EXECUTION
VERSION


 


ASSET
PURCHASE AGREEMENT


 


Dated
as of June 5, 2017


 


Among


 


SYMPLMED
PHARMACEUTICALS LLC,


 


and


 


MARINA
BIOTECH, INC.


 




    	 	 	 



    	 



    

 


ASSET
PURCHASE AGREEMENT


 


This
ASSET PURCHASE AGREEMENT, dated as of June 5, 2017, is by and among SYMPLMED PHARMACEUTICALS LLC, a Delaware limited liability
company (the “Company” ), and MARINA BIOTECH, INC., a Delaware corporation (“Buyer”).


 


P
R E M I S E S:


 


WHEREAS,
the Company is a privately-held pharmaceutical company that is engaged in the business, in relevant part, of developing, marketing,
manufacturing, selling, promoting, storing, supporting, transporting and commercializing a single-pill fixed-dose combination
of perindopril arginine and amlodipine besylate known as Prestalia (“Prestalia”) that has been approved by
the U.S. Food and Drug Administration (the “FDA”) for the treatment of hypertension (such business, which,
for the avoidance of doubt, does not include the Retained Business (as defined below), being hereinafter referred to as the “Business”);


 


WHEREAS,
Buyer wishes to purchase all of the Assigned Assets (as defined below), and assume all of the Assumed Liabilities (as defined
below), from the Company, and the Company wishes to sell all of the Assigned Assets to Buyer, all pursuant to the terms, conditions,
limitations and exclusions contained in this Agreement;


 


NOW,
THEREFORE, in consideration of the mutual agreements contained herein, intending to be legally bound hereby, the parties hereto
agree as follows:


 


A
G R E E M E N T S:


 


ARTICLE
I


DEFINED
TERMS


 


1.1 Defined
Terms. The following terms shall have the following meanings in this Agreement:


 


“Accounts
Receivable” means any and all amounts owed to the Company or any of its Subsidiaries by reason of a sale of products
or provision of services in the ordinary course of the Business, in accordance with the financial statement methodologies of the
Company.


 


“Affiliate”
means, with respect to any particular Person, any other Person controlling, controlled by or under common control with such particular
Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies
of a Person whether through the ownership of voting securities, contract or otherwise.


 


“Assigned
Assets” means all of the tangible and intangible assets of every kind and description used or useful in the Business
(including, without limitation, those assets of the Company set forth on Schedule 1.1(a)), which shall be owned by, leased
by or licensed to the Company on the Closing Date, other than Excluded Assets.


 




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“Assumed
Liabilities” means:





 


(a)
any executory liability arising and accruing after the Closing under the Contracts that are included in the Assigned Assets,
and specifically excluding any liability arising out of or relating to any breach or default under any such Contract based on
facts that occurred or circumstances that existed on or prior to the Closing;


 


(b)
indebtedness of the Company specifically set forth on Schedule 1.1(b), and specifically excluding any liability
arising out of or relating to any breach or default with respect to such indebtedness based on facts that occurred or
circumstances that existed on or prior to the Closing; and


 


(c)
any executory liability arising and accruing after the Closing under the Contracts with
the employees or independent contractors of the Company listed on Schedule 1.1(c), and specifically excluding any liability
arising out of or relating to any breach, default or Tax liability with respect to such Contracts based on facts that occurred
or circumstances that existed on or prior to the Closing.


 


“Closing”
means the consummation of the transactions contemplated by this Agreement in accordance with the provisions of Article VII
hereof.


 


“COBRA”
means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Consents”
means the consents of third parties necessary or advisable to consummate the transactions contemplated hereby, as more particularly
set forth on Schedule 3.10 hereto.


 


“Contracts”
means all agreements, written or oral (including any amendments and other modifications thereto), relating to the Business, to
which the Company or any of its Subsidiaries is a party or is bound. For the avoidance of doubt, the term “Contracts”
includes all of the “Material Contracts”.


 


“Environmental
Liabilities” means any liabilities arising out of or relating to the violation of any applicable Law relating to (a)
the protection of the environment (including air, water, groundwater, soil, land surface, subsurface strata and natural resources),
(b) the use, storage, handling, release or disposal of, or exposure to any hazardous substances or (c) occupational health.


 


”ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.


 


“Excluded
Assets” means only the following assets of the Company:


 


		(a)	all
                                         assets relating to the Retained Business (unless such assets also constitute Assigned
                                         Assets);





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		(b)	those
                                         Material Contracts identified on Schedule 3.9 as Excluded Assets or as not being
                                         not being part of the Assigned Assets;
	 	 	 
		(c)	the
                                         ownership interests held by the Company in its wholly-owned subsidiaries, including Symplmed
                                         Consulting, Inc. and Symplmed Technologies, LLC;
	 	 	 
		(d)	the
                                         minute books, stock record books, corporate franchise and Tax Returns of the Company
                                         and its Subsidiaries (other than as covered by the definition of Assigned Assets);
	 	 	 
		(e)	all
                                         warranty rights, guaranty rights, causes of actions, judgments, Orders, claims or other
                                         similar rights, in the case of each of the foregoing, solely to the extent arising with
                                         respect to, from or relating to the Excluded Assets;
	 	 	 
		(f)	all
                                         insurance benefits, including rights and proceeds, solely to the extent arising with
                                         respect to, from or relating to the Excluded Assets and the Company’s continued
                                         workmen’s compensation insurance, if any;
	 	 	 
		(g)	the
                                         rights, claims or causes of action of the Company against other Persons relating to the
                                         Business which relate to the discharge by the Company of the Excluded Liabilities;
	 	 	 
		(h)	all
                                         refunds of any Tax that is an Excluded Liability;
	 	 	 
		(i)	all
                                         employee benefit plans of the Company, and the assets and contracts relating thereto;
                                         and
	 	 	 
		(j)	all
                                         attorney-client communications solely regarding this Agreement, the Related Documents
                                         and the transactions contemplated hereby on or prior to the Closing Date.



“Excluded
Liabilities” means any and all liabilities and obligations of the Company and its Subsidiaries arising on or prior to
the Closing Date (and, with respect to the Retained Business and any of the Excluded Assets, also arising after the Closing Date
(including, without limitation, liabilities to any employees, officers, directors, managers, consultants and contractors of the
Company or its Subsidiaries)). For the avoidance of doubt, the Excluded Liabilities shall include, without limitation:


 


(a)
any liabilities to current and former employees of the Company and its Subsidiaries, and to employees of the Company
following the Closing, and the beneficiaries thereof, during the period they are employed by the Company or any Subsidiary
thereof through the Closing (and at all times following the Closing), and any other liabilities arising under ERISA or
similar laws relating to employees, or relating to the benefit plans of the Company and its Subsidiaries, through the Closing
(and at all times following the Closing);


 




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(b)
all wages, compensation, termination or severance payments, or other remuneration and
benefits of any kind earned through and following the Closing, including, without limitation, unemployment or similar payments,
owed or otherwise due to any current or former employee, officer, director, member, manager, consultant or independent contractor
of the Company or any Subsidiary, or any dependent or beneficiary thereof, as of the Closing (and at all times following the Closing),
arising from or relating to their employment by, service to or separation from the Company or any Subsidiary, including: (i) bonus
and “golden parachute” payments; (ii) all vacation and sick pay; (iii) payments, benefits and obligations relating
to the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608
of ERISA (or applicable state law); and (iv) payments, benefits and obligations arising under the WARN Act or any other similar
law, as well as any liabilities arising from the failure to make any such payments or provide any such benefits;


 


(c)
any liabilities of the Company or any of its Subsidiaries arising or incurred in connection with the negotiation,
preparation, investigation and performance of this Agreement and the Related Documents, and the transactions contemplated
hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and other
professionals;


 


(c)
any liabilities owed to any present or former employees or consultants, or to any other
Person, including, without limitation, change of control payments, arising from the consummation of the transactions contemplated
by this Agreement;


 


(f)
any liabilities arising out of or relating to those certain legal actions set forth
on Schedule 3.18;


 


(g)
Retained Tax Liabilities;


 


(h)
Environmental Liabilities; and


 


(i)
any indebtedness of the Company and its Subsidiaries.


 


“Governmental
Authority” means any court, tribunal, arbitrator, authority, agency, commission, bureau, board, department, official,
body or other instrumentality of the United States or any foreign country, or any domestic or foreign state, province, county,
city, other political subdivision or any other similar body or organization exercising governmental or quasi-governmental power
or authority, including Regulatory Agencies.


 


“Intellectual
Property” shall mean all statutory, common law and registered patents, copyrights, trademarks, service names,
service marks and trade names (including any Intellectual Property Registration), and all trade secrets, designs, logos, and
other intangible rights and interests owned by the Company or any of its Subsidiaries, in each case that are used or useful
in connection with the Business, including the names “Symplmed”, “Prestalia” and “ACEON”
(and all translations, adaptations, derivations and combinations of the foregoing and all logos related to the
foregoing), and all associated goodwill, including, without limitation, all intellectual property listed on Schedule 3.11 and
the following:


 






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(a)
United States Letters Patent and patents granted in any other jurisdiction anywhere in the world, reissues, divisions,
continuations, continuations-in-part, reexaminations, renewals and substitutes thereof, foreign counterparts of the
foregoing, term restorations or other extensions of the term of any issued or granted patents anywhere in the world and
extensions of the monopoly right covering a product or service previously covered by any issued or granted patent anywhere in
the world for the limited purpose of extending the holder’s exclusive right to make, use or sell a particular product
or service covered by such patent (such as supplemental protection certificates or the like);


 


(b)
product or service names, brands, logos and other distinctive identifications used in commerce, whether in connection with
products or services, and the goodwill associated with any of the foregoing;


 


(c)
original works of authorship, derivative works and other copyrightable works of any nature, and fixations of any of
the foregoing;


 


(d)
software, databases and fixations thereof;


 


(e)
uniform resource locators, website addresses, domain names, website content and all fixations thereof;


 


(f)
Proprietary Information; and


 


(g)
any other intangible property similar to any of the above.


