SPLIT-OFF AGREEMENT
This SPLIT-OFF AGREEMENT, dated as
of October __, 2010 (this “Agreement”), is entered into by and among InVivo
Therapeutics Holding Corp. (f/k/a Design Source, Inc.), a Nevada corporation
(“Seller”), DSource Split Corp., a Delaware corporation (“Split-Off Subsidiary”)
and Xxxxx Xxxxxxxx, Xxxxx Xxxxx and Xxxxxxxx Xxxxxxxx (“Buyers”).
RECITALS:
WHEREAS, Seller is the owner of
all of the issued and outstanding capital stock of Split-Off Subsidiary;
Split-Off Subsidiary is a wholly-owned subsidiary of Seller which will acquire
the business assets and liabilities previously held by Seller; and Seller has no
other businesses or operations prior to the Merger (as defined
herein);
WHEREAS, contemporaneously
with the execution of this Agreement, Seller, InVivo Therapeutics Corporation, a
Delaware corporation (“InVivo”), and a newly-formed wholly-owned Nevada
subsidiary of Seller, InVivo Therapeutics Acquisition Corp. (“Acquisition
Subsidiary”), will enter into an Agreement and Plan of Merger and Reorganization
(the “Merger Agreement”) pursuant to which Acquisition Subsidiary will merge
with and into InVivo with InVivo remaining as the surviving entity (the
“Merger”); and the equity holders of InVivo will receive securities of Seller in
exchange for their equity interests in InVivo;
WHEREAS, the execution and
delivery of this Agreement is required by InVivo as a condition to its execution
of the Merger Agreement and the consummation of the assignment, assumption,
purchase and sale transactions contemplated by this Agreement is also a
condition to the completion of the Merger pursuant to the Merger Agreement, and
Seller has represented to InVivo in the Merger Agreement that the transactions
contemplated by this Agreement will be consummated in conjunction with the
closing of the Merger, and InVivo relied on such representation in entering into
the Merger Agreement;
WHEREAS, Buyers desire to
purchase the Shares (as defined in Section 2.1) from
Seller, and to assume, as between Seller and Buyers, all responsibility for any
debts, obligations and liabilities of Seller (prior to the Merger) and Split-Off
Subsidiary, on the terms and subject to the conditions specified in this
Agreement; and
WHEREAS, Seller desires to
sell and transfer the Shares to Buyers, on the terms and subject to the
conditions specified in this Agreement;
NOW, THEREFORE, in
consideration of the premises and the covenants, promises and agreements herein
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
legally to be bound, agree as follows:
I.
ASSIGNMENT
AND ASSUMPTION OF SELLER’S ASSETS AND LIABILITIES.
Subject
to the terms and conditions provided below:
1.1 Assignment
of Assets. Seller hereby contributes, assigns, conveys and
transfers to Split-Off Subsidiary, and Split-Off Subsidiary hereby receives,
acquires and accepts, all assets and properties of Seller as of the Effective
Time, including but not limited to the following, but excluding in all
cases (i) the right, title and assets of Seller in, to and under the Transaction
Documentation and (ii) the capital stock of InVivo, Acquisition Subsidiary and
Split-Off Subsidiary:
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(a)
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all
cash and cash equivalents;
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(b)
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all
accounts receivable;
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(c)
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all
inventories of raw materials, work in process, parts, supplies and
finished products;
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(d)
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all
of Seller’s rights, title and interests in, to and under all contracts,
agreements, leases, licenses (including software licenses), supply
agreements, consulting agreements, commitments, purchase orders, customer
orders and work orders, and including all of Seller’s rights thereunder to
use and possess equipment provided by third parties, and all
representations, warranties, covenants and guarantees related to the
foregoing (provided that to the extent any of the foregoing or any claim
or right or benefit arising thereunder or resulting therefrom is not
assignable by its terms, or the assignment thereof shall require the
consent or approval of another party thereto, this Agreement shall not
constitute an assignment thereof if an attempted assignment would be in
violation of the terms thereof or if such consent is not obtained prior to
the Effective Time, and in lieu thereof Seller shall reasonably cooperate
with Split-Off Subsidiary in any reasonable arrangement designed to
provide Split-Off Subsidiary the benefits thereunder or any claim or right
arising thereunder);
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(e)
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all
intellectual property, including but not limited to issued patents, patent
applications (whether or not patents are issued thereon and whether
modified, withdrawn or resubmitted), unpatented inventions, product
designs, copyrights (whether registered or unregistered), know-how,
technology, trade secrets, technical information, notebooks, drawings,
software, computer coding (both object and source) and all documentation,
manuals and drawings related thereto, trademarks or service marks and
applications therefor, unregistered trademarks or service marks, trade
names, logos and icons and all rights to xxx or recover for the
infringement or misappropriation
thereof;
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(f)
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all
fixed assets, including but not limited to the machinery, equipment,
furniture, vehicles, office equipment and other tangible personal property
owned or leased by Seller;
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(g)
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all
customer lists, business records, customer records and files, customer
financial records, and all other files and information related to
customers, all customer proposals, all open service agreements with
customers and all uncompleted customer contracts and agreements;
and
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(h)
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to
the extent legally assignable, all licenses, permits, certificates,
approvals and authorizations issued by Governmental Entities and necessary
to own, lease or operate the assets and properties of Seller and to
conduct Seller’s business as it is presently
conducted;
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all of
the foregoing being referred to herein as the “Assigned Assets.”
1.2 Assignment
and Assumption of Liabilities. Seller hereby assigns to
Split-Off Subsidiary, and Split-Off Subsidiary hereby assumes and agrees to pay,
honor and discharge all debts, adverse claims, liabilities, judgments and
obligations of Seller as of the Effective Time, whether accrued, contingent or
otherwise and whether known or unknown, including those arising under any law
(including the common law) or any rule or regulation of any Governmental Entity
or imposed by any court or any arbitrator in a binding arbitration resulting
from, arising out of or relating to the assets, activities, operations, actions
or omissions of Seller, or products manufactured or sold thereby or services
provided thereby, or under contracts, agreements (whether written or oral),
leases, commitments or undertakings thereof, but excluding in all
cases the obligations of Seller under the Transaction Documentation (all of the
foregoing being referred to herein as the “Assigned Liabilities”).
