TABLE OF CONTENTS

 

		Page No.
Section 1.	Definitions	1
Section 2.	Basic Transaction; Purchase Price	14
2.1	Sale and Transfer of the Remaining Shares	14
2.2	Purchase Price	14
2.3	Earnout Payments	14
2.4	[Reserved]	15
2.5	Restricted Assets	16
Section 3.	Closing Of The Transaction	16
3.1	The Closing	16
3.2	Deliveries at the Closing	16
Section 4.	Conditions To Obligation To Close	17
4.1	Conditions to Obligation of AMI	17
4.2	Conditions to Obligation of Isis	19
Section 5.	Representations And Warranties	20
5.1	Representations and Warranties of Isis	20
5.2	Representations and Warranties of AMI	36
Section 6.	Reserved	37
Section 7.	Pre-Closing Covenants	37
7.1	General	37
7.2	Affirmative Covenants of Isis and Ibis	37
7.3	Negative Covenants of Isis	38
7.4	Notices and Consents	40
7.5	Full Access	40
7.6	Transition Assistance	41
7.7	Notice of Developments	41
7.8	Exclusivity	41
7.9	Indebtedness and Intercompany Accounts	42
7.10	Distribution of Cash	42
7.11	[***] and [***]	42
7.12	Permitted Indebtedness	42
7.13	Bonus Arrangement Payments	43
Section 8.	Additional Agreements	43
8.1	Survival	43
8.2	Indemnification	43
8.3	Press Release and Announcements	46
8.4	Expenses	47
8.5	Setoff	47

 

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8.6	Certain Tax Matters	47
8.7	Further Assurances	51
8.8	Confidentiality	51
8.9	Noncompetition and Nonsolicitation	53
8.10	Access to Books and Records	55
8.11	Employee and Related Matters	55
8.12	Consolidated Return	56
8.13	Isis Intellectual Property License	57
8.14	[***]	57
8.15	[***]	57
8.16	Fees for Transition Services	58
8.17	Updated Exhibits	58
Section 9.	Termination	58
9.1	Termination	58
9.2	Effect of Termination	58
Section 10.	Miscellaneous	59
10.1	No Third Party Beneficiaries	59
10.2	Entire Agreement	59
10.3	Successors and Assigns	59
10.4	Counterparts	59
10.5	Headings	59
10.6	Notices	59
10.7	Governing Law	61
10.8	Alternative Dispute Resolution Procedure	61
10.9	Amendments and Waivers	61
10.10	Delays or Omissions	61
10.11	Incorporation of Exhibits and Schedules	61
10.12	Construction	62
10.13	Remedies	62
10.14	Severability	62
10.15	No Other Compensation	63

 

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STOCK PURCHASE AGREEMENT

 

THIS STOCK PURCHASE AGREEMENT (this “ Agreement ”) is made and entered into as of the 17 th  day of December, 2008, by and among Isis Pharmaceuticals, Inc., a Delaware corporation (“ Isis ”), Ibis Biosciences, Inc., a Delaware corporation and Affiliate of Isis (“ Ibis ”), and Abbott Molecular Inc., a Delaware corporation (“ AMI ”) and Affiliate of Abbott Laboratories, an Illinois corporation (“ Abbott ”). AMI, Ibis and Isis are sometimes referred to herein individually as a “ Party ” and collectively as the “ Parties .”

 

WHEREAS, on January 30, 2008, the Parties entered into the Master Agreement, a Call Option Agreement and the Investor Rights Agreement, pursuant to which, among other things, AMI acquired the Shares, the option, exercisable in AMI’s sole discretion, to purchase the Additional Shares from Ibis and the Call Option, for an aggregate purchase price of $20,000,000;

 

WHEREAS, as of June 27, 2008, the Parties entered into a Stock Subscription Agreement, pursuant to which, among other things, AMI acquired the Additional Shares for an aggregate purchase price of $20,000,000;

 

WHEREAS, Isis owns 1,000,000 shares of Ibis’ Common Stock (the “ Remaining Shares ”);

 

WHEREAS, on December 12, 2008, pursuant to the terms of the Call Option Agreement, AMI exercised the Call Option, electing to acquire the Remaining Shares pursuant to the terms hereof; and

 

WHEREAS, subject to the terms and conditions set forth in this Agreement, Isis desires to sell to AMI and AMI desires to acquire from Isis the Remaining Shares.

 

NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, and covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

 

Section 1.               DEFINITIONS . Capitalized terms used and not otherwise defined herein have the meanings ascribed to such terms in this Section 1 .

 

(a)            “ Abbott Transaction Team ” means the individuals listed on Schedule 1(a) .

 

(b)            “ Additional Shares ” means 114,250 shares of Common Stock acquired by AMI pursuant to the Stock Subscription Agreement, as may be held from time to time by AMI and its permitted assigns, which, together with the Shares, represent approximately 18.6% of the issued and outstanding Common Stock.

 

(c)            “ Affiliate ” of an entity means any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such first entity. For purposes of this definition only, “control” (and, with correlative meanings, the terms “controlled by” and “under common control with”) means the

 

 

possession, directly or indirectly, of the power to direct the management or policies of an entity, whether through the ownership of voting securities or by Contract relating to voting rights or corporate governance; provided , that, with respect to Isis, the term “Affiliate” shall specifically exclude [***].

 

(d)            “ Applicable Law ” or “ Law ” means all applicable common law, laws, constitutional provisions, ordinances, statutes, rules, regulations, administrative rulings, executive orders and other pronouncements having the effect of law of any federal, national, multinational, state, provincial, county, city or other political subdivision, agency or other body, domestic or foreign, including but not limited to any applicable rules, regulations, guidelines, or other requirements of Governmental Authorities that may be in effect from time to time.

 

(e)            “ Applicable Rate ” means as of any particular date, the prime rate as quoted in the Money Rates Section of The Wall Street Journal , plus [***]%.

 

(f)             [***]

 

(g)            “ Bonus Arrangement ” means the Special Bonus Opportunity communicated to Ibis employees, pursuant to which a bonus pool of [***] will be payable by Ibis to Ibis Employees in the event the Closing is consummated.

 

(h)            “ Business ” means researching, developing, manufacturing, selling, marketing, distributing and using a system, process or reagents for the identification and/or quantitation of nucleic acids or the performance of services relating to any of the foregoing, as conducted by Ibis or by Isis, with respect to the Division, on and prior to the Closing Date.

 

(i)             “ Business Day ” means any day other than a Saturday, Sunday, or a day on which the banks in Chicago, Illinois are authorized or obligated by Law to close.

 

(j)             “ Call Option ” has the meaning ascribed to such term in the Call Option Agreement.

 

(k)            “ Call Option Agreement ” means that certain Amended and Restated Call Option Agreement, dated as of November 18, 2008, by and among Isis, Ibis and AMI.

 

(l)             “ Capital Stock ” means all capital stock, equity or controlling interests and other securities in an issuer, including, without limitation, options, warrants, depositary receipts, stock appreciation or phantom stock rights or other agreements or undertakings, including stock or securities convertible or exchangeable for any shares of capital stock, equity or controlling interests or other securities in an issuer or containing any profit participation features or pursuant to which such issuer is or could be bound to issue or repurchase any capital stock, equity or controlling interests or other securities.

 

(m)           “ Change of Control ” means, with respect to any Person, the occurrence of (i) any consolidation or merger of such Person with or into any other Person, or any other corporate reorganization or transaction (including the acquisition of Capital Stock of such Person (or any rights to acquire, or securities convertible into or exchangeable for, any such

 

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Capital Stock)), whether or not such Person is a party thereto, in which the stockholders or equity-holders of such Person or other Persons controlling such Person immediately prior to such consolidation, merger, reorganization or transaction, own Capital Stock either (A) representing directly, or indirectly through one or more entities, less than fifty percent (50%) of the economic interests in or voting power of such Person or other surviving entity immediately after such consolidation, merger, reorganization or transaction or (B) that does not directly, or indirectly through one or more entities, have the power to elect a majority of the entire board of directors or equivalent governing body of such Person or other surviving entity immediately after such consolidation, merger, reorganization or transaction or (ii) a sale, lease, license or other disposition of all or a material portion of the assets of such Person.

 

(n)            “ Claim ” means any claim, lawsuit, demand, audit, investigation, charge, suit, hearing, notice of a violation, litigation, action, proceeding, order, judgment, grievance, or arbitration, whether civil, criminal, administrative or otherwise, whether at law or in equity, or any inquiry likely to result in any of the foregoing.

 

(o)            “ Code ” means the Internal Revenue Code of 1986, as amended from time to time.

 

(p)            “ Common Stock ” means the Common Stock of Ibis, par value $0.001 per share.

 

(q)            “ Confidential Information ” means all information and any tangible embodiments thereof provided by or on behalf of the Disclosing Party to the Receiving Party or to the Receiving Party’s Representatives either in connection with the discussions and negotiations pertaining to the Transaction Documents or in the course of performing the Transaction Documents, including without limitation: know-how; data; knowledge; practices; processes; research and development plans; engineering designs and drawings; research data; manufacturing processes and techniques; scientific, manufacturing, marketing and business plans; and financial and personnel matters relating to the Disclosing Party or to its present or future products, sales, suppliers, customers, employees, consultants, independent contractors, investors or business; regardless of whether any of the foregoing are marked “confidential” or “proprietary” or communicated to the other by the Disclosing Party in oral, written, graphic or electronic form. Notwithstanding the foregoing, information of a Party will not be deemed Confidential Information to the extent that the Receiving Party can show by competent proof that such information:

 

(i)             is or becomes generally available to the public other than as a result of an unauthorized disclosure by the Receiving Party or its Representatives;

 

(ii)            was available to the Receiving Party or its Representatives on a non-confidential basis prior to its disclosure by the Disclosing Party or its Representatives;

 

(iii)           is or becomes available to the Receiving Party or its Representatives from a Person, other than the Disclosing Party or its Representatives,

 

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who is not bound by a confidentiality obligation to the Disclosing Party or its Representatives; or

 

(iv)           is independently developed by the Receiving Party or its Representatives without reference to or use of any Confidential Information of the Disclosing Party.

