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