UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
January 8, 2015
AMARANTUS BIOSCIENCE HOLDINGS, INC.
(Exact name of registrant as specified in
its charter)
Nevada |
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000-55016 |
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26-0690857 |
(State or other jurisdiction of |
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(Commission File Number) |
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IRS Employer |
incorporation or organization) |
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Identification No.) |
655 Montgomery Street, Suite 900 |
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San Francisco, CA |
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94111 |
(Address of Principal Executive Offices) |
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(Zip Code) |
(408) 737-2734
(Registrant’s telephone number, including
area code)
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
On January 8, 2015, Amarantus BioScience
Holdings, Inc. (the “Company”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) with
DioGenix, Inc., a Delaware corporation (“DioGenix”), Neuro Acquisition Corporation, a Delaware corporation and wholly-owned
subsidiary of the Company (“Merger Sub”) and Nerveda, LLC, a Delaware limited liability company, as the Securityholder
Representative.
The Merger Agreement provides for the merger of Merger Sub with and into DioGenix (the “Merger”),
with DioGenix surviving the Merger as a wholly-owned subsidiary of the Company. The aggregate consideration for all of the outstanding
equity interests of DioGenix is 99,378,881 shares of the Company’s common stock (the “Stock Consideration”).
The Merger Agreement also provides for additional payments to DioGenix stockholders of up to $2,000,000 in cash and/or the Company’s
common stock conditioned on the achievement of certain milestones related to results of clinical testing and future revenue from
products in development. A portion of the consideration will be placed into escrow to satisfy certain indemnification obligations
of DioGenix stockholders described in the Merger Agreement. The Stock Consideration,
may, upon the request of the Company, be made subject to lock-up agreements precluding sale of such shares as described in the
Merger Agreement.
The Merger Agreement also includes registration
rights whereby the Company will file a registration statement with the Securities and Exchange Commission covering the Stock Consideration
within 120 days of the closing of the Merger, subject to certain terms and conditions.
The foregoing description of the Merger
and the Merger Agreement is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is
attached hereto as Exhibit 2.1 and is incorporated herein by reference.
The Company released a press release with
respect to the foregoing, a copy of which is attached as Exhibit 99.1.
Item 2.01 Completion of Acquisition or Disposition of Assets
The information set forth in Item 1.01 is incorporated
by reference herein.
On January 9, 2015, the Company completed its acquisition
of DioGenix.
Item 3.02 Unregistered Sales of Equity Securities.
The information set forth in Item 1.01 is
incorporated by reference herein.
The issuance of the securities described
above was completed in accordance with the exemption provided by Section 4(a)(2) of the Securities Act of 1933, as amended.
Item 9.01 Financial Statements and Exhibits.
(a)
Financial statements as required by Regulation
S-X shall be subsequently filed by amendment within 71 calendar days of the due date of this Current Report on Form 8-K as permitted
by Item 9.01(a)(4) of Form 8-K.
(d)
Exhibits
Exhibit
No. |
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Description |
2.1 |
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Agreement and Plan of Merger, dated January 8, 2015, by and among Amarantus BioScience Holdings, Inc., DioGenix, Inc., Neuro Acquisition Corporation and Nerveda, LLC, as Securityholder Representative |
99.1 |
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Press Release dated January 12, 2015 |
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned
thereunto duly authorized.
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AMARANTUS BIOSCIENCE HOLDINGS, INC. |
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Date: January 13, 2015 |
By: |
/s/ Gerald E. Commissiong |
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Name: Gerald E. Commissiong |
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Title: Chief Executive Officer |
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Exhibit 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
by and among
Amarantus
BioScience Holdings, Inc.
Neuro
Acquisition Corporation,
DioGenix
Inc.,
and
Nerveda,
LLC,
as the Securityholder
Representative
___________________________
Dated as of January 8,
2015
___________________________
TABLE OF CONTENTS
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Section 1. |
Description of Transaction |
1 |
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1.1 |
Merger of Merger Sub into the Company |
1 |
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1.2 |
Closing; Effect on Company Securities |
2 |
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1.3 |
Closing Date Payments; Issuance of Parent Common Stock; Deposit of Escrowed Securities |
3 |
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1.4 |
Working Capital Adjustment |
4 |
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1.5 |
Milestone Payments |
6 |
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1.6 |
Surrender of Certificates |
6 |
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1.7 |
Transfer Taxes |
7 |
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1.8 |
Dissenting Shares |
7 |
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Section 2. |
Representations and Warranties of the Company |
7 |
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2.1 |
Due Organization |
7 |
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2.2 |
Capitalization |
8 |
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2.3 |
Financial Statements |
8 |
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2.4 |
Absence of Changes |
9 |
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2.5 |
Absence of Undisclosed Liabilities |
11 |
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2.6 |
Tangible Personal Property |
11 |
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2.7 |
Real Property |
11 |
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2.8 |
Intellectual Property |
12 |
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2.9 |
Contracts and Leases |
15 |
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2.10 |
Customers |
15 |
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2.11 |
Compliance with Laws |
15 |
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2.12 |
Permits |
15 |
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2.13 |
Tax Matters |
16 |
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2.14 |
Employee and Labor Matters; Benefit Plans |
17 |
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2.15 |
Environmental Matters |
18 |
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2.16 |
Insurance |
18 |
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2.17 |
Affiliate Transactions |
18 |
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2.18 |
Legal Proceedings |
18 |
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2.19 |
Authority; Binding Nature of Agreement; Non-Contravention |
18 |
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2.20 |
Financial Advisor |
19 |
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2.21 |
Books and Records |
19 |
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2.22 |
Foreign Corrupt Practices Act |
19 |
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2.23 |
Export Control Laws |
19 |
TABLE OF CONTENTS
(continued)
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2.24 |
Exclusivity of Representations and Warranties |
20 |
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2.25 |
Reliance |
20 |
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Section 3. |
Representations and Warranties of Parent and Merger Sub |
20 |
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3.1 |
Due Organization |
20 |
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3.2 |
Authority; Binding Nature of Agreement; Non-Contravention |
20 |
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3.3 |
Merger Sub |
20 |
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3.4 |
Capitalization |
21 |
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3.5 |
Parent Common Stock |
21 |
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3.6 |
Adequacy of Funds |
21 |
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3.7 |
SEC Documents; Financial Statements |
21 |
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3.8 |
Intellectual Property |
22 |
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3.9 |
Compliance with Laws |
22 |
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3.10 |
Permits |
22 |
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3.11 |
Legal Proceedings |
22 |
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3.12 |
Affiliate Transactions |
22 |
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3.13 |
Absence of Changes |
22 |
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3.14 |
Financial Advisor |
22 |
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3.15 |
Exclusivity of Representations and Warranties |
23 |
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3.16 |
Reliance |
23 |
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Section 4. |
Covenants and Agreements |
23 |
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4.1 |
Conduct of the Business of the Company; Employee Terminations |
23 |
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4.2 |
Access to Information |
23 |
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4.3 |
Public Disclosure |
23 |
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4.4 |
No Negotiation |
23 |
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4.5 |
Efforts to Consummate |
24 |
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4.6 |
Indemnification of Officers and Directors of the Company |
24 |
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4.7 |
Joinder Agreement |
25 |
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4.8 |
Company Common Stock Acknowledgement |
25 |
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4.9 |
Consents |
25 |
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4.10 |
Company Audit |
25 |
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4.11 |
Stockholder Approval |
25 |
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4.12 |
Issuance and Registration of Parent Common Stock |
25 |
TABLE OF CONTENTS
(continued)
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Page |
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Section 5. |
Closing Conditions |
27 |
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5.1 |
Conditions Precedent to the Obligations of each Party to Effect the Merger |
27 |
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5.2 |
Conditions to Obligations of Parent and Merger Sub |
27 |
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5.3 |
Conditions to Obligations of the Company |
28 |
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Section 6. |
Indemnification |
29 |
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6.1 |
Survival |
29 |
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6.2 |
Indemnification of Parent Indemnified Parties |
29 |
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6.3 |
Indemnification of Stockholder Indemnified Parties |
30 |
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6.4 |
Indemnification Claims |
31 |
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6.5 |
Disbursement of Escrow Fund |
33 |
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6.6 |
No Special Damages; Mitigation |
33 |
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6.7 |
Alternative Reimbursement |
33 |
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6.8 |
Treatment of Indemnity Benefits |
33 |
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6.9 |
Exclusive Remedies |
33 |
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Section 7. |
Termination |
34 |
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7.1 |
Termination Events |
34 |
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7.2 |
Effect of Termination |
34 |
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Section 8. |
Miscellaneous Provisions |
35 |
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8.1 |
Securityholder Representative |
35 |
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8.2 |
Expenses |
36 |
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8.3 |
Waiver |
36 |
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8.4 |
Entire Agreement; Counterparts; Exchanges by Facsimile |
36 |
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8.5 |
Applicable Law; Venue; Waiver of Jury Trial |
37 |
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8.6 |
Assignability; Third Party Rights |
37 |
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8.7 |
Disclosure Schedule |
37 |
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8.8 |
Waiver of Conflict of Interest |
38 |
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8.9 |
Amendment |
38 |
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8.10 |
Notices |
38 |
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8.11 |
Severability |
39 |
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8.12 |
Remedies |
40 |
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8.13 |
Construction |
40 |
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TABLE OF CONTENTS
(continued)
Page
Attachments
Exhibit A |
Certain Definitions |
Exhibit B |
Consideration Spreadsheet |
Exhibit C |
Working Capital Illustration |
Exhibit D |
Milestones |
Exhibit E |
Form of Letter of Transmittal |
Exhibit F |
Form of Escrow Agreement |
Exhibit G |
Form of Employee Release |
Exhibit H |
Form of Nerveda Non-Compete |
Exhibit I |
Form of Joinder Agreement |
Exhibit J |
Form of Stockholder Written Consent |
Exhibit K |
Form of Company Common Stock Acknowledgement |
Disclosure Schedule
AGREEMENT AND PLAN
OF MERGER
This
Agreement and Plan of Merger (this “Agreement”) is made and entered into as of January 8, 2015, by
and among: Amarantus BioScience Holdings, Inc., a Nevada corporation (“Parent”);
Neuro Acquisition Corporation, a Delaware corporation and a wholly-owned Subsidiary
of Parent (“Merger Sub”); DioGenix Inc., a Delaware corporation
(the “Company”); and Nerveda, LLC, a Delaware limited liability
company (in its capacity as agent and attorney-in-fact of the Escrow Participants, as set forth in Section 8.1, the “Securityholder
Representative”). Certain capitalized terms used in this Agreement are defined in Exhibit A.
Recitals
A. Parent,
Merger Sub and the Company intend to effect a merger of Merger Sub into the Company in accordance with this Agreement and the DGCL
(the “Merger”). Upon the consummation of the Merger, Merger Sub will cease to exist, and the Company will become
a wholly-owned Subsidiary of Parent.
B. The
respective boards of directors of Parent, Merger Sub and the Company have approved this Agreement and the Merger.
C. Promptly
following the execution and delivery of this Agreement by the parties hereto and as a material inducement to Parent and Merger
Sub to enter into this Agreement, the Company shall obtain and shall deliver to Parent a true, correct and complete copy of an
executed action by written consent evidencing the approval of the Merger, this Agreement and the transactions contemplated hereby
and the other matters contemplated therein, in the form attached hereto as Exhibit J (the “Stockholder Written
Consent”), signed by (i) the holders of at least 90% of the outstanding shares of Company Capital Stock (voting together
as a single class on an as-converted basis); (ii) the holders of a majority of the shares of Company Common Stock; and (iii) the
holders of a majority of the outstanding shares of Company Preferred Stock (voting as a separate class) (the votes referred to
in clauses “(i)” through “(iii)” of this sentence being referred to collectively as the “Required
Stockholder Votes”).
Agreement
The parties to this
Agreement, intending to be legally bound, agree as follows:
Section
1. Description of Transaction
1.1 Merger
of Merger Sub into the Company.
(a) Upon
the terms and subject to the provisions set forth in this Agreement and the applicable provisions of the DGCL, at the Effective
Time, Merger Sub shall be merged with and into the Company. By virtue of the Merger, at the Effective Time, the separate existence
of Merger Sub shall cease and the Company shall continue as the surviving corporation in the Merger (the “Surviving Corporation”).
(b) The
Merger shall have the effects set forth in this Agreement and in the applicable provisions of the DGCL. The certificate of incorporation
of the Surviving Corporation shall be amended and restated as of the Effective Time in a form acceptable to Parent and the bylaws
of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws of Merger Sub as in
effect immediately prior to the Effective Time. The directors and officers of Merger Sub immediately prior to the Effective Time
shall be the directors and officers of the Surviving Corporation immediately after the Effective Time.
1.2 Closing;
Effect on Company Securities.
(a) The
consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place on a date and
at a time to be mutually agreed upon by Parent and the Company, which date the parties intend to be January 9, 2015 but shall be
no later than two (2) business days after the satisfaction or waiver of the last of the conditions set forth in Section 5
(other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver
of such conditions). The date on which the Closing is held is referred to herein as the “Closing Date.” The
Closing will be held at the offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, 650 Page Mill Road, Palo
Alto, California 94304, unless another place is agreed to by the parties.
(b) Subject
to the terms of this Agreement, a certificate of merger satisfying the applicable requirements of the DGCL shall be filed with
the Secretary of State of the State of Delaware on the Closing Date. The Merger shall become effective at the time of the filing
of such certificate of merger with the Secretary of State of the State of Delaware (the time as of which the Merger becomes effective
being referred to as the “Effective Time”).
(c) At
the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company or any
stockholder of the Company:
(i) subject
to Section 1.8, each share of Company Preferred Stock outstanding immediately prior to the Effective Time shall be converted
into the right to receive: (A) at the Closing (or such other time as provided in Section 1.6(a)), a number of shares of
Parent Common Stock equal to: (I) the Company Preferred Stock Aggregate Consideration, minus $800,000; divided by (II) the Parent
Common Stock Price Per Share; divided by (III) the aggregate number of issued and outstanding shares of Company Preferred Stock
as of immediately prior to the Effective Time; and (B) any disbursements of Escrowed Securities from the Escrow Fund with respect
to such share of Company Preferred Stock to the former holder thereof in accordance with Section 6.5 ((A) and (B), collectively,
the “Per Share Merger Consideration”);
(ii) subject
to Section 1.8, each share of Company Common Stock outstanding immediately prior to the Effective Time shall be cancelled
and retired and shall cease to exist and no consideration shall be delivered in exchange therefor (which the parties acknowledge
and agree is the result proscribed by the Company’s certificate of incorporation after giving effect to a liquidation of
the nature of, and for the consideration to be delivered with respect to, the Merger);
(iii) each
share of the common stock, $0.001 par value, of Merger Sub outstanding immediately prior to the Effective Time shall be converted
into one share of common stock of the Surviving Corporation;
(iv) each
share of Company Capital Stock held by the Company (or held in the Company’s treasury) immediately prior to the Effective
Time shall be canceled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor; and
(v) each
share of Company Capital Stock held by Parent, Merger Sub or any other wholly-owned Subsidiary of Parent immediately prior to the
Effective Time shall be canceled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor.
(d) Legends
on Stock Certificates or Book-Entry Security Entitlements. The certificates or book-entry security entitlements representing
shares of Parent Common Stock issuable pursuant to this Agreement, or any other securities issued in respect of such shares upon
any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall bear the following legends (in
addition to any legend required by applicable state securities laws):
THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”),
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE 1933 ACT OR,
IN THE OPINION OF COMPANY COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION
IS IN COMPLIANCE WITH AN EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT.
(e) Treatment
of Company Options. Effective immediately prior to the Effective Time, each Company Option then outstanding shall be terminated,
cancelled and retired and shall cease to exist and no consideration shall be delivered in exchange therefor (which the parties
acknowledge and agree is the result proscribed by the Company Stock Plan after giving effect to a liquidation of the nature of,
and for the consideration to be delivered with respect to, the Merger), and, prior to the Closing, the Company shall notify each
holder of a Company Option of the Merger of such result.
(f) Treatment
of Company Notes. Each Company Note outstanding immediately prior to the Effective Time shall be cancelled and, upon the cancellation
of such Company Note, shall be converted into the right to receive therefor (i) an amount of cash equal to the product of (A) the
Remaining Working Capital Cash Payment, multiplied by (B) a fraction, the numerator of which is the outstanding principal of and
accrued interest on such Company Note as of the Closing, and the denominator of which is the aggregate amount of the outstanding
principal of and accrued interest on all of the Company Notes as of the Closing; and (ii) a number of shares of Parent Common Stock
equal to a fraction, the numerator of which is the remaining amount of the outstanding principal of and accrued interest on such
Company Note as of the Closing (after giving effect to the payment described in clause (i) above), and the denominator of which
is the Parent Common Stock Per Share Price (rounded to the nearest whole share) ((i) and (ii), collectively, the “Note
Consideration”). Each Company Note is hereby amended to give effect to this Section 1.2(f) and the other applicable
provisions of this Agreement and, simultaneously with the execution and delivery of this Agreement, each holder of a Company Note
is delivering an instrument to the Company acknowledging and agreeing to such amendment (a “Company Note Acknowledgement”).
1.3 Closing
Date Payments; Issuance of Parent Common Stock; Deposit of Escrowed Securities.