 

(r)             “ Contract ” means any contract, lease, deed, mortgage, license, instrument, note, commitment, undertaking, understanding, indenture, joint venture, purchase order, service order and all other agreements and arrangements, whether oral or written.

 

(s)            “ Contribution Agreement ” means the Contribution Agreement, dated as of July 31, 2007, by and between Isis and Ibis.

 

(t)             “ Corporate Services Agreement ” means that certain Corporate Services Agreement, dated as of July 31, 2007, by and between Isis and Ibis.

 

(u)            [***]

 

(v)            “ Division ” means the Ibis Biosciences division of Isis.

 

(w)           “ Earnout Threshold ” means $140 million minus all commercial revenue for the period beginning on [***], as set forth on Exhibit B , which has been prepared in accordance with GAAP and Isis’ internal controls and procedures for financial reporting and delivered pursuant to Section 8.17 .

 

(x)             “ Employee Pension Benefit Plan ” has the meaning set forth in Section 3(2) of ERISA.

 

(y)            “ Employee Welfare Benefit Plan ” has the meaning set forth in Section 3(1) of ERISA.

 

(z)             “ Encumbrance ” means any mortgage, covenant, hypothecation, condition, Claim, easement, encroachment, right of way, restriction, option, lien (statutory or otherwise), pledge, charge, license, security interest or encumbrance of any nature whatsoever.

 

(aa)          “ Environmental Laws ” means any federal, state, local or foreign statutes, ordinances, codes, treaties, or other Laws (including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, the Oil Pollution Prevention Act, the Federal Insecticide, Fungicide, & Rodenticide Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act, the Solid Waste Disposal Act, the Emergency Planning and Community Right-to-Know Act, the Occupational Safety and Health Act), including any regulations, rules, plans, other criteria, policies or guidelines promulgated pursuant to such Laws, and all common law, orders, judgments, decrees, judicial or agency interpretations now or hereafter in effect relating to pollution, the generation, production, installation, use, storage, treatment, transportation, Release, threatened Release, investigation, monitoring, remediation, cleanup, abatement, removal, or disposal of Hazardous

 

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Materials, noise control, odor or the protection of public or workplace health or safety, natural resources, or the environment.

 

(bb)          “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

 

(cc)          “ Fundamental AMI Representations ” means those representations and warranties of AMI set forth in Section 5.2(a)  (Power and Authority), Section 5.2(b)  (Enforceability), Section 5.2(c)  (Governmental Authority; Consents), and Section 5.2(d)  (No Conflicts).

 

(dd)          “ Fundamental Isis Representations ” means those representations and warranties of Isis set forth in Sections 5.1(a)  (Power and Authority), 5.1(b)  (Enforceability), 5.1(c)  (Governmental Authority; Consents), 5.1(d)  (No Conflicts), 5.2(e)  (Due Organization; Qualification), 5.1(g)  (Capitalization; Voting Rights), 5.1(j)  (Title to Properties and Tangible Assets; Liens, etc.), 5.1(k)  (Sufficiency of Assets), 5.1(m)  (Compliance with Other Instruments), 5.1(t)(ii)  (Certain Balance Sheet Items) and 5.1(v)  (Brokers’ Fees).

 

(ee)          “ GAAP ” means United States generally accepted accounting principles, applied on a consistent basis.

 

(ff)            “ Governmental Authority ” means any governmental or quasi-governmental agency, department, bureau, office, center, institute, court, commission or other unit of the government of the United States of America or of any of its respective States or local units of government thereof, or of a foreign sovereign or of a provincial, regional or metropolitan government thereof, including, without limitation, any Regulatory Authority.

 

(gg)          “ [***] ” means the [***] identified on Exhibit C , which has been prepared in accordance with GAAP and Isis’ internal controls and procedures for financial reporting, as updated and delivered pursuant to Section 8.17 .

 

(hh)          “ [***] ” means any payments due to Ibis from a [***] with respect to [***] awarded to Ibis or Contracts with Ibis, in each case to the extent Ibis has performed the research or other services described in the [***] or Contract, but not received payment therefor prior to the Closing Date.

 

(ii)            “ Hazardous Materials ” means any substance, chemical, solvent, compound, waste, residue, contaminant or other material which is regulated by or forms the basis of liability now or hereafter under any Environmental Law, including, without limitation:  (i) any “solid waste,” “dangerous goods,” “hazardous waste,” “hazardous substance,” “hazardous material,” “extremely hazardous waste,” “pollutant,” “contaminant,” “hazardous constituent,” “special waste,” “universal waste,” “toxic substance,” or any other similar term or phrase as defined under any Environmental Law; (ii) any petroleum, or petroleum products, byproducts or breakdown products, including crude oil and any fraction thereof; (iii) natural synthetic gas usable for fuel; (iv) any asbestos, lead-based paint, polychlorinated biphenyl, mold, radon gas, radioactive material or byproduct, isomer of dioxin, or any material or thing containing or composed of such substance or substances; and (v) any virus, bacteria, protozoa, parasite, fungi, or other pathogen or any other substance, chemical, solvent, compound, waste, residue,

 

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contaminant or other material which is hazardous, toxic, poisonous, reactive, corrosive or otherwise may present a threat to human health, safety, natural resources, wildlife or the environment.

 

(jj)            “ Ibis Net Sales ” means:

 

(i)             the gross amount billed by Ibis or its Affiliates after the Closing for the sale or other transfer or disposition of Products to, or performance of Services for, non-Affiliate third parties in bona fide arms length transactions, less deductions for:

 

A.             discounts, including cash discounts, customary trade allowances or rebates actually taken, and promotional discounts;

 

B.             credits or allowances given or made for rejection, recall or return of previously sold Products and rebates for previously provided Services;

 

C.             any Tax (including any Tax such as a value added or similar Tax) levied on the sale, transportation or delivery of Products when included on the invoice or other written document between the parties as payable by the purchaser and collectable by Ibis; and

 

D.             freight, postage, transportation, insurance and duties on shipment of Product when included on the invoice or written document between the parties as payable by the purchaser and collectable by Ibis;

 

(ii)            [***]; and

 

(iii)           the amount of any [***].

 

Ibis Net Sales calculations shall be applied as provided above and modified as appropriate as follows:

 

1. When a Product is sold or licensed by Ibis or its Affiliates or a Service is provided to a non-Affiliate third party with whom Ibis or such Affiliate does not deal at arms length, Ibis Net Sales for that Product or Service shall equal an average of Ibis Net Sales for similar quantities of Products sold or Services provided within the same calendar quarter in an arms length transaction in the same geographic market and class of purchasers or Service recipients as the non-arms length purchaser or Service recipient.

 

2. In the event that a Product is sold or a Service provided in combination with any other product(s) or service(s), Ibis Net Sales with respect to the Product or Service of the combination shall be determined by the fraction A over A + B in which “A” is Ibis Net Sales of the Product or Service portion of the combination when sold separately during the applicable calendar quarter, and “B” is Ibis Net Sales of the other product(s) or service(s) of the combination product or service when sold separately during the applicable calendar quarter.

 

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3. In the event a Product or Service is incorporated into a profile in which said Product or Service contributes only a small proportion of the value of the total package, but the adjustment set forth in paragraph 2, above is impractical or if similar quantities of product(s) are not sold or similar quantities of Services are not provided pursuant to paragraph 1, above, then the Parties shall negotiate in good faith to establish an equitable adjustment to Ibis Net Sales for such Product or Service to fairly reflect the proportion of the value of the profile contributed by the Product or Service or the value of the Product or Service.

 

(kk)          “ Indebtedness ” means (i) all indebtedness or other obligations of Ibis for borrowed money, whether current, short-term or long-term, secured or unsecured, and all accrued interest, premiums, penalties and other obligations relating thereto, (ii) all indebtedness of Ibis for the deferred purchase price of property or services which is not evidenced by accounts payable incurred in the ordinary course of business, (iii) all existing lease obligations of Ibis under leases which are capital leases in accordance with GAAP, (iv) any liability of Ibis under deferred compensation plans, phantom stock plans, severance or bonus plans, or any change in control or similar payment or increased cost which is triggered or made or will be made payable by Ibis as a result of the transactions contemplated hereby, other than the Bonus Arrangement, (v) any off balance sheet financing of Ibis, (vi) any payment obligations of Ibis in respect of banker’s acceptances or letters of credit, (vii) any liability of Ibis with respect to interest rate swaps, collars, caps and similar hedging obligations, (viii) all obligations of Ibis arising under or with respect to any conditional sale or other title retention agreement with respect to property acquired by Ibis, (ix) past due or deferred rent of Ibis, (x) the amount of accounts payable owed by Ibis to any Person that have not been paid within 45 days of the date of invoice thereof (xi) all “cut” but “uncashed” checks of Ibis outstanding as of the Closing, (xii) any indebtedness referred to above of any Person which is either guaranteed by, or secured by a security interest upon any property owned by, Ibis and (xiii) accrued and unpaid interest of, and prepayment premiums, penalties or similar contractual charges arising as a result of the discharge of any such foregoing obligation.

 

(ll)            “ Intellectual Property ” means all of the following in any jurisdiction throughout the world:  (i) patents, patent applications and patent disclosures and statutory invention registrations, including reissues, divisions, continuations, continuations in part, extensions and reexaminations thereof; (ii) trademarks, service marks, trade dress, trade names, corporate names, logos and slogans (and all translations, adaptations, derivations and combinations of the foregoing) and Internet domain names any and all common law rights and registrations and applications for the registration thereof, and all extensions and renewals of any of the foregoing; (iii) copyrights and copyrightable works (including Software), registered copyrights and copyright applications, mask works, net lists and schematics; (iv) confidential and proprietary information including technology, know-how, trade secrets, unpatented inventions, ideas, algorithms and processes (including, without limitation, manufacturing and production processes and techniques, drawings, specifications, designs, plans, proposals, test data including pharmacological, biological, chemical, biochemical, toxicological and clinical test data, analytical and quality control data, stability data and customer and supplier lists and related information); (v) other intellectual property and proprietary information and (vi) all copies and tangible embodiments of the foregoing, such as instruction manuals, laboratory notebooks, prototypes, samples, specimens, studies and summaries.