The
assignment and assumption of Seller’s assets and liabilities provided for in
this Article I
is referred to as the “Assignment.”
II.
PURCHASE
AND SALE OF STOCK.
2.1 Purchased
Shares. Subject to the terms and conditions provided below,
Seller shall sell and transfer to Buyers and Buyers shall purchase from Seller,
on the Closing Date (as defined in Section 3.1), all of
the issued and outstanding shares of capital stock of Split-Off Subsidiary (the
“Shares”).
2.2 Purchase
Price. The purchase price for the Shares shall be the transfer
and delivery by Buyers to Seller of the type and number of shares of common
stock and other securities of Seller that Buyers own (the “Purchase Price
Securities”), as set forth in Exhibit A attached hereto, deliverable as provided
in Section
3.3.
III.
CLOSING.
3.1 Closing. The
closing of the transactions contemplated in this Agreement (the “Closing”) shall
take place as soon as practicable following the execution of this Agreement;
provided, however, that
the Closing must occur simultaneously with the closing of the
Merger. The date on which the Closing occurs shall be referred to
herein as the “Closing Date.”
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3.2 Transfer
of Shares. At the Closing, Seller shall deliver to Buyers
certificates representing the Shares purchased by Buyers, duly endorsed to
Buyers or as directed by Buyers, which delivery shall vest Buyers with good and
marketable title to such Shares, free and clear of all liens and
encumbrances.
3.3 Payment
of Purchase Price. At the Closing, Buyers shall deliver to
Seller a certificate or certificates representing Buyers’ Purchase Price
Securities duly endorsed to Seller, which delivery shall vest Seller with good
and marketable title to the Purchase Price Securities, free and clear of all
liens and encumbrances.
3.4 Transfer
of Records. On or before the Closing, Seller shall transfer to
Split-Off Subsidiary all existing corporate books and records in Seller’s
possession relating to Split-Off Subsidiary and its business, including but not
limited to all agreements, litigation files, real estate files, personnel files
and filings with governmental agencies; provided, however, when any such
documents relate to both Seller and Split-Off Subsidiary, only copies of such
documents need be furnished. On or before the Closing, Buyers and Split-Off
Subsidiary shall transfer to Seller all existing corporate books and records in
the possession of Buyers or Split-Off Subsidiary relating to Seller, including
but not limited to all corporate minute books, stock ledgers, certificates and
corporate seals of Seller and all agreements, litigation files, real property
files, personnel files and filings with governmental agencies; provided, however, when any such
documents relate to both Seller and Split-Off Subsidiary or its business, only
copies of such documents need be furnished.
3.5 Instruments
of Assignment. At the Closing, Seller and Split-Off Subsidiary shall
deliver to each other such instruments providing for the Assignment as the other
may reasonably request (the “Instruments of Assignment”).
IV.
BUYERS’
REPRESENTATIONS AND WARRANTIES. Buyers represent and warrant
that:
4.1 Capacity
and Enforceability. Buyers have the legal capacity to execute
and deliver this Agreement and the documents to be executed and delivered by
Buyers at the Closing pursuant to the transactions contemplated hereby. This
Agreement and all such documents constitute valid and binding agreements of
Buyers, enforceable in accordance with their terms.
4.2 Compliance. Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby by Buyers will result in the breach of any term
or provision of, or constitute a default under, or violate any agreement,
indenture, instrument, order, law or regulation to which Buyers are a party or
by which Buyers are bound.
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4.3 Purchase
for Investment. Buyers are financially able to bear the
economic risks of acquiring the Shares and the other transactions contemplated
hereby, and have no need for liquidity in their investment in the Shares. Buyers
have such knowledge and experience in financial and business matters in general,
and with respect to businesses of a nature similar to the business of Split-Off
Subsidiary (after giving effect to the Assignment), so as to be capable of
evaluating the merits and risks of, and making an informed business decision
with regard to, the acquisition of the Shares and the other transactions
contemplated hereby. Buyers are “accredited investors” within the meaning of
Rule 501 of Regulation D under the Securities Act. Buyers are acquiring the
Shares solely for their own account and not with a view to or for resale in
connection with any distribution or public offering thereof, within the meaning
of any applicable securities laws and regulations, unless such distribution or
offering is registered under the Securities Act of 1933, as amended (the
“Securities Act”), or an exemption from such registration is available. Buyers
have (i) received all the information they have deemed necessary to make an
informed decision with respect to the acquisition of the Shares and the other
transactions contemplated hereby; (ii) had an opportunity to make such
investigation as they have desired pertaining to Split-Off Subsidiary (after
giving effect to the Assignment) and the acquisition of an interest therein and
the other transactions contemplated hereby, and to verify the information which
is, and has been, made available to them; and (iii) had the opportunity to
ask questions of Seller concerning Split-Off Subsidiary (after giving effect to
the Assignment). Buyers acknowledge that due to their affiliation with Seller
and Split-Off Subsidiary that they have actual knowledge of the business,
operations and financial affairs of Split-Off Subsidiary (after giving effect to
the Assignment). Buyers have received no public solicitation or advertisement
with respect to the offer or sale of the Shares. Buyers realize that the Shares
are “restricted securities” as that term is defined in Rule 144 promulgated by
the Securities and Exchange Commission under the Securities Act, the resale of
the Shares is restricted by federal and state securities laws and, accordingly,
the Shares must be held indefinitely unless their resale is subsequently
registered under the Securities Act or an exemption from such registration is
available for their resale. Buyers understand that any resale of the Shares by
them must be registered under the Securities Act (and any applicable state
securities law) or be effected in circumstances that, in the opinion of counsel
for Split-Off Subsidiary at the time, create an exemption or otherwise do not
require registration under the Securities Act (or applicable state securities
laws). Buyers acknowledge and consent that certificates now or hereafter issued
for the Shares will bear a legend substantially as follows:
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR QUALIFIED UNDER
ANY APPLICABLE STATE SECURITIES LAWS (THE “STATE ACTS”), HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
QUALIFICATION UNDER THE STATE ACTS OR PURSUANT TO EXEMPTIONS FROM SUCH
REGISTRATION OR QUALIFICATION REQUIREMENTS (INCLUDING, IN THE CASE OF THE
SECURITIES ACT, THE EXEMPTIONS AFFORDED BY SECTION 4(1) OF THE SECURITIES ACT
AND RULE 144 THEREUNDER). AS A PRECONDITION TO ANY SUCH TRANSFER, THE ISSUER OF
THESE SECURITIES SHALL BE FURNISHED WITH AN OPINION OF COUNSEL OPINING AS TO THE
AVAILABILITY OF EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATION AND/OR SUCH
OTHER EVIDENCE AS MAY BE SATISFACTORY THERETO THAT ANY SUCH TRANSFER WILL NOT
VIOLATE THE SECURITIES LAWS.
