Exhibit
10.24


 


TRANSITIONAL
SERVICES AGREEMENT


 


THIS TRANSITIONAL SERVICES
AGREEMENT (this Agreement),
dated as of March 28, 2007, by and between Linde Gas Inc., a Delaware
corporation (Linde) and INO Therapeutics
LLC, a Delaware limited liability company (the Service
Recipient and together with Linde, the Parties).


 


W I T N E S S E T H


 


WHEREAS, as of February 22,
2007, Linde, Linde AG, Ikaria Holdings, Inc., Ikaria Acquisition Inc., and
Ikaria, Inc., entered into that certain Sale and Purchase Agreement (the SPA) providing for (among other
things) the sale of 100% of the equity interests of the Service Recipient from
Linde to Ikaria Acquisition Inc.; and


 


WHEREAS, pursuant to
the SPA, as of the Closing Date (as defined therein), the Parties have agreed
that Linde shall provide the Services to the Service Recipient on the terms and
subject to the conditions of this Agreement.


 


NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto, intending to be legally bound, hereby
agree as follows:


 


1.                                      DEFINITIONS AND INTERPRETATION


 


1.1                               Definitions


 


As used herein, the
following terms have the following meanings:


 


Affiliate means, with
respect to any Person, any other Person that controls, is controlled by or is
under common control with such first Person (and for this purpose, the term control means the power to direct
the management and policies of such Person (directly or indirectly), whether
through ownership of voting securities, by contract or otherwise).


 


Agreement has the
meaning set forth in the preamble.


 


Closing Date the meaning
set forth in the recitals.


 


Linde has the
meaning set forth in the preamble.


 


Parties has the
meaning set forth in the preamble.


 


Person means any
individual or any corporation, limited liability company, partnership, trust,
association or other entity of any kind.


 


Service Charge means the
service charge for each of the Services set forth on Exhibit A.


 


Service Provider means Linde or
an Affiliate of Linde.


 


Service Recipient has the
meaning set forth in the preamble.


 


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Services means the
services set forth on Exhibit A and such additional services as the
Parties hereto shall mutually agree from time to time (which other services
shall, upon such agreement, be Services
hereunder).


 


SPA has the
meaning set forth in the recitals.


 


1.2                               Interpretation


 


For purposes of this
Agreement:


 


(a)                                  the definitions
of terms herein shall apply equally to the singular and plural forms of the
terms defined;


 


(b)                                 any pronoun
shall include the corresponding masculine, feminine and neuter forms to the
extent applicable;


 


(c)                                  the words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without
limitation”;


 


(d)                                 the word “will”
shall be construed to have the same meaning and effect as the word “shall”;


 


(e)                                  any definition
of or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified, subject to any
applicable restrictions on amendment, supplement or modification;


 


(f)                                    any reference
herein to any person, or to any person in a specified capacity, shall be
construed to include such person’s successors and permitted assigns;


 


(g)                                 all references
in this Agreement to designated “Sections” and “Exhibits” are to the designated
Sections of, and Exhibits to, this Agreement; and


 


(h)                                 the words “herein”,
“hereof, “hereunder” and other words of similar import refer to this Agreement
as a whole and not to any particular Section, clause or other subdivision.


 


2.                                      SERVICES


 


Linde hereby agrees that it
will provide or will cause any other Service Provider to provide the Services
to the Service Recipient.


 


3.                                      SERVICE CHARGES AND BENEFIT CHARGES


 


3.1                               Service Charges


 


In consideration for
providing the Services hereunder, the Service Recipient shall pay Linde a
Service Charge for each of the Services as specified in Exhibit A.  Except as contemplated by Section 3.2(d) and
(e) below, Service Recipient shall pay the Service Charges, by check or
wire 


 


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transfer, not later than the
end of the next full calendar month following the Service Recipient’s receipt
of any invoice relating to the Services.


 


3.2                               Benefit Charges


 


In addition to the payment
of the Service Charges contemplated by Section 3.1, the Service Recipient
shall pay the Service Provider the benefit charges as specified in Exhibit B.  With respect to these benefit charges listed
in Exhibit B, the Parties agree and acknowledge that:


 


(a)                                  all wages and
employer paid payroll taxes, including FICA and federal and state unemployment,
will be calculated by ADP and actual costs paid by the Service Recipient;


 


(b)                                 all transition
systems, benefit plans and processes will be provided under the existing Linde
group structure, except for the Linde 401(k) Plan, which will not be
available to the Service Recipient or its employees;


 


(c)                                  the services
for benefits and payroll are linked and cannot be provided individually;


 


(d)                                 payment for the
benefit charges is due within 15 days from the end of each calendar month; and


 


(e)                                  payment for
payroll, payroll taxes, benefit charges, and accounts payable payments made to
employees of the Service Recipient shall be charged directly to a separate bank
account of the Service Recipient for immediate payment as incurred.


