Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This
agreement and plan of merger (the “Agreement”) dated as
of April 24, 2007, is by and among, ICON DEVELOPMENT, INC., a
corporation organized under the laws of the State of Nevada
(“ICON”) and having its principal offices at 1235
Quayside Drive, Suite 703, New Westminister, British Columbia,
Canada V3M 6J5, Icon Acquisition Corporation, a corporation
organized under the laws of the State of Delaware (“MERGER
SUB”) and having its principal offices at 1235 Quayside
Drive, Suite 703, New Westminister, British Columbia, Canada V3M
6J5, AMERICAN XENO, INC., a corporation organized under the laws of
the State of Nevada and having its principal offices at 143 Gardner
Road, Brookline, Massachusetts 02445 (“XENO”), and the
stockholders of XENO (the “Holders”).
RECITALS
A.
The respective boards of directors of ICON, MERGER SUB and XENO
have approved and declared advisable this Agreement and the merger
of MERGER SUB with and into XENO (the “Merger”), upon
the terms and conditions in this Agreement, whereby each issued and
outstanding share of common stock of XENO will be converted into
the right to receive the Merger Consideration (as defined
herein).
B.
The Holders own 100% of the issued and outstanding securities of
XENO, all of which consist of common stock of XENO, and the Holders
wish to document their intention to pass a resolution of the
stockholders of XENO approving of the Merger and to transfer their
interest in the common stock of XENO.
C.
It is intended by the parties that the Merger qualify as a
reorganization under the provisions of Section 368(a) of the United
States Internal Revenue Code of 1986, as amended (the
“Code”), and the rules and regulations promulgated
thereunder and that the Agreement constitute a plan of
reorganization.
NOW,
THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the
parties hereto agree as follows:
SECTION 1. THE
MERGER
1.1
Merger. Upon the terms and conditions set forth herein and
in accordance with applicable Delaware and Nevada law, at the
Effective Time (as defined herein), MERGER SUB shall be merged with
and into XENO. As a result of the Merger, the separate corporate
existence of MERGER SUB shall cease and XENO shall continue as the
surviving corporation of the Merger. XENO, in its capacity as the
corporation surviving the Merger, is hereinafter sometimes referred
to as the “Surviving Corporation.”
1.2
Effect of the Merger. At the Effective Time, the effect of
the Merger shall be as provided in the applicable provisions of
Delaware and Nevada law. Without limiting the generality of the
foregoing, at the Effective Time, except as otherwise provided
herein, all the property, rights and privileges, powers, immunities
and franchises of MERGER SUB and XENO shall vest in the Surviving
Corporation, and all debts, liabilities, obligations, restrictions
and duties of MERGER SUB and XENO shall become the debts,
liabilities and duties of the Surviving Corporation.
1.3
Closing of Merger. The closing of the Merger (the
“Closing”) shall take place on the first business day
after the satisfaction or waiver (subject to applicable laws) of
the conditions in this Agreement, unless this Agreement has been
terminated pursuant to its terms or unless another time
or
date is
agreed to in writing by the parties to this Agreement, which shall
not include the Holders (the actual date of Closing being referred
to herein as the “Closing Date”). The Closing shall be
held in the offices of ICON or such other plce and in such other
manner as the parties agree. As soon as practicable on or after the
Closing Date, the parties hereto shall cause the Merger to be
consummated by filing the necessary documentation in the States of
Nevada and Delaware in such form as required by, and executed in
accordance with the relevant provisions of, applicable law (the
date and time all such filings are accepted, or if another date and
time is specified in such fiilngs, such specified date and time,
being respectively the “Effective Date” and the
“Effective Time).
1.4
Articles of Incorporation; Bylaws.
(a)
At the Effective Time and without further action on the part of
XENO and MERGER SUB, the Articles of Incorporation of XENO, as may
be amended or restated, as in effect at the Effective Time shall be
the Articles of Incorporation of the Surviving Corporation until
thereafter and further amended as provided therein and under
applicable Nevada law.
(b)
At the Effective Time and without further action on the part of
XENO and MERGER SUB, the Bylaws of XENO, as may be amended or
restated, as in effect at the Effective Time shall be the Bylaws of
the Surviving Corporation until thereafter and further amended or
repealed in accordance with their terms or the Articles of
Incorporation and Bylaws of the Surviving Corporation and under
applicable Nevada law.