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Buyers
understand that the Shares are being sold to them pursuant to the exemption from
registration contained in Section 4(1) of the Securities Act and that Seller is
relying upon the representations made herein as one of the bases for claiming
the Section 4(1) exemption.
4.4 Liabilities. Following
the Closing, Seller will have no liability for any debts, liabilities or
obligations of Split-Off Subsidiary or its business or activities, and there are
no outstanding guaranties, performance or payment bonds, letters of credit or
other contingent contractual obligations that have been undertaken by Seller
directly or indirectly in relation to Split-Off Subsidiary or its business and
that may survive the Closing.
4.5 Title to
Purchase Price Securities. Buyers are the sole record and
beneficial owner of their respective Purchase Price Securities. At Closing,
Buyers will have good and marketable title to their respective Purchase Price
Securities, which Purchase Price Securities are, and at the Closing will be,
free and clear of all options, warrants, pledges, claims, liens and
encumbrances, and any restrictions or limitations prohibiting or restricting
transfer to Seller, except for restrictions on transfer as contemplated by
applicable securities laws.
V.
SELLER’S
AND SUBSIDIARY’S REPRESENTATIONS AND WARRANTIES. Seller and
Split-Off Subsidiary, jointly and severally, represent and warrant to Buyers
that:
5.1 Organization
and Good Standing. Each of Seller and Split-Off Subsidiary is
a corporation duly incorporated, validly existing, and in good standing under
the laws of their respective states of incorporation.
5.2 Authority
and Enforceability. The execution and delivery of this
Agreement and the documents to be executed and delivered at the Closing pursuant
to the transactions contemplated hereby, and performance in accordance with the
terms hereof and thereof, have been duly authorized by Seller and all such
documents constitute valid and binding agreements of Seller enforceable in
accordance with their terms.
5.3 Title to
Shares. Seller is the sole record and beneficial owner of the
Shares. At Closing, Seller will have good and marketable title to the
Shares, which Shares are, and at the Closing will be, free and clear of all
options, warrants, pledges, claims, liens and encumbrances, and any restrictions
or limitations prohibiting or restricting transfer to Buyers, except for
restrictions on transfer as contemplated by Section 4.3
above. The Shares constitute all of the issued and outstanding shares
of capital stock of Split-Off Subsidiary.
5.4 WARN
Act. Split-Off Subsidiary does not have a sufficient number of
employees to make it subject to the Worker Adjustment and Retraining
Notification Act.
5.5 Representations
in Merger Agreement. Split-Off Subsidiary represents and
warrants that all of the representations and warranties by Seller, insofar as
they relate to Split-Off Subsidiary, contained in the Merger Agreement are true
and correct.
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VI.
OBLIGATIONS
OF BUYERS PENDING CLOSING. Buyers covenant and agree that
between the date hereof and the Closing:
6.1 Not
Impair Performance. Buyers shall not take any intentional
action that would cause the conditions upon the obligations of the parties
hereto to effect the transactions contemplated hereby not to be fulfilled,
including, without limitation, taking or causing to be taken any action that
would cause the representations and warranties made by any party herein not to
be true, correct and accurate as of the Closing, or in any way impairing the
ability of Seller to satisfy its obligations as provided in Article
VII.
6.2 Assist
Performance. Buyers shall exercise their reasonable best
efforts to cause to be fulfilled those conditions precedent to Seller’s
obligations to consummate the transactions contemplated hereby which are
dependent upon actions of Buyers and to make and/or obtain any necessary filings
and consents in order to consummate the sale transaction contemplated by this
Agreement.
VII.
OBLIGATIONS
OF SELLER PENDING CLOSING. Seller covenants and agrees that
between the date hereof and the Closing:
7.1 Business
as Usual. Split-Off Subsidiary shall operate and Seller shall
cause Split-Off Subsidiary to operate in accordance with past practices and
shall use best efforts to preserve its goodwill and the goodwill of its
employees, customers and others having business dealings with Split-Off
Subsidiary. Without limiting the generality of the foregoing, from the date of
this Agreement until the Closing Date, Split-Off Subsidiary shall preserve and
maintain Split-Off Subsidiary’s assets in their current operating condition and
repair, ordinary wear and tear excepted. From the date of this Agreement until
the Closing Date, Split-Off Subsidiary shall not (i) amend, terminate or
surrender any material franchise, license, contract or real property interest,
or (ii) sell or dispose of any of its assets except in the ordinary course
of business. Neither Split-Off Subsidiary nor Buyers shall take or omit to take
any action that results in Seller incurring any liability or obligation prior to
or in connection with the Closing.
7.2 Not
Impair Performance. Seller shall not take any intentional
action that would cause the conditions upon the obligations of the parties
hereto to effect the transactions contemplated hereby not to be fulfilled,
including, without limitation, taking or causing to be taken any action which
would cause the representations and warranties made by any party herein not to
be materially true, correct and accurate as of the Closing, or in any way
impairing the ability of Buyers to satisfy her obligations as provided in Article
VI.