 

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(mm)        “ Investment Date ” means January 23, 2008.

 

(nn)          “ Investment Documents ” means the Master Agreement, the Call Option Agreement, the Investor Rights Agreement and the Stock Subscription Agreement.

 

(oo)          “ Investor Rights Agreement ” means that certain Investor Rights Agreement, dated as of the Investment Date, by and among Isis, Ibis and AMI.

 

(pp)          “ Isis Licensed Intellectual Property ” means the Intellectual Property set forth on Exhibit D .

 

(qq)          [***]

 

(rr)            “ Knowledge ” and terms of similar meaning (including, without limitation, “is aware of”) mean (i) with respect to Ibis and Isis, the actual knowledge of any of the individuals set forth on Schedule 1(rr) , after due investigation, including, without limitation, inquiry of Persons with subject matter knowledge, provided that (A) solely for purposes of Sections 5.1(l)(v) , 5.1(l)(vi)  and 5.1(l)(ix) , “Knowledge” and terms of similar meaning (including, without limitation, “is aware of”) mean the actual knowledge of any employee of Ibis or Isis, after due investigation, including, without limitation, inquiry of Persons with subject matter knowledge and (B) solely for purposes of Section 5.1(l) , inquiry of Persons with subject matter knowledge shall include inquiry of the outside counsel involved in the development or prosecution of the Business IP or who conducted ‘freedom to operate analyses’ identified on Schedule 1(rr) and (ii) with respect to AMI, the actual knowledge of any of the individuals set forth on Schedule 1(rr) , after due investigation.

 

(ss)          “ Licenses ” means all licenses, permits, certificates of authority, variances, authorizations, approvals, registrations, franchises, orders and similar consents issued by any Governmental Authority or other Person, provided , that the term License shall not include any license or other right to use any Intellectual Property.

 

(tt)            “ Loss ” means any loss, liability, demand, Claim, action, cause of action, cost, damage, diminution in value, deficiency, Tax, penalty, fine or expense (including interest, penalties, reasonable attorneys’ fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing and the enforcement of any related rights), whether or not arising out of third party claims.

 

(uu)          “ Management Presentations ” means the Management Presentations of Ibis delivered to AMI pursuant to Section 2(h)  of the Master Agreement.

 

(vv)          “ Master Agreement ” means that certain Strategic Alliance Master Agreement, dated as of the Investment Date, by and among Isis, Ibis and AMI.

 

(ww)        “ Multiemployer Plan ” has the meaning set forth in Section 3(37) of ERISA.

 

(xx)           “ Offering Memorandum ” means the Offering Memorandum of Ibis, dated November 2006, as made available to AMI.

 

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(yy)          “ [***] ” means any payments, including, but not limited to royalty payments, license fees and milestone payments that are made by non-Affiliate third parties to [***] (or any of its Affiliates) in bona fide arms length transactions in consideration for one or more license or equivalent agreements that grant such non-Affiliate third party rights under any [***] (i) make, have made, use, sell, offer for sale or import any products by [***] to another party for a fee, in each case, where any of the foregoing conduct by such non-Affiliate third party in the absence of such rights under license or equivalent agreement would infringe (directly, contributorily, by inducement or otherwise), misappropriate or otherwise conflict with any [***].

 

(zz)           “ Permitted Encumbrances ” means (i) liens for current property Taxes not yet due and payable, (ii) Encumbrances arising in connection with and solely as a result of Permitted Indebtedness and (iii) except with respect to Intellectual Property, other imperfections of title, restrictions or Encumbrances, if any, which imperfections, restrictions or Encumbrances do not, individually or in the aggregate, impair the continued use and operation of the assets used in the operation of the Business and do not affect the merchantability of the title to such assets to which they relate.

 

(aaa)        “ Permitted Indebtedness ” means (i) accounts payable incurred in the ordinary course of business that are paid within forty-five (45) days of the date of invoice thereof, (ii) Indebtedness arising from existing and future lease obligations of Ibis under equipment leases that are capital leases in accordance with GAAP so long as the collateral for such capital leases is limited to the equipment acquired and the aggregate amount of such capital leases does not exceed [***] and (iii) Indebtedness incurred pursuant to the Corporate Services Agreement or the Contribution Agreement.

 

(bbb)       “ Person ” means an individual, a partnership, a corporation, an association, a limited liability company, a joint stock company, a trust, a joint venture, an unincorporated organization, or a Governmental Authority (or any department, agency, or political subdivision thereof).

 

(ccc)        “ Pre-Closing Tax Period ” means a Tax period ending on or before the Closing Date and the portion through the end of the Closing Date for any Tax period that includes (but does not end on) the Closing Date.

 

(ddd)       “ Post-Closing Tax Period ” means a Tax period beginning after the Closing Date and, for any Tax period that includes (but does not end on) the Closing Date, the portion of such period beginning after the Closing Date.

 

(eee)        “ Products ” means the T5000 Biosensor System (including kits) and any Successor Products.

 

(fff)          “ Purchase Offer ” means any proposal or offer from any Person (other than AMI and its Affiliates in connection with the transactions contemplated hereby) or any agreement or offer relating to any (i) reorganization, liquidation, dissolution, share exchange, business combination or recapitalization of Ibis, (ii) merger or consolidation involving Ibis, (iii) purchase or sale of any assets or Capital Stock of Ibis (other than the purchase and sale of inventory and capital equipment in the ordinary course of business), (iv) distribution of Ibis’

 

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existing or future products, (v) licensing of any Business IP from Ibis or (vi) any other transaction or business combination involving Ibis or its business or assets which would reasonably be expected to interfere with, impede or materially delay the transactions contemplated by the Transaction Documents or dilute the benefits thereof to AMI and its Affiliates.

 

(ggg)       “ Real Property ” means the Leased Real Property.

 

(hhh)       “ Regulatory Authority ” means any Governmental Authority that has responsibility for granting any licenses or approvals or granting pricing and/or reimbursement approvals necessary for the marketing and sale of medical devices or diagnostic products, including without limitation, the FDA, the European Medicines Agency and the United States Department of Health and Human Services.

 

(iii)           “ Release ” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, depositing, disposing or other release into the environment (including the abandonment or discarding of barrels, drums, containers or other closed receptacles), including any dispersal, migration or other movement of any substance through or in air, soil, surface water, groundwater or property.

 

(jjj)           “ Representatives ” means with respect to any Person, such Person’s employees, directors, officers, Affiliates and authorized agents.

 

(kkk)        “ Schedule ” means any of the Disclosure Schedules delivered to AMI herewith and incorporated herein pursuant to Section 10.11 hereof.

 

(lll)           “ SEC ” or “ Commission ” means the United States Securities and Exchange Commission.

 

(mmm)     “ Securities Act ” means the Securities Act of 1933, as amended.

 

(nnn)       “ Services ” means using any Business IP to analyze samples containing nucleic acids and providing the results of such analyses to a third party for a fee.

 

(ooo)       “ Shares ” means 114,251 shares of Common Stock issued to AMI pursuant to the Master Agreement, as may be held from time to time by AMI and its permitted assigns, representing approximately 10.25% of the issued and outstanding Common Stock.

 

(ppp)       “ Software ” means any and all (i) computer programs, libraries, firmware and middleware, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code, (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (iii) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing and (iv) all programmer and user documentation, including user manuals and training materials, relating to any of the foregoing.

 

(qqq)       “ Stock Subscription Agreement ” means the Stock Subscription Agreement dated as of June 27, 2008, by and among Ibis, Isis and AMI.

 

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(rrr)          “ Subsidiary ” means, with respect to a Person, any corporation, limited liability company, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof.  For purposes hereof, a Person shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or control any managing director or general partner of such limited liability company, partnership, association or other business entity.

 

(sss)        “ Successor Products ” means any product that (i) relies upon [***] and determination of [***] by [***] using either the Ibis [***], each as in existence in the Business at the Closing, including as may be modified subsequently by AMI or (ii) is described in U.S. Patent No.’s [***].

 

(ttt)          “ T5000 Biosensor System ” means the biosensor platform generally known as the T5000 Biosensor System, together with all equipment, hardware, Software, systems and other materials required for its use, or provided or recommended by Ibis, Isis or any of their respective Affiliates for its use, as well as all prior versions of the T5000 Biosensor System, including such systems known as “TIGER.”

 

(uuu)       “ Tax ” means any federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs and other duties, capital stock, franchise, profits, withholding, social security, unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not, and including any obligation to indemnify or otherwise assume or succeed to the Tax liability of any other Person.

 

(vvv)       “ Tax Return ” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

 

(www)     “ Third Party Payments ” means payments, including, but not limited to damage awards, royalty payments, license fees and milestone payments, that are made by [***] to a third party, which are based upon making, having made, using, selling, offering for sale or importing [***], under order of a Governmental Authority or license agreements or equivalent agreements with the third party to obtain rights under any United States or foreign copyrights, patent applications or patents that are [***] to make, have made, use, sell, offer for sale or import any [***].

 

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(xxx)         “ Transaction Documents ” means the Master Agreement, the Investor Rights Agreement, the Stock Subscription Agreement, the Call Option Agreement, the Transition Services Agreement and this Agreement.

 

(yyy)       “ Transfer ” means, with respect to Capital Stock, any sale, pledge, hypothecation, assignment, Encumbrance or other transfer or disposition, whether directly, indirectly, voluntarily, involuntarily, by operation of Law, pursuant to judicial process or otherwise and, when the context so requires, the act of doing any of the foregoing.

 

Section references for definitions of defined terms defined in the body of this Agreement rather than in this Section 1 .