1.5
Directors and Officers of the Surviving Corporation. The
directors of the Surviving Corporation shall be Wayne Smith, Elliot
Lebowitz, David Sachs, Michael Perry, Milton Datsopoulus and James
Beckner (the “Surviving Corporation Initial
Directors”), each to hold office in accordance with the
Articles of Incorporation and Bylaws of the Surviving Corporation.
The officers of the Surviving Corporation shall be Mr. Lebowitz, as
Chief Executive Officer and President, Mr. Smith, as Chief
Financial Officer, Treasurer and Secretary and Mr. Perry as
Chairman of the board of directors of the Surviving Corporation
each to hold office in accordance with the Articles of
Incorporation and Bylaws of the Surviving Corporation. The parties
acknowledge and agree that the Surviving Corporation shall have a
board of directors consisting of up to seven (7) members, and that
the remaining vacancy on the board of directors will be appointed
by the unanimous agreement of the Surviving Corporation Initial
Directors.
1.6
Directors and Officers of ICON. At or prior to the Effective
Time, ICON shall take all action necessary so that, immediately
following the Effective Time, the directors of ICON shall be
Messrs. Smith, Lebowitz, Sachs, Perry, Datsopoulos and Beckner (the
“ICON Initial Directors”) and the officers of ICON
shall be Mr. Lebowitz, as Chief Executive Officer and President,
Mr. Smith, as Chief Financial Officer, Treasurer and Secretary, and
Mr. Perry as Chairman of the board of directors of ICON and all
current directors and officers not named in this Section 1.6 shall
concurrently therewith resign. The parties acknowledge and agree
that ICON shall have a board of directors consisting of up to seven
(7) members, and that the remaining vacancy on the board of
directors will be appointed by the unanimous agreement of the ICON
Initial Directors.
1.7
Conversion of Securities. At the Effective Time, by virtue
of the Merger and without any action on the part of MERGER SUB,
ICON, XENO or the holders of any of the following
securities:
(a)
Conversion of Common Stock. Every two (2) shares of XENO
common stock issued and outstanding immediately prior to the
Effective Time shall be converted into the right to receive one (1)
share of ICON common stock, for an aggregate of 29,750,000 shares
of ICON common stock (the “Merger Consideration”). All
such shares of XENO common stock shall no longer be outstanding
and
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shall
automatically be cancelled and retired and shall cease to exist,
and any right to receive a certificate representing such shares
shall thereafter represent the right to receive the Merger
Consideration payable in respect of such shares of XENO common
stock.
(b)
MERGER SUB Shares. Each share of common stock of MERGER SUB
issued and outstanding immediately prior to the Effective Time
shall be converted into and be exchanged for one newly and validly
issued, fully paid and nonassessable share of common stock of the
Surviving Corporation.
1.8
Exchange of Certificates. Promptly after the Effective Time,
ICON shall instruct its transfer agent to mail to each XENO
stockholder a certificate or certificates representing shares of
ICON common stock in satisfaction of the Merger Consideration. On
or following the Effective Time, any right of a XENO stockholder to
receive a certificate representing the shares of XENO common stock
shall be deemed at any time after the Effective Time to represent
only the right to receive the shares of ICON common stock that
would otherwise be represented by such certificate. The shares of
ICON common stock issued upon conversion of the shares of XENO
common stock in accordance with the terms hereof shall be deemed to
have been issued in full satisfaction of all rights pertaining to
such shares of XENO common stock.
1.9
Taking of Necessary Action; Further Action. If at any time
after the Effective Time, any further action is necessary or
desirable to carry out the purposes of this Agreement and to vest
the Surviving Corporation with full right, title and possession to
all assests, property, rights, privileges, powers and franchises of
XENO and MERGER SUB, the officers and directors of XENO, ICON and
MERGER SUB are fully authorized in the name of their respective
corporations or otherwise to take, and will take, all such lawful
and necessary action, so long as such action is not inconsistent
with this Agreement.
SECTION 2. REPRESENTATIONS
AND WARRANTIES OF XENO
XENO,
Elliot Lebowitz and Ken Swaisland, jointly and severally, hereby
represent, warrant and covenant as follows:
2.1
Organization and Good Standing. XENO is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Nevada. XENO has the power and authority to carry on
its business as presently conducted and presently proposed to be
conducted, and is qualified to do business in all jurisdictions
where the failure to be so qualified would have a material adverse
effect on its business. XENO does not have any subsidiaries or own
any direct or indirect interest in any capital stock, membership
interest, joint venture interest or other equity interest in any
other person.