At the Closing, Parent
shall take the following actions in the following order, all as set forth on a spreadsheet that the Company shall prepare and deliver
to Parent at the Closing (the “Consideration Spreadsheet”), which, if the Closing occurs on January 9, 2015
(as the parties intend), shall be as attached hereto as Exhibit B:
(a) First,
Parent shall deliver to the Company the Transaction Expense Coverage Amount and the amount of the Cash Closing Bonuses, and at
or as promptly as practicable (but in no event more than one (1) business day) after the Closing, the Company shall (or Parent
shall cause the Company to) pay the Company Transaction Expenses and the Cash Closing Bonuses, in the case of payments made to
Company employees in their capacities as such (taking into account all applicable tax withholdings), through the Company’s
payroll system (and such payment date shall be declared a special payroll date if not a regular payroll date) and including the
employer portion of any associated payroll Taxes; provided that (i) any severance payment may be delayed until the applicable
terminated employee has executed and delivered an Employee Release, as contemplated by Section 4.1(b), and (ii) for the
avoidance of doubt, the Company (and Parent by virtue of its ownership of the Surviving Corporation from and after the Closing)
shall remain responsible for all of the Company’s liabilities, including the Current Liabilities;
(b) Second,
Parent shall deliver the Securityholder Representative Reserve to the Securityholder Representative (and such amount shall be funded
from the Estimated Closing Working Capital);
(c) Third,
Parent shall pay to each holder of a Company Note, in cash, the portion of the Remaining Working Capital Cash Payment to which
such holder is entitled pursuant to Section 1.2(f)(i);
(d) Fourth,
Parent shall issue to each holder of a Company Note the number of shares of Parent Common Stock to which such holder is entitled
pursuant to Section 1.2(f)(ii); provided that, if such Person has not delivered a duly executed Company Note Acknowledgement
at or prior to the Closing, such issuance shall occur at such time as such executed Company Note Acknowledgement has been delivered
to Parent;
(e) Fifth,
Parent shall issue to each recipient of a Closing Bonus (other than a Cash Closing Bonus) the number of shares of Parent Common
Stock equal to a fraction, the numerator of which is the value of such Closing Bonus, and the denominator of which is the Parent
Common Stock Price Per Share (rounded to the nearest whole share) (and, in addition, shall cause the Company to pay the employer
portion of any associated payroll Taxes);
(f) Sixth,
Parent shall issue to each holder of shares of Company Preferred Stock the number of shares of Parent Common Stock to which such
holder is entitled pursuant to Section 1.2(c)(i)(A); provided that, if such Person has not delivered a duly executed
Letter of Transmittal and the applicable Company Stock Certificate (or an affidavit of loss with respect thereto, if required by
Parent in accordance with Section 1.6(c)) at or prior to the Closing, such issuance shall occur at the time specified in
Section 1.6(a); and
(g) Seventh,
Parent shall issue and deposit the Escrowed Securities with the Escrow Agent pursuant to the terms and conditions of this Agreement
and the Escrow Agreement.
1.4 Working
Capital Adjustment.
(a) The
Company shall deliver to Parent the Company’s good faith estimate of Closing Working Capital (the “Estimated Closing
Working Capital”) no later than three business days prior to the Closing Date, which shall be prepared in all respects
in a manner consistent with the illustrative calculation of Closing Working Capital attached hereto as Exhibit C (the “Working
Capital Illustration”) and GAAP in accordance with the Company’s past practices. For the avoidance of doubt, the
parties intend that the Closing will occur on January 9, 2015 and that the Working Capital Illustration shall constitute the Company’s
delivery of its estimate of Estimated Closing Working Capital.
(b) As
soon as practicable following the Closing Date, but in no event later than sixty (60) days after the Closing Date, Parent shall
prepare and deliver to the Securityholder Representative Parent’s good faith calculation of Closing Working Capital, which
shall be prepared in all respects in a manner consistent with the Working Capital Illustration and GAAP in accordance with the
Company’s past practices (the “Parent Closing Working Capital Calculation”).
(c) The
Securityholder Representative and its Representatives shall have the right to review all records, work papers and calculations
related to the Parent Closing Working Capital Calculation. The Securityholder Representative shall have thirty (30) days after
delivery of the Parent Closing Working Capital Calculation in which to notify Parent in writing (such notice, a “Working
Capital Dispute Notice”) of any discrepancy in, or disagreement with, the items reflected in the Parent Closing Working
Capital Calculation (and specifying the amount in dispute and setting forth in reasonable detail the basis for such discrepancy
or disagreement), and upon agreement by Parent regarding the adjustment requested by the Securityholder Representative, an appropriate
adjustment shall be made thereto. If the Securityholder Representative does not deliver a Working Capital Dispute Notice to Parent
during such thirty (30) day period, the Parent Closing Working Capital Calculation shall be deemed to be accepted in the form delivered
by Parent to the Securityholder Representative. If Parent and the Securityholder Representative do not agree, within thirty (30)
days after timely delivery of the Working Capital Dispute Notice, to resolve any discrepancy or disagreement therein, the discrepancy
or disagreement shall be submitted for review and final determination by the Independent Accounting Firm. The review of the Independent
Accounting Firm shall be limited to the discrepancies and disagreements set forth in the Working Capital Dispute Notice, and the
resolution of such discrepancies and disagreements and the determination of the Closing Working Capital by the Independent Accounting
Firm shall be (i) in writing, (ii) made in accordance with GAAP in accordance with the Company’s past practices, (iii) with
respect to any specific discrepancy or disagreement, no greater than the higher amount calculated by Parent or the Securityholder
Representative, as the case may be, and no lower than the lower amount calculated by Parent or the Securityholder Representative,
as the case may be, (iv) made as promptly as practical after the submission of such discrepancies and disagreements to the Independent
Accounting Firm (and Parent and the Securityholder Representative shall direct the Independent Accounting Firm to make such determination
no later than thirty (30) days after the date of submission), and (v) final and binding upon, and non-appealable by, the parties
hereto and their respective successors and assigns for all purposes hereof, and not subject to collateral attack for any reason
absent manifest error or fraud. All expenses and fees of the Independent Accounting Firm shall paid by Parent; provided
that Parent and the Securityholder Representative shall jointly instruct the Escrow Agent to disburse to Parent a number of shares
of Escrowed Securities having a value, based on the Parent Common Stock Price Per Share (but taking into account any stock split,
stock dividend, recapitalization, merger, consolidation or similar event since the Closing), equal to one-half (1/2) of such expenses
and fees.
(d) If
the final Closing Working Capital as finally determined pursuant to Section 1.4(c) exceeds the Estimated Closing Working
Capital by at least $15,000, then Parent shall promptly issue to the Escrow Participants in accordance with their Participation
Percentages an aggregate number of shares of Parent Common Stock having a value, based on the Parent Common Stock Price Per Share
(but taking into account any stock split, stock dividend, recapitalization, merger, consolidation or similar event since the Closing),
equal to the excess of the final Closing Working Capital over the Estimated Closing Working Capital (without regard to such $15,000
threshold).
(e) If
the final Closing Working Capital as finally determined pursuant to Section 1.4(c) is less than the Estimated Closing
Working Capital, then the Securityholder Representative and Parent shall jointly instruct the Escrow Agent to disburse to Parent
a number of shares of Escrowed Securities having a value, based on the Parent Common Stock Price Per Share (but taking into account
any stock split, stock dividend, recapitalization, merger, consolidation or similar event since the Closing), equal to the difference
between the Estimated Closing Working Capital and the final Closing Working Capital.
1.5 Milestone
Payments. From and after the Closing, Parent shall make payments to each holder of Company Preferred Stock as of immediately
prior to the Effective Time in such amounts and at such times as set forth on Exhibit D, in each case, in accordance with
each such Person’s Participation Percentage (each such payment, a “Milestone Payment”) and accompanied
by reasonable supporting documentation and calculations. From and after the Closing, Parent shall, and shall cause its Subsidiaries
(including the Company) to, use their reasonable best efforts to cause the Milestone Payments to become payable (and to be paid)
as promptly as practicable, including by using their reasonable efforts (a) to conduct their businesses in a manner which is likely
to cause the Milestone Payments to become payable (and to be paid) and (b) to cause any successor or acquiror of Parent or the
applicable portion of its business to comply with this Section 1.5. From and after the Closing, Parent shall not, and shall
not permit any of its Subsidiaries (including the Company) to, take any action with the purpose of circumventing, reducing or delaying
the achievement of the milestones set forth on Exhibit D or the payment of the Milestone Payments. Parent shall maintain
or cause to be maintained a true, correct and complete set of records pertaining to the Milestone Payments, and at such times as
may be reasonably requested by the Securityholder Representative (without unreasonable interference to Parent’s or its Subsidiaries’
(including the Company’s) businesses), Parent shall provide, as promptly as practicable, the Securityholder Representative
and its Representatives with such documents, information and access to the businesses and employees of Parent and its Subsidiaries
(including the Company) as the Securityholder Representative and its Representatives may reasonably request in connection with
the Milestone Payments, including the determination thereof. The parties expressly intend for a covenant of good faith and fair
dealing to apply to the obligations of the parties set forth this Section 1.5.
1.6 Surrender
of Certificates.
(a) General.
Prior to the Effective Time, Parent (or, if agreed by the Company, the Company) will send to the holders of Company Capital Stock:
(i) a letter of transmittal in the form attached hereto as Exhibit E (a “Letter of Transmittal”), and
(ii) instructions for use in effecting the surrender of certificates previously representing shares of Company Capital Stock (each,
a “Company Stock Certificate”). Upon delivery of a duly executed Letter of Transmittal and surrender of a Company
Stock Certificate, Parent shall, following the Effective Time, issue to the holder of such Company Stock Certificate (if representing
shares of Company Preferred Stock) the shares of Parent Common Stock to which such Person is entitled under Section 1.2(c)(i)(A)
(in each case, unless previously issued at the Closing).
(b) Transfer
Books; No Further Ownership Rights in Company Stock or Company Notes. At
the Effective Time: (i) all shares of Company Capital Stock and all Company Notes outstanding immediately prior to the Effective
Time shall automatically be canceled and retired and shall cease to exist, and all holders of shares of Company Capital Stock and
all holders of Company Notes, in each case, that were outstanding immediately prior to the Effective Time shall cease to have any
rights as stockholders or noteholders of the Company, except, in the case of Company Preferred Stock, the right to receive the
Per Share Merger Consideration (and a portion of the Securityholder Representative Reserve available for distribution to the Escrow
Participants) and, in the case of the Company Notes, the right to receive the Note Consideration; and (ii) the stock transfer books
of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving
Corporation of the shares of Company Capital Stock that were outstanding immediately prior to the Effective Time.
(c) Lost,
Stolen or Destroyed Certificates. If any Company Stock Certificate shall have been lost, stolen or
destroyed, Parent may, in its discretion and as a condition precedent to the payment of any portion of the applicable Per Share
Merger Consideration with respect thereto, require the owner of such lost, stolen or destroyed Company Stock Certificate to provide
an appropriate affidavit of loss with respect to such Company Stock Certificate.
(d) No
Liability for Escheat. None of Parent, the Company or Merger Sub shall be liable to any holder of a Company Stock Certificate
in respect of any cash or securities payable in connection with the Merger and the other transactions contemplated by this Agreement
delivered to a public official as and to the extent required by any abandoned property, escheat or similar Legal Requirements.
1.7 Transfer
Taxes. All transfer, documentary, registration and other such Taxes (including, without limitation, charges for or in connection
with the recording of any instrument or document as provided in this Agreement) payable in connection with the Merger and the other
transactions contemplated by this Agreement shall be timely paid by Parent.
1.8 Dissenting
Shares.
(a) Notwithstanding
anything to the contrary contained in this Agreement, any shares of Company Common Stock or Company Preferred Stock held by a Person
who has not voted for, or executed a written consent in favor of, approval of this Agreement and has made a proper demand for payment
and appraisal of such shares in accordance with Section 262 of the DGCL (any such shares for which a proper demand for payment
and appraisal has been made are referred to herein as “Dissenting Shares” until such time as the holder thereof
fails to perfect or otherwise loses or withdraws such Person’s appraisal rights under the DGCL with respect to such shares)
shall not be converted into or represent the right to receive the consideration, if any, as provided in this Agreement, but shall
be entitled only to such rights as are granted by the DGCL to a holder of Dissenting Shares. If any Dissenting Shares shall lose
their status as such (through failure to perfect, voluntary withdrawal or otherwise), then, as of the later of the Effective Time
or the date of loss of such status, such shares shall automatically be converted into and shall represent only the right to receive
the consideration, if any, as provided in this Agreement, without interest thereon, upon surrender of the Company Stock Certificate
formerly representing such shares and a duly completed Letter of Transmittal.
(b) The
Company shall give Parent prompt notice of any written demand for payment and appraisal received by the Company prior to the Effective
Time pursuant to the DGCL, any withdrawal of any such demand and any other demand, notice or instrument delivered to the Company
prior to the Effective Time pursuant to the DGCL that relates to such demand. The Company shall not make any payment or settlement
offer prior to the Effective Time with respect to any such demand, notice or instrument unless (i) Parent shall have given its
written consent to such payment or settlement offer, (ii) such payment or settlement is otherwise required by the DGCL or (iii)
the Escrow Participants shall be responsible for such payment or settlement pursuant to Section 6.2(a)(v). Each holder of
Dissenting Shares who, pursuant to the provisions of Section 262 of the DGCL, becomes entitled to payment of the value of the Dissenting
Shares will receive payment therefor after the value therefor has been agreed upon or finally determined pursuant to such provisions,
and any consideration that would have been payable with respect to such Dissenting Shares hereunder will be retained by Parent.
Section
2. Representations and Warranties of the Company
The Company represents
and warrants to Parent and Merger Sub that, except as set forth in the disclosure schedule attached hereto (the “Disclosure
Schedule”):
2.1 Due
Organization.
(a) The
Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has
all necessary corporate power and authority to conduct its business in the manner in which its business is currently being conducted.
The Company does not have and has never had any Subsidiaries and does not own or has never owned, directly or indirectly, equity
interests in any corporation, limited liability company, partnership, joint venture or other business entity. The Company has neither
agreed nor is it obligated to make any future investment in or capital contribution to any other Person in exchange for equity
interests in such Person.
(b) The
Company is qualified to do business as a foreign corporation under the laws of all jurisdictions where the nature of its business
requires such qualification.
2.2 Capitalization.
(a) The
authorized capital stock of the Company consists of: (i) 15,000,000 shares of Company Common Stock, of which 2,130,000 shares
are outstanding as of the date of this Agreement, and (ii) 8,409,092 shares of Preferred Stock of the Company, all of which are
designated as Company Preferred Stock, of which 6,397,278 shares are outstanding as of the date of this Agreement. All of the issued
and outstanding shares of Company Capital Stock have been (A) duly authorized and validly issued, and are fully paid and nonassessable,
(B) are free of any liens of encumbrances created by the Company and (C) were not issued in violation of any preemptive rights
or rights of first refusal created by statute, the certificate of incorporation or bylaws of the Company or any agreement to which
the Company is a party or by which it is bound.
(b) Except
for the Company Stock Plan, the Company has never adopted, sponsored or maintained any stock option plan or agreement providing
for equity compensation to any Person. As of the date hereof, the Company has reserved (i) 1,845,000 shares of Company Common Stock
for issuance to employees and directors of, and consultants to, the Company upon exercise of Company Options, of which 1,378,740
shares are issuable upon the exercise of outstanding, unexercised Company Options. Part 2.2(b) of the Disclosure Schedule
sets forth the following information, as of the date of this Agreement, with respect to each outstanding Company Option: (i) the
name of the holder of the Company Option; (ii) the number of shares of Company Common Stock subject to such Company Option; (iii)
the grant date of such Company Option; (iv) the vesting terms of such Company Option; and (v) the exercise price of such Company
Option.
(c) Part
2.2(c) of the Disclosure Schedule sets forth the following information, as of the date of this Agreement, with respect to each
outstanding Company Note: (i) the name of the holder of such Company Note; (ii) the class of shares of Company Capital Stock into
which such Company Note is convertible; (iii) the date of issuance and maturity date of such Company Note; and (iv) the outstanding
principal and accrued interest on such Company Note as of the date hereof. The Company has made available true, correct and complete
copies of each Company Note, including all exhibits, schedules and amendments thereto.
(d) As
of the date of this Agreement, except for the Company Preferred Stock, the Company Options and the Company Notes, there is no:
(i) outstanding option, warrant or right of any character, written or oral, to acquire from the Company any shares of the capital
stock or other equity securities of the Company; or (ii) outstanding security of the Company that is convertible into any shares
of the capital stock or other equity securities of the Company.
2.3 Financial
Statements.
(a) The
Company has made available to Parent the unaudited balance sheets of the Company as of September 30, 2014 (the “Balance
Sheet Date”), December 31, 2013 and December 31, 2012 and the related unaudited statements of income and unaudited statements
of cash flows for the period ended September 30, 2014 and for the years ended December 31, 2013 and December 31, 2012 (collectively,
the “Company Financial Statements”). The Company Financial Statements fairly present in all material respects
and in accordance with GAAP the financial condition of the Company as of the dates indicated therein and the results of operations
and cash flows of the Company for the periods indicated therein, except that the Company Financial Statements are subject to normal
year-end audit adjustments and do not contain footnotes.
(b) The
Company maintains accurate books and records reflecting in all material respects its assets and liabilities and maintains proper
and adequate internal accounting controls.
(c) Neither
the Company nor any representative of the Company has received or otherwise had or obtained knowledge of any material complaint,
allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies
or methods of the Company or its internal accounting controls, including any material complaint, allegation, assertion or claim
that the Company has engaged in questionable accounting or auditing practices.
