ex10-1.htm


    Exhibit
10.1

    


     

    


    
      
        

      



     

    AGREEMENT
AND PLAN OF MERGER


     

     

    BY AND
AMONG


     

     

    ENDO PHARMACEUTICALS HOLDINGS INC.

     

    BTB PURCHASER INC.

     

    AND

     

    INDEVUS
PHARMACEUTICALS, INC.

    


     

     

    DATED AS
OF JANUARY 5, 2009

     

     

    


     

     

    
      

    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    TABLE
OF CONTENTS

     

    
      
        	 
      	 
      	
                PAGE

              
	 
      	 
      	 
      
	 
      	
                ARTICLE
      I

                 

                THE
      OFFER

              	 
      
	 
      	 
      	 
      
	
                Section
      1.1

              	
                The
      Offer

              	
                2

              
	
                Section
      1.2

              	
                Company
      Actions.

              	
                5

              
	
                Section
      1.3

              	
                Directors.

              	
                6

              
	
                Section
      1.4

              	
                Top-Up
      Option.

              	
                7

              
	 
      	 
      	 
      
	 
      	
                ARTICLE
      II

                 

                THE
      MERGER

              	 
      
	 
      	 
      	 
      
	
                Section
      2.1

              	
                The
      Merger

              	
                8

              
	
                Section
      2.2

              	
                Closing;
      Effective Time

              	
                8

              
	
                Section
      2.3

              	
                Effect
      of the Merger

              	
                9

              
	
                Section
      2.4

              	
                Organizational
      Documents of the Surviving Corporation

              	
                9

              
	
                Section
      2.5

              	
                Directors
      and Officers of the Surviving Corporation

              	
                9

              
	 
      	 
      	 
      
	 
      	
                ARTICLE
      III

                 

                EFFECTS
      OF THE MERGER;

                EXCHANGE
      OF CERTIFICATES

              	 
      
	 
      	 
      	 
      
	
                Section
      3.1

              	
                Effect
      on Capital Stock

              	
                9

              
	
                Section
      3.2

              	
                Exchange
      of Shares and Certificates

              	
                12

              
	
                Section
      3.3

              	
                Dissenting
      Shares

              	
                14

              
	
                Section
      3.4

              	
                Nebido
      CCP Escrow

              	
                14

              
	 
      	 
      	 
      
	 
      	
                ARTICLE
      IV

                REPRESENTATIONS
      AND WARRANTIES OF COMPANY

              	 
      
	 
      	 
      	 
      
	
                Section
      4.1

              	
                Organization,
      Standing and Corporate Power

              	
                15

              
	
                Section
      4.2

              	
                Capitalization

              	
                16

              
	
                Section
      4.3

              	
                Authority

              	
                17

              
	
                Section
      4.4

              	
                No
      Conflict

              	
                18

              
	
                Section
      4.5

              	
                Required
      Filings and Consents

              	
                19

              
	
                Section
      4.6

              	
                Compliance;
      Regulatory Compliance

              	
                19

              
	
                Section
      4.7

              	
                SEC
      Filings; Financial Statements

              	
                20

              
	
                Section
      4.8

              	
                Absence
      of Certain Changes or Events

              	
                22

              
	
                Section
      4.9

              	
                FDA
      and Related Matters

              	
                23

              
	
                Section
      4.10

              	
                Taxes

              	
                25

              
	
                Section
      4.11

              	
                Change
      of Control Arrangements; No Excess Parachute Payment

              	
                26

              


      

    

     

     

     

    
      
        
        

      

      
        i

        
          

        

      

      
        
        

      

    

     

     

    
      
        	
                Section
      4.12

              	
                Litigation

              	
                27

              
	
                Section
      4.13

              	
                Material
      Contracts

              	
                28

              
	
                Section
      4.14

              	
                Employee
      Benefit Plans

              	
                31

              
	
                Section
      4.15

              	
                Labor
      and Employment Matters

              	
                33

              
	
                Section
      4.16

              	
                Environmental
      Matters

              	
                34

              
	
                Section
      4.17

              	
                Intellectual
      Property

              	
                35

              
	
                Section
      4.18

              	
                Stockholders'
      Rights Agreement

              	
                38

              
	
                Section
      4.19

              	
                Brokers;
      Schedule of Fees and Expenses

              	
                38

              
	
                Section
      4.20

              	
                Insurance

              	
                38

              
	 
      	 
      	 
      
	 
      	
                ARTICLE
      V

                REPRESENTATIONS
      AND WARRANTIES

                OF
      PARENT AND MERGER SUB

              	 
      
	 
      	 
      	 
      
	
                Section
      5.1

              	
                Organization
      and Good Standing

              	
                39

              
	
                Section
      5.2

              	
                Authority

              	
                39

              
	
                Section
      5.3

              	
                No
      Conflict

              	
                40

              
	
                Section
      5.4

              	
                Required
      Filings and Consents

              	
                40

              
	
                Section
      5.5

              	
                Compliance;
      Regulatory Compliance

              	
                40

              
	
                Section
      5.6

              	
                SEC
      Filings; Financial Statements

              	
                41

              
	
                Section
      5.7

              	
                Absence
      of Certain Changes or Events

              	
                42

              
	
                Section
      5.8

              	
                Litigation

              	
                42

              
	
                Section
      5.9

              	
                Financing

              	
                42

              
	
                Section
      5.10

              	
                Brokers

              	
                42

              
	 
      	 
      	 
      
	 
      	
                ARTICLE
      VI

                COVENANTS

              	 
      
	 
      	 
      	 
      
	
                Section
      6.1

              	
                Conduct
      of Company's Business Pending the Merger

              	
                42

              
	
                Section
      6.2

              	
                Access
      to Information; Confidentiality

              	
                46

              
	
                Section
      6.3

              	
                Notification
      of Certain Matters; Regulatory Communications

              	
                47

              
	
                Section
      6.4

              	
                Antitrust
      Filings; Reasonable Best Efforts

              	
                47

              
	
                Section
      6.5

              	
                No
      Solicitation; Company Board Recommendation

              	
                49

              
	
                Section
      6.6

              	
                Stockholder
      Litigation

              	
                51

              
	
                Section
      6.7

              	
                Indemnification;
      Director and Officer Insurance

              	
                51

              
	
                Section
      6.8

              	
                Public
      Announcements

              	
                52

              
	
                Section
      6.9

              	
                Preparation
      of SEC Documents; Stockholders' Meeting

              	
                52

              
	
                Section
      6.10

              	
                Employees

              	
                53

              
	
                Section
      6.11

              	
                Rule
      16b-3

              	
                55

              
	
                Section
      6.12

              	
                Development
      Drugs

              	
                56

              
	
                Section
      6.13

              	
                State
      Takeover Laws

              	
                56

              
	
                Section
      6.14

              	
                Contingent
      Stock Rights

              	
                56

              
	
                Section
      6.15

              	
                Voting
      of Shares

              	
                57

              
	
                Section
      6.16

              	
                Conduct
      of Business by Parent and Merger Sub Pending the Merger

              	
                57

              
	
                Section
      6.17

              	
                No
      Control of Other Party's Business

              	
                57

              
	 
      	 
      	 
      


      

    

     

     

    
      
        
        

      

      
        ii

        
          

        

      

      
        
        

      

    

     

     

    
      
        	 
      	
                ARTICLE
      VII

                CONDITIONS

              	 
      
	 
      	 
      	 
      
	
                Section
      7.1

              	
                Conditions
      to the Obligation of Each Party

              	
                57

              
	
                Section
      7.2

              	
                Failure
      of Conditions

              	
                58

              
	 
      	 
      	 
      
	 
      	
                ARTICLE
      VIII

                TERMINATION,
      AMENDMENT AND WAIVER

              	 
      
	 
      	 
      	 
      
	
                Section
      8.1

              	
                Termination

              	
                58

              
	
                Section
      8.2

              	
                Effect
      of Termination

              	
                60

              
	
                Section
      8.3

              	
                Amendments

              	
                61

              
	
                Section
      8.4

              	
                Waiver

              	
                62

              
	 
      	 
      	 
      
	 
      	
                ARTICLE
      IX

                GENERAL
      PROVISIONS

              	 
      
	 
      	 
      	 
      
	
                Section
      9.1

              	
                Nonsurvival
      of Representations and Warranties

              	
                62

              
	
                Section
      9.2

              	
                Notices

              	
                62

              
	
                Section
      9.3

              	
                Interpretation

              	
                63

              
	
                Section
      9.4

              	
                Counterparts

              	
                63

              
	
                Section
      9.5

              	
                Entire
      Agreement; No Third-Party Beneficiaries

              	
                63

              
	
                Section
      9.6

              	
                Governing
      Law

              	
                64

              
	
                Section
      9.7

              	
                Assignment

              	
                64

              
	
                Section
      9.8

              	
                Consent
      to Jurisdiction

              	
                64

              
	
                Section
      9.9

              	
                Headings,
      etc.

