exv10w14











Exhibit 10.14



CONFIDENTIAL TREATMENT REQUESTED


ASSET PURCHASE AGREEMENT




BETWEEN



BAUSCH & LOMB INCORPORATED



AND



ALIMERA SCIENCES, INC.



DATED DECEMBER 20, 2006









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TABLE OF CONTENTS



	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	1.1 Definitions
	 	 	1	 
	1.2 Other Definitions
	 	 	5	 
	1.3 Rules of Construction
	 	 	6	 
	 
	 	 	 	 
	ARTICLE II SALE AND PURCHASE
	 	 	7	 
	 
	 	 	 	 
	2.1 Transfer of Assets
	 	 	7	 
	2.2 Excluded Assets
	 	 	8	 
	2.3 Assumption of Liabilities
	 	 	8	 
	2.4 Excluded Liabilities
	 	 	9	 
	2.5 Consideration
	 	 	10	 
	2.6 Allocation of Consideration
	 	 	10	 
	2.7 Post-Closing Consideration
	 	 	10	 
	 
	 	 	 	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER
	 	 	12	 
	 
	 	 	 	 
	3.1 Organization, Power, Standing and Qualification
	 	 	12	 
	3.2 Power and Authority
	 	 	12	 
	3.3 Validity of Contemplated Transactions
	 	 	12	 
	3.4 Consents
	 	 	12	 
	3.5 Subsidiaries
	 	 	13	 
	3.6 Financial Statements; Undisclosed Liabilities
	 	 	13	 
	3.7 Intentionally Omitted
	 	 	13	 
	3.8 Equipment; Inventory; Sufficiency of Assets
	 	 	13	 
	3.9 Assigned Intellectual Property
	 	 	13	 
	3.10 IP Rights
	 	 	15	 
	3.11 Contracts
	 	 	17	 
	3.12 Restrictions on Purchased Assets
	 	 	17	 
	3.13 Suppliers
	 	 	17	 
	3.14 Litigation; Product Liability
	 	 	17	 
	3.15 Compliance with Laws and Permits
	 	 	18	 
	3.16 Conflicts of Interest
	 	 	18	 
	3.17 Brokers’ or Finders’ Fees
	 	 	18	 
	3.18 Insurance
	 	 	18	 
	3.19 Disclosure
	 	 	18	 
	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER
	 	 	18	 
	 
	 	 	 	 
	4.1 Organization
	 	 	18	 
	4.2 Power and Authority
	 	 	19	 
	4.3 Validity of Contemplated Transactions
	 	 	19	 
	4.4 Consents
	 	 	19	 
	4.5 Brokers’ and Finders’ Fees
	 	 	19	 
	 
	 	 	 	 
	ARTICLE V INTENTIONALLY OMITTED
	 	 	19	 







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	ARTICLE VI OTHER COVENANTS
	 	 	19	 
	 
	 	 	 	 
	6.1 Reasonable Commercial Efforts
	 	 	19	 
	6.2 Laws Affecting Transfer of Permits
	 	 	20	 
	6.3 Public Announcements
	 	 	20	 
	6.4 Confidentiality
	 	 	20	 
	6.5 Transfer Taxes
	 	 	20	 
	6.6 HSR Filing
	 	 	21	 
	6.7 Cooperation Regarding Audits and Litigation
	 	 	21	 
	6.8 Insurance Claims
	 	 	21	 
	6.9 Additional Assurances
	 	 	21	 
	6.10 Covenant Not to Compete
	 	 	22	 
	6.11 Post-Closing Services
	 	 	23	 
	6.12 License of Know-How
	 	 	23	 
	6.13 Good Faith Negotiations Related to Sale of Soothe®
	 	 	23	 
	 
	 	 	 	 
	ARTICLE VII CONDITIONS PRECEDENT TO CLOSING
	 	 	24	 
	 
	 	 	 	 
	7.1 Conditions to Obligation of Buyer to Close
	 	 	24	 
	7.2 Conditions to Obligations of Seller to Close
	 	 	25	 
	 
	 	 	 	 
	ARTICLE VIII THE CLOSING
	 	 	26	 
	 
	 	 	 	 
	8.1 Time and Place
	 	 	26	 
	8.2 Conduct of Closing
	 	 	26	 
	 
	 	 	 	 
	ARTICLE IX SURVIVAL AND INDEMNIFICATION
	 	 	27	 
	 
	 	 	 	 
	9.1 Survival of Representations, Warranties and Covenants
	 	 	27	 
	9.2 Indemnification by Seller
	 	 	27	 
	9.3 Indemnification by Buyer
	 	 	28	 
	9.4 Procedure
	 	 	28	 
	9.5 No Subrogation
	 	 	29	 
	9.6 Sole Remedy
	 	 	29	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	29	 
	 
	 	 	 	 
	10.1 Headings and References
	 	 	29	 
	10.2 Severability
	 	 	30	 
	10.3 Expenses
	 	 	30	 
	10.4 Notices
	 	 	30	 
	10.5 Waiver; Consents
	 	 	31	 
	10.6 Assignment
	 	 	31	 
	10.7 Governing Law
	 	 	31	 
	10.8 Parties in Interest
	 	 	31	 
	10.9 Submission to Jurisdiction
	 	 	31	 
	10.10 Counterparts
	 	 	32	 
	10.11 Entire Agreement; Amendments
	 	 	32	 








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EXHIBITS




	 	 	 

	Exhibit 1.1-A

	 	[*] Assignment, Assumption and Amendment Agreement
	Exhibit 1.1-B

	 	Patent Assignment
	Exhibit 1.1-C

	 	Trademark Assignment
	Exhibit 2.1.4

	 	Assigned Contracts
	Exhibit 2.1.9

	 	Equipment
	Exhibit 2.6

	 	Purchase Price Allocation Schedule (to be provided post-Closing)
	Exhibit 6.11

	 	Post-Closing Services
	Exhibit 6.3-A

	 	Form of Seller Initial Press Release
	Exhibit 6.3-B

	 	Form of Buyer Initial Press Release
	Exhibit 7.1.6

	 	Opinion of Counsel for Seller








 




			
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ASSET PURCHASE AGREEMENT



     This Asset Purchase Agreement, dated as of December 20, 2006, is by and between Alimera
Sciences, Inc., a Delaware corporation (“Seller”) and Bausch & Lomb Incorporated, a New York
corporation (“Buyer”).



RECITALS:




     WHEREAS, Seller is engaged, among other things, in the development, commercialization and sale
of over-the-counter and prescription pharmaceutical products; and



     WHEREAS, Seller desires to sell the Purchased Assets set forth in Section 2.1 to Buyer, and
Buyer desires to purchase the same and to assume the Assumed Liabilities set forth in Section 2.3,
all on the terms and conditions set forth in this Agreement.



     NOW THEREFORE, for 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:



ARTICLE I




DEFINITIONS



     1.1 Definitions. As used in this Agreement, terms defined in the preamble of this
Agreement shall have the meanings set forth therein and the following terms shall have the meanings
set forth below.



     “Action” means any complaint, claim, prosecution, investigation (other than an investigation
that is not known to Seller), indictment, action, suit, arbitration or proceeding by or before any
Governmental Entity or arbitrator.



     “Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with such Person, whether through the ownership
of voting securities, by contract or otherwise.



     “Agreement” means this Asset Purchase Agreement, the Exhibits and Schedules hereto.



     “AlawayTM” means Ketotifen Fumarate (0.025%) Ophthalmic Solution.



     “AlawayTM Plus” means [*] (or other similar vasoconstrictors as permitted under the patents set
forth on Schedule 3.10.1 under the heading AlawayTM Plus) Ophthalmic Solution.



     “AlawayTM Plus Sale” means the transfer or other disposition by Buyer (or reseller, distributor
or other distribution channel thereof) of AlawayTM Plus for value in an arm’s length transaction
with a third party (other than an Affiliate of Buyer).





 




			
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     “Asset Classes” means, collectively, the Assigned Intellectual Property, the Products, the
Assigned Contracts, the Permits, the Assigned Claims, the Inventory, the Access Fee and the
Equipment.



     “Assigned Intellectual Property” means all of Seller’s Intellectual Property and Seller’s IP
Rights inherent in, used in or related to the following: Clinical IP, Patent Rights, Copyrights,
Trademarks, Books and Records, the Products.



     “Clinical IP” means (i) pre-clinical or clinical protocols, data, and findings resulting from
or relating to pre-clinical or clinical trials related to the Products, and (ii) all INDs, NDAs and
other regulatory applications and approvals related thereto.



     “Closing” means the closing of the Transactions.



     “Code” means the Internal Revenue Code of 1986 and all regulations promulgated thereunder, as
the same have from time to time been amended.



     “Collateral Documents” means the Patent Assignment, Trademark Assignment, and [*] Assignment,
Assumption and Amendment Agreement.



     “Default” means the occurrence of any event which of itself or with the giving of notice or
the passage of time or both would constitute an event of default under the applicable agreement,
contract or instrument or would permit the other party thereto to cancel or terminate performance
or seek damages for breach.



     “Dollars” and “$” means dollars of the United States of America.



     “[*]” means [*]



     “[*] Assignment, Assumption and Amendment Agreement” means the Assignment, Assumption and
Amendment Agreement to be executed among Buyer, Seller and [*] on the Closing Date in the form of
Exhibit 1.1-A.



     “FDA” means the United States Food and Drug Administration or any other Governmental Entity
which may regulate or control the sale of cosmetics or drugs, including any of the Products.



     “FDC Act” means the Federal Food, Drug and Cosmetic Act, as amended from time to time, and all
regulations promulgated pursuant thereto.



     “Financial Statements” means Seller’s audited financial statements as of and for its fiscal
year ended December 31, 2005, including the independent auditors report issued thereon.



     “GAAP” means United States generally accepted accounting principles in effect on the date
hereof, applied on a consistent basis.



     “Governmental Entity” means the United States government, the government of any of the states
constituting the United States, any municipality and any other national or provincial or





 




			
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regional government, and all of their respective branches, departments, agencies,
instrumentalities, non appropriated fund activities, subsidiary corporations or other subdivisions.




     “Income Taxes” means any taxes measured, in whole or in part, by net or gross income or
profits together with any interest, penalties or additions to tax.



     “IND” means any Investigational New Drug Application relating to AlawayTM or AlawayTM Plus and
all associated documents to support such applications, as submitted to the FDA, or a similar
application and supporting documents submitted to any other Governmental Entity.



     “Intellectual Property” means any patents, patent applications, inventor’s certificates,
trademarks including words, phrases, symbols, product shapes, logos and the goodwill related
thereto, trademark registrations and applications therefor, trade dress rights, trade names,
service marks and the goodwill related thereto, service mark registrations and applications
therefor, Internet domain names, Internet and world wide web URLs or addresses, copyrights,
copyright registrations and applications therefor, inventions, trade secrets, know-how, customer
lists, supplier lists, proprietary processes and formulae, structures, development tools, designs,
blueprints, specifications, technical drawings (or similar information in electronic format),
software, hardware, source and object code and data applications and licenses and other rights
necessary to use or run such software, programs, code or applications, and all documentation and
media constituting, describing or relating to the foregoing, including manuals, programmers’ notes,
memoranda and records existing anywhere in the world.



     “IP Rights” means all rights of a Person in, to or arising out of the Intellectual Property.



     “Know-How” means all technology, engineering data, trade secrets, technical data,
manufacturing information, pre-clinical and clinical data and any other information or experience
(other than as disclosed in the Patent Rights) related to the Purchased Assets.



     “Laws” means any law, statute, code, ordinance, rule, regulation, order, judgment or decree
promulgated by any Governmental Entity.



     “Lien” means any mortgage, pledge, assessment, security interest, lease, sublease, lien,
charge, adverse or prior claim, levy, charge, easement, rights of way, covenants, restrictions,
rights of first refusal, encroachments, options or encumbrances of any kind, or any defects in
title, conditional sale contract, title retention contract, or other contract to give or to refrain
from giving any of the foregoing; provided, however, that obligations to pay royalties and other
obligations imposed pursuant to the Assigned Contracts in connection with any Intellectual Property
subject to an Inbound Technology Agreement shall not constitute a “Lien.”



     “Litigation Expense” means any reasonable expenses incurred in connection with investigating,
defending or asserting any claim, action, suit or proceeding incident to any matter indemnified
against under this Agreement, including court filing fees, court costs, arbitration fees or costs,
witness fees and fees and disbursements of legal counsel (whether incurred in any action or
proceeding between the parties to this Agreement or between any party to this Agreement and any
third party), investigators, expert witnesses, accountants and other professionals.




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     “Loss” means any loss, obligation, claim, liability, settlement payment, award, judgment,
fine, penalty, interest charge, expense, damage or deficiency or other charge, other than
Litigation Expense.



     “Material Adverse Effect” means a material adverse effect on (a) the condition of the
Purchased Assets or the ability to use, develop, commercialize or sell the Products or (b) the
ability of Seller to perform its obligations under this Agreement; provided, however, that none of
the following shall be deemed (either alone or in combination) to constitute a Material Adverse
Effect: (i) a general deterioration in the economy or in the industry in which Seller operates;
(ii) the outbreak or escalation of hostilities involving the United States or any other country,
the declaration by the United States or any other country of a national emergency or war or the
occurrence of any other calamity or crisis, including an act of terrorism; (iii) the disclosure (as
expressly permitted by this Agreement) of Buyer as, or the fact that Buyer is, the prospective
acquirer of the Purchased Assets; (iv) the announcement whether internal or external (as expressly
permitted by this Agreement) of the pendency of the Transactions; (v) actions taken by Buyer or any
of its Affiliates, officers, directors, employees, agents or advisers; or (vi) compliance with the
terms of, or the taking of any action required or contemplated (and permitted) by this Agreement.



     “NDA” means any New Drug Application relating to any of the Products and all associated
documents to support such applications, as submitted to the FDA, or a similar application and
supporting documents submitted to any other Governmental Entity.



     “Patent Assignment” means the Patent Assignment to be executed by Seller and delivered to
Buyer on the Closing Date in the form of Exhibit 1.1-B.



     “Patent Rights” means all rights of a Person, in, to or arising out of (i) any patents, patent
applications, or inventor’s certificates that claim inventions used in the Products as listed on
Schedule 3.10.1, and (ii) any continuations, continuations in part, divisions, re-examinations,
re-issues, extensions, and improvements of any of the patents or patent applications listed in
Schedule 3.10.1 and any foreign equivalents thereof.



     “Permitted Liens” means any of the following: (a) Liens, if any, arising under the Assigned
Contracts; and (b) covenants, restrictions or other encumbrances of any kind imposed on the
Purchased Assets pursuant to an Inbound Technology Agreement.



     “Person” means and includes an individual, a corporation, a partnership, a limited liability
company, a limited liability partnership, a joint venture, a trust, an unincorporated association,
a Governmental Entity or any other business entity, wherever located or organized.



     “Products” means, collectively all products currently and in the past under development,
developed under, sold under or marketed in conjunction with the names and marks AlawayTM or AlawayTM
Plus (including all variations and derivations of such names and marks) by or on behalf of Seller.



     “Schedule” means the appropriate schedule to this Agreement.



     “Soothe®” means Soothe Emollient (Lubricant) Eye Drops.




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     “Subsidiary” means a Person, more than fifty percent (50%) of the outstanding equity interests
of which are owned, directly or indirectly, by Seller.