2.2
Authority; Conflicts. Other than approval of the Merger by
XENO’s stockholders, XENO has the necessary power and
authority to execute, deliver and perform this Agreement and any
related agreements to which it will become a party. Other than
approval of the Merger by XENO’s stockholders, the execution,
delivery and performance of this Agreement by XENO and any related
agreement to which XENO will become a party have been duly and
validly authorized by all necessary corporate action. This
Agreement has been duly executed and delivered by XENO and
constitutes the valid and binding obligation of XENO, enforceable
in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors’ rights generally and by equitable
principles. The execution and delivery of this Agreement by XENO,
and the consummation of the transaction contemplated hereby, do not
violate any State, governmental or corporate restrictions governing
these transactions. The execution and performance of this
Agreement,
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ultimately
effecting a change in control of XENO, will not constitute a breach
of or a default under, result in the termination, amendment,
suspension, modification, abandonment or acceleration of payment
(or any right to terminate) or require a consent of another party
under any agreement, indenture, mortgage, license or other
instrument or document to which XENO and/or its Holders are known
by XENO to be a party and will not violate any judgment, decree,
order, writ, rule, statute, or regulation applicable to XENO, its
Holders or their properties. The execution and performance of this
Agreement will not violate or conflict with any provision of the
laws of the State of Nevada, the laws of the State of Delaware,
laws of the United States of America or the organizational
documents of XENO that would have a material adverse effect on
XENO, its Holders or their properties.
2.3
Approval of Merger; Meeting of Stockholders. XENO hereby
represents and warrants that its board of directors has, by
resolutions duly adopted at a meeting, approved this Agreement and
the transactions contemplated hereby, and resolved to recommend
approval of the Merger by the XENO stockholders. None of the
resolutions described in this Section 2.3 has been amended or
otherwise modified in any respect since the date of adoption
thereof and all such resolutions remain in full force and
effect.
2.4
Capitalization. The authorized capital stock of the XENO
consists of 100,000,000 shares of common stock, of which 59,600,000
shares of common stock are issued and outstanding. The signature
page to this Agreement lists the names and addresses of each record
holder of the issued and outstanding common stock of XENO, the
number of shares held by each such holder. All issued and
outstanding shares of XENO’s common stock are duly
authorized, validly issued, fully paid and non-assessable, free of
preemptive rights or any other third-party rights and in
certificated form, and have been offered, sold and issued by XENO
in compliance with applicable securities and corporate laws,
contracts applicable to XENO and XENO’s organizational
documents and in compliance with any preemptive rights, rights of
first refusal or similar rights. There is no option, warrant, call,
subscription, convertible security, right (including preemptive
right) or contract of any character to which XENO is a party or by
which XENO is bound obligating XENO to issue, exchange, transfer,
sell, repurchase, redeem or otherwise acquire any shares of capital
stock of XENO or obligating XENO to grant or enter into any option,
warrant, call, subscription, convertible security, right or
contract. Except as contemplated by this Agreement, there are no
registration rights, no voting trust, proxy or other contract and
no restrictions on transfer with respect to any capital stock of
XENO.
2.5
Financial Statements; Books and Records. XENO will provide
audited financial statements as of December 31, 2006, (the
“XENO Financial Statements”) to ICON by the Closing
Date or such earlier date as may be practicable. These XENO
Financial Statements shall fairly represent the financial position
of XENO at those dates and the results of their operations for the
periods then ended. The XENO Financial Statements will be prepared
in accordance with United States generally accepted accounting
principles applied on a consistent basis with prior periods, except
as otherwise stated therein. The books of account and other
financial records of XENO are complete and correct in all material
respects and are maintained in accordance with good business and
accounting practices. The minute books and stock or equity records
of XENO, all of which have been made available to ICON, are
complete and correct. The minute books of XENO contain accurate
records of all meetings held and actions taken by the holders of
stock or equity interests, the board of directors and committees of
board of directors or other governing bodies of XENO, and no
meeting of any such holders, boards of directors or other governing
bodies or committees has been held for which minutes are not
contained in such minute books.