              	
                64

              
	
                Section
      9.10

              	
                Severability

              	
                64

              
	
                Section
      9.11

              	
                Failure
      or Indulgence Not Waiver; Remedies Cumulative

              	
                64

              
	
                Section
      9.12

              	
                Waiver
      of Jury Trial

              	
                64

              
	
                Section
      9.13

              	
                Specific
      Performance

              	
                65

              
	
                Section
      9.14

              	
                Certain
      Definitions

              	
                65

              


      

    

     

     

    


    


    EXHIBIT
A                      --          
Conditions of the Offer

    EXHIBIT
B                      --           Form
of  Nebido Contingent Cash Consideration Agreement

    EXHIBIT
C                      --           Form
of Octreotide Contingent Cash Consideration Agreement

    
    

    
 

    
      
        
        

      

      
        iii

        
          

        

      

      
        
        

      

    

     

    INDEX
OF DEFINED TERMS

     

    


    
      	
              2008
      ESPP

            	
              10

            
	
              409A
      Authorities

            	
              32

            
	
              Affiliate

            	
              68

            
	
              Agreement

            	
              1

            
	
              Associate

            	
              68

            
	
              CERCLA

            	
              34

            
	
              Certificate
      of Merger

            	
              8

            
	
              Certificates

            	
              12

            
	
              Cleanup

            	
              64

            
	
              Closing

            	
              8

            
	
              Closing
      Date

            	
              8

            
	
              Code

            	
              4

            
	
              Commonly
      Controlled Entity

            	
              30

            
	
              Company

            	
              1

            
	
              Company
      Adverse Recommendation Change

            	
              49

            
	
              Company
      Benefit Agreements

            	
              31

            
	
              Company
      Benefit Plans

            	
              31

            
	
              Company
      Board

            	
              1

            
	
              Company
      Bylaws

            	
              15

            
	
              Company
      Certificate of Incorporation

            	
              15

            
	
              Company
      Common Stock

            	
              1

            
	
              Company
      Disclosure Letter

            	
              14

            
	
              Company
      Filed SEC Report

            	
              20

            
	
              Company
      Financial Statements

            	
              20

            
	
              Company
      IP

            	
              64

            
	
              Company
      Licensed IP

            	
              64

            
	
              Company
      Material Adverse Effect

            	
              69

            
	
              Company
      Material Contract

            	
              27

            
	
              Company
      Notice of Adverse Recommendation

            	
              50

            
	
              Company
      Option

            	
              16

            
	
              Company
      Organizational Documents

            	
              15

            
	
              Company
      Owned IP

            	
              64

            
	
              Company
      Participant

            	
              26

            
	
              Company
      Partner

            	
              23

            
	
              Company
      Pension Plan

            	
              30

            
	
              Company
      Pension Plans

            	
              30

            
	
              Company
      Permits

            	
              20

            
	
              Company
      Preferred Stock

            	
              15

            
	
              Company
      SEC Reports

            	
              20

            
	
              Company
      Stock Plans

            	
              16

            
	
              Company
      Stock Rights

            	
              16

            
	
              Company
      Stockholder Approval

            	
              17

            
	
              Company
      Stockholders' Meeting

            	
              52

            
	
              Company
      Subsidiaries

            	
              17

            
	
              Company
      Subsidiary

            	
              17

            


    

     

     

     

    
      
        
        

      

      
        iv

        
          

        

      

      
        
        

      

    

     

     

    
      
        	
                Company
      Takeover Proposal

              	
                49

              
	
                Company
      Termination Fee

              	
                60

              
	
                Company
      Welfare Plan

              	
                30

              
	
                Company
      Welfare Plans

              	
                30

              
	
                Competition
      Laws

              	
                47

              
	
                Confidentiality
      Agreement

              	
                45

              
	Contingent
      Cash Consideration Agreements 	65
	
                Contingent
      Cash Consideration Payments

              	
                65

              
	
                Contract

              	
                65

              
	
                Core
      Product

              	
                65

              
	
                Covered
      Employees

              	
                53

              
	
                D&O
      Insurance

              	
                51

              
	
                DGCL

              	
                1

              
	
                Dissenting
      Shares

              	
                14

              
	
                Effective
      Time

              	
                8

              
	
                EMEA

              	
                19

              
	
                Environmental
      Laws

              	
                65

              
	
                Environmental
      Permits

              	
                65

              
	
                ERISA

              	
                30

              
	
                Exchange
      Act

              	
                2

              
	
                Exchange
      Agent

              	
                12

              
	
                Exchange
      Fund

              	
                12

              
	
                FDA

              	
                19

              
	
                FDCA

              	
                20

              
	
                FIRPTA
      Certificate

              	
                65

              
	
                GAAP

              	
                20

              
	
                Good
      Clinical Practices

              	
                65

              
	
                Good
      Laboratory Practices

              	
                66

              
	
                Good
      Manufacturing Practices

              	
                66

              
	
                Governmental
      Entity

              	
                19

              
	
                Hazardous
      Substances

              	
                66

              
	
                HSR
      Act

              	
                3

              
	
                Hydron
      Impeding Event

              	
                66

              
	
                Hydron
      Technology

              	
                66

              
	
                IND

              	
                66

              
	
                Independent
      Directors

              	
                6

              
	
                Intellectual
      Property

              	
                67

              
	
                IP
      Contract

              	
                35

              
	
                Judgments

              	
                57

              
	
                known
      to Company

              	
                69

              
	
                known
      to Parent

              	
                70

              
	
                Law

              	
                18

              
	
                Liability

              	
                21

              
	
                Liens

              	
                17

              
	
                Litigation

              	
                27

              
	
                Merger

              	
                1

              
	
                Merger
      Consideration

              	
                9

              


      

    

     

    
 

    
      
        
        

      

      
        v

        
          

        

      

      
        
        

      

    

    


    
      
        
          
            
              
                	
                        Merger
      Sub

                      	
                        1

                      
	Merger
      Sub Common Stock	9
	
                        Nasdaq

                      	
                        3

                      
	
                        NDA

                      	
                        67

                      
	
                        Nebido

                      	
                        67

                      
	
                        Nebido
      Contingent Cash Consideration Agreement

                      	
                        67

                      
	
                        Nebido
      Contingent Cash Consideration Payment

                      	
                        69

                      
	
                        Nebido
      Transition Team

                      	
                        53

                      
	Nebido
      Transition Team Employment Period	53
	
                        New
      Plan

                      	
                        54

                      
	
                        Nonqualified
      Deferred Compensation Plan

                      	
                        32

                      
	
                        Octreotide

                      	
                        67

                      
	
                        Octreotide
      Contingent Cash Consideration Agreement

                      	
                        67

                      
	
                        Octreotide
      Contingent Cash Consideration Payment

                      	
                        67

                      
	
                        Octreotide
      Contingent Stock Rights Agreement

                      	
                        56

                      
	
                        Offer

                      	
                        1

                      
	
                        Offer
      Closing

                      	
                        3

                      
	
                        Offer
      Closing Date

                      	
                        3

                      
	
                        Offer
      Conditions

                      	
                        2

                      
	
                        Offer
      Documents

                      	
                        4

                      
	
                        Offer
      Price

                      	
                        1

                      
	
                        Order

                      	
                        18

                      
	
                        Outside
      Date

                      	
                        58

                      
	
                        Parent

                      	
                        1

                      
	
                        Parent
      Filed SEC Report

                      	
                        40

                      
	
                        Parent
      Financial Statements

                      	
                        42

                      
	
                        Parent
      Material Adverse Effect

                      	
                        71

                      
	
                        Parent
      SEC Reports

                      	
                        42

                      
	Paying
      Agent 	4
	Per
      Share Paid Value	 68
	Performance
      Share Award	 10
	
                        Person

                      	
                        68

                      
	
                        Primary
      Company Executives

                      	
                        27

                      
	
                        Product
      IP

                      	
                        68

                      
	
                        Products

                      	
                        68

                      
	
                        Products
      Contract

                      	
                        29

                      
	
                        Proxy
      Statement

                      	
                        52

                      
	
                        Regulatory
      Authority

                      	
                        19

                      
	
                        Regulatory
      Authorizations

                      	
                        68

                      
	
                        Release

                      	
                        68

                      
	
                        Representatives

                      	
                        68

                      
	
                        Requisite
      Short-Form Merger Shares

                      	
                        7

                      
	
                        Sarbanes-Oxley
      Act

                      	
                        20

                      
	
                        Schedule
      14D-9

                      	
                        5

                      
	
                        Schedule
      TO

                      	
                        4

                      
	
                        SEC

                      	
                        3

                      
	
                        Securities
      Act

                      	
                        7

                      
	
                        Stent
      Contingent Stock Rights Agreement

                      	
                        55

                      
	
                        Stockholder
      Tender Agreements

                      	
                        2

                      
	
                        Subsidiary

                      	
                        68

                      
	
                        Superior
      Proposal

                      	
                        49

                      


              

            

          

        

      

    

    


    


    
      
        
        

      

      
        vi

        
          

        

      

      
        
        

      

    

    


    
      
        	
                Supprelin

              	
                68

              
	
                Surviving
      Corporation

              	
                8

              
	
                Takeover
      Statute

              	
                5

              
	
                Tax
      Return

              	
                26

              
	
                Taxes

              	
                26

              
	
                to
      the knowledge of Parent

              	
                70

              
	
                to
      the knowledge of the Company

              	
                69

              
	
                Top-Up
      Option

              	
                7

              
	
                Top-Up
      Shares

              	
                7

              
	
                Transaction
      Agreements

              	
                2

              
	
                Transition
      Committee

              	
                46

              
	
                Transition
      Plan

              	
                46

              
	
                Uncertificated
      Shares

              	
                12

              
	Valuation
      Point	68
	
                WARN
      Act

              	
                54

              


      

    

    


    


    
      
        
        

      

      
        vii

        
          

        

      

      
        
        

      

    

     

    
       

      AGREEMENT
AND PLAN OF MERGER

       

      THIS
AGREEMENT AND PLAN OF MERGER (this "Agreement"),
dated as of January 5, 2009, is by and among Endo Pharmaceuticals Holdings Inc.,
a Delaware corporation ("Parent"),
BTB Purchaser Inc., a Delaware corporation and a direct, wholly-owned Subsidiary
of Parent ("Merger
Sub"), and Indevus Pharmaceuticals, Inc., a Delaware corporation (the
"Company").