     “Taxes” means any taxes, charges, fees, levies or other assessments, including income, excise,
property, sales, gross receipts, employment and franchise taxes imposed by the United States, or
any state, county, local or foreign government or subdivision or agency thereof, and any interest,
penalties or additions attributable thereto.



     “Tax Returns” means all returns, reports, estimates, information returns and statements of any
nature with respect to Taxes.



     “Trademark Assignment” means the Trademark Assignment to be executed by Seller and delivered
to Buyer on the Closing Date in the form of Exhibit 1.1-C.



     “Transactions” means the transactions contemplated by this Agreement.



     1.2 Other Definitions. Each of the following terms is defined in the Section or
Section referred to below:


“Access Fee” as defined in Section 2.1.8.

“Account” as defined in Section 2.5.

“Acquisition Offer” as defined in Section 5.3.

“AlawayTM Plus Purchase Option” as defined in Section 2.7.2.

“AlawayTM Plus Proviso” as defined in Section 2.7.2.

“Assigned Claims” as defined in Section 2.1.6.

“Assigned Contracts” as defined in Section 2.1.4.

“Assumed Liabilities” as defined in Section 2.3.

“Books and Records” as defined in Section 2.1.3.

“Buyer” as defined in the preamble to this Agreement.

“Buyer Fundamental Representations” as defined in Section 9.1.

“Buyer Indemnified Parties” as defined in Section 9.2.

“Cap” as defined in Section 2.7.1.

“Claim” as defined in Section 9.4.

“Closing Consideration” as defined in Section 2.5.

“Closing Date” as defined in Section 8.1.

“Competitive Activity” as defined in Section 6.10.1.

“Confidential Information” as defined in Section 6.4.

“Consideration” as defined in Section 2.7.1.

“Contracts” as defined in Section 3.11.

“Contributors” as defined in Section 3.9.4.

“Copyrights” as defined in Section 3.10.2.

“Disclosure Schedule” as defined in the preamble to Article III.

“Equipment” as defined in Section 2.1.9.

“Excluded Assets” as defined in Section 2.2.

“Excluded Liabilities” as defined in Section 2.4.

“Expiration Date” as defined in Section 9.1.










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“Final Offer” as defined in Section 6.14.

“First Milestone Date” as defined in Section 2.7.2.

“First Milestone Payment” as defined in Section 2.7.2.

“First Option Period” as defined in Section 2.7.2.

“First Sale Notice” as defined in Section 2.7.2.

“HSR Act” as defined in Section 6.6.

“Inbound Technology” as defined in Section 3.9.5.

“Inbound Technology Agreements” as defined in Section 3.9.5.

“Indemnitee” as defined in Section 9.4.

“Indemnitor” as defined in Section 9.4.

“Inventory” as defined in Section 2.1.7.

“Minimum Claim Amount” as defined in Section 9.2.

“Negotiation Period” as defined in Section 6.14.

“Offset Amount” as defined in Section 2.7.1.

“Offset Dispute” as defined in Section 2.7.1.

“Organizational Documents” as defined in Section 3.1.

“Outbound Technology Agreements” as defined in Section 3.9.6.

“Payment Due Date” as defined in Section 2.7.1.

“Post-Closing Consideration” as defined in Section 2.7.1.

“Prepaid Expenses” as defined in Section 2.1.8.

“Purchased Assets” as defined in Section 2.1.

“Purchase Price Allocation Schedule” as defined in Section 2.6.

“Permits” as defined in Section 2.1.5.

“Restrictive Covenants” as defined in Section 6.10.2.

“Retained Claims” as defined in Section 2.4.4.

“Second Milestone Date” as defined in Section 2.7.2.

“Second Option Period” as defined in Section 2.7.2.

“Second Sale Notice” as defined in Section 2.7.2.

“Seller” as defined in the preamble to this Agreement.

“Seller Fundamental Representations” as defined in Section 9.1.

“Seller Indemnified Parties” as defined in Section 9.3.

“Seller Inventory Trademarks” as defined in Section 6.13.

“Soothe® Terms” as defined in Section 6.14.

“Third Party Negotiation Period” as defined in Section 6.14.

“Third Party Sale” as defined in Section 6.14.

“Trademarks” as defined in Section 3.10.2.

“Transfer Taxes” as defined in Section 6.5.




     1.3 Rules of Construction.



          1.3.1 References in this Agreement to any gender shall include references to all genders.
Unless the context otherwise requires, references in the singular include references in the plural
and vice versa. References to a party to this Agreement or to other agreements described herein
means those Persons executing such agreements. The words “include”, “including” or “includes”
shall be deemed to be followed by the phrase “without limitation” or the phrase “but not limited
to” in all places where such words appear in this Agreement. The word “or” shall be deemed to have
the inclusive meaning represented by the phrase “and/or.”








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This Agreement is the joint drafting product of Seller and Buyer and each provision has been
subject to negotiation and agreement and shall not be construed for or against either party as
drafter thereof.




          1.3.2 The phrases “have heretofore been provided” or “has provided” or similar words mean that
one party has delivered or provided access to such information to the other party or to counsel of
such other party.




ARTICLE II




SALE AND PURCHASE



     2.1 Transfer of Assets. Upon and subject to the terms and conditions stated in this
Agreement, and except as provided in Section 2.2 of this Agreement, on the Closing Date, for the
consideration described in Section 2.5 hereof and Buyer’s performance of its other obligations
under this Agreement, Seller hereby sells, assigns, conveys, transfers and delivers to Buyer, and
Buyer hereby acquires from Seller, free and clear of all Liens (other than Permitted Liens), all of
Seller’s right, title and interest in and to the following (the “Purchased Assets”):



          2.1.1 All Assigned Intellectual Property, including all tangible embodiments thereof;
provided, however, that Seller or its Affiliates may retain one copy of any such tangible
embodiments, solely for legal, regulatory, Tax or accounting purposes;




          2.1.2 All Products;




          2.1.3 (a) All books, records or information (including all data and other information stored
on discs, tapes or other media) of Seller in existence on the date hereof and relating exclusively
to any Asset Class, including, any customer lists, customer records, internally prepared production
reports, manuals, promotional materials, or other development plans, documentation (in all media,
including digital formats, as currently exists) created or otherwise developed by or on behalf of
Seller (including by any Contributor), and all copies thereof in Seller’s possession or control and
all other documents and records exclusively relating to any Asset Class, provided, however, that
Seller or its Affiliates may retain one copy of any such Books and Records to the extent required
for legal, regulatory, Tax or accounting purposes, and (b) a copy of all books, records or
information (including all data and other information stored on discs, tapes or other media) of
Seller relating to any Asset Class, including, any customer lists, customer records, internally
prepared production reports, manuals, promotional materials, development plans, documentation (in
all media, including digital formats, as currently exists) created or otherwise developed by or on
behalf of Seller (including by any Contributor), and all other documents and records relating to
any Asset Class to the extent related to or included within the Excluded Assets or Excluded
Liabilities ((a) and (b) are hereinafter collectively referred to as the “Books and Records”);




          2.1.4 All of the rights of Seller in and to the contracts and purchase orders identified in
Exhibit 2.1.4 (collectively, the “Assigned Contracts”);




          2.1.5 All of Seller’s licenses, permits and franchises, approvals, consents, product registrations
or authorizations issued by any Governmental Entity or any third party test





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house, registrar or certification body, relating to the development or use of the Products,
including product registrations or applications and approvals or submissions to the FDA or any
regulatory body of any foreign government (collectively, the “Permits”);




          2.1.6 All of Seller’s claims, causes of action, judgments, and other rights and remedies of
whatever nature arising from infringements of Seller’s IP Rights in or to the Assigned Intellectual
Property and all other claims of Seller arising from any Asset Class, including rights to
recoveries for damages for defective goods or services, insurance and refund claims and similar
assets related to any Asset Class (except to the extent related to Excluded Liabilities)
(collectively, the “Assigned Claims”);




          2.1.7 All goods and materials held for resale or license or being produced on Seller’s behalf
by [*] in connection with any Asset Class or incorporated into or consumed in connection with the
Products, including raw materials, work in process, finished goods, packaging, labels, cartons and
related promotional or advertising material owned or controlled by Seller on the Closing Date,
regardless of where located (collectively, the “Inventory”);




          2.1.8 The benefit of the $90,000 prepaid access fee paid by Seller pursuant to that certain
Supply Agreement, dated July 29, 2004, between Seller and [*] (the “Access Fee”);




          2.1.9 The machinery, equipment, furniture and other personal property set forth on
Exhibit 2.1.9 (collectively, the “Equipment”); and




          2.1.10 All of the goodwill of Seller associated with any Asset Class or the Books and Records.




     2.2 Excluded Assets. The Purchased Assets shall not include the following
(collectively, the “Excluded Assets”):



          2.2.1 All of Seller’s cash and cash equivalents (including marketable securities and short
term investments calculated in accordance with GAAP); and




          2.2.2 The assets and rights of Seller not included within the definition of “Purchased
Assets,” including all of Seller’s right, title and interest in and to Soothe® and any other
products other than the Products; all originals of the Books and Records provided in copy form to
Buyer pursuant to Section 2.1.3(b); all Know-How (subject to the license set forth in Section
6.12); the copies of tangible embodiments of Assigned Intellectual Property or Books or Records to
be retained by Seller pursuant to Sections 2.1.1 and 2.1.3(a), respectively; and all Contracts
other than the Assigned Contracts.




     2.3 Assumption of Liabilities. On the Closing Date, Buyer hereby assumes and agrees
to pay and perform only the following liabilities and obligations (collectively, the “Assumed
Liabilities”):



          2.3.1 The obligations of Seller arising under the Assigned Contracts after the Closing Date,
other than the obligations arising from any breach of an Assigned Contract by Seller on or prior to
the Closing Date or from Seller’s failure to pay any accounts payable






 




			
	*	 	Certain information has been omitted and filed separately with the Commission.
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outstanding under an Assigned Contract as of the Closing Date that are not assumed by Buyer
pursuant to Section 2.3.5;




          2.3.2 All liabilities and obligations of Seller under or in respect of the Permits to the
extent related to the period following the Closing Date;




          2.3.3 All product liability claims involving the Products that are first made after the
Closing Date;




          2.3.4 All warranty claims (other than product liability claims, which are governed by Section
2.3.3) and returns of Products following the Closing Date; and




          2.3.5 All accounts payable and other expenses set forth on Exhibit B to the [*] Assignment,
Assumption and Amendment Agreement.




     2.4 Excluded Liabilities. Notwithstanding any provision of this Agreement to the
contrary, none of the liabilities or obligations of Seller other than the Assumed Liabilities shall
be assumed or are being assumed by Buyer, and Seller shall retain and remain and hereby retains and
remains solely liable for, all of the debts, expenses, contracts, agreements, commitments,
obligations and other liabilities of any nature whatsoever of Seller, the business of Seller or the
Purchased Assets, whether known or unknown, accrued or not accrued, fixed or contingent
(collectively, the “Excluded Liabilities”), including the following:



          2.4.1 Any liability related to any Excluded Assets;




          2.4.2 Except as set forth in Section 2.3.5, any liability arising under the Assigned Contracts
on or prior to the Closing Date or any liability for any breach by Seller or any other Person of
any Assigned Contract prior to the Closing Date or any liability for Seller’s failure to pay any
accounts payable outstanding under the Assigned Contracts on or prior to the Closing Date;




          2.4.3 Any product liability claims involving the Products that were first made on or prior to
the Closing Date;




          2.4.4 Any liability, other than liabilities or obligations pursuant to Section 2.4.3, under
any Action against Seller based, in whole or in part, on events occurring or circumstances existing
on or before the Closing Date (the “Retained Claims”);




          2.4.5 Any liability or obligation related to Seller’s existing or former employees,
consultants or independent contractors;




          2.4.6 Any liability for any Taxes incurred or accruing prior to the Closing Date with respect
to Seller’s business or the Purchased Assets; and




          2.4.7 Any liability for or in respect of any loan, other indebtedness for money borrowed, or
account payable of Seller or any Affiliate of Seller.






 




			
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     2.5 Consideration. In consideration of Seller’s performance of this Agreement and
transfer and delivery of the Purchased Assets to Buyer, Buyer shall (in accordance with the
allocation provided for in Section 2.6) deliver to Seller (i) at Closing, the sum of Thirteen
Million Five Hundred Thousand Dollars ($13,500,000) (the “Closing Consideration”) by wire transfer
to the account which Seller shall specify prior to the Closing Date (the “Account”), in immediately
available funds; and (ii) after Closing, the Post-Closing Consideration as provided in Section 2.7
hereof.



     2.6 Allocation of Consideration. Within sixty (60) days after the Closing Date, Buyer
shall provide to Seller Exhibit 2.6 which shall allocate the Consideration to be paid by Buyer to
Seller at and after the Closing among each class of Purchased Assets (the “Purchase Price
Allocation Schedule”). Each of Seller and Buyer shall prepare its federal, state, local and
foreign Income Tax returns for all current and future tax reporting periods with respect to the
transfer of the Purchased Assets to Buyer in a manner consistent with the Purchase Price Allocation
Schedule. If any Governmental Entity challenges such allocation, the party first receiving notice
of such challenge shall give the other party prompt notice of such challenge, and Seller and Buyer
shall cooperate in good faith in responding to such challenge, in order to preserve the
effectiveness of the Purchase Price Allocation Schedule. Neither Seller nor Buyer shall report the
allocation of the Consideration in a manner inconsistent with the Purchase Price Allocation
Schedule.



     2.7 Post-Closing Consideration.



          2.7.1 First Commercial Sale. Subject to Section 2.7.2, within thirty (30) days after
the first to occur of (a) a Sale of AlawayTM Plus and (b) three (3) months after the FDA’s approval
of the NDA for AlawayTM Plus (“FDA Approval”), Buyer shall deliver to Seller the sum of Eight
Million Dollars ($8,000,000) (the “Post-Closing Consideration” and, together with the Closing
Consideration, the “Consideration”) less amounts, if any, previously paid pursuant to
Section 2.7.2, by wire transfer to the Account (or such other account as specified by Seller prior
to the date the Post-Closing Consideration is due (the “Payment Due Date”)) in immediately
available funds; provided, however, that in the event of an Offset Dispute such Payment Due Date
shall be within ten (10) days of the final resolution of such Offset Dispute. In the event that
amounts are owed to Buyer in connection with any Claims for Losses or Litigation Expenses properly
noticed pursuant to Article IX of this Agreement, Buyer shall have the right (but not the
obligation) to offset the amount of such Claims (the “Offset Amount”) up to a maximum amount of Two
Million Three Hundred Thousand Dollars ($2,300,000) (the “Cap”); provided, however, that within
thirty (30) days following Buyer’s receipt of FDA Approval, or within a reasonable period of time
prior to a Sale of AlawayTM Plus, Buyer has delivered to Seller a reasonably detailed accounting of
the Offset Amount. Seller may object to the Offset Amount (an “Offset Dispute”) by delivering to
Buyer a reasonably detailed written statement describing its objection and its own accounting of
the Offset Amount, if any. If Seller objects to the Offset Amount, the parties shall first attempt
in good faith to resolve such Offset Dispute by mutual agreement. If the parties are unable to
resolve such Offset Dispute within thirty (30) days of any objection by Seller, then either party
may by notice to the other party refer the Offset Dispute to senior management of the parties for
resolution. Within fifteen (15) days after delivery of such notice, representatives of senior
management of each of the parties shall meet and attempt in good faith to resolve the Offset
Dispute by mutual agreement. Should mutual resolution not be obtained at








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such meeting or should no such meeting take place within such fifteen (15) day period, then any
party may commence an action in a court of competent jurisdiction as set forth in Section 10.8.