7.3 Assist
Performance. Seller shall exercise its reasonable best efforts
to cause to be fulfilled those conditions precedent to Buyers’ obligations to
consummate the transactions contemplated hereby which are dependent upon the
actions of Seller and to work with Buyers to make and/or obtain any necessary
filings and consents. Seller shall cause Split-Off Subsidiary to comply with its
obligations under this Agreement.
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VIII.
SELLER’S
AND SPLIT-OFF SUBSIDIARY’S CONDITIONS PRECEDENT TO
CLOSING. The obligations of Seller and Split-Off Subsidiary to
close the transactions contemplated by this Agreement are subject to the
satisfaction at or prior to the Closing of each of the following conditions
precedent (any or all of which may be waived by Seller and InVivo in
writing):
8.1 Representations
and Warranties; Performance. All representations and
warranties of Buyers contained in this Agreement shall have been true and
correct, in all material respects, when made and shall be true and correct, in
all material respects, at and as of the Closing, with the same effect as though
such representations and warranties were made at and as of the Closing. Buyers
shall have performed and complied with all covenants and agreements and
satisfied all conditions, in all material respects, required by this Agreement
to be performed or complied with or satisfied by Buyers at or prior to the
Closing.
8.2 Additional
Documents. Buyers shall deliver or cause to be delivered such
additional documents as may be necessary in connection with the consummation of
the transactions contemplated by this Agreement and the performance of their
obligations hereunder.
8.3 Release
by Buyers and Split-Off Subsidiary. At the Closing, Buyers and
Split-Off Subsidiary shall execute and deliver to Seller a general release which
in substance and effect releases Seller and InVivo from any and all liabilities
and obligations that Seller and InVivo may owe to Buyers or Split-Off Subsidiary
in any capacity, and from any and all claims that Buyers or Split-Off Subsidiary
may have against Seller, InVivo or their respective managers, members, officers,
directors, stockholders, employees and agents (other than those arising pursuant
to this Agreement or any document delivered in connection with this
Agreement).
IX.
BUYERS’
CONDITIONS PRECEDENT TO CLOSING. The obligation of Buyers to
close the transactions contemplated by this Agreement is subject to the
satisfaction at or prior to the Closing of each of the following conditions
precedent (any and all of which may be waived by Buyers in
writing):
9.1 Representations
and Warranties; Performance. All representations and
warranties of Seller and Split-Off Subsidiary contained in this Agreement shall
have been true and correct, in all material respects, when made and shall be
true and correct, in all material respects, at and as of the Closing with the
same effect as though such representations and warranties were made at and as of
the Closing. Seller and Split-Off Subsidiary shall have performed and complied
with all covenants and agreements and satisfied all conditions, in all material
respects, required by this Agreement to be performed or complied with or
satisfied by them at or prior to the Closing.
X.
OTHER
AGREEMENTS.
10.1 Expenses. Each
party hereto shall bear its expenses separately incurred in connection with this
Agreement and with the performance of its obligations
hereunder.
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10.2 Confidentiality. Buyers
shall not make any public announcements concerning this transaction without the
prior written agreement of InVivo, other than as may be required by applicable
law or judicial process. If for any reason the transactions contemplated hereby
are not consummated, then Buyers shall return any information received by Buyers
from Seller or Split-Off Subsidiary, and Buyers shall cause all confidential
information obtained by Buyers concerning Split-Off Subsidiary and its business
to be treated as such.
10.3 Brokers’
Fees. In connection with the transaction specifically
contemplated by this Agreement, no party to this Agreement has employed the
services of a broker and each agrees to indemnify the other against all claims
of any third parties for fees and commissions of any brokers claiming a fee or
commission related to the transactions contemplated hereby.
10.4 Access
to Information Post-Closing; Cooperation.
(a) Following
the Closing, Buyers and Split-Off Subsidiary shall afford to Seller and its
authorized accountants, counsel and other designated representatives, reasonable
access (and including using reasonable efforts to give access to persons or
firms possessing information) and duplicating rights during normal business
hours to allow records, books, contracts, instruments, computer data and other
data and information (collectively, “Information”) within the possession or
control of Buyers or Split-Off Subsidiary insofar as such access is reasonably
required by Seller. Information may be requested under this Section 10.4(a) for,
without limitation, audit, accounting, claims, litigation and tax purposes, as
well as for purposes of fulfilling disclosure and reporting obligations and
performing this Agreement and the transactions contemplated hereby. No files,
books or records of Split-Off Subsidiary existing at the Closing Date shall be
destroyed by Buyers or Split-Off Subsidiary after Closing but prior to the
expiration of any period during which such files, books or records are required
to be maintained and preserved by applicable law without giving Seller at least
30 days’ prior written notice, during which xxxx Xxxxxx shall have the right to
examine and to remove any such files, books and records prior to their
destruction.
(b) Following
the Closing, Seller shall afford to Split-Off Subsidiary and its authorized
accountants, counsel and other designated representatives reasonable access
(including using reasonable efforts to give access to persons or firms
possessing information) duplicating rights during normal business hours to
Information within Seller’s possession or control relating to the business of
Split-Off Subsidiary. Information may be requested under this Section 10.4(b) for,
without limitation, audit, accounting, claims, litigation and tax purposes as
well as for purposes of fulfilling disclosure and reporting obligations and for
performing this Agreement and the transactions contemplated hereby. No files,
books or records of Split-Off Subsidiary existing at the Closing Date shall be
destroyed by Seller after Closing but prior to the expiration of any period
during which such files, books or records are required to be maintained and
preserved by applicable law without giving Buyers at least 30 days prior written
notice, during which time Buyers shall have the right to examine and to remove
any such files, books and records prior to their destruction.
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(c) At
all times following the Closing, Seller, Buyers and Split-Off Subsidiary shall
use their reasonable efforts to make available to the other party on written
request, the current and former officers, directors, employees and agents of
Seller or Split-Off Subsidiary for any of the purposes set forth in Section 10.4(a) or
(b) above or as witnesses to the extent that such persons may reasonably
be required in connection with any legal, administrative or other proceedings in
which Seller or Split-Off Subsidiary may from time to be involved.
(d) The
party to whom any Information or witnesses are provided under this Section 10.4 shall
reimburse the provider thereof for all out-of-pocket expenses actually and
reasonably incurred in providing such Information or witnesses.