       

      W I T N E
S S E T H:

       

      WHEREAS, Parent desires to acquire the
Company on the terms and subject to the conditions set forth in this
Agreement;

      


      WHEREAS in furtherance of the
acquisition of the Company by Parent, Parent proposes to cause Merger Sub to
commence an offer (as it may be amended from time to time as permitted under
this Agreement, the ''Offer'')
to purchase all of the outstanding shares of common stock, par value $0.001 per
share, of the Company ("Company
Common Stock ") at a price per share of Company Common Stock of (1)
$4.50, net to the seller in cash, without interest, (2) the contractual right to
receive one or more Nebido Contingent Cash Consideration Payments (as defined in
Section 9.14(v)) and (3) the contractual right to receive an Octreotide
Contingent Cash Consideration Payment (as defined in Section 9.14(x)) (the
aggregate consideration referred to in (1), (2) and (3), or any other
consideration per share paid pursuant to the Offer, the ("Offer
Price"), upon the terms and subject to the conditions set forth in this
Agreement;

      


      WHEREAS it is proposed that, on the
terms and subject to the conditions set forth in this Agreement, following the
consummation of the Offer, Merger Sub shall, in accordance with the General
Corporation Law of the State of Delaware (the "DGCL"),
merge with and into the Company (the "Merger"),
pursuant to which each share of Company Common Stock, other than (i) shares
of Company Common Stock directly or indirectly owned by Parent, Merger Sub or
the Company and (ii)  Dissenting Shares (as defined in Section 3.3), will
be converted into the right to receive the Merger Consideration (as defined in
Section 3.1(a));

      


      WHEREAS the board of directors of the
Company (the "Company
Board") has unanimously (i) determined that the Offer, the Merger, this
Agreement and the other transactions contemplated hereby are advisable, fair to
and in the best interests of the stockholders of the Company, (ii) adopted and
approved this Agreement and determined the transactions contemplated hereby,
including the Offer and the Merger, are advisable, fair to and in the best
interest of the stockholders of the Company and (iii) resolved to recommend
acceptance of the Offer and, if required, approval of the Merger by its
stockholders;

       

      WHEREAS,
the Board of Directors of Merger Sub has approved and declared it advisable for
Merger Sub to enter into this Agreement providing for the Offer and the Merger,
upon the terms and subject to the conditions set forth herein;

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      WHEREAS, the Board of Directors of
Parent has approved this Agreement, the Offer and the Merger and Parent, in its
capacity as the sole stockholder of Merger Sub, has approved
this Agreement, the Offer and the Merger upon the terms and subject to the
conditions set forth herein; 

       

      WHEREAS,
concurrently with the execution and delivery of this Agreement, Parent and
Merger Sub have entered into an agreement with each of Glenn L. Cooper, M.D.,
Michael W. Rogers, Noah D. Beerman, Mark S. Butler, Bobby W. Sandage, Jr. Ph.D,
Malcolm Morville, Ph.D, and Sanders Morris Harris, pursuant to which each of
them has irrevocably agreed to tender the shares of Company Common Stock
beneficially owned by such executive officer or director in the Offer
(constituting, in the aggregate, approximately 4.7% of the outstanding shares of
Company Common Stock (collectively, the "Stockholder
Tender Agreements,") and together with (i) the Nebido Contingent Cash
Consideration Payment Agreement and the Octreotide Contingent Cash Consideration
Agreement and (ii) this Agreement, collectively referred to as the "Transaction
Agreements");

       

      NOW,
THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements contained in this Agreement and intending
to be legally bound hereby, the parties hereto agree as follows:

       

      ARTICLE I

       

      THE
OFFER

       

      Section
1.1          The
Offer.

       

      (a)           Subject to the conditions of this
Agreement, as promptly as practicable (but in no event later than
five business days) after the date of this
Agreement, Merger
Sub shall, and Parent shall
cause Merger Sub to, commence, within the meaning of
Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with
the rules and regulations
promulgated thereunder, the "Exchange
Act"), the Offer to purchase all of the outstanding
shares of Company Common Stock; provided, that the Company agrees that no shares
of Company Common Stock owned by the Company or any Company Subsidiary will be
tendered pursuant to the Offer. The obligations of Merger Sub to, and of Parent to cause
Merger Sub to, accept for payment, and pay for,
any shares of Company Common Stock tendered pursuant to the Offer are subject
only to the conditions set forth in Exhibit A (as they may be amended in accordance
with this Agreement, the
"Offer
Conditions").

       

      (i)           The initial expiration date of the Offer
shall be midnight, New York City time, on the 45th calendar day following the commencement of the Offer
(determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Merger Sub expressly reserves the
right, at any
time, to, in its sole
discretion, waive, in whole or in part, any Offer Condition or modify the
terms of the Offer;
provided, however, that, without the prior written consent of the Company,
Merger Sub shall not (i) reduce the number of
shares of Company Common Stock subject to the Offer, (ii) reduce the
Offer Price or change the form of consideration
payable in the
Offer, (iii) change, modify
or waive the Minimum Tender Condition (as defined in Exhibit A), (iv) add to the Offer Conditions, or (v) otherwise amend the Offer in any
manner adverse to the holders of Company Common Stock.

       

       

      
        
          
          

        

        
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      (ii)           Notwithstanding anything in this Agreement to the contrary,
and without limiting Parent's or Merger Sub's obligations under this Section
1.1(a)(ii), Merger
Sub (A) may, in its sole
discretion, without consent of the Company, extend the Offer on one or more
occasions for any period,
if on any then-scheduled expiration date of the Offer any of the Offer
Conditions shall not be satisfied or, in Merger Sub's sole discretion, waived, until such
time as such condition or conditions are satisfied or waived and (B) shall
extend the Offer for any
period required by any rule, regulation, interpretation or position of the
United States Securities and Exchange Commission (the
"SEC"), the staff thereof or the Nasdaq Stock Market (the "Nasdaq") applicable to the Offer, and until any waiting period (and any
extension thereof) applicable to the consummation of the Offer under
the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as
amended (the "HSR
Act") and any other applicable foreign
antitrust, competition or
similar Law shall have expired or been terminated; provided, however, that in no event shall Merger Sub be required to extend the Offer
(1) beyond the Outside Date (as defined in Section 8.1(b)(i)) or (2) at any time that Parent or Merger Sub is permitted to terminate this
Agreement pursuant to ARTICLE VIII. 

       

      (iii)           Parent and Merger Sub agree that if on any scheduled expiration date of the Offer, the
Minimum Tender Condition is not satisfied but all of the other Offer
Conditions set forth in
Exhibit A are satisfied or,
in Merger Sub's sole discretion, waived, then
Merger Sub shall, and Parent shall cause
Merger Sub to, extend the Offer for a ten
calendar day period; provided, however, that this provision shall not
require Merger Sub to extend the expiration of
the Offer more than one time, and in no event shall Merger Sub be required to extend the Offer
(1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to
ARTICLE VIII.

       

      (iv)           On the terms and subject to the conditions of this Agreement,
Merger Sub shall, and Parent shall
cause Merger Sub to, accept and pay for (subject to
any withholding of tax
pursuant to Section 1.1(d)) all shares of Company Common Stock
validly tendered and not validly withdrawn pursuant to the Offer as soon as
practicable after the expiration date of the Offer (as it may be extended and
re-extended in accordance with this Section 1.1(a)). Acceptance for payment of shares of
Company Common Stock pursuant to and subject to the conditions of the Offer upon
the expiration of the Offer is referred to in this Agreement as the "Offer
Closing", and the date on which the Offer
Closing occurs is referred to in this Agreement as the "Offer
Closing Date". Merger Sub expressly reserves the right to, in
its sole discretion, following the Offer Closing, extend the Offer for a
"subsequent offering period" in accordance with Rule 14d-11 under
the Exchange Act, and the Offer Documents (as defined below) may, in Merger Sub's sole discretion, provide for such a
reservation of right. Nothing contained in this Section 1.1(a) shall affect any termination rights in ARTICLE VIII.

       

       

      
        
          
          

        

        
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      (b)           On the date of commencement of the
Offer, Parent and Merger
Sub shall file with the SEC
a Tender Offer Statement on Schedule TO with respect to the
Offer (together
with all amendments and supplements
thereto and including exhibits thereto, the "Schedule
TO"), which shall contain an offer to
purchase and a related letter of transmittal and summary advertisement and other appropriate ancillary offer
documents (such Schedule TO
and the documents included therein pursuant to which the Offer will be made,
together with any supplements or amendments thereto, the "Offer
Documents"), and cause the Offer Documents to be
disseminated to the stockholders of the Company as and to the extent
required by Federal securities laws. Each of Parent, Merger Sub and the Company shall promptly correct
any information supplied by it for inclusion or incorporation by reference in the Offer
Documents if and to the extent that such information shall have become false or
misleading in any material respect, and each of Parent and Merger Sub shall take all steps necessary to amend
or supplement the Offer Documents and to cause the Offer Documents as
so amended or supplemented to be filed with the SEC and disseminated to the
stockholders of the Company, in each case
as soon as reasonably
practicable and as and to the extent required by applicable
Federal securities laws.
Parent and Merger
Sub shall promptly notify
the Company upon the receipt of any comments from the SEC, or any request from
the SEC for amendments or supplements, to the Offer Documents, and shall
promptly provide the Company with copies of all correspondence and summaries of all
material oral communications between them and their representatives, on the one
hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents
(including any amendment or supplement thereto) with the SEC or dissemination thereof to the
stockholders of the Company, or responding to any
comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and
comment on such Offer
Documents or response, and Parent and Merger Sub shall give reasonable consideration to
any such comments. In the event that Parent or Merger Sub receives any comments from the SEC or
its staff with respect to the Offer Documents, each shall use its reasonable best efforts to (i) respond promptly to such
comments and (ii) take all other actions necessary to resolve the issues raised
therein.

       

      (c)           Parent shall provide or cause to be
provided to Merger
Sub on a timely basis the
consideration necessary to pay for any shares of Company Common
Stock that Merger
Sub becomes obligated to
accept for payment, and pay for, pursuant to the Offer and shall cause
Merger Sub to fulfill all of Merger Sub's obligations under this
Agreement.

       

      (d)           Parent, Merger Sub or the paying agent for the Offer
(the "Paying Agent")
shall be entitled to deduct and withhold from the consideration otherwise
payable pursuant to the Offer to any holder of shares of Company Common Stock
such amounts as Parent, Merger Sub or the Paying Agent is required to
deduct and withhold with respect to the making of such payment
under the Internal Revenue Code of 1986, as amended, and applicable Treasury
Regulations issued pursuant thereto (the "Code"), or any provision of state, local or foreign
Tax law. To the extent that
amounts are so withheld and
paid over by Parent, Merger
Sub or the Paying Agent to
the appropriate taxing authority, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the holder of the shares of
Company Common Stock in
respect of which such deduction and withholding was made by Parent, Merger Sub or the Paying
Agent.

       

      Section
1.2          Company
Actions.