 


“Intellectual
Property Registration” shall mean an application (including provisional applications), certificate, filing, registration
or other document seeking or confirming rights in Intellectual Property issued by, filed with or recorded by any Governmental
Authority in any jurisdiction anywhere in the world including any and all amendments to any of the foregoing.


 


“Knowledge”
shall be understood to refer to matters that are known, or that should be known following due inquiry, to the Company or any Subsidiary,
or any director or officer of the Company, and the knowledge of each shall be imputed to the others.


 


“Law”
means any law, rule or regulation of any foreign, federal, state or local Governmental Authority, as well as guidance, directives
and policies of such authorities.


 


“Licenses”
means permits, licenses, variances, registrations, exemptions, orders, consents, certificates, grants, waivers, qualifications,
approvals and all other authorizations by or of Governmental Authorities in connection with, used in, or necessary for the lawful
operation of the Business, including for the manufacturing, having manufactured, marketing, sales,promotion, distribution,
storing, transporting, supporting and importing of Prestalia Products, all of which are listed on Schedule 3.6 hereto.


 






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“Material
Adverse Effect” shall mean any circumstance, change in or effect on the Company or any of its Subsidiaries that is or
could reasonably be expected to be materially adverse to the consolidated results of operations or the financial condition or
prospects of the Company or any of its Subsidiaries taken as a whole.


 


“Material
Contract” means each Contract to which the Company is a party, which provides for obligations, payments, liabilities,
consideration, performance of services or the delivery of goods material to the Assigned Assets (it being understood and agreed
that any contract that provides for obligations, payments, liabilities, consideration, performance of services or the delivery
of goods to or by such entity of any amount or value reasonably expected to be in excess of $25,000 in any annual period shall
be deemed to be material), all of which are set forth on Schedule 3.9 attached hereto.


 


“Order”
means any order, judgment, ruling, injunction, award, stipulation, assessment, decree or writ, whether preliminary or final, of
any Governmental Authority.


 


“Permitted
Encumbrances” shall mean (i) Encumbrances for current Taxes not yet due and payable or Taxes which are being disputed
in good faith where no lien has yet been filed, (ii) mechanics, warehousemen and materialmen liens not material in nature or amount,
and (iii) Encumbrances agreed to by Buyer and the Company as set forth on Schedule 1.1(d).


 


“Person”
means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust,
a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.


 


“Personal
Property” means all of the interest of the Company in all machinery, equipment, computer programs, computer software,
tools, motor vehicles, furniture, fixtures, leasehold improvements, office equipment, supplies, plant, spare parts and other tangible
personal property which are owned by or leased to the Company, or otherwise used or possessed by the Company, and used in connection
with the Business.


 


“Prestalia
NDA” means the New Drug Applications, including all supplements and amendments thereto, for the approval of each Prestalia
Product as a new drug by the FDA.


 


”Prestalia
NDA Assignment Date” means the fifth (5th) business day (or such earlier date as may be agreed between
Buyer and the Company) following the date on which Buyer provides written notice to Seller (which written notice must be
provided not later than one hundred fifty (150) days following the Closing Date) that Buyer is prepared, in its sole
discretion, to accept an assignment of the Prestalia NDA. Following the earlier of (A) delivery of notice from Buyer to the
Company advising it of the Prestalia NDA Assignment Date and (B) the Prestalia NDA Assignment Date, the Company shall
undertake all acts as are necessary, appropriate or advisable to transfer the Prestalia NDA to Buyer and fulfill its other
obligations pursuant to this Agreement related thereto. In the event that Buyer does not deliver notice to the Company
advising it of the Prestalia NDA Assignment Date on or prior to the 150th day following the Closing Date, then
(unless otherwise agreed in writing between the parties) the Prestalia NDA Assignment Date shall be deemed to occur on the
150th day following the Closing Date, at which time the Company shall transfer the Prestalia NDA to Buyer and
fulfill its other obligations pursuant to this Agreement related thereto.


 






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“Prestalia
Products” means the products of the Company as set forth on Schedule 1.1(e), including, without limitation, all
pharmaceutical preparations, in all dosage strengths, formulations, and methods of administration, that contain active pharmaceutical
ingredient, and any new generation or other product developed in the future to the extent that the making, using or selling of
such new product contains or is based on the Intellectual Property that is included in the Assigned Assets.


“Proprietary
Information” shall mean technical, commercial, marketing and other information, data and material of the kind which
is or can be used in the operation of a business and which is normally considered to be confidential or proprietary in nature
including, but not limited to, any algorithm; procedure; idea; concept; strategic, business and other plan; research; invention
or invention disclosure (whether patentable or unpatentable); test, engineering and technical data and materials, know-how, show-how
or methodology; trade secret, process, design, formula, or other information or data which has not entered the public domain,
and all records or fixations including, but not limited to, laboratory notes, source code and software documentation. The term
“Proprietary Information” shall also include the terms and provisions of this Agreement and any other material information
relating to this Agreement or the transactions contemplated hereunder.


 


“Purchase
Price” means the aggregate consideration payable to the Company for the Assigned Assets as provided in Article II.


 


“Real
Property” means all of the Company’s owned or occupied real property, leasehold interests, easements, real estate
licenses, rights to access and rights-of-way, all of which are identified in Schedule 3.7 hereto.


 


“Regulatory
Agencies” means the FDA and any other Governmental Authority that is concerned with the quality, identity, strength,
purity, safety, efficacy or manufacturing of pharmaceutical products, including the Prestalia Products.


 


“Related
Documents” means any and all agreements, instruments, documents or certificates related to or arising from this Agreement
necessary to facilitate the consummation of the transactions contemplated by this Agreement.


 


“Retained
Business” means that portion of the business of the Company other than the Business, including, without limitation,
that portion of the Company’s business that relates to its patented technology platform known as DyrectAxess.


 


“Retained
Tax Liabilities” means any and all liabilities for Taxes (whether or not remitted) of: (i) the Company or its
Subsidiaries (including any Taxes arising in connection with the consummation of the transactions contemplated by this
Agreement and the Related Documents); (ii) the Company or any of its Subsidiaries attributable to any change in method of
accounting of the Company or with respect to the Business, in each case relating to any taxable period (or portion thereof)
ending on or before the Closing; (iii) any Person attributable to the Assigned Assets or the operation of the Business for
any taxable period (or portion thereof) ending on or before the Closing; and (iv) any Person arising from or in connection
with any Excluded Asset.


 






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“Servier”
means Les Laboratoires Servier, a French corporation having offices at 50 rue Carnot, 92284 Suresnes, France.


 


“Servier-Symplmed
License” means the Amended and Restated License and Commercialization Agreement between Servier and Symplmed (as assignee)
dated January 11, 2012 (as further amended from time to time) pursuant to which Seller has an exclusive license from Servier to
manufacture, have manufactured, develop, promote, market, distribute and sell, inter alia, the Prestalia Products.


 


“Subsidiary”
shall mean, with respect to the Company, any entity of which a majority of the voting power or equity interest is owned, directly
or indirectly, by the Company.


 


“Tax”
shall mean any federal, territorial, state, county, local, or foreign income, gross receipts, license, payroll, wage, employment,
excise, utility, communications, production, occupancy, severance, stamp, occupation, premium, windfall profits, environmental,
customs duties, capital stock, capital levy, franchise, profits, withholding, social security (or similar), unemployment, disability,
real property, real property gains, recordation, escheat or unclaimed property obligations, business license, workers’ compensation,
Pension Benefit Guaranty Corporation, personal property, sales, use, transfer, registration, value added, ad valorem, alternative
or add-on minimum, estimated, or other tax, fee, charge, premium, imposition of any kind whatsoever, however denominated, imposed
by any Tax Authority, together with any interest, penalties or other additions to tax and any interest on any such interest, penalties
and additions to tax payable in respect thereof.


 


“Tax
Authority” shall mean the Internal Revenue Services (“IRS”) and any other federal, territorial, state,
local or foreign authority responsible for the administration and/or collection of any Taxes.


 


“Tax
Period” means any taxable year or any other period that is treated as a taxable year with respect to which any Tax may
be imposed under any applicable statute, rule or regulation of any Tax Authority.


 


“Tax
Returns” means reports, estimates, declarations or estimated tax, information statements and returns, including information
statements and returns, including information returns or reports with respect to backup withholding and other payments to third
parties, relating to or required to be filed with any Tax Authority by any Tax Law in connection with any Taxes.


 




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“Transition
Period” means the period commencing on the Closing Date and ending on the Prestalia NDA Assignment Date.


 


“Warn
Act” means the Worker Adjustment and Retraining Notification Act.


 


	Defined
    Term	 	Section
	 	 	 
	Assignment
    and Assumption Agreement	 	Section
    7.2
	Business	 	Recitals
	Business
    Personnel	 	Section
    5.1(a)
	Buyer	 	Recitals
	Cap	 	Section
    8.4
	CERCLA	 	Section
    3.23
	Claims	 	Section
    8.3
	Closing
    Date	 	Article
    VII
	Company	 	Recitals
	Customer	 	Section
    3.24(a)
	Damages	 	Section
    8.2(a)
	Employment
    Agreement	 	Section
    7.2
	Encumbrance	 	Section
    2.1
	FDA	 	Recitals
	FDCA	 	Section
    3.29
	Financial
    Statements	 	Section
    3.12
	Hazardous
    Substance	 	Section
    3.23
	INA	 	Section
    3.14(b)
	Insurance	 	Section
    3.13
	Interim
    Financial Statements	 	Section
    3.12
	IP
    Assignment Agreement	 	Section
    7.2
	National
    Priorities List	 	Section
    3.23
	Notice	 	Section
    8.3
	Pharmaceutical
    Product	 	Section
    3.29
	Plans	 	Section
    3.16
	Premises	 	Section
    3.23
	Principal
    Contractor	 	Section
    5.1(a)
	Release	 	Section
    3.23
	Third-Party
    Claim	 	Section
    8.5
	Vendor	 	Section
    3.24(b)




 


ARTICLE
II

PURCHASE AND SALE


 


2.1
Purchase and Sale of the Assigned Assets. Upon the terms and subject to the conditions contained in this Agreement,
at the Closing, Buyer shall purchase and acquire from the Company, and the Company shall sell, transfer, assign, convey
and deliver to Buyer, all right, title and interest in and to all of the Assigned Assets (which, for the avoidance of
doubt, shall exclude all of the Excluded Assets), free and clear of any lien, mortgage, pledge, claim, security
interest, imperfection in title or other third party right or interest of any kind whatsoever, or restrictive agreement,
conditional sales agreement, option, encumbrance or charge of any kind whatsoever (each, an “Encumbrance”),
except for Permitted Encumbrances, and Buyer shall assume and agree to discharge all of the Assumed Liabilities (which, for
the avoidance of doubt, shall exclude all of the Excluded Liabilities). At the Closing, the Company shall deliver to
Buyer assignment agreements along with appropriate powers and transfer instruments executed by the Company to reflect the
purchase and sale of all of the Assigned Assets, and the assumption of the Assumed Liabilities, all in form satisfactory to
Buyer and its counsel.