(e) Seller,
Buyers, Split-Off Subsidiary and their respective employees and agents shall
each hold in strict confidence all Information concerning the other party in
their possession or furnished by the other or the other’s representative
pursuant to this Agreement with the same degree of care as such party utilizes
as to such party’s own confidential information (except to the extent that such
Information is (i) in the public domain through no fault of such party or
(ii) later lawfully acquired from any other source by such party), and each
party shall not release or disclose such Information to any other person, except
such party’s auditors, attorneys, financial advisors, bankers, other consultants
and advisors or persons with whom such party has a valid obligation to disclose
such Information, unless compelled to disclose such Information by judicial or
administrative process or, as advised by its counsel, by other requirements of
law.
(f) Seller,
Buyers and Split-Off Subsidiary shall each use their best efforts to forward
promptly to the other party all notices, claims, correspondence and other
materials which are received and determined to pertain to the other
party.
10.5 Guarantees,
Surety Bonds and Letter of Credit Obligations. In the event
that Seller is obligated for any debts, obligations or liabilities of Split-Off
Subsidiary by virtue of any outstanding guarantee, performance or surety bond or
letter of credit provided or arranged by Seller on or prior to the Closing Date,
Buyers and Split-Off Subsidiary shall use their best efforts to cause to be
issued replacements of such bonds, letters of credit and guarantees and to
obtain any amendments, novations, releases and approvals necessary to release
and discharge fully Seller from any liability thereunder following the Closing.
Buyers and Split-Off Subsidiary, jointly and severally, shall be responsible
for, and shall indemnify, hold harmless and defend Seller from and against, any
costs or losses incurred by Seller arising from such bonds, letters of credits
and guarantees and any liabilities arising therefrom and shall reimburse Seller
for any payments that Seller may be required to pay pursuant to enforcement of
its obligations relating to such bonds, letters of credit and
guarantees.
10.6 Filings
and Consents. Buyers, at their risk, shall determine what, if
any, filings and consents must be made and/or obtained prior to Closing to
consummate the purchase and sale of the Shares. Buyers shall indemnify the
Seller Indemnified Parties (as defined in Section 12.1 below)
against any Losses (as defined in Section 12.1 below)
incurred by such Seller Indemnified Parties by virtue of the failure to make
and/or obtain any such filings or consents. Recognizing that the failure to make
and/or obtain any filings or consents may cause Seller to incur Losses or
otherwise adversely affect Seller, Buyers and Split-Off Subsidiary confirm that
the provisions of this Section 10.6 will not
limit Seller’s right to treat such failure as the failure of a condition
precedent to Seller’s obligation to close pursuant to Article VIII
above.
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10.7 Insurance. Buyers
acknowledge that on the Closing Date, effective as of the Closing, any insurance
coverage and bonds provided by Seller for Split-Off Subsidiary, and all
certificates of insurance evidencing that Split-Off Subsidiary maintains any
required insurance by virtue of insurance provided by Seller, will terminate
with respect to any insured damages resulting from matters occurring subsequent
to Closing.
10.8 Agreements
Regarding Taxes.
(a) Tax
Sharing Agreements. Any tax sharing agreement between Seller
and Split-Off Subsidiary is terminated as of the Closing Date and will have no
further effect for any taxable year (whether the current year, a future year or
a past year).
(b) Returns
for Periods Through the Closing Date. Seller will include the
income and loss of Split-Off Subsidiary (including any deferred income triggered
into income by Reg. §1.1502-13 and any excess loss accounts taken into income
under Reg. §1.1502-19) on Seller’s consolidated federal income tax returns for
all periods through the Closing Date and pay any federal income taxes
attributable to such income. Seller and Split-Off Subsidiary agree to allocate
income, gain, loss, deductions and credits between the period up to Closing (the
“Pre-Closing Period”) and the period after Closing (the “Post-Closing Period”)
based on a closing of the books of Split-Off Subsidiary, and both Seller and
Split-Off Subsidiary agree not to make an election under Reg.
§1.1502-76(b)(2)(ii) to ratably allocate the year’s items of income, gain, loss,
deduction and credit. Seller, Split-Off Subsidiary and Buyers agree to report
all transactions not in the ordinary course of business occurring on the Closing
Date after Buyers’ purchase of the Shares on Split-Off Subsidiary’s tax returns
to the extent permitted by Reg. §1.1502-76(b)(1)(ii)(B). Buyers agrees to
indemnify Seller for any additional tax owed by Seller (including tax owned by
Seller due to this indemnification payment) resulting from any transaction
engaged in by Split-Off Subsidiary during the Pre-Closing Period or on the
Closing Date after Buyers’ purchase of the Shares. Split-Off Subsidiary will
furnish tax information to Seller for inclusion in Seller’s consolidated federal
income tax return for the period which includes the Closing Date in accordance
with Split-Off Subsidiary’s past custom and practice.
-11-
(c) Audits. Seller
will allow Split-Off Subsidiary and its counsel to participate at Split-Off
Subsidiary’s expense in any audits of Seller’s consolidated federal income tax
returns to the extent that such audit raises issues that relate to and increase
the tax liability of Split-Off Subsidiary. Seller shall have the absolute right,
in its sole discretion, to engage professionals and direct the representation of
Seller in connection with any such audit and the resolution thereof, without
receiving the consent of Buyers or Split-Off Subsidiary or any other party
acting on behalf of Buyers or Split-Off Subsidiary, provided that Seller will
not settle any such audit in a manner which would materially adversely affect
Split-Off Subsidiary after the Closing Date unless such settlement would be
reasonable in the case of a person that owned Split-Off Subsidiary both before
and after the Closing Date. In the event that after Closing any tax authority
informs Buyers or Split-Off Subsidiary of any notice of proposed audit, claim,
assessment or other dispute concerning an amount of taxes which pertain to
Seller, or to Split-Off Subsidiary during the period prior to Closing, Buyers or
Split-Off Subsidiary must promptly notify Seller of the same within 15 calendar
days of the date of the notice from the tax authority. In the event Buyers or
Split-Off Subsidiary does not notify Seller within such 15 day period, Buyers
and Split-Off Subsidiary, jointly and severally, will indemnify Seller for any
incremental interest, penalty or other assessments resulting from the delay in
giving notice. To the extent of any conflict or inconsistency, the provisions of
this Section 10.8 shall control over the provisions of Section 12.2
below.