2.4 Absence
of Changes. Since December 31, 2013, except as expressly permitted under, required or specifically consented to by Parent pursuant
to Section 4.1 hereof, there has not been, occurred or arisen any:
(a) material
transaction by the Company except in the ordinary course of business as conducted on that date and consistent with past practices;
(b) modifications,
amendments or changes to the certificate of incorporation and bylaws of the Company, except as expressly contemplated by this Agreement;
(c) capital
expenditure or capital commitment by the Company exceeding $10,000 individually or $25,000 in the aggregate;
(d) payment,
discharge, waiver or satisfaction of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent
or otherwise) in excess of $10,000 individually or $25,000 in the aggregate;
(e) destruction
of, damage to, or loss of any tangible material assets, material business or loss of a material customer of the Company (whether
or not covered by insurance);
(f) employment
dispute, including claims or matters raised by any individual, Governmental Body, or any workers’ representative organization,
bargaining unit or union regarding labor disputes or claims of wrongful discharge or other unlawful employment or labor practice
or action by the Company;
(g) adoption
of or change in accounting policies or procedures (including any change in reserves for excess or obsolete inventory, doubtful
accounts or other reserves, depreciation or amortization policies or rates, or billing and invoicing policies) by the Company;
(h) making
of or change in any Tax election, adoption of or change in any Tax accounting method, settlement or compromise of any Tax claim
or assessment or entering into any closing agreement in respect of Taxes, filing of any amended Tax Return, or consent to the waiver
or extension of the limitations period for any Tax claim or assessment;
(i) declaration,
setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital
Stock, or any stock split, stock dividend, recapitalization, merger, consolidation or similar event in respect of any shares of
Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in
substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the
Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable
therefor), except in accordance with the agreements evidencing Company Options;
(j) (i)
termination or extension, or material amendment, waiver or modification of the terms, of any Company Material Contract not required
by the terms thereof or (ii) material breach of or default under any Company Material Contract or the occurrence of any event or
condition which, with the giving of notice or the passage of time or both, would reasonably be expected to constitute such a breach
or default;
(k) sale,
lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties
of the Company, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any lien
in such material assets or material properties other than non-exclusive licenses to end-users pursuant to agreements that have
been entered into in the ordinary course of business consistent with past practices;
(l) loan
by the Company to any Person, incurring by the Company of any Indebtedness for borrowed money, guaranteeing by the Company of any
Indebtedness for borrowed money, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities
of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with
past practices;
(m) waiver
or release of any material right or claim of the Company;
(n) commencement,
settlement, written notice or, to the Knowledge of the Company, written threat of any lawsuit or proceeding or other investigation
against the Company;
(o) issuance
or sale, or Contract or undertaking to issue or sell, by the Company or any of its subsidiaries of (i) any shares of Company Capital
Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or (ii) any securities,
warrants, options or rights to purchase any of the foregoing, except for issuances of Company Options or Company Capital Stock
upon the exercise of Company Options;
(p) receipt
by the Company of written notice, or to the Knowledge of the Company other notice or threat, of any claim or potential claim of
ownership by any Person other than the Company of Company IP or of infringement by the Company of any other Person’s intellectual
property rights;
(q) (i)
sale or license of any Company IP or execution of any agreement with respect to the sale or license of any Company IP with any
Person, (ii) purchase or license of any intellectual property rights or execution of any agreement with respect to the purchase
or license of any intellectual property rights of any Person, or (iii) agreement with respect to the development of any intellectual
property rights with a third party;
(r) hiring
or termination of any employee of the Company, promotion, demotion or other change to the employment status or title of any officer
of the Company or resignation or removal of any director of the Company;
(s) (i)
other than in the ordinary course of business, increase in or decrease in or other change to the salary, wage rates, bonuses, or
fringe benefits or other compensation (including equity-based compensation) payable or to become payable by the Company to any
employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise)
by the Company of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional
salary or compensation (including equity based compensation), in each case to any employees, (iii) promise to pay any special bonus
or special remuneration (whether payable in cash, equity or otherwise) to any employee, or (iv) adoption, termination or amendment
of any plan, employee agreement (other than the execution of the Company’s standard at will offer letter) or collective bargaining
agreement;
(t) any
action to extend the post-termination exercise period of any Company Options or any similar equity awards;
(u) circumstance,
change, event or effect of any character that has had a Company Material Adverse Effect; or
(v) agreement
by the Company, or any officer or employees on behalf of the Company, to do any of the things described in the preceding clauses
(a) through (u) of this Section 2.4 (other than negotiations with Parent and its representatives regarding the transactions
contemplated by this Agreement).
2.5 Absence
of Undisclosed Liabilities. The Company has no material obligations or material liabilities of any nature (matured or unmatured,
fixed or contingent) of the type required to be reflected in the liabilities column of a balance sheet prepared in accordance with
GAAP, other than: (a) those set forth or adequately provided for in the Company Financial Statements; (b) those incurred in the
ordinary course of business consistent with past practices since December 31, 2013 in an amount that does not exceed $10,000 in
any one case or $25,000 in the aggregate; and (c) liabilities under or incurred in connection with this Agreement and the transactions
contemplated by this Agreement.
2.6 Tangible
Personal Property. The Company has good title to all of the material items of tangible personal property owned or leased by
the Company, all of which is owned free and clear of all Encumbrances (except for Encumbrances for taxes not yet due and payable
or being contested in good faith and for which adequate reserves have been established). The tangible personal property of the
Company is in good repair and working order, subject to normal wear and tear.
2.7 Real
Property. The Company does not own any real property. Part 2.7 of the Disclosure Schedule sets forth a list of all leases,
lease guaranties, subleases, agreements for the leasing, use or occupancy of, or otherwise granting a right in or relating to all
real property currently leased, subleased or licensed by or from the Company or otherwise used or occupied by the Company for the
operation of its business, including all amendments, terminations and modifications thereof (the “Lease Agreements”),
and there are no other Lease Agreements to which the Company is bound. There is not, under any of such Lease Agreements, any existing
default (or event which with notice or lapse of time, or both, would constitute a default) and no rent is past due. The Lease Agreements
are valid and effective in accordance with their respective terms. The Company has not received any notice of a default, alleged
failure to perform, or any offset or counterclaim with respect to any such Lease Agreement, which has not been fully remedied and
withdrawn. The Company has made available true, correct and complete copies of each Lease Agreement, including all exhibits, schedules
and amendments thereto.
2.8 Intellectual
Property.
(a) Registered
IP. Part 2.8(a) of the Disclosure Schedule accurately identifies each item of Registered IP in which the Company has
an ownership interest of any nature (whether solely or jointly with another Person) including:
(i) all
Patents included in such Registered IP, including a listing of the country of filing, owner, filing number, filing date, if applicable
the date of issue and expiration date and title of such Patent;
(ii) all
registered trademarks and applications for registration of trademarks included in such Registered IP, including a listing of the
country of filing, description of goods or services, registration or application number and date of issue or registration; and
(iii) all
registered copyrights and applications for registration of copyrights included in such Registered IP used by the Company, including
a listing of the country of filing, owner, filing number, date of issue or registration and expiration date.
(b) Inbound
Licenses and Rights. Part 2.8(b) of the Disclosure Schedule accurately identifies: (i) each Contract pursuant to which
any Intellectual Property is or has been licensed, sold, assigned, optioned or otherwise conveyed or provided to the Company or
pursuant to which the Company has otherwise received or acquired any right in Intellectual Property, whether or not currently exercisable
and including a right to receive a license; and (ii) whether the licenses or rights granted to the Company in each such Contract
are exclusive or non-exclusive.
(c) Outbound
Licenses. Part 2.8(c) of the Disclosure Schedule accurately identifies each Contract pursuant to which any Person has
been granted any license under, or otherwise has received or acquired any right (whether or not currently exercisable and including
a right to receive a license) or interest in, any Company IP (other than any Contract with independent contractors performing work
for the Company in the ordinary course of business and which does not grant any continuing rights to such contractor to any Company
IP). The Company is not bound by, and no Company IP is subject to, any Contract containing any covenant or other provision that
limits or restricts in any manner the ability of the Company to use, exploit, assert or enforce any Company IP anywhere in the
world, other than as expressly provided in the provisions of a Contract listed in Part 2.8(b) or Part 2.8(c) of the
Disclosure Schedule.
(d) Standard
Form Company IP Contracts. The Company has made available to Parent a complete and accurate copy of each standard form of Company
IP Contract used by the Company, including each standard form of: (i) development agreement; (ii) employee agreement containing
any assignment or license of Intellectual Property or any confidentiality provision; (iii) consulting or independent contractor
agreement containing any assignment or license of Intellectual Property or any confidentiality provision; (iv) confidentiality
or nondisclosure agreement; (v) employee agreement or consulting or independent contractor agreement; or (vi) master service agreement.
Part 2.8(d) of the Disclosure Schedule accurately identifies all such material Company IP Contracts that differ in any material
respect from the Company’s standard form.
(e) Ownership.
The Company is the owner of all right, title and interest to and in the Intellectual Property listed in Part 2.8(a) of the
Disclosure Schedule (other than Intellectual Property licensed to the Company), free and clear of any Encumbrances. All documents
and instruments necessary to establish, perfect and maintain the rights of the Company in the Company IP have been validly executed,
delivered and filed in a timely manner with the appropriate Governmental Body. All necessary registration, maintenance and renewal
fees in connection with such Company IP that are or will be due for payment on or before the Closing Date have been or will be
timely paid. Each Person who is or was an employee, consultant or contractor of the Company and who is or was involved in the creation
or development of any Company IP has signed a valid, enforceable agreement containing an assignment of intellectual property rights
pertaining to such Company IP to the Company and confidentiality provisions protecting the Company IP. No inventor of the Company
IP is: bound by or otherwise subject to any Contract with a third Person restricting such inventor from performing such employee’s
duties for the Company; or in breach of any Contract with any former employer or other Person concerning intellectual property
rights or confidentiality due to his/her activities as an employee or contractor of the Company. No patent application in the Registered
IP contains disclosure which would support a patent claim which would necessitate the addition of unlisted inventors.
(f) Valid
and Enforceable. To the Knowledge of the Company, all Company IP is valid, subsisting and enforceable (except with respect
to applications, which are valid and subsisting). To the Knowledge of the Company and without limiting the forgoing:
(i) Each
U.S. patent application and U.S. patent in which the Company has or purports to have an ownership interest was filed within one
year of a printed publication, public use or offer for sale by the Company of each invention described in the U.S. patent application
or U.S. patent;
(ii) Each
foreign patent application and foreign patent in which the Company has or purports to have an ownership interest was filed or claims
priority to a patent application filed prior to each invention described in the foreign patent application or foreign patent being
made available to the public by the Company;
(iii) The
Company has not engaged in patent or copyright misuse or infringement or any fraud or inequitable conduct in connection with any
Registered IP;
(iv) No
interference, opposition, reissue, reexamination, or other legal proceeding is or has been pending or, to the Knowledge of the
Company, threatened, in which the ownership, scope, validity, or enforceability of any Registered IP is being, has been, or could
reasonably be expected to be contested or challenged;
(v) To
the Knowledge of the Company there is no reasonable basis for a claim that any Registered IP is invalid or unenforceable;
(vi) All
Registered IP is (and following Closing will be) fully transferable, alienable and licensable by the Company (and/or Parent and/or
Surviving Corporation, as applicable) without restriction and without payment of any kind to any third party;
(vii) No
Registered IP is subject to any proceeding or outstanding decree, order, judgment or settlement agreement, stipulation, or Lien
that restricts in any manner the use, transfer or licensing thereof by the Company or may affect the validity, use, or enforceability
of such Registered IP; and
(viii) The
Company has the sole and exclusive right to bring a claim or suit against a third party for infringement or misappropriation of
the Company IP (other for than Intellectual Property licensed to the Company).
(g) Protection
of Confidentiality. The Company has used commercially reasonable efforts to prevent disclosure of its confidential information
and, to the Knowledge of the Company, no such disclosure has occurred. To the Knowledge of the Company, the Company has not disclosed
any information which may serve as the basis for a new, patentably-distinct patent application directly related to MS Precise.
(h) No
Third-Party Infringement of Company IP. To the Knowledge of the Company, no Person has infringed, misappropriated or otherwise
violated, and no Person is currently infringing, misappropriating or otherwise violating, any Company IP.
(i) No
Infringement of Third-Party IP. The Company has not received any notice from any Person alleging that it is infringing or misappropriating
or otherwise violating any Intellectual Property and, to the Knowledge of the Company, the practice of the Company does not infringe,
misappropriate or otherwise violate or make unlawful use of any Intellectual Property of any other Person that is valid, subsisting
and enforceable.
(j) Privacy
and Data Protection. The Company has implemented reasonable disclosures, policies and procedures with respect to the collection,
use, disclosure, and storage of personally identifiable information (“Personal Data”), including individually
identifiable health information, that comply in all material respects with applicable Legal Requirements, including the U.S. Health
Insurance Portability and Accountability Act of 1996. The Company is not a party to or the subject of any pending Proceeding that
alleges that the Company has violated any such Legal Requirements. The Company has no Knowledge of any information security breach
of the Company’s systems that would require (under applicable statutes or regulations) the Company to notify any individuals.
All patient consent forms were reviewed and approved by an institutional review board (IRB). Each patient providing a sample has
signed and dated an IRB approved consent form. All tests conducted on any patient sample were within the scope of the signed and
dated IRB approved consent form.
(k) Effects
on this Transaction. Neither the execution, delivery or performance of this Agreement or any other agreements executed in connection
with the transactions contemplated by this Agreement nor the consummation of any of the transactions contemplated by this Agreement
or any such other agreement entered into in connection herewith or therewith will, with or without notice or lapse of time, result
in, or give any other Person the right or option to cause or declare: (i) a loss of, or Encumbrance on, any Company IP; (ii) a
breach of, default under or termination of any Company IP Contract; (iii) the release, disclosure or delivery of any Company IP
by or to any escrow agent or other Person; (iv) the grant, assignment or transfer to any other Person of any license or other right
or interest under, to or in any of the Company IP; (v) by the terms of any Company Contract, a reduction of any royalties or other
payments the Company would otherwise be entitled to with respect to any Company IP; or (vi) by the terms of any Company Contract,
an increase in any royalty or other payments the Company would otherwise be required to make under such Company Contract.
2.9 Contracts
and Leases. Part 2.9 of the Disclosure Schedule identifies each Company Material Contract that is in effect as of the
date of this Agreement. For purposes of this Agreement, “Company Material Contract” means a legally binding,
executory Contract to which the Company is a party: (a) under which future expenditures required to be made by the Company
in the current fiscal year exceed $10,000 individually or $25,000 in the aggregate; (b) pursuant to which the Company has
licensed from any third party any material patent, trademark registration, service mark registration, trade name or copyright registration,
other than any nonexclusive license that is available to the public generally; (c) granting exclusive rights to any third
party to any material patents, trademark registrations, service mark registrations, trade names or copyright registrations owned
by the Company; (d) evidencing Indebtedness that exceeds $10,000 individually or $25,000 in the aggregate; (e) pursuant
to which the Company is the lessee of any real property; (f) creating any formal partnership or joint venture between the Company
and any third party or providing for any sharing of material profits or losses by the Company with any third party; (g) containing
covenants materially limiting the freedom of the Company or its Subsidiaries to compete in any line of business or with any third
party, except for covenants that would not materially and adversely affect the ability of the Company to conduct its business as
currently conducted; (h) any agreement of indemnification, warranty or guaranty which would reasonably be expected to result in
liability to the Company in excess of $10,000 individually or $25,000 in the aggregate; (i) any employment, contractor or consulting
agreement, Contract or commitment with any employee, including any Contract that grants any severance or termination pay (in each
case, other than offer letters substantially in the Company’s standard form) with respect to which the Company has made expenditures
in excess of $10,000 in the current fiscal year or will be required to make expenditures in excess of $10,000 in connection with
the consummation of the Transactions; (j) any mortgages, indentures, guarantees, loans or credit agreements, security agreements
or other agreements or instruments relating to the borrowing of money or extension of credit; (k) any Contract pursuant to which
the Company is bound to or has committed to provide any product or service to any third party on a most favored nation basis or
similar terms; (l) any nondisclosure, confidentiality or similar agreement that would reasonably be expected to restrict the Company’s
business in any material respect after the Closing; and (m) any other Contract that would be a “material contract”
(as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act if the Company were the registrant thereunder).
Each Company Material Contract is in full force and effect and constitutes a legal, valid and binding agreement of the Company
in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of
debtors; and (ii) rules of equity governing specific performance, injunctive relief and other equitable remedies. To the knowledge
of the Company, no party is in material breach or in material default under any Company Material Contract. The Company has
made available true, correct and complete copies of each Company Material Contract, including all exhibits, schedules and amendments
thereto.
2.10 Customers.
Part 2.10 of the Disclosure Schedule sets forth a list of all customers of the Company. Since December 31, 2013, no such
customer has canceled or otherwise terminated, or, to the Knowledge of the Company, made any written threat to the Company to cancel
or otherwise terminate, its relationship with the Company.
2.11 Compliance
with Laws. The Company has, since January 1, 2012, complied in all material respects with all applicable Legal Requirements,
and is not currently in violation in any material respect of, and has not received any written notice of any material violation
of, any applicable Legal Requirements (including the U.S. Federal Food, Drug, and Cosmetic Act).
2.12 Permits.
The Company holds all material permits, approvals, licenses and registrations from U.S. federal, state and local as well as foreign
governmental authorities, in each case, as are necessary for the business of the Company as currently conducted. All such permits,
approvals, licenses and registrations are valid and in full force and effect.
2.13
Tax Matters.
(a) Each
of the material Tax Returns required to be filed by the Company with any governmental tax authority on or before the Closing Date:
(i) has been filed on or before the applicable due date (including any extensions of such due date); and (ii) has been
prepared in all material respects in compliance with applicable law. All amounts shown on the Tax Returns to be due have been paid,
except to the extent such amounts are properly reserved for on the books or records of the Company. All material Taxes that the
Company has been required to collect or withhold have been duly collected or withheld and paid over to the proper governmental
tax authority.
(b) The
Company has paid or withheld with respect to its employees, stockholders and other third parties, all U.S. federal, state, local
and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment
Tax Act amounts and other Taxes required to be paid or withheld, and has timely paid over any such Taxes over to the appropriate
authorities.