          2.7.2 Obligation to Develop. Notwithstanding any provision herein, including the
provisions of this Section 2.7.2, Buyer is not obligated to continue development or
commercialization of AlawayTM Plus in the event that Buyer makes a commercially reasonable, good
faith determination to discontinue such development or commercialization. Notwithstanding the
foregoing, if Buyer has not filed an NDA for AlawayTM Plus on or prior to the third (3rd)
anniversary of the Closing Date (the “First Milestone Date”), then within thirty (30) days of the
First Milestone Date Buyer, at its sole option, shall either (a) pay Seller an amount equal to the
difference between Four Million Dollars ($4,000,000) and the Offset Amount (the “First Milestone
Payment”) or (b) notify Seller (the “First Sale Notice”) that it has the right, for a period of
ninety (90) days after receipt of the First Sale Notice (the “First Option Period”), to purchase
from Buyer the right to develop, commercialize and market AlawayTM Plus in exchange for (i)
assumption by Seller of liabilities and obligations that are consistent with the types of
liabilities and obligations included in the Assumed Liabilities which Seller and Buyer shall agree
upon in good faith and (ii) a cash payment of immediately available funds in an amount equal to the
out-of-pocket costs plus the allocated portion of internal costs incurred by Buyer or its
Affiliates in furtherance of the development and commercialization of AlawayTM Plus (the “AlawayTM
Plus Purchase Option”) from the date hereof to the date of the First Sale Notice; provided,
however, such purchase shall not include any rights in and to the trademark Alaway or the goodwill
related thereto and neither Seller nor any Seller Affiliate shall take any action that conflicts
with or impairs Buyer’s right, title, and ownership in and to the Alaway trademark and the goodwill
related thereto, including using, registering, seeking to register or contesting the validity of
Buyer’s Alaway trademark in any jurisdiction and shall not itself use any name, mark or designation
that is confusingly similar to Buyer’s Alaway trademark (the “AlawayTM Plus Proviso”). If Buyer
makes the First Milestone Payment and Buyer has not filed an NDA for AlawayTM Plus on or prior to
the fifth (5th) anniversary of the Closing Date (the “Second Milestone Date”), then within thirty
(30) days of the Second Milestone Date Buyer, at its sole option, shall either (x) pay Seller an
amount equal to the difference between Four Million Dollars ($4,000,000) and any remaining Offset
Amount or (y) notify Seller (the “Second Sale Notice”) that it has the right, for a period of
ninety (90) days after receipt of the Second Sale Notice (the “Second Option Period”), to exercise
the AlawayTM Plus Purchase Option from the date hereof to the date of the Second Sale Notice,
subject to the AlawayTM Plus Proviso. During any First Option Period and Second Option Period,
Buyer shall provide Seller reasonable access to all of the facilities, books and records of Seller
related to AlawayTM Plus, and Buyer shall use commercially reasonable efforts to make Buyer’s
officers, employees (including all technical employees), suppliers, customers, and contract
manufacturers available to Seller as Seller shall from time to time reasonably request.
Notwithstanding the generality of the foregoing, Seller agrees that its communications with Buyer’s
officers, employees (including all technical employees), suppliers, customers, and contract
manufacturers shall be coordinated with Buyer and conducted in a manner so as to interfere as
little as possible with Buyer’s day-to-day business operations. If Buyer provides the First Sale
Notice or the Second Sale Notice and Seller does not consummate the purchase of the right to
develop, commercialize and market AlawayTM Plus during the First Option Period or the Second Option
Period, as applicable, then Buyer shall have no further obligations to Seller under this
Section 2.7.2; provided, however, that Buyer shall








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still be obligated to pay the Post-Closing Consideration to the extent it is required to do so
pursuant to and in accordance with Section 2.7.1.




ARTICLE III




REPRESENTATIONS AND WARRANTIES OF SELLER



     Except as set forth in the Disclosure Schedule setting forth exceptions to a specifically
identified Section contained in this Article III and delivered by Seller to Buyer concurrently with
the execution and delivery of this Agreement (the “Disclosure Schedule”), Seller represents and
warrants to Buyer as follows:



     3.1 Organization, Power, Standing and Qualification. Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the State of Delaware, and has
the requisite corporate power and authority to carry on its business as it is now being conducted
and to own and operate the properties and assets now owned and operated by it. Seller has
delivered to Buyer complete and correct copies of its Certificate of Incorporation and By-laws
(“Organizational Documents”). Seller is duly qualified to do business and in good standing in each
jurisdiction where the conduct of its business or the ownership or operation of its assets requires
such qualification except where failure to be so qualified or in such good standing will not result
in a Material Adverse Effect.



     3.2 Power and Authority. Upon execution and delivery as contemplated herein, this
Agreement will be a valid and binding obligation of Seller, enforceable against it in accordance
with its terms, except as the same may be limited by bankruptcy, insolvency, moratorium,
reorganization or other laws of general applicability relating to or affecting the enforcement of
creditors’ rights and general principles of equity. Seller has the requisite corporate power and
authority to enter into this Agreement and to perform all of its obligations hereunder. The board
of directors of Seller has duly authorized the execution and delivery of this Agreement and the
performance of the Transactions.



     3.3 Validity of Contemplated Transactions. The execution, delivery and performance of
this Agreement by Seller, the execution, delivery and performance by Seller of the Collateral
Documents to which it is a party and the consummation of the Transactions do not and will not
(a) contravene any provision of the Organizational Documents; (b) constitute a breach by Seller of,
or result in a Default by Seller under or cause the acceleration of any payments due from Seller
pursuant to, any agreement, contract, indenture, lease or mortgage to which Seller is a party or by
which any of the Purchased Assets are bound, or violate in any material respect any provision of
any Law or Permit to which the Purchased Assets are subject, except for requirements for consents,
waivers or notices of Persons set forth on Schedule 3.4.



     3.4 Consents. No permit, consent, approval or authorization of, or designation,
declaration or filing with, any Governmental Entity or any other Person on the part of Seller is
required in connection with the execution or delivery by Seller of this Agreement or the
consummation of the Transactions other than (a) those specified in Schedule 3.4 which have not been
obtained or (b) those specified in Schedule 3.4 which have previously been obtained.




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     3.5 Subsidiaries. Seller has no Subsidiaries and has no equity ownership in any other
Person.



     3.6 Financial Statements; Undisclosed Liabilities.



          3.6.1 Financial Statements. Schedule 3.6.1 contains true and complete copies of the
Financial Statements. The Financial Statements have been prepared from the books and records of
Seller as prepared in the ordinary course of business. Except as disclosed in Schedule 3.6, the
Financial Statements have been prepared in accordance with GAAP applied on a consistent basis, and
present fairly, in all material respects, the financial position of Seller for the periods and as
of the dates specified therein and the results of its operations for the periods covered thereby.




          3.6.2 Undisclosed Liabilities. Seller does not have any obligations or liabilities of
any kind (whether accrued, absolute, contingent, unliquidated, inchoate or otherwise, and whether
due or to become due) that are related to the Purchased Assets except (a) liabilities reflected in
the Financial Statements, (b) liabilities expressly disclosed in Schedule 3.6.2 or (c) immaterial
obligations or liabilities that are not Assumed Liabilities and cannot reasonably be expected by
Seller to impact Buyer’s business or the Purchased Assets after the Closing Date.




     3.7 Intentionally Omitted.



     3.8 Equipment; Inventory; Sufficiency of Assets.



          3.8.1 Equipment. Seller has good and marketable title or valid leasehold interests in
and to the Equipment free and clear of all Liens (other than Permitted Liens). The Equipment is in
good operating condition and in a state of reasonable maintenance and repair, ordinary wear and
tear excepted.




          3.8.2 Inventory. Schedule 3.8.2 sets forth the Inventory included within the
Purchased Assets, all of which Inventory is located at [*].




          3.8.3 Sufficiency of Assets. The Purchased Assets, taken together with the licenses
provided for in Section 6.12, constitute all of the tangible and intangible property used by Seller
in its business related to the Products or that would be necessary, to Seller’s knowledge and
subject to FDA approval where required with respect to any Purchased Asset, for Buyer to develop,
commercialize, market or sell the Products to the extent that such development, commercialization,
marketing or sale is conducted in accordance with the Assumed Contracts and Permits and all
applicable Laws, except for Seller’s employees, consultants and other professional service or
product development advisers, insurance policies, cash, general and administrative assets
(including, sales, marketing and finance), interests in real property and other similar assets
(including the Excluded Assets) not being transferred to Buyer pursuant to this Agreement.




     3.9 Assigned Intellectual Property.



          3.9.1 Intentionally Omitted.






 




			
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          3.9.2 Intentionally Omitted.




          3.9.3 Intentionally Omitted.




          3.9.4 Title. Except as set forth on Schedule 3.9.4, Seller owns all right, title and
interest in and to the Purchased Assets or, under the Inbound Technology Agreements is, to Seller’s
knowledge, licensed legally enforceable rights to use the Purchased Assets and to make, have made,
sell, offer to sell, import, license and distribute the Products. There are no Liens (other than
Permitted Liens) on any of the Purchased Assets. Except for portions licensed pursuant to the
Inbound Technology Agreements or rights granted pursuant to the Outbound Technology Agreements, to
Seller’s knowledge, Seller holds valid and enforceable IP Rights in and to all of the Purchased
Assets (including all of the Assigned Intellectual Property). Seller has used good faith in the
prosecution of all patents included in the Purchased Assets and has performed the patent searches
previously provided to Buyer or Buyer’s counsel. Except as set forth in Schedule 3.9.4, Seller did
not use any Person other than past or current employees of, or consultants to, Seller
(“Contributors”) in the development of the Products or the development, invention, creation and
authoring of the Purchased Assets. All Contributors executed valid and binding written agreements
with Seller under which the Contributors agreed to maintain confidentiality and assigned all right,
title and interest in the Products and the Purchased Assets to Seller. None of the Contributors
has any valid claim to ownership, joint ownership, or any other interest in or to any portion of
the Products or the Purchased Assets (including the Assigned Intellectual Property).




          3.9.5 Inbound Technology Agreements. Seller uses certain IP Rights in connection with
the Purchased Assets (“Inbound Technology”) which are licensed to Seller pursuant to written
agreements providing Seller with licenses or other rights to develop, market, distribute, sell,
license, use or otherwise exploit the Inbound Technology to the extent provided in such agreements
(collectively, the “Inbound Technology Agreements”), each of which is identified on Schedule 3.9.5.
Seller has provided to Buyer or to Buyer’s counsel true and complete copies of each such Inbound
Technology Agreement. Seller has not received written notice, and, to Seller’s knowledge it has
not received any other notice, of and, to Seller’s knowledge, there are no circumstances which
would give rise to, any termination, Default, cancellation or breach under, any Inbound Technology
Agreement.




          3.9.6 Outbound Technology Agreements. Seller has not: (a) sold, licensed, transferred
or assigned to, or otherwise provided for the benefit of, any Person, any Assigned Intellectual
Property, (b) granted any Person the right to sublicense any Assigned Intellectual Property to any
other Person, or (c) granted any third party ownership rights in or to any Assigned Intellectual
Property, except pursuant to written agreements (“Outbound Technology Agreements”), each of which
is listed in Schedule 3.9.6. Seller has provided to Buyer or Buyer’s counsel true and complete
copies of each such Outbound Technology Agreement.




          3.9.7 No Claims. (a) Seller has received no written notice, and, to Seller’s
knowledge it has not received any other notice, of any claim, demand, suit or other assertion by
any Person; and (b) except in connection with Inbound Technology Agreements, to Seller’s knowledge,
there are no circumstances which would (or are reasonably likely to) give rise to any claim,
demand, suit or other assertion by any Person other than a party to this Agreement, that








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such Person has superior rights, ownership or shared ownership requiring any payments to any Person
other than as provided in this Agreement, or other interest of any kind or nature in or with
respect to, the Assigned Intellectual Property.




          3.9.8 No Government Funding. Seller has not received funding from any Governmental
Entity or any academic funding which (a) was used in the development of the Assigned Intellectual
Property or the Products; or (b) precludes Buyer from making any desired change to the Assigned
Intellectual Property or the Products or combining them with other technology or exploiting or
marketing them in any manner.




          3.9.9 No Claims Against Contributors. To Seller’s knowledge, no Person has claimed or
has reason to claim that any Contributor, by virtue of its participation in the development of the
Assigned Intellectual Property, has thereby: (a) violated any of the terms or conditions of any
employment, non-competition or non-disclosure agreement; (b) disclosed or utilized any trade secret
or proprietary information or documentation in an unauthorized manner; (c) tortiously interfered
with or breached any agreement; or (d) violated or exceeded the scope of any Law or agreement.




          3.9.10 Protection. Seller has taken reasonable measures to protect the proprietary
rights owned by Seller to the Assigned Intellectual Property. In no instance has the eligibility
of the Assigned Intellectual Property (excluding the portions licensed under the Inbound Technology
Agreements) for protection under applicable Law been forfeited to the public domain for any reason.




          3.9.11 Noninfringement. To Seller’s knowledge, the creation, generation, development,
or use of the Assigned Intellectual Property and the manufacture, marketing, or sale of the
Products do not infringe or misappropriate any IP Right of any Person. Seller has not received
written notice, and, to Seller’s knowledge it has not received any other notice, of and has no
knowledge of any complaint, assertion, threat or allegation that would contradict the foregoing.
For purposes of this Section 3.9.11, knowledge shall not be inferred solely because the claimant
complied with patent marking requirements or statutory copyright notice provisions.




          3.9.12 Judgments and Settlements. The Assigned Intellectual Property and, to Seller’s
knowledge, the right of any third party licensor to the intellectual property licensed pursuant to
the Inbound Technology Agreements, are not subject to any outstanding settlement agreement, order,
ruling, decree, judgment, or stipulation preventing their use by Buyer after the Closing Date.




          3.9.13 Warranties and Warranty Claims. Other than as set forth in the Outbound
Technology Agreements and except for indemnification obligations set forth in certain of the
Assigned Contracts, Seller has not made any written or other binding warranty or representation
with respect to any of the Assigned Intellectual Property, or any product that embodies or utilizes
any of it.




     3.10 IP Rights.



          3.10.1 Patents. Schedule 3.10.1 lists: (a) all patents and patent applications
(United States and foreign) that have been issued or assigned to Seller, and (b) all invention





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disclosure statements prepared by or for Seller, in each case, claiming or disclosing inventions
used in or necessary to use, develop, sell, offer to sell or market the Products. Except as set
forth in Schedule 3.10.1, Seller has provided to Buyer or Buyer’s counsel true and complete copies
of all such patent and patent applications (as amended to date) and has provided to Buyer or
Buyer’s counsel all of Seller’s internal documentation, the prosecution files of patent counsel, a
copy of the file wrapper and any validity opinions and valuations, whether internally or externally
prepared, relating to such patents, applications and invention disclosure statements, and has
provided to Buyer or Buyer’s counsel true and complete copies of all other written documentation
evidencing ownership, prosecution and enforcement (if applicable) of each such item. Neither
Seller nor any Affiliate of Seller owns or has rights to any patent or patent application that will
affect Buyer’s rights in the Assigned Intellectual Property, other than as set forth on
Schedule 3.10.1.




