Exhibit 10.2


 


AMENDMENT NO. 1 TO


ASSET PURCHASE AGREEMENT


 


This Amendment No. 1 (the “Amendment”)
to the Asset Purchase Agreement (the “Agreement”) dated April 20, 2007 by
and among MOMENTA PHARMACEUTICALS, INC., a Delaware corporation (the “Buyer”), PARIVID,
LLC, a Massachusetts limited liability company (the “Seller”) and S. RAGURAM,
an individual (“Primary Member”) is entered into as of August 4, 2009.


 


Capitalized terms used in this Agreement and
not defined shall have the meanings ascribed to them in the Agreement.


 


In consideration of the representations,
warranties and covenants herein contained, the Parties agree as to amend the
Agreement as set forth herein.


 


1.                                       Capability
Build Submilestone Payment.


 


(a)                                  The parties
acknowledge and agree that the timeline for completing the Capabilities Build
Milestone as described in Section 1.4(a) of the Agreement is extended
from the second (2nd) anniversary
of the Closing Date to June 30, 2009. 
The parties further acknowledge and agree that as of June 30, 2009,
the Seller had satisfied Submilestone A and Submilestone B of the Capabilities
Build Milestone.


 


(b)                                 The parties
hereby agree that in lieu of the wire transfer from Buyer to Seller in
satisfaction of Submilestone A and Submilestone B as set forth in Section 1.4(a) of
the Agreement, Buyer shall (i) pay the Seller, by wire transfer to an
account designated by the Seller, $500,000 within 10 days following the
Submilestone Effective Date (as defined below) and (ii) issue to the
Seller, pursuant to the terms of this Amendment, 91,576 shares of Buyer Common
Stock (the “Submilestone Shares”).


 


(c)                                  Within five (5) days
following either (i) the end of the time period beginning on the effective
date of the Registration Statement covering the Submilestone Shares and ending
fifteen (15) days thereafter, or (ii) in the event that the Registration
Statement covering the Submilestone Shares is not declared effective, the end
of the time period beginning on the first date that the Seller is able to sell
the Submilestone Shares pursuant to Rule 144 of the Securities Act of 1933
and ending fifteen (15) days thereafter, whichever is earlier, (the “Initial
Sale Period”), Seller shall provide Buyer with a report detailing that number
of Submilestone Shares sold during the Initial Sale Period (“Initial Period
Shares”) and the net proceeds (i.e. the sale price less broker’s commissions)
from the sales of such Initial Period Shares. 
In the event that such net proceeds are less than the sum of the Initial
Period Shares times the last reported sale price per share of the Buyer Common
Stock on the date of the Submilestone Effective Date, then Buyer shall pay by
check or wire transfer to Seller, within thirty (30) days of receipt of the
report, an amount equal to such difference.


 


2.                                       Amendments of
Article VIII.


 


(a)                                  The definition
of “Milestone Shares” set forth in Article VIII of the Agreement is hereby
amended is hereby amended by deleting such section in its entirety and
substituting in lieu therefor the following:


 


“Milestone
Shares” shall mean the Submilestone Shares and the shares of Buyer Common
Stock issuable upon the satisfaction of each of the M-Enoxaparin Milestone and
the Second Generic Milestone.”


 


(b)                                 The definition
of “Registration Statement” set forth in Article VIII of the Agreement is
hereby amended by deleting such section in its entirety and substituting in
lieu therefor the following:


 


“Registration
Statement” shall mean a registration statement on Form S-3 or, if the
Buyer is not eligible to use form S-3, Form S-1 (or such other form as the
Buyer shall deem 


 

















 


appropriate)
covering the resale to the public by the Seller of the Milestone Shares or the
Submilestone Shares as applicable.”


 


(c)                                  A new
definition, “Submilestone Effective Date,” shall be added to Article VIII
in appropriate alphabetical order and shall read in its entirety as follows:


 


“Submilestone Effective Date”
shall be August 4, 2009.”


 


3.                                       Amendment of
Section 7.1.  Section 7.1
of the Agreement is hereby amended by deleting such section in its entirety and
substituting in lieu therefor the following:


 


“7.1  Registration of Shares.  The Buyer shall file a Registration Statement
with the SEC within 90 days following the completion and satisfaction of each
of the M-Enoxaparin Milestone and the Second Generic Milestone and as soon as
practicable, but no later than within 30 days, after the Submilestone Effective
Date.  The Buyer shall use its best
efforts to cause each Registration Statement to be declared effective by the
SEC as soon as practicable.  The Buyer
shall as expeditiously as possible prepare and file with the SEC any amendments
and supplements to the Registration Statement and the prospectus included in
the Registration Statement as may be necessary to comply with the provisions of
the Securities Act (including the anti-fraud provisions thereof), and shall
cause each Registration Statement to remain effective until the date one (1) year
after the issuance of the Milestone Shares issued in connection with the
completion and satisfaction of the M-Enoxaparin Milestone, the Second Generic
Milestone, or the Submilestone Effective Date, as the case may be, or such
earlier time as all of the applicable Milestone Shares covered by such
Registration Statement have been sold pursuant thereto; provided, that such
one-year period shall be extended to 30 months in the event that at the
termination thereof the Seller is not able to sell such Milestone Shares
pursuant to and in accordance with Rule 144 under the Securities Act of
1933, as such Rule may then be in effect, or any similar rule or
regulation hereafter adopted by the SEC.”


