Exhibit
10.5


 


Execution
Copy


 


Amendment
to ASSET PURCHASE AND COLLABORATION AGREEMENT


 


This
Amendment (this “Amendment”) to the Asset Purchase and Collaboration Agreement, dated as of June 26, 2015,
is dated as of July 15, 2016, by and between Pfizer Research (NC), Inc. (f/k/a Icagen, Inc.), a Delaware corporation (“Pfizer”
or the “Seller”), and Icagen Inc. (f/k/a XRpro Sciences, Inc.), a Delaware corporation (“Icagen”
or the “Buyer”).


 


WHEREAS,
Pfizer and Icagen are parties to that certain Asset Purchase and Collaboration Agreement, dated as of June 26, 2015 (the “Original
Agreement”);


 


WHEREAS,
Icagen-T, Inc., a Delaware corporation and a wholly-owned subsidiary of Icagen (the “Icagen-T”) has entered
into an Asset Purchase Agreement with Sanofi US Services Inc. (“Sanofi”) pursuant to which Icagen-T will acquire
Sanofi’s high-throughput biology, screening and chemistry capabilities and research facility in Oro Valley, Arizona (collectively,
the “Oro Valley Assets”) (the “Sanofi Agreement”); and


 


WHEREAS,
in connection with the closing of the transactions contemplated by the Sanofi Agreement, Icagen-T and Sanofi will enter into a
Master Services Agreement, substantially in form of Exhibit A to the Sanofi Agreement (the “Master Services Agreement”);


 


WHEREAS,
pursuant to Section 5.3(d) of the Sanofi Agreement, as a condition to closing the transactions contemplated by the Sanofi Agreement,
Icagen-T must deliver to Sanofi a written acknowledgment from Pfizer that any amounts paid by Sanofi to Icagen-T pursuant to the
Master Services Agreement or other Ancillary Agreement (as defined in the Sanofi Agreement) and any revenue generated by Icagen-T
will be excluded for purposes of calculating the earnout payments owed by Icagen to Pfizer under the Original Agreement;


 


WHEREAS,
in order to satisfy the foregoing condition, Pfizer and Icagen desire to amend the Original Agreement in accordance with Section
11.2 thereof;


 


NOW,
THEREFORE, in consideration of the foregoing, and the representations, warranties and agreements contained herein, Buyer and Seller
hereby agree as follows:


 


1.          Representations
and Warranties of Buyer. Buyer hereby represents and warrants
to Seller, as of the date hereof and at the Effective Time, that (i) attached as Exhibit 10.1.2 to the Current Report on Form
8-K of Icagen is a true and correct copy of the Sanofi Agreement, with the exception of (a) the omission of certain information
subject to confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended, and (b) certain minor modifications
to the Sanofi Agreement and the exhibits thereto made subsequent to execution of the Sanofi Agreement, none of which will have
a material adverse impact on Pfizer, and such agreement is in full force and effect; (ii) Icagen-T is a wholly-owned subsidiary
of Icagen; (iii) in connection with Sanofi Agreement, Buyer has agreed with Sanofi that for a period of five years it will hold
the Oro Valley Assets in a different legal entity than the Purchased Assets and to not integrate the operations of the Oro Valley
Assets with the Purchase Assets, and (iv) the condition set forth in Section 5.3(d) of the Sanofi Agreement has not been modified
or waived.


 




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2.          Amendments
to the Original Agreement.


 


1.1.       Section
1.1 of the Original Agreement is hereby amended by adding the following defined terms:


 


“Aggregate
Revenue” means consolidated revenue of Buyer and its Affiliates, calculated in accordance with GAAP consistently applied;
provided, however, that prior to the Integration Date, Aggregate Revenue will exclude amounts paid by Sanofi to Icagen-T under
the Sanofi Services Agreements or in connection with the operation by Icagen-T of the assets acquired under the Sanofi Agreement.