          3.10.2 Copyrights and Trademarks. (a) Schedule 3.10.2 lists all worldwide registered
copyrights owned by Seller that constitute Assigned Intellectual Property used by Seller in respect
of the Purchased Assets (the “Copyrights”), along with information as to Seller’s ownership thereof
or licenses or rights therein and registration thereof. All worldwide trademarks (including words,
phrases, symbols, product shapes or logos), service marks, trademark registrations, trade names and
trade dress, and the goodwill related thereto that constitute Assigned Intellectual Property or are
owned by Seller and used by Seller solely in respect of the Purchased Assets (collectively, the
“Trademarks”) are listed on Schedule 3.10.2 (whether registered, filed or common law), along with
information as to Seller’s ownership thereof and registrations or applications and related
information thereof (including but not limited to any applicable docketing or filing deadline dates
occurring within six (6) months from the date of this Agreement). Seller has filed and used the
Trademarks in good faith and has performed the trademark searches previously provided to Buyer or
Buyer’s counsel. No Trademark filing, registration or application with a Governmental Entity
identified in Schedule 3.10.2 (except as listed therein) has expired or been canceled, and Seller
has not received written notice, and, to Seller’s knowledge it has not received any other notice,
of any third party claim or petition for cancellation or opposition, or any outstanding office
action from the relevant Governmental Entity responsible for trademark filings with respect to any
such registration or application that has not been provided to Buyer or Buyer’s counsel. Except as
listed on Schedule 3.10.2, (i) there are no restrictions on the use of the Copyrights or Trademarks
that would affect Buyer’s use of the Copyrights or Trademarks after the Closing Date, and (ii) to
Seller’s knowledge, no Copyrights and Trademarks are being infringed, violated, misappropriated or
otherwise conflicted with by any Person.




          (b) (i) The Copyrights and Trademarks are valid, in full force and effect, enforceable and
owned exclusively by Seller (except as provided in Schedule 3.10.2), (ii) Seller has the
unencumbered and unrestricted right to use, license and convey ownership and title of all the
Copyrights and Trademarks to Buyer free and clear of all Liens (other than Permitted Liens),
(iii) Seller has not granted to any party the right to use the Copyrights and Trademarks except in
connection with the Assigned Contracts or as set forth on Schedule 3.10.2, (iv) Seller has not
received written notice, and, to Seller’s knowledge it has not received any other notice, of any
claim, demand, suit or other assertion by any Person, and, to Seller’s knowledge, there are no
circumstances which would (or are reasonably likely to) give rise to any claim, demand, suit or
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rights, ownership or shared ownership requiring any payments or transfer of the Copyrights and
Trademarks to any Person other than as provided in this Agreement, or other interest of any kind or
nature in or with respect to, the Copyrights and Trademarks, (v) Seller has taken reasonable
measures to protect the proprietary rights of Seller to the Copyrights and Trademarks and in no
instance has the validity, ownership or eligibility of the Copyrights and the Trademarks for
protection under applicable Law been forfeited to the public domain or any Person for any reason,
and (vi) to Seller’s knowledge, the Copyrights and Trademarks do not infringe or otherwise conflict
with the IP Rights of any Person and Seller has not received written notice, and, to Seller’s
knowledge it has not received any other notice, of and has no knowledge of any complaint,
assertion, threat or conflict that would contradict the foregoing, except as provided in
Schedule 3.10.2.




          3.10.3 Know-How. Seller has used reasonable commercial efforts to safeguard and
protect the confidentiality of the Know-How. Seller has no knowledge of any violation of the
Know-How protection practices and procedures of Seller by any Person or the misappropriation of any
Know-How by any Person. Seller has no knowledge that (a) any of the Know-How is presently invalid
or unprotectable, or (b) any Know-How has become part of the public domain.




     3.11 Contracts. Set forth on Schedule 3.11 is a list of all Assigned Contracts and
written contracts with any Person relating to professional services or product development with
respect to the Purchased Assets (the “Contracts”), true and complete copies of which (and all
amendments and modifications thereof and consent and waivers thereunder) Seller has provided to
Buyer or Buyer’s counsel. There is no Default on the part of Seller, or written notice of or
knowledge of Seller of any Default on the part of any other party, in the performance of any
obligation to be performed or paid under any Contract.



     3.12 Restrictions on Purchased Assets. Except as set forth on Schedule 3.12 and
except for the Inbound Technology Agreements and Outbound Technology Agreements, there is no
agreement to which Seller, with respect to the Purchased Assets, is a party or, to Seller’s
knowledge by which it is otherwise bound, nor any judgment, injunction, order or decree affecting
the Purchased Assets which prohibits or limits the scope of development or marketing of the
Products. Buyer is not and after the Closing Date neither it nor the Purchased Assets shall be
bound by the agreements set forth on Schedule 3.12.



     3.13 Suppliers. Schedule 3.13 lists all of the suppliers with respect to the
Purchased Assets.



     3.14 Litigation; Product Liability.



          3.14.1 Litigation. There are no Actions pending by or against or, to Seller’s
knowledge, threatened, and since the March 10, 2005, there have not been pending any Actions,
against Seller related to the Purchased Assets and since March 10, 2005 there have not been any
such Actions related to the Purchased Assets; and Seller is not subject to, or in Default of, any
outstanding order, writ, injunction, judgment or decree of any Governmental Entity related to the
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          3.14.2 Product Liability. There are no Actions presently pending or, to the knowledge of
Seller, threatened, and since March 10, 2005, there have not been pending any Actions, that are
based on any legal or equitable theory of recovery whatsoever, arising out of any injury to
individuals or property as a result of the ownership, possession or use of, or from any defect or
alleged defect in design, manufacture, materials or workmanship, including any failure to warn or
alleged breach of express or implied warranty, representation or condition relating to, any of the
Products. There has never been any recall conducted with respect to any of the Products.




     3.15 Compliance with Laws and Permits. Seller is in compliance in all material
respects with all Laws applicable to the Purchased Assets. Seller has not received any written
notice, and to Seller’s knowledge it has not received any other notice, of any asserted failure to
comply with such Laws. Seller holds all Permits necessary for the ownership, manufacture, use and
development of the Purchased Assets.



     3.16 Conflicts of Interest. Except as set forth on Schedule 3.16, neither Seller nor,
to its knowledge, any of its directors or Affiliates, is an officer, director, employee or
consultant of, or owns or otherwise controls any Person which is, or is engaged in business as, a
competitor, customer or supplier of the Purchased Assets. Notwithstanding the foregoing, Seller is
making no representation with respect to any actual or potential conflicts of interest of its
directors who represent any of its venture capital investors or any fund, general partner or
management company that such directors represent or in which such funds, general partners or
management companies have an interest.



     3.17 Brokers’ or Finders’ Fees. Seller has not incurred, nor will it incur, directly
or indirectly, any liability for brokers’ or finders’ fees or agents’ commissions or any similar
charges in connection with this Agreement or the Transactions.



     3.18 Insurance. Seller has maintained product liability insurance since March 10,
2005 and, since that date, has neither made nor been entitled to make any claims thereunder.



     3.19 Disclosure. No representation or warranty made by Seller in this Agreement, the
Collateral Documents or the certificates delivered pursuant to Section 8.2.2 (d), (e) and
(f) contains or will contain any untrue statement of a material fact, or omits or will omit to
state a material fact necessary to make the statements or facts contained herein or therein not
misleading in light of the circumstances under which they were furnished.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES OF BUYER



     Buyer represents and warrants to Seller as follows:



     4.1 Organization. Buyer is a corporation duly organized, validly existing and
subsisting under the laws of the State of New York and has the requisite corporate power and
authority to carry on its business as it is now being conducted and to own and operate the
properties and assets owned and operated by it.




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     4.2 Power and Authority. Upon execution and delivery as contemplated herein, this
Agreement will be a valid and binding obligation of Buyer, enforceable against it in accordance
with its terms, except as the same may be limited by bankruptcy, insolvency, moratorium,
reorganization or other laws of general applicability relating to or affecting the enforcement of
creditors’ rights and general principles of equity. Buyer has the requisite corporate power and
authority to enter into this Agreement and to perform all of its obligations hereunder. The board
of directors of Buyer has duly authorized the execution and delivery of this Agreement and the
performance of the Transactions. No approval of the stockholders of Buyer is required with respect
to the consummation of the Transactions.



     4.3 Validity of Contemplated Transactions. The execution, delivery and performance of
this Agreement by Buyer, the execution, delivery and performance by Buyer of the Collateral
Documents to which it is a party and the consummation of the Transactions do not and will not
(a) contravene any provision of the organizational documents of Buyer, or (b) constitute a breach
of, or result in a Default under, or cause the acceleration of any payments pursuant to, any
agreement, contract, indenture, lease or mortgage to which Buyer is a party or by which either
Buyer or its assets is bound, or violate any provision of any applicable Law, permit or license to
which Buyer is subject, where any such breaches, Defaults or violations would materially impair the
ability of Buyer to consummate and perform the Transactions.



     4.4 Consents. No permit, consent, approval or authorization of, or designation,
declaration or filing with, any Governmental Entity or any other Person on the part of Buyer is
required in connection with the execution or delivery by Buyer of this Agreement or required of
Buyer in connection with the consummation of the Transactions other than (a) those which have
previously been obtained, or (b) such permits, consents, approvals, authorizations, designations,
declarations or filings the absence of which, individually or in the aggregate, would not
materially impair the ability of Buyer to consummate the Transactions.



     4.5 Brokers’ and Finders’ Fees. Buyer has not incurred, nor will it incur, directly
or indirectly, any liability for brokerage or finders’ fees or agents’ commissions or any similar
charges in connection with this Agreement or the Transactions.



ARTICLE V




INTENTIONALLY OMITTED



ARTICLE VI




OTHER COVENANTS



     6.1 Reasonable Commercial Efforts. Seller and Buyer will use reasonable commercial
efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things,
necessary, proper or advisable under applicable Laws to consummate and make effective the
Transactions as promptly as practicable.




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     6.2 Laws Affecting Transfer of Permits. Seller shall and, if required, Buyer shall make
any necessary filings with the appropriate Governmental Entities required to transfer the Permits
under applicable Laws.



     6.3 Public Announcements. On or after the Closing Date, Buyer and Seller shall not
(nor shall they permit any of their respective Affiliates to), without prior consultation with the
other party and such other party’s review of and consent to any public announcement concerning the
Transactions, issue any press release or announcement concerning this Agreement or the Transactions
without the consent of the other, except for disclosures required by Law, in which case such press
releases or announcements shall be reviewed and approved by both Buyer and Seller in advance, and
except for announcements as may be reasonably necessary in connection with obtaining the consents
set forth on Schedule 3.4. During such period Seller and Buyer shall, to the extent practicable,
allow the other party reasonable time to review and comment on such release or announcement in
advance of its issuance and to reflect the reasonable and good faith comments of such other party.
The parties intend that the initial announcements (other than announcements as may be reasonably
necessary in connection with obtaining the consents set forth on Schedule 3.4) of the terms of the
Transactions shall be made promptly following the execution of this Agreement in the forms attached
hereto as Exhibits 6.3-A and 6.3-B.



     6.4 Confidentiality. Following the Closing Date, Seller shall, and shall use
commercially reasonable efforts to cause its personnel, agents and consultants (including the
parties to the Contracts set forth on Schedule 3.11 identified with an *) to, hold in strict
confidence, not disclose to any Person without the prior written consent of Buyer, and not use in
any manner whatsoever, any confidential business or technical information remaining in their
possession concerning the Purchased Assets (the “Confidential Information”). In furtherance of the
foregoing, if Seller becomes aware of a breach of any confidentiality obligations by any of its
personnel, agents or consultants (including any party to the Contracts set forth on Schedule 3.11
identified with an *), whether from Buyer or otherwise, Seller shall diligently enforce such
confidentiality obligations, notify Buyer of such breach (if Buyer did not notify Seller) and keep
Buyer informed on a regular basis of the status of its efforts, it being understood that Seller
shall have the right (but not the obligation unless requested by Buyer, in which case Seller shall
have the obligation) to bring suit to enforce the confidentiality obligations or recover damages
for breach of such confidentiality obligation and, if Buyer asks Seller to bring any such suit then
all of the expenses of any such suit shall be borne by Buyer (and Buyer shall have the right to
participate with Seller in such action). Notwithstanding the foregoing, Buyer’s prior written
consent shall not be required with respect to disclosures and uses of Books and Records related to
the Excluded Assets to the extent Confidential Information related to the Purchased Assets is
excluded or redacted therefrom.



     6.5 Transfer Taxes. All excise, sales, use, transfer, stamp, documentary, filing,
recording and other similar taxes or fees which may be imposed or assessed as the result of the
Transactions (“Transfer Taxes”), together with any interest or penalties with respect thereto shall
be paid by Seller at its sole expense. Seller will prepare and file all necessary Tax Returns and
other documentation with respect to such Transfer Taxes when due, at its sole expense, and, if
required by applicable Law, Buyer will (and will cause its Affiliates to) join in the execution of
any such Tax Returns and other documentation. Seller shall promptly provide Buyer with copies




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of such Tax Returns. All Transfer Tax Returns shall be prepared on a basis consistent with the
Purchase Price Allocation Schedule.




     6.6 HSR Filing. Buyer and Seller shall have determined, upon advice of counsel, that
no filing is required pursuant to the Hart-Scott-Rodino Act (“HSR Act”). Buyer and Seller shall
furnish to each other such necessary information and reasonable assistance as the other may
reasonably request in connection with formalizing such determination.



     6.7 Cooperation Regarding Audits and Litigation. Upon reasonable prior written notice
given by Buyer to Seller or Seller to Buyer, as the case may be, each party shall provide the other
with access to such information and employees as either party may reasonably request in connection
with any audits, actions, suits or proceedings relating to the Purchased Assets or the Retained
Claims.



     6.8 Insurance Claims. After the Closing Date, Seller and Buyer shall cooperate with
Seller’s insurers in processing all claims arising with respect to acts, omissions, or occurrences
in connection with or related to the Purchased Assets prior to the Closing Date and shall cooperate
with Buyer’s insurers in processing all claims with respect to acts, omissions, or occurrences in
connection with or related to the Purchased Assets after the Closing Date.