       

       

      
        
          
          

        

        
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      (a)           The Company hereby approves and consents to the Offer, the Merger and
the other transactions contemplated by this Agreement and the Contingent
Cash Consideration Agreements and represents that the Board of
Directors, at a meeting duly called and held has unanimously

       

      (i)           determined that the Offer, the Merger, this Agreement, Contingent Cash Consideration
Agreements and the
transactions contemplated hereby and thereby are advisable, fair to and in the best interests of the
Company and its stockholders;

       

      (ii)          adopted this Agreement and approved the
transactions hereby;

       

      (iii)          resolved to recommend acceptance of the
Offer and, if required, approval of the Merger by its stockholders; and

       

      (iv)         taken all other actions necessary to
exempt the Offer, the Merger, this Agreement, the Contingent Cash Consideration
Agreements and the
transactions contemplated hereby and thereby from any "fair price", "moratorium", "control share acquisition", "interested stockholder", "business combination" or other similar statute or
regulation ("Takeover
Statute").

       

      (b)           On the date the Offer Documents are
filed with the SEC, the Company shall file with the SEC a
Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer
(such Schedule 14D-9, together with any supplements or amendments thereto, the
"Schedule
14D-9") containing, subject to Section 6.5(b), the recommendation described in Section 1.2(a)(iii) and shall mail the Schedule 14D-9 to
the stockholders of the Company as required by Rule
14d-9 under the Exchange Act.  Each of the Company, Parent and
Merger Sub shall promptly correct any information
supplied by it for
inclusion or incorporation by reference in the Schedule 14D-9 if and to the
extent that such information shall have become false or misleading in any
material respect, and the Company shall take all steps necessary to amend or
supplement the Schedule 14D-9 and to cause the Schedule
14D-9 as so amended or supplemented to be filed with the SEC and disseminated to
the stockholders of the Company, in each case
as soon as reasonably
practicable and as and to
the extent required by applicable Federal securities laws. The Company shall
promptly notify Parent upon the receipt of any comments from the SEC, or any
request from the SEC for amendments or supplements, to the Schedule 14D-9, and
shall promptly provide Parent with copies of all correspondence and summaries of all material oral
communications between the Company and its representatives, on the one hand, and
the SEC, on the other hand. Prior to the filing of the Schedule 14D-9 (including
any amendment or supplement thereto) with the SEC or mailing thereof to the stockholders of the Company, or responding to any
comments of the SEC with respect to the Schedule 14D-9, the Company shall
provide Parent and its
counsel a reasonable opportunity to review and
comment on such Schedule 14D-9 or response, and the Company shall give
reasonable and good
faith consideration to any
comments made by Parent,
Merger Sub and their counsel. The Company hereby consents to the
inclusion in the Offer Documents of the recommendation of the Board of Directors
of the Company contained in
the Schedule 14D-9.  In the event that the Company receives
any comments from the SEC or its staff with respect to the Schedule 14D-9, it
shall use its reasonable best efforts to (i) respond promptly to such
comments and (ii) take all other actions necessary to resolve the
issues raised therein.

       

      
        
          
          

        

        
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      (c)           In connection with the Offer and the
Merger, the Company shall cause its transfer agent to furnish Parent and
Merger Sub promptly (and no later than the date hereof) with mailing labels containing
the names and addresses of
the record holders of
Company Common Stock as of the latest practicable date and of those persons becoming
record holders subsequent to such date, together with copies of all lists of
stockholders, security position listings and
computer files and all
other information in the Company's possession or control regarding the
beneficial owners of Company Common Stock, and shall furnish to Parent and Merger Sub such information and assistance
(including periodically
updated lists of
stockholders, security position listings and
computer files) as Parent may reasonably request in communicating the Offer to
holders of Company Common
Stock.

       

      Section
1.3          Directors.

       

      (a)           Effective upon the Offer
Closing and from time to
time thereafter,
Parent shall be
entitled to designate the
number of directors, rounded up to the next whole number, on the Board of
Directors that equals the product of (i) the total number of directors on the
Board of Directors (giving effect to the election of any additional directors
pursuant to this Section 1.3) and (ii) the percentage that the
number of shares of Company Common Stock beneficially owned by Parent and/or
Merger Sub (including shares accepted for payment) bears to the total number of
shares outstanding, and the
Company shall cause Parent's designees to be elected or appointed
to the Board of Directors, including by increasing the number of directors and
seeking and accepting resignations of incumbent directors. At such time, the
Company shall also cause
individuals designated by Parent to constitute the number of members, rounded
up to the next whole
number, on (A) each
committee of the Board of Directors and (B) as requested by Parent, each
board of directors of each Subsidiary of the Company (and each committee thereof) that represents
the same percentage as such individuals represent on the Board of
Directors.


       

      (b)           The Company's obligations to appoint
Parent's designees to the Board of Directors
shall be subject to Section 14(f) of the 1934 Act and Rule 14f-1 promulgated thereunder. The
Company shall promptly take all actions necessary to effect the appointment of
Parent's designees, including mailing to its
stockholders information
with respect to the Company and its officers and directors, as
Section 14(f) and Rule
14f-1 require in order to fulfill its obligations under this Section 1.3(b), which, unless Parent otherwise elects,
shall be mailed together with the Schedule 14D-9. Parent shall supply to the Company in
writing and be solely
responsible for any information with respect to itself and its nominees,
officers, directors and affiliates required by Section 14(f) and Rule 14f-1 and
the Company's obligations under Section 1.3(a) hereof shall be subject to the receipt of such
information.

       

      (c)           Following the election or appointment of
Parent's designees pursuant to Section 1.3(a) and until the Effective Time (as defined in Section 2.2(b) hereof), the approval of a majority of the
directors of the Company then in office who were not designated by Parent (the
"Independent
Directors") shall be required to authorize (and
such authorization shall constitute the authorization of the Board of Directors and no
other action on the part of the Company, including any action by any other
director of the Company, shall be required to authorize) any


       

       

      
        
          
          

        

        
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      termination of this Agreement by the
Company, any amendment of this Agreement requiring action by the Board of
Directors, any extension of time for performance of any obligation or
action hereunder by Parent or Merger Sub
and any waiver of compliance with any of the agreements or conditions contained
herein for the benefit of the Company.

       

      Section
1.4          Top-Up
Option.

       

      (a)           The Company grants to Merger Sub an
irrevocable option, for so long as this Agreement has not been terminated
pursuant to the provisions hereof (the "Top-Up
Option"), to purchase from the Company up to
the number of authorized
and unissued shares of Company Common Stock (including as authorized and unissued
shares, for purposes of this Section 1.4, any shares of Company Common Stock held in the treasury of the Company)
equal to the
number of shares that, when
added to the number of shares owned by Merger Sub at the time of exercise of the
Top-Up Option, constitutes one share more than the number of shares (the
"Requisite
Short-Form Merger Shares") entitled to cast 90% of all the votes
entitled to be cast by the
holders of the Company Common Stock on the Merger after the issuance of all
shares to be issued upon exercise of the Top-Up Option, calculated on a
fully-diluted basis or, as may be elected by Parent, on a primary basis
as of immediately prior to
the issuance of such shares (such shares to be issued upon exercise
of the Top-Up Option, the "Top-Up
Shares").

       

      (b)           The Top-Up Option may be exercised by Merger Sub, in whole
or in part at any time following the Offer Closing and
prior to the earlier to occur of (i) the Effective Time and (ii) the termination of this Agreement in
accordance with its terms,
provided that Merger Sub shall own as of such time less than the Requisite
Short-Form Merger
Shares. Notwithstanding anything in this
Agreement to the contrary, the Top-Up Option shall not be exercisable to the
extent (i) the issuance of the Top-Up Shares would
require approval of the Company's stockholders under Nasdaq Rule 4350, (ii) the number of shares of Company Common Stock issuable upon exercise of the Top-Up
Option would exceed the number of authorized but unissued shares of Company Common Stock that are not already reserved for
issuance or (iii) any other provision of applicable laws or judgment, injunction, order or
decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up
Shares. The aggregate purchase price payable for
the Top-Up Shares being purchased by Merger Sub pursuant to the Top-Up
Option shall be determined
by multiplying the number
of such shares by the Offer
Price, without interest.  Such aggregate purchase price may be paid by Merger
Sub, at its election, either in the same form of consideration as the
Offer Price or by executing
and delivering to the
Company a promissory note having a principal amount equal to such purchase
price.

       

      (c)           The parties shall cooperate to ensure
that the issuance and delivery of the Top-Up Shares comply with all applicable
laws, including compliance with an applicable exemption from registration of
the Top-Up Shares under the Securities Act of 1933 (the "Securities
Act").  In the event Merger Sub wishes to exercise the Top-Up Option,
Merger Sub shall give the Company at least three
business days prior written
notice, specifying (i)
the number of Top-Up Shares that Merger Sub intends to
purchase pursuant to the Top-Up Option; (ii) the manner in which Merger Sub intends
to pay the applicable purchase price;
and (iii) the place and time for the closing of such
purchase. At the closing of the purchase of the
Top-Up Shares, Parent and Merger Sub shall cause to be delivered to the Company
the consideration required to be delivered in exchange for the Top-Up Shares,
and the Company shall cause to be issued to Merger Sub a certificate
representing the Top-Up Shares.

       

       

      
        
          
          

        

        
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      (d)           Parent and Merger Sub acknowledge that the Top-Up Shares that
Merger Sub may acquire upon exercise of the Top-Up
Option will not be registered under the Securities Act, and will be
issued in reliance upon an
exemption thereunder for transactions not involving a public offering.
Merger Sub agrees that the Top-Up Option and the
Top-Up Shares to be acquired upon exercise of the Top-Up Option are being and
will be acquired by Merger
Sub for the purpose of investment and not with
a view to, or for resale in connection with, any distribution thereof in
violation of the Securities Act. Any certificates evidencing the Top-Up Shares
shall include any legends required by applicable securities laws.

       

       

      ARTICLE II

       

      THE
MERGER

       

      Section
2.1          The
Merger.  Upon
the terms and subject to the conditions of this Agreement, and in accordance
with the DGCL, at the Effective Time, Merger Sub shall be merged with and into
the Company.  As a result of the Merger, the separate corporate
existence of Merger Sub shall cease and the Company shall continue as the
surviving entity following the Merger (sometimes referred to herein as the
"Surviving
Corporation").  The existence of the Company shall continue
unaffected and unimpaired by the Merger and, as the Surviving Corporation, it
shall be governed by the DGCL.