 


2.2 Purchase
Price.


 


(a)
Subject to the terms and provisions of this Agreement, the aggregate Purchase Price payable to the Company shall be
$300,000, which amount shall be paid to the Company at the Closing.


 


(b)
The payment of the Purchase Price from Buyer to the Company shall be made by wire transfer of immediately available funds to
the account and in accordance with the instructions provided by the Company to Buyer no fewer than two (2) business days
prior to the Closing Date.


 


(c)
Buyer agrees that it will calculate the allocation of the Purchase Price (and any other amounts required to be treated as
consideration for Tax purposes) for U.S. federal income tax purposes in accordance with Section 1060 of the Code and provide
the Company with a copy of such calculation promptly following such time as Buyer has completed its determination.
Notwithstanding the delivery of such calculation, each Party shall be free to utilize its respective allocations of the
Purchase Price for all Tax reporting and other purposes.


 


2.3 Transition
Period. The Company shall take all actions as are necessary, appropriate or advisable to transition the Business
to Buyer, and to allow Buyer to fulfill its obligations under the Servier-Symplmed License, during the Transition Period,
as set forth in this Section 2.3. On the Prestalia NDA Assignment Date (which, for the avoidance of doubt, would occur
on the 150th day following the Closing Date if Buyer does not otherwise deliver notice to the Company advising it
of the Prestalia NDA Assignment Date, unless otherwise agreed in writing by the parties hereto): (i) the Company shall
assign and transfer to Buyer the Prestalia NDA and any and all Licenses and Contracts not previously assigned to Buyer in
connection with the Prestalia NDA and the Prestalia Products (to the extent assignable, and to the extent such items are not
Excluded Assets hereunder); and (ii) the Company shall deliver to Buyer, in a mutually acceptable format, all Intellectual
Property in connection with the Prestalia NDA and the Prestalia Products that it has not previously provided to Buyer, and on
and following which the Company and Buyer shall cooperate in good faith to execute all documents and instruments, and take
any actions, that may be necessary, appropriate or advisable to ensure that Buyer is able to make full use of such
Intellectual Property following the Prestalia NDA Assignment Date (and that Buyer is able to use such Licenses or apply for
(and obtain) replacement Licenses with respect thereto). The Company shall also cooperate in good faith during the Transition
Period, and at all times thereafter, to transfer to Buyer all Licenses and Contracts that are not transferred to Buyer on the
Closing Date (or to assist Buyer in its efforts to obtain substantially similar replacement Licenses and enter
into substantially similar replacement Contracts), and to assist Buyer in its efforts to renegotiate the Servier-Symplmed
License (or enter into a mutually acceptable replacement therefor). Furthermore, the Company hereby agrees that, upon written
request delivered by Buyer prior to the end of the Transition Period, change its name to a name reasonably satisfactory to
Buyer that does not include the words “Symplmed” or “Prestalia”, or any derivation thereof, and
provide written evidence reasonably satisfactory to Buyer of such name change.


 






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ARTICLE
III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND
THE SELLERS


 


The
Company hereby represents and warrants to Buyer, subject to such exceptions as are disclosed in the disclosure schedule (referencing
the appropriate section and paragraph numbers, including by cross-reference to another section containing the disclosure) supplied
as of the date hereof by the Company to Buyer (the “Disclosure Schedule”), as follows:


 


3.1 No
Violation. The execution and delivery of this Agreement and each Related Document does not, and the consummation of the
transactions contemplated hereby and thereby and compliance with the terms hereof and thereof will not (subject only to
obtaining any required consents, approvals, authorizations, exemptions or waivers set forth on Schedule 3.10): (i)
conflict with, or result in any violation of, any statute, regulation, rule, injunction, judgment, Order, decree, ruling,
charge or other restriction of any government or Governmental Authority, or court to which the Company is subject or any
provision of its charter, bylaws or other organizational documents; or (ii) result in any violation of or default on the part
of the Company (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation
or acceleration of any obligation or to loss of a material benefit under or result in the creation of any Encumbrance of any
kind upon the Assigned Assets under, any provision of any note, bond, mortgage, indenture, deed of trust, license, lease,
contract, commitment or loan or other agreement to which the Company is a party or by which any of their respective
properties or assets are bound.


 


3.2 Due
Organization. The Company is duly organized, validly existing and in good standing under the laws of the state of
its organization, and has full power and authority and all requisite rights, licenses, permits and franchises to own, lease
and operate the Assigned Assets that it currently owns, leases or operates and to conduct the Business as it is now being
conducted. The Company is duly licensed, registered and qualified to do business and is in good standing in all jurisdictions
in which the ownership, leasing or operation of the Assigned Assets, or the conduct of the Business, requires such
qualification, except where the failure to be so qualified would not result in a Material Adverse Effect.


 


3.3 Authorization.
The Company has all requisite power and authority to enter into this Agreement and each Related Document to which it is
a party and to consummate the transactions contemplated hereby and thereby. All acts and other proceedings required to be
taken by the Company to authorize the execution, delivery and performance of this Agreement and each Related Document to
which it is a party, and the consummation of the transactions contemplated in this Agreement and each
Related Document, including, without limitation, the approval of the managers and members of the Company, have been duly and
properly taken.


 






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3.4 Subsidiaries.
The Company has two Subsidiaries: Symplmed Technologies, LLC and Symplmed Consulting, Inc. The Company owns all of the issued
and outstanding equity interests of each aforementioned Subsidiary, and no other Person has any right to acquire any equity
interest in either aforementioned Subsidiary. Neither Symplmed Technologies, LLC nor Symplmed Consulting, Inc. is involved in
the operations of the Business or holds any Assigned Assets. Other than Symplmed Technologies, LLC and Symplmed
Consulting, Inc., the Company does not own, directly or indirectly, more than five percent (5%) of the voting power or equity
interest of any entity.


 


3.5 [Intentionally
Omitted].


 


3.6 Licenses. Schedule
3.6 contains a true and complete list of all of the Licenses, including any non-assignable Licenses (which shall be
denoted as such). Except as set forth on Schedule 3.6, the Licenses set forth on Schedule 3.6 comprise all of
the Licenses that are used in connection with, used in, or necessary for the lawful operation of the Business, including for
the manufacturing, having manufactured, marketing, sales, promotion, distribution, storing, transporting, supporting and
importing of the Prestalia Products, and none of the foregoing are subject to any restriction or condition which would limit
the full operation of the Business as presently operated. Except as noted on Schedule 3.6, all Licenses are validly issued,
and the applications therefor are complete and accurate and did not omit to state any facts necessary in order to make the
statements therein not misleading.


 


3.7 Real
Property. Schedule 3.7 sets forth an accurate and complete list of all of the Real Property that is used
by, leased by or otherwise occupied by the Company. The Company is not, and to Knowledge, no other party is, in default under
any lease or other instrument of conveyance with respect to the Real Property. The Company owns no Real Property. No
Contracts pursuant to which the Company leases Real Property are included in the Assigned Assets.


 


3.8 Personal
Property. Schedule 3.8 contains a list of the items that comprise all Personal Property as of the most recent
practicable date, of whatever kind and wherever located, as indicated on such schedule. The Company owns and has good
and marketable title to all Personal Property free and clear of any Encumbrance, except for Encumbrances that shall be
discharged or removed prior to or at Closing. The Company is not, and to Knowledge no other party is, in material default
under any of the leases, licenses and other agreements relating to the Personal Property. Except as otherwise disclosed on Schedule
3.8, the Personal Property constituting tangible property is in good operating condition (ordinary wear and tear
excepted) and is available for immediate use in the operation of the Business.


 


3.9 Contracts. Schedule
3.9 lists all of the Material Contracts in effect on the date hereof (including, but not limited to, all
employment agreements and all other contracts or agreements to which the Company is a party). Except as set forth on Schedule
3.9, all of the Material Contracts are in full force and effect, and are valid, binding and enforceable in accordance
with their terms. Except as otherwise disclosed on Schedule 3.9: (i) there is no default or breach by the Company, or
to Knowledge, any other party to any Material Contract; (ii) there is no fact or circumstance that exists that, with or
without the passage of time or giving of notice or the happening of any further event or condition, would constitute a
default, or would entitle any party to terminate any Material Contract or to make a claim or set-off against the Company, or
any of its Affiliates, or otherwise to amend any Material Contract or prevent such Material Contract from being renewed in
accordance with its terms; (iii) the Company is not restricted by agreement from carrying on the Business as and where
conducted on the Closing Date, or in any other market or territory; (iv) there are no negotiations pending or in progress to
revise any Material Contract; (v) following the Closing, each Material Contract shall be in full force and effect, and valid,
binding and enforceable in accordance with its terms; and (vi) no Material Contract provides for the payment of any bonus
or commission to any Person based on sales or earnings by the Company or any of its Subsidiaries. Except as set forth
on Schedule 3.9, the Company has not received any written notice of default, termination, or nonrenewal under any
Material Contract that has not been cured prior to the Closing.