(d) Cooperation
on Tax Matters. Buyers, Seller and Split-Off Subsidiary shall
cooperate fully, as and to the extent reasonably requested by any party, in
connection with the filing of tax returns pursuant to this Section and any
audit, litigation or other proceeding with respect to taxes. Such cooperation
shall include the retention and (upon the other party’s request) the provision
of records and information which are reasonably relevant to any such audit,
litigation or other proceeding and making employees available on a mutually
convenient basis to provide additional information and explanation of any
material provided hereunder. Split-Off Subsidiary shall (i) retain all
books and records with respect to tax matters pertinent to Split-Off Subsidiary
relating to any taxable period beginning before the Closing Date until the
expiration of the statute of limitations (and, to the extent notified by Seller,
any extensions thereof) of the respective taxable periods, and to abide by all
record retention agreements entered into with any taxing authority, and
(ii) give Seller reasonable written notice prior to transferring,
destroying or discarding any such books and records and, if Seller so requests,
Buyers agree to cause Split-Off Subsidiary to allow Seller to take possession of
such books and records.
10.9 ERISA. Effective
as of the Closing Date, Split-Off Subsidiary shall terminate its participation
in, and withdraw from, any employee benefit plans sponsored by Seller, and
Seller and Buyers shall cooperate fully in such termination and withdrawal.
Without limitation, Split-Off Subsidiary shall be solely responsible for
(i) all liabilities under those employee benefit plans notwithstanding any
status as an employee benefit plan sponsored by Seller, and (ii) all
liabilities for the payment of vacation pay, severance benefits, and similar
obligations, including, without limitation, amounts which are accrued but unpaid
as of the Closing Date with respect thereto. Buyers and Split-Off Subsidiary
acknowledge that Split-Off Subsidiary is solely responsible for providing
continuation health coverage, as required under the Consolidated Omnibus
Reconciliation Act of 1985, as amended (“COBRA”), to each person, if any,
participating in an employee benefit plan subject to COBRA with respect to such
employee benefit plan as of the Closing Date, including, without limitation, any
person whose employment with Split-Off Subsidiary is terminated after the
Closing Date.
-12-
XI. TERMINATION. This
Agreement may be terminated at, or at any time prior to, the Closing by mutual
written consent of Seller, Buyers and InVivo.
If this
Agreement is terminated as provided herein, it shall become wholly void and of
no further force and effect and there shall be no further liability or
obligation on the part of any party except to pay such expenses as are required
of such party.
XII. INDEMNIFICATION.
12.1 Indemnification
by Buyers. Buyers covenant and agree to indemnify, defend,
protect and hold harmless Seller and InVivo, and their respective officers,
directors, employees, stockholders, agents, representatives and Affiliates
(collectively, the “Seller Indemnified Parties”) at all times from and after the
date of this Agreement from and against all losses, liabilities, damages,
claims, actions, suits, proceedings, demands, assessments, adjustments, costs
and expenses (including specifically, but without limitation, reasonable
attorneys’ fees and expenses of investigation), whether or not involving a third
party claim and regardless of any negligence of any Seller Indemnified Party
(collectively, “Losses”), incurred by any Seller Indemnified Party as a result
of or arising from (i) any breach of the representations and warranties of
Buyers set forth herein or in certificates delivered in connection herewith,
(ii) any breach or nonfulfillment of any covenant or agreement (including
any other agreement of Buyers to indemnify set forth in this Agreement) on the
part of Buyers under this Agreement, (iii) any Assigned Asset or Assigned
Liability or any other debt, liability or obligation of Split-Off Subsidiary,
(iv) the conduct and operations, whether before or after Closing, of (A)
the business of Seller pertaining to the Assigned Assets and Assigned
Liabilities or (B) the business of Split-Off Subsidiary, (v) claims
asserted, whether before or after Closing, (A) against Split-Off Subsidiary or
(B) pertaining to the Assigned Assets and Assigned Liabilities, or (vi) any
federal or state income tax payable by Seller or InVivo and attributable to the
transactions contemplated by this Agreement. The obligations of
Buyers under this Section, as between Buyers and the Seller Indemnified Parties,
are joint and several.
12.2 Third
Party Claims.
(a) Defense. If
any claim or liability (a “Third-Party Claim”) should be asserted against any of
the Seller Indemnified Parties (the “Indemnitee”) by a third party after the
Closing for which Buyers have an indemnification obligation under the terms of
Section 12.1, then the
Indemnitee shall notify Buyers (the “Indemnitors”) within 20 days after the
Third-Party Claim is asserted by a third party (said notification being referred
to as a “Claim Notice”) and give the Indemnitor a reasonable opportunity to take
part in any examination of the books and records of the Indemnitee relating to
such Third-Party Claim and to assume the defense of such Third-Party Claim and
in connection therewith and to conduct any proceedings or negotiations relating
thereto and necessary or appropriate to defend the Indemnitee and/or settle the
Third-Party Claim. The expenses (including reasonable attorneys’ fees) of all
negotiations, proceedings, contests, lawsuits or settlements with respect to any
Third-Party Claim shall be borne by the Indemnitors. If the Indemnitors agree to
assume the defense of any Third-Party Claim in writing within 20 days after the
Claim Notice of such Third-Party Claim has been delivered, through counsel
reasonably satisfactory to Indemnitee, then the Indemnitors shall be entitled to
control the conduct of such defense, and any decision to settle such Third-Party
Claim, and shall be responsible for any expenses of the Indemnitee in connection
with the defense of such Third-Party Claim so long as the Indemnitors continue
such defense until the final resolution of such Third-Party Claim. The
Indemnitors shall be responsible for paying all settlements made or judgments
entered with respect to any Third-Party Claim the defense of which has been
assumed by the Indemnitors. Except as provided on subsection (b)
below, both the Indemnitor and the Indemnitee must approve any settlement of a
Third-Party Claim. A failure by the Indemnitee to timely give the Claim Notice
shall not excuse Indemnitor from any indemnification liability except only to
the extent that the Indemnitors are materially and adversely prejudiced by such
failure.