(c) The
Company is in full compliance with all terms and conditions of any Tax exemption, Tax holiday or other Tax reduction agreement
or order (each, a “Tax Incentive”), and the consummation of the transactions contemplated by this Agreement
will not have any adverse effect on the continued validity and effectiveness of any such Tax Incentive.
(d) The
Company has not been delinquent in the payment of any Tax, nor is there any Tax deficiency outstanding, assessed or proposed against
the Company in writing, nor has the Company executed any waiver of any statute of limitations on or extending the period for the
assessment or collection of any Tax.
(e) The
Company has made available to Parent or its legal counsel, copies of all income and other material Tax Returns for the Company
for all taxable periods beginning after December 31, 2009.
(f) The
Company has not received from any Governmental Body any written notice regarding any contemplated or pending audit, examination
or other administrative or court proceeding involving Taxes imposed thereon.
(g) No
extension of time with respect to any date on which a Tax Return was required to be filed by the Company that extends such date
beyond the date hereof is in force, and no waiver or agreement by the Company is in force for the extension of time for the payment,
collection or assessment of any Taxes beyond the date hereof (other than in connection with extensions of time for filing Tax Returns).
(h) The
Company has not received from any Governmental Body in a jurisdiction where Company has not filed any Tax Return any written claim
that the Company is subject to taxation by that jurisdiction. The Company has not been notified in writing by any Governmental
Body regarding any proposed, asserted or assessed deficiency for any Tax imposed on the Company which was not settled or paid.
(i) There
are no liens for Taxes on any material asset of the Company other than liens for Taxes not yet due and payable or liens for Taxes
that are being contested in good faith and for which adequate reserves have been established. Part 2.13(i) of the Disclosure
Schedule lists all such liens that are being contested in good faith.
(j) The
Company is not a party to any agreement with any third party relating to allocating or sharing the payment of, or liability for,
Taxes. The Company has no liability for the Taxes of any third party under Treasury Regulation § 1.1502-6 or as a transferee
or successor. For purposes of this Section 2.13(j), commercial agreements entered into in the ordinary course of business
the primary purpose of which does not relate to Taxes (e.g., real property or personal property leases) shall be ignored.
(k) The
Company has not been a member of an affiliated group of corporations within the meaning of Section 1504 of the Code.
(l) The
Company has not made any payments to any employee or other service provider, nor is it a party to any Contract with any employee
or other service provider, to make payments, individually or considered collectively with any other events, agreements, plans,
arrangements or other contracts, that will, or would reasonably be expected to, be characterized as a “parachute payment”
within the meaning of Section 280G(b)(1) of the Code or that could give rise to excise taxes payable pursuant to Section 4999 of
the Code.
(m) The
Company has not constituted either a “distributing corporation” or a “controlled corporation” (within the
meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying for tax-free treatment under Section 355 of
the Code (i) in the two years prior to the date of this Agreement or (ii) in a distribution which could otherwise constitute part
of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction
with the transactions contemplated by this Agreement.
(n) Notwithstanding
anything to the contrary in this Section 2.13, the Company makes no representation or warranty as to the amount of, or limitations
on, any net operating losses, Tax credits or other Tax attributes that it may have.
2.14 Employee
and Labor Matters; Benefit Plans.
(a) The
Company is not delinquent in any material payments to any of its employees for any wages, salaries, commissions, bonuses or other
direct compensation for any services performed for the Company. Part 2.14(a) of the Disclosure Schedule contains an accurate
and complete list of the current employees, contractors and consultants to the Company and identifies the Contract, if any, between
such employees, contractors and consultants and the Company. There are no material grievances, complaints or charges pending against
the Company under any dispute resolution procedure. No collective bargaining agreements to which the Company is a party are in
effect or are currently being negotiated by the Company. The Company is in material compliance with all applicable foreign, federal,
state and local laws, rules and regulations, collective bargaining agreements and arrangements, extension orders and binding customs
respecting employment, employment practices, terms and conditions of employment, worker classification, tax withholding, prohibited
discrimination, equal employment, fair employment practices, meal and rest periods, immigration status, employee safety and health,
wages and hours (including overtime wages), compensation and hours of work.
(b) All
material employee benefit plans currently maintained by the Company for its employees are listed in Part 2.14(b) of the
Disclosure Schedule (the “Employee Benefit Plans”). Each Employee Benefit Plan has been established and administered
in all material respects in accordance with its terms and the applicable provisions of ERISA, the Code and other applicable laws.
To the knowledge of the Company, no Employee Benefit Plan, and no trustee or administrator thereof, engaged in any material breach
of fiduciary responsibility or any “prohibited transaction” (as such term is defined in Section 406 of ERISA or
Section 4975 of the Code) to which Section 406 of ERISA or Section 4975 of the Code applies and which could subject
such Employee Benefit Plan or trustee or administrator thereof to a material Tax or penalty on prohibited transactions imposed
by Section 4975 of the Code. No Employee Benefit Plan is or has within the last six (6) years been subject to the minimum
funding requirements of Section 412 of the Code or Title IV of ERISA. Each Employee Benefit Plan intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS that such Employee Benefit Plan is a
“qualified plan” under Section 401(a) of the Code, and the related trusts are exempt from Tax under Section 501(a)
of the Code. With respect to each Employee Benefit Plan, all required contributions have been made or properly accrued on the Company’s
financial statements. The Company does not have any liability under any Employee Benefit Plan to provide medical or death benefits
with respect to employees of the Company beyond their termination of employment (other than coverage mandated by law or regulation),
and there are no reserve assets, surplus or prepaid premiums under any such Employee Benefit Plan.
(c) The
Company has no obligation to contribute to any “multiemployer plan” within the meaning of Section 3(37) of ERISA.
2.15 Environmental
Matters. The Company has not received any written notice from any Governmental Body or any written notice from any citizens
group that alleges that the Company is not in compliance in any material respect with any environmental law. To the Knowledge of
the Company: (a) all real property leased by the Company and all surface water, groundwater and soil associated with or adjacent
to such property, is free of any chemicals, pollutants, contaminants, wastes, toxic substances or material environmental contamination
of any nature; (b) none of the real property leased by the Company contains any underground storage tanks, asbestos, equipment
using PCBs or underground injection wells; and (c) none of the real property leased by the Company contains any septic tanks in
which process wastewater or any chemicals, pollutants, contaminants, wastes or toxic substance have been released.
2.16 Insurance.
There is no material claim pending under any of the Company’s insurance policies as to which coverage has been questioned,
denied or disputed by the underwriters of such policies. The Company is in compliance in all material respects with the terms of
such policies. The Company has no Knowledge as of the date of this Agreement of any threatened termination of, or material premium
increase with respect to, any of such policies. Part 2.16 of the Disclosure Schedule lists each of the Company’s insurance
policies and their materials terms.
2.17 Affiliate
Transactions. Except for the Company Notes and other than employment
agreements, arrangements and relationships, the Company is not currently a party to any agreement, arrangement or relationship
with (a) any stockholder, director, officer or employee of the Company, or (b) any immediate family member, including spouses,
of any such individual.
2.18 Legal
Proceedings. There is not, and has not been, any material Proceeding pending (or, to the Knowledge of the Company, threatened)
against the Company, its properties (tangible or intangible) or any of the Company’s officers or directors (in their capacities
as such), including by or before any Governmental Body. No Governmental Body has at any time, in writing, challenged or questioned
the legal right of the Company to conduct its operations as presently or previously conducted.
2.19 Authority;
Binding Nature of Agreement; Non-Contravention.
(a) The
Company has the requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated
by this Agreement. The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on
the part of the Company (except for the Required Stockholder Votes). This Agreement, assuming it constitutes the valid and binding
obligation of the other parties hereto, constitutes the valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of
debtors; and (ii) rules of equity governing specific performance, injunctive relief and other equitable remedies.
(b) Part
2.19(b) of the Disclosure Schedule sets forth all necessary notices, consents, waivers and approvals of parties to any Contracts
with the Company that are required thereunder in connection with the Merger, or for any such Contract to remain in full force and
effect without modification or alteration after the Closing so as to preserve all rights of, and benefits to, the Company under
such Contracts from and after the Closing. Following the Closing, the Company will continue to be permitted to exercise all of
its rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties
or payments that the Company would otherwise be required to pay pursuant to the terms of such Contracts had the transactions contemplated
by this Agreement not occurred.
(c) Neither
(i) the execution and delivery of this Agreement by the Company, nor (ii) the consummation by the Company of the Merger, will result
in a termination, or a violation by the Company, of (A) any provision of the certificate of incorporation or bylaws of the Company,
(B) any material provision of any Company Material Contract, or (C) in any material respect, any law or governmental regulation
applicable to the Company.
2.20 Financial
Advisor. Except as set forth on the Consideration Spreadsheet, no broker, finder or investment banker is entitled to any brokerage,
finder’s or other fee or commission in connection with the Transactions based upon arrangements made by or on behalf of the
Company.
2.21 Books
and Records. The minute books of the Company, all of
which have been made available to Parent, contain true, correct and complete records of all meetings held of, and corporate action
taken by, the stockholders of the Company, the board of directors of the Company and its committees, and no meeting of any such
stockholders of the Company, board of directors of the Company and its committees has been held for which minutes have not been
prepared or that are not contained in such minute books. The Company has made and kept business records, financial books and records,
personnel records, ledgers, sales accounting records, tax records and related work papers and other books and records of the Company
(collectively, the “Books and Records”) that are true, correct and complete and accurately and fairly reflect,
in all material respects, the business activities of the Company, in each case, as is commercially prudent for a company of the
nature of the Company. The Company has not engaged in any material transaction, maintained any bank account or used any corporate
funds except as reflected in its normally maintained Books and Records. At the Closing, the minute books and other Books and Records
of the Company will be in the possession of the Company or its counsel.
2.22 Foreign
Corrupt Practices Act. Neither the Company, nor any of its officers, directors, employees, stockholders, agents or representatives,
nor any Person associated with or acting for or on behalf of the Company, have directly or indirectly (a) made or attempted to
make any contribution, gift, bribe, rebate, illegal payoff, influence payment, kickback, or other illegal payment to any Person,
private or public, regardless of what form, whether in money, property, or services (i) to obtain favorable treatment for business
or Contracts secured, (ii) to pay for favorable treatment for business or Contracts secured, (iii) to obtain special concessions
or for special concessions already obtained, or (iv) in violation of any requirement of applicable law (including the Foreign Corrupt
Practices Act), or (b) established or maintained any fund or asset that has not been recorded in the Books and Records.
2.23 Export
Control Laws. The Company has at all times conducted its export transactions in all material respects accordance with (i) all
applicable U.S. export and reexport controls, including the United States Export Administration Act and Regulations and Foreign
Assets Control Regulations and (ii) all other applicable import/export controls in other countries in which the Company conducts
business.
2.24 Exclusivity
of Representations and Warranties. Except as expressly set forth
in this Section 2 or in a certificate or other
instrument executed and delivered by the Company pursuant to this Agreement, neither the Company nor any Person on behalf of the
Company has made, nor are any of them making, any representation or warranty, written or oral, express or implied,
at law or in equity, including with respect to merchantability or fitness for any particular purpose, in respect of the Company
or the Company’s business in connection with the Transactions, including any representations or warranties about the accuracy
or completeness of any information or documents previously provided, and any other such representations and warranties are hereby
expressly disclaimed; provided that the foregoing shall not limit the rights of the Parent Indemnified Parties under Sections
6.2(a)(ii) – (a)(v).
2.25 Reliance.
The Securityholder Representative acknowledges and agrees that, except as set forth in Section 3 or
in a certificate or other instrument executed and delivered by Parent or Merger Sub pursuant to this Agreement, none
of the Escrow Participants or any of their agents, employees or Representatives is relying on any other representation or warranty
of Parent or Merger Sub or any other Person, including regarding the accuracy or completeness of any such other representations
or warranties or the omission of any material information, whether express or implied.
Section
3. Representations and Warranties of Parent and Merger Sub
Parent and Merger Sub represent and warrant
to the Company as follows:
3.1 Due
Organization. Each of Parent and Merger Sub is a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation.
3.2 Authority;
Binding Nature of Agreement; Non-Contravention.
(a) Each
of Parent and Merger Sub has the requisite corporate power and authority to enter into this Agreement and the Escrow Agreement
and to carry out the transactions contemplated by this Agreement and the Escrow Agreement. The execution and delivery by Parent
and Merger Sub of this Agreement and the Escrow Agreement have been duly authorized by all necessary corporate action on the part
of Parent and Merger Sub (and no approval by Parent’s stockholders is necessary with respect to the Transactions). This Agreement,
assuming it constitutes the valid and binding obligation of the Company, constitutes, and the Escrow Agreement, when executed,
will constitute, the valid and binding obligation of Parent and Merger Sub, enforceable against them in accordance with its terms,
subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law
governing specific performance, injunctive relief and other equitable remedies.
(b) Neither
(i) the execution and delivery of this Agreement and the Escrow Agreement by Parent or Merger Sub, nor (ii) the consummation of
the Merger, will: (A) result in a violation by Parent or Merger Sub of (I) any provision of the certificate of incorporation or
bylaws or other equivalent organizational documents of Parent or Merger Sub, (II) any material provision of any material contract
by which Parent or Merger Sub is bound, or (III) any law or regulation applicable to Parent or Merger Sub, except where such violation
would not have a material adverse effect on Parent’s or Merger Sub’s ability to fulfill its obligations under this
Agreement; or (B) render Parent insolvent or unable to pay its debts as they become due.
3.3 Merger
Sub. Merger Sub was formed solely for the purpose of engaging in the transactions contemplated by this Agreement, and has engaged
in no other business activities.
3.4 Capitalization.
The authorized capital stock of Parent consists of: (i) 2,000,000,000 shares of Parent Common Stock, of which 786,924,849
shares were outstanding as of September 30, 2014, and (ii) 10,000,000 shares of Convertible Preferred Stock of Parent, par value
$0.001 per share, of which (A) 250,000 are designated as Series A Convertible Preferred Stock, of which no shares are outstanding
as of the date of this Agreement, (B) 3,000,000 are designated as Series B Convertible Preferred Stock, of which no shares are
outstanding as of the date of this Agreement, (C) 750,000 are designated as Series C Convertible Preferred Stock, of which 750,000
shares are outstanding as of the date of this Agreement, (D) 1,300 are designated as Series D Convertible Preferred Stock, of which
1,299.327 shares are outstanding as of the date of this Agreement and (E) 6,000 are designated as Series E Convertible Preferred
Stock, of which 2,200 shares are outstanding as of the date of this Agreement. All of the issued and outstanding shares of capital
stock of Parent have been (x) duly authorized and validly issued, and are fully paid and nonassessable, (y) are free of any liens
of encumbrances created by Parent or any of its Subsidiaries and (z) were not issued in violation of any preemptive rights or rights
of first refusal created by statute, the certificate of incorporation or bylaws of Parent or any of its Subsidiaries or any agreement
to which Parent or any of its Subsidiaries is a party or by which it is bound.
3.5 Parent
Common Stock. The Parent Common Stock to be issued in accordance with this Agreement has been duly authorized, and when issued
and delivered in accordance with this Agreement, will be duly and validly issued.
3.6 Adequacy
of Funds. Parent will have available to it sufficient funds to pay all amounts when due hereunder.
3.7 SEC
Documents; Financial Statements.
(a) Parent
has timely filed or furnished with the SEC all registration statements, prospectuses, reports, schedules, forms, statements and
other documents (including exhibits and any amendments thereto) required to be so filed by it (collectively, the “Parent
Reports”). Parent has made available to the Company copies of all material comment letters from the SEC and Parent’s
responses thereto. There are no outstanding or unresolved comments received from the SEC staff with respect to the Parent Reports.
As of its respective date (or, if amended, as of the date of such amendment), each Parent Report (i) complied in all material respects
with the applicable requirements of the Exchange Act, the Securities Act and the rules and regulations thereunder and (ii) did
not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(b) Each
of the financial statements included in or incorporated by reference into the Parent Reports (including related notes and schedules)
complied at the time it was filed as to form, in all material respects, with the applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, was prepared in accordance with GAAP consistently applied during the periods
involved and fairly presents, in all material respects, the consolidated financial position of Parent and its Subsidiaries as of
the respective dates thereof and the consolidated results of operations, cash flows or changes in shareholders’ equity, as
the case may be, of Parent and its Subsidiaries for the respective periods set forth therein (subject, in the case of unaudited
statements, to (i) such exceptions as may be permitted by Form 10-Q of the SEC and (ii) normal, recurring year-end audit adjustments
which have not been and are not expected to be material in the aggregate).
(c) There
are no liabilities or obligations of Parent or any of its Subsidiaries (whether accrued, absolute, contingent or otherwise and
whether or not required to be disclosed), other than liabilities or obligations to the extent (i) reflected or reserved against
on Parent’s consolidated balance sheet at September 30, 2014, (ii) such liabilities or obligations were incurred in the ordinary
course of business practice since September 30, 2014 or (iii) such liabilities or obligations that, individually or in the aggregate,
have not had and would not reasonably be expected to have a material adverse effect on Parent.
3.8 Intellectual
Property. Parent or its applicable Subsidiary is the owner of all right, title and interest to and in the Intellectual Property
used in their business (other than Intellectual Property licensed to Parent or such Subsidiary), free and clear of any Encumbrances
(other than nonexclusive licenses). None of Parent or any of its Subsidiaries has received any written claims alleging that any
such Intellectual Property is not valid, subsisting and enforceable. Parent and its Subsidiaries have used commercially reasonable
efforts to prevent disclosure of its confidential information and, to the knowledge of Parent, no disclosure has occurred that
could, in particular, prevent the grant or the enforcement of any Patent. To the knowledge of Parent, no Person has infringed,
misappropriated or otherwise violated, and no Person is currently infringing, misappropriating or otherwise violating, any Intellectual
Property of Parent or any of its Subsidiaries. None of Parent or any of its Subsidiaries have received any written notice from
any Person alleging that it is infringing or misappropriating or otherwise violating any Intellectual Property of such Person and,
to the knowledge of Parent, the conduct by Parent and its Subsidiaries of its business as currently conducted does not infringe,
misappropriate or otherwise violate or make unlawful use of any Intellectual Property of any other Person that is valid, subsisting
and enforceable.
