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EXHIBIT 2.2
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT is dated as of November
30, 1999 among OSI PHARMACEUTICALS, INC., a Delaware corporation, ONCOGENE
SCIENCE DIAGNOSTICS, INC., a Delaware corporation, and BAYER CORPORATION, an
Indiana corporation.
PREAMBLE
A. The parties entered into an Asset Purchase Agreement dated as of November
17, 1999 (the "APA"). All capitalized terms used herein have the meanings
assigned thereto in the APA.
B. The obligations of the Purchaser to consummate the transactions
contemplated by the APA are subject to the fulfillment of, among other
conditions, the obtaining of the consents listed on Schedule 13.3 to the
APA (the "Consents").
C. The parties required to provide certain of the Consents require, as a
condition to providing such Consents, that the Purchaser undertake
obligations or otherwise commit to a course of action not contemplated
under the APA or the terms of the existing contracts with such parties.
Purchaser is prepared to agree to such conditions, provided that the
Seller Parties enter into this Amendment No. 1 to the APA.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements hereinafter contained, and intending to be legally
bound hereby, the parties agree as follows:
1. The Finsen Lab.
(a) In connection with the Consent to be obtained from
Cancerforskningfondet af 1989 (the "Foundation"), OSIP and the Purchaser
requested, inter alia, that the Foundation agree to Sections 3(c) and 4 in the
attached Exhibit A. The Consent ultimately obtained from the Foundation set
forth that the Foundation will negotiate said Section 3(c) with the Purchaser
after the Closing under the APA and deleted said Section 4 entirely.
(b) The parties hereby agree that the Purchaser shall defer payment
of $250,000 of the Purchase Price until the Foundation and the Purchaser have
agreed in writing
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to terms and conditions, satisfactory to Purchaser in its sole discretion,
relating to the subject matter set forth in said Sections 3(c) and 4. Purchaser
agrees to exercise reasonable diligence to reach such agreement. Promptly
following the execution of such written agreement, Purchaser shall pay to the
Seller Parties the $250,000 in cash deferred hereunder; provided, however, that
the Purchase Price shall be permanently reduced by $250,000 if the Purchaser and
the Foundation do not reach such agreement prior to December 31, 2000.
2. Cambridge Assignment of Lease. Under the Cambridge Assignment of Lease,
Purchaser may be obligated to discharge certain Excluded Liabilities arising
under the Cambridge Lease. In connection therewith, the parties hereby agree
that the limitations provided for in Section 11.4(a) of the APA shall not apply
to any of the Seller Parties' indemnification obligations with respect to such
Excluded Liabilities. Nothing contained in the Cambridge Assignment of Lease
shall be deemed to amend, modify or restate the obligations of the Seller
Parties and Purchaser to each other under Article 11 of the APA.
3. Effect of Amendment. All other provisions of the APA shall remain in
full force and effect.
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SIGNATURE PAGE TO AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
WITNESS the due execution hereof as of the date and year first above
written.
OSI PHARMACEUTICALS, INC.
By /s/
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ONCOGENE SCIENCE DIAGNOSTICS, INC.
By /s/
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BAYER CORPORATION
By /s/
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