       

      Section
2.2          Closing;
Effective Time.

       

      (a)           The closing of the Merger (the
"Closing") shall take place at 10:00 a.m., New
York City time, on a date to be specified by the parties, which shall be no
later than the third business day after the satisfaction or waiver of all of the
conditions set forth in Article VII hereof (other than those conditions
that by their nature are to be satisfied at the Closing, it being
understood that the occurrence of the Closing
shall remain subject to the satisfaction or waiver of such conditions at the
Closing), at the offices of Skadden, Arps, Slate, Meagher
& Flom LLP, Four Times Square, New York, New York 10036, unless another time, date or place is agreed to
in writing by the parties hereto.  The date on which the Closing
occurs is referred to herein as the "Closing
Date."

       

      (b)           Upon the terms and subject to the conditions of this Agreement, as soon as practicable on
the Closing Date, the parties shall cause the Merger to be consummated by filing
a certificate of merger (the "Certificate
of Merger") with the Secretary of State of the
State of Delaware and by
making all other filings or recordings required under the DGCL.  The Merger shall become
effective at such time as the Certificate of Merger is duly filed with the
Secretary of State of the
State of Delaware, or at
such subsequent date or time as Parent and the Company shall agree and
specify in the Certificate of Merger.  The time at
which the Merger becomes effective is referred to herein as the "Effective
Time."

       

      Section
2.3          Effect of
the Merger.  At
the Effective Time, the effect of the Merger shall be as provided in the
applicable provisions of the DGCL.  Without limiting the 

       

       

       

      
        
          
          

        

        
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      generality
of the foregoing, and subject thereto, at the Effective Time, except as
otherwise provided herein, all the property, rights, privileges, powers and
franchises of the Company and Merger Sub shall vest in the Surviving
Corporation, and all debts, liabilities, obligations, restrictions,
disabilities and duties of the Company and Merger Sub shall become the debts,
liabilities, obligations, restrictions, disabilities and duties of the Surviving
Corporation.

       

      Section
2.4          Organizational
Documents of the Surviving
Corporation.  The
Company Certificate of Incorporation, as in effect immediately prior to the
Effective Time, shall be the Certificate of Incorporation of the Surviving
Corporation until thereafter changed or amended as provided therein or by
applicable Law.  The Bylaws of the Company, as in effect immediately
prior to the Effective Time, shall be the Bylaws of the Surviving Corporation
until thereafter changed or amended as provided therein or by applicable
Law.

       

      Section
2.5          Directors
and Officers of
the Surviving
Corporation.  The
directors of Merger Sub immediately prior to the Effective Time shall be the
directors of the Surviving Corporation until the earlier of their resignation or
removal or until their respective successors are duly designated, as the case
may be.  The officers of the Company immediately prior to the
Effective Time shall be the initial officers of the Surviving Corporation until
the earlier of their resignation or removal or until their respective successors
are duly designated, as the case may be.

       

       

      ARTICLE III

       

      EFFECTS OF THE MERGER;
EXCHANGE OF CERTIFICATES

       

      Section
3.1          Effect on
Capital Stock.  Upon
the terms and subject to the conditions of this Agreement, at the Effective
Time, by virtue of the Merger and without any action on the part of Parent,
Merger Sub, the Company or the holders of any shares of Company Common
Stock:

       

      (a)           Conversion
of Company Common Stock.  Each share of Company Common Stock issued
and outstanding immediately
prior to the Effective Time (including without limitation all vested and
unvested shares of restricted stock issued in connection with restricted
stock awards granted to the executive officers of the Company (the transfer
restrictions on which shares shall terminate immediately prior to the Effective
Time) but not including shares to be canceled pursuant to Section 3.1(c) hereof and Dissenting
Shares) shall be converted into the right to
receive cash
and Contingent Cash
Consideration
Payments equal in
form and amount
to the Offer Price paid in the
Offer (the "Merger
Consideration"). As of the Effective Time, all such
shares of Company Common Stock shall no longer be outstanding and shall
automatically be canceled and shall cease to exist, and each holder of
any Company Common
Stock shall cease to have
any rights with respect thereto, except the right to receive the Merger Consideration, to be issued or paid in consideration
therefor in accordance with Section 3.2, without interest.

       

      (b)           Conversion
of Merger Sub
Common Stock.  Each share of common stock, par value $0.01 per
share, of Merger Sub (the "Merger Sub Common
Stock") that is issued and outstanding
immediately prior to the Effective Time shall be converted into one validly
issued, fully paid and nonassessable share of common stock, $0.001 par value per share, of the
Surviving Corporation, and the shares of the Surviving Corporation into which
the shares of Merger Sub Common Stock are so converted shall be the only shares
of the 

       

       

      
        
          
          

        

        
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      Surviving Corporation that are
issued and outstanding
immediately after the Effective Time.  Following the Effective Time, each
certificate evidencing ownership of shares of Merger Sub Common Stock shall
evidence ownership of such shares of the Surviving
Corporation.

       

      (c)           Cancellation
of Certain
Shares.  Each
share, if any, of Company Common Stock that is held by the Company as
treasury shares and each share of Company Common Stock which is owned by the Company or
Parent or by any direct or indirect wholly-owned subsidiary of the Company or Parent shall
be canceled without any
conversion, and no consideration shall be
delivered in respect thereof.

       

      (d)           Company
Options.  Effective not later than the Closing,
the Company shall take all actions required to provide that, effective as of the
Closing, the Company Stock
Plans (as defined in Section 4.2(a) hereof) and all Company Options (as defined in Section 4.2(a) hereof) outstanding immediately before the
Closing shall be cancelled and of no further force or effect, and in consideration for
such cancellation of
Company Options outstanding
under the Company Stock Plans immediately before the Closing,
the holders thereof
(whether or not such
Company Options shall
otherwise be exercisable at the Effective Time) shall automatically (and without any further action being required on the
part of the holders thereof) receive, at the earliest Valuation Point
(as defined in Section 9.14(ff)), if any, at which then applicable Per Share
Paid Value (as defined in Section 9.14(y)) exceeds the per-share exercise price
under such Company Option:

       

      (i)           an amount in cash equal to (A) the
number of shares of Company Common Stock subject to each such Company Option held by such holder multiplied by the excess, of
(I) then applicable Per Share Paid Value over (II) the per-share exercise price under such Company Option (with such payments to be subject to
any applicable Tax withholding in accordance with Section 3.1(h)); and

       

      (ii)          the
right to receive, in respect of each share of Company Common Stock subject to
each such Company Option held by such holder, each Contingent Cash Consideration
Payment that, as of such Valuation Point, has not yet become payable pursuant to
the terms of the Contingent Cash Consideration Agreements.

       

      (e)           Other Equity
Awards. Each other award outstanding immediately
before the Effective Time under the Company Stock Plans other than the
Company Options (including, without limitation, any performance share
awards (each, a "Performace Share
Award", deferred stock units, and rights under the 2008 Employee Stock Purchase Plan of
the Company (the "2008
ESPP") shall be cancelled and of no further
force or effect as of the Effective Time.  In exchange for the cancellation of each such award, to the
extent vested as of immediately before the Effective Time  in
accordance with the terms of the such award (including any vesting that occurs
under the terms of the applicable award as a result of the consummation of this
Agreement) and except as set forth in
Section 3.1(f) below with respect to certain
Performance Share Awards or in Section 3.1(g) below with repsect
to the 2008 ESPP, the holder of such awards shall receive the per share
Merger Consideration for each share of Company Common 

       

       

      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      

       

      Stock underlying such award (with such
payment to be subject to any applicable Tax withholding in accordance with Section 3.1(h)).  Prior to the Effective
Time, the Company shall take all actions necessary such that no Person has any
rights to acquire Company Common Stock or common stock of the Parent or any of
its subsidiaries (including
the Surviving Corporation) pursuant to any Company Benefit Plan or Company
Benefit Agreement following the Effective Time.

       

      (f)           2008
Employee Stock Purchase Plan.  Each participant in the 2008
ESPP, in exchange for the
cancellation of their rights under the 2008 ESPP as set forth in Section 3.1(e) above, shall receive the per share
Merger Consideration  (with such payment to be subject to any
applicable Tax withholding in accordance with Section 3.1(h) for a number of shares equal to the
shares of Company Common Stock that would have been issued under the terms of
the 2008 ESPP with respect to such participant's payroll deductions
accumulated as of the Effective Time assuming the 2008 ESPP had been approved by
the stockholders of the Company prior to the Effective Time and assuming that
the purchase date under the 2008 ESPP was the Closing Date.   The
Company shall not commence any new purchase periods under the 2008 ESPP after
the date hereof.

       

      (g)           Withholding. Parent, the Surviving Corporation of the
Exchange Agent shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement to any holder of Company Common Stock or
Company Options such amounts as Parent, the Surviving Corporation or the
Exchange Agent is or may be reasonably required to deduct and withhold with
respect to the making of such payment under applicable Law. To the extent that amounts are so withheld and
paid over to the appropriate taxing authority by Parent, the Surviving
Corporation or the Exchange Agent, such withheld amounts shall be treated for
all purposes of this Agreement as having been paid to the holder of the Company Common Stock or Company
Options in respect of which such deduction and withholding was made by Parent,
the Surviving Corporation or the Paying Agent.

       

      Section
3.2          Exchange of Shares and
Certificates.

       

      (a)           Exchange
Agent.  At or
prior to the Effective Time, Parent shall engage a nationally-recognized
financial institution reasonably satisfactory to the Company to act as


       

       

      
        
          
          

        

        
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      exchange agent in connection with the Merger (the
"Exchange
Agent").  At the Effective Time,
Parent shall deposit with the Exchange Agent, in trust for the benefit
of the holders of shares of Company Common Stock immediately prior to the
Effective Time, the cash portion of the Merger Consideration to be paid in
respect of the Company Common Stock.  All cash deposited with the Exchange Agent shall hereinafter be
referred to as the "Exchange
Fund."