-13-
(b) Failure
to Defend. If the Indemnitors shall not agree to assume the
defense of any Third-Party Claim in writing within 20 days after the Claim
Notice of such Third-Party Claim has been delivered, or shall fail to continue
such defense until the final resolution of such Third-Party Claim, then the
Indemnitee may defend against such Third-Party Claim in such manner as it may
deem appropriate and the Indemnitee may settle such Third-Party Claim, in its
sole discretion, on such terms as it may deem appropriate. The Indemnitors shall
promptly reimburse the Indemnitee for the amount of all settlement payments and
expenses, legal and otherwise, incurred by the Indemnitee in connection with the
defense or settlement of such Third-Party Claim. If no settlement of such
Third-Party Claim is made, then the Indemnitors shall satisfy any judgment
rendered with respect to such Third-Party Claim before the Indemnitee is
required to do so, and pay all expenses, legal or otherwise, incurred by the
Indemnitee in the defense against such Third-Party Claim.
12.3 Non-Third-Party
Claims. Upon discovery of any claim for which Buyers has an
indemnification obligation under the terms of Section 12.1 which does not
involve a claim by a third party against the Indemnitee, the Indemnitee shall
give prompt notice to Buyers of such claim and, in any case, shall give Buyers
such notice within 30 days of such discovery. A failure by Indemnitee to timely
give the foregoing notice to Buyers shall not excuse Buyers from any
indemnification liability except to the extent that Buyers is materially and
adversely prejudiced by such failure.
12.4 Survival. Except
as otherwise provided in this Section 12.4, all
representations and warranties made by Buyers, Split-Off Subsidiary and Seller
in connection with this Agreement shall survive the Closing. Anything in this
Agreement to the contrary notwithstanding, the liability of all Indemnitors
under this Article
XII
shall terminate on the fourth (4th)
anniversary of the Closing Date, except with respect to (a) liability for
any item as to which, prior to the fourth (4th)
anniversary of the Closing Date, any Indemnitee shall have asserted a Claim in
writing, which Claim shall identify its basis with reasonable specificity, in
which case the liability for such Claim shall continue until it shall have been
finally settled, decided or adjudicated, (b) liability of any party for
Losses for which such party has an indemnification obligation, incurred as a
result of such party’s breach of any covenant or agreement to be performed by
such party after the Closing, (c) liability of Buyers for Losses incurred
by a Seller Indemnified Party due to breaches of their representations and
warranties in Article
IV of
this Agreement, and (d) liability of Buyers for Losses arising out of
Third-Party Claims for which Buyers have an indemnification obligation, which
liability shall survive until the statute of limitation applicable to any third
party’s right to assert a Third-Party Claim bars assertion of such
claim.
-14-
XIII. MISCELLANEOUS.
13.1 Definitions. Capitalized
terms used herein without definition have the meanings ascribed to them in the
Merger Agreement.
13.2 Notices. All
notices and communications required or permitted hereunder shall be in writing
and deemed given when received by means of the United States mail, addressed to
the party to be notified, postage prepaid and registered or certified with
return receipt requested, or personal delivery, or overnight courier, as
follows:
(a) If
to Seller, addressed to:
InVivo
Therapeutics Holding Corp.
Xxx
Xxxxxxxx, 00xx
Xxxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxxx
Facsimile:
(000) 000-0000
With a
copy to (which shall not constitute notice hereunder):
Xxxxxxx
Xxxxxx & Fein, LLP
000 Xxxx
00xx
Xxxxxx
Xxx Xxxx,
XX 00000
Attention: Xxxxxxxx
Xxxxxxx, Esq.
Facsimile:
(000) 000-0000
(b) If
to Buyers or Split-Off Subsidiary, addressed to:
Xxxxx
Xxxxxxxx
000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx
Xxxx, XX 00000-0000
Facsimile: (000)
000-0000
or to
such other address as any party hereto shall specify pursuant to this Section 13.2 from time to
time.
13.3 Exercise
of Rights and Remedies. Except as otherwise provided herein,
no delay of or omission in the exercise of any right, power or remedy accruing
to any party as a result of any breach or default by any other party under this
Agreement shall impair any such right, power or remedy, nor shall it be
construed as a waiver of or acquiescence in any such breach or default, or of
any similar breach or default occurring later; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
occurring before or after that waiver.
-15-
13.4 Time. Time
is of the essence with respect to this Agreement.
13.5 Reformation
and Severability. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, it shall, to the extent possible, be
modified in such manner as to be valid, legal and enforceable but so as to most
nearly retain the intent of the parties, and if such modification is not
possible, such provision shall be severed from this Agreement, and in either
case the validity, legality and enforceability of the remaining provisions of
this Agreement shall not in any way be affected or impaired
thereby.
13.6 Further
Acts and Assurances. From and after the Closing, Seller,
Buyers and Split-Off Subsidiary agree that each will act in a manner supporting
compliance, including compliance by its Affiliates, with all of its obligations
under this Agreement and, from time to time, shall, at the request of another
party hereto, and without further consideration, cause the execution and
delivery of such other instruments of conveyance, transfer, assignment or
assumption and take such other action or execute such other documents as such
party may reasonably request in order more effectively to convey, transfer to
and vest in Buyers, and to put Split-Off Subsidiary in possession of, all
Assigned Assets and Assigned Liabilities, and to convey, transfer to and vest in
Seller and Buyers, and to them in possession of, the Purchase Price Securities
and the Shares (respectively), and, in the case of any contracts and rights that
cannot be effectively transferred without the consent or approval of other
Persons that is unobtainable, to use its best reasonable efforts to ensure that
Split-Off Subsidiary receives the benefits thereof to the maximum extent
permissible in accordance with applicable law or other applicable restrictions,
and shall perform such other acts which may be reasonably necessary to
effectuate the purposes of this Agreement.
