PRELIMINARY, GOOD FAITH ESTIMATE OF IBIS
NET SALES FOR SUCH CALENDAR QUARTER.
ALL AMOUNTS INCLUDED IN IBIS NET SALES
SHALL BE IN UNITED STATES FUNDS COLLECTIBLE AT PAR IN CHICAGO, ILLINOIS.
WITH
RESPECT TO PRODUCT OR SERVICE REVENUES, [***], OR [***] THAT ARE USED IN THE
CALCULATION OF IBIS NET SALES AND ARE IN MONIES OTHER THAN UNITED STATES
DOLLARS, THE AMOUNT TO BE USED WILL FIRST BE DETERMINED IN THE FOREIGN CURRENCY
OF THE COUNTRY FOR SUCH MONIES AND THEN CONVERTED INTO EQUIVALENT UNITED STATES
(2) The Transaction Value from the Option Notice to be inserted here.
14
funds using the same conversion methodology that Abbott uses to prepare its
financial statements filed with the SEC.
(E)
NOTWITHSTANDING THE FOREGOING, SECTIONS 2.3(A) THROUGH 2.3(C),
(I) THE EARNOUT AMOUNTS DESCRIBED IN SECTIONS 2.3(A) AND 2.3(B) WILL BE PAYABLE
ONLY ON CUMULATIVE IBIS NET SALES IN EXCESS OF THE EARNOUT THRESHOLD, (II) NO
SUCH EARNOUT AMOUNTS WILL BE PAYABLE IN ANY CALENDAR YEAR IN WHICH TOTAL IBIS
NET SALES IN SUCH CALENDAR YEAR WERE LESS THAN OR EQUAL TO $[***] MILLION,
(III) IN ANY CALENDAR YEAR IN WHICH IBIS NET SALES EXCEED $[***] MILLION AND
CUMULATIVE IBIS NET SALES EXCEED THE EARNOUT THRESHOLD, THE EARNOUT AMOUNTS
DESCRIBED IN SECTIONS 2.3(A) AND
2.3(B) WILL BE PAYABLE WITH RESPECT TO ALL
IBIS NET SALES IN SUCH CALENDAR YEAR WHICH ARE IN EXCESS OF THE EARNOUT
THRESHOLD AND (IV) ALL IBIS NET SALES, REGARDLESS OF WHETHER EARNOUT AMOUNTS ARE
PAYABLE THEREON, WILL BE INCLUDED IN CUMULATIVE IBIS NET SALES FOR PURPOSES OF
DETERMINING THE APPLICABLE EARNOUT RATE.
FOR EXAMPLE, IF IBIS NET SALES IN EACH
OF THE CALENDAR YEARS 1 AND 3 ARE EQUAL TO $[***] MILLION AND IBIS NET SALES IN
EACH OF THE CALENDAR YEARS 2 AND 4 ARE EQUAL TO $[***] MILLION, NO EARNOUT
AMOUNTS WOULD BE PAYABLE IN CALENDAR YEARS 1 THROUGH 3, BUT EARNOUT AMOUNTS
WOULD BE PAYABLE WITH RESPECT TO THE ENTIRE $[***] MILLION IN IBIS NET SALES IN
CALENDAR YEAR 4.
THE EARNOUT AMOUNTS PAYABLE BY IBIS TO ISIS PURSUANT TO THIS
SECTION 2.3 ARE REFERRED TO HEREIN AS THE "EARNOUT PAYMENTS."
(F)
IBIS SHALL MAINTAIN ITS BOOKS AND RECORDS USED TO DETERMINE IBIS
NET SALES, [***], AND [***] FOR A PERIOD OF THREE (3) YEARS FROM THE DATE OF THE
EARNOUT PAYMENT TO WHICH THEY PERTAIN.
IBIS SHALL MAKE SUCH BOOKS AND RECORDS
AVAILABLE FOR INSPECTION BY THIRD PARTY REPRESENTATIVES OF ISIS APPROVED IN
WRITING (WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR
DELAYED) ONCE PER CALENDAR YEAR AT REASONABLE TIMES AND UPON REASONABLE WRITTEN
ADVANCE NOTICE FROM ISIS.
ALL INFORMATION CONTAINED IN THESE BOOKS AND RECORDS
SHALL BE CONFIDENTIAL INFORMATION AND WILL BE USED ONLY FOR THE PURPOSE OF
DETERMINING THE ACCURACY OF IBIS' CALCULATION OF ANY EARNOUT PAYMENT.
(G)
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT, EXCEPT WITH RESPECT TO ANY [***] ARISING AS A RESULT OF OR
IN CONNECTION WITH A BREACH OF THE REPRESENTATIONS AND