 


3.3                               Acknowledgement
by Service Recipient


 


By its execution hereby, the
Service Recipient acknowledges and agrees that all Services provided hereunder
are provided only in respect of the existing configuration and reporting
structure, and all Service Charges are based on providing services to the
Service Recipient only.  The Service
Recipient further acknowledges and agrees that providing Services to more than
one Person would require administrative and other costs, fees and expenses in
addition to those taken into account in the Service Charges, and shall only be
provided with the consent of the Service Provider (in its sole discretion), and
in such case, on service charges in addition to the Service Charges.


 


4.                                      TERM AND TERMINATION


 


This Agreement shall be
effective as of the date hereof and, with respect to each of the Services,
shall continue for the respective terms as specified in Exhibit A,
unless the Parties mutually agree, in accordance with the terms of this
Agreement, to extend such period or to terminate such Services.  This Agreement shall terminate automatically
at the moment the term of each of the Services specified in Exhibit A
has ended in accordance with the terms hereof and all charges as contemplated
by Sections 3.1 and 3.2 have been satisfied in full.  Termination of this Agreement shall not
relieve any Party from liability for breach of any of its representations,
warranties, covenants or agreements set forth herein to the extent that the act
or omission giving rise to such liability occurs on or prior to such
termination.  All amounts due or owing
under this Agreement shall be paid in full within 20 business days after the
date of termination.  No Party shall be 


 


3

















 


liable for any costs, losses,
or incidental, consequential or other special damages incurred by any other
Party as a result of termination of this Agreement.


 


5.                                      INDEPENDENT CONTRACTORS


 


For the purposes of the
transactions contemplated by this Agreement, including, without limitation, any
of the Service Providers providing Services to the Service Recipient, the
Parties agree that they are contractors independent of one another, and that
there is no actual or implied agency between any of the Parties.


 


6.                                      MISCELLANEOUS


 


6.1                               Assignment


 


This Agreement and the
rights and obligations hereunder shall not be assignable or transferable by any
Party without the prior written consent of the other Parties hereto.  Any attempted assignment in violation of this
Section 6.1 shall be null and void and of no effect.


 


6.2                               No Third-Party
Beneficiaries


 


This Agreement is for the
sole and exclusive benefit of the Parties and their successors and permitted
assigns, and nothing herein expressed or implied shall give, or be construed to
give, to any Person, other than the Parties and such successors and permitted
assigns, any legal or equitable right, remedies or claims under or with respect
to this Agreement or any provisions hereof.


 


6.3                               Notices


 


(a)                                  All notices,
consents, waivers, and other communications required or permitted under this
Agreement must be in writing and will be deemed to have been duly given when (a) delivered
by hand to the Party to be notified, (b) when sent by facsimile if sent
during the normal business hours of the Party to be notified, if not, then on
the next business day or (c) when received by the Party to be notified, if
sent by an internationally recognized overnight delivery service, in each case
to the appropriate addresses and facsimile numbers set forth below (or to such
other addresses and facsimile numbers as a Party may designate by notice to the
other Parties from time to time).  All
such notices and other communications shall be sent:


 


(i)                                     if to Linde or
any other Service Provider:


 


	
  Linde
  AG

  Leopoldstrasse
  252

  D-80807
  Munich, Germany

  Attention:
  Juergen Nowicki, Head of

  Finance &
  Control

  Facsimile:
  +49 89 35 757-1505

  	
   

  	
  The
  BOC Group, Inc.

  575
  Mountain Avenue

  Murray
  Hill, New Jersey 07974

  Attention:
  Bob Wowk, Head of

  Finance &
  Control North America

  Facsimile:  +1 908 464-2234

  



 


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with copies (which shall
not constitute notice) to:


 


	
  Freshfields
  Bruckhaus Deringer, LLP

  520
  Madison Avenue, 34th Floor

  New
  York, NY 10022

  United
  States of America

  Attention:  Matthew F. Herman, Esq.