     6.9 Additional Assurances. After the Closing Date, Seller shall and shall cause its
Affiliates to take such additional actions and execute any such additional documents and
instruments as may be reasonably necessary to fully vest Seller’s ownership, rights and privileges
in the Purchased Assets in Buyer. Notwithstanding anything to the contrary contained in this
Agreement, to the extent that the sale, assignment, transfer, conveyance or delivery or attempted
sale, assignment, transfer, conveyance or delivery to Buyer of any Purchased Asset is prohibited by
any applicable Law or would require any Governmental Entity or other third party authorizations,
approvals, consents or waivers and such authorizations, approvals, consents or waivers shall not
have been obtained prior to the Closing and Buyer shall have waived the applicable condition to
Closing with respect to such item(s), this Agreement shall not constitute a sale, assignment,
transfer, conveyance or delivery, or any attempted sale, assignment, transfer, conveyance or
delivery, thereof. Following the Closing, the parties shall use reasonable efforts and shall
cooperate with each other, to obtain promptly such authorizations, approvals, consents or waivers.
Pending such authorization, approval, consent or waiver, the parties shall cooperate with each
other in any reasonable and lawful arrangements designed to provide to Buyer the benefits and
liabilities of use of such Purchased Asset. Once such authorization, approval, consent or waiver
for the sale, assignment, transfer, conveyance or delivery of a Purchased Asset not sold, assigned,
transferred, conveyed or delivered at the Closing is obtained, Seller shall and shall cause its
Affiliates to promptly assign, transfer, convey and deliver, or cause to be assigned, transferred,
conveyed and delivered, such Purchased Asset to Buyer for no additional consideration. To the
extent that any such Purchased Asset cannot be transferred or the full benefits and liabilities of
use of any such Purchased Asset cannot be provided to Buyer following the Closing pursuant to this
Section 6.9, then Buyer and Seller shall enter into such arrangements (including subleasing or
subcontracting if permitted) designed to provide to Buyer the economic and operational equivalent
of obtaining such authorization, approval, consent or waiver and the performance by Buyer of the
obligations thereunder to the extent permitted by Law.




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     6.10 Covenant Not to Compete.



          6.10.1 For a period of three (3) years after the Closing Date, each of Seller and Dan Myers
agree that it will not, and Seller agrees that it will cause its Affiliates not to, alone or with
any other Person, (a) develop, sell, distribute, market or service any over-the-counter
opthamological product similar to (including copyright, trademark or trade dress) or that competes
with or could compete with any of the Products (the “Competitive Activity”), or (b) directly or
indirectly (i) hold or invest in any equity (or debt convertible into equity) of, or (ii) manage,
operate or control, any Person that engages in any Competitive Activity; provided, however, that
each of Seller, such Affiliates and Dan Myers, may directly or indirectly own up to five percent
(5%) of the issued and outstanding securities of any publicly held corporation; and, further
provided, that this Section 6.10.1 shall not apply to or in anyway restrict Seller’s activities
related to or in connection with Soothe®; and, further provided, that this Section 6.10.1 shall not
apply to any third party acquirer of all or substantially all of Seller’s business assets or stock
in an arms’ length transaction.




          6.10.2 In the event Seller, any Seller Affiliate or Dan Myers breaches, or threatens to commit
a breach of, any of the provisions of Section 6.10.1 (the “Restrictive Covenants”), Buyer shall
have the following rights and remedies, which shall be independent of any others and severally
enforceable, and shall be in addition to, and not in lieu of, any other rights and remedies
available to Buyer at law or in equity: (a) the right and remedy to seek to enjoin the breaching
party from violating or threatening to violate the Restrictive Covenants and to have the
Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed
that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to
Buyer and that money damages would not provide an adequate remedy to Buyer; and (b) the right and
remedy to seek to require the breaching party to account for and pay over to Buyer all
compensation, profits, monies, accruals, increments or other benefits derived or received by such
party as the result of any transactions constituting a breach of the Restrictive Covenants.




          6.10.3 Seller acknowledges and agrees that the Restrictive Covenants are reasonable and valid
in geographical and temporal scope and in all other respects. If any court determines that any of
the Restrictive Covenants or any part thereof, are invalid or unenforceable, the remainder of the
Restrictive Covenants shall not thereby be affected and shall be given full effect, without regard
to the invalid portions. If any court determines that any of the Restrictive Covenants, or any
part thereof, are unenforceable because of the duration or geographic scope of such provision, such
court shall have the power to reduce the duration or scope of such provision, as the case may be,
and, in its reduced form, such provision shall then be enforceable.




          6.10.4 The parties hereto intend to and hereby confer jurisdiction to enforce the Restrictive
Covenants upon the courts of any jurisdiction within the geographical scope of such Restrictive
Covenants. If the courts of any one or more of such jurisdictions hold the Restrictive Covenants
unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the
parties hereto that such determination not bar or in any way affect Buyer’s right to the relief
provided above in the courts of any other jurisdiction within the geographical scope of such
Restrictive Covenants, as to breaches of such Restrictive Covenants in such other respective








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jurisdictions, such Restrictive Covenants as they relate to each jurisdiction being, for this
purpose, severable into diverse and independent covenants.




     6.11 Post-Closing Services. Notwithstanding the provisions of Section 6.10 hereof,
from and after the Closing Date, Seller shall, for the benefit of Buyer, perform the services set
forth on Exhibit 6.11 hereto on the terms and conditions and, in the case of the services, for the
further consideration, set forth therein.



     6.12 License of Know-How. Subject to the terms and conditions of this
Agreement, Seller hereby grants to Buyer a non-exclusive, assignable, royalty-free, irrevocable,
worldwide license, with the right to sublicense, to use its proprietary rights in the Know-How
related to the Products to the extent that such Know-How is necessary for Buyer’s research,
development, production, marketing and sale of the Products and for no other purpose. In
connection with the license of Know-How granted pursuant to this Section 6.12, Buyer shall, and
shall use commercially reasonable efforts to cause its personnel and agents to, (a) hold the
Know-How in strict confidence, (b) not disclose the Know-How to any Person without the prior
written consent of Seller, which shall not be unreasonably withheld, and (c) not use the Know-How
in any manner whatsoever, except in each case of (a), (b) and (c) as expressly contemplated or
permitted by the license granted in the first sentence of this Section 6.12.



     6.13 Good Faith Negotiations Related to Sale of Soothe®. Buyer and Seller agree to
negotiate in good faith a separate purchase agreement with respect to a sale of all of Seller’s
right, title and interest in assets and rights related to Soothe® to Buyer for a period commencing
on the Closing Date and concluding on January 17, 2007 (the “Negotiation Period”). During the
Negotiation Period, Seller shall not, directly or indirectly, through its Affiliates, directors,
officers, shareholders, employees, agents, representatives or otherwise, offer for sale or
participate in negotiations, discussions or due diligence reviews, with respect to the sale,
license or other transfer of rights or assets related to Soothe®, directly or indirectly, with any
Person other than Buyer. Unless otherwise agreed to by Buyer and Seller, Buyer and Seller agree
that the definitive purchase agreement, if any, governing a sale of Soothe® to Buyer shall provide
(a) for a purchase price of no more than Seven Million Five Hundred Thousand Dollars ($7,500,000)
in cash to Seller (provided Seller’s net sales of Soothe® during the first seven (7) months of 2007
are not less than Two Million Dollars ($2,000,000)), (b) that Buyer’s obligation to consummate such
purchase of Soothe® shall be contingent on, among other things, (i) there having not been a notice
of or other Action involving negative FDA observations regarding the Soothe® manufacturing
facility, notice of or other action involving product withdrawal or recall with respect to Soothe®,
notice of or other action involving personal injuries associated with Soothe®, and (ii) Seller’s
net sales of Soothe® during the first seven (7) months of 2007 being equal to a mutually agreed
upon dollar amount and (c) for a formula for reducing the purchase price in the event that Seller’s
net sales of Soothe® during the first seven (7) months of 2007 are less than a mutually agreed upon
dollar amount (the “Soothe® Terms”). During the Negotiation Period, Buyer will provide Seller with
reasonable access to the manufacturing facility of Buyer into which Soothe® would be transferred
solely to allow Seller to analyze the feasibility of such transfer, and Buyer shall use
commercially reasonable efforts to make Buyer’s officers, employees (including all technical
employees), suppliers, customers, and contract manufacturers available to Seller for such purpose
as Seller shall from time to time reasonably request. Notwithstanding the generality of the
foregoing, Seller agrees that its communications with




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CONFIDENTIAL TREATMENT REQUESTED

Buyer’s officers, employees (including all technical employees), suppliers, customers, and contract
manufacturers shall be coordinated with Buyer and conducted in a manner so as to interfere as
little as possible with Buyer’s day-to-day business operations. If, at the conclusion of the
Negotiation Period, Buyer and Seller have not reached agreement with respect to a sale of Soothe®
to Buyer, Seller shall submit a final Soothe® offer to Buyer for its consideration (the “Final
Offer”). If Buyer has not accepted the Final Offer within five (5) days following its receipt
thereof, Seller shall have a period of sixty (60) days (the “Third Party Negotiation Period”) to
negotiate the sale of Soothe® to any third party on terms, in the aggregate, no less favorable that
the terms set forth in the Final Offer (a “Third Party Sale”). In the event Seller has not
executed a definitive agreement with respect to a Third Party Sale at the conclusion of the Third
Party Negotiation Period, Buyer and Seller shall repeat the negotiation process described in this
Section 6.14; provided, that the Negotiation Period shall be the fifteen (15) day period commencing
on the date following the conclusion of the Third Party Negotiation Period.




ARTICLE VII




CONDITIONS PRECEDENT TO CLOSING



     7.1 Conditions to Obligation of Buyer to Close. The obligation of Buyer to consummate
the Transactions on the Closing Date shall be subject to the satisfaction or the waiver by Buyer of
the following conditions on or prior to the Closing Date:



          7.1.1 Representations and Warranties; Compliance with Agreement. The representations
and warranties of Seller set forth in this Agreement shall be true and correct in all material
respects (except to the extent that any representation is qualified by its terms with reference to
materiality, in which case such representation shall be true and correct as written) as of the date
of this Agreement and, except for any changes contemplated by this Agreement or representations
that expressly speak as of a certain date, as of the Closing Date as though made on and as of the
Closing Date; Seller shall have performed all covenants and agreements to be performed by it under
this Agreement in all material respects (except to the extent that any covenants are qualified by
its terms with reference to materiality, in which case such covenant shall have been performed as
written) on or prior to the Closing Date; and Seller shall have delivered to Buyer a certificate of
Seller’s chief executive officer or chief financial officer to such effect, dated the Closing Date,
in form and substance reasonably satisfactory to Buyer;




          7.1.2 Government Approvals. All consents or approvals of the Transactions by
Governmental Entities shall have been granted;




          7.1.3 Litigation Affecting Closing. No action, suit or proceeding shall have been
instituted by any Governmental Entity, before a court or Governmental Entity, to restrain or
prevent the consummation of the Transactions or the performance by any of the parties hereto of
their respective obligations under or with respect to this Agreement and no statute shall have been
enacted and there shall be no injunction, restraining order or decree or any nature of any court or
governmental agency or body in effect which restrains or prohibits the consummation of the
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          7.1.4 Required Consents. Except as expressly indicated on Schedule 3.4 as not being a
consent required by Buyer on the Closing Date, the consents set forth on Schedule 3.4 shall have
been obtained on terms that do not, without Buyer’s consent, modify any Assigned Contract in a
manner that would impose an obligation on Buyer after the Closing Date other than those set forth
in any such Assigned Contract on the date of this Agreement;




          7.1.5 No Material Adverse Effect. There shall not have been any occurrence or event
which, individually or in the aggregate, (i) has resulted in or which Seller reasonably expects
will result in any Material Adverse Effect and Seller shall have delivered to Buyer a certificate
of its chief executive officer to such effect, dated the Closing Date, or (ii) Buyer reasonably
expects will result in any Material Adverse Effect;




          7.1.6 Opinion of Counsel for Seller. Outside counsel for Seller shall have delivered
to Buyer its opinion, dated the Closing Date, in the form of Exhibit 7.1.6;




          7.1.7 Collateral Documents. Seller shall have executed and delivered to Buyer the
Collateral Documents to which it is a party; and




          7.1.8 Other Documents. Seller shall have delivered to Buyer such other documents and
instruments as Buyer or its counsel may reasonably request in good faith to effect the transfer of
the Purchased Assets pursuant to this Agreement.




     7.2 Conditions to Obligations of Seller to Close. The obligation of Seller to
consummate the Transactions on the Closing Date shall be subject to the satisfaction or the waiver
by Seller of the following conditions on or prior to the Closing Date:



          7.2.1 Representations and Warranties; Compliance with Agreement. The representations
and warranties of Buyer set forth in this Agreement shall be true and correct in all material
respects (except to the extent that any representation is qualified by its terms with reference to
materiality, in which case such representation shall be true and correct as written) as of the date
of this Agreement and, except for any changes contemplated by this Agreement or representations
that expressly speak as of a certain date, as of the Closing Date as though made on and as of the
Closing Date; Buyer shall have performed all covenants and agreements to be performed by them under
this Agreement in all material respects (except to the extent that any covenants are qualified by
its terms with reference to materiality, in which case such covenant shall have been performed as
written) on or prior to the Closing Date; and Buyer shall have delivered to Seller a certificate of
an authorized officer of Buyer to such effect, dated the Closing Date, in form and substance
reasonably satisfactory to Seller;




          7.2.2 Litigation Affecting Closing. No action, suit or proceeding shall have been
instituted by any Governmental Entity, before a court or Governmental Entity, to restrain or
prevent the consummation of the Transactions or the performance by any of the parties hereto of
their respective obligations under or with respect to this Agreement and no statute shall have been
enacted and there shall be no injunction, restraining order or decree or any nature of any court or
governmental agency or body in effect which restrains or prohibits the consummation of the
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          7.2.3 Collateral Documents; Consents. Buyer shall have executed and delivered to Seller the
Collateral Documents to which it is a party; and




          7.2.4 Other Documents. Buyer shall have delivered to Seller such other documents and
instruments as Seller or its counsel may reasonably request in good faith connection with the
assumption of the Purchased Assets and the Assumed Liabilities.




ARTICLE VIII




THE CLOSING



     8.1 Time and Place. The Closing shall be held on the date of execution of this
Agreement (the “Closing Date”) at the offices of Nixon Peabody LLP, Rochester, New York.



     8.2 Conduct of Closing.



          8.2.1 As to Buyer. At the Closing, Buyer shall, in exchange for the Purchased Assets,
deliver to Seller, in each case duly executed by Buyer:




               (a) The Closing Consideration;



               (b) The certificate required by Section 7.2.1;



               (c) A certificate dated the Closing Date and signed on behalf of Buyer by its respective
Secretary or Assistant Secretary attaching (i) a certificate issued by the Secretary of State of
New York as of a date within fifteen (15) business days of the Closing Date evidencing that Buyer
is a subsisting corporation, and (ii) specimen signatures of the incumbent officers of Buyer
executing this Agreement, the Collateral Documents and the certificates being delivered pursuant to
this Agreement;



               (d) The Collateral Documents to which Buyer is a party; and



               (e) Such other documents and instruments as Seller or its counsel may reasonably request
pursuant to Section 7.2.5.



          8.2.2 As to Seller. Seller shall deliver or shall cause to be delivered to Buyer, in
each case duly executed by Seller:




               (a) The Collateral Documents to which Seller is a party;



               (b) The Purchased Assets;



               (c) The certificate required by Section 7.1.1;



               (d) The certificate required by Section 7.1.5;



               (e) A certificate dated the Closing Date and signed on behalf of Seller, by its Secretary or
Assistant Secretary, attaching (i) a certificate of good standing from the Secretary of State of
the State of Delaware dated as of a date within fifteen (15) business days of




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the Closing Date, (ii) a copy of the resolutions of the Board of Directors of Seller authorizing
and approving this Agreement and the Collateral Documents to which it is a party and the
consummation of the Transactions and authorizing the officers of Seller to take any actions and to
execute all documents and instruments to be executed, delivered or filed by it pursuant to or in
connection with this Agreement, and (iii) specimen signatures of the incumbent officers of Seller
executing any documents executed and delivered pursuant to or in connection with this Agreement;




               (f) The opinion of counsel specified in Section 7.1.6; and



               (g) Such other documents and instruments as Buyer or its counsel may reasonably request
pursuant to Section 7.1.8.