 

Defined Term		Section
“§ 338(h)(10) Election”		8.6(g)
“Abbott”		Preamble
“ADR”		10.8
“Agreement”		Preamble
“AMI”		Preamble
“AMI Group”		8.2(a)
“AMI Proceeding”		8.6(e)(ii)
“Applicable AMI Proceeding”		8.6(e)(ii)
[***]
“Business IP”		5.1(l)(i)
“Closing”		3.1
“Closing Date”		3.1
“Closing Purchase Price”		2.2
“Disclosing Party”		8.8(a)
“Disclosure Schedules”		Section 5
“Earnout Payments”		2.3(e)
“Earnout Period”		2.3(a)
“Earnout Rate”		2.3(a)
“ERISA Affiliate”		5.1(p)(ii)
“ERISA Plans”		5.1(p)(ii)
“FDA”		5.1(q)(i)
“Financial Statements”		5.1(t)(i)
“Government Contracts”		5.1(l)(ii)

 

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“HSR Act”		4.1(d)
“Ibis”		Preamble
“Ibis Contracts”		5.1(x)(i)
“Ibis Employees”		8.11(a)
“Indemnified Party”		8.2(e)
“Indemnifying Party”		8.2(e)
“Insurance Policies”		5.1(y)
“IP Contracts”		5.1(l)(ii)
“Isis”		Preamble
“Isis Proceeding”		8.6(e)(i)
“Isis Retirement Plans”		8.11(d)
“Leased Real Property”		5.1(w)(ii)
“Leasehold Improvements”		5.1(w)(ii)
“Leases”		5.1(w)(ii)
“Material Adverse Effect”		4.1(j)
“Material Licenses”		5.1(q)(ii)
“Most Recent Balance Sheet”		5.1(t)(i)
“Noncompete Period”		8.9(a)
“Nonsolicitation Period”		8.9(c)
“Note”		7.12
“Parties”		Preamble
“Party”		Preamble
“Plans”		5.1(p)(ii)
“Pre-Existing Business”		8.9(b)
[***]
“Purchase Price”		2.2
“Rate Reserve Limit”		8.15
[***]
“Receiving Party”		8.8(a)
“Remaining Shares”		Recitals
“Restricted Assets”		2.5
“Seller Group”		8.2(b)
“Special AMI Claims”		8.2(e)(iii)

 

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“Straddle Period”		8.6(c)(ii)
“Third Party Claim”		8.2(e)
“Transaction Value”		2.2
“Transition Services Agreement”		4.1(k)
“WARN Act”		8.11(b)

 

Section 2.               BASIC TRANSACTION; PURCHASE PRICE.

 

2.1            Sale and Transfer of the Remaining Shares .  Subject to the terms and conditions of this Agreement, at the Closing, Isis shall sell, convey, assign, transfer and deliver to AMI all of the Remaining Shares, free and clear of all Encumbrances, and AMI shall purchase, acquire and accept the Remaining Shares from Isis.

 

2.2            Purchase Price.   The purchase price (the “ Purchase Price ”) for the Remaining Shares shall be equal to (i) $175,000,000 (the “ Transaction Value ”), minus (ii) the amount of any Indebtedness of Ibis as of the Closing (not including the amount of any Indebtedness that is Permitted Indebtedness under clauses (i) or (ii) of the Permitted Indebtedness definition), plus (iii) the Earnout Payments.  The “ Closing Purchase Price ” is an amount equal to (x) the Transaction Value, minus (y) the amount of any Indebtedness of Ibis as of the Closing (not including the amount of any Indebtedness that is Permitted Indebtedness under clauses (i) or (ii) of the Permitted Indebtedness definition).

 

2.3            Earnout Payments.

 

(a)            Subject to Sections 2.3(e)  and 2.3(g) , from and after the Closing Date until December 31, 2025 (the “ Earnout Period ”), Ibis will pay to Isis an amount equal to five percent (5%) (the “ Earnout Rate ”) of cumulative Ibis Net Sales that are (i) in excess of the Earnout Threshold and (ii) less than or equal to $2,100,000,000.  Such amounts payable to Isis will be reduced by an amount equal to [***] of any [***], but in no event will such amounts for such Ibis Net Sales be less than two and a half percent (2.5%) of such cumulative Ibis Net Sales.

 

(b)            For cumulative Ibis Net Sales during the Earnout Period that are in excess of $2,100,000,000, the Earnout Rate will reduce from 5% to 3%.  The corresponding amounts payable to Isis will be reduced by an amount equal to [***] of any [***], but in no event will such amounts for such Ibis Net Sales be less than one and a half percent (1.5%) of such cumulative Ibis Net Sales.

 

(c)            In calculating the amount of any reduction to the earn-out payments permitted by the second sentence of either Section 2.3(a)  or Section 2.3(b)  that result from any [***] that are [***], the amount of such [***] [***] will be [***] of the Earnout Period from the date of such [***].  For example, if Ibis makes a [***] in the form of [***] equal to [***] to [***] which, in AMI’s reasonable judgment was [***] and such [***] was made in 2015, then, in each calendar quarter, Ibis would be able to reduce the corresponding amounts

 

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payable for such quarter by [***], in each case subject to the applicable 2.5% or 1.5% floor under Section 2.3(a)  or Section 2.3(b) .

 

(d)            The earnout amounts described in Sections 2.3(a)  and 2.3(b)  will be payable on a quarterly basis, within [***] days after the last day of each calendar quarter, by wire transfer of immediately available funds to an account designated by Isis.  Within [***] [***] days of the end of each calendar quarter, Ibis will deliver to Isis its non-binding, preliminary, good faith estimate of Ibis Net Sales for such calendar quarter.  All amounts included in Ibis Net Sales shall be in United States funds collectible at par in Chicago, Illinois.  With respect to Product or Service revenues, [***], or [***] that are used in the calculation of Ibis Net Sales and are in monies other than United States dollars, the amount to be used will first be determined in the foreign currency of the country for such monies and then converted into equivalent United States funds using the same conversion methodology that Abbott uses to prepare its financial statements filed with the SEC.

 

(e)            Notwithstanding the foregoing, Sections 2.3(a)  through 2.3(c) , (i) the earnout amounts described in Sections 2.3(a)  and 2.3(b)  will be payable only on cumulative Ibis Net Sales in excess of the Earnout Threshold, (ii) no such earnout amounts will be payable in any calendar year in which total Ibis Net Sales in such calendar year were less than or equal to [***], (iii) in any calendar year in which Ibis Net Sales exceed [***] and cumulative Ibis Net Sales exceed the Earnout Threshold, the earnout amounts described in Sections 2.3(a)  and 2.3(b)  will be payable with respect to all Ibis Net Sales in such calendar year which are in excess of the Earnout Threshold and (iv) all Ibis Net Sales, regardless of whether earnout amounts are payable thereon, will be included in cumulative Ibis Net Sales for purposes of determining the applicable Earnout Rate.  For example, if Ibis Net Sales in each of the calendar years 1 and 3 are equal to [***] and Ibis Net Sales in each of the calendar years 2 and 4 are equal to [***], no earnout amounts would be payable in calendar years 1 through 3, but earnout amounts would be payable with respect to the entire [***] in Ibis Net Sales in calendar year 4.  The earnout amounts payable by Ibis to Isis pursuant to this Section 2.3 are referred to herein as the “ Earnout Payments .”

 

(f)             Ibis shall maintain its books and records used to determine Ibis Net Sales, [***], and [***] for a period of three (3) years from the date of the Earnout Payment to which they pertain.  Ibis shall make such books and records available for inspection by third party representatives of Isis approved in writing (which approval shall not be unreasonably withheld, conditioned or delayed) once per calendar year at reasonable times and upon reasonable written advance notice from Isis.  All information contained in these books and records shall be Confidential Information and will be used only for the purpose of determining the accuracy of Ibis’ calculation of any Earnout Payment.

 

(g)            Notwithstanding any provision of this Agreement or any other Transaction Document to the contrary, except with respect to any [***] arising as a result of or in connection with a breach of the representations and warranties set forth in Section 5.1(l)(v) , the Earnout Payment reductions set forth in Sections 2.3(a)  and 2.3(b)  will be the AMI Group’s sole and exclusive remedy for any [***].

 

2.4            [ Reserved ]

 

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2.5            Restricted Assets .  Notwithstanding any other provision in this Agreement to the contrary, this Agreement shall not constitute an agreement to assign or transfer any interest in any Contract, asset, claim, right or benefit the assignment or transfer of which is otherwise contemplated by the transactions contemplated by this Agreement to the extent such assignment or transfer (or attempt to make such an assignment or transfer) without the consent or approval of a third party would constitute a breach or other contravention of the rights of such third party, or affect adversely the rights of any Party or their Affiliates thereunder (such assets being collectively referred to herein as “ Restricted Assets ”).  Any assignment or transfer of a Restricted Asset shall be made subject to such consent or approval being obtained.  If any such consent or approval is not obtained prior to the Closing, (a) the assigning or transferring Party shall continue to use its commercially reasonable efforts to cooperate with the other Party in attempting to obtain any such consent or approval and (b) establish alternative arrangements (such as a license, sublease, subcontract or operating agreement) until such time as such consent or approval has been obtained which results in the assignee or transferee Party receiving all the benefits and bearing all the burdens with respect to any such Restricted Asset (subject to Section 8.4 , pursuant to which Isis shall be liable for and pay all out-of-pocket costs and expenses associated with obtaining third party consents associated with any Ibis Contract or Restricted Asset in excess of [***] in the aggregate).

 

Section 3.               CLOSING OF THE TRANSACTION.

 

3.1            The Closing .  Subject to the satisfaction or waiver of the conditions set forth herein, the closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place at the offices of Kirkland & Ellis LLP in Chicago, Illinois, at 10:00 a.m. Central Time on the third Business Day following the satisfaction or waiver of all conditions to the obligations of the Parties to consummate the transactions contemplated, or on such other date, time and place as the Parties may mutually agree in writing (the “Closing Date”), and the Closing shall be deemed effective as of 12:01 a.m. Pacific Time on the Closing Date.