3.9 Compliance
with Laws. Parent and its Subsidiaries are in compliance with all applicable Legal Requirements (including the U.S. Federal
Food, Drug, and Cosmetic Act), except for where the failure to be in compliance would not have a material adverse effect on Parent.
3.10 Permits.
Parent and its Subsidiaries hold all material permits, approvals, licenses and registrations from U.S. federal, state and local
as well as foreign governmental authorities that are necessary for the conduct of its business as currently conducted. All such
permits, approvals, licenses and registrations are valid and in full force and effect.
3.11 Legal
Proceedings. As of the date of this Agreement, and since December 31, 2012, except as set forth in the Parent Reports, there
is no, and has not been, any material Proceeding pending (or, to the knowledge of Parent, threatened in writing) against Parent
or any of its Subsidiaries.
3.12 Affiliate
Transactions. Other than employment agreements, arrangements and relationships,
none of Parent or any of its Subsidiaries is currently a party to any agreement, arrangement or relationship with (a) any material
stockholder or any director, officer or employee of Parent or any of its Subsidiaries, or (b) any immediate family member, including
spouses, of any such individual.
3.13 Absence
of Changes. Between September 30, 2014 and the date of this Agreement, except as set forth in the Parent Reports, Parent and
its Subsidiaries have conducted their business in the ordinary course of business and there has not occurred any event that has
had a material adverse effect on Parent.
3.14 Financial
Advisor. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in
connection with the Transactions based upon arrangements made by or on behalf of Parent or Merger Sub.
3.15 Exclusivity
of Representations and Warranties. Except as expressly set forth in this Section
3 or in a certificate or other instrument executed and delivered by Parent or Merger
Sub pursuant to this Agreement, none of Parent, Merger Sub or any Person on their behalf has made, nor are any of them making,
any representation or warranty, written or oral, express or implied, at law or in equity, including with respect to merchantability
or fitness for any particular purpose, in respect of Parent or Merger Sub in connection with the Transactions, including any representations
or warranties about the accuracy or completeness of any information or documents previously provided, and any other such representations
and warranties are hereby expressly disclaimed; provided that the foregoing shall not limit the rights of the Stockholder
Indemnified Parties under Sections 6.3(a)(ii) – (a)(iv).
3.16 Reliance.
Parent acknowledges and agrees that, except as set forth in Section 2 or
in a certificate or other instrument executed and delivered by the Company pursuant to this Agreement, neither Parent nor
any of Parent’s agents, employees or Representatives is relying on any other representation or warranty of the Company or
any other Person, including regarding the accuracy or completeness of any such other representations or warranties or the omission
of any material information, whether express or implied.
Section
4. Covenants and Agreements.
4.1 Conduct
of the Business of the Company; Employee Terminations.
(a) Except
as permitted or contemplated by this Agreement or as required by applicable law, during the period from the date of this Agreement
until the earlier of the Effective Time or the termination of this Agreement (the “Pre-Closing Period”), unless
Parent provides its prior consent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall
conduct its business in the ordinary course of business.
(b) The
Company shall terminate all of the Company’s employees effective as of the Closing Date. Any severance payment to be made
to a terminated employee shall be conditioned upon such employee’s execution of a release of the Company substantially in
the form of Exhibit G or in such other form reasonably acceptable to Parent (an “Employee Release”),
and, in any event, shall be included in the Estimated Closing Working Capital (as set forth in the Working Capital Illustration).
4.2 Access
to Information. During the Pre-Closing Period, the Company shall afford Parent and its personnel, accountants, counsel and
other representatives, subject to applicable Legal Requirements, reasonable access during normal business hours and on reasonable
advance notice to the Company’s properties, books and records and all other existing information concerning the business,
properties and personnel of the Company as Parent may reasonably request; provided, however, that in exercising access
rights under this Section 4.2, Parent shall not be permitted to interfere unreasonably with the conduct of the business
of the Company. Parent shall hold information received pursuant to this Section 4.2 in confidence in accordance with the
terms of the Confidentiality Agreement.
4.3 Public
Disclosure. Except as required by applicable Legal Requirements, no public release or announcement concerning the Transactions
shall be issued by Parent, Merger Sub or the Company without the consent of the other. Upon the Closing, Parent and the Company
shall issue a mutually agreed upon press release announcing the Merger.
4.4 No
Negotiation. During the Pre-Closing Period, the Company shall not, directly or indirectly (a) solicit or knowingly encourage
the initiation of any inquiry, proposal or offer from any Person (other than Parent) relating to a possible Acquisition Transaction,
(b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information to,
any Person (other than Parent) relating to or in connection with a possible Acquisition Transaction or (c) entertain or accept
any proposal or offer from any Person (other than Parent) relating to a possible Acquisition Transaction. “Acquisition
Transaction” shall mean any transaction involving: (a) the sale, license, disposition or acquisition of all or a material
portion of the Company’s business, equity or assets; or (b) any merger, consolidation, business combination, reorganization
or similar transaction involving the Company.
4.5 Efforts
to Consummate. Each of the parties hereto shall use its reasonable best efforts to take, or cause to be taken, all lawful and
reasonable actions within such party’s control and to do, or cause to be done, all lawful and reasonable things within such
party’s control necessary to fulfill the conditions precedent to the obligations of the other parties hereunder and to consummate
and to make effective on January 9, 2015 (or as promptly as practicable thereafter) the Transactions and to cooperate with each
other in connection with the foregoing.
4.6 Indemnification
of Officers and Directors of the Company.
(a) For
a period of six (6) years following the Closing, Parent shall cause the Surviving Corporation to maintain in effect in the Surviving
Corporation’s organizational documents the provisions regarding limitation of liability and indemnification of current or
former directors, officers and employees (the “Company Indemnified Parties”) and the advancement of expenses
incurred contained in the certificates of incorporation, bylaws or other organizational documents, as applicable, immediately prior
to the Closing and shall honor and fulfill to the fullest extent permitted by applicable law such limitation of liability, indemnification
and advancement obligations.
(b) The
Company has made arrangements to purchase, and to the extent not in effect as of the Closing, Parent shall cause the Company to
purchase (such purchase, in any event, to be a Company Transaction Expense), with an effective period of six (6) years following
the Closing, and Parent shall cause the Surviving Corporation to maintain (or cause to be maintained), in effect, either (i) the
current policy of directors’ and officers’ liability insurance maintained by the Company (provided, that the Surviving
Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are
no less advantageous in any material respect to the insured parties thereunder) with respect to claims arising from facts or events
that occurred at or before the Closing (including consummation of the Transactions) or (ii) a run off (i.e., “tail”)
policy or endorsement with respect to the current policy of directors’ and officers’ liability insurance covering claims
asserted within six (6) years after the Closing arising from facts or events that occurred at or before the Closing (including
consummation of the Transactions). Such policies or endorsements shall name as insureds thereunder all present and former directors
and officers of the Company and the Surviving Corporation. From and following the Closing Date, Parent shall cause the Surviving
Corporation to abide by and honor the Surviving Corporation’s contractual obligations, if any, to provide directors’
and officers’ liability insurance to any other person, to the extent of such contractual obligation.
(c) If
Parent or the Surviving Corporation or any of the successors or assigns of Parent or the Surviving Corporation (i) shall consolidate
with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or
merger, or (ii) shall transfer all or substantially all of its properties and assets to any other person, then, and in each such
case, proper provisions shall be made so that the successors and assigns of Parent or the Surviving Corporation (as the case may
be) shall assume all of the obligations set forth in this Section 4.6. This Section 4.6: (A) shall survive the consummation
of the Merger and the Effective Time; (B) is intended for the benefit of, and will be enforceable by, each Company Indemnified
Party and his or her heirs and representatives; (C) shall be binding on all successors and assigns of Parent and the Surviving
Corporation; and (D) provides rights that are in addition to, and not in substitution for, any other rights to indemnification
or contribution that any Company Indemnified Party, or any heir or representative of any Company Indemnified Party, may have by
contract or otherwise.
4.7 Joinder
Agreement. Prior to the Closing, the Company shall use its commercially reasonable efforts to cause the Joinder Agreement in
the form attached hereto as Exhibit I (the “Joinder Agreement”) to be executed on or prior to the Closing
Date by each of the holders of Company Preferred Stock; provided that the execution of a Joinder Agreement by each such
holder shall not be a condition to the Closing except to the extent set forth in Section 5.2(d)(v).
4.8 Company
Common Stock Acknowledgement. Prior to the Closing, the Company shall use its commercially reasonable efforts to cause an acknowledgement
whereby each holder of Company Common Stock has approved this Agreement and the terms and conditions of the transaction contemplated
thereby, including in particular Section 1.2(c)(ii), in the form attached hereto as Exhibit K (the “Company
Common Stock Acknowledgement”); provided that the execution of a Company Common Stock Acknowledgement by each
such holder shall not be a condition to the Closing except to the extent set forth in Section 5.2(d)(vi).
4.9 Consents.
The Company shall use its commercially reasonable efforts to obtain the necessary consents, waivers and approvals of any parties
to any Contract as are required thereunder in connection with the Merger or for any such Contracts to remain in full force and
effect, all of which are required to be listed in Part 2.19 of the Disclosure Schedule, so as to preserve all rights of,
and benefits to, the Company under such Contract from and after the Closing; provided, however, that (i) no such
consent, waiver or approval shall be a condition to the Closing and (ii) except as specifically set forth on Part 2.19(b)
of the Disclosure Schedule and on the Consideration Spreadsheet, the Company shall not be required to deliver any consideration
to obtain any such consent, waiver or approval. Such consents, waivers and approvals shall be in a form reasonably acceptable to
Parent.
4.10 Company
Audit. Prior to the Closing, the Company shall provide Parent with (a) the audited balance sheets of the Company as of December
31, 2013 and December 31, 2012 and the related audited statements of operations and statements of cash flows of the Company for
the one-year periods then ended and (b) the reviewed balance sheet of the Company as of September 30, 2014 and the related reviewed
statement of operations and statement of cash flows of the Company for the nine-month period then ended (the “Company
Audit”).
4.11 Stockholder
Approval. Within three (3) hours following the execution and delivery of this Agreement, the Company shall, in accordance with
its certificate of incorporation and bylaws and the applicable requirements of the DGCL, solicit the written consent of the stockholders
of the Company evidencing the Required Stockholder Votes and shall deliver a copy of such written consent to Parent.
4.12 Issuance
and Registration of Parent Common Stock.
(a) Parent
shall effect the issuance of any Parent Common Stock hereunder in a private placement pursuant either to Section 4(2) of the Securities
Act or such other exemption (if any) from the registration requirements of the Securities Act as may be available.
(b) No
later than the earlier of (x) one hundred twenty (120) days after the Closing or (y) sixty (60) days after the effectiveness of
the filing by Parent after the date hereof of a registration statement under the Securities Act (other than a registration statement
on Form S-8) (a “Parent Registration”) (it being understood that only the first such registration statement
shall constitute a Parent Registration), Parent shall file a registration statement under the Securities Act with respect to the
resale of the shares of Parent Common Stock to be issued pursuant to this Agreement (in either case, the “Registration
Statement”). Notwithstanding the foregoing, in the event a Parent Registration has been filed within one hundred (120)
days after the Closing, the Registration Statement shall not be filed until sixty (60) days after the effective date of the Parent
Registration. The Registration Statement shall comply in all respects with the requirements of the Securities Act. Parent shall
use its reasonable best efforts (i) to cause the Registration Statement to become effective, and to effect the registration of
the shares of Parent Common Stock subject thereto, as promptly as practicable, (ii) to maintain the effectiveness of the Registration
Statement (and maintain the current status of the prospectus or prospectuses contained therein) until all such shares of Parent
Common Stock have been sold pursuant to the Registration Statement or may be sold without restriction under Rule 144 under the
Securities Act and (iii) to take such other actions as are necessary to permit the Persons who are issued Parent Common Stock pursuant
to this Agreement to sell such Parent Common Stock without restriction as promptly as practicable after the filing of the Registration
Statement. If requested by Parent or the underwriters in connection with a Parent Registration, each Person who has executed a
Joinder Agreement shall not sell or otherwise transfer, make any short sale of, grant any option for the purchase of, or enter
into any hedging or similar transaction with the same economic effect as a sale, any Parent Common Stock (or other Parent securities)
held by such Person immediately prior to the filing of a Parent Registration for such period following the effectiveness of such
Parent Registration as may be requested by the underwriters, and each such Person shall execute an agreement reflecting the foregoing
as may be requested by the underwriters (each a “Lock-Up Agreement”); provided that (x) in no event shall
the Lock-Up Agreements to be entered into by Persons who have executed a Joinder Agreement have a term that extends beyond 180
days after the Closing Date, (y) each officer and director of Parent and each beneficial owner of 5% or more of the outstanding
Parent Common Stock at the time the Parent Registration is filed enters into a Lock-Up Agreement on the same terms and conditions
as the Lock-Up Agreements to be entered into by Persons who have executed a Joinder Agreement, and (z) Lock-Up Agreements to be
entered into by Persons who have executed a Joinder Agreement provide that, if the underwriters release any shares under any Lock-Up
Agreement, all Persons who have executed Joinder Agreements shall be entitled to a pro rata release of shares of the Parent Common
Stock subject thereto.
(c) Parent
shall promptly notify the Securityholder Representative upon the occurrence of any of the following events in respect of the Registration
Statement or related prospectus: (i) receipt of any request for additional information by the SEC or any other Governmental Body
during the period of effectiveness of the Registration Statement or amendments or supplements to the Registration Statement or
any related prospectus; (ii) the issuance by the SEC or any other Governmental Body of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect
to the suspension of the qualification or exemption from qualification of the shares of Parent Common Stock registered under the
Registration Statement or the initiation of any proceeding for such purpose; (iv) the happening of any event that makes any statement
made in the Registration Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes in the Registration Statement, related prospectus or
documents (or Parent otherwise becoming aware of any statement included in the Registration Statement, related prospectus or document
that is untrue in any material respect or that requires the making of any changes in the Registration Statement, related prospectus
or document), so that they will not contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading; and (v) Parent’s reasonable determination
that a post-effective amendment to the Registration Statement would be appropriate (in which event Parent shall promptly make available
to the Securityholder Representative any such supplement or amendment to the Registration Statement and, as applicable, the related
prospectus).
Section
5. Closing Conditions.
5.1 Conditions
Precedent to the Obligations of each Party to Effect the Merger. Each party’s
obligations to effect the Merger and otherwise consummate the Transactions are subject to the satisfaction or waiver, at or prior
to the Closing, of each of the following conditions:
(a) No
temporary restraining order, preliminary or permanent injunction or other material legal restraint or prohibition issued or promulgated
by a Governmental Body preventing the consummation of the Transactions shall be in effect, and there shall not be any Legal Requirement
enacted or deemed applicable to the Transactions that makes consummation of the Transactions illegal; and
(b) The
Company shall have obtained the Required Stockholder Votes.
5.2 Conditions
to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger and otherwise consummate
the Transactions are subject to the satisfaction or waiver, at or prior to the Closing, of each of the following conditions:
(a) the
representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects as
of the Closing Date as though made on the Closing Date (except to the extent such representations and warranties relate to an earlier
date, in which case as of such earlier date);
(b) the
Company shall have performed in all material respects all obligations required to be performed by it under this Agreement on or
prior to the Closing Date;
(c) there
has not occurred any Company Material Adverse Effect; and
(d) the
Company shall deliver or cause to be delivered to Parent the following:
(i) a
certificate of the Company dated as of the Closing Date to the effect that the conditions set forth in Sections 5.2(a),
(b) and (c) have been satisfied;
(ii) a
certificate, validly executed by an officer of the Company (in such Person’s capacity as such), certifying as to (i) the
terms and effectiveness of the certificate of incorporation and the bylaws of the Company, (ii) valid adoption of the resolutions
of the board of directors of the Company (whereby the Merger, this Agreement and the Transactions were unanimously approved by
the board of directors of the Company) and (iii) the valid adoption of the resolutions of the stockholders of the Company constituting
the Required Stockholder Votes (whereby the Merger, this Agreement and the Transactions were approved);
(iii) a
certificate of good standing of the Company from the Secretary of State of the State of Delaware dated within five (5) business
days of the Closing Date;
(iv) written
resignations of the officers and directors of the Company, to be effective as of the Effective Time, to the extent requested by
Parent;
(v) copies
of Joinder Agreements executed by holders of at least 90% of the outstanding shares of Company Preferred Stock as of immediately
prior to the Effective Time;
(vi) copies
of Company Common Stock Acknowledgements executed by holders of at least 90% of the outstanding shares of Company Common Stock
as of immediately prior to the Effective Time;
(vii) a
copy of the Company Audit;
(viii) the
Consideration Spreadsheet;
(ix) the
Nerveda Non-Compete, duly executed by Nerveda, LLC; and
(x) the
Escrow Agreement, duly executed by the Securityholder Representative.