ARTICLE IX




SURVIVAL AND INDEMNIFICATION



     9.1 Survival of Representations, Warranties and Covenants. The representations and
warranties of the parties contained in this Agreement shall, notwithstanding any investigation by
or notice by or to any party prior to the Closing Date, survive the Closing until eighteen (18)
months following the Closing Date; provided, however, that the representations and warranties
contained in Sections 3.1, 3.2, 3.3, 3.4, 3.17, 3.8.3, and 3.9.4 (the “Seller Fundamental
Representations”) shall survive until the expiration of all statutes of limitations applicable
thereto, the representations and warranties of Seller contained in Sections 3.9.11 and 3.10.2 shall
survive the Closing until February 28, 2009, and the representations and warranties of Buyer
contained in Sections 4.1, 4.2, 4.3, 4.4 and 4.5 (the “Buyer Fundamental Representations”) shall
survive until the expiration of all statutes of limitations applicable thereto. In the event
notice of any Claim for indemnification under Section 9.4 shall have been given prior to midnight
on the last day of the applicable survival period (the “Expiration Date”), the representations and
warranties that are the subject of such Claim shall survive until the Claim is finally resolved.
The covenants and agreements of the parties contained in this Agreement shall survive until fully
performed.



     9.2 Indemnification by Seller. From and after the Closing Date, Seller shall
indemnify and hold harmless Buyer and its Affiliates, and each of their respective employees,
directors, agents and representatives (collectively, the “Buyer Indemnified Parties”), on an
after-tax basis, from and against any and all Loss and Litigation Expense, which they, or any of
them, may suffer or incur as a result of or arising from any of the following: (a) any
misrepresentation or breach of warranty of Seller, (b) the failure of Seller to perform any of its
covenants or agreements contained in this Agreement, (c) the failure by Seller to satisfy any
liability or obligation which is an Excluded Liability, (d) the failure of Seller or its Affiliates
to pay any Transfer Taxes which Seller is required to pay pursuant to Section 6.5 or any other
costs or expenses which are the responsibility of Seller, or (e) the failure of any of Seller’s
personnel, agents or consultants (including a party to the Contracts set forth on Schedule 3.11
identified with an *) to hold in strict confidence, not disclose to any Person without the prior
written consent of Buyer, or not use in any manner whatsoever, any Confidential Information;
provided, however, that Seller shall not be required to indemnify and hold harmless the Buyer
Indemnified




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Parties pursuant to Section 9.2(a) with respect to any Loss and Litigation Expense incurred by the
Buyer Indemnified Parties until the amount of Loss and Litigation Expense suffered by the Buyer
Indemnified Parties related to each individual Claim exceeds Twenty Thousand Dollars ($20,000) (the
“Minimum Claim Amount”); provided, further, however, that the aggregate amount that Seller shall be
required to indemnify and hold harmless the Buyer Indemnified Parties pursuant to
Section 9.2(a) with respect to all Loss and Litigation Expense incurred by all Buyer Indemnified
Parties shall not exceed the Cap; provided further, however, that the Cap shall not apply with
respect to any Loss and Litigation Expense resulting from a breach of any Seller Fundamental
Representation (other than 3.8.3) or from fraud or intentional misrepresentation of Seller and the
Minimum Claim Amount shall not apply with respect to any Loss and Litigation Expense resulting from
fraud or intentional misrepresentation of Seller. With respect to Seller’s indemnification
obligation in clause (e) above, notwithstanding anything to the contrary in this Agreement, (i)
Seller shall not be liable to Buyer if Buyer (x) requests Seller to bring an action against
Seller’s personnel, agents or consultants to protect such Confidential Information or recover
damages as contemplated by Section 6.4, and Buyer does not promptly pay all Litigation Expenses
associated with such action (or provide other assurance reasonably acceptable to Seller that such
payment will be made) or (y) does not request Seller to bring such action, and (ii) Seller’s
liability shall not extend to any Litigation Expense incurred by Buyer that is associated with such
action against Seller’s personnel, agents or consultants.




     9.3 Indemnification by Buyer. From and after the Closing Date, Buyer shall indemnify
and hold harmless Seller, its Affiliates and each of their respective employees, directors, agents
and representatives (collectively, the “Seller Indemnified Parties”), on an after-tax basis, from
and against any and all Loss and Litigation Expense which they, or any of them, may suffer or incur
as a result of or arising from any of the following: (a) any misrepresentation or breach of
warranty, (b) the failure of Buyer to perform any of its covenants or agreements contained in this
Agreement, (c) the failure by Buyer to satisfy any liability or obligation which is an Assumed
Liability, or (d) the failure of Buyer or its Affiliates to pay any other costs or expenses which
are the responsibility of Buyer; provided, however, that Buyer shall not be required to indemnify
and hold harmless the Seller Indemnified Parties pursuant to Section 9.3(a) with respect to any
Loss and Litigation Expense incurred by the Seller Indemnified Parties until the amount of Loss and
Litigation Expense suffered by the Seller Indemnified Parties related to each individual Claim
exceeds the Minimum Claim Amount; provided, further, however, that the aggregate amount that Buyer
shall be required to indemnify and hold harmless the Seller Indemnified Parties pursuant to
Section 9.3(a) with respect to all Loss and Litigation Expense incurred by all Seller Indemnified
Parties shall not exceed the Cap; provided further, however, that the Cap shall not apply with
respect to any Loss and Litigation Expense resulting from a breach of any Buyer Fundamental
Representation or from fraud or intentional misrepresentation of Buyer and the Minimum Claim Amount
shall not apply with respect to any Loss and Litigation Expense resulting from fraud or intentional
misrepresentation of Buyer.



     9.4 Procedure. Promptly after acquiring knowledge of any Loss, or any action, suit,
investigation, proceeding, demand, assessment, audit, judgment, or claim (“Claim”) which may result
in a Loss, and prior to the Expiration Date, the Person seeking indemnity under this Article IX
(the “Indemnitee”) shall give written notice thereof to the party from whom indemnification is
sought (the “Indemnitor”). The Indemnitor shall have the right, at its expense,




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to defend, contest or compromise such Claim, through counsel of its choice (unless such Indemnitor
is relieved of its liability hereunder with respect to such Claim and Loss and Litigation Expense
by the Indemnitee) and shall not then be liable for fees or expenses of the Indemnitee’s attorneys
(unless the Indemnitor and Indemnitee are parties to the action and there exists a conflict of
interest between the Indemnitor and the Indemnitee, in which event the Indemnitor will be
responsible for the reasonable fees and expenses of one firm), and the Indemnitee and the
Indemnitor shall provide to each other all necessary and reasonable cooperation in the defense of
all Claims. In the event that the Indemnitor shall undertake to compromise or defend any Claim, it
shall promptly notify the Indemnitee of its intention to do so. If the Indemnitor, after written
notice from Indemnitee, (a) fails within thirty (30) days after receipt of such notice to notify
the Indemnitee (i) of its intent to defend against such Loss or Claim and (ii) that it irrevocably
acknowledge its obligation to indemnify the Indemnitee pursuant to this Agreement for such Loss or
Claim, or (b) after providing such notice fails to defend, contest, or otherwise protect against
such Loss or Claim, or (c) after commencing to defend, contest or otherwise protect against such
Loss or Claim fails to diligently continue to defend, contest or otherwise protect against the
same, then in any such case the Indemnitee shall have the right to defend the same by counsel of
its own choosing, but at the cost and expense of the Indemnitor. If the Indemnitor provides the
Indemnitee with the notice contemplated by this Section 9.4(a)(i) and (ii), then the Indemnitor may
settle or compromise the entry of any judgment (x) which includes the unconditional release by the
Person asserting the Claim and any related claimants of Indemnitee from all liability with respect
to such Claim in form and substance reasonably satisfactory to Indemnitee, and (y) which would not
adversely affect the right of Indemnitee and its Affiliates to own, hold use and operate their
respective assets and businesses.




     9.5 No Subrogation. Subject to Section 2.7.2, if any payment is made by or Claim
asserted against Seller under the terms of this Article IX, none of Seller Indemnified Parties
shall have any rights against the Purchased Assets, whether by reason of contribution,
indemnification or otherwise and shall not take any action against the Purchased Assets with
respect thereto. Except as set forth in Section 2.7.2, any rights which Seller Indemnified Parties
may have, by operation of law or otherwise against the Purchased Assets are, effective on the
Closing Date, hereby expressly and knowingly waived.



     9.6 Sole Remedy. The indemnification provided for in this Article IX shall be the
sole and exclusive remedy of any Buyer Indemnified Party or Seller Indemnified Party, as the case
may be, with respect to any Loss and Litigation Expense for which indemnification is owed pursuant
to this Article IX.



ARTICLE X




MISCELLANEOUS



     10.1 Headings and References. The headings in this Agreement are for convenience of
reference only and shall not affect its interpretation. Any reference in this Agreement to an
Article, Section or Exhibit, unless it clearly refers to another instrument, means the specified
Article, Section or Exhibit of this Agreement and any reference to Schedule means a Schedule to
this Agreement.




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     10.2 Severability. The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or enforceability of
the other provisions hereof. If any provision of this Agreement, or the application thereof to any
Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision
shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid or unenforceable provision and (b) the remainder of this
Agreement and the application of such provision to other persons, entities or circumstances shall
not be affected by such invalidity or unenforceability.



     10.3 Expenses. Regardless of whether the Closing occurs and except as otherwise
expressly provided herein, each of Seller and Buyer shall be responsible for its own expenses and
costs that it incurs with respect to the negotiation, execution, delivery and performance of this
Agreement.



     10.4 Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given to the Person if delivered personally or upon sending a copy thereof by first
class or express mail, postage prepaid, or by documented overnight delivery services, charges
prepaid, to such party’s address:



     If to Buyer, to:


Bausch & Lomb Incorporated

One Bausch & Lomb Place

Rochester, New York 14604-2701

Attention: Vice President Business Development




     With a copy to:


Bausch & Lomb Incorporated

One Bausch & Lomb Place

Rochester, New York 14604-2701

Attention: General Counsel




     and to:


Nixon Peabody LLP

1100 Clinton Square

Rochester, New York 14604-1792

Attention: Lori B. Green, Esq.




     If to Seller to:


Alimera Sciences, Inc.

6120 Windward Parkway, Suite 290

Alpharetta, Georgia 30005

Attention: Dan Myers





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     With a copy to:


Gunderson Dettmer LLP

610 Lincoln Street

Waltham, Massachusetts 02451

Attention: Jay Hachigian, Esq.



or to such other Person or address as any of the foregoing may have designated for that purpose by
notice to the others.




     10.5 Waiver; Consents. The failure by any party to exercise any right under, or to
object to the breach by any other party of any term, provision or condition of, this Agreement
shall not constitute a waiver thereof and shall not preclude such party from thereafter exercising
that or any other right, or from thereafter objecting to that or any prior or subsequent breach of
the same or any other term, provision or condition of the Agreement. Any consent granted pursuant
to this Agreement shall be in writing, executed by the person authorized by the consenting party to
receive notices, and shall be a consent only to the transaction, act or agreement specifically
referred to in the consent and not to other similar transactions, acts or agreements.



     10.6 Assignment. This Agreement shall not be assigned by any party without the prior
written consent of the other party; provided, however, that Buyer may assign this Agreement to any
Affiliate of Buyer but only if Buyer shall remain liable for its obligations hereunder, and Buyer
and Seller may assign this Agreement to any acquirer of all or substantially all of its business
assets or any successor entity upon the occurrence of a merger, consolidation or other
reorganization, in each case provided that the assignee confirms and acknowledges the obligations
of Buyer or Seller, as the case may be, under this Agreement and the Collateral Documents. Any
attempted assignment in contravention with the foregoing shall be void. This Agreement shall be
binding on and inure to the benefit of the parties hereto, their successors and any permitted
assigns.



     10.7 Governing Law. This Agreement, including any dispute or controversy arising out
of or related to this Agreement or the breach thereof, shall be subject to, governed by, and
construed in accordance with, the substantive and procedural laws of the State of New York, without
reference to its principles of conflict of laws.



     10.8 Parties in Interest. This Agreement is binding upon and shall inure to the
benefit of the parties hereto and their successors and permitted assigns. Nothing contained in
this Agreement, express or implied, shall give any other Person any legal or equitable right,
remedy or claim under or with respect to this Agreement or the Transactions except as expressly
provided in Article IX.



     10.9 Submission to Jurisdiction. The parties hereby irrevocably and unconditionally
consent to submit to the exclusive jurisdiction of the federal courts of the United States of
America located in Monroe County, New York for any actions, suits or proceedings arising out of or
relating to this Agreement, the Collateral Documents or the transactions contemplated hereby or
thereby, and the parties agree not to commence any action, suit or proceeding relating




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thereto except in such courts, and further agree that service of any process, summons, notice or
documents by U.S. registered mail shall be effective service of process for any action, suit or
proceeding brought against the parties in any such court. The parties hereby irrevocably and
unconditionally waive any objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement, any Collateral Documents or the transactions contemplated hereby or
thereby, in the federal courts of the United States of America located in Monroe County, New York,
and hereby further irrevocably and unconditionally waive and agree 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.




     10.10 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but such counterparts shall together constitute one and the same
Agreement.



     10.11 Entire Agreement; Amendments. This Agreement and the Collateral Documents
constitute the entire understanding among the parties hereto with respect to the subject matter
contained herein and supersede any prior understandings and agreements among them respecting such
subject matter. This Agreement may be amended, supplemented, and terminated only by a written
instrument duly executed by Seller and Buyer. Each of Buyer and Seller recognizes that the
liability and remedy provisions of this Agreement are material to the Agreement and have been
bargained for and are reflected in the mutual promises and agreements set forth in the Agreement.




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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly
authorized officers on the date first above written.



	 	 	 	 	 
	 	SELLER


ALIMERA SCIENCES, INC.

 	 
	 	By:  	/s/ Dan Myers
 	 
	 	 	Name:  	Dan Myers 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 
	 	BUYER


BAUSCH & LOMB INCORPORATED

 	 
	 	By:  	/s/ Stephen C. McCluski
 	 
	 	 	Name:  	Stephen C. McCluski 	 
	 	 	Title:  	Senior Vice President and Chief

Financial Officer 	 
	 



	 	 	 	 	 
	 	Solely for purposes of Section 6.10:

 	 
	 	/s/ Dan Myers
 	 
	 	Dan Myers 	 
	 	 	 
	 





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Exhibit 1.1-A



[*] Assignment, Assumption and Amendment Agreement



     This Assignment, Assumption and Amendment Agreement (the “Amendment”) is made this
20th day of December, 2006 (the “Effective Date”), by and between Bausch & Lomb
Incorporated, a New York corporation (“B&L”), Alimera Sciences, Inc., a Delaware
corporation (“Alimera”) and [*], a Delaware corporation (“[*]”).