  Facsimile:  +1 212-277-4001

  	
   

  	
  The
  BOC Group, Inc.

  575
  Mountain Avenue

  Murray
  Hill, New Jersey 07974

  Attention:
  General Counsel

  Facsimile:  +1 908 464-2234

  



 


(ii)           if to the
Service Recipient:


 


INO Therapeutics LLC

6 Route 173

Clinton, NJ 08809

Attention: Chief Financial Officer

Facsimile: +1 908-238-6699


 


with a copy (which shall not
constitute notice) to:


 


Fried, Frank, Harris, Shriver &
Jacobson LLP

One New York Plaza

New York, NY 10004


	
  Attention:

  	
  Aviva Diamant, Esq.

  
	
   

  	
  Angelique Mamby, Esq.

  
	
  Facsimile: +1 212-859-4000

  



 


(b)                                 Either Party
may change the address to which notice is to be given to such Party by giving a
notice to each other Party in writing stating that such newly designated
address shall be such Party’s address for purpose of all notices or other
communications required or permitted to be given pursuant to this Agreement.


 


6.4                               Counterpart
Execution and Facsimile Delivery


 


This Agreement may be
executed in any number of counterparts, all of which shall be considered one
and the same agreement, and shall become effective when one or more such
counterparts have been signed by each of the Parties and delivered to the other
Parties.  Any such counterpart may be
delivered by a Party by facsimile.


 


6.5                               Entire
Agreement


 


This Agreement contains the
entire agreement and understanding among the Parties with respect to the
subject matter hereof and supersede all prior agreements and understandings
relating to such subject matter.  None of
the Parties shall be liable or bound to any other Party in any manner by any
representations, warranties or covenants relating to such subject matter except
as specifically set forth herein.


 


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6.6                               Severability


 


If any provision of this
Agreement (or any portion thereof) or the application of any such provision (or
any portion thereof) to any Person or circumstance shall be held invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof (or the remaining portion thereof) or the application of such
provision to any other Persons or circumstances.


 


6.7                               Specific
Performance


 


Each Party acknowledges and
agrees that, in addition to any other remedies that may be available to it,
each Party shall be entitled to enforce the terms of this Agreement by a decree
of specific performance, and each Party hereby waives, and agrees that it will
not raise, any defense to such an action for specific performance of the terms
of this Agreement based on any obligation of the other Parties to mitigate
damages or based upon the other Parties having an adequate remedy at law or a
breach of this Agreement not giving rise to irreparable harm.


 


6.8                               Consent to
Jurisdiction


 


Each Party irrevocably
submits to the exclusive jurisdiction of (a) the Supreme Court of the
State of New York, New York County, and (b) the United States District
Court for the Southern District of New York, for the purposes of any suit,
action or other proceeding arising out of this Agreement or any transaction
contemplated hereby.  Each Party agrees
to commence any such action, suit or proceeding either in the United States
District Court for the Southern District of New York or if such suit, action or
other proceeding may not be brought in such court for jurisdictional reasons,
in the Supreme Court of the State of New York, New York County.  Each Party further agrees that service of any
process, summons, notice or document by U.S. registered mail to such Party’s
respective address set forth in Section 6.3 above shall be effective
service of process for any action, suit or proceeding in New York with respect
to any matters to which it has submitted to jurisdiction in this Section 6.8.  Each Party irrevocably and unconditionally
waives any objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement or the transactions contemplated hereby in (i) the
Supreme Court of the State of New York, New York County, or (ii) the
United States District Court for the Southern District of New York, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.


 


6.9                               Governing Law


 


This Agreement shall be
construed in accordance with, and this Agreement and all matters arising out of
or relating in any way whatsoever (whether in contract, tort or otherwise) to
this Agreement shall be governed by, the law of the State of New York.


 


6.10                        Waiver of Jury
Trial


 


EACH PARTY HEREBY WAIVES
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, 


 


6

















 


UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.  EACH PARTY (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.10.


 


6.11                        Amendments and
Waivers


 


This Agreement may not be
amended or modified except by an instrument in writing signed on behalf of
Linde and the Service Recipient.  Linde
may waive compliance by the Service Recipient, and the Service Recipient may
waive compliance by Linde, with any term or provision of this Agreement that
such other Party was or is obligated to comply with or perform, by an
instrument in writing signed by Linde or the Service Recipient, as the case may
be, specifically setting forth such waiver.