 






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3.10 Consents.
Except for the Consents described in Schedule 3.10, no License or Order of or from, or declaration or filing with, any
Governmental Authority, and no consent or waiver of any party to any Contract to which the Company is a party is required or
declaration to or filing with any Governmental Authority, or any other third party is required to (a) execute this Agreement
or any of the Related Documents, (b) consummate the transactions contemplated hereby or thereby, (c) permit the Company to
sell the Assigned Assets to Buyer, or (d) enable the Company, after consummation of the transactions contemplated by this
Agreement, to conduct the Business after the Closing Date in the same manner as presently operated.


 


3.11 Intellectual
Property. Schedule 3.11 sets forth a true, complete and correct list of all Intellectual Property owned by or
licensed to the Company or its Subsidiaries. The Intellectual Property set forth on Schedule 3.11 includes all
such Intellectual Property that is used in or necessary for the conduct of the Business. Except as set forth on Schedule
3.11, the Company is the sole and exclusive owner or licensee of all right, title and interest in and to the Intellectual
Property, free and clear of all Encumbrances, and the Company has the valid and exclusive rights to use the Intellectual
Property. Except as set forth on Schedule 3.11, all items of Intellectual Property are properly registered and/or
applied for under applicable law and all such registrations are valid and in force. Except as set forth on Schedule
3.11, (i) to Knowledge, none of the Intellectual Property is interfered with, infringed upon, conflicted with or
otherwise violated by the intellectual property rights of any Person and (ii) none of the Intellectual Property interferes
with, infringes upon, conflicts with or otherwise violates the intellectual property rights of any Person. No Affiliate of
the Company has any rights to any of the Intellectual Property.


 


3.12 Financial
Statements. The Company has furnished to Buyer the following financial statements (collectively, the “Financial
Statements”), true and complete copies of which Financial Statements are attached hereto as Schedule 3.12:
(i) consolidated unaudited balance sheets and statements of income, changes in stockholders’ equity, and cash flow as
of and for the fiscal years ended December 31, 2015 and 2016 of the Company; and (ii) unaudited consolidated balance sheets
and statements of income as of and for the three (3) months ended March 31, 2017 of the Company (the
“Interim Financial Statements”). The Financial Statements (including the notes thereto) present fairly the
financial condition of the Company as of such dates and the results of operations of the Company for such periods are true,
correct and complete, and are consistent with the books and records of the Company (which books and records are true, correct
and complete). The accounting practices used in preparing the Financial Statements were the same in each of the
Financial Statements and were consistently followed throughout the period reflected in each of the Financial Statements. The
books and records of the Company are complete and correct in all material respects, and fully and fairly reflect bona fide
transactions set forth therein.


 






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3.13 Insurance. Schedule
3.13 sets forth an accurate and complete list (including the name of the insurer, coverage, premium and expiration date)
of all binders, policies of insurance, self-insurance programs or fidelity bonds (“Insurance”) maintained
by the Company, or in which the Company is a named insured, true and complete copies of which have been provided to Buyer.
All Insurance contains valid and enforceable policies or binders for the benefit of the Company, and all such policies or
binders are in full force and effect, are in amounts and for risks, casualties and contingencies customarily insured
against by enterprises in operations similar to the Business, and provide coverage for any and all events that may occur
while such policies or binders are in effect. There are no pending or asserted claims against any Insurance as to which any
insurer has denied liability, and there are no claims under any Insurance that have been disallowed or improperly
filed.


 


3.14 Employees.


 


(a) Compliance.


 


(i)
The Company has complied in all material respects with all Laws relating to the employment or retention of its employees,
consultants and independent contractors, including provisions relating to recruiting, hiring, retaining and documenting
prospective employees, wages, hours, equal opportunity, recordkeeping, occupational health and safety, severance, collective
bargaining and the payment of social security, employment and other taxes, and as of the date hereof the Company has not
received any notice alleging that it has failed to comply with any such Laws.


 


(ii)
There are no loans outstanding from the Company to any member, shareholder, director, manager, officer or employee of the
Company.


 


(iii)
Neither the Company nor any of its Subsidiaries is in breach of any material terms of any employment relationship with any
of its directors, officers, managers or employees, nor to Knowledge is any director officer, manager or employee in breach of
any material term of his or her employment relationship with the Company or any of its Subsidiaries, in each case which have
not been waived.


 


(b) Eligibility.
With respect to all persons employed by the Company, and with respect to all independent contractors, the Company
has complied in all material respects with employment eligibility verification form requirements under the Immigration
and Naturalization Act, as amended (“INA”), in recruiting, hiring, reviewing and documenting
prospective employees for employment eligibility verification purposes and the Company has complied with the paperwork
provisions and anti-discrimination provisions of the INA. With respect to all persons employed by the Company, and with
respect to all independent contractors, the Company has obtained and maintained the employee records and I-9 forms in proper
order as required by United States law. To Knowledge, the Company does not employ any workers unauthorized to work in the
United States.


 






    	 	13	 



    	 



    

 


3.15 Labor
Relations. The Company is not or was not a party to, nor subject to, any collective bargaining agreements. None of the
employees of the Company are or were represented by a union or subject to a collective bargaining agreement, no union
organizational campaign is in progress with respect to said employees and no question concerning representation exists
respecting such employees.


 


3.16 ERISA.


 


(a) Schedule
3.16 contains a list of employee benefit plans under Section 3(3) of ERISA and any other employment, consulting, bonus,
deferred compensation, incentive compensation, severance, termination or post-employment pay, disability, hospitalization or
other medical, dental, vision, life, disability or other insurance, stock purchase, stock option, stock appreciation,
stock award, pension, profit sharing, 401(k) or retirement plan, agreement or arrangement, and each other employee benefit
plan or arrangement arising out of the employment or the termination of an employee, former employee, retiree or sales
personnel by the Company, whether written or oral, tax-qualified under the Code or non-qualified, whether covered by ERISA or
not, which is currently maintained or contributed to by the Company covering its employees, former employees, retirees or
sales personnel (collectively, the “Plans”). The Company has no legally binding oral or written plan or
other commitment, whether covered by ERISA or not, to create any additional plan, agreement or arrangement or to modify or
change any existing Plan in any manner that would affect any of its employees, former employees, retirees or sales
personnel.


 


(b)
The Company does not maintain, nor has it ever maintained or contributed to, a “multiemployer plan”, as that
term is defined in Section 3(37) of ERISA, or an employee benefit pension plan, as defined in Section 3(2) of ERISA, that is
subject to Title IV of ERISA.


 


(c)
Except to the extent that liability therefor will not be imposed upon Buyer:


 


(i)
Full payment has been made of all amounts (other than current outstanding routine claims for benefits) which the Company is
required to contribute or pay under the terms of any Plan, and all contributions to any Plan which are required or
recommended with respect to any period of time prior to the Closing have been made or such amounts have been accrued in
accordance with the financial statement methodologies of the Company. There are no funded benefit obligations of the Company
for which contributions have not been made or properly accrued and there are no unfunded benefit obligations of the Company
that have not been accounted for by reserves, or otherwise properly footnoted in accordance with the financial statement
methodologies of the Company.


 




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(ii)
Each of the Plans is and has been operated and administered in all material respects in accordance with applicable laws,
including but not limited to, ERISA and the Code, and all required material governmental filings and material participant
disclosures have been made on a timely basis. No prohibited transaction within the meaning of Section 406 of ERISA or 4975 of
the Code, or breach of fiduciary duty under Title I of ERISA, has occurred with respect to any Plan or with respect to the
Company. The Company does not maintain any Plan which is subject to Section 401(a) of the Code, other than its 401(k) Plan,
and to Knowledge, no facts exist which could reasonably be expected to adversely affect the tax-qualified status of such
Plan.


 


(iii)
There are no pending, or to Knowledge, threatened or anticipated, claims, litigation, administrative actions or proceedings
against or otherwise involving any of the Plans or related trusts, or any fiduciary thereof, by any Governmental Authority,
or by any employee, former employee, leased employee, former leased employee, retiree or sales personnel or by any
participant or beneficiary covered under any of the Plans, or otherwise involving the Plans (other than routine claims for
benefits). There is no judgment, decree, injunction, rule or Order of any court, Governmental Authority or arbitrator
outstanding against or in favor of any Plan or, to Knowledge, any fiduciary thereof in that capacity.


 


(iv)
Each Plan that is a “group health plan” (as defined in Section 607(1) of ERISA) has been operated in compliance
in all material respects with the provisions of COBRA (Section 4980B of the Code), the Health Insurance Portability and
Accountability Act of 1996 and any applicable similar state law. The Company is not the sponsor of, or a participating
employer in, any Plan that is an “employee welfare benefit plan” within the meaning of Section 3(1) of ERISA that
does not have an underlying insurance contract. There are no reserves, assets, surpluses or prepaid premiums with respect to
any employee welfare benefit plan. The Company currently provides no and has no current obligation to provide for
post-retirement or post-employment health and welfare benefits, including but not limited to, severance, salary continuation,
termination, disability, death, or retiree health or medical benefits except as required by applicable law.


 


(v)
The consummation of the transactions contemplated by this Agreement will not, of itself, entitle any current or former
leased or contract employee of the Company to severance pay, unemployment compensation or any similar payment or accelerate
the time of payment or vesting, or increase the amount of compensation due to, or in respect of, any current or former leased
or contract employee, nor will it result in the breach of any agreement with any current or former leased or contract
employee.


 


(vi)
None of the Assigned Assets is subject to any lien under Section 302(f) of ERISA or Section 412(n) of the Code.