       

      (b)           Exchange
Procedures.  Promptly after the
Effective Time, Parent shall cause the Exchange Agent to mail to each holder of
record of (i) a certificate or certificates which immediately prior to the
Effective Time represented outstanding shares of Company Common Stock (the "Certificates") or (ii) uncertificated shares of Company Common Stock (the "Uncertificated
Shares"), in each case, which at the Effective Time were
converted into the right to receive the Merger Consideration pursuant to
Section 3.1 hereof, (i) a letter of
transmittal (which, in the case of
Certificates, shall specify
that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Exchange
Agent and shall be in such form and have such other provisions as Parent may
reasonably specify) and (ii) instructions for use in effecting the
surrender of the Certificates or Uncertificated Shares in exchange for the Merger
Consideration.  Upon (i) surrender of Certificates for
cancellation to the Exchange Agent or to such other agent or agents as may be
appointed by Parent,
together with such letter of transmittal,
duly completed and validly executed in accordance with the instructions thereto or (ii) or receipt of an "agent's message" by the Exchange Agent (or such other
evidence, if any, of transfer as the Exchange Agent may reasonably request) in the
case of a book-entry transfer of Uncertificated Shares, and such other documents as may
reasonably be required by the Exchange Agent, the holder
of such Certificates or
Uncertificated Shares shall
be entitled to receive in
exchange the portion of the Merger Consideration to which such holder is entitled
pursuant to Section 3.1, and any Certificates so surrendered shall forthwith
be cancelled.  If
any portion of the Merger Consideration is to be paid to a
Person  (as
defined in Section 9.14(dd)) other than the Person in whose name the
surrendered Certificate or the transferred Uncertificated Share is registered,
it shall be a condition to such payment that (i) either such Certificate shall be properly
endorsed or shall otherwise be in proper form for transfer or such
Uncertificated Share shall be properly transferred and (ii) the Person
requesting such payment shall pay to the Exchange Agent any transfer or
other Taxes required as a result of such
payment to a Person other than the registered holder of such Certificate or
Uncertificated Share or establish to the satisfaction of Parent that such Tax has been paid or is not
payable.  Until surrendered as
contemplated by this
Section 3.2(b), each Certificate or Uncertificated Share shall be deemed at any time after the
Effective Time to represent only the right to receive the Merger Consideration upon such
surrender.

       

      (c)           No Further
Ownership Rights in
Company
Common
Stock.  All Merger Consideration issued and paid upon the surrender for exchange of
Certificates or
Uncertificated Shares in
accordance with the terms of this Article III shall be deemed to have been
issued and paid in full
satisfaction of all rights pertaining to the shares of Company Common Stock previously represented by such
Certificates or
Uncertificated Shares.  At the Effective Time, the
stock transfer books of the Company shall be closed and there shall be no further registration of
transfers on the stock transfer books of
the Surviving
Corporation of the shares
of Company Common Stock which were outstanding immediately
prior to the Effective Time.  If, after the Effective Time,
Certificates or
Uncertificated Shares
are presented to the
Surviving
Corporation


       

       

      
        
          
          

        

        
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      or the Exchange Agent for any reason,
they shall be cancelled and exchanged as provided in this
Article III.

       

      (d)           Termination
of Exchange Fund.  Any portion of the
Exchange Fund which remains
undistributed to the holders of Company Common Stock six months after the Effective Time shall be
delivered to Parent, upon demand, and any holders of Company Common Stock who have not theretofore complied with this Article III shall thereafter look only to Parent for payment of
their claim for the Merger Consideration.

       

      (e)           No
Liability.  None
of Parent, Merger Sub, the Company or the Exchange Agent or any of their
respective directors, officers, employees and agents shall be liable to any
Person in respect of Merger
Consideration delivered to
a public official pursuant to any applicable abandoned property, escheat or
similar law.  If any Certificate or Uncertificated Share shall not have been surrendered prior to three years after the Effective Time, or
immediately prior to such earlier date on which any cash or Contingent Cash Consideration Payments would otherwise escheat to or become the
property of any Governmental Entity (as defined in
Section 4.5), any such cash or Contingent Consideration Cash Payments shall, to the extent permitted by applicable
Law, become the property of the Surviving Corporation, free and clear of all claims or
interests of any Person previously entitled thereto.

       

      (f)           Investment
of Exchange Fund.  The Exchange Agent shall
invest any cash included in the Exchange Fund as directed by Parent on a daily
basis provided that no such investment or loss thereon shall affect
the amounts payable to former stockholders of the Company after the Effective Time
pursuant to this Article III.  Any interest and other
income resulting from such investment shall become a part of the Exchange Fund,
and any amounts in excess of the amounts payable pursuant to this Article III shall promptly be paid to
Parent.

       

      (g)           Withholding
Rights.  Parent
and the Exchange Agent shall be entitled to deduct and withhold from any
consideration payable pursuant to this Agreement to any Person who was a holder of Company Common Stock immediately prior to the Effective
Time such amounts as Parent or the Exchange Agent may be required to deduct and
withhold with respect to the making of such payment under the
Code or any other provision of
federal, state, local or
foreign tax law.  To the extent that amounts are so withheld by Parent
or the Exchange Agent, such withheld amounts
shall be treated for all purposes of this Agreement as having been paid to the
Person to whom such consideration would otherwise have been
paid.

       

      (h)           Lost, Stolen
or Destroyed Certificates.  In the event any
Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall
issue in exchange for such lost, stolen or
destroyed Certificates, upon the making of an
affidavit of that fact by
the holder thereof, such portion of the Merger
Consideration as may be
required pursuant to Section 3.1(a); provided, however, that Parent may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed Certificates to deliver an agreement of indemnification in
form reasonably satisfactory to Parent, or a bond in such sum as Parent may
reasonably direct as indemnity, against any
claim that may be made
against Parent or the Exchange Agent in respect of the Certificates alleged to
have been lost, stolen or destroyed.

       

       

      
        
          
          

        

        
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      Section
3.3          Dissenting
Shares.  Notwithstanding
any provision of this Agreement to the contrary, shares of Company Common Stock
that are issued and outstanding immediately prior to the Effective Time and
which are held by holders of such shares of Company Common Stock who properly
exercise appraisal rights with respect thereto in accordance with Section 262 of
DGCL (the "Dissenting
Shares") shall not be exchangeable for the right to receive the Merger
Consideration, and holders of such Dissenting Shares will be entitled only to
receive payment of the appraised value of such shares of Company Common Stock in
accordance with the provisions of such Section 262 unless and until such holders
fail to perfect or effectively withdraw or lose their rights to appraisal and
payment under the DGCL.  If, after the Effective Time, any such holder
fails to perfect or effectively withdraws or loses such right, such shares of
Company Common Stock will thereupon be treated as if they had been converted
into and to have become exchangeable for, at the Effective Time, the right to
receive the Merger Consideration without any interest thereon. The Company shall
give Parent (i) prompt notice of any demands received by the Company for
appraisals of shares of Company Common Stock and (ii) the opportunity to direct
all negotiations and proceedings with respect to demands for appraisal under the
DGCL. The Company shall not, except with the prior written consent of Parent,
make any payment with respect to any demands for appraisal or offer to settle or
settle any such demands.

       

      Section
3.4          Nebido
CCCP
Escrow.  At
the Offer Closing, Parent will deposit $175,000,000] million in cash with the
Paying Agent under the Nebido Contingent Cash Consideration Agreement, which
amount is equal to the aggregate Approval With Label Payment Amount (as defined
in the Nebido Contingent Cash Consideration Agreement) payable upon the
occurrence of the Approval With Label Milestone Date (as defined in the Nebido
Contingent Cash Consideration Agreement) by such Paying Agent in accordance with
the Nebido Contingent Cash Consideration Agreement.

       

       

      ARTICLE IV

       

      REPRESENTATIONS AND
WARRANTIES OF COMPANY

       

      The
Company represents and warrants to Parent and Merger Sub as of the date hereof
and as of the Closing Date (except for those representations and warranties made
as of a specific date or time) as follows (except (i) as set forth in the
written disclosure letter (which letter shall in each case specifically identify
by reference to Sections of this Agreement any exceptions to each of the
representations, warranties and covenants contained in this Agreement; provided, however, that any
information set forth in one section of such disclosure letter shall be deemed
to apply to each other section or subsection thereof or hereof to which its
relevance is readily apparent on its face) delivered by the Company to Parent
and Merger Sub in connection with the execution and delivery of this Agreement
(the "Company
Disclosure Letter") or (ii) as disclosed
in the Company SEC Reports (as defined in Section 4.7(a)) on or prior to the
date hereof (and without regard to any amendment thereto filed after the date of
this Agreement)):

       

      Section
4.1          Organization,
Standing and Corporate Power

       

      (a)           The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has
all requisite corporate power and 

       

       

      
        
          
          

        

        
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      authority and all necessary governmental
approvals to own, lease and operate its properties and to carry on its business
as now being conducted,
except where the failure to have such governmental approvals would not, individually or in
the aggregate, reasonably be expected to have a Company Material Adverse Effect (as defined in Section 9.14(hh)).  The Company is duly
qualified or licensed to do business and is in good standing in each jurisdiction in which
the nature or conduct of its business or the ownership, leasing or operation of
its properties requires it to be so qualified, licensed or in good standing,
except for such jurisdictions where the failure to be so qualified, licensed or to be in good
standing would not, individually or in the aggregate,
reasonably be
expected to have a
Company Material Adverse Effect.

       

      (b)           Each Company Subsidiary (as defined in
Section 4.2(d)) is a corporation or other legal entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization and has all requisite corporate (or similar) power
and authority and all necessary governmental approvals to own, lease and operate its properties
and to carry on its business as now being conducted, except where the failure to have such
governmental approvals would not, individually or in the aggregate, reasonably
be expected to have a Company Material Adverse Effect.  Each Company Subsidiary is
duly qualified or licensed to do business and is in good standing in each
jurisdiction in which the nature or conduct of its business or the ownership,
leasing or operation of its properties requires it to be so
qualified, licensed or in
good standing, except for such jurisdictions where the failure to be so
qualified, licensed or to be in good standing would not, individually or in the aggregate,
reasonably be expected
to have a Company Material Adverse
Effect.