 

3.2            Deliveries at the Closing.  At the Closing:

 

(a)            Isis shall deliver to AMI (i) the various certificates, agreements, instruments and documents referred to in Section 4.1 below and (ii) such other instruments of sale, transfer, conveyance and assignment as AMI reasonably may request;

 

(b)            AMI shall deliver to Isis (i) the Closing Purchase Price, via wire transfer of immediately available funds to an account designated in writing by Isis at least five (5) Business Days prior to the Closing Date, and (ii) the various certificates, agreements, instruments and documents referred to in Section 4.2 below;

 

(c)            Isis shall deliver to Ibis all books, records and other materials of Ibis or related to or used by Ibis in the Business, including the corporate minute book and stock ledger for Ibis (unless otherwise specifically set forth in the Transition Services Agreement); and

 

(d)            Isis shall deliver to AMI one or more compact discs or other electronic media containing the contents of the electronic dataroom maintained by Isis at [***] as of the date that is three Business Days prior to the date hereof, together with a certificate of an

 

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authorized officer certifying that such compact discs contain true, accurate and complete copies of the materials in such dataroom as of such date.

 

Section 4.               CONDITIONS TO OBLIGATION TO CLOSE.

 

4.1            Conditions to Obligation of AMI .  The obligation of AMI to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:

 

(a)            Each of the representations and warranties of Isis set forth in this Agreement shall be true and correct in all material respects at and as of the date hereof and as of the Closing Date (disregarding any materiality or Material Adverse Effect qualifications contained therein, other than such qualifications contained in Section 5.1(aa) ); provided , that any representation or warranty of Isis set forth in this Agreement that is made as of any date other than the date hereof shall be true and correct as of such date in all material respects (disregarding any materiality or Material Adverse Effect qualifications contained therein).

 

(b)            Each of Isis and Ibis shall have performed and complied in all material respects with each of their covenants hereunder through the Closing.

 

(c)            No Claim shall be pending before any court, arbitrator, other body or administrative agency of any Governmental Authority wherein an unfavorable injunction, judgment, order, decree, ruling or charge would prevent consummation of any of the transactions contemplated by this Agreement (and no such injunction, judgment, order, decree, ruling or charge shall be in effect).

 

(d)            All filings with and authorizations and approvals of Governmental Authorities that are required for the consummation of the transactions contemplated hereby shall have been duly made and obtained on terms reasonably satisfactory to AMI.  Without limiting the generality of the foregoing, all applicable waiting periods (and any extensions thereof) under the Hart Scott Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”), shall have expired or otherwise been terminated.

 

(e)            Isis shall have delivered to AMI (i) a certificate from an officer of Isis to the effect that each of the conditions specified in Section 4.1(a) , Section 4.1(b)  and, except for the matters expressly set forth on the Disclosure Schedules, Section 4.1(j) , is satisfied in all respects, (ii) a copy of the resolutions of the governing body of each of Isis and Ibis approving the transactions contemplated by this Agreement, certified by an officer of each of Isis and Ibis, respectively, (iii) certificates from appropriate authorities, dated as of or about the Closing Date, as to the good standing and qualification to do business of Ibis in its jurisdiction of incorporation, (iv) such other documents or instruments as are required to be delivered at the Closing pursuant to the terms hereof and (v) such other documents or instruments as AMI reasonably requests to effect the transactions contemplated hereby.  Nothing in this Section 4.1(e)  or the certificate delivered pursuant hereto will limit or otherwise affect AMI’s rights under Section 4.1(j) .

 

(f)             Isis shall tender to AMI a certificate representing the Remaining Shares duly and validly endorsed for transfer in favor of AMI or accompanied by a separate

 

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stock power duly and validly executed by Isis and otherwise sufficient to vest in AMI legal and beneficial ownership of the Remaining Shares.

 

(g)            Isis and AMI shall have received all other authorizations, consents, and approvals of Governmental Authorities referred to in Sections 5.1(c)  and 5.1(d) .

 

(h)            Ibis shall have the benefit of all Licenses necessary to conduct the Business as it had been conducted prior to the Closing and as contemplated to be conducted immediately thereafter.

 

(i)             Isis shall have obtained (A) payoff letters for any Indebtedness of Ibis to be paid by AMI on behalf of Isis at the Closing and (B) releases of any and all Encumbrances on the Remaining Shares or the assets of Ibis (except, with respect to the assets of Ibis, Permitted Encumbrances), all on terms reasonably satisfactory to AMI.

 

(j)             Since the Investment Date, there shall have been no occurrence or disclosure of any event, circumstance or state of facts which has, or would reasonably be expected to have, a material adverse effect on the business, assets, condition (financial or otherwise), operations, operating results, employee relations, customer relations or supplier relations of Ibis (a “ Material Adverse Effect ”).  Notwithstanding the foregoing or any other provision in this Agreement to the contrary, the disclosures set forth in the Disclosure Schedules shall not be considered in determining whether the condition specified in this Section 4.1(j)  has been met.

 

(k)            Isis and Ibis shall have executed and delivered to AMI the Transition Services Agreement substantially in the form attached hereto as Exhibit E , the terms of which shall provide that (i) subject to Section 8.14 , in no event will AMI and Ibis together be required to pay to Isis more than $[***] in the aggregate for the Initial Services (as defined in the Transition Services Agreement) provided by Isis thereunder, (ii) Isis will provide only the categories of services set forth on Exhibit E-1 attached hereto, and (iii) Ibis will not occupy Isis’ facilities nor will Isis be required to provide services to Ibis after [***] (the “ Transition Services Agreement ”), and the Transition Services Agreement shall be in full force and effect.

 

(l)             Isis shall have executed and delivered to AMI a non-foreign affidavit dated as of the Closing Date and in form and substance required under the Treasury Regulations issued pursuant to Code § 1445 stating that Isis is not a “Foreign Person” as defined in Code § 1445.

 

(m)           There shall not have been any material breach of any of the terms and provisions of the Transaction Documents that has not been waived by AMI.

 

(n)            Except as contemplated by Section 2.5 and the Transition Services Agreement, Ibis shall be entitled to fully exercise without restriction or limitation all legal and beneficial rights under the Ibis Contracts (including the Government Contracts) and all other assets, properties and rights related to, used in or necessary to operate and conduct the Business in all respects in the manner conducted on and prior to the Closing Date and as contemplated to be conducted from and after the Closing Date.

 

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[***]AMI may waive any condition specified in this Section 4.1 if it executes a writing so stating at or prior to the Closing.  In the event of any such waiver, AMI shall be deemed to have waived any claim against Isis for failure to satisfy such condition; provided that, except to the extent specifically and expressly set forth in such waiver, any such waiver shall not limit AMI’s right to recovery hereunder for a breach by either Isis or Ibis of any other provision of this Agreement.

 

4.2            Conditions to Obligation of Isis .  The obligation of Isis to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:

 

(a)            Each of the representations and warranties of AMI set forth in this Agreement shall be true and correct in all material respects at and as of the date hereof and as of the Closing Date.

 

(b)            AMI shall have performed and complied in all material respects with each of its covenants hereunder through the Closing;

 

(c)            No Claim shall be pending before any court, arbitrator, other body or administrative agency of any Governmental Authority wherein an unfavorable injunction, judgment, order, decree, ruling or charge would prevent consummation of any of the transactions contemplated by this Agreement (and no such injunction, judgment, order, decree, ruling or charge shall be in effect).

 

(d)            All filings with and authorizations and approvals of Governmental Authorities that are required for the consummation of the transactions contemplated hereby shall have been duly made and obtained on terms reasonably satisfactory to Isis.  Without limiting the generality of the foregoing, all applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or otherwise been terminated.

 

(e)            AMI shall have delivered to Isis a certificate of AMI to the effect that each of the conditions specified above in Section 4.2(a)  and Section 4.2(b)  is satisfied in all respects.

 

(f)             AMI (and any other Abbott Holders (as defined in the Investor Rights Agreement)) shall have executed and delivered to Isis a written consent in form reasonably satisfactory to AMI and Isis, consenting to the transactions contemplated by Section 7.10 .

 

Isis may waive any condition specified in this Section 4.2 if it executes a writing so stating at or prior to the Closing.  In the event of any such waiver, Isis shall be deemed to have waived any claim against AMI for failure to satisfy such condition; provided that, except to the extent specifically and expressly set forth in such waiver, any such waiver shall not limit Isis’ right to recovery hereunder for a breach by AMI of any other provision of this Agreement.

 

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Section 5.               REPRESENTATIONS AND WARRANTIES.

 

5.1            Representations and Warranties of Isis . As a material inducement to AMI to enter into this Agreement, except as set forth in the corresponding Section of the Disclosure Schedules delivered to AMI herewith on the date hereof (the “ Disclosure Schedules ”), Isis hereby represents and warrants the following representations and warranties are as of the date hereof, and will be as of the Closing Date, true and correct:

 

(a)    Power and Authority . Each of Ibis and Isis (i) has the power, authority and the legal right to enter into each of the Transaction Documents and to perform its obligations hereunder and thereunder, and (ii) has taken all necessary action required to authorize the execution and delivery of each of the Transaction Documents and the performance of its obligations hereunder and thereunder.

 

(b)    Enforceability . Each of the Transaction Documents has been duly executed and delivered on behalf of Ibis and Isis and constitutes a legal, valid and binding obligation of each such Party and is enforceable against each such Party in accordance with its terms subject to the effects of bankruptcy, insolvency or other Laws of general application affecting the enforcement of creditor rights.

 

(c)    Governmental Authority; Consents . All necessary consents, approvals and authorizations of all Governmental Authorities and other parties required to be obtained by Ibis and Isis in connection with the execution and delivery of each of the Transaction Documents and the performance of their obligations hereunder and thereunder have been obtained.

 

(d)    No Conflicts . The execution and delivery of each of the Transaction Documents by each of Ibis and Isis and the performance of each such Party’s obligations hereunder and thereunder, with or without the passage of time or giving of notice, (i) do not and will not conflict with or violate any requirement of Applicable Law or any provision of the certificate of incorporation, bylaws or any similar instrument of such Party, as applicable (ii) do not and will not require any notice, conflict with, violate, or breach or constitute a default or require any consent or give rise to any termination or acceleration right or the creation of any Encumbrance on the Shares, the Additional Shares or the Remaining Shares or any of the properties or assets of Ibis under, any contractual obligation by which such Party is bound or subject to and (iii) do not and will not cause the suspension, revocation, impairment, forfeiture or nonrenewal of any License applicable to Ibis, the Business or any of Ibis’ operations, assets or properties.