 






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3.17 Taxes.
The Company has timely filed all Tax Returns required to be filed by the Company and required to be filed with respect to the
Assigned Assets or the Business, and all such Tax Returns are accurate, complete and correct. The Company has paid all Taxes
required to be paid by it and required to be paid with respect to the Assigned Assets and the Business (whether or not
shown on any Tax Return described in the preceding sentence). There is no Tax audit or examination now pending or
threatened with respect to the Company, the Assigned Assets or the Business. No claim has ever been made in writing by any
Governmental Authority in a jurisdiction where the Company does not pay Taxes or file Tax Returns that the Company is or may
be subject to Tax by that jurisdiction. The Company has not requested or entered into an agreement providing for any
extension of time within which to file any Tax Return, make any Tax election, pay any Taxes or pursuant to which any
Governmental Authority may assess Taxes. All Taxes which the Company was or is required by applicable Law to withhold or
collect have been and are being withheld or collected by it and have been paid over to the proper Governmental Authority or,
if not yet due, are being held by the Company for payment. The Company has collected and remitted sales, use, value added and
similar Taxes applicable in connection with the Assigned Assets and the operation of the Business. The Company has never
entered into a “closing agreement” as defined in Section 7121 of the Code. There is no lien for Taxes upon any of
the assets of the Company (including the Assigned Assets) other than liens for Taxes that are not yet due and payable. The
Assigned Assets do not include any (a) “United States real property interests” for purposes of Section 897 of the
Code or (b) equity interests in any other Person (under Tax or non-Tax principles). The Company has used the cash method of
accounting at all times since its date of formation for U.S. federal income Tax purposes. For purposes of this Section 3.17,
each reference to the Company includes any Person that was liquidated into, merged with or otherwise a predecessor to, the
Company.


 


3.18 Claims;
Legal Actions. Except as set forth on Schedule 3.18, there are no actions, suits, proceedings, Orders,
investigations or claims pending or, to Knowledge, threatened against the Company, or pending or threatened by the Company,
against any third party, at law or in equity, or before or by any Governmental Authority (including, without limitation, any
actions, suits, proceedings or investigations with respect to the transactions contemplated by this Agreement). The Company
is not subject to any arbitration proceedings under collective bargaining agreements or otherwise or any governmental
investigations or inquiries (including, without limitation, inquiries as to the qualification to hold or receive any
License), and there is no basis for any of the foregoing. Except as set forth on Schedule 3.18, the Company is subject
to any judgment, Order or decree of any court or other Governmental Authority.


 


3.19 Compliance
with Laws. The Company, the Business and the Assigned Assets conform, in all material respects, to all
applicable statutes, codes, ordinances, licensing requirements and other Laws, and no product or service manufactured,
distributed and/or delivered by the Company violates any Law in any material respect. The Company has, since its inception,
complied in all material respects with all Laws, decrees, filing and reporting requirements, awards and Orders applicable to
the Company, including those relating to employment, employee benefits, marketing, sale and distribution of products,
manufacture and labeling of products, trade regulation, antitrust and warranties; and there is not any claim pending against
the Company arising from or related to any violations thereof. No notice from any Governmental Authority or other Person of
any violations of any Law in connection with the Assigned Assets or operations of the Business has been received by the
Company; nor has any communication been received in connection with any actual or potential inquiry or investigation by any
governmental body.


 




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3.20 Undisclosed
Liabilities. Except as set forth on Schedule 3.20 or on the Financial Statements or the notes thereto, the Company
and the Business do not have and will not have any indebtedness, duty, responsibility, liability or obligation of any nature,
whether absolute, accrued, contingent or otherwise, and whether due or to become due, related to or arising from
the operation of the Business or the ownership, possession or use of the Assigned Assets.


 


3.21 Assets
and Title. The Assigned Assets include all assets used or useful in connection with the Business. On the Closing Date,
the Company shall own and have good and marketable title to all of the Assigned Assets free and clear of all
Encumbrances other than Permitted Encumbrances. Neither the ownership nor use of the Assigned Assets conflicts with the
rights of any Person. The Company has not given any power of attorney that relates to the Assigned Assets to any other
Person.


 


3.22 Interim
Change. Except as set forth in Schedule 3.22, since December 31, 2016, the Business has been conducted
and operated only in the ordinary course, consistent with past practices. In addition, except as set forth on Schedule
3.22, since December 31, 2016:


 


(a)
there has been no undisclosed Material Adverse Effect on the Assigned Assets;


 


(b)
except in the ordinary course of business and consistent with past practice, no party has accelerated, terminated, modified
or cancelled any agreement, contract, lease or license (or series of related agreements, contracts, leases and licenses) that
are included in the Assigned Assets or related to the Business, or, to Knowledge, has threatened the same;


 


(c)
the Company has not mortgaged or pledged any Assigned Asset, or subjected any Assigned Asset to any Encumbrance other than
Permitted Encumbrances;


 


(d)
the Company has not sold, leased, assigned, transferred or otherwise disposed of, or agreed to sell, lease, assign, transfer
or otherwise dispose of at some future date, or granted an option or other right to any party to acquire, any of the Assigned
Assets, nor has the Company forgiven or canceled any debts owing to the Company or waived any claims or rights;


 


(e)
the Company has not sold, assigned, transferred, or permitted to lapse, any rights for the use of any Intellectual Property,
or disclosed any Proprietary Information to any Person except pursuant to non-disclosure agreements in the ordinary course of
business;


 


(f)
the Company has not suffered any extraordinary losses;


 


(g)
the Company has not suffered any damage, destruction or casualty loss, not fully covered by insurance (subject to payment of
the applicable deductible);


 


(h)
the Company has not acquired (including, without limitation, by merger, consolidation or acquisition of stock or assets)
any operating business, corporation, partnership, limited liability company, joint venture, association or other
business organization or division thereof, or any assets, outside of the ordinary course of business and consistent with
past practice, or entered into any commitment to do so;


 






    	 	17	 



    	 



    

 


(i)
the Company has not, except for this Agreement or any other agreement contemplated hereby, entered into any agreement,
contract, lease or license (or series of related agreements, contracts, leases or licenses) that are related to the Business
outside of the ordinary course of business and consistent with past practice;


 


(j)
the Company has not declared, made any payment, set aside or made any distribution with respect to its outstanding equity to
its members or stockholders, as applicable, or redeemed, purchased or otherwise acquired any of its outstanding
equity;


 


(k)
other than in the ordinary course of business and consistent with past practice, the Company has not: (i) paid any pension,
retirement allowance or other employee benefit to any Person; or (ii) adopted or agreed to adopt any pension, retirement or
other employee benefit plan, program or policy; and


 


(l)
the Company has not agreed to take any of the actions set forth above in this Section 3.22.


 


3.23 Environmental
Claims. (a) All facilities owned by, or leased to or used by, the Company and used in the conduct of the Business
(the “Premises”), and the operations thereat are in compliance with all federal, state and
local environmental Laws and regulations; (b) there has not been, and is not occurring, at any location currently or
previously owned by or leased to the Company, any Release of any Hazardous Substance; (c) there are no Hazardous Substances
or other condition or use of the Premises, whether natural or man-made, which has caused any damage, or which poses a threat
of causing damage, to the health of persons, to property, to natural resources, or to the environment; (d) the Company has
not received any written communication from any Person or governmental entity that alleges that the Company is not in
compliance with applicable environmental Laws; and (e) the Company has not, in connection with the Business, sent or arranged
for the transportation of Hazardous Substances or wastes to a site which, pursuant to CERCLA (as defined below) or any
similar state law: (i) has been placed or is proposed to be placed on the “National Priorities List” of hazardous
waste sites or its state equivalent or (ii) which is subject to a claim, Order or other request to take “removal”
or “remedial” action by any person as those terms are defined under CERCLA. The Company is not currently
in possession of any Hazardous Substances. For purposes of this Agreement, “Hazardous Substances” shall
be construed broadly to mean any toxic or hazardous substance, material, or waste, and any other contaminant, pollutant
or constituent thereof, whether liquid, solid, semi-solid, sludge and/or gaseous, including chemicals,
compounds, by-products, pesticides, asbestos containing materials, petroleum or petroleum products, and polychlorinated
biphenyls, the presence of which requires investigation or remediation under any environmental Laws or which are regulated,
listed or controlled by, under or pursuant to any environmental Laws, or which has been determined or interpreted at any time
by any Governmental Authority to be a hazardous or toxic substance regulated under any other statute, law, regulation,
order, code, rule, Order, or decree, including any Hazardous Substance as that term is defined under the Comprehensive
Environmental Response Act (“CERCLA”); and “Release” shall mean any manner of
spilling, leaking, dumping, discharging, releasing, migrating or emitting, including the definitions given to any of such
terms under CERCLA or any other environmental law.


 






    	 	18	 



    	 



    

 


3.24 Customers
and Vendors.


 


(a)
During due diligence, the Company provided to Buyer true, accurate and complete details on the customers of the Business
during the 2016 fiscal year, and such other customers of the Business as were requested by Buyer.


 


(b)
As noted on Schedule 3.9, it is contemplated that the Material Contracts between the Company and certain of its
vendors as identified on such schedule will be replaced with direct agreements to be entered into between Buyer and such
vendors following the Closing Date. The Company shall maintain such Material Contracts in effect (and shall timely fulfill
its obligations thereunder) to the extent reasonably necessary to fulfill the Company’s obligations to Buyer during the
Transition Period.


 


3.25 Brokerage.
Neither the Company, nor anyone acting on behalf of or any Affiliate of the Company, has made any commitment or done any
other act that would create any liability for any brokerage, finder’s or similar fee or commission in connection with
the transactions contemplated by this Agreement.


 


3.26 Affiliated
Transactions. Except as set forth in Schedule 3.26, no Affiliate of the Company: (i) owns any debt, equity or
other interest or investment in any Person that is a competitor, lessor, lessee, licensor, licensee, customer, supplier,
distributor, sales agent or advertiser of the Business; (ii) has any cause of action or other claim whatsoever against or
owes any material amount to, or is owed any material amount by the Company, except for accrued compensation (including but
not limited to accrued vacation pay), employee benefits and similar matters; (iii) has any interest in or owns any
Intellectual Property or any other property or right used in the conduct of the Business; or (iv) is a party to any Contract
to which the Company or any of its Subsidiaries is a party.


 


3.27 Accounts
Receivable. All Accounts Receivable of the Company are reflected properly on its books and records, are bona fide, due
and valid receivables subject to no defenses, setoffs or counterclaims, are current and collectible, and will be collected in
accordance with their terms at their recorded amounts. All Accounts Receivable arose in the ordinary course of
business.


 


3.28 Inventory.
All inventories reflected on the Financial Statements are (a) owned by the Company or its Subsidiaries and not subject to any
Encumbrance and (b) are not obsolete and are of good and merchantable quality and contain no material amounts that are not
salable and usable for the purposes intended in the ordinary course of the Business.