5.3 Conditions
to Obligations of the Company. The obligation of Company to effect the Merger and otherwise consummate the Transactions are
subject to the satisfaction or waiver, at or prior to the Closing, of each of the following conditions:
(a) the
representations and warranties of Parent and Merger Sub contained in this Agreement shall be true and correct as of the Closing
Date as though made on the Closing Date (except to the extent such representations and warranties relate to an earlier date, in
which case as of such earlier date);
(b) Parent
and Merger Sub shall have performed in all material respects all obligations required to be performed by it under this Agreement
on or prior to the Closing Date; and
(c) Parent
shall deliver or cause to be delivered to the Securityholder Representative the following:
(i) a
certificate of Parent dated as of the Closing Date to the effect that the conditions set forth in Sections 5.3(a) and (b)
have been satisfied;
(ii) a
certificate of good standing of Parent from the Secretary of State of the State of Nevada dated within five (5) business days of
the Closing Date;
(iii) countersigned
copies of the Joinder Agreements delivered pursuant to Section 5.2(d)(v);
(iv) the
Nerveda Non-Compete, duly executed by Parent; and
(v) the
Escrow Agreement, duly executed by Parent and the Escrow Agent.
Section
6. Indemnification.
6.1 Survival.
The representations and warranties set forth in this Agreement shall terminate and expire and shall cease to have any further force
or effect on the date that is twelve (12) months after the Closing Date, and all covenants and agreements set forth in this Agreement
shall survive until performed and shall constitute “Fundamental Matters” for purposes of this Agreement; provided,
however, that in the event of fraud, willful breach or intentional misrepresentation by the Company of a representation or
warranty contained in this Agreement, the Consideration Spreadsheet or in a certificate or other instrument delivered pursuant
to this Agreement, as applicable, such representation or warranty shall not terminate; provided, further, that (a)
the representations and warranties contained in Section 2.1(a) (Due Organization), Section 2.2 (Capitalization),
Section 2.13 (Tax Matters) and Section 2.19(a) (Authority; Binding Nature of Agreement) and the Consideration Spreadsheet,
with respect to the Company, and (b) the representations and warranties contained in Section 3.1 (Due Organization), Section
3.2(a) (Authority; Binding Nature of Agreement), 3.4 (Capitalization) and Section 3.5 (Parent Common Stock),
with respect to Parent and Merger Sub (collectively, the “Fundamental Matters”), in each case, shall remain
in full force and effect, regardless of any investigation or disclosure made by or on behalf of any of the parties hereto, until
the expiration of the statutes of limitations (including any extensions or waivers thereof) applicable to any such representations
and warranties hereof. The applicable date in the preceding sentence is referred to herein as the “Termination Date.”
Notwithstanding the foregoing, if at any time prior to the applicable Termination Date, the Indemnifying Party has duly delivered
to the Indemnified Party a valid Notice of Indemnification Claim (as defined in, and satisfying the requirements set forth in,
Section 6.4(a)), then the specific indemnification claim asserted in such Notice of Indemnification Claim shall survive
such Termination Date until such time as such claim is resolved. To the extent a Termination Date set forth above is earlier than
the applicable statute of limitations, the parties expressly agree to shorten any such applicable statute of limitations to give
effect to such Termination Date. The period of time prescribed for the commencement of any action shall expire on the applicable
Termination Date.
6.2 Indemnification
of Parent Indemnified Parties.
(a) From
and after the Effective Time (but subject to Section 6.1 and the other applicable provisions of this Section 6),
each Escrow Participant agrees to severally (in accordance with its Participation Percentage) and not jointly indemnify and hold
harmless Parent and its officers, directors, Affiliates, employees, agents and representatives, including the Company (the “Parent
Indemnified Parties”), against any and all claims, losses, liabilities, damages, Taxes, costs, interest, awards, judgments,
penalties and expenses, including reasonable attorneys’ and consultants’ fees and expenses and including any such reasonable
out-of-pocket expenses incurred in connection with investigating, defending against or settling any of the foregoing (collectively,
“Damages”), incurred or sustained by the Parent Indemnified Parties, or any of them (including the Company),
directly or indirectly, as a result of the following:
(i) any
breach or inaccuracy of a representation or warranty of the Company contained in Section 2 or in a certificate or other
instrument executed and delivered by the Company pursuant to this Agreement;
(ii) any
failure of the Company to perform or comply with any covenant or agreement applicable to it contained in this Agreement to be performed
by it prior to the Closing;
(iii) any
inaccuracy or omission in the sections of the Consideration Spreadsheet corresponding to Sections 1.3(c), 1.3(d),
1.3(e) and 1.3(f), including any amounts set forth therein that are paid to a Person in excess of the amounts such
Person is entitled to receive pursuant to the terms of this Agreement or any amounts a Person was entitled to receive pursuant
to the terms of this Agreement that was omitted from such sections of the Consideration Spreadsheet;
(iv) any
amount paid (including in the form of shares of Parent Common Stock, based on the Parent Common Stock Price Per Share) in respect
of Dissenting Shares pursuant to Section 262 of the DGCL in excess of the consideration, if any, to which the holder thereof would
otherwise have been entitled with respect to such Dissenting Shares under this Agreement; and
(v) (A)
any fraud committed by the Company or any of its Affiliates prior to the Closing or of which the Company or any of its Affiliates
has Knowledge prior to the Closing and (B) any willful breach or intentional misrepresentation of or related to this Agreement,
any certificate delivered pursuant to this Agreement, the Consideration Spreadsheet or other instrument delivered pursuant to this
Agreement committed by the Company or any of its Affiliates prior to the Closing or of which the Company or any of its Affiliates
has Knowledge prior to the Closing.
(b) The
Parent Indemnified Parties’ sole recourse for any claim pursuant to Section 6 shall be to the Escrow Fund, in which
case Parent and the Securityholder Representative shall jointly instruct the Escrow Agent to disburse to Parent a number of Escrowed
Securities having a value, based on the Parent Common Stock Price Per Share (but taking into account any stock split, stock dividend,
recapitalization, merger, consolidation or similar event since the Closing), equal to the amount to which Parent is entitled in
respect of such claim. Notwithstanding anything to the contrary set forth in this Agreement, the Escrow Fund shall be the first
recourse, but not the exclusive remedy to the extent the Escrow Fund is insufficient, in respect of (i) Damages (A) arising pursuant
to Sections 6.2(a)(ii) through 6.2(a)(v) or (B) with respect to any Fundamental Matter, or (ii) Damages arising out
of fraud, any willful breach or intentional misrepresentation of or related to this Agreement, the Consideration Spreadsheet or
other certificate or instrument delivered pursuant to this Agreement, in which case the maximum amount that the Parent Indemnified
Parties may recover from each Escrow Participant for such Damages shall be limited to an amount equal to the amount of the consideration
received by such Escrow Participant pursuant to this Agreement in respect of such Escrow Participant’s shares of Company
Preferred Stock (which, for the avoidance of doubt, shall include the Note Consideration), which amount shall exclude any Escrowed
Securities until actually disbursed to such Escrow Participant; provided, however, that such liability shall be determined
in accordance with such Escrow Participant’s Participation Percentage; provided, further, that there shall
be no limitation on the amount that the Parent Indemnified Parties may recover from each Escrow Participant for Damages arising
out of fraud, willful breach or intentional misrepresentation of such Escrow Participant in respect of this Agreement, the Consideration
Spreadsheet or other certificate or instrument delivered pursuant to this Agreement.
(c) Without
limiting the effect of any other limitation set forth in this Section 6, the indemnification provided for in Section
6.2(a)(i) shall not apply, and Parent and the other Parent Indemnified Parties shall not be entitled to exercise any indemnification
rights under this Agreement with respect to Damages under Section 6.2(a)(i), except to the extent that the aggregate amount
of such Damages against which the Parent Indemnified Parties would otherwise be entitled to be indemnified exceeds $50,000. If
the aggregate amount of such Damages exceeds such threshold, then Parent and the other Parent Indemnified Parties shall, subject
to the other limitations set forth in this Agreement, be entitled to be indemnified from the Escrow Fund for their Damages without
regard to such threshold.
6.3 Indemnification
of Stockholder Indemnified Parties.
(a) From
and after the Effective Time (but subject to Section 6.1 and the other applicable provisions of this Section 6),
Parent agrees to indemnify and hold harmless each Escrow Participant (in accordance with its Participation Percentage) and its
officers, directors, Affiliates, employees, agents and representatives (the “Stockholder Indemnified Parties”)
against any and all Damages incurred or sustained by the Stockholder Indemnified Parties, or any of them, directly or indirectly,
as a result of the following:
(i) any
breach of the representations and warranties of Parent or Merger Sub set forth in Section 3 or in a certificate or other
instrument executed and delivered by Parent or Merger Sub pursuant to this Agreement;
(ii) any
failure of Parent or Merger Sub to perform or comply with any covenant or agreement applicable to it contained in this Agreement;
(iii) any
failure of the Company to perform or comply with any covenant or agreement applicable to it contained in this Agreement to be performed
by it after the Closing; or
(iv) (i)
any fraud committed by Parent or any of its Affiliates (including the Company after the Closing) or of which Parent or any of its
Affiliates has knowledge and (ii) any willful breach or intentional misrepresentation of or related to this Agreement, any certificate
delivered pursuant to this Agreement or other instrument delivered pursuant to this Agreement committed by Parent or any of its
Affiliates (including the Company after the Closing) or of which Parent or any of its Affiliates has knowledge.
(b) Without
limiting the effect of any other limitation set forth in this Section 6, the indemnification provided for in Section
6.3(a)(i) shall not apply, and the Stockholder Indemnified Parties shall not be entitled to exercise any indemnification rights
under this Agreement with respect to Damages under Section 6.3(a)(i), except to the extent that the aggregate amount of
such Damages against which the Stockholder Indemnified Parties would otherwise be entitled to be indemnified exceeds $50,000. If
the aggregate amount of such Damages exceeds such threshold, then the Stockholder Indemnified Parties shall, subject to the other
limitations set forth in this Agreement, be entitled to be indemnified for their Damages without regard to such threshold; provided,
however, that the amount that the Stockholder Indemnified Parties may recover from Parent for such Damages (i) under Section
6.3(a)(i) (except with respect to Fundamental Matters) shall be limited to $800,000 and (ii) under Section 6.3(a)(i)
(with respect to Fundamental Matters) and 6.3(a)(ii) through 6.3(a)(iv) in the aggregate shall be limited to $8,000,000
less any amounts recovered under Section 6.3(a)(i) with respect to representations and warranties other than Fundamental
Matters; provided, further, that the foregoing limitations shall not apply in the case of fraud, willful breach or
intentional misrepresentation.
6.4 Indemnification
Claims.
(a) Making
a Claim for Indemnification.
(i) A
Parent Indemnified Party or Stockholder Indemnified Party (each, an “Indemnified Party”) (through Parent, in
the case of a Parent Indemnified Party, and through the Securityholder Representative, in the case of a Stockholder Indemnified
Party) may seek recovery of Damages pursuant to this Section 6 by delivering to the Person or Persons require to provide
indemnification under this Section 6 (the “Indemnifying Party”) (or in the case of the Escrow Participants,
the Securityholder Representative on their behalf), a Notice of Indemnification Claim in respect of such Damages. For purposes
hereof, “Notice of Indemnification Claim” shall mean a certificate signed by any officer of the Indemnified
Party: (A) stating that an Indemnified Party has paid, sustained, incurred or accrued, or reasonably anticipates that it will
have to pay, sustain, incur or accrue Damages and (B) specifying in reasonable detail the individual items of Damages included
in the amount so stated and the nature of the indemnifiable matter to which such item is related.
(ii) If
the Indemnifying Party does not object in writing to the claims contained in a Notice of Indemnification Claim by the Objection
Deadline as defined in Section 6.3(b)(i), such failure to so object shall be an irrevocable acknowledgment by the Securityholder
Representative that the Indemnified Party is entitled to the full amount of the claims for Damages set forth in such Notice of
Indemnification Claim (and such entitlement shall be conclusively and irrefutably established).
(b) Objecting
to a Claim for Indemnification.
(i) The
Indemnifying Party may object to a claim for indemnification set forth in a Notice of Indemnification Claim by delivering to the
Indemnified Party seeking indemnification a written statement of objection to the claim made in the Notice of Indemnification Claim
(an “Objection Notice”), provided that, to be effective, such Objection Notice must be delivered to the
Indemnified Party prior to midnight (California time) on the thirtieth (30th) day following the date on which the Indemnified Party
has acknowledged in writing its receipt of the Notice of Indemnification Claim, which the Indemnified Party shall acknowledge promptly
after receipt thereof; provided that, if the Indemnified Party fails to so acknowledge its receipt of the Notice of Indemnification
Claim within fifteen (15) days after the Indemnified Party’s delivery thereof, and the Indemnified Party has made at least
one (1) good faith effort to deliver such Notice of Indemnification Claim in accordance with Section 8.10, the Indemnifying
Party shall be deemed to have acknowledged its receipt thereof on such fifteenth (15th) day (such deadline, the “Objection
Deadline” for such Notice of Indemnification Claim and the claims for indemnification contained therein).
(ii) If
the Indemnifying Party timely delivers an Objection Notice in accordance with Section 6.3(b)(i) hereof, Parent and the Securityholder
Representative shall attempt in good faith to agree upon the rights of the respective parties with respect to each of such claims.
Either party may, but shall not be obligated to, initiate non-binding mediation of the dispute with the assistance of a neutral
arbitrator belonging to and under the rules of the CPR Institute for Dispute Resolution. The party requesting the mediation shall
arrange for mediation services, subject to the approval of the other party, which shall not be unreasonably withheld. Mediation
shall take place in San Francisco County, California during reasonable business hours and upon reasonable advance notice (with
reasonable efforts to be held through videoconference to the extent requested by any party). Mediation may be scheduled to begin
at any time, but with at least ten (10) business days’ written notice to all parties. If one party initiates mediation, the
parties (i) shall participate in the mediation in good faith and shall devote reasonable time and energy to the mediation
so as to promptly resolve the dispute or conclude that they cannot resolve the dispute and (ii) shall not pursue other remedies
while such mediation is proceeding. If the Securityholder Representative and Parent reach an agreement, a memorandum setting forth
such agreement shall be prepared and signed by both parties. All expenses and fees of such mediation shall paid by Parent; provided
that Parent and the Securityholder Representative shall jointly instruct the Escrow Agent to disburse to Parent a number of shares
of Escrowed Securities having a value, based on the Parent Common Stock Price Per Share (but taking into account any stock split,
stock dividend, recapitalization, merger, consolidation or similar event since the Closing), equal to one-half (1/2) of such expenses
and fees.
(c) An
Indemnified Party seeking indemnification under this Section 6 shall give prompt written notice to the Indemnifying Party
(or in the case of the Escrow Participants, the Securityholder Representative on their behalf) of any demand, suit, claim or assertion
of liability by such party or by any third party that is subject to indemnification hereunder (in either case, a “Third
Party Claim”), but a failure to give such notice or delaying such notice shall not affect such Indemnified Party’s
rights or the Indemnifying Party’s obligations, except to the extent the Indemnified Party’s ability to remedy, contest,
defend or settle with respect to such Claim is thereby prejudiced and provided that, where applicable, such notice is given within
the time period described in Section 6.1.
(d) Parent
shall have the right to undertake the defense or opposition to such Third Party Claim with counsel selected by it; provided
that Parent shall not, without the Securityholder Representative’s written consent (which shall not be unreasonably withheld,
conditioned or delayed), settle or compromise any Third Party Claim or consent to the entry of any judgment in respect of such
Third Party Claim. In the event that Parent undertakes the defense of or opposition to any Third Party Claim, the Securityholder
Representative, by counsel or other representative of its own choosing and, at its sole cost and expense, shall have the right
to participate in the defense, opposition, compromise or settlement of, and consult with Parent and its counsel concerning, such
Third Party Claim, and Parent and the Securityholder Representative and their respective counsel shall cooperate in good faith
with respect to such Third Party Claim (in each case, subject to the control thereof by Parent).
6.5 Disbursement
of Escrow Fund. In accordance with, and subject to the terms and conditions of the Escrow Agreement, on the date that is twelve
(12) months after the Closing Date, the Escrowed Securities then constituting the Escrow Fund, if any, minus a number of Escrowed
Securities having a value, based on the Parent Common Stock Price Per Share (but taking into account any stock split, stock dividend,
recapitalization, merger, consolidation or similar event since the Closing), equal to the amount of any then pending claims for
Damages to which the Escrow Fund is subject, shall be released from the Escrow Fund to the Escrow Participants in accordance with
their Participation Percentages; provided that any Escrowed Securities so withheld with respect to a pending Claim may be
applied as set forth in Section 6.2(b) to satisfy such pending Claim and, upon resolution of such Claim, any of such Escrowed
Securities not so applied shall promptly be disbursed from the Escrow Fund to the Escrow Participants in accordance with their
Participation Percentages.
6.6 No
Special Damages; Mitigation. No Indemnifying Party shall be liable to any Indemnified Party for any special, indirect, consequential,
contingent, speculative, punitive or exemplary Damages, unless paid to a third party for any Damages resulting from the actions
of the Indemnifying Party. Each party shall use its commercially reasonable efforts to mitigate any Damages with respect to which
the Indemnified Party is obligated to provide indemnification in accordance with this Section 6.
6.7 Alternative
Reimbursement. The amount of any Damages indemnifiable by the Indemnifying Party to the Indemnified Party pursuant to this
Section 6 will be reduced to reflect any amount (a) recovered or (b) to the extent a similarly-situated Person would customarily
seek insurance or other recovery in accordance with commercially prudent business practices and such insurance or other recovery
is readily available, recoverable, in each case, by the Indemnified Party under insurance policies or otherwise with respect to
such Damages; provided that any costs incurred by the Indemnified Party in seeking such recovery (for example, increases
in premium amounts) shall constitute Damages for which the Indemnifying Party is responsible. Without limiting the foregoing, the
parties shall cooperate with each other to maximize the availability of any insurance coverage or other alternative reimbursements
for indemnifiable claims hereunder, and, if any insurance provider agrees to defend any Third Party Claim, Parent may tender the
defense to such insurance provider and the rights of the parties between themselves regarding the assumption and control of such
defense shall be subject to the reasonable requirements of such insurance provider. The amount of any Damages under this Agreement
shall be reduced if and to the extent the matter giving rise to the indemnification was taken into account in calculating the Closing
Working Capital pursuant to Section 1.4.