 

(e)    Due Organization; Qualification . Each of Ibis and Isis is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, with full corporate power and authority to enter into each of the Transaction Documents. Except as would not reasonably be expected to have a Material Adverse Effect, Ibis has obtained and currently maintains all qualifications to do business as a foreign corporation in all jurisdictions in which the character of the Business requires it to be so qualified. Ibis has all requisite power and authority and all authorizations and Licenses necessary to own, operate or conduct the Business.

 

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(f)     Subsidiaries . Ibis does not own or control any Capital Stock or other interest of any Person. Ibis is not a participant in any joint venture, partnership, limited liability company or similar arrangement. Since its inception Ibis has not merged with, acquired all or substantially all of the assets of (except pursuant to the Contribution Agreement) or acquired the Capital Stock of or any interest in any Person. Ibis does not hold the right to acquire any Capital Stock or interest in any other Person or have any obligation to make any investment in any Person and no such rights, Capital Stock or interests are necessary for the operation of the Business. Isis does not control or possess the power, directly or indirectly to control the management, actions or policies of Regulus Therapeutics, LLC.

 

(g)    Capitalization; Voting Rights .

 

(i)             The authorized Capital Stock of Ibis consists of 1,228,501 shares of Common Stock, par value $0.001 per share, 1,228,501 shares of which are issued and outstanding, 1,000,000 of which are held by Isis and 228,501 shares of which are held by AMI.

 

(ii)            The issued and outstanding Capital Stock of Ibis as of the Closing will consist exclusively of the Shares, the Additional Shares and the Remaining Shares. Except as set forth in the Investor Rights Agreement, Ibis does not have any obligations to issue or redeem any shares of Capital Stock and Ibis has not issued any Capital Stock other than the Shares, the Additional Shares and the Remaining Shares. No Capital Stock issued by Ibis is listed on any stock exchange or unregulated market. Other than the Transaction Documents, there are no agreements with Isis or Ibis or any other Person with respect to the voting or Transfer of the Remaining Shares.

 

(iii)           The Remaining Shares are: (A) duly authorized, validly issued, fully paid and nonassessable; (B) issued in compliance with all applicable state and federal Laws concerning the issuance of Capital Stock; and (C) free and clear of all Encumbrances other than the Call Option; provided, that the Remaining Shares may be subject to restrictions on Transfer under state and/or federal securities Laws as set forth herein or as otherwise required by such Laws at the time a Transfer is proposed.

 

(iv)           The sale of the Remaining Shares to AMI hereunder is not subject to any preemptive rights, rights of first refusal or similar rights.

 

(h)    Agreements; Liabilities .

 

(i)             There are no judgments, orders, writs or decrees to which Ibis or Isis is a party currently pending or, to Isis’ or Ibis’ Knowledge, threatened which would prevent Ibis or Isis from entering into the Transaction Documents or issuing or Transferring the Remaining Shares pursuant to the terms of the Transaction Documents.

 

(ii)            Ibis has not (A) accrued, declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its Capital Stock, (B) incurred or guaranteed any Indebtedness (other than Permitted Indebtedness), (C) made any loans or advances to any Person, other than advances for reasonable travel expenses to Ibis employees in the ordinary course of business, or

 

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(D) sold, exchanged, licensed or otherwise disposed of any of its tangible assets, other than the sale of its inventory in the ordinary course of business.

 

(iii)           Ibis has no material obligations or liabilities (whether accrued, absolute, or to Isis’ or Ibis’ Knowledge contingent, unliquidated or otherwise, whether due or to become due and regardless of when or by whom asserted), including, without limitation, Taxes, except (A) obligations under the Ibis Contracts made available to AMI or under Contracts entered into in the ordinary course of business which, because of the dollar thresholds set forth in Sections 5.1(l)  and 5.1(x) , are not required pursuant to Sections 5.1(l)  and 5.1(x)  below to be described on Schedules 5.1(l)  or 5.1(x)  (but not liabilities for breaches of any such Contracts), (B) liabilities reflected on the Most Recent Balance Sheet, (C) liabilities and obligations which have arisen after the date of the Most Recent Balance Sheet in the ordinary course of business (none of which is material or is a liability for breach of contract, tort, infringement (directly, contributorily, by inducement or otherwise), Claim or warranty (other than warranty claims arising in the ordinary course of business in connection with the sale of Products or under Ibis Contracts made available to AMI, none of which warranty claims individually or in the aggregate would reasonably be expected to have a Material Adverse Effect) and (D) other liabilities and obligations to the extent expressly disclosed in Schedule 5.1(h)(iii) .

 

(i)     Obligations to Related Parties . There are no obligations of Ibis to Affiliates, officers, directors or employees of Ibis or Isis other than (i) for payment of salary to employees of Ibis for services rendered in the ordinary course of business, (ii) reimbursement to employees of Ibis for reasonable expenses incurred in the ordinary course of business on behalf of Ibis, (iii) standard employee benefits made generally available to all employees, pursuant to the Plans described on Schedule 5.1(p)(ii) , (iv) the Bonus Arrangement or (v) Ibis’ rights and obligations to Isis under the Contribution Agreement and Corporate Services Agreement. To Isis’ and Ibis’ Knowledge, all of the Contracts to which Ibis is a party or by which the Business or any of its assets is bound have been negotiated on an arms length basis.

 

(j)     Title to Properties and Tangible Assets; Liens, Etc . Ibis has good and marketable title to its properties and tangible assets and good and valid title to its leasehold estates, in each case subject to no Encumbrance other than (i) Permitted Encumbrances and (ii) rights of the U.S. federal government in certain equipment purchased using government funds, as set forth on Schedule 5.1(j) . The tangible assets of Ibis have been maintained in accordance with normal industry practice and are in good operating condition and repair (except for ordinary wear and tear).

 

(k)    Sufficiency of Assets .

 

(i)             Except for the services, funding and facilities provided under the Corporate Services Agreement, Ibis has all assets, properties and rights used in or necessary to operate or conduct the Business in all respects.

 

(ii)            Except the services, funding and facilities provided under the Corporate Services Agreement and indirectly, via the Remaining Shares, Isis and its Affiliates do not have any right, title or

 

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interest in or to any asset, property, title or interest that is used in or necessary to operate or conduct the Business as conducted on and prior to the Closing Date or as contemplated to be conducted by Ibis and Isis after the Closing Date as reflected in the Offering Memorandum and Management Presentations. Pursuant to the Contribution Agreement, Isis has transferred to Ibis all assets, properties and rights Isis owned or which are or were used in or necessary to operate or conduct the Business except the services, funding and facilities provided under the Corporate Services Agreement. No person employed by the Division prior to the date of the Contribution Agreement is currently employed by Isis and no former employee of Ibis or the Division is or has been employed by Isis.

 

(l)     Intellectual Property .

 

(i)             Schedule 5.1(l)(i)  sets forth a complete and correct list of all of the following Intellectual Property used in or necessary to operate or conduct the Business (whether owned by Ibis or any other Person), and indicates with respect to each item, whether Ibis owns or licenses such Intellectual Property and the owner of any Intellectual Property covered by such license:  (A) patented or registered Intellectual Property and pending patent applications or other applications for registrations of Intellectual Property (including jurisdiction, registration and application number, as applicable, and record owner), (B) registered and material unregistered trademarks, service marks, trade names, and Internet domain names, (C) Software (other than unmodified, commercially available, off-the-shelf Software purchased or licensed for less than an individual cost of [***] and a total cost of [***] in the aggregate for all such licenses), (D) material algorithms embodied in the Products and any other material trade secrets; and (E) all other material Intellectual Property used in or necessary to operate or conduct the Business (including, without limitation, all Intellectual Property set forth or required to be set forth in the following Schedules to the Contribution Agreement: Schedule 2.1 (Ibis Business Assets), Schedule 2.2 (Ibis Business Patents), Schedule 2.5 (Ibis Trademarks) and Schedule 2.6 (Ibis Business Software)) (all Intellectual Property described in the foregoing, (A) through (E), collectively, (without regard to whether such Intellectual Property is set forth on Schedule 5.1(l)(i) ) “ Business IP ”).

 

(ii)            Schedule 5.1(l)(ii)  sets forth a complete and correct list of all of the following Contracts (other than licenses for unmodified, commercially available, off-the-shelf Software purchased or licensed for less than an individual cost of [***] and a total cost of [***] in the aggregate for all such licenses) relating to the Business IP (collectively, the “ IP Contracts ”): (A) Contracts in which Ibis or Isis or any of their respective Affiliates is a licensee or sublicensee of Business IP; (B) Contracts in which Ibis or Isis or any of their respective Affiliates is a licensor or sublicensor of Business IP; (C) Contracts to which Ibis or Isis or any of their respective Affiliates is a party, or by which any of the Business IP is bound, that give any third party any right, title or interest in or to any such Business IP; (D) Contracts with any Governmental Authority wherein any portion of the Business IP was developed or used (“ Government Contracts ”); and (E) Contracts that restrict Ibis’ rights in or use or disclosure of Business IP.

 

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(iii)           Ibis owns and possesses all right, title and interest in and to, free and clear of all Encumbrances (other than the rights of Governmental Authorities under Government Contracts identified in Schedule 5.1(l)(iii)  to the Intellectual Property identified in such Schedule) or has a valid and enforceable license to use (pursuant to a written license agreement set forth and described in Schedule 5.1(l)(ii)  or a written license for unmodified, commercially available, off-the-shelf Software purchased or licensed for less than an individual cost of [***] and a total cost of [***] in the aggregate) the Business IP.

 

(iv)           Neither Isis nor any of its Affiliates (other than Ibis) has any right, title or interest in or to any of the Business IP.