 






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3.29 FDA
Matters. As to each product subject to the jurisdiction of the FDA under the Federal Food, Drug and Cosmetic Act,
as amended, and the regulations thereunder (“FDCA”) that is manufactured, packaged, labeled,
tested, distributed, sold, and/or marketed by the Company, including, without limitation, the Prestalia Products (each such
product, a “Pharmaceutical Product”), such Pharmaceutical Product is being manufactured, packaged, labeled,
tested, distributed, sold and/or marketed by the Company in compliance with all applicable requirements under FDCA
and similar laws, rules and regulations relating to registration, investigational use, premarket clearance, licensure,
or application approval, good manufacturing practices, good laboratory practices, good clinical practices, product
listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure to be in compliance
would not have a Material Adverse Effect. There is no pending, completed or, to Knowledge, threatened, action (including any
lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or investigation) against the
Company, and the Company has not received any notice, warning letter or other communication from the FDA or any other
governmental entity, which (i) contests the premarket clearance, licensure, registration, or approval of, the uses of, the
distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling and promotion of any
Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or withdraws or
orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii) imposes
a clinical hold on any clinical investigation by the Company, (iv) enjoins production at any facility of the Company,
(v) enters or proposes to enter into a consent decree of permanent injunction with the Company, or (vi) otherwise alleges
any violation of any laws, rules or regulations by the Company, and which, either individually or in the aggregate, would
have a Material Adverse Effect. The properties, business and operations of the Company have been and are being conducted in
all material respects in accordance with all applicable laws, rules and regulations of the FDA. The Company has not been
informed by the FDA that the FDA will prohibit the marketing, sale, license or use in the United States of any product
proposed to be developed, produced or marketed by the Company nor has the FDA expressed any concern as to approving or
clearing for marketing any product being developed or proposed to be developed by the Company.


 


3.30.
Full Disclosure. No representation or warranty made by the Company herein or in any certificate, document (including financial
statements, exhibits and schedules) or other written instrument furnished or to be furnished pursuant to the provisions of this
Agreement or in connection with the transactions contemplated hereby contains or will contain any untrue statement of any material
fact, nor shall any such certificate, document or written instrument omit any material fact necessary in order to make any statement
herein or therein, in light of the circumstances in which it was made, not misleading.


 


ARTICLE
IV

REPRESENTATIONS AND WARRANTIES OF BUYER


 


Buyer
represents and warrants to the Company as follows:


 


4.1 Organization;
Due Authorization. Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the
State of Delaware, and has full corporate power to execute, deliver and perform this Agreement and any Related Document to
which it is a party. The execution, delivery and performance of this Agreement and the Related Documents have been duly
and validly authorized by all necessary corporate actions on the part of Buyer.


 




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4.2 Binding
Obligation. Assuming due authorization, execution and delivery of this Agreement by the Company, this Agreement (and when
executed and delivered at Closing, each Related Document) will be duly executed by Buyer and constitute the legal, valid, and
binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except that (i) such enforcement may be
limited by or subject to any bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in
effect relating to or limiting creditors’ rights generally and (ii) the remedy of specific performance and injunctive
and other forms of equitable relief are subject to certain equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.


 


4.3 Brokerage.
Neither Buyer nor anyone acting on its behalf has made any commitment or done any other act that would create any liability
for any brokerage, finder’s or similar fee or commission in connection with the transactions contemplated by this
Agreement.


ARTICLE
V

COVENANTS OF COMPANY


 


5.1 Agreement
Not to Compete or Solicit, and to Maintain Confidentiality.


 


(a)
For good and valuable consideration and in furtherance of the sale of the Assigned Assets to Buyer hereunder, in order to
induce Buyer to enter into and perform this Agreement, to ensure that Buyer obtains the benefits it reasonably expects to
obtain hereunder and to more effectively protect the value and goodwill of the Assigned Assets, the Company covenants and
agrees that for a period commencing on the Closing Date and ending on the fifth (5th) anniversary of the Closing
Date, the Company shall not, directly or indirectly, either for his benefit or for the benefit of any of its
Affiliates:


 


(i)
(whether as principal, agent, independent contractor, partner or otherwise or by any other means) own, manage, operate,
control, participate in, perform services for (whether as an employee, consultant or otherwise), invest in, own an interest
in, or otherwise establish or carry on any business or division or line of any business in the United States which engages in
a business substantially similar to or competitive with the Business;


 


(ii)
induce, encourage or attempt to persuade any Customer to terminate, reduce or materially modify (in a manner adverse to the
Company or its Affiliates) such relationship; or


 


(iii)
induce, encourage or attempt to persuade any Business Personnel (as defined below) to terminate, breach or to refuse to
enter into any employment, agency or other business relationship with Buyer or any of its Affiliates.


 


For
purposes of clause (ii) of this Section 5.1(a), the term “Customer” shall mean any Person to whom the Company,
at any time during the thirty-six (36) months prior to the prohibited contact under Section 5.1(a)(ii), was involved in soliciting,
servicing or selling.


 




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For
purposes of clause (iii) of this Section 5.1(a), the term ’“Business Personnel” shall mean any person
(A) who is an employee or Principal Contractor of the Company, on the date of this Agreement and who remains, after Closing, employed
or engaged by the Company or any Subsidiary, or an Affiliate thereof, or becomes employed or engaged by Buyer or an Affiliate
of Buyer in connection with the transactions contemplated hereby for purposes of engaging in the Business, or (B) who is an employee
or Principal Contractor of Buyer or an Affiliate of Buyer employed or engaged in the Business, or (C) who within one year prior
to the prohibited contact by the Company was an employee or Principal Contractor of the Company or any of its Subsidiaries, or
of an Affiliate of the Company or any of its Subsidiaries, or of Buyer or an Affiliate of Buyer.


 


For
purposes of clause (iii) of this Section 5.1(a), the term “Principal Contractor” means, with respect to a Person,
a consultant, independent contractor or free-lance worker whose services are material to the Business or who is engaged on a substantially
full-time basis by the Company or any of its Subsidiaries.


 


(b)
The Company hereby expressly represents and warrants that it has or may have knowledge of certain Proprietary Information.
The Company acknowledges and agrees that all such Proprietary Information is confidential and proprietary and that a
substantial portion of the Purchase Price is being paid for such Proprietary Information and that it represents a substantial
investment having great economic value to Buyer, and constitutes a substantial part of the value to Buyer of the Business and
the Assigned Assets. The Company acknowledges and agrees that Buyer would be irreparably damaged if any of the Proprietary
Information was disclosed to, or used or exploited on behalf of, any Person other than Buyer or any of its Affiliates.
Accordingly, the Company covenants and agrees that it shall not, and it shall use its best efforts to ensure that any other
Person acting on its behalf does not, without the prior written consent of Buyer, disclose, use or exploit any such
Proprietary Information, for the benefit of the Company or of any third-party, except that the Company may disclose, use or
exploit a particular item of Proprietary Information if and to the extent (but only if and to the extent) that such
item:


(i)
is or becomes publicly known or generally known in the industry of the Business through no act of the Company in violation
of this Agreement, or is obtained from a third party that may lawfully disclose such information without breaching any
obligation of confidentiality applicable to such third party;


 


(ii)
is required to be disclosed to or by Order of a Governmental Authority or a court of law or otherwise as required by law;
provided that prior to any such disclosure notice of such requirement of disclosure is provided to Buyer and Buyer is
afforded the reasonable opportunity to object to such disclosure;


 


(iii)
is disclosed to the Company’s representatives working on the transactions contemplated by this Agreement and in such
event, only to the extent necessary to evaluate or effect such transactions; or


 


(iv)
has been publicly disclosed by Buyer after the Closing.


 




    	 	22	 



    	 



    

 


(c)
The Company expressly acknowledges that the covenants contained in Sections 5.1(a) and (b) are integral to the
sale to Buyer of the Assigned Assets and that without the protection of such covenants, Buyer would not have entered into
this Agreement, that the consideration paid by Buyer bears no relationship to the damages Buyer may suffer in the event of
any breach of any of the covenants of Section 5.1(a) or Section 5.1(b), and that such covenants contain
limitations as to time, geographical area and/or scope of activity to be restrained which are reasonable and necessary to
protect Buyer’s business interests. If this Section 5.1 shall nevertheless for any reason be held to be
excessively broad as to time, duration, geographical scope, activity or subject, it shall be enforceable to the extent
compatible with applicable laws that shall then apply. The Company hereby further acknowledges that money damages will be
impossible to calculate and may not adequately compensate Buyer in connection with an actual or threatened breach by him of
the provisions of this Section 5.1. Accordingly, the Company hereby expressly waives all rights to raise the adequacy
of Buyer’s remedies at law as a defense if Buyer seeks to enforce by injunction or other equitable relief the due and
proper performance and observance of the provisions of this Section 5.1. In addition, the Company hereby agrees that
Buyer shall be entitled to injunctive relief in respect of the actual or threatened breach of the provisions of this Section
5.1, and hereby waives any requirement that Buyer shall be required to post a bond in connection therewith. Buyer shall
also be entitled to pursue any other available remedies at law or equity, including the recovery of money damages, in respect
of the actual or threatened breach of the provisions of this Section 5.1.


 


(d)
The Company hereby expressly waives any right to assert inadequacy of consideration as a defense to enforcement of the
non-competition and confidentiality covenants in this Section 5.1 should such enforcement ever become
necessary.


 


ARTICLE
VI

SPECIAL COVENANTS AND AGREEMENTS


 


6.1 Taxes,
Fees and Expenses. Except as otherwise provided in this Agreement, all sales, excise, use, transfer, value-added and
similar taxes, fees or duties, if any, assessed or incurred by reason of the transfer of the Assigned Assets pursuant to
this Agreement shall be paid by the Company, regardless of the party against which such taxes, fees or duties are assessed.
Buyer hereby waives compliance by the Company with the provisions of all applicable state bulk sales laws, and the Company
warrants and agrees to pay and discharge when due all claims of creditors which could be asserted against Buyer by reason of
such noncompliance to the extent that such liabilities arise before or as a result of the Closing, and agrees to protect,
defend, save harmless and indemnify Buyer from and against any and all such claims and demands pursuant to the procedures set
forth in Article VIII of this Agreement. Except as otherwise provided in this Agreement, Buyer shall pay any expenses
incurred by it in connection with the authorization, preparation, execution and performance of this Agreement, and the
Company shall pay any expenses incurred by the Company in connection with the authorization, preparation, execution and
performance of this Agreement, in each case, including all fees and expenses of counsel, accountants, agents and other
representatives.