6.8 Treatment
of Indemnity Benefits. All payments made pursuant to any indemnification obligations under this Agreement (including through
disbursement of all or a portion of the Escrow Fund) shall be treated as adjustments to the consideration payable hereunder for
Tax purposes unless otherwise required by applicable law and such agreed treatment shall govern for purposes of this Agreement.
6.9 Exclusive
Remedies. From and after the Closing, the indemnification provisions of this Article 6 shall be the sole and exclusive
remedies of the parties for any breach of the representations or warranties or nonperformance of or default under any covenants
or agreements contained in this Agreement, or any other claims for damages or liabilities arising in connection with the transactions
contemplated hereby; provided, however, that no party shall be relieved from liability arising out of or resulting
from such party’s fraud or intentional misrepresentation in connection with the Transactions or limit the availability of
equitable relief, including specific performance.
Section
7. Termination.
7.1 Termination
Events. At any time prior to the Closing, this Agreement may be terminated and the Merger abandoned by authorized action taken
by the terminating party:
(a) by
mutual written consent by the Company and Parent;
(b) by
either Parent or the Company, if the Closing shall not have occurred on or before January 16, 2015; provided, however,
that the right to terminate this Agreement under this Section 7.1(b) shall not be available to any party whose breach
(or whose Affiliate’s breach) of this Agreement has resulted in the failure of the Closing to occur on or before such date;
(c) by
either Parent or the Company, if any permanent injunction or other order of a Governmental Body of competent authority preventing
the consummation of the Merger shall have become final and nonappealable;
(d) by
Parent, if the Company shall have materially breached any representation, warranty, covenant or agreement contained herein and
such breach shall not have been cured within twenty (20) calendar days after receipt by the Company from Parent of written
notice of such breach (provided, however, that no such cure period shall be available or applicable to any such breach
which by its nature cannot be cured) and if not cured within the timeframe above and at or prior to the Closing, such breach would
result in the failure of any of the conditions set forth in Section 5.1 or Section 5.2 to be satisfied;
or
(e) by
the Company, if Parent or Merger Sub shall have materially breached any representation, warranty, covenant or agreement contained
herein and such breach shall not have been cured within twenty (20) calendar days after receipt by Parent from the Company of written
notice of such breach (provided, however, that no such cure period shall be available or applicable to any such breach
which by its nature cannot be cured) and if not cured within the timeframe above and at or prior to the Closing, such breach would
result in the failure of any of the conditions set forth in Section 5.1 or Section 5.3 to be satisfied.
7.2 Effect
of Termination. In the event of termination of this Agreement as provided in Section 7.1, this Agreement shall
forthwith become void and there shall be no liability or obligation on the part of Parent, Merger Sub, the Company or their respective
officers, directors, stockholders or Affiliates; provided, however, that, in the event of such termination, (i) the
provisions of this Section 7.2, Section 4.3 (Public Disclosure), Section 8 (Miscellaneous Provisions)
and the Confidentiality Agreement shall remain in full force and effect and survive any termination of this Agreement, (ii) nothing
herein shall relieve any party from liability in connection with any knowing and willful breach of such party’s representations,
warranties, covenants or agreements contained herein and (iii) except for all costs and expenses associated with the Company Audit
(for which Parent shall be responsible), each party shall be responsible for the fees, costs and expenses (including fees, costs
and expenses of legal counsel, investment bankers, brokers or other representatives and consultants and appraisal fees, costs and
expenses) incurred in connection with the negotiation of this Agreement and the other agreements contemplated by this Agreement.
Section
8. Miscellaneous Provisions.
8.1 Securityholder
Representative.
(a) Nerveda,
LLC is hereby appointed, authorized and empowered to act as the Securityholder Representative, for the benefit of each Escrow Participant,
as the exclusive agent and attorney-in-fact to act on behalf of each Escrow Participant in connection with, and to facilitate the
consummation of, the Transactions, to take any and all actions and make any and all decisions required or permitted to be taken
or made by the Securityholder Representative under this Agreement or the Escrow Agreement, including the exercise of the right
to (i) give and receive notices and communications under Section 6 or the Escrow Agreement; (ii) authorize delivery to Parent
of a number of shares of Escrowed Securities from the Escrow Fund in satisfaction of claims for indemnification made by Parent
under Section 6; (iii) object to claims for indemnification made by Parent under Section 6; (iv) agree to, negotiate,
enter into settlements and compromises of and comply with mediation awards and court orders with respect to claims for indemnification
made by Parent under Section 6; (v) grant any consent, waiver or approval on behalf of the Escrow Participants under this
Agreement; and (vi) take all actions necessary or appropriate in the good faith judgment of the Securityholder Representative for
the accomplishment of the foregoing. Each Escrow Participant irrevocably appoints the Securityholder Representative as the sole
representative of the Escrow Participants to act as the agent and on behalf of such Escrow Participants in connection with the
foregoing. The grant of authority provided for herein is coupled with an interest and shall be irrevocable and survive the death,
incompetency, bankruptcy or liquidation of any Escrow Participant and shall survive the consummation of the Merger and the Transactions.
The Securityholder Representative may resign at any time by notice to Parent and the identity of the Securityholder Representative
may be changed, and a successor Securityholder Representative may be appointed, from time to time (including in the event of the
resignation or the death, disability or other incapacity of the Securityholder Representative) by Escrow Participants whose aggregate
Participation Percentages exceed 50%, and any such successor shall succeed the Securityholder Representative as Securityholder
Representative hereunder. No bond shall be required of the Securityholder Representative, and the Securityholder Representative
shall receive no compensation for its services. From and after the Effective Time, a decision, act, consent or instruction of the
Securityholder Representative shall be final, binding and conclusive upon each Escrow Participant and may be relied upon by Parent.
(b) The
Securityholder Representative shall not be liable for any liability, loss, damage, penalty, fine, cost or expense incurred by the
Securityholder Representative while acting in good faith and in the exercise of its good faith judgment and arising out of or in
connection with the acceptance or administration of its duties or the exercise of its rights hereunder (it being understood that
any act done or omitted pursuant to the advice of counsel, public accountants or other independent experts experienced in the matter
at issue shall be conclusive evidence of such good faith). Each Escrow
Participant shall, severally and not jointly and in proportion to its Participation Percentage in an amount not to exceed
the proceeds actually received by such Escrow Participant in the Merger,
indemnify, defend and hold harmless the Securityholder Representative
and its successors and assigns from and against any and all claims, demands, suits, actions, causes of action, losses, damages,
obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) (collectively, “Representative
Losses”) arising as a result of or incurred in connection with any actions taken or omitted to be taken by the Securityholder
Representative pursuant to the terms of this Agreement, in each case as
such Representative Loss is incurred or suffered. The Securityholder Representative shall be entitled to recover any Representative
Losses reasonably incurred by the Securityholder Representative in connection with actions taken by the Securityholder Representative
pursuant to the terms of this Agreement or the Escrow Agreement (including the hiring of legal counsel and the incurring of legal
fees and costs), without the requirement of any consent or approval by Parent or any other Person. All of the indemnities, immunities
and powers granted to the Securityholder Representative under this Agreement shall survive the Merger or any termination of this
Agreement.
(c) The
Representative Losses shall be satisfied from the Securityholder Representative Reserve and, to the extent the amount of the Representative
Losses exceeds the available Securityholder Representative Reserve, from each Escrow Participant, severally and not jointly and
in proportion to its Participation Percentage in an amount not to exceed the proceeds actually received by such Escrow Participant
in the Merger. As soon as practicable after the date on which the final obligation of the Securityholder Representative under this
Agreement and the Escrow Agreement have been discharged, the Securityholder Representative shall remit any amounts remaining in
the Securityholder Representative Reserve to the Escrow Participants based on their Participation Percentages. For Tax purposes,
Parent shall be deemed to have paid each Escrow Participant its, his or her share of the Securityholder Representative Reserve
and then each Escrow Participant shall be deemed to have voluntarily contributed such amount to the Securityholder Representative
Reserve held by the Securityholder Representative (and, for the avoidance of doubt, the amount of the Securityholder Representative
Reserve that is returned to such Escrow Participant shall not again be subject to information reporting or Tax withholding).
(d) From
and after the Effective Time, Parent shall cause the Surviving Corporation to provide the Securityholder Representative with reasonable
access to information about the Surviving Corporation and the reasonable assistance of the officers and employees of Parent and
the Surviving Corporation for purposes of performing its duties and exercising its rights under this Agreement and the other Transaction
Documents.
8.2 Expenses.
Parent shall be responsible for the fees, costs and expenses (including fees, costs and expenses of legal counsel, investment bankers,
brokers or other representatives and consultants and appraisal fees, costs and expenses) of the parties incurred in connection
with the negotiation of this Agreement and the other agreements contemplated by this Agreement, the performance of its obligations
hereunder and thereunder, and the consummation of the transactions contemplated hereby and thereby.
8.3 Waiver.
(a) Except
as expressly set forth in this Agreement, no failure on the part of any party to exercise any power, right, privilege or remedy
under this Agreement, and no delay on the part of any party in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right,
privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
(b) No
party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly
executed and delivered on behalf of such party; and any such waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
8.4 Entire
Agreement; Counterparts; Exchanges by Facsimile. This Agreement, the Escrow Agreement and the other agreements referred to
in this Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral,
among or between any of the parties with respect to the subject matter hereof and thereof. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange
of a fully executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery in .pdf format shall be sufficient
to bind the parties to the terms and provisions of this Agreement.
8.5 Applicable
Law; Venue; Waiver of Jury Trial.
(a) This
Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof, as to all matters, including matters of validity,
construction, effect, performance and remedies.
(b) Each
of the parties irrevocably consents to the exclusive jurisdiction and venue of the state courts (or if such jurisdiction is not
permitted by applicable laws, the federal courts) located in Wilmington, Delaware, in connection with any matter based upon or
arising out of this Agreement or the transactions contemplated hereby and agrees that process may be served upon it in any manner
authorized by the laws of the State of Delaware for such Persons and waives and covenants not to assert or plead any objection
which it might otherwise have to such jurisdiction and such process.
(c) Each
of the parties irrevocably waives the right to trial by jury in connection with any matter based upon or arising out of this Agreement,
the Escrow Agreement or the transactions contemplated hereby and thereby.
8.6 Assignability;
Third Party Rights.
(a) Subject
to Section 8.6(b), this Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of,
the parties hereto and their respective successors and assigns; provided, however, that neither this Agreement nor
any of the rights or obligations of any party hereunder may be assigned or delegated by such party without the prior written consent
of the other parties, and any attempted assignment or delegation of this Agreement or any of such rights or obligations by any
party without the other parties’ prior written consent shall be void and of no effect.
(b) Except
as set forth in Section 4.6(c) and Section 6, nothing in this Agreement is intended to or shall confer upon any Person
(other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
8.7 Disclosure
Schedule. The Disclosure Schedule will be arranged to correspond to the representations and warranties in Section 2
of this Agreement, and the disclosure in any portion of the Disclosure Schedule shall qualify the corresponding provision in Section 2
and any other provision of Section 2 to which it is reasonably apparent from such disclosure that such disclosure relates.
No reference to or disclosure of any item or other matter in this Disclosure Schedule shall be construed as an admission or indication
that such item or other matter is material or that such item or other matter is required to be referred to or disclosed in this
Disclosure Schedule. The information set forth in the Disclosure Schedule is disclosed solely for the purposes of this Agreement,
and no information set forth therein shall be deemed to be an admission by any party hereto to any third party of any matter whatsoever,
including of any violation of law or breach of any agreement.
8.8 Waiver
of Conflict of Interest. If the Securityholder Representative so desires, acting on behalf of the Escrow Participants and without
the need for additional consent or waiver by the Surviving Corporation or Parent, Cooley LLP shall be permitted to represent the
Securityholder Representative after the Closing with respect to any matters related to this Agreement or any disagreement or dispute
relating thereto. Each of the parties hereto also agrees that the Escrow Participants and the Securityholder Representative have
a reasonable expectation of privacy with respect to their communications (including any e-mail communications using the Company’s
e-mail system) with Cooley LLP prior to the Closing to the extent such communications concern the Merger and any matters related
to this Agreement.
8.9 Amendment.
This Agreement may not be amended without
the written approval of Parent, the Company and the Securityholder Representative; provided, that, at any time after
approval of this Agreement by the holders of Company Capital Stock, no amendment shall be made that requires the approval of the
holders of Company Capital Stock pursuant to applicable Legal Requirements without the further approval of the holders of Company
Capital Stock.
8.10 Notices.
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been
duly given or made as follows: (a) if sent by registered or certified mail in the United States return receipt requested, upon
receipt; (b) if sent designated for overnight delivery by nationally recognized overnight air courier (such as Federal Express),
two business days after dispatch; (c) if sent by e-mail transmission before 5:00 p.m. on a business day, when transmitted and receipt
is confirmed; (d) if sent by e-mail transmission after 5:00 p.m. or on a day other than a business day and receipt is confirmed,
on the following business day; and (e) if otherwise actually personally delivered, when delivered, provided that such notices,
requests, demands and other communications are delivered to the address set forth below, or to such other address as any party
shall provide by like notice to the other parties to this Agreement:
if to Parent, Merger
Sub or the Surviving Corporation:
Amarantus Bioscience
Holdings, Inc.
655 Montgomery
Street, Suite 900
San Francisco,
CA 94111
Attention: Gerald
Commissiong
E-mail: gerald.commissiong@amarantus.com
with a copy (which shall
not constitute notice) to:
Wilson Sonsini
Goodrich & Rosati
650 Page Mill
Road
Palo Alto, CA 94304
Attention: Bradley
Finkelstein
E-mail: bfinkelstein@wsgr.com
if to the Company (prior
to the Closing):
DioGenix Inc.
3 Bethesda Metro
Center, Suite 700
Bethesda, MD
20814
Attention: Larry
Tiffany
E-mail: ltiffany@diogenix.com
with a copy (which shall
not constitute notice) to:
Cooley LLP
One Freedom Square
11951 Freedom Drive,
15th Floor
Reston, VA 20190
Attention: Christian
E. Plaza, Esq.
E-mail: cplaza@cooley.com
if to the Securityholder
Representative:
Nerveda, LLC
3888 Quarter Mile Drive
San Diego, CA 92130
Attention: Cam Gallagher
E-mail: cgallagher@nervedabio.com
with a copy (which shall
not constitute notice) to:
Cooley LLP
One Freedom Square
11951 Freedom Drive,
15th Floor
Reston, VA 20190
Attention: Christian
E. Plaza, Esq.
E-mail: cplaza@cooley.com
and
Wilson Sonsini Goodrich
& Rosati
12235 El Camino
Real, Suite 200
San Diego, CA 92130
Attention: Dan Koeppen
E-mail: dkoeppen@wsgr.com
8.11 Severability.
Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the
offending term or provision in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction
or arbitrator declares that any term or provision of this Agreement is invalid or unenforceable, the parties hereto agree that
the court or arbitrator making such determination shall have the power to limit such term or provision, to delete specific words
or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as
so modified. In the event such court or arbitrator does not exercise the power granted to it in the prior sentence, the parties
hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will
achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.
8.12 Remedies.
The parties acknowledge and agree that the parties would be irreparably damaged if any of the provisions of this Agreement are
not performed in accordance with their specific terms or are otherwise breached and that any non-performance or breach of this
Agreement by any party hereto could not be adequately compensated by monetary damages alone and that the parties hereto would not
have any adequate remedy at law. Accordingly, in addition to any other right or remedy to which any party hereto may be entitled,
at law or in equity (including monetary damages), such party shall be entitled to enforce any provision of this Agreement by a
decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened
breaches of any of the provisions of this Agreement without posting any bond or other undertaking. Notwithstanding anything in
this Agreement to the contrary, if the Closing occurs, Article 6 shall govern with respect any Damages incurred by any party.
8.13 Construction.
For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders;
and the neuter gender shall include masculine and feminine genders. All references herein to “$” or “dollars”
are to United States Dollars, unless expressly stated otherwise. As used in this Agreement, the words “include” and
“including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be
followed by the words “without limitation.” Except as otherwise indicated, all references in this Agreement to “Sections,”
“Exhibits” and “Schedules” are intended to refer to Sections of this Agreement and Exhibits or Schedules
to this Agreement. The headings set forth in this Agreement are for convenience of reference only, shall not be deemed to be a
part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.
[remainder of page intentionally
left blank]
In
Witness Whereof, the parties have caused this Agreement to be executed as of the date first above written.
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Parent: |
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Amarantus BioScience Holdings, Inc. |
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By: |
/s/ Gerald E. Commissiong |
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Name: Gerald E. Commissiong |
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Title: President and Chief Executive Officer |
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Merger Sub: |
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Neuro Acquisition Corporation |
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By: |
/s/ Gerald E. Commissiong |
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Name: Gerald E. Commissiong |
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Title: President |
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Company: |
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DioGenix Inc. |
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By: |
/s/ Larry Tiffany |
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Name: Larry Tiffany |
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Title: CEO |
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Securityholder Representative: |
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Nerveda, LLC |
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By: |
/s/ Cam Gallagher |
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Name: Cam Gallagher |
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Title: CEO/President |
[Signature Page to Agreement and Plan of
Merger]
Exhibit
A
Certain
Definitions
For purposes of the
Agreement:
“Affiliate”
when used with respect to any specified Person, means any other Person who or that, directly or indirectly through one or more
intermediaries, Controls, is Controlled by or is under common Control with such specified Person. “Control” means,
as to any Person, the power to direct or cause the direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise, and “Controlled” shall have a correlative meaning.
“Cash”
means cash, cash equivalents and marketable securities of the Company.
“Cash Closing
Bonuses” means the Closing Bonuses to be paid in cash, as provided in Section 1.3(a) and the Consideration Spreadsheet.
“Closing Bonuses”
means an aggregate value of $275,000 in bonuses to be paid in accordance with Sections 1.3(a) and 1.3(e) pursuant
to the Company’s Key Contributor Retention Plan, all as set forth in the Consideration Spreadsheet.
“Closing Working
Capital” means, as of 11:59 p.m. on December 31, 2014 (or, at the Securityholder Representative’s election, as
of the Closing, if the Closing occurs after January 9, 2015), except that amounts relating to ongoing employment of the Company’s
employees through the Closing Date shall be calculated as of the Closing, and after giving effect to Parent’s $900,000 cash
contribution to the Company, (a) the amount of all Current Assets, minus (b) the amount of all Current Liabilities, all as calculated
in accordance with the Working Capital Illustration.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Company Capital
Stock” means the Company Common Stock and the Company Preferred Stock.
“Company Common
Stock” means the Common Stock, par value $0.01 per share, of the Company.
“Company IP”
means the Intellectual Property used in the business of the Company.
“Company IP
Contract” means each Contract which provides for the transfer or license of any Intellectual Property to or from the
Company, but solely to the extent that such transfer or license is exercisable as of the Closing or at any time thereafter.
“Company Material
Adverse Effect” means any material adverse effect on the business of the Company; provided, however, that
none of the following shall be deemed, either alone or in combination, to constitute, and there shall not be taken into account
in determining whether there has been a Company Material Adverse Effect any adverse effect arising from or attributable or relating
to: (i) conditions affecting the industries in which the Company operates or participates or the U.S. economy generally (in
each case, to the extent that such changes do not disproportionately adversely affect the Company); (ii) the legal, accounting,
investment banking or other fees or expenses incurred (A) in connection with the transactions contemplated by this Agreement, and
(B) in connection with the process of the sale of the Company; (iii) the execution, delivery or announcement of this Agreement
or the announcement, pendency or anticipated consummation of the Merger; (iv) any natural disaster or any acts of terrorism, sabotage,
military action or war or any escalation or worsening thereof; (v) the taking of any action or failure to act contemplated by this
Agreement or with the written consent of Parent; (vi) changes in GAAP or applicable laws; or (vii) any failure, in and of itself,
by the Company to meet any internal or published projections, forecasts or revenue or earnings predictions (it being understood
that, unless the subject of a separate exclusion in this definition, the facts and circumstances giving rise to such failure may
be taken into account to determine whether a Company Material Adverse Effect has occurred).
“Company Notes”
means the Unsecured Convertible Promissory Notes of the Company listed on Part 2.2(c) of the Disclosure Schedule.
“Company Options”
means options to purchase shares of Company Common Stock granted by the Company pursuant to the Company Stock Plan or otherwise
and outstanding immediately prior to the Effective Time.
“Company Preferred
Stock” means the Series A Preferred Stock, par value $0.01 per share, of the Company.
“Company Preferred
Stock Aggregate Consideration” means $8,000,000, plus the Remaining Working Capital Cash Payment, minus the aggregate
amount of the outstanding principal of and accrued interest on all of the Company Notes as of immediately prior to the Effective
Time, minus the aggregate value of the Closing Bonuses other than the Cash Closing Bonuses (the foregoing calculation of the Company
Preferred Stock Aggregate Consideration shall be set forth on the Consideration Spreadsheet).
“Computer
Software” means computer programs, together with input and output formats, the applicable source or object codes, data
models, flow charts, outlines, narrative descriptions, operating instructions, software manufacturing instructions and scripts,
test specifications and test scripts and supporting documentation, and shall include the tangible media upon which such programs
and documentation are recorded, including all corrections, updates, new releases and new versions, translations, modifications,
updates, upgrades, substitutions, replacements and other changes to the foregoing.
“Company Stock
Plan” means the Company’s 2008 Amended and Restated Equity Incentive Plan.
“Company Transaction
Expenses” means all fees, costs and expenses of the Company that relate to this Agreement or any of the Transactions,
including any fees, costs or expenses payable to the Company’s outside legal counsel or financial advisor in connection with
this Agreement or any of the Transactions and any severance obligations or vacation or sick pay liabilities that are due in connection
with the consummation of the Transactions or that have otherwise accrued (in each case, including the employer portion of any Taxes
associated therewith), but excluding $275,000 in respect of the Closing Bonuses (it being understood and agreed that any employer
portion of any Taxes associated with the Closing Bonuses shall be Company Transaction Expenses).
“Confidentiality
Agreement” means that certain Confidential Disclosure Agreement, dated as of September 17, 2014, between the Company
and Parent.
“Contract”
means any agreement, lease, sublease, other occupancy agreement, contract, note, mortgage, indenture or other legally binding obligation
or commitment, written or oral.
“Current Assets”
means the current assets of the Company, including Cash, determined in accordance with GAAP in accordance with the Company’s
past practices and consistent with the Working Capital Illustration.
“Current Liabilities”
means the current liabilities of the Company (for the avoidance of doubt, including the Company Transaction Expenses but excluding
the Closing Bonuses), determined in accordance with GAAP in accordance with the Company’s past practices and consistent with
the Working Capital Illustration, but excluding current liabilities and accrued interest attributable to the Company Notes.
“DGCL”
means the Delaware General Corporation Law.
“Encumbrance”
means any lien, pledge, hypothecation, charge, mortgage, security interest or encumbrance.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.
“Escrow Agent”
means Citibank, National Association.
“Escrow Agreement”
means the escrow agreement, by and among Parent, the Securityholder Representative and the Escrow Agent, in the form attached hereto
as Exhibit F.
“Escrow Fund”
means the escrow fund established pursuant to the Escrow Agreement.
“Escrow Participants”
means those Persons who held shares of Company Preferred Stock or Company Notes immediately prior to the Effective Time, as set
forth on the Consideration Spreadsheet.
“Escrowed
Securities” means a number of shares of Parent Common Stock equal to $800,000, divided by the Parent Common Stock Price
Per Share, as set forth on the Consideration Spreadsheet.
“Exchange
Act” means the U.S. Securities Exchange Act of 1934, as amended.
“GAAP”
means United States generally accepted accounting principles.
“Governmental
Body” means any: (a) nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction
of any nature; (b) federal, state, local, municipal, foreign or other government; or (c) governmental or quasi-governmental authority
of any nature (including any governmental division, department, agency, commission, instrumentality, official, organization, unit,
body or entity and any court or other tribunal).
“Indebtedness”
means indebtedness of the Company for, or a guarantee by the Company of indebtedness for, borrowed money.
“Independent
Accounting Firm” means a nationally or regionally recognized accounting firm on which Parent and the Securityholder Representative
mutually agree.
“Intellectual
Property” means, collectively: (a) all registered, unregistered and pending: (i) trade names, trade dress, trademarks,
service marks, assumed names, business names and logos, internet domain names and URLs and all registrations and applications therefor,
and the goodwill symbolized thereby; (ii) copyrights (including those in Computer Software), and all registrations and applications
therefor; and (iii) Patents; and (b) all: (i) Computer Software; (ii) trade secrets; (iii) websites and webpages and related items,
and all intellectual property and proprietary rights incorporated therein.
“IRS”
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Exhibit 99.1
Amarantus Announces Acquisition of Specialized
Neuro-Diagnostics Company, DioGenix
| · | Lead Product MSPrecise ®: Clinically
Validated, First-In-Class Next-Generation Sequencing (NGS) Assay that Identifies Multiple Sclerosis (MS) at First Clinical Presentation
|
| · | Recent Prospective Study at 13 US Centers of MS Excellence Demonstrated
the Significant Diagnostic Accuracy of MSPrecise |
| · | Platform for Comprehensive Molecular Profiling of Immune-mediated
Neurodegenerative Diseases |
SAN FRANCISCO, CA and GENEVA, SWITZERLAND
– January 12, 2015 - Amarantus BioScience Holdings, Inc.
(OTCQB: AMBS), a biotechnology company focused on the development of novel diagnostic tests in neurology and therapeutic
products in the areas of neurology, psychiatry, ophthalmology and regenerative medicine, announced that it has acquired DioGenix,
Inc. DioGenix will be merged into Amarantus Diagnostics as a foundational asset of a growing neuro-diagnostic business.
DioGenix was acquired for its pipeline
of diagnostic tests focused on immune-mediated neurological diseases, like MS. Its lead product, MSPrecise, can dramatically expand
a physician’s ability to diagnose patients that exhibit unclear neurological dysfunction. Amarantus Diagnostics can become
the solution for MS evaluations. By virtue of this merger, Amarantus Diagnostics will also own all rights to all of DioGenix’s
products under development, including tests that target neurosarcoid, neuromyelitis optica, paraneoplastic disease, and amyotrophic
lateral sclerosis (ALS).
“MSPrecise is a groundbreaking
advancement for the diagnosis of multiple sclerosis and is anticipated to play a pivotal role given the current high rate of misdiagnosis,”
said Gerald E. Commissiong, President & CEO of Amarantus. “MSPrecise is a lab-developed test, and the successful
completion of the validation study paves the way for this clinically important test to be commercialized in 2015. MSPrecise
bolsters our diagnostics portfolio, and will allow us to very rapidly achieve critical mass for Amarantus Diagnostics in order
to become one of the premier neurodiagnostic testing companies in the world.”
There is a tremendous unmet medical need
in the diagnosis of MS. Patients that present with non-specific clinical symptoms or symptoms that are consistent with MS currently
undergo a battery of diagnostic tests. The current diagnostic standard for MS includes analysis of cerebral spinal fluid (CSF)
using the oligoclonal banding (OCB) test alongside, magnetic resonance imaging (MRI) and a comprehensive set of clinical tests
to rule-out other neurological diseases. However, a clear diagnosis may not be declared for months or even years. Reported overall
accuracy of the OCB test is approximately 54-69%. False positive results can unnecessarily expose patients who do not have MS to
chronic and expensive therapy that, in some cases, actually exacerbates their underlying disease. Alternatively, false negative
results can delay those patients who do have MS receiving the correct treatment, which in turn can accelerate the development of
permanent physical disability.
There are approximately 2.5 million MS
patients worldwide that are currently being treated with over $14 billion drugs. Misdiagnosis rates of over 50% have been routinely
reported as the cost of each false positive diagnosis has grown to an estimated $100,000 and $250,000 per patient. This is the
basis for a worldwide market estimated at over $2 billion, growing along with the cost of MS therapy.
Final results from a pivotal Clinical Validation
Study demonstrated that MSPrecise met the primary study endpoint in patients suspected of having RRMS. MSPrecise provided
a clear improvement in classifying early-stage RRMS patients when compared with the published performance for the current diagnostic
standard of care by cerebrospinal fluid (CSF) analysis. The 13 clinical sites involved in the study included major academic centers
and community neurology clinics. The performance of the MSPrecise assay was determined by comparing MSPrecise scores
with the consensus diagnoses compiled after review of each subject’s clinical data and history by an independent adjudication
committee comprised of three practicing world-class MS specialists. In this study, MSPrecise not only performed well as
a standalone test but, when combined with OCB results, can substantially reduce the number of both false positives and false negatives
as compared to the current reported accuracy of MS diagnosis. As MSPrecise integrates seamlessly into current practice with more
comprehensive analysis of cerebral spinal fluid and blood and should drive ordering into Amarantus Diagnostics.
A total of 334 subjects were enrolled in
the validation study. Fifty-nine subjects were determined as either “RRMS” or “not RRMS” having a variety
of other neurological diseases which mimic the presentation of MS and produced test results that conformed with DioGenix’s
strict quality control criteria. MSPrecise scores for 52 of these 59 patients were definitive while scores for the remaining
7 patients were deemed to be inconclusive based on the results of past studies. The standalone diagnostic accuracy of the test
at 81% was highly significant (p < 0.001), and Sensitivity and Specificity were 86% and 71%, respectively. When the results
of MSPrecise were combined with the current standard of diagnosis (OCB results), the combined accuracy increased to 92%
(p < 0.001, Sensitivity = 96% and Specificity = 83%). These results clearly provide an improvement in classifying early-stage
RRMS patients when compared with the published literature data for the current standard of diagnosis for CSF analysis.
“I’m extremely pleased with
the addition of DioGenix to Amarantus’ emerging neurodiagnostics business unit,” said David A. Lowe, Ph.D., member
of the Amarantus Board Directors. “Improving the standard of diagnosis for MS is of critical need for patients and physicians.
The data generated in the clinical validation study clearly demonstrates that MSPrecise can play a vital role in improving
the outcomes for patients more rapidly versus today’s current standard alone. The addition of next generation sequencing
to our current stable of platforms also brings in tremendous know-how to our diagnostic unit that will in turn strengthen the company’s
base as we prepare to establish a standalone neurodiagnostic corporate entity.”
Amarantus
is acquiring all outstanding share capital and assets of DioGenix’s diagnostic business, including all rights to corporate
agreements and contracts, physical and laboratory assets, consulting services, inventory, proprietary and intellectual property
rights, products in development, all research data, records and reports, and marketing materials. Acquired assets will not include
any cash or cash equivalents. As payment for the acquisition, Amarantus will issue registered shares of its common stock valued
at $8 million to DioGenix and will pay up to $900,000 for costs associated
with the acquisition. Amarantus has also agreed to pay up to $2 million in milestone payments based on achievement of agreed upon
sales milestones. The shares of Amarantus common stock being issued to DioGenix, may, upon the request of Amarantus, be made subject
to lock-up agreements precluding sale of such shares for up to 180 days. In conjunction with this announcement, Amarantus entered
into definitive agreements to complete its Series E Preferred stock offering by raising an additional $1 million, bringing the
total funds raised in the offering to $6 million. The additional funds will be used to pay for the costs associated with the closing
of the DioGenix acquisition. CRT Capital Group, LLC acted as Financial
Advisor to DioGenix for the transaction.
On November 10, 2014 DioGenix was awarded
a $7.45 million ‘Grow New Jersey Assistance Tax Credit’ (“Grow NJ Tax Credit”) from the State of New Jersey
to facilitate the establishment of a laboratory in Camden, New Jersey. By statute, Diogenix can sell the Grow NJ Tax Credit in
whole or in part for a minimum of 75 percent of its face value, subject to certain conditions. Amarantus intends to immediately
evaluate the sale of these tax credits.
About MSPrecise ®
MSPrecise ® is a
proprietary next-generation DNA sequencing (NGS) assay for the identification of patients with relapsing-remitting multiple sclerosis
(RRMS) at first clinical presentation. MSPrecise utilizes next-generation sequencing to measure DNA mutations found in rearranged
immunoglobulin genes in immune cells initially isolated from cerebrospinal fluid. MSPrecise would augment the current standard
of care for the diagnosis of MS by providing a more accurate assessment of a patient’s immune response to a challenge within
the central nervous system. This novel method of measuring changes in adaptive human immunity may also be able to discern individuals
whose disease is more progressive and requires more aggressive treatment.
About Amarantus BioScience Holdings,
Inc.
Amarantus BioScience Holdings (AMBS) is
a biotechnology company developing treatments and diagnostics for diseases associated with neurodegeneration and protein misfolding-related
apoptosis. AMBS has licensed Eltoprazine ("Eltoprazine"), a phase 2b ready small molecule indicated for Parkinson's disease
Levodopa induced dyskinesia and Adult ADHD. AMBS has an exclusive worldwide license to the Lymphocyte Proliferation test ("LymPro
Test®"), which was developed by Prof. Thomas Arendt, Ph.D., from the University of Leipzig, for Alzheimer's disease and
owns the intellectual property rights to a therapeutic protein known as Mesencephalic-Astrocyte-derived Neurotrophic Factor ("MANF")
and is developing MANF-based products as treatments for brain and ophthalmic disorders. AMBS also owns intellectual property for
the diagnosis of Parkinson's disease ("NuroPro") and the discovery of neurotrophic factors ("PhenoGuard™").
In November 2014, AMBS entered into an exclusive option agreement with Lonza Walkersville, Inc., a subsidiary of Lonza Group Ltd.,
to acquire Cutanogen Corporation, a subsidiary of Lonza Walkersville, to develop Engineered Skin Substitute (ESS-W), an autologous
skin replacement product for the treatment of Stage 3 and Stage 4 intractable severe burns. For further information please visit
www.Amarantus.com, or connect with the Company on Facebook, LinkedIn, Twitter and Google+.
Forward-Looking Statements
Certain statements, other than purely historical
information, including estimates, projections, statements relating to our business plans, objectives, and expected operating results,
and the assumptions upon which those statements are based, are forward-looking statements. These forward-looking statements generally
are identified by the words "believes," "project," "expects," "anticipates," "estimates,"
"intends," "strategy," "plan," "may," "will," "would," "will be,"
"will continue," "will likely result," and similar expressions. Forward-looking statements are based on current
expectations and assumptions that are subject to risks and uncertainties which may cause actual results to differ materially from
the forward-looking statements. Our ability to predict results or the actual effect of future plans or strategies is inherently
uncertain. Factors which could have a material adverse effect on our operations and future prospects on a consolidated basis include,
but are not limited to: changes in economic conditions, legislative/regulatory changes, availability of capital, interest rates,
competition, and generally accepted accounting principles. These risks and uncertainties should also be considered in evaluating
forward-looking statements and undue reliance should not be placed on such statements.
Investor Contact:
Jenene Thomas
Jenene Thomas Communications, LLC
Investor Relations and Corporate Communications
Advisor
T: (US) 908.938.1475
E: jenene@jenenethomascommunications.com
Media Contact:
Planet Communications
Deanne Eagle, Media Contact
T: (US) 917.837.5866
Source: Amarantus Bioscience Holdings,
Inc.
###
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