2.6
No Material Adverse Changes. Except as described on Schedule
2.6, since December 31, 2006, there has not been:
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(a)
any material adverse changes in the financial position or
operations of XENO except changes arising in the ordinary course of
business, which changes will in no event materially and adversely
affect the financial position of XENO;
(b)
any damage, destruction or loss materially affecting the assets,
prospective business, operations or condition (financial or
otherwise) of XENO whether or not covered by insurance;
(c)
any declaration setting aside or payment of any dividend or
distribution with respect to any redemption or repurchase of XENO
common stock, other than as agreed upon among the
parties;
(d)
any sale of an asset (other than for fair consideration in the
ordinary course of business) or any mortgage pledge by XENO of any
properties or assets;
(e)
adoption of any pension, profit sharing, retirement, stock bonus,
stock option or similar plan or arrangement;
(f)
except in the ordinary course of business, incurred or assumed any
indebtedness or liability, whether or not currently due and
payable;
(g)
any loan or advance made to any XENO stockholder, officer,
director, employee, consultant, agent or other representative or
made any other loan or advance otherwise than in the ordinary
course of business;
(h)
any material increase in the annual level of compensation of any
director or executive employee of XENO;
(i)
any modification of any existing contract, agreement or
transaction;
(j)
any acceleration, suspension, termination, modification or
cancellation of any material contract (or series of related
contracts) to which XENO is a party or is bound;
(k)
any lien, claim or encumbrance imposed on any assets of
XENO;
(l)
any capital expenditure (or series of related capital expenditures)
or outside the ordinary course of business involving
XENO;
(m)
any issuance of any note, bond or other debt security or created,
incurred, assumed or guaranteed any indebtedness for borrowed money
(including advances on existing credit facilities, if any) or
capitalized lease obligation outside the ordinary course of
business involving XENO;
(n)
any delay, postponement or acceleration of the payment of accounts
payable or other liabilities or the receipt of any account
receivable, in each case outside the ordinary course of
business;
(o)
any cancellation, comprise, waiver or release of any right or claim
(or series of related rights or claims) outside the ordinary course
of business;
(p)
any change made or authorized in the organizational documents of
XENO;
(q)
any change in accounting principles or practices from those
utilized in the preparation of the XENO Financial Statements;
or
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(r)
any commitment by XENO to take any of the actions described in this
Section 2.6.
2.7
Approvals. With the exception of any required filings with
the United States Securities and Exchange Commission (the
“SEC”) or applicable state securities commissions, no
approval, authorization, consent, order or other action of, or
filing with, any person, firm or corporation or any court,
administrative agency or other governmental authority is required
in connection with the execution and delivery of this agreement by
XENO or the Holders for the consummation of the transactions
described herein, other than as set forth on Schedule
2.6.
2.8
Actions and Proceedings. XENO is not a party to any pending
litigation or, to the knowledge of XENO, after reasonable inquiry,
any governmental investigation or proceeding not reflected in the
XENO Financial Statements and, to its best knowledge, no
litigation, claims, assessments or nongovernmental proceedings are
threatened against XENO except as set forth on Schedule 2.8 of this
Agreement. XENO is also not subject to any outstanding governmental
order.
2.9
Taxes. XENO has timely filed (or has had timely filed on its
behalf) all tax, governmental and/or related forms and reports (or
extensions thereof), all of which were correct and complete in all
respects, due or required to be filed and has paid or made adequate
provisions in the XENO Financial Statements for all taxes or
assessments which would become due as of the Closing Date, and
there are no deficiency or audit notices outstanding. XENO has
complied with all laws relating to the withholding of taxes and the
payment thereof and timely and properly withheld from individual
employee wages and paid over to the proper governmental entity all
amounts required to be so withheld and paid over under applicable
law. No extensions of time for the assessment of deficiencies for
any tax period is in effect. No deficiency or audit notice is
proposed or, to the knowledge of XENO, after reasonable inquiry,
threatened against XENO. There are no lien, claim or encumbrances
for taxes upon any assets of XENO.
2.10
Compliance with Laws. XENO has complied with all federal,
state, county and local laws, ordinances, regulations, inspections,
orders, judgments, injunctions, awards or decrees applicable to it
or its business which, if not complied with, would materially and
adversely affect the business of XENO. XENO is not relying upon any
exemption from or deferral of any law, governmental order or
governmental authorization that would not be available to it after
the Closing Date. XENO has in full force and effect all
governmental authorizations necessary to conduct its business and
own and operate its properties. XENO has complied with all
governmental authorizations applicable to it.