 


4.                                       Requirements of
the Seller.  Seller
hereby agrees:


 


(a)                                  to indemnify
the Buyer and each of its directors and officers against, and hold the Buyer
and each of its directors and officers harmless from, any losses, claims,
damages, expenses or liabilities (including reasonable attorneys fees) to which
the Buyer or such directors and officers may become subject by reason of any
statement or omission in the Registration Statement covering the Submilestone
Shares made in reliance supon, or in conformity with, a written statement by
the Seller furnished pursuant to Section 7.4 of the Agreement; and


 


(b)                                 to report to
the Buyer sales made pursuant to the Registration Statement covering the Submilestone
Shares.


 


5.                                       Representations
of the Seller.  The Seller and
the Primary Member jointly and severally represent and warrant to the Buyer
that the statements contained in this Section 5 are true and correct as of the
date of this Agreement.


 


(a)                                  Organization,
Qualification and Corporate Power.  The Seller is a limited liability company
duly organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts.


 


(b)                                 Authorization
of Transaction.  The Seller
has all requisite power and authority to execute and deliver this Amendment and
to perform its obligations hereunder. 
The execution and delivery by the Seller of this Amendment and the
performance by the Seller of this Amendment and the consummation by the Seller
of the transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary limited liability company action on the part of the
Seller.  This Amendment has been duly and
validly executed and 


 


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delivered by the Seller and
constitutes a valid and binding obligation of the Seller, enforceable against
the Seller in accordance with its terms.


 


(c)                                  Noncontravention.  Neither the execution and delivery by the
Seller of this Amendment nor the consummation by the Seller of the transactions
contemplated hereby or thereby, will (a) conflict with or violate any
provision of the Certificate of Organization or the Operating Agreement of the
Seller, (b) require on the part of the Seller any notice to or filing
with, or any permit, authorization, consent or approval of, any Governmental
Entity, (c) conflict with, result in a breach of, constitute (with or
without due notice or lapse of time or both) a default under, result in the
acceleration of obligations under, create in any party the right to terminate,
modify or cancel, or require any notice, consent or waiver under, any contract
or instrument to which the Seller is a party or by which the Seller is bound or
to which any of its assets are subject, (d) result in the imposition of
any Security Interest upon any assets of the Seller or (e) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to
the Seller or any of its properties or assets.


 


(d)                                 Shares.  (i) Seller is knowledgeable,
sophisticated and experienced in making, and is qualified to make, decisions
with respect to investments in securities representing an investment decision
like that involved in this Amendment, including investments in securities
issued by the Buyer and comparable entities, and has had the opportunity to
request, receive, review and consider all information it deems relevant in
making an informed decision to acquire the Shares; (ii) Seller is
acquiring the Shares set forth herein in the ordinary course of its business
and for its own account for investment only and with no present intention of
distributing any of such Shares or any arrangement or understanding with any
other persons regarding the distribution of such Shares (this representation
and warranty not limiting Seller’s right to sell pursuant to the Registration
Statement or in compliance with the Securities Act); (iii) Seller has not
been organized, reorganized or recapitalized specifically for the purpose of
investing in the Shares; (iv) Seller has had an opportunity to discuss
this investment with representatives of the Company and ask questions of them; (vi) Seller
is an “accredited investor” within the meaning of Rule 501(a) of
Regulation D promulgated under the Securities Act; (vii) Seller agrees to
notify the Company promptly of any change in any of the foregoing information
until such time as Seller has sold all of its Shares or the Company is no
longer required to keep the Registration Statement effective; and (viii) Seller
will not, directly or indirectly, offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy, purchase or otherwise acquire to take
a pledge of) any of the shares except in compliance with the Securities Act,
the rules and regulations thereunder, and applicable state securities
laws.


 


(e)                                  Exemption from
Registration.  Seller
understands that the Submilestone Shares are being offered and sold to it in
reliance upon specific exemptions from the registration requirements of the
Securities Act and state securities laws and that the Company is relying upon
the truth and accuracy of, and Seller’s compliance with, the representations,
warranties, agreements, acknowledgments and understandings of Seller set forth
herein in order to determine the availability of such exemptions and the
eligibility of Seller to acquire the Shares.


 


(f)                                    Able to Bear
Risk.  Seller understands that its
investment in the Submilestone Shares involves a significant degree of risk,
including a risk of total loss of its investment, and Seller has full
cognizance of and understands all of the risk factors related to Seller’s
purchase of the Submilestone Shares. 
Seller understands that the market price of the Common Stock has been
volatile and that no representation is being made as to the future value of the
Common Stock.  Seller has the knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of an investment in the Shares and has the ability to bear
the economic risks of an investment in the Submilestone Shares.