 


6.2 Publicity.
From and after the date hereof, except as otherwise required by law (including the rules and regulations of the
Securities and Exchange Commission) or the rules of a national securities exchange upon which the equity of a party is then
being traded, no party hereto shall make any announcement, issue any press release or disseminate information to the press or
any third party regarding this Agreement or the transactions contemplated by this Agreement without the prior written consent
of the Company and the Buyer. For the avoidance of doubt, Buyer may file with the Securities and Exchange Commission
such Current Reports on Form 8-K as may be necessary or appropriate disclosing this Agreement, the Related Documents and
the transactions contemplated hereby and thereby.


 






    	 	23	 



    	 



    

 


6.3 Cooperation.
Buyer and the Company shall cooperate fully with each other and their respective counsel and accountants in connection with
any actions required or advisable to be taken as a part of their respective obligations under this Agreement, including but
not limited to the obtaining of Consents and all regulatory approvals, as well as the matters relating to the
Transition Period as set forth in Section 2.3. In connection therewith, Buyer and the Company shall take such actions, and
shall execute and deliver to any other party such further documents as, in the opinion of counsel for such other party, may
be reasonably necessary or advisable to ensure, complete and evidence the consummation of the transactions contemplated by
this Agreement, including the assignment of the Prestalia NDA.


 


6.4 Litigation
Support. In the event and for so long as Buyer or the Company actively is contesting or defending against any action,
suit, proceeding, hearing, investigation, charge, complaint, claim, or demand in connection with (i) any transaction
contemplated under this Agreement, or (ii) any fact, situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing Date involving the Company,
the Company will cooperate in the contest or defense, make itself and its personnel available, and provide such testimony and
access to its books and records as shall be necessary in connection with the contest or defense, all at the sole cost and
expense of the contesting or defending party.


 


ARTICLE
VII

CLOSING AND CLOSING DELIVERIES


 


7.1 Closing.
The Closing shall take place on the date of this Agreement, or such other time, place and date as may be mutually agreed upon
by the parties hereto. The Closing shall be held at the offices of Buyer’s counsel or such other place as shall be
mutually agreed upon by Buyer and the Company. The date of the Closing is sometimes herein referred to as the
“Closing Date”. By mutual agreement of the parties, the Closing may be alternatively accomplished by
facsimile transmission to the respective offices of legal counsel for the parties of the requisite documents, duly executed
where required, with originals to be delivered by overnight courier service on the next business day following the
Closing.


 


7.2 Deliveries
by the Company. Subject to the terms and conditions of this Agreement, in reliance on the representations, warranties and
agreements of the Buyer contained in this Agreement, and in consideration of the Purchase Price, the Company agrees to
deliver, or cause to be delivered, to the Buyer on or prior to the Closing Date, the following, in form and substance
reasonably satisfactory to Buyer and its counsel:


 




    	 	24	 



    	 



    


 


(a) Transfer
of Assigned Assets. Any assignments, transfer powers or other transfer documents reasonably satisfactory to Buyer and its
counsel to reflect the transfer of the Assigned Assets from the Company to Buyer;


 


(b) Consents.
The original of each Consent listed on Schedule 3.10 attached hereto;


 


(c) Regulatory Approvals. Evidence of the receipt of all authorizations, approvals, Orders and Licenses to be issued by any
Governmental Authority as may be necessary, appropriate or advisable to consummate the transactions contemplated by this Agreement
and to permit Buyer to operate the Business after the Closing in the manner in which it was operated immediately prior to the
Closing, as requested by Buyer;


 


(d) Good
Standing. A certificate of Good Standing of the Company issued by the secretary of state of the state of formation of the
Company, and each foreign jurisdiction in which the Company is qualified or licensed to do business, each dated within five
(5) days prior to the Closing Date;


 


(e) Employment
Agreement. An employment agreement between Erik Emerson and the Company, in substantially the form attached hereto as Exhibit
A, pursuant to which Mr. Emerson shall become the Chief Commercial Officer of the Company, duly executed by Mr. Emerson
(the “Employment Agreement”);


 


(f) Resolutions.
The resolutions of the Company’s managers and members authorizing and approving the execution, delivery and performance
of this Agreement and the other Related Documents, certified by an authorized officer of the Company;


 


(g) Bill
of Sale; Assignment and Assumption Agreement. An executed copy of Assignment and Assumption Agreement substantially in
the form attached hereto as Exhibit C (the “Assignment and Assumption Agreement”), and an
executed Bill of Sale substantially in the form attached hereto as Exhibit D;


 


(h) IP
Assignment Agreement. A duly executed assignment necessary to evidence the transfer to the Buyer of the
Intellectual Property included in the Assigned Assets in substantially the form attached hereto as Exhibit E (the
“IP Assignment Agreement”); and


 


(i) Other.
Duly executed copies of all other deeds, endorsements, assignments, consents and instruments as, in the opinion of
Buyer’s counsel, are reasonably necessary to transfer the Assigned Assets and carry out the transactions
contemplated by this Agreement.


 


7.3 Deliveries
by Buyer. Subject to the terms and conditions of this Agreement, in reliance on the representations, warranties and
agreements of the Company contained in this Agreement, and in consideration of the Assigned Assets, the Buyer agrees to
deliver, or cause to be delivered, to the Company on or prior to the Closing Date, the following, in form and substance
reasonably satisfactory to the Company and its counsel:


 




    	 	25	 



    	 



    

 


(a) Purchase
Price. The Purchase Price, in accordance with Section 2.2;


 


(b) Employment
Agreement. The Employment Agreement duly executed by Buyer;


 


(c) IP
Assignment Agreement. The IP Assignment Agreement duly executed by Buyer;


 


(d) Assignment
and Assumption Agreement. The Assignment and Assumption Agreement duly executed by Buyer; and


 


(e) Other.
Duly executed copies of all other instruments and documents as, in the reasonable opinion of the Company’s counsel, are
reasonably necessary to carry out the transactions contemplated by this Agreement.


 


ARTICLE
VIII

INDEMNIFICATION


 


8.1 Survival.
All representations and warranties contained in this Agreement or in any Related Document shall be deemed to be material and
to have been relied upon by the parties hereto, and shall survive the Closing and shall be fully effective and enforceable
for a period of eighteen (18) months following the Closing Date (unless a different period is specifically assigned thereto
in this Agreement), but shall thereafter be of no further force or effect, except as they relate to claims for
indemnification timely made pursuant to this Article VIII; provided, however, that the representations
and warranties contained in Section 3.6 (“Licenses”), Section 3.14
(“Employees”), Section 3.16 (“ERISA”), Section 3.17
(“Taxes”), Section 3.21 (“Assets and Title”), Section 3.23
(“Environmental Claims”) and Section 3.29 (“FDA Matters”) shall survive until 90
days after the expiration of the applicable statute of limitations period; and provided, further, that the
representations and warranties contained in Section 3.1 (“No Violation”), Section 3.2
(“Due Organization”), Section 3.3 (“Authorization”) and Section 3.10
(“Consents”) shall survive indefinitely. Any claim for indemnification asserted in writing before the
eighteen (18) month anniversary of the Closing Date or the other applicable survival period set forth in this Section
8.1 shall survive until resolved or judicially determined. No investigation by Buyer prior to the Closing Date shall
relieve the Company from any liability for any misrepresentation, misleading statement or omission made in this Agreement or
in connection with the transactions contemplated hereby. Covenants and agreements required to be performed after the Closing
shall survive the Closing and shall expire in accordance with their terms.


 


8.2 Indemnification.


 


(a) Indemnification
by the Company Subject to the limitations and the provisions set forth in this Agreement, the Company shall
indemnify, reimburse and hold harmless Buyer and its Affiliates from and against any and all loss, damage (but excluding
any consequential, special or punitive damages unless awarded to a third party in connection with a third Party Claim),
expense (including court costs, amounts paid in settlement, interest, penalties, judgments, reasonable attorneys’ fees
or other expenses for investigating and defending), suit, action, claim, liability or obligation
(collectively, “Damages”) related to, caused by or arising from: (i) any breach of any representation or
warranty contained herein or in any Related Document by the Company, or any allegations by third parties that, if true, would
entitle Buyer and its Affiliates to indemnity under this Section 8.2(a)(i); (ii) any breach or nonfulfillment of any covenant
or agreement contained in or made pursuant to this Agreement or any Related Document by the Company, or any allegations by
third parties that, if true, would entitle Buyer and its Affiliates to indemnity under this Section 8.2(a)(ii); (iii) the
Excluded Liabilities and any liabilities arising from the Excluded Assets; (iv) any liabilities of the Company or any of
its Affiliates arising after the Closing Date; (v) any third party or Governmental Authority claims arising in breach
of contract, breach of warranty, product liability, unfair competition, personal or other injury, tort or infringement
of property rights of others, Taxes, employee matters or other third party or Governmental Authority claims, in each
case which claim is with respect to any and all activities of the Company or any Affiliate thereof in connection with the
conduct of the Business on or before the Closing Date (or before or after the Closing Date with respect to any and all
activities of the Company or any Affiliate thereof in connection with the conduct of the Retained Business); and (vi) any and
all actions, suits, proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable legal fees
and expenses, in enforcing this indemnity against the Company.