       

      (c)           The Company has furnished or made available to Parent true
and complete copies of the Restated Certificate of Incorporation of the Company,
as amended through the date of this Agreement (as so amended, the "Company
Certificate of Incorporation"); the Bylaws of the Company, as amended through the date of this Agreement (as
so amended, the "Company
Bylaws" and together with the Company
Certificate of Incorporation, "Company
Organizational Documents"); and the comparable charter and organizational documents
of each Company Subsidiary, in each case as amended through
the date of this Agreement.  The Company Organizational Documents are
in full force and effect and have not been amended or otherwise
modified.  The Company is not in violation of any provision of the
Company Organizational Documents, and no Company Subsidiary is in material violation of any provision of its
certificate of incorporation, bylaws or equivalent organizational
documents.  The Company has made available to Parent complete and
correct copies of the minutes (or, in the case of minutes that have not yet been
finalized, drafts thereof) of all meetings
of the stockholders of the Company and each of the Company Subsidiaries (to the extent available), the boards of directors of the Company and each of the
Company Subsidiaries (to
the extent available) and
the committees of each such board of directors, in each case held since January
1, 2006 and prior to the date
hereof.

       

      Section
4.2          Capitalization

       

      (a)           The authorized capital stock of
the Company consists of (i) 200,000,000 shares of Company Common Stock, par value $0.001
per share, and (ii) 5,000,000 shares of preferred stock, par value
$0.001 per share
("Company
Preferred
Stock").  At the close of business on
December 31,
2008, (i) 78,187,842 shares of Company Common Stock were issued


       

      
        
          
          

        

        
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      and outstanding,
(including 540,230  shares of Company Common Stock that were outstanding as of the relevant time
but were subject to vesting
or other forfeiture restrictions or a right of repurchase by Company as of such time), (ii) zero shares of Company Common Stock were held by Company in its treasury, (iii) an
aggregate 17,450,020
shares of Company Common Stock were reserved for issuance pursuant to outstanding awards and rights
under the Company's 1994 Long-Term Incentive Plan,
1995 Employee Stock Purchase Plan, 1998 Employee Stock Option Plan, 2000 Stock
Option Plan, 2004 Equity Incentive Plan and 2008 Employee Stock Purchase Plan
(collectively, the
"Company
Stock Plans"), of which (A) 13,063,089 shares of Company Common Stock were subject to
outstanding and unexercised options entitling the holder thereof to purchase a
share of Company Common Stock (each, a "Company
Option"), (B) up to 1,083,828 shares of Company Common Stock were issuable pursuant to
outstanding performance share awards with service and market-based vesting criteria, (C) 100,000 shares of Company Common Stock were issuable pursuant to
deferred stock units, (D) 1,500,000 shares were reserved under the Company's
2008 Employee Stock Purchase Plan and (E) 1,703,103 shares of Company Common
Stock that are reserved but are not allocated to any specific outstanding rights
or awards, (iv) 355,442 shares were reserved for issuance relating to
outstanding obligations regarding CPEC LLC, and (v) 10,806,040 shares of Company Common Stock are
reserved for issuance upon conversion of the 6.25% Convertible Senior Notes due
2009.  At the close of business on
January 2, 2009, no shares of Company Preferred Stock were issued and
outstanding.

       

      (b)           Except as set forth in Section 4.2(a) above, at the close of business
on January 2,
2009, no shares of capital stock
or other voting securities
of the Company were issued, reserved for issuance or
outstanding.  From January 1, 2009, until the date of this Agreement,
there have been no issuances by the Company of shares of capital stock of, or other
equity or voting interests in, the Company, other than the issuance of shares of
Company Common Stock pursuant to the exercise
of Company Options outstanding as of January 1, 2009, in accordance with their
terms.  Except as set forth in Section 4.2(a) above, as of the date hereof, there are no
options, warrants, convertible or exchangeable securities, subscriptions, stock
appreciation rights, phantom stock rights or stock equivalents or other rights,
agreements, arrangements or commitments (contingent or otherwise) of any character issued or
authorized by the
Company or any Company Subsidiary (i) relating to any issued or unissued
capital stock or equity interest of the Company or any Company Subsidiary, (ii) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be
issued, delivered or sold, any shares of capital stock of, or options, warrants,
convertible or exchangeable securities, subscriptions or other
equity interests in the
Company or any Company Subsidiary or (iii) that give any Person the right to receive any economic
benefit or right similar to or derived from the economic benefits and rights
accruing to holders of capital stock of the Company or any Company Subsidiary (each of (i), (ii) and (iii), collectively, the "Company
Stock Rights"). All outstanding shares of
Company Common Stock are, and all shares of
Company Common Stock that may be issued prior to
the Effective Time will be when issued, duly authorized, validly issued, fully
paid and
nonassessable.  There are no outstanding contractual obligations of
the Company or any Company Subsidiary to repurchase, redeem or
otherwise acquire any capital stock or
equity interest of the
Company (including any
shares of Company Common Stock) or any Company Subsidiary or any Company Stock Rights or to pay any dividend or
make any other distribution in respect thereof or to provide
funds to, or make any investment (in the form of a loan,
capital contribution or otherwise) in, any
Person, other than pursuant to the Company Stock Plans.

       

      
        
          
          

        

        
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      (c)           Section 4.2(c) of the Company Disclosure
Letter sets forth a true, complete and correct list, as of January 2,
2009, of (i) all Company
Options, the number of shares of Company Common Stock subject thereto, the grant
dates, expiration dates,
the exercise or base prices and the names of the holders thereof, and (ii) all
other outstanding awards
under the Company Stock
Plans, the number of shares of Company Common Stock subject thereto, the holders thereof and the vesting schedules
thereof.  Each outstanding Company Option, restricted stock award,
deferred stock unit, performance stock award and employee stock purchase plan
right, may, be treated at the Effective Time as set forth in Section 3.1.

       

      (d)           Exhibit 21 to the Company's Annual Report on Form 10-K for
the fiscal year ended
September 30, 2008 includes all the Subsidiaries of the
Company (each a "Company
Subsidiary" and together, the "Company
Subsidiaries") in existence as of the date
hereof.  All the
outstanding shares of capital stock of, or other equity interests in, each such
Company Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable and are, except as set forth in such Exhibit 21, owned directly or
indirectly by the
Company, free and clear of all pledges,
claims, liens, charges, encumbrances and security interests of any kind or
nature whatsoever (collectively, "Liens") and free of any other restriction (including any restriction on
the right to vote, sell or
otherwise dispose of such capital stock or other ownership interests),
except for restrictions imposed by
applicable securities laws.  Neither the Company nor any of the
Company Subsidiaries directly or indirectly owns or has any right or obligation to subscribe for or otherwise
acquire any equity or similar interest in, or any interest convertible into or
exchangeable or exercisable for, any
corporation, partnership, joint venture or other business association or entity (other than the
Company
Subsidiaries).

       

      Section
4.3          Authority.

       

      (a)           The Company has all necessary corporate
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and, subject to obtaining the Company Stockholder Approval
(as defined below) if required in connection with this Agreement, the Offer and the Merger, to consummate the Merger and the other
transactions contemplated hereby.  The execution, delivery and
performance by the Company of this Agreement and the consummation by the Company of the Offer and the Merger and the other transactions
contemplated hereby, have been duly authorized by all necessary corporate action on the part of the
Company and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement or to consummate the Offer and the Merger or the other transactions
contemplated hereby (other than obtaining the Company Stockholder Approval and
the filing and recordation of appropriate merger documents as required by the
DGCL).  This
Agreement has been duly
executed and delivered by
the Company and, assuming the due authorization, execution and delivery by the other parties hereto,
constitutes a legal, valid and binding obligation of the Company enforceable against the Company in
accordance with its terms subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws
affecting the rights and remedies of creditors generally and to the effect of
general principles of equity.  If approval of the Company Stockholders
is required pursuant to the
DGCL, the affirmative vote
of a majority of outstanding shares of Company Common Stock entitled to vote 

       

      
        
          
          

        

        
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      accordance with the DGCL, the Company
Certificate of Incorporation and the Company Bylaws (the "Company
Stockholder Approval") is the only vote of the holders of
capital stock of the Company necessary to approve this Agreement, the Merger and
the other transactions contemplated hereby.

       

      (b)           The Company Board, at a meeting duly
called and held, duly and
unanimously adopted resolutions (i) approving
this Agreement, the Offer,
the Merger and the other
transactions contemplated by this Agreement, (ii)
determining that this
Agreement is advisable and that the terms of the Offer, the Merger and the other transactions contemplated by this
Agreement are fair
to and in the best interests of the Company
and its stockholders, and
(iii) recommending that the
Company's stockholders adopt this
Agreement.  Such
resolutions are sufficient to render the provisions of Section 203 of the DGCL inapplicable to this Agreement and the
other Contingent Cash Consideration Agreements, the Offer, the Merger and the other transactions
contemplated by this Agreement.  To the knowledge of the Company, no other state takeover statute or
similar statute or
regulation applies or purports to apply to the Company with respect to this Agreement, the Offer, the Merger or any other transaction
contemplated by this Agreement or the Contingent Cash Consideration Agreements
and the transactions contemplated thereby.

       

      (c)           UBS Securities LLC has delivered to the Company Board its
opinion to the effect that, as of the date of such opinion and based on the
assumptions, qualifications and limitations contained therein, the consideration to be received by the
holders of Company Common
Stock (other than as set forth in such opinion) pursuant to the Offer and the
Merger, taken together, is
fair, from a financial point of view, to such holders.  The Company
will make available to Parent a correct and
complete copy of the form of such opinion solely for informational purposes after
receipt thereof by the Company.