 


(g)                                 No
Recommendation or Endorsement. Seller understands that no
United States federal or state agency or any other government or governmental
agency has passed upon or made any recommendation or endorsement of the
Submilestone Shares.


 


6.             Requirements of
the Buyer.  With a view to making
available to the Seller the benefits of Rule 144 promulgated under the
Securities Act (“Rule 144”) and any other rule or regulation of the
SEC that may at any time permit the Seller to sell securities of the Buyer to
the public without registration or pursuant to a registration on Form S-3,
the Buyer agrees to:


 


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(a) 
make and keep public information available, as those terms are understood and
defined in Rule 144, at all times after the issuance of the Submilestone
Shares until six months and 15 days thereafter;


 


(b) 
file with the SEC in a timely manner all reports and other documents required
of the Buyer under the Securities Act and the Exchange Act, so long as Buyer
remains subject to such requirements; and


 


(c) 
furnish to the Seller forthwith upon request, so long as Seller owns
Submilestone Shares,  (i) a written statement by the Buyer that it
has complied with the reporting requirements of Rule 144, the Securities
Act and the Exchange Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably
requested in availing the Seller of any rule or regulation of the SEC
which permits the selling of any such securities without registration or
pursuant to such form.


 


7.                                       Representations
of the Buyer.  The Buyer
represents and warrants to the Seller and the Primary Member that the
statements contained in this Section 4 are true and correct as of the date of
this Agreement.


 


(a)                                  Organization
and Corporate Power.  The Buyer
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware.  The
Buyer has all requisite corporate power and authority to carry on the
businesses in which it is engaged and to own and use the properties owned and
used by it.


 


(b)                                 Authorization
of the Transaction.  The Buyer
has all requisite power and authority to execute and deliver this Amendment and
to perform its obligations hereunder. 
The execution and delivery by the Buyer of this Amendment and the
consummation by the Buyer of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the part of
the Buyer.  This Amendment has been duly
and validly executed and delivered by the Buyer and constitutes a valid and
binding obligation of the Buyer, enforceable against it in accordance with its
terms.


 


(c)                                  Noncontravention.  Neither the execution and delivery by the
Buyer of this Amendment nor the consummation by the Buyer of the transactions
contemplated hereby or thereby, will (a) conflict with or violate any
provision of the Certificate of Incorporation or by-laws of the Buyer, (b) require
on the part of the Buyer any filing with, or permit, authorization, consent or
approval of, any Governmental Entity, except for such filings with the SEC as
the Buyer may deem necessary and required, (c) conflict with, result in
breach of, constitute (with or without due notice or lapse of time or both) a
default under, result in the acceleration of obligations under, create in any
party any right to terminate, modify or cancel, or require any notice, consent
or waiver under, any contract or instrument to which the Buyer is a party or by
which it is bound or to which any of its assets is subject, except for (i) any
conflict, breach, default, acceleration, termination, modification or
cancellation which would not adversely affect the consummation of the
transactions contemplated hereby or (ii) any notice, consent or waiver the
absence of which would not adversely affect the consummation of the
transactions contemplated hereby, or (d) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Buyer or
any of its properties or assets.


 


8.                                       Restrictions on
Transferability of Securities


 


(a)                                  Restrictions on
Transferability.  The
Submilestone Shares shall not be sold, transferred, assigned or hypothecated
unless (i) there is an effective Registration Statement under the
Securities Act covering such Submilestone Shares, (ii) the sale is made in
accordance with Rule 144 under the Securities Act, or (iii) the
Company receives an opinion of counsel for the holder of the Submilestone
Shares reasonably satisfactory to the Company stating that such sale, transfer,
assignment or hypothecation is exempt from the registration requirements of the
Securities Act, and each such case upon all other conditions specified in this Section 7.


 


(b)                                 Restrictive
Legend.  Each certificate representing
the Submilestone Shares, and any other securities issued in respect of the
Submilestone Shares upon any stock split, stock dividend, recapitalization, 


 


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merger, consolidation or
similar event, shall be stamped or otherwise imprinted with a legend in
substantially the following form:


 


“THE SHARES REPRESENTED BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SHARES LAWS OF ANY STATE OF THE UNITED STATES OR IN ANY OTHER
JURISDICTION.  THE SHARES REPRESENTED
HEREBY MAY NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER APPLICABLE SECURITIES
LAWS UNLESS OFFERED, SOLD OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS.”


 


9.                                       Effect of
Amendment.  Except as
explicitly set forth in this Amendment, all of the terms and conditions of the
Agreement remain in full force and effect.


 


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IN WITNESS WHEREOF, the
Parties have executed this Amendment as of the date first above written.


 


	
   

  	
  MOMENTA
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Craig A. Wheeler

  
	
   

  	
   

  	
  Name:
  Craig A. Wheeler

  
	
   

  	
   

  	
  Title:
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PARIVID,
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  S. Raguram

  
	
   

  	
   

  	
  Name:
  S. Raguram

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PRIMARY
  MEMBER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/
  S. Raguram

  
	
   

  	
  S.
  Raguram

  



 


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