 

(v)            To Isis’ or Ibis’ Knowledge, neither Ibis, nor with respect to the Business, Isis, has infringed (directly, contributorily, by inducement or otherwise), misappropriated or otherwise conflicted with, and the operation of the Business (including the development, manufacture and commercialization of the T5000 Biosensor System, the [***], and the assay kits specifically listed in the [***]) does not and will not infringe (directly, contributorily, by inducement or otherwise), misappropriate or otherwise conflict with, the patents, trademarks, copyrights or trade secrets of any Person, and neither Ibis nor Isis is aware of any facts that indicate a likelihood of any of the foregoing (including without limitation, oral or written demands or offers to license any Intellectual Property from any Person). With respect to whether the operation or conduct of the Business has or will infringe (directly, contributorily, by inducement or otherwise), misappropriate or otherwise conflict with patent, trademark, copyright or trade secrets of any Person (other than Ibis or Isis or their respective Affiliates), the Parties hereto are relying upon the representations and warranties contained in this Section 5.1(l)(v)  and not the representations and warranties contained in Sections 5.1(k)(i) , 5.1(l)(viii)  or 5.1(l)(ix) .

 

(vi)           All of the Business IP is valid and to Isis’ or Ibis’ Knowledge enforceable. Isis and Ibis have taken all necessary actions to maintain and protect all of the Business IP, including, without limitation, entering into confidentiality agreements with each of its employees, consultants and independent contractors, and customers and vendors as necessary so as not to adversely affect the validity or enforceability thereof and have complied with disclosure requirements as provided by any Government Contract. Neither Ibis nor Isis has disclosed any source code for any Software included in the Business IP to any Person in a manner that would impair the trade secret or other Intellectual Property protection of such source code. There are no claims, oppositions or cancellation proceedings that either were made or brought within the past [***] years, or are presently pending or, to Isis’ or Ibis’ Knowledge, threatened, against either Ibis or Isis contesting the validity, use, ownership, enforceability or registrability of any Business IP. Neither Ibis nor Isis is aware of any basis for any such claim, opposition or cancellation proceeding, and neither Ibis nor Isis has received any notices regarding any of the foregoing. No loss or expiration of any material Business IP is pending or reasonably foreseeable or, to Isis’ or Ibis’ Knowledge, threatened, except for patents expiring at the end of their statutory terms (and not as a result of any act or omission by either Ibis or Isis, including, without limitation, a failure to pay any required maintenance fees) or limitations to the scope of claims of any pending patent application

 

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made during the ordinary course of prosecuting such pending patent applications. Complete copies of all file histories for issued patents and pending patent applications of the Business IP owned or held by either Ibis or Isis have been provided to AMI.

 

(vii)          To Isis’ or Ibis’ Knowledge, (A) no Person has infringed (directly, contributorily, by inducement or otherwise) or misappropriated any of the Business IP and (B) no Person is infringing (directly, contributorily, by inducement or otherwise) or misappropriating any of the Business IP.

 

(viii)         Ibis has sufficient right, title and interest in and to the Business IP: (A) to conduct the Business, including the development, manufacture and commercialization of the T5000 Biosensor System (including the [***] and the assay kits specifically listed in the [***] on a worldwide basis, with no payment obligation to any Person, except pursuant to an IP Contract, and (B) to make, have made, import, use , offer for sale, or sell any product (including [***] currently marketed by the Business and the assay kits specifically listed in the [***] without infringing (directly, contributorily, by inducement or otherwise), misappropriating or conflicting with any Intellectual Property rights of any Person. The Business IP is and will be as of the Closing Date, owned by or available for use by Ibis on terms and conditions identical to those under which it was owned or used by Ibis and the Business prior to the date hereof.

 

(ix)            To Isis’ or Ibis’ Knowledge, Ibis has sufficient right, title and interest in and to the Business IP: (A) to develop, manufacture and commercialize the [***] on a worldwide basis, with no payment obligation to any Person, except pursuant to an IP Contract made available to AMI, and (B) to make, have made, import, use, offer for sale, or sell the [***] without infringing (directly, contributorily, by inducement or otherwise), misappropriating or conflicting with any Intellectual Property rights of any Person.

 

(x)             No funding, facilities or resources of a Governmental Authority, university, college, other educational institution or research center or funding from third parties was used in the development of any of the Business IP and no Governmental Authority, university, college, other educational institution or research center has any claim or right in or to any of the Business IP.

 

(xi)            Each current or former employee of each Isis Party or any of their respective Affiliates, who was involved in, or who contributed to, the creation or development of any Business IP, executed the standard form of proprietary rights agreement set forth in Schedule 5.1(l)(xi) upon commencement of his or her employment and each such current or former employee and any consultant or independent contractor who was involved in, or who contributed to, the creation or development of any Business IP has validly assigned all right, title and interest in and to such Business IP to Ibis.

 

(xii)           None of the Transaction Documents nor the transactions contemplated by any of the Transaction Documents would result in or reasonably be expected to result in:  (A) Ibis, AMI or any of their respective Affiliates granting to any Person any right to or with respect to any Intellectual Property owned by, or licensed to,

 

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any of them as a result of any Encumbrance or Contract to which, Ibis or any of their Affiliates is a party or bound by, (B) other than standard non-solicitation agreements entered into in the ordinary course of business and made available to AMI, Ibis, AMI or any of their respective Affiliates being bound by, or subject to, any non-compete or other material restriction on the operation or scope of their respective businesses as a result of any Encumbrance or Contract to which Isis, Ibis or any of their Affiliates is a party or bound by, (C) other than as contemplated by the Acquisition Agreement, Ibis, AMI or any of their respective Affiliates being obligated to pay any royalties or other material amounts, to increase or accelerate any royalty or payment obligation, or to offer any discounts, to any Person as a result of any Encumbrance or Contract to which Isis, Ibis or any of their Affiliates is a party or bound by, or (D) any adverse effect on Ibis’ right, title or interest in and to any of the Business IP.

 

(xiii)          All components of the current version of the T5000 Biosensor System perform in all material respects in accordance with their currently advertised, displayed, distributed or published specifications. All services that have been performed in the conduct of the Business were performed in material conformity with the terms and requirements of the related Contracts and all Applicable Laws. All Software included in the Business IP is free of any disabling codes or instructions, timer, copy protection device, clock, counter or other limiting design or routing and any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other similar disabling codes, Software routines or hardware components. No open source, public source or other Software that is licensed pursuant to a license that purports to require the distribution of, or access to, source code or purports to restrict one’s ability to charge for distribution of Software (including, without limitation, any version of any Software licensed pursuant to any GNU general public license or limited general public license or other Software), was used in, incorporated into, integrated or bundled with any Software that has been used in the T5000 Biosensor System or any other product that has been distributed or is currently distributed. Ibis does not have any plans to include any such Software in any such system or Product. The source code for all Software included in the Business IP is sufficiently documented such that a software programmer of ordinary skill would be able to maintain and modify such source code using reasonable efforts.

 

(xiv)         Without limiting any other representation or warranty herein, the computer and other information technology systems and networks owned or contracted for by Ibis have been maintained in accordance with normal industry practice, are in good operating condition and repair (except for ordinary wear and tear) and are sufficient for the operation of the Business. Each of Ibis and Isis has taken all reasonably necessary action to safeguard the computer and other information technology systems and networks used in the operation of the Business and there has been no unauthorized intrusions or breaches of the security of the computer and other information technology systems and networks used in the Business that have materially compromised or are currently materially compromising the security, integrity or operations of such systems or networks.

 

(xv)          The individuals identified as the outside counsel involved in the development or prosecution of the Business IP on Schedule 1(rr) represent the

 

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outside counsel who have provided Isis or Ibis strategic legal and Intellectual Property advice related to the Business IP and the Ibis Business during the three (3) years prior to the Closing Date.

 

(m)   Compliance with Other Instruments . Neither Ibis nor, with respect to the Business, Isis is in violation or default of any term of its charter documents, each as amended, or of any provision of any Contract to which it is party or by which the Business is bound or of any judgment, decree, order or writ.

 

(n)    Litigation . There is no Claim pending or, to Isis’ or Ibis’ Knowledge, threatened against Ibis or, with respect to the Business, Isis (or against any Ibis or Isis employee (in their capacity as such)), at Law or in equity, or before or by any Governmental Authority, and to Isis’ or Ibis’ Knowledge, there is no reasonable basis for any of the foregoing. Neither Ibis nor, with respect to the Business, Isis is subject to any outstanding order, judgment, or decree issued by any Governmental Authority or any arbitrator. Neither Ibis nor any of its Affiliates has received any opinion or memorandum or advice from legal counsel to the effect that Ibis or the Business is or was exposed, from a legal standpoint, to any material liability.

 

(o)    Tax Matters .

 

(i)             Ibis has filed all required Tax Returns. All Taxes owed and due by Ibis have been paid. No claim has ever been made by an authority in any jurisdiction that Ibis is or may be subject to taxation by that jurisdiction. There are no Encumbrances on any of the assets used by Ibis that arose in connection with any failure (or alleged failure) to pay any Tax. Schedule 5.1(o)(i)  contains a list of states, territories and jurisdictions (whether foreign or domestic) in which Ibis is required to file Tax Returns.

 

(ii)            Ibis has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing by Ibis to any employee, independent contractor, creditor, stockholder, or other third party, and all Forms W-2 and 1099 required with respect thereto have been properly completed.

 

(iii)           There is no dispute or claim concerning any Tax liability of Ibis either (A) claimed or raised by any Governmental Authority or (B) as to which Isis or Ibis has Knowledge.

 

(iv)           Neither Ibis nor, with respect to the Business, Isis, has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.

 

(v)            To Isis’ or Ibis’ Knowledge based in good faith on advice of Deloitte & Touche LLP, (A) Ibis and Isis are and will be members of the same consolidated group, as such term is defined by Treasury Regulation § 1.1502-1(h), with Isis being the common parent of such consolidated group for all taxable years through and including the Closing and (B) unless the provisions of the Code pertaining to filing Tax Returns as a consolidated group are amended prior to the Closing, Ibis and Isis will be eligible to file a consolidated Tax Return in lieu of separate Tax Returns with respect

 

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to income Tax imposed by Chapter 1 of the Code for all taxable years through and including the Closing.

 

(vi)           Ibis is not and will not at the Closing be a party to any oral or written Tax sharing agreements or arrangements.

 

(p)    Employees .