 


[SIGNATURE PAGE FOLLOWS]


 


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IN WITNESS WHEREOF, the Parties
hereto have executed this Agreement as of the date first written above.


 


LINDE
GAS INC.:


 


 


	
  By:

  	
  /s/
  Pat Murphy (JPB)

  	
   

  
	
  Name:
  Pat Murphy

  	
   

  
	
  Title:
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  INO THERAPEUTICS LLC:

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Dennis L. Smith

  	
   

  
	
  Name:
  Dennis L. Smith

  	
   

  
	
  Title:
  President & CEO

  	
   

  



 

















 


EXHIBIT A


 


THE SERVICES; SERVICE CHARGES


 


Information Technology


 


	
  Service:

  	
  Service
  Provider shall provide Service Recipient the following Services:

  
	
   

  	
   

  
	
  (A)

  	
  Data
  center operations services for SAP accounting and HR functions. Services
  provided shall cover use of SAP hardware and systems software, backups and
  restores, environmental systems (facilities, electrical, UPS, back-up power
  generators, and HVAC). In the event of an outage or disaster SAP Accounting
  and HR systems will be restored using commercially reasonable efforts; and

  
	
   

  	
   

  
	
  (B)

  	
  Provide
  telephone help desk support for end-users of Lotus Notes and SAP Accounting
  and HR functions.

  
	
   

  	
   

  
	
  Term:

  	
  180
  calendar days from the Closing Date.

  
	
   

  	
   

  
	
  Service
  Charge:

  	
  Monthly
  charge for services and equipment usage is $9,100.

  



 


General Ledger Accounting


 


	
  Service:

  	
  Service
  Provider shall provide Service Recipient the following Services:

  
	
   

  	
   

  
	
  (A)

  	
  Perform
  monthly closing activities to produce trial balance for final review by the Service
  Recipient;

  
	
   

  	
   

  
	
  (B)

  	
  Perform
  account reconciliations, analyses, journal entries, payroll accounting, and
  chart of accounts maintenance;

  
	
   

  	
   

  
	
  (C)

  	
  Maintain
  fixed-asset sub-ledgers and reconciliations on capital expenditures
  transacted; and

  
	
   

  	
   

  
	
  (D)

  	
  Enable
  and grant to INO online, real-time access to the accounting systems and
  financial statements.

  
	
   

  	
   

  
	
  Term:

  	
  30
  calendar days from the Closing Date.

  
	
   

  	
   

  
	
  Service
  Charge:

  	
  Monthly
  Service Charge is $10,500.

  



 

















 


Accounts Payable


 


	
  Service:

  	
  Service
  Provider shall provide Service Recipient the following Services:

  
	
   

  	
   

  
	
  (E)

  	
  Vendor
  master maintenance;

  
	
   

  	
   

  
	
  (F)

  	
  Posting
  of invoices; and

  
	
   

  	
   

  
	
  (G)

  	
  Issuing
  payments directly to vendors/employees either by check or electronic means.

  
	
   

  	
   

  
	
  Term:

  	
  30
  calendar days from the Closing Date. With option to extend for further 30
  days, advance notice to be given 15 days after Closing Date.

  
	
   

  	
   

  
	
  Service
  Charge:

  	
  Monthly
  Service Charge is $6,000.

  



 


Tax Reporting (I)


 


	
  Service:

  	
  Service
  Provider shall provide Service Recipient the following Services:

  
	
   

  	
   

  
	
  (A)

  	
  Preparation
  and filing of sales and use tax returns based on information provided by INO;
  and

  
	
   

  	
   

  
	
  (B)

  	
  Preparation
  and filing of property tax returns using SAP fixed asset and trial balance
  data.

  
	
   

  	
   

  
	
  Term:

  	
  60
  calendar days from the Closing Date.

  
	
   

  	
   

  
	
  Service
  Charge:

  	
  Monthly
  Service Charge is $9,500.

  



 


Tax Reporting (II)


 


	
  Service:

  	
  Service
  Provider shall provide Service Recipient consulting services to support
  transfer of tax reporting to outsource providers.

  
	
   

  	
   

  
	
  Term:

  	
  60
  calendar days from the Closing Date.

  
	
   

  	
   

  
	
  Service
  Charge:

  	
  Daily
  fee is $1,000.