 


“Integration
Date” means the earlier of (i) the legal or operational integration by Buyer or its Affiliates of the Purchased Assets
with the Oro Valley Assets and (ii) the fifth anniversary of the closing of the Sanofi Agreement.


 


“Sanofi
Agreement” means the Asset Purchase Agreement, dated as of June 27, 2016, between Sanofi US Services, Inc. (“Sanofi”)
and Icagen-T, Inc. (the “Icagen-T”), pursuant to which Icagen-T will acquire Sanofi’s high-throughput
biology, screening and chemistry capabilities and research facility in Oro Valley, Arizona (the “Oro Valley Assets”)
and will provide services to Sanofi.


 


“Sanofi
Services Agreements” means the Master Services Agreement and other Ancillary Agreements (as such terms are defined in
the Sanofi Agreement) entered into by Icagen-T in connection with the Sanofi Agreement.


 


1.2.       Section
2.6(c) of the Original Agreement is hereby deleted in its entirety and replaced with the following:


 


“(c) In
addition to the Upfront Purchase Price and the Research Revenue Milestone, beginning in calendar year 2017, Buyer shall pay to
Seller quarterly earn out payments (“Earn Out Payments”, and together with the Upfront Purchase Price,
the “Purchase Price”) equal to the greater of (i) 10% of Aggregate Revenue for the relevant quarter or
(ii) $250,000.00, up to an aggregate maximum of $10 million in Earn Out Payments (the “Maximum Earn Out Payment”).
Earn Out Payments shall be payable within 60 days following the end of the applicable quarter. For the avoidance of doubt, the
first Earn Out Payment would be payable to Seller in May 2017 based on first quarter 2017 revenue.”


 


1.3.       The
Original Agreement is hereby amended by adding a new Section 7.11:


 


“Section
7.11 Exclusivity Prior to Integration Date. Buyer covenants and agrees that prior to the Integration Date Icagen-T will
not, and Buyer will cause Icagen-T not to, (i) run assays or perform other contract research services, in each case, that Buyer
could reasonably provide by utilizing the Purchased Assets, other than services performed or to be performed by Icagen-T for Sanofi
or its Affiliates under the Master Services Agreements or (ii) perform or engage in ion channel screening.”


 




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3.          Miscellaneous.


 


3.1       Defined
Terms. Capitalized terms used in this Amendment that are not otherwise defined herein shall have the meanings such terms are
given in the Original Agreement.


 


3.2       Full
Force and Effect. This Amendment shall be effective upon the closing of the transactions contemplated under the Sanofi Agreement
(the “Effective Time”) and from and after the Effective Time the terms of the Original Agreement shall be amended
by this Amendment and this Amendment shall be deemed incorporated into the Original Agreement. After the Effective Time, the provisions
of the Original Agreement, as amended by this Amendment, shall remain in full force and effect. Where the Original Agreement is
not expressly amended, the terms of the Original Agreement will remain in force.


 


3.3       Entire
Agreement. After the Effective Time, the Original Agreement and this Amendment shall constitute the entire agreement, both
written and oral, between the parties with respect to the subject matter hereof, and any and all prior agreements with respect
to the subject matter hereof, either written or oral, expressed or implied, are superseded hereby, merged and canceled, and are
null and void and of no effect.


 


3.4       Counterparts.
This Amendment may be executed in one or more counterparts, each of which will be an original and all of which together will constitute
one instrument.


 


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IN
WITNESS WHEREOF, the parties have executed or caused this Amendment to be executed as of the Effective Time.


 


	 	PFIZER
    RESEARCH (NC), Inc.
	 	 
	 	By:
    	/s/
    Andrew Muratore
	 	Name:	Andrew
    Muratore 
	 	Title:	Vice
    President
	 	 	 
	 	ICAGEN
    INC.
	 	 
	 	By:	/s/
    Richard Cunningham
	 	Name:	Richard
    Cunningham
	 	Title:	Chief
    Executive Officer


 


 


 


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