     WHEREAS, Alimera and [*] entered into a certain [*] Supply Agreement, dated June 26, 2006 (the
“Supply Agreement”), a copy of which is attached hereto as Exhibit A;



     WHEREAS, B&L has acquired certain assets of Alimera pursuant to that certain Asset Purchase
Agreement, dated the Effective Date, by and between B&L and Alimera (the “Purchase
Agreement”), and in connection therewith Alimera desires to assign to B&L, and B&L desires to
assume, certain rights and obligations of Alimera pursuant to the Supply Agreement;



     WHEREAS, B&L and [*] desire to amend the Supply Agreement with respect to its term and the
minimum purchase obligations applicable to B&L pursuant to the Supply Agreement; and



     NOW, THEREFORE, in consideration of the mutual promises, benefits and covenants contained
herein, the parties hereby agree as follows:



     1. Assignment, Assumption and Consent. Alimera hereby assigns to B&L all of Alimera’s
rights in, to and under the Supply Agreement and B&L hereby agrees to and does assume all of
Alimera’s duties and obligations under the Supply Agreement arising after the Effective Date;
provided, that B&L shall also assume all duties and obligations with respect to the accounts
payable and other expenses set forth on Exhibit B. [*] hereby agrees, consents to and
accepts the foregoing assignment and assumption.



     2. Release. In consideration of [*] and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged and confirmed, [*], on its own behalf and
on behalf of its directors, officers, employees, agents, successors, predecessors, subsidiaries,
parent, shareholders, employee benefit plans and assigns, hereby fully and forever releases and
discharges Alimera and B&L and each of their directors, officers, employees, agents, successors,
predecessors, subsidiaries, parent, shareholders, employee benefit plans and assigns (together, the
“Releasees”), from all known and unknown claims and causes of action including, without limitation,
any claims or causes of action arising out of or relating in any way to obligations of Alimera
arising under the Supply Agreement on or prior to the Closing Date (as defined in the Purchase
Agreement). Notwithstanding the foregoing, nothing herein shall be deemed to release [*].





 




			
	*	 	Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions.





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     3. Amendment. The Supply Agreement is hereby amended as follows:




     (a) All references in the Supply Agreement to “Alimera Sciences, Inc. shall be replaced
with “Bausch & Lomb Incorporated” and all references to “Alimera” shall be replaced by
“B&L.”




     (b) Section 11.1 of the Supply Agreement, governing the Term of the Supply Agreement,
shall be deleted in its entirety and shall be replaced with the following:




11.1 Term. Unless sooner terminated pursuant to the
terms hereof, the term of this Agreement shall commence on the
Effective Date and shall continue in force and effect until [*]
(the “Term”).




     (c) All references in the Supply Agreement, as amended hereby, to the defined term
“Initial Term” will be replaced with the defined term “Term”.




     (d) Subsections (x) and (y) of Section 5.4 of the Supply Agreement shall be amended
hereby to read as follows:




(x) with respect to Product purchased and delivered during any
Contract Year, [*]; and (y) with respect to all Product delivered
during the term of this Agreement, an aggregate amount of [*].




     (e) Section 6.2 of the Supply Agreement, governing Monthly Forecasts, shall be deleted
in its entirety and shall be replaced with the following:




6.2 Monthly Forecasts. B&L’s estimate of its requirements
for the period commencing on December 31, 2006 through the end of
the Term (the “Contract Commitment Period”), is set forth on
Annex 6 (the “Monthly Forecast”). Annex 6 sets
forth the monthly requirements for the first twelve (12) months
of the Contract Commitment Period and quarterly requirements for
the next twelve (12) months of the Contract Commitment Period.
If [*] is unable to accept quantities stated for any month in the
Monthly Forecast (“Additional Quantities”), then [*]
shall notify B&L in writing within [*] after receipt of the Monthly Forecast;
otherwise such Additional Quantities shall be deemed to have been
approved and accepted by [*]. The Parties shall negotiate in
good faith to resolve any issues in respect of the Additional
Quantities which [*] is unable to accept for any month(s) stated
in the Monthly Forecast, according to [*] available capacity.




     (f) Section 6.3 of the Supply Agreement, governing Firm Purchase Commitment, shall be
deleted in its entirety and shall be replaced with the following:





 




			
	*	 	Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted
portions.





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6.3 Firm Purchase Commitment. The forecast of the first [*] of the
Monthly Forecast shall constitute a firm purchase commitment (the “Firm
Purchase Commitment”) which shall state in detail the quantities of Products
ordered and the required delivery dates, and shall [*] binding on the
Parties regarding Products to be purchased and supplied. The forecast for
months [*] and [*] of the Monthly Forecast shall be considered semi-firm
orders (the “Semi-Firm Purchase Commitment”); and B&L shall be obligated to
purchase [*] of such forecast. The forecast for the remaining [*] months of
the Monthly Forecast is for planning purposes only and shall not constitute
a commitment to purchase or supply Product. In the event that B&L does not
ultimately purchase [*] of the forecast quantities for each month of the
Firm Purchase Commitment period and [*] of the forecast quantities for each
month of the Semi-Firm Purchase Commitment, it shall be obligated to pay to
[*] for any deficient quantities on the basis of [*] of the Product Price
for those quantities which B&L failed to purchase during the Firm Purchase
Commitment or the Semi-Firm Purchase Commitment. However, if [*] is unable
for any reason other than the failure of B&L’s designated vendors timely to
provide API and/or Excipients as referenced in Section 4.4, to supply the
Firm Purchase Commitment to B&L, B&L shall not be obligated to pay for that
portion of the Firm Purchase Commitment which [*]could not deliver.




     (g) Section 6.7 of the Supply Agreement, governing the Minimum Contract Commitment,
shall be deleted in its entirety and shall be replaced with the following:




	 	6.7	 	Minimum Contract Commitment. B&L agrees
that during the Contract Commitment Period, (a) it will purchase the
products set forth under the heading “Commercial Products” on Annex
6 and (b) it will purchase the products set forth under the heading
“Samples” on Annex 6, at B&L’s option, either as Samples or
Commercial Products, in each case of (a) and (b) in the years set
forth therein from [*] according to the applicable Product Price
(the “Minimum Contract Commitment”), unless this Agreement is
terminated early (i) as a result of [*] breach of this Agreement, or
(ii) pursuant to Section 11.5, as a result of the regulatory filings
in respect of the Product not being approved by regulatory
authorities, or (iii) pursuant to Section 11.4. All amounts payable
to [*] under this Agreement during the Contract Commitment Period
shall be credited







 




			
	*	 	Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted
portions.





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towards the Minimum Contract Commitment. For clarification and
without limitation, cancelled production fees under Section 4.4,
purchases upon termination pursuant to Sections 11.8 and 11.9,
and purchases by a Third Party of a Divested Product or by an
assignee shall be credited against the Minimum Contract
Commitment.




     (h) The Supply Agreement shall be amended to add Annex 6 in the form attached
to this Amendment.




     (i) Except as explicitly provided herein, all terms, conditions and provisions of the
Supply Agreement shall continue in full force and effect.



     4. Representations and Warranties. [*] represents and warrants that (i) a true and
complete copy of the Supply Agreement is attached hereto as Exhibit A,(ii) except as set
forth in this Amendment, the Supply Agreement is in full force and effect and is otherwise
unmodified, and (iii) neither [*], nor, to [*] knowledge Alimera, has defaulted, breached or failed
to perform any material obligation under the Supply Agreement; and no fact or circumstance exists
that, with notice or passage of time, or both, would constitute a breach or default by [*] or, to
[*] knowledge, by Alimera, under the Supply Agreement.



     5. Further Assurances. The parties shall (i) furnish upon request to each other such
further information; (ii) execute and deliver to each other such other documents; and (iii) do such
other acts and things, all as the other party may reasonably request for the purpose of carrying
out the intent of this Amendment and the transaction contemplated by this Amendment.



     6. Entire Agreement. Except as set forth herein, this Amendment contains the entire
agreement of the parties with respect to its subject matter hereof and supersedes all prior written
and oral agreements.



     7. Amendment and Waiver. This Amendment may not be amended, or a party’s rights
waived, except by a written instrument signed by the party to be charged.



     8. Counterparts. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument, and any of the parties may
execute this Amendment by signing any such counterpart. A facsimile copy of this Amendment showing
the signatures of each of the parties, or, when taken together, multiple facsimile copies of this
Amendment showing the signatures of each of the parties, respectively, where such signatures do not
appear on the same copy, will constitute an original copy of this Amendment requiring no further
execution.





 




			
	*	 	Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted
portions.





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     IN WITNESS WHEREOF, the parties hereto have duly executed this Assignment, Assumption and
Amendment Agreement to be effective as of the Effective Date.



	 	 	 	 	 	 	 

	 	 	BAUSCH & LOMB INCORPORATED	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Print Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Print Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	ALIMERA SCIENCES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Print Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Print Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	[*]	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	[*]	 	 	 	 
	 

	 	[*]	 	 	 	 






(Signature Page to Assignment, Assumption and Amendment Agreement)






 




			
	*	 	Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions.





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Exhibit 1.1-B



Patent Assignment



     WHEREAS, Alimera Sciences, Inc., a corporation duly organized under the laws of the State of
Delaware (“Assignor”), owns all right, title, and interest in the patents and patent applications
set forth on Schedule 1 attached hereto and made a part hereof (collectively, the “Patents”); and



     WHEREAS, Bausch & Lomb Incorporated, a corporation duly organized under the laws of the State
of New York (“Assignee”), desires to own Assignor’s entire right, title, and interest in and to the
Patents, in all countries throughout the world.



     NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor hereby sells, assigns, and transfers unto Assignee the entire right,
title and interest in and to the Patents and all accrued causes of action for damages for
infringement thereof, the same to be held and enjoyed by Assignee for its own use and benefits, and
for its legal representatives and assigns, to the full end of the term for which said Patents are
granted (if applicable), as fully and as entirely as the same would have been held by Assignor had
this assignment and sale not been made. Notwithstanding anything to the contrary, nothing herein
shall expand or modify the rights or obligations of the parties as set forth in that certain Asset
Purchase Agreement dated as of December 20, 2006 by and between Assignor and Assignee.



[signature page follows]




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     IN WITNESS WHEREOF, Assignor has caused this Patent Assignment to be executed by its duly
authorized officer on December 20, 2006.



	 	 	 	 	 	 	 

	 	 	ALIMERA SCIENCES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 

	STATE OF
	 	 	 	) 
	 
	 	 
	 	): SS.:
	COUNTY OF
	 	 	 	) 
	 	 	 
	 	 






     On
this ___ day of December, 2006 personally appeared                      to me personally known, who,
being by me duly sworn, did depose and say that he is the                      of Alimera Sciences,
Inc., the corporation described in and which executed the foregoing instrument and that he did sign
said instrument as such officer and on behalf of such corporation.



	 	 	 	 	 

	 

	 	 

Notary Public
	 	 






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Schedule 1




AlawayTM


[*]


AlawayTM Plus


[*]






 




			
	*	 	Certain information has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions.





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Exhibit 1.1-C



Trademark Assignment



     WHEREAS, Alimera Sciences, Inc., a corporation duly organized under the laws of the State of
Delaware (“Assignor”), owns all right, title, and interest in the registered trademarks and
trademark applications set forth on Schedule 1 attached hereto and made a part hereof
(collectively, the “Trademarks”) as shown in the records in the United States Patent and Trademark
Office; and



     WHEREAS, Bausch & Lomb Incorporated, a corporation duly organized under the laws of the State
of New York (“Assignee”), desires to own Assignor’s entire right, title, and interest in and to the
Trademarks.



     NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor hereby sells, assigns, and transfers unto Assignee the entire right,
title and interest in and to the Trademarks together with the good will of the business connected
therewith and symbolized thereby and all accrued causes of action for damages for infringement
thereof, the same to be held and enjoyed by Assignee for its own use and benefits, and for its
legal representatives and assigns, as fully and as entirely as the same would have been held by
Assignor had this assignment and sale not been made. Notwithstanding anything to the contrary,
nothing herein shall expand or modify the rights or obligations of the parties as set forth in that
certain Asset Purchase Agreement dated as of December 20, 2006 by and between Assignor and
Assignee.



[signature page follows]




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     IN WITNESS WHEREOF, Assignor has caused this Trademark Assignment to be executed by its duly
authorized officer on December 20, 2006.



	 	 	 	 	 	 	 

	 	 	ALIMERA SCIENCES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 
	 	 
	 

	 	Title:
	 	 
	 	 
	 

	 	 	 	 
	 	 






	 	 	 	 	 

	STATE OF

	 	 	 	) 
	 

	 	 
	 	): SS.:
	COUNTY OF
	 	 	 	) 
	 	 	 

	 	 





     On
this ___ day of December, 2006 personally appeared                      to me personally known, who,
being by me duly sworn, did depose and say that he is the                      of Alimera Sciences,
Inc., the corporation described in and which executed the foregoing instrument and that he did sign
said instrument as such officer and on behalf of such corporation.



	 	 	 	 	 

	 

	 	 

Notary Public
	 	 






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Schedule 1


78/890,154      AlawayTM




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Exhibit 2.1.4



Assigned Contracts


Clinical Development Agreement between Seller and [*] dated September 6, 2005.



Supply Agreement between Seller and [*] dated July 29, 2004.



Pharmaceutical Product Supply Agreement between Seller and [*] dated June 26, 2006, including, as
Annex 3, Quality Agreement dated August 16, 2005 and any outstanding purchase orders under that
certain [*] Planning Forecast dated December 2006, a copy of which is attached hereto as Exhibit
3.11-A.



Pharmaceutical Consulting Services Agreement between Seller and [*] dated May 18, 2005.



Purchase Order from [*] to Seller dated December 15, 2006.






 




			
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Exhibit 2.1.9



Equipment


Shorewood Security Labeling System, Serial No: 2602, located at the plant of [*].






 




			
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Exhibit 2.6



Purchase Price Allocation Schedule



(in thousands)



	 	 	 	 	 

	Closing Consideration
	 	 	[*]	 
	 
	 	 	 	 
	Allocation of Closing Consideration
	 	 	 	 
	 
	 	 	 	 
	Intangibles (Assigned Intellectual Property,

Products, Books & Records, Assigned Contracts,

Permits, Assigned Claims, Access Fee and goodwill)
	 	 	[*]	 
	 
	 	 	 	 
	Inventory
	 	 	[*]	 
	 
	 	 	 	 
	Equipment
	 	 	[*]	 
	 
	 	 	 	 
	 
	 	 	[*]	 






Post Closing Consideration



If and when the Post Closing Consideration of [*] is due and payable, it shall be allocated to [*].






 




			
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Exhibit 6.3-A




Form of Seller Initial Press Release




Alimera Sciences and Bausch & Lomb Announce Transaction

For AlawayTM OTC Eye Care Product



FOR RELEASE WEDNESDAY, DECEMBER 20, 2006



ATLANTA, GA AND ROCHESTER, NY — Alimera Sciences, a privately-held company headquartered in
Atlanta, GA and Bausch & Lomb (NYSE:BOL) today announced that Bausch & Lomb has purchased Alimera’s
OTC allergy franchise, including Alaway (ketotifen fumarate ophthalmic solution 0.025%), which was
recently approved by the U.S. Food and Drug Administration.