       

      Section
4.4          No
Conflict.  The
execution and delivery of this Agreement by the Company do not, and the
performance of this Agreement by the Company and the Offer and the consummation
of the Merger and the other transactions contemplated hereby will not, (a)
assuming the Company Stockholder Approval is obtained, if required for
consummation of the Merger, conflict with or violate (i) the Company Certificate
of Incorporation or the Company Bylaws or (ii) the equivalent organizational
documents of any of the Company Subsidiaries, (b) assuming compliance with
Section 4.5 hereof and assuming the Company Stockholder Approval is obtained, if
required for consummation of the Merger, conflict with or violate any United
States federal, state or local or any foreign statute, law, rule, regulation,
ordinance, code or any other requirement or rule of law (a "Law")
or any charge, order, writ, injunction, judgment, guideline, guidance, decree,
ruling, determination, directive, award or settlement, whether civil, criminal
or administrative (an "Order"),
or any rule or regulation of any securities exchange on which the Company's
Common Stock is listed for trading, in each case applicable to the Company or
any of the Company Subsidiaries or by which any property or asset of the Company
or any of the Company Subsidiaries is bound or affected, (c) result in a breach
of or constitute a default (or an event which with notice or lapse of time or
both would become a default) under, give to others any right of termination,
amendment, acceleration or cancellation of, result in the triggering of any
payment or other obligation or any right of consent, or result in the creation
of a Lien on any property or asset of the Company or any of the Company
Subsidiaries pursuant to any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which the Company or any of the Company Subsidiaries is a 

       

       

      
        
          
          

        

        
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      party or
by which the Company or any of the Company Subsidiaries or any property or asset
of any of them is bound or affected (including any Company Material Contract (as
defined in Section 4.13) and any Company Permit (as defined in Section 4.6(b)),
or (d) result in the loss of or otherwise impair the right, title or interest of
the Company or any Company Subsidiaries in and to any of the material Company
IP, except, in the case of clauses (a)(ii), (b) and (c) above, for any such
conflicts, violations, breaches, defaults or other occurrences which have not
had and are not reasonably expected to have, individually or in the aggregate, a
Company Material Adverse Effect.

       

      Section
4.5           Required
Filings and Consents.  The
execution and delivery by the Company of this Agreement does not, and the
performance by the Company of this Agreement will not, require any consent,
approval, order, authorization or permit of, or declaration, registration,
filing with, or notification to, any United States federal, state or local or
any foreign government or any court, administrative or regulatory authority or
commission or other governmental or government-authorized authority or agency,
domestic or foreign (a "Governmental
Entity"), except for (i) applicable requirements, if any, of (A) the
Exchange Act, including, without limitation, the filing with the SEC of the
Schedule 14D-9 and the Proxy Statement (as defined in Section 6.9(a)), (B) state
securities or "blue sky" laws, (C) the DGCL to file the Certificate of Merger or
other appropriate documentation and (D) Nasdaq, (ii) those required by the HSR
Act, (iii) such filings and approvals as are required to be made or obtained
under any foreign antitrust, competition or similar Laws in connection with the
consummation of the Merger and the other transactions contemplated by this
Agreement, and (iv) the filing of customary applications and notices, as
applicable with the U.S. Food and Drug Administration ((the "FDA")
or any other federal, state, local or foreign Governmental Entity (such as the
European Medicines Agency ("EMEA")
and Health Canada) that is concerned with or regulates the marketing, sale, use,
handling and control, safety, efficacy, reliability or manufacturing of drug or
biological products or medical devices or is concerned with or regulates public
health care programs (each, a "Regulatory
Authority")).

       

      Section
4.6          Compliance;
Regulatory Compliance. Other than tax matters, employee benefits matters, labor
and employment matters, environmental matters or
intellectual property matters, which are the subjects of Sections 4.10, 4.14, 4.15, 4.16, and 4.17 respectively:

       

      (a)           Each of the Company and the Company
Subsidiaries (i) has been operated at all times in compliance with all
Laws and Orders
applicable to the Company
or any of the Company Subsidiaries or by which any property,
business or asset of the Company or any of the Company Subsidiaries is bound or
affected and (ii) is not in default or violation of any governmental
licenses, permits or franchises to which
the Company or any of the Company Subsidiaries is a party or by which the
Company or any of the Company Subsidiaries or any property or asset of the Company or any of
the Company Subsidiaries is
bound or affected other than, in the case of clauses (i) and (ii) above,
failures to comply, defaults or violations which do not have and are not
reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect.  Neither the Company nor any
Company Subsidiary has received any written
communication during the past two years from a Governmental Entity that alleges
that Company or a Company Subsidiary is not in compliance in any material
respect with any applicable Law and Order.

       

      
        
          
          

        

        
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      (b)           Each of the Company, the Company Subsidiaries and their respective employees
and, to the knowledge of the Company, business partners, as
applicable, has in effect all required filings, licenses, permits, certificates,
exemptions, orders, consents, clearances, registrations,
approvals and authorizations of all Governmental Entities (including all authorizations under the
regulations of the Federal Food, Drug and Cosmetic Act of 1938, as amended (the
"FDCA"), and the regulations of the FDA promulgated
thereunder and any of the
foregoing required by any other Regulatory Authority, including the EMEA and Health Canada) and third Persons necessary for the
conduct of the
Company's and the Company
Subsidiaries' business and the use of their properties and assets (including the marketing and sale of
the Products), as presently
conducted and used (the "Company
Permits"), and all Company Permits are valid and
in full force and effect, except where such failure has not had, or is not reasonably expected to
have, individually or in the aggregate, a Company Material Adverse Effect; and neither the Company nor any Company Subsidiary has
received written
notice from any
Governmental Entity or third Person that any such Company Permit is subject to any adverse
action which has had, or is reasonably expected to have, individually or in the
aggregate, a Company Material Adverse Effect.

       

      Section
4.7          SEC Filings;
Financial Statements.

       

      (a)           The Company has filed all forms, reports,
statements and documents
required to be filed with
the SEC since
October 1, 2006 (the "Company
SEC Reports"), each of which has complied in all
material respects with the applicable requirements of the Securities
Act and the rules and regulations promulgated thereunder, the
Exchange Act and the rules and regulations promulgated thereunder, and the
Sarbanes-Oxley Act of 2002 (the
"Sarbanes-Oxley
Act") and the rules and regulations
promulgated thereunder, each as in effect on the date so filed, except to the
extent updated, amended, restated or corrected by a subsequent Company SEC
Report filed or furnished to the SEC by the Company, and in either case, publicly available prior to
the date hereof (each, a "Company
Filed
SEC Report").  None of the Company SEC Reports (including any
financial statements or schedules included or incorporated by reference therein) contained when filed or
currently contains, and any
Company SEC Reports filed with the SEC subsequent to the date
hereof will not contain,
any untrue statement of a material fact or omission to
state a material fact required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except to
the extent updated, amended, restated or corrected by a subsequent Company Filed
SEC Report.

       

      (b)           Except to the extent updated, amended,
restated or corrected by a subsequent Company Filed SEC Report, all of
the financial statements
included in the Company SEC Reports, in each case, including any related notes
thereto, as filed with the SEC (those filed with the SEC are collectively
referred to as the "Company
Financial Statements"), comply as to form in all material respects
with applicable accounting requirements and the published rules of the SEC with respect
thereto and have been prepared in accordance with U.S. generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes thereto or, in the
case of the unaudited statements, as may be permitted by Form 10-Q
of the SEC and subject, in the case of the unaudited statements, to normal,
recurring year-end audit
adjustments).  The consolidated balance
sheets (including the related notes) included in such Company
Financial Statements (if applicable, as updated, amended, restated or corrected
in a subsequent Company Filed SEC Report) fairly present, in all material respects, the
consolidated financial position of the Company and the Company Subsidiaries at
the respective dates thereof, and the consolidated statements of operations,
stockholders' equity and cash flows (in each case,
including the related
notes) included in such Company Financial Statements (if applicable, as updated,
amended, restated or corrected in a subsequent Company Filed SEC


       

       

      
        
          
          

        

        
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      Report) fairly present, in all material respects, the
consolidated statements of operations, stockholders' equity and cash flows of the Company
and the Company Subsidiaries for the periods indicated, subject, in the case of
the unaudited statements, to normal, recurring year-end audit
adjustments.

       

      (c)           Neither the Company nor any Company
Subsidiary has any material
Liabilities (as defined
below) except for (i)
Liabilities that are reflected, or for which reserves were established, on the
audited consolidated balance sheet of the Company and the Company
Subsidiaries as of
September 30, 2008, (ii) Liabilities incurred in the ordinary course of
business and consistent with past practice since September 30, 2008, (iii) Liabilities that are disclosed in
the Company SEC Reports and (iv) Liabilities incurred in connection with this
Agreement and the transactions contemplated hereby.  As used in this
Agreement, the term "Liability" means any and all debts, liabilities and obligations,
whether accrued or fixed, absolute or contingent, known or unknown or matured or unmatured, including
those arising under any Law and those arising under any
Contract.

       

      (d)           Each of the principal executive officer
of the Company and the
principal financial officer of the Company (or each former principal executive
officer of Company and each former principal financial officer of the Company,
as applicable) has made all applicable certifications required by Rule 13a-14 or
15d-14 under the Exchange
Act and Sections 302 and 906 of the Sarbanes-Oxley Act with respect to the
Company SEC Reports, and the statements contained in such certifications are true and
accurate.  For purposes of this Agreement, "principal executive officer" and "principal financial officer" shall have the meanings given to such
terms in the Sarbanes-Oxley Act.  Neither the
Company nor any of the Company Subsidiaries has any outstanding, or has arranged any
outstanding, "extensions of credit" to directors or executive officers within the meaning of Section 402 of the Sarbanes-Oxley
Act.

       

      (i)           The Company maintains a system of
"internal control over financial reporting" (as defined in Rules 13a-15(f) and
15d-15(f) under the Exchange Act) sufficient to provide reasonable assurance (A) that transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP, consistently applied, (B) that transactions are executed
only in accordance with the authorization of management and (C) regarding prevention or timely detection of the unauthorized acquisition,
use or disposition of the Company's assets.

       

      (ii)           The Company's "disclosure controls and
procedures" (as defined in Rules 13a-15(e) and
15d-15(e) under the Exchange Act) are reasonably designed to ensure that all information (both
financial and non-financial) required to be disclosed by the Company in the reports
that it files or submits under the Exchange Act is recorded, processed,
summarized and reported within the time periods specified in the rