New Section 3. 13. There is hereby inserted into the Shareholders’ Agreement a new Section 3.13, immediately after new Section 3.12 and immediately prior to existing Article 4, which shall read as follows:
New Section 3. 7. A new Section 3.7 is hereby added to the Credit Agreement immediately after Section 3.6 to read as follows:
New Section 3. 22. The following new Section 3.22 is added to the Contribution Agreement: “The Company hereby represents and warrants to Parent OP that the entry into Amendment No. 1 and the Barceloneta Contribution Agreement does not and will not, except as set forth in the Company Schedules or the Barceloneta Schedules, and assuming the receipt of the Required Consents and the Barceloneta Required Consents and repayment of the Floating Rate Debt at Closing, (i) result in a violation or breach of, or cause acceleration, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration), or require any notice or consent under any of the terms, conditions or provisions of any Contract to which any Group Company is a party or by which it or any of their respective properties is bound or affected, (ii) conflict with or violate any Law or Order applicable to any Group Company or any of their respective properties or assets or (iii) except as expressly contemplated by this Agreement and the other Transaction Documents or the Barceloneta Contribution Agreement, result in the creation of any Lien upon any of the assets of any Group Company, the Company Membership Interests or any membership or other equity interest of any Group Company; provided, that no representation or warranty is being made in this Section 3.22 with respect to any antitrust or competition Laws (or any Orders or Contracts related thereto) that may be applicable to the Contemplated Transactions.”
New Section 3. 4. A new Section 3.4 is added to the Agreement as follows:
New Section 3. 8. A new Section 3.8 is added to the Operating Agreement as follows:
New Section 3. 6. The following language shall be added to the Agreement as new Section 3.6:
New Section 3. 3.1. Section 3.3.1 is hereby added to the Development Agreement as follows:
New Section 3. 5 - The following Section 3.5 shall be added to the Agreement: “In accordance with Section 2.2.2 of the Agreement, Bayer understands and agrees that the [***] technology under the agreement with [***] listed as [***] on Appendix 4 of the Agreement is incorporated into ISIS-FXIRx-2 and accordingly is “Bayer Opt-In Technology” in accordance with Section 2.2.2; provided however, that Ionis will [***] only for any payment due under such [***] agreement that is due [***] the date Bayer delivers to Ionis a Continuation Notice.
New Section 3. 11B. A new Section 3.11B shall hereby be inserted in the Agreement as follows: Absent any published guidance issued or promulgated by the Internal Revenue Service (“IRS”) or the U.S. Treasury that clarifies or supersedes the application of the “investor control” doctrine, for the DFA VA Global Moderate Allocation Portfolio, the “investor control” doctrine shall be deemed to be satisfied, if, and to the extent that, in all material respects, those certain facts and taxpayer representations continue to be true and are satisfied, all as set forth in that certain private letter ruling (PLR-102496-09), dated December 8, 2009, issued by the IRS to such Portfolio, a copy of which has been provided to Company.
New Section 3. 9. A new Section 3.9 is hereby added to the LLC Agreement with the language below. “Applicability to Warrantholders. Solely for purposes of Sections 3.2, 3.4, 3.5, 3.6, 3.7 and 3.8, the term “Unitholder” shall include all Warrantholders, each of whom shall be deemed to hold the number of Common Units receivable by such Warrantholder upon the exercise in full of all of such Warrantholder’s Warrants.”