 



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(b) Indemnification
by Buyer. Subject to the limitations and provisions set forth in this Agreement, Buyer shall indemnify, reimburse and
hold harmless the Company against any Damages related to, caused by or arising from: (i) any breach of any representation or
warranty contained herein or in any Related Document by Buyer, or any allegations by third parties that, if true, would
entitle the Company to indemnity under this Section 8.2(b)(i); (ii) any breach or nonfulfillment of any covenant or agreement
contained in or made pursuant to this Agreement or any Related Document by Buyer, or any allegations by third parties that,
if true, would entitle the Company to indemnity under this Section 8.2(b)(ii); and (iii) any and all actions, suits,
proceedings, claims, demands, assessments, judgments, costs and expenses, including reasonable legal fees and expenses, in
enforcing this indemnity against Buyer.


 


(c) Damage
Calculation. For purposes of calculating the amount of Damages subject to indemnification, it is understood and agreed
between the parties hereto that to determine if there has been an inaccuracy or breach of a representation or warranty which
is qualified as to materiality or “Material Adverse Effect” by the party making such representation
or warranty or contains an exception for matters that would not have a material adverse effect, then such representation or
warranty shall be read as if it were not so qualified or contained no such exception.


 


8.3 Notice
of Claims. Any party seeking indemnification shall give prompt written notice to the indemnifying party of the facts
and circumstances giving rise to the claim (the “Notice”) for which such indemnified party intends to
assert a right to indemnification under this Agreement (“Claims”). Failure to give Notice shall not
relieve any indemnifying party of any obligations which the indemnifying party may have to the indemnified party under this Article
VIII, except to the extent that such failure has prejudiced the indemnifying party under the provisions
for indemnification contained in this Agreement. The indemnifying party shall reimburse an indemnified party promptly
after delivery of a Notice certifying that the indemnified party has incurred Damages after compliance with the terms of this Article
VIII; provided, however, the party receiving the Notice shall have the option to contest any such Damages or
its obligations to indemnify therefor in accordance with the terms of this Agreement, at such party’s own cost and
expense. Such option shall be exercised by the giving of notice by the exercising party to the other party within 20 days of
receipt of a Notice. If the parties do not agree upon the amount of Damages, the party seeking indemnification may seek
appropriate legal remedy in accordance with this Agreement.


 






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8.4 Limitations
on Indemnification Obligation. The maximum liability of the Company to Buyer, and of Buyer to the Company, for all Claims
and Damages shall be $300,000 (the “Cap”). Notwithstanding the foregoing, the Cap shall not apply: (i) in
the event of fraud or willful misrepresentation by the indemnifying party; or (ii) to indemnification obligations for Damages
in connection with (x) a breach of the representations and warranties contained in Sections 3.1
(“No Violation”), 3.2 (“Due Organization”), 3.3
(“Authorization”), 3.6 (“Licenses”), 3.10
(“Consents”), 3.14 (“Employees”), 3.16 (“ERISA”), 3.17
(“Taxes”), 3.21 (“Assets and Title”), 3.23 (“Environmental
Claims”) and Section 3.29 (“FDA Matters”); (y) the indemnification obligations set forth
in clauses (ii)–(vi) and (x)–(y) of Section 8.2(a); and (z) the indemnification obligations set forth in
items (ii)–(iii) of Section 8.2(b).


 


8.5 Assumption
and Defense of Third-Party Action. If any Claim by Buyer hereunder arises out of a claim by a third party or Governmental
Authority (a “Third-Party Claim”), the Company shall have the right, at its own expense, to participate in
or assume control of the defense of the Third-Party Claim, with counsel reasonably satisfactory to Buyer, and to settle
or compromise any such Third-Party Claim; provided, however, that such settlement or compromise shall be effected only with
the consent of Buyer, which consent shall not be unreasonably withheld. Buyer shall have the right to employ counsel to
represent it if, in Buyer’s reasonable judgment, it is advisable for it to be represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall be paid by Buyer; provided, that if representation by the
Company’s counsel would present a conflict of interest, then the Company shall reimburse Buyer for the fees and
expenses of such separate counsel if a court of competent jurisdiction determines that a conflict of interest existed. Buyer
shall have the right to control the defense of any Third-Party Claim, notwithstanding the Company’s election to control
the defense, if it notifies the Company that it is assuming the defense of such Claim, whereupon the Company shall be
relieved of its obligations under this Article VIII with respect to such Third-Party Claim. If the Company does not
elect to assume control of the defense of any Third-Party Claim, the Company shall be bound by the results obtained by Buyer
with respect to such Third-Party Claim. The Company agrees to render such assistance as may reasonably be requested in order
to insure the proper and adequate defense of any Third-Party Claim. It is expressly agreed and understood that any defense by
the Company of any Third-Party Claims affecting or involving the Business shall not be conducted in a manner which adversely
affects or impairs the value or usefulness of the Business or the Assigned Assets.


 


8.6 Remedies
not Exclusive. The remedies provided herein shall be cumulative and shall not preclude the assertion by any party hereto
of any other rights or the seeking of any other remedies, whether at law or in equity, against any other party
hereto.


 






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ARTICLE
IX


MISCELLANEOUS


 


9.1 Notices.
Any notices or other communications required or permitted under, or otherwise given in connection with, this Agreement shall
be in writing and shall be deemed to have been duly given (i) when delivered or sent if delivered in person or sent by
facsimile transmission (provided confirmation of facsimile transmission is obtained), (ii) on the fifth (5th)
business day after dispatch by registered or certified mail, (iii) on the next business day if transmitted by national
overnight courier or (iv) on the date delivered if sent by email (provided confirmation of email receipt is obtained), in
each case if addressed as set forth on Schedule A attached hereto, or to any such other or additional persons and
addresses as the parties may from time to time designate in a writing delivered in accordance with this Section
9.1.


 


9.2 Benefit
and Binding Effect. Neither Buyer nor the Company may assign this Agreement without the prior written consent of the
other party; provided, however, that Buyer may assign this Agreement without the prior written consent of
the Company to any entity that controls, is controlled by or is under common control with Buyer. In addition, the Company
shall not enter into, or consummate, any agreement that would result in a “change of control” of the Company
prior to the end of the Transition Period, which transaction shall be deemed to occur if the Company sells all or
substantially all of its remaining assets following the Closing or if the holders of a majority of the outstanding voting
securities of the Company immediately prior to such transaction no longer hold a majority of the outstanding voting
securities of the Company immediately following such transaction. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted assigns. Except as specifically set forth or
referred to herein, nothing herein expressed or implied is intended or shall be construed to confer upon or give to any
Person other than the parties hereto and their respective successors or assigns any rights or remedies under or by reason of
this Agreement.


 


9.3 Headings.
The headings herein are included for ease of reference only and shall not control or affect the meaning or construction of
the provisions of this Agreement.


 


9.4 Gender
and Number. Words used herein, regardless of the gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine or neuter, and any other number, singular or plural, as the context
requires.


 


9.5 Counterparts.
This Agreement may be signed in any number of counterparts with the same effect as if the signature on each such counterpart
were upon the same instrument.


 


9.6 Entire
Agreement. This Agreement, all Schedules and Exhibits hereto and all documents, writings, instruments and certificates
delivered or to be delivered by the parties pursuant hereto collectively represent the sole and entire understanding and
agreement between Buyer and the Company with respect to the subject matter hereof. All Schedules and Exhibits attached to
this Agreement shall be deemed part of this Agreement and incorporated herein, as if fully set forth herein. This Agreement
supersedes all prior negotiations and understandings between Buyer and the Company whatsoever with respect to the subject
matter hereof, and all letters of intent and other writings relating to such negotiations and understandings.


 






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9.7 Amendment.
This Agreement shall not be amended, supplemented or modified except by an agreement in writing which makes specific
reference to this Agreement or an agreement delivered pursuant hereto, as the case may be, and which is signed by the party
against which enforcement of any such amendment, supplement or modification is sought.


 


9.8 Severability.
If in any jurisdiction any provision of this Agreement or its application to any party or circumstance is held by a court to
be restricted, prohibited or held unenforceable, such provision shall, as to such jurisdiction, be ineffective only to the
extent of the restriction, prohibition or unenforceability without invalidating the remaining provisions hereof and without
affecting the validity or enforceability of such provision in any other jurisdiction or its application to other parties or
circumstances. In addition, if any one or more of the provisions contained in this Agreement shall for any reason in any
jurisdiction be held by a court to be excessively broad as to time, duration, geographical scope, activity or subject, it
shall be construed, by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law of
such jurisdiction as it shall then appear.


 


9.9 Governing
Law; Consent to Jurisdiction and Venue This Agreement shall be governed by and construed and enforced in accordance with
the internal, substantive laws of the State of New York, as to all matters, including, but not limited to, matters of
validity, construction, effect, performance and liability, without consideration of conflicts of laws provisions contained
therein. Each of the parties hereto hereby irrevocably and unconditionally submits to the exclusive jurisdiction and venue of
any New York State or Federal court sitting in the Southern District of New York, in any action or proceeding arising out of
or relating to this Agreement, any Related Document or any transaction contemplated hereby or thereby. Each of Buyer and the
Company hereby irrevocably waives, to the fullest extent they may effectively do so, the defense of an inconvenient forum to
the maintenance of such action or proceeding. Each of Buyer and the Company also irrevocably and unconditionally consent to
the service of any and all process in any such action or proceeding by the mailing of copies of such process by certified
mail to such party and its counsel at their respective addresses specified in Section 9.1.


 


9.10 Further
Assurances and Consents. From time to time after the Closing Date, without further consideration, the Company shall use
reasonable efforts, to cooperate with Buyer to obtain any necessary third party consents or approvals to the assignment
to the Buyer of any Contracts included in the Assigned Assets or used or useful in the Business.


 


[Remainder
of page intentionally left blank; signature page follows]


 




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This
Agreement has been executed by the Buyer and the Company as of the date first above written.


 


	 	BUYER:
	 	 	 
	 	MARINA
    BIOTECH, INC.
	 	 	 
	 	By:	/s/
    Vuong Trieu
	 	Name: 	Vuong Trieu
	 	Title:	Chairman


 


	 	THE
    COMPANY:
	 	 	                                
	 	SYMPLMED
    PHARMACEUTICALS, LLC
	 	 	 
	 	By:	/s/ Erik Emerson
	 	Name: 	Erik Emerson
	 	Title:	President & CEO