Exhibit 2.4.1
-------------
AMENDMENT NO. 1
TO
ASSET PURCHASE AGREEMENT
This Amendment No. 1 dated July 9, 1997, to the Asset Purchase Agreement
(the "Agreement") dated as of the 14th day of May, 1997 by and between
Synbiotics Corporation, a California corporation with its principal office at
11011 Via Frontera, San Diego, CA 92127 (the "Buyer"), and Rhone Merieux, Inc.,
a Georgia corporation with its principal office at 115 Transtech Drive, Athens,
Georgia 30601 (the "Seller").
WHEREAS, the parties wish to amend the Agreement as set forth below to
reflect their agreement on the adjustment of the purchase price of the assets
being purchased thereunder, subject to the condition that the distribution of
certain products begin before the end of 1997. Capitalized terms used herein
and not otherwise defined shall have the meanings assigned to them in the
Agreement:
1. Notwithstanding Section 1.1(a)(i) of the Agreement, the Buyer and the
Seller agree that the Seller shall not sell at the Closing, and the Buyer shall
not purchase, any inventories of finished goods or packing materials of the
"Witness" products, and Seller shall retain ownership of such finished goods and
materials and shall either (i) return such finished goods and materials to the
supplier thereof or (ii) sell such finished goods and materials to the Buyer
from time to time in accordance with Section 1.6 of the Agreement.
2. In Section 1.2 of the Agreement, the words "Four Million Two Hundred
Thousand U.S. Dollars ($4,200,000)" are replaced with "Two Million Eight Hundred
and Fifty Thousand U.S. Dollars ($2,850,000)".
3. The existing text of Section 1.2 of the Agreement is redesignated as
paragraph (a) of Section 1.2. and the words "provided that if... " through "as
soon as practicable," are deleted. The following new paragraph (b) is added
thereafter:
"(b) (1) If, prior to January 1, 1998, (i) the Buyer or any of its
Affiliates makes a commercial sale in the United States of any
Heartworm Product (as defined below), approved for sale by the USDA in
any form, or (ii) if the U.S. patent rights on technology relating to
any Heartworm Product are licensed, sublicensed or given by the Buyer
or any of its Affiliates to any third party (other than for the sole
purpose of enabling such third party to manufacture or resell
Heartworm Products on behalf of the Buyer or one of its Affiliates),
the Buyer shall immediately inform the Seller of such event and pay to
the Seller a sum equal to the
-1-
product of One Hundred Thousand U.S. Dollars ($100,000) times the
number of full calendar months between the date of such event and
December 31, 1997, by wire transfer of immediately available funds to
an account designated by the Seller no later than thirty days after
the date of occurrence of such event. If, prior to January 1, 1998,
(i) the Buyer or any of its Affiliates makes a commercial sale in the
United States of any FeIV Product (as defined below) in any form, or
if the U.S. patent rights on technology related to any FeIV Product
are licensed, sublicensed or given by the Buyer or any of its
Affiliates to any third party (other than for the sole purpose of
enabling such third party to manufacture or resell FeIV Products on
behalf of the Buyer or one of its Affiliates), then Buyer shall
immediately inform the Seller of such event and pay to the Seller
Three Hundred and Fifty Thousand U.S. Dollars ($350,000) by wire
transfer of immediately available funds to an account designated by
the Seller no later than thirty days after the date of occurrence of
such event. For purposes of this Agreement the terms "Heartworm
Product" and "FeIV Product" shall mean the Witness Heartworm product
and the Witness FeIV products, respectively, of the Seller as they
existed in their form of an antigen caught in between two monoclonal
antibodies on the date of the Closing and as such products may be
modified from time to time by or for the Buyer, regardless of the
trademarks under which these products are sold.
(2) If, before January 1, 1998, the Buyer obtains from a third party
a patent or technology license in order to avoid patent or technology
infringement claims in connection with the commercial introduction in
the United States of an FeIV Product, the cost of such license
(including all up front payments and the net present value discounted
at an annual rate of 14% of all future royalties or other similar
payments due from the Buyer or its Affiliates to the licensor for a
period of the remaining duration of the patent or four (4) years,
whichever is shorter), up to a maximum of One Hundred and Seventy-Five
Thousand U.S. Dollars ($175,000), shall be deducted from the Three
Hundred Fifty Thousand U.S. Dollars ($350,000) to be released in
connection with the corresponding FeIV release, and no price
supplement shall be due by RM under new Section 1.6 of the Stock
Purchase Agreement, as amended.
4. Clause (d) of Section 1.6 is amended by adding to the end thereof,
before the semi-colon, the following "or return any items of Retained Inventory
to the manufacturer."
-2-
5. Section 1.7 of the Agreement is deleted.
6. Section 6.9 of the Agreement is deleted.
7. The first clause of Section 8.5 of the Agreement up to the first
proviso, is amended to read as follows:
"8.5 Limitations on Liability. The liability of the Seller for
indemnification hereunder shall be limited to the sum of (a)
$13,533,690 plus (b) all amounts paid to the Seller pursuant to
Section 1.2(b) of this Agreement, plus (c) the amount of the Earn-Out
Payment, if any, actually paid to RM pursuant to the Stock Purchase
Agreement (collectively the "Indemnification Amount");".
8. The Buyer hereby waives for itself and for any of its Affiliates any
rights it or they may have under Section 8 of the Agreement as a result of any
claim or action by any third party alleging an infringement of a United States
patent or U.S. intellectual property rights arising out of any sale after the
Closing by the Buyer or its Affiliates or licensees of Heartworm Products or
FeIV Products. The Buyer hereby represents that it is aware of the risks of
U.S. patent infringement associated with these products and assumes such risks
to the extent set forth in this Section 6.
9. This Amendment No. 1 may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which shall be one and
the same document.
IN WITNESS WHEREOF, this Amendment No. 1 to the Agreement has been duly
executed by the parties hereto and is effective as of the date first above
written.
SYNBIOTICS CORPORATION
By: /s/ Kenneth M. Cohen
--------------------
Name: Kenneth M. Cohen,
President and Chief Executive
Officer
RHONE MERIEUX, INC.
By: /s/ Kyle W. Lathrop
-------------------
Name: Kyle W. Lathrop
Title: General Counsel/Proxy
-3-