 

(i)             Neither Ibis nor, with respect to the Business, Isis, is party to any collective bargaining agreement. There is no labor union organizing activity pending or, to Isis’ or Ibis’ Knowledge, threatened with respect to Ibis. Each of Ibis and, with respect to the Business, Isis has complied with all applicable Laws relating to the employment of labor and, within the last five (5) years, neither Ibis nor Isis, with respect to the Business, has experienced any strike, work stoppage, lockout, grievance, unfair labor practice claim or other labor relation problem, including, without limitation, any written dispute with or Claim by former employees regarding termination and/or severance pay. To the Knowledge of Isis or Ibis, no executive, key employee or group of employees of Ibis has any plans to terminate employment with Ibis. In the past three (3) years, Ibis and Isis have complied in all respects with the notification provisions (or paid severance in lieu thereof) of the WARN Act and applicable similar state or local laws. No executive, key employee or group of employees of Ibis or the Business has been terminated or resigned their employment since the Investment Date.

 

(ii)            Schedule 5.1(p)(ii)  contains a true and complete list of each employment (other than at-will offer letters with no severance, compensation term guarantee or material benefit), bonus, fringe benefit, deferred compensation, incentive compensation, stock purchase, stock option, stock appreciation right or other stock-based incentive, severance, change-in-control, or other termination pay, hospitalization or other medical, disability, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program or Contract and each other employee benefit plan, program or Contract sponsored, maintained or contributed to or required to be contributed to by Ibis, or by any trade or business, whether or not incorporated (an “ ERISA Affiliate ”), that together with Ibis or Isis would be deemed a “single employer” under Section 414(b), (c), (m) or (o) of the Code, for the benefit of any current or former employee or director of Ibis (the “ Plans ”). Schedule 5.1(p)(ii)  identifies each Plan that is an “employee welfare benefit plan” or “employee pension benefit plan” as such terms are defined in Sections 3(1) and 3(2) of ERISA (such plans being hereinafter referred to collectively as the “ ERISA Plans ”).

 

(iii)           Except as specified in Section 8.11(d) , neither Ibis nor Isis has any formal plan or binding commitment to create any additional Plan or modify or change any existing Plan that would affect any current or former employee or director of Ibis, except as required by Applicable Law or to conform such Plan to the requirements of any Applicable Law. Except for the Master Agreement and this Agreement, there are no Contracts or omissions that would prevent or impair any Plan (including any Plan covering retirees or other former employees) from being amended or terminated by Ibis or Isis prior to or at the Closing, or, with respect to the Plans listed on Schedule 5.1(p)(xii)

 

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if any, by Ibis or AMI (or any successor thereto) on or at any time after the Closing.

 

(iv)           Neither Isis nor Ibis has incurred and has no reason to expect that either will incur any liability to the Pension Benefit Guaranty Corporation (other than premium payments) or otherwise under Title IV of ERISA (including any withdrawal liability) or under the Code or any Applicable Law with respect to any employee pension benefit plan that Isis or Ibis, or any other entity that together with Isis or Ibis is treated as a single employer under Section 414 of the Code, maintains or ever has maintained or to which it contributes, ever has contributed, or ever has been required to contribute.

 

(v)            Neither Ibis nor Isis, nor any of the ERISA Plans, nor any trust created thereunder, nor to Isis’ or Ibis’ Knowledge, any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which Ibis could be subject to any material liability for either a civil penalty assessed pursuant to Sections 409 or 502(i) of ERISA or a tax imposed pursuant to Sections 4975, 4976 or 4980B of the Code.

 

(vi)           Each Plan is in all material respects in compliance, and has been administered in all material respects in accordance, with the applicable provisions of ERISA, the Code and all other Applicable Laws, including, but not limited to, medical continuation under Section 4980B of the Code. Neither Isis nor Ibis has (A) engaged in any transaction prohibited by ERISA or the Code; (B) breached any fiduciary duty owed by it with respect to the Plans; or (C) failed to file and distribute timely and properly all reports and information required to be filed or distributed in accordance with ERISA or the Code.

 

(vii)          Other than routine claims for benefits, there are no Claims, Internal Revenue Service or Department of Labor compliance programs or other proceedings pending or, to Isis’ or Ibis’ Knowledge, threatened against or otherwise involving any Plan.

 

(viii)         Each Plan which is intended to be qualified under Section 401(a) of the Code (A) has been amended to reflect all requirements under the Code which are required to be adopted prior to the end of the applicable remedial amendment period and (B) has received from the Internal Revenue Service a favorable determination letter which considers the terms of the Plan as amended for such changes in Law.

 

(ix)            None of the Plans obligates Isis or Ibis either (A) to pay any separation, severance, termination or similar benefit to Ibis Employees or (B) to make an excess parachute payment within the meaning of Code Section 280G.

 

(x)             No Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees of Ibis after retirement or other termination of service (other than (A) coverage mandated by any Applicable Law, (B) death benefits or retirement benefits

 

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under any employee pension benefit plan or (C) benefits, the full direct cost of which are borne by the current or former employee (or beneficiary thereof)).

 

(xi)            To Isis’ or Ibis’ Knowledge, other than as provided under the terms of the Plans, neither Ibis nor Isis has made any representation or commitment to, or entered into any formal or informal understanding with, any Ibis employee with respect to compensation, benefits, or terms of employment to be provided by AMI or Ibis or any of their respective Affiliates at or subsequent to the Closing.

 

(xii)           Except for the Bonus Arrangement, Ibis neither sponsors nor maintains nor has any liability for (A) any of the Plans or (B) any other employee benefit plans or arrangements.

 

(xiii)          All contributions, premiums or payments under or with respect to each Plan which are or were due have been paid.

 

(q)    Compliance with Laws; Licenses .

 

(i)             Ibis, the Business and, with respect to the Business, Isis are not in material violation of any Law. Ibis, the Business, and, with respect to the Business, Isis and Ibis’ and Isis’ Representatives have complied with, and are in material compliance with, all Applicable Laws, including, without limitation, the federal Food, Drug, and Cosmetic Act, as amended and regulations promulgated thereunder, and all U.S. Food and Drug Administration (“ FDA ”) or its foreign equivalent regulations governing, among other things, the protection of human subjects and regulations governing clinical investigators. No governmental orders, permissions, consents, approvals or authorizations are required to be obtained and no registrations or declarations are required to be filed in connection with the execution and delivery of the Transaction Documents or the Transfer of the Remaining Shares.

 

(ii)            Ibis holds all Licenses necessary for the operation or conduct of the Business (including pursuant to Environmental Laws). Schedule 5.1(q)(ii)  sets forth a list of all Licenses material to the Business (the “ Material Licenses ”). Ibis is and has been in compliance with all terms and conditions of such Material Licenses and all Material Licenses may be relied upon by Ibis immediately following the Closing for the lawful operation of the Business as conducted on and prior to the date hereof. Each Material License is valid, binding and in full force and effect and Ibis and the Business have complied in all material respects with all requirements of and are not in default under any Material License and have not received written or, to Isis’ or Ibis’ Knowledge, oral notice that the Business or Ibis is in violation of any of the terms or conditions of such Material License. No loss or suspension of any License nor any proceeding or investigation which is seeking such a loss or suspension is pending or, to Isis’ or Ibis’ Knowledge, threatened. Neither Ibis nor Isis is operating under any written or oral formal or informal agreement or understanding with any licensing authority, Regulatory Authority or any other Governmental Authority which restricts the conduct of the Business or requires Ibis or, with respect to the Business, Isis, to take or refrain from taking any actions.

 

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(r)     Environment, Health and Safety . Ibis and the Business have at all times materially complied with and are in material compliance with all Environmental Laws, including, without limitation, all Licenses and other authorizations that are required pursuant to Environmental Laws for the ownership and occupation of the assets used by Ibis and the operation of the Business. Neither Ibis nor Isis, with respect to the Business is aware of or has reason to be aware of or has received any notice, request for information, report, order, directive, communication or other information, written or oral, regarding any actual or alleged violation of Environmental Laws, or any Claims or other liabilities or potential liabilities (whether accrued, absolute, contingent, unliquidated or otherwise) arising under Environmental Laws, relating to the Business, the Real Property or Ibis, which has not been resolved without liability to Ibis. Neither Ibis nor its Affiliates nor any of its legal predecessors has, in violation of Environmental Laws, treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, or Released, or exposed any Person to, any Hazardous Materials, or owned or operated any property or facility (and no such property or facility including the Real Property is contaminated by any such Hazardous Materials) so as to give rise to any current or future liability under Environmental Laws, including without limitation, any liability to investigate, remediate, cleanup, monitor or take any similar actions with respect to the environmental condition of any property (whether owned or non-owned), facility or treatment, storage or disposal facility. None of the following exists or to Isis’ or Ibis’ Knowledge, has ever existed at the Real Property: underground storage tanks, septic tanks, asbestos containing materials, polychlorinated biphenyls, lead-based paint, urea-formaldehyde, dumps, landfills, or waste disposal areas, sumps, pits, lagoons, surface impoundments or wetlands, or any contamination of any kind of the surface, subsurface, groundwater or surface water. Ibis has not assumed or become subject to, whether expressly or by operation of Law, any liabilities of any other Person arising under Environmental Laws or pursuant to any type of agreement. The consummation of the transactions contemplated by this Agreement do not impose any obligation on the Business under any Environmental Law or require notification to or consent of any Governmental Authority or third party pursuant to any Environmental Law. Ibis has provided to AMI copies of all material environmental Licenses, reports, audits, assessments, and investigations, and any other material environmental documents, relating to Ibis or the Business to the extent the foregoing are in the possession, custody, or control of Isis or any of its Affiliates or Ibis.

 

(s)    Offering Valid . Assuming the accuracy of the representations and warranties of AMI contained in Section 5.2 hereof, the offer and sale of the Remaining Shares will be exempt from the registration requirements of the Securities Act, and will have been registered or qualified (or are exempt from registration and qualification) under the registration, permit or qualification requirements of all applicable state securities Laws. Neither Isis nor any agent on its behalf has solicited or will solicit any offers to sell or