Alaway is an antihistamine indicated for up to 12 hours of temporary relief for itchy eyes due to
ragweed, pollen, grass, animal hair and dander. Alaway contains the same active ingredient and
strength and is shown to be therapeutically equivalent to ZaditorTM, a prescription product being
switched to OTC by Novartis.



“The acquisition of Alaway not only enhances our current OTC product portfolio by giving us a
stronger and longer-lasting product to address the needs of consumers who suffer itchy eyes, but it
also gives us an excellent technology platform for the development of product line extensions in
the ocular allergy category,” said Gary M. Phillips, MD, corporate vice president and global
pharmaceutical category leader for Bausch & Lomb.



“We are delighted by this transaction with a leading company like Bausch & Lomb and their valuation
of our allergy franchise,” said Dan Myers, president and chief executive of Alimera. “The
monetization of this franchise represents a strong return on our investment in the OTC business and
allows us to focus our attention and resources on MedidurTM, our investigational drug currently in
Phase 3 clinical trials for the treatment of diabetic macular edema (DME), and to pursue the
development of other drug delivery technologies.”



Financial details of the transaction were not disclosed.




###




	 	 	 

	Bausch & Lomb News Media Contact:

	 	Alimera Sciences Contact:
	Barbara M. Kelley

	 	Lisa Gibson Lake
	585.338.5386

	 	Fleishman-Hillard
	bkelley@bausch.com

	 	404-739-0152
	 

	 	lisa.gibson@fleishman.com
	Bausch & Lomb Investor Relations Contact:
	 	 
	Daniel L. Ritz
	 	 
	585.338.5802
	 	 
	dritz@bausch.com
	 	 






 





This news release contains, among other things, certain statements of a forward-looking nature
relating to future events or the future business performance of Bausch & Lomb. Such statements
involve a number of risks and uncertainties including those concerning economic conditions,
currency exchange rates, product development and introduction, the financial well-being of key
customers, the successful execution of marketing strategies, the continued successful
implementation of its efforts in managing and reducing costs and expenses, as well as the risk
factors listed from time to time in the Company’s SEC filings, including but not limited to filings
on Form 8-K and on Form 12b-25, each dated August 8, 2006.




About Alimera Sciences Inc.



Atlanta-based Alimera Sciences Inc., a venture backed company, specializes in the development and
commercialization of over-the-counter and prescription ophthalmology pharmaceuticals. Founded by an
executive team with extensive
development and revenue growth expertise, Alimera initiated a Phase III clinical trial in October
2005 to study diabetic macular edema (DME) patients treated using MedidurTM with fluocinolone
acetonide, the company’s pharmacologic treatment for DME. Alimera Sciences also sells Soothe®
nationwide, the market’s first multi-dose, emollient-based artificial tear product.
www.alimerasciences.com




About Bausch & Lomb



Bausch & Lomb is the eye health company, dedicated to perfecting vision and enhancing life for
consumers around the world. Its core businesses include soft and rigid gas permeable contact lenses
and lens care products, and ophthalmic surgical and pharmaceutical products. The Bausch & Lomb name
is one of the best known and most respected healthcare brands in the world. Founded in 1853, the
Company is headquartered in Rochester, New York. Bausch & Lomb employs approximately 13,700 people




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worldwide and its products are available in more than 100 countries. More information about the
Company is on the Bausch & Lomb Web site at www.bausch.com. Copyright Bausch & Lomb Incorporated.




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Exhibit 6.3-B



Form of Buyer Initial Press Release


See Exhibit 6.3-A




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Exhibit 6.11



Post-Closing Services


Seller will provide Buyer with sales and training services from the Closing Date until [*] (the
“Transition Services”). Upon Buyer’s provision of notice to Seller at least [*] prior to the
desired delivery of Transition Services, Seller will make available to Buyer the services of [*] or
another individual [*] ([*] and such other individually being collectively referred to herein as
the “Trainer”). Buyer will pay [*] per week (assuming a forty hour work week) of Transition
Services provided by Seller, pro rated based on the actual number of hours of Transition Services
utilized by Buyer. To the extent commercially reasonable, Seller will provide Buyer [*] notice
should Buyer decide to terminate the Trainer.






 




			
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Exhibit 7.1.6



Opinion of Counsel for Seller



December 20, 2006



Bausch & Lomb Incorporated

One Bausch & Lomb Place

Rochester, NY 14604



Ladies and Gentlemen:




     We have acted as counsel for Alimera Sciences, Inc., a Delaware corporation (the “Company”),
in connection with Asset Purchase Agreement, dated as of December 20, 2006 (the “Agreement”) by and
between the Company and Bausch & Lomb Incorporated, a New York corporation (“Buyer”). This
opinion is being rendered to you pursuant to Section 7.1.6 of the Agreement. Capitalized terms not
ot Agreement.



     In connection with the opinions expressed herein, we have made such examination of matters of
law and of fact as we considered appropriate or advisable for purposes hereof. As to matters of
fact material to the opinions expressed herein, we have relied upon the representations and
warranties as to factual matters contained in and made by the Company pursuant to the Agreement, a
certificate of an officer of the Company (the “Opinion Certificate”; a copy of which has
been provided to Buyer) and other certificates and statements of government officials. We have
also examined originals or copies of such corporate documents or records of the Company as we have
considered appropriate for the opinions expressed herein. We have assumed for the purposes of this
opinion that the signatures on documents and instruments examined by us are authentic, that each
document is what it purports to be, and that all documents submitted to us as copies or facsimiles
conform with the originals, which facts we have not independently verified. We have not conducted
a docket search in any jurisdiction with respect to litigation that may be pending against the
Company or any of its officers or directors or undertaken any further inquiry other than as stated
herein. In addition, we have reviewed the Company’s Amended and Restated Certificate of
Incorporation and Bylaws, each as amended and in effect on the date hereof (the “Charter
Documents”) and the following documents:




	 	(i)	 	the Agreement;
	 
	 	(ii)	 	the Patent Assignment;
	 
	 	(iii)	 	the Trademark Assignment; and
	 
	 	(iv)	 	the [*] Assignment, Assumption and Amendment Agreement.herwise
defined in this opinion have the meaning given them in the







 




			
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     The documents described in (i)-(iv) above are collectively referred to as the “Transaction
Documents.”



     In rendering this opinion we have also assumed that (A) the Agreement and the [*] Assignment,
Assumption and Amendment Agreement have been duly and validly authorized, executed and delivered by
you, that you had the power, legal competence and capacity to enter into the Agreement and the [*]
Assignment, Assumption and Amendment Agreement and that the Agreement and the [*] Assignment,
Assumption and Amendment Agreement are enforceable against and binding upon you; (B) the
representations and warranties made in the Agreement by you are true and correct; (C) there are no
facts or circumstances relating to you that may prevent you from enforcing any of the rights to
which our opinion relates; and (D) there are no extrinsic agreements or understandings among the
parties to the Transaction Documents that would modify or interpret the terms of the Transaction
Documents or the respective rights or obligations of the parties thereunder.



     As used in this opinion, the expression “we are not aware” or the phrase “to our knowledge”
means as to matters of fact that, based on the actual knowledge of individual attorneys within this
firm principally responsible for handling the matter of the Agreement and directly related matters
and after an examination of documents referred to herein and after inquiries of certain officers of
the Company, we find no reason to believe that the opinions expressed are factually incorrect, but
beyond that we have made no factual investigation for the purposes of rendering this opinion.
Specifically, but without limitation, we have made no inquiries of securities holders or employees
(other than obtaining the Opinion Certificate as described above) of the Company. No inference as
to our knowledge of the existence or absence of any facts should be drawn from the fact of our
representation of the Company. You should be aware that our involvement with the Company has been
limited to the matter of the Agreement and certain directly related matters, and that our
representation of the Company began in September of 2006. Moreover, we have not, for purposes of
our opinions below, searched computerized or electronic databases or the docket of any court,
governmental agency or regulatory body or other filing office in any jurisdiction.



     Where statements in this opinion are qualified by the term “material” or “materially,” those
statements involve judgments and opinions as to the materiality or lack of materiality of any
matter to the Company or its business, assets, condition (financial or otherwise) or results of
operations that are entirely those of the Company and its officers, after having been advised by us
as to the legal effect and consequences of such matters. Such opinions and judgments are not known
to us to be incorrect.



     We are opining herein as to the effect on the subject transaction solely with respect to the
Delaware General Corporation Law, the laws of the State of New York and the federal laws of the
United States. We express no opinion as to matters governed by any laws other than the laws of the
State of New York, the corporate law of the State of Delaware and the federal law of the United
States of America (and specifically excluding all local and municipal laws). We express no opinion
as to whether the laws of any particular jurisdiction apply, and no opinion to the extent that the
laws of any jurisdiction other than those identified above are applicable to the subject matter of
this opinion.





 




			
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     In rendering the opinion set forth in paragraph 1 below as to the good standing of the
Company, we have relied exclusively on a certificate from the Secretary of State of the State of
Delaware, although we have not obtained tax good standing certificates and no opinion is provided
with respect to tax good standing.



     In connection with the general enforceability opinion set forth in paragraph 4, this opinion
is qualified by, and we render no opinion with respect to, the following:




          (a) Our opinions are qualified by the limitations imposed by general principles of equity upon
the availability of equitable remedies for the enforcement of provisions of the Agreement, and by
the effect of judicial decisions that have held that certain provisions are unenforceable when
their enforcement would violate the implied covenant of good faith and fair dealing, or would be
commercially unreasonable, or where their breach is not material




          (b) We express no opinion as to the effect of any New York law, United States federal or
Delaware law or equitable principle that provides that a court may refuse to enforce, or may limit
the application of, a contract or any clause thereof that the court finds to have been
unconscionable at the time it was made or contrary to public policy;




          (c) We express no opinion as to the enforceability of provisions of the Agreement expressly or
by implication waiving broadly or vaguely stated rights or unknown future rights, or waiving rights
granted by law where such waivers are against public policy;




          (d) We express no opinion as to the enforceability of any provision of the Agreement
purporting to (i) waive rights to trial by jury, service of process or objections to the laying of
venue or to forum in connection with any litigation arising out of or pertaining to the Agreement,
(ii) exclude conflict of law principles, (iii) establish particular courts as the forum for the
adjudication of any controversy relating to the Agreement, (iv) establish the laws of any
particular state or jurisdiction for the adjudication of any controversy relating to the Agreement,
(v) establish evidentiary standards or make determinations conclusive or (vi) provide for
arbitration of (or another non-judicial method of resolving) disputes;




          (e) We express no opinion as to the effect of judicial decisions that may permit the
introduction of extrinsic evidence to modify the terms or the interpretation of the Agreement;




          (f) We express no opinion as to the enforceability of any provisions of the Agreement
providing that (a) rights or remedies are not exclusive, (b) rights or remedies may be exercised
without notice, (c) every right or remedy is cumulative and may be exercised in addition to or with
any other right or remedy, (d) the election of a particular remedy or remedies does not preclude
recourse to one or more other remedies, (e) liquidated damages are to be paid upon the breach of
the Agreement or (f) the failure to exercise, or any delay in exercising, rights or remedies
available under the Agreement will not operate as a waiver of any such right or remedy; and




          (g) We note that a requirement that provisions of the Agreement may only be waived in writing
may not be binding or enforceable if an oral agreement has been



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created modifying any such provision or an implied agreement by trade practice or course of conduct
has given rise to a waiver.




     In connection with our opinion in paragraph 5 below, the term “Applicable Laws” shall mean (i)
those federal laws, rules and regulations of the United States, (ii) those laws, rules and
regulations of the State of New York and (iii) those provisions of the Delaware General Corporation
Law, that, in each case and in our experience, are normally applicable to transactions of the type
contemplated by the Agreement, without our having made any special investigation as to the
applicability of any specific law, rule or regulation, and that are not the subject of a specific
opinion herein referring expressly to a particular law or laws.



     In connection with our opinion in paragraph 6 below, the term “Governmental Entity” shall mean
any court, administrative agency or commission organized under federal, New York or Delaware
corporate statutes, laws, rules or regulations.



     Finally, our opinions below are each specifically subject to the following limitations,
exceptions, qualifications and assumptions:




          (A) We express no opinion as to the effect of bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting the relief of debtors or the rights and
remedies of creditors generally, including, without limitation, the effect of statutory or other
law regarding fraudulent conveyances and preferential transfers.




          (B) We express no opinion as to the Company’s compliance or noncompliance with applicable
federal or state antifraud or antitrust statutes, laws, rules and regulations, including, without
limitation, the HSR Act.




          (C) Limitations imposed by state law, federal law or general equitable principles upon the
specific performance of any of the remedies, covenants or other provisions of any applicable
agreement and upon the availability of injunctive relief or other equitable remedies, regardless of
whether enforcement of any such agreement is considered a proceeding in equity or at law.



     Based upon our examination of and reliance upon the foregoing and subject to the limitations,
exceptions, qualifications and assumptions set forth above and except as set forth in the
Disclosure Schedule, we are of the opinion that as of the date hereof:




          1. The Company is a corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware. The Company has all requisite corporate power and authority to
own, operate and lease its properties and to carry on its business as, to our knowledge, it is
presently conducted.




          2. The Company has all requisite corporate power and corporate authority to enter into,
execute, deliver and perform its obligations under the Transaction Documents and to transfer and
deliver the Purchased Assets pursuant to the Agreement.



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          3. All corporate action on the part of the Company, its directors and stockholders necessary
for the authorization, execution, delivery and performance of the obligations under the Transaction
Documents by the Company has been taken.




          4. The Agreement and the [*] Assignment, Assumption and Amendment Agreement constitute legally
valid and binding obligations of the Company, enforceable against the Company in accordance with
their terms. Each of the Transaction Documents has been duly executed and delivered by the
Company.




          5. The execution, delivery and performance of the Transaction Documents will not, as of the
Closing, result in (i) a violation of the Charter Documents (ii) a material violation of any
Applicable Laws or (iii) a violation of any judgment or order specifically identified in the
Disclosure Schedule, if any.




          6. No consent, approval, order, authorization from, or registration, declaration or filing
with, any Governmental Entity is necessary or required to be made or obtained for the execution and
delivery by the Company of the Agreement or the consummation by the Company of the transactions
contemplated thereby.



     In addition to the foregoing, we supplementally inform you that, to our knowledge and except
as set forth on the Disclosure Schedule, there is no action, suit, proceeding or investigation
pending or threatened against the Company that (i) questions the validity of the Transaction
Documents or the right of the Company to enter into the Transaction Documents or (ii) relates to
the Purchased Assets. Please note that we have not conducted a docket search in any jurisdiction
with respect to litigation that may be pending against the Company or any of its officers or
directors, nor have we undertaken any further inquiry whatsoever other than to request the Opinion
Certificate from the Company.



     This opinion is rendered as of the date first written above solely for your benefit in
connection with the Agreement and may not be delivered to, quoted or relied upon by any person
other than you, or for any other purpose, without our prior written consent. Our opinion is
expressly limited to the matters set forth above and we render no opinion, whether by implication
or otherwise, as to any other matters relating to the Company. We assume no obligation to advise
you of facts, circumstances, events or developments which hereafter may be brought to our attention
and which may alter, affect or modify the opinions expressed herein.



Very truly yours,




GUNDERSON DETTMER STOUGH

VILLENEUVE FRANKLIN & HACHIGIAN, LLP






 




			
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