2.11
Agreements. Schedule 2.11 sets forth any material contracts,
agreements or arrangements (the “Material Agreements”)
to which XENO is subject, whether written or oral, and correct and
complete copies of such Material Agreements have been delivered to
ICON (and in the case of any items not in written form, a written
description thereof has been provided). Each Material Agreement is
valid and binding, currently in force and enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement
of creditors’ rights generally and by equitable principles.
XENO has performed all obligations required to be performed by it
in connection with each Material Agreement, and there is no breach,
anticipated breach or default by any other party to any Material
Agreement. There are no renegotiations of, attempts to renegotiate
or outstanding rights to renegotiate any material terms of any
Material Agreement and no person has made a written demand for such
renegotiation.
2.12
Brokers or Finders. No broker’s or finder’s
commission or fee or similar compensation will be payable by the
Holders or XENO in connection with the transactions contemplated by
this Agreement, nor will any such fee be incurred as a result of
any actions by the Holders.
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2.13
Tangible Assets. XENO does not own any real property. XENO
has full title and/or leasehold interest in all real estate,
machinery, equipment, furniture, leasehold improvements, fixtures,
owned or leased by XENO, any related capitalized items or other
tangible property material to the business of XENO (the
“Tangible Assets”). Other than as set forth in Schedule
2.13, XENO holds all rights, title and interest in all the Tangible
Assets owned by it and included in the XENO Financial Statements or
acquired by it after the date on the XENO Financial Statements free
and clear of all liens, pledges, mortgages, security interests,
conditional sales contracts or any other encumbrances. All of the
Tangible Assets are in good operating condition and repair and are
usable in the ordinary course of business of XENO and conform to
all applicable laws, ordinances and government orders, rules and
regulations relating to their construction and operation, except as
set forth on Schedule 2.13.
2.14
Liabilities. XENO did not have any material direct or
indirect indebtedness, liability, claim, loss, damage, deficiency,
obligation or responsibility, known or unknown, fixed or unfixed,
liquidated or unliquidated, secured or unsecured, accrued or
absolute, contingent or otherwise, including, without limitation,
any liability on account of taxes, any governmental charge or
lawsuit (all of the foregoing collectively defined to as
“Liabilities”), which are not fully, fairly and
adequately reflected on the XENO Financial Statements, except for
any specific Liabilities set forth on Schedule 2.14. As of the
Closing Date, XENO will not have any Liabilities, other than
Liabilities fully and adequately reflected on the XENO Financial
Statements, except for Liabilities incurred in the ordinary course
of business or as set forth in Schedule 2.14.
2.15
Operations of XENO. From the date of the XENO financial
Statements, through the Closing Date, XENO, has not and will not,
outside of the ordinary course of business, have:
(a)
incurred any indebtedness or borrowed money that is or will be
charged against XENO, other than loans, if any, from ICON, Elliot
Lebowitz or Ken Swaisland;
(b)
declared or paid any dividend or declared or made any payment or
distribution of any kind to any member, or made any direct or
indirect redemption, retirement, purchase or other acquisition of
any interests in its capital structure;
(c)
made any loan or advance to any member, officer, director,
employee, consultant, agent or other representative or made any
other loan or advance;
(d)
disposed of any assets of XENO;
(e)
materially increased the annual level of compensation of any
executive employee or director of or consultant to XENO;
(f)
adopted any plan for the benefit of employees of XENO; (g) issued
any common stock or rights to acquire such interests; (h) entered
into or modified any contract, agreement or transaction;
or
(i)
entered into any arrangement or commitment to do anything described
in this Section 2.15.
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2.16
Access to Records. Correct and complete copies of the
financial records, minute books, and other documents and records of
XENO will be made available to ICON a reasonable time prior to the
Closing Date.
2.17
Intangible Assets. To the knowledge of XENO, it has full
title and interest in all licenses, specifically to include the
license (the “License”) with Massachusetts General
Hospital, which will be in good standing at the Closing Date and
current in all royalty or other license payments, and all patents
or other intangible property material to the business of XENO (the
“Intangible Assets”). Other than as set forth in
Schedule 2.17, XENO holds all right, title and interest in all the
Intangible Assets owned by it in the XENO Financial Statements or
used in its operations free and clear of all encumbrances. XENO has
no present expectation or intention of not fully performing any
obligation pursuant to the License, and there is no breach,
anticipated breach or default by any other party to the License.
