing the language set
forth therein with the word “Reserved.”


     Section 1.7 Section 9.3.6 is hereby amended by replacing the language set
forth therein with the word “Reserved.”


     Section 1.8 Section 9.2.21 is hereby amended to read in full as follows:



		
	 	     “9.2.21. Additional Environmental Reports




		
	 	          Copies of the Environmental Reports listed under Category 2 on
Schedule 2.25(e) and copies of Environmental Reports in Seller’s
possession or under its control since July 21, 2003 that relate to the
Property, compliance with Environmental Laws, or any other real property
that Seller formerly owned, operated or leased.”



     Section 1.9 Section 9.3.2(f) is hereby amended by replacing the language
set forth therein with the word “Reserved.”


     Section 1.10 Section 26 is hereby amended by (A) deleting the definition
of “Deposit,” (B) inserting in appropriate alphabetical order a new definition
which shall read in full as follows:



		
	 	     “2003 Plan Options” shall have the meaning specified in Section 4.4.”



and (C) inserting at the end of the definition of “Assumed Contracts the
following phrase:



		
	 	“;provided, however, that (i) the Settlement Agreement dated as of
August 27, 2003 between Jack Howard, Jr., Seller, Astral, and the
Management Employees, and (ii) the Settlement Agreement dated as of
September 2, 2003



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	 	     between James W. Godfrey, Jr., the Seller, Astral and the
Management Employees shall not be included in Assumed Contracts.”



     Section 1.11 Schedule 2.25(e) to the Purchase Agreement is hereby replaced
in full with Schedule 2.25(e) to this Second Amendment.


     Section 1.12 Exhibit H to the Purchase Agreement is hereby replaced in
full with Exhibit H to this Second Amendment.


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 Second 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 Second 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 Second 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 Second 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 Second 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 Second Amendment
complies in all respects with Section 22 of the Purchase Agreement.


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     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,
        LP
	 	 	 	 	 
	 	 	 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



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	 	/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 and General Counsel

	 	 	 	 	 
	[Seal]	 	Martek Biosciences Kingstree Corporation
	 	 	 	 	 
	
	 	
By:
	 	/s/ GEORGE P. BARKER

	 	 	
Name:
	 	George P. Barker

	 	 	
Title:
	 	Sr. Vice President and General Counsel





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EXHIBIT H



POST-CLOSING ESCROW AGREEMENT