13.7 Entire
Agreement; Amendments. This Agreement contains the entire
understanding of the parties relating to the subject matter contained herein.
This Agreement cannot be amended or changed except through a written instrument
signed by all of the parties hereto and by InVivo. No provisions of this
Agreement or any rights hereunder may be waived by any party without the prior
written consent of InVivo.
13.8 Assignment. No
party may assign his, her or its rights or obligations hereunder, in whole or in
part, without the prior written consent of the other parties.
13.9 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
principles of conflicts or choice of laws thereof.
13.10 Counterparts. This
Agreement may be executed in one or more counterparts, with the same effect as
if all parties had signed the same document. Each such counterpart shall be an
original, but all such counterparts taken together shall constitute a single
agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature page was an original
thereof.
-16-
13.11 Section
Headings and Gender. The Section headings used herein are
inserted for reference purposes only and shall not in any way affect the meaning
or interpretation of this Agreement. All personal pronouns used in this
Agreement shall include the other genders, whether used in the masculine,
feminine or neuter, and the singular shall include the plural, and vice versa, whenever and as
often as may be appropriate.
13.12 Third-Party
Beneficiary. Each of Seller, Buyers and Split-Off Subsidiary
acknowledges and agrees that this Agreement is entered into for the express
benefit of InVivo, and that InVivo is relying hereon and on the consummation of
the transactions contemplated by this Agreement in entering into and performing
its obligations under the Merger Agreement, and that InVivo shall be in all
respects entitled to the benefit hereof and to enforce this Agreement as a
result of any breach hereof.
13.13 Specific
Performance; Remedies. Each of Seller, Buyers and Split-Off
Subsidiary acknowledge and agree that InVivo would be damaged irreparably if any
provision of this Agreement is not performed in accordance with its specific
terms or is otherwise breached. Accordingly, each of Seller, Buyers and
Split-Off Subsidiary agrees that InVivo will be entitled to seek an injunction
or injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and its terms and provisions in any action
instituted in any court of the United States or any state thereof having
jurisdiction over the parties and the matter, subject to Section 13.9, in addition to
any other remedy to which InVivo may be entitled, at law or in equity. Except as
expressly provided herein, the rights, obligations and remedies created by this
Agreement are cumulative and are in addition to any other rights, obligations or
remedies otherwise available at law or in equity, and nothing herein will be
considered an election of remedies.
13.14 Submission
to Jurisdiction; Process Agent; No Jury Trial.
(a) Each
party to the Agreement hereby submits to the jurisdiction of any state or
federal court sitting in the State of New York in any action arising out of or
relating to this Agreement and agrees that all claims in respect of the action
may be heard and determined in any such court. Each party to the Agreement also
agrees not to bring any action arising out of or relating to this Agreement in
any other court. Each party to the Agreement agrees that a final judgment in any
action so brought will be conclusive and may be enforced by action on the
judgment or in any other manner provided at law or in equity. Each party to the
Agreement waives any defense of inconvenient forum to the maintenance of any
action so brought and waives any bond, surety or other security that might be
required of any other party with respect thereto.
-17-
(b) EACH
PARTY TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RIGHTS TO JURY TRIAL OF ANY
DISPUTE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER AGREEMENTS
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR ANY DEALINGS AMONG THEM
RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. The scope of this waiver is
intended to be all encompassing of any and all actions that may be filed in any
court and that relate to the subject matter of the transactions, including
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party to the Agreement hereby acknowledges that this
waiver is a material inducement to enter into a business relationship and that
they will continue to rely on the waiver in their related future dealings. Each
party to the Agreement further represents and warrants that it has reviewed this
waiver with its legal counsel, and that each knowingly and voluntarily waives
its jury trial rights following consultation with legal counsel. NOTWITHSTANDING
ANYTHING TO THE CONTRARY HEREIN, THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED ORALLY OR IN WRITING, AND THE WAIVER WILL APPLY TO ANY
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING HERETO. In the event of commencement of
any action, this Agreement may be filed as a written consent to trial by a
court.
13.15 Construction. The
parties hereto have participated jointly in the negotiation and drafting of this
Agreement. If an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof will arise favoring or disfavoring any party
because of the authorship of any provision of this Agreement. Any reference to
any federal, state, local or foreign law will be deemed also to refer to law as
amended and all rules and regulations promulgated thereunder, unless the context
requires otherwise. The words “include,” “includes,” and “including” will be
deemed to be followed by “without limitation.” The words “this
Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar
import refer to this Agreement as a whole and not to any particular subdivision
unless expressly so limited. The parties hereto intend that each representation,
warranty and covenant contained herein will have independent significance. If
any party hereto has breached any representation, warranty or covenant contained
herein in any respect, the fact that there exists another representation,
warranty or covenant relating to the same subject matter (regardless of the
relative levels of specificity) which that party has not breached will not
detract from or mitigate the fact that such party is in breach of the first
representation, warranty or covenant.
[Signature
page follows this page.]
-18-
IN WITNESS WHEREOF, the
parties hereto have duly executed this Split-Off Agreement as of the day and
year first above written.
|
INVIVO
THERAPEUTICS HOLDING CORP.
|
||
|
By:
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
Title:
|
President
|
|
|
DSOURCE
SPLIT CORP.
|
||
|
By:
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
Title:
|
President
|
|
|
BUYERS
|
||
|
Xxxxx
Xxxxxxxx
|
||
|
Xxxxxxxx
Xxxxxxxx
|
||
|
Xxxxx
Xxxxx
|
||
EXHIBIT
A
|
Buyers
|
Purchase Price Security
|
Number
|
||
|
Xxxxx
Xxxxxxxx
|
Common
Stock
|
6,644,910
|
||
|
Xxxxxxxx
Xxxxxxxx
|
Common
Stock
|
405,796
|
||
|
Xxxxx
Xxxxx
|
|
Common
Stock
|
|
7,696,848
|
* As
adjusted to reflect the 2.02898-for-1 forward stock split of the common stock of
Seller, in the form of a dividend.