There are no renegotiations of, attempts to renegotiate, demands
for or outstanding rights to renegotiate the License. All rights
under the License will be fully available to XENO after the Closing
Date. To the best knowledge of XENO, it has not infringed,
misappropriated or otherwise violated any third-party intellectual
property right and, to the knowledge of XENO, no person is
infringing upon the rights of XENO with respect to its intellectual
property rights. To the best knowledge of XENO, no infringement,
misappropriation or violation of any third-party intellectual
property right has occurred or will occur with respect to products
or services currently under development or with respect to the
conduct of the business of XENO as now conducted or presently
proposed to be conducted.
2.18
Employees and Consultants. XENO does not currently have, and
has not had in the past, any employees. Attached as Schedule 2.18
is a list of all consulting agreements entered into by XENO with
third parties to date.
2.19
Full Disclosure. No representation or warranty by XENO in
this Agreement or in any document or schedule to be delivered by
them pursuant hereto, and no written statement, certificate or
instrument furnished or to be furnished by XENO pursuant hereto or
in connection with the negotiation, execution or performance of
this Agreement contains or will contain any untrue statement of a
material fact or omits or will omit to state any fact necessary to
make any statement herein or therein not materially misleading or
necessary to complete and correct presentation of all material
aspects of the business of XENO.
SECTION 2B. REPRESENTATIONS
AND WARRANTIES OF HOLDERS
As an inducement to ICON and
MERGER SUB to enter into this Agreement, each Holder represents,
warrants and covenants, as to such Holder only, as
follows:
2.19
Title to Shares. Such Holder owns, of record and
beneficially, the number of shares of XENO common stock opposite
such Holder’s name on the signature page hereto, free and
clear of any lien, claim or encumbrance. On the Closing Date, ICON
will obtain good and valid title to such shares, of record and
beneficially, free and clear of any lien, claim or
encumbrances.
2.20
Brokers or Finders. No broker’s or finder’s
commission or fee or similar compensation will be payable by such
Holder or XENO in connection with the transactions contemplated by
this Agreement, nor will any such fee be incurred as a result of
any actions by such Holder.
2.20
Incorporation; Power and Authority. If such Holder is not a
natural person, it is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
organization.
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Such
Holder has all necessary power and authority to execute, deliver
and perform this Agreement and any related agreements to which it
will become a party.
2.21
Valid and Binding Agreement. If such Holder is not a natural
person, the execution, delivery and performance of this Agreement
by such Holder has been duly and validly authorized by all
necessary corporate or equivalent action. This Agreement has been
duly executed and delivered by such Holder and constitutes the
valid and binding obligation of such Holder, enforceable against it
in accordance with its terms, subject to subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors’ rights generally and
by equitable principles.
2.22
No Breach; Consents. The execution, delivery and performance
of this Agreement by such Holder will not (a) contravene any
provision of the organizational documents of such Holder, (b)
violate or conflict with any law, governmental order or
governmental authorization, (c) conflict with, result in any breach
of any of the provisions of, constitute a default (or any event
which would, with the passage of time or the giving of notice or
both, constitute a default) under, result in a violation of,
increase the burdens under, result in the termination, amendment,
suspension, modification or acceleration of payment (or any right
to terminate) or require consent under any contract or governmental
authorization that is either binding upon or enforceable against
the Holder, (d) result in the creation of any encumbrance upon the
shares of XENO common stock held by such Holder or (e) require any
governmental authorization.
2.23
Investment. Such Holder (a) understands that the shares of
ICON common stock to be received by such Holder has not been
registered under the Securities Act or under any applicable state
securities laws, are being offered and sold in reliance upon United
States federal and state exemptions for transactions not involving
a public offering and will contain a legend restricting transfer as
set forth in Section 2.24 hereof; (b) is acquiring such securities
solely for the Holder’s own account for investment purposes,
and not with a view to the distribution thereof in violation of
United States federal or state securities laws, (c) is a
sophisticated investor with knowledge and experience in business
and financial matters, (d) has received certain information
concerning ICON and has had the opportunity to obtain additional
information as desired in order to evaluate the merits and risks
inherent in holding the shares of ICON common stock, (e) is able to
bear the economic risk and lack of liquidity inherent