  



 

















 


Human Resources and Payroll:


 


	
  Service:

  	
  Service
  Provider shall provide Service Recipient the following Services:

  
	
   

  	
   

  
	
  (C)

  	
  Maintenance
  of HR personnel data within SAP;

  
	
   

  	
   

  
	
  (D)

  	
  Transmission
  of HR data to payroll provider, ADP, for calculation and payment of payroll
  (ADP fees paid directly by the Service Recipient and not included in Service
  Charge described below); and

  
	
   

  	
   

  
	
  (E)

  	
  Administration
  of existing benefits package (it being understood that the existing benefits
  package shall exclude, for the avoidance of doubt, the Linde
  401(k) Plan, which will not be available to the Service Recipient after
  the Closing Date).

  
	
   

  	
   

  
	
  Term:

  	
  120
  calendar days from the Closing Date.

  
	
   

  	
   

  
	
  Service
  Charge:

  	
  Monthly
  Service Charge is $9,500.

  



 

















 


EXHIBIT B


 


BENEFITS CHARGES FROM SERVICE PROVIDER TO SERVICE RECIPIENT


 


(b)                                 Aetna Medical


 


Employees of the Service
Recipient can elect medical coverage through Aetna.  Only employees of the Service Recipient are
included in the plan.  The full cost of
the Aetna coverage will be billed to the Service Recipient.


 


(c)                                  Aetna Long Term
Disability


 


Actual premiums paid to
Aetna for employees of the Service Recipient will be billed to the Service
Recipient.


 


(d)                                 United
Healthcare


 


Linde’s self-insured medical
coverage has been elected by some employees of the Service Recipient.  Monthly actual claims paid and
vendor-supplied administrative services for the entire plan net of all employee
payroll deductions and COBRA contributions are accumulated.  These total costs are divided by the current
number of Linde and the Service Recipient’s active employees in the plan.  The average cost per active employee will be
billed to the Service Recipient for each employee of the Service Recipient in
the plan.


 


The Service Recipient will
be charged each month that current employees are covered by the plan.  The cost for the run out of claims will be
billed to the Service Recipient, i.e., the
Service Recipient will be billed for the Service Recipient’s claims that were
incurred while the Linde coverage was in effect but are paid after the Linde
coverage ends; provided that the Service
Recipient will not be billed under this Agreement for any claims by the Service
Recipient’s employees that were actually incurred prior to the Closing Date and
relating to the period of time prior to the Closing Date but paid after the
Closing to the extent required to be assumed by “Seller” (as defined in the
SPA) pursuant to Section 7.8(a) of the SPA.


 


(e)                                  MetLife Dental
Insurance


 


Linde’s self-insured dental
coverage has been elected by some employees of the Service Recipient.  Monthly actual claims paid and
vendor-supplied administrative services for the entire plan net of all employee
payroll deductions and COBRA contributions are accumulated.  These total costs are divided by the current
number of Linde and the Service Recipient’s active employees in the plan.  The average cost per active employee will be
billed to the Service Recipient for each employee of the Service Recipient in the
plan.


 


The Service Recipient will
be billed each month that current employees are covered by the plan.  The cost for the run out of claims will be
billed to the Service Recipient, i.e., 


 

















 


the Service Recipient will
be billed for the Service Recipient’s claims that were incurred while the Linde
coverage was in effect but are paid after the Linde coverage ends; provided that the Service Recipient will not be billed under
this Agreement for any claims by the Service Recipient’s employees that were
actually incurred prior to the Closing Date and relating to the period of time
prior to the Closing Date but paid after the Closing to the extent required to
be assumed by “Seller” (as defined in the SPA) pursuant to Section 7.8(a) of
the SPA.


 


(f)                                    Met Life Insurance


 


Actual premiums paid to Met
Life for employees of the Service Recipient will be billed to the Service
Recipient.


 


(g)                                 Spectera Vision


 


Actual premiums paid to
Spectera for employees of the Service Recipient will be billed to the Service
Recipient.


 


(h)                                 Flexible
Spending Account


 


Administration costs and
claims will be billed to the Service Recipient.


 


(i)                                     United
Behavioral Health (EAP)


 


Actual premiums paid UBH for
employees of the Service Recipient will be billed to the Service Recipient.


 


(j)                                     Ameriprise 401K


 


This benefit will not be
offered during the transition period.


 


(k)                                  Pension


 


The Linde Pension Plan is
currently frozen.  Linde will be
responsible for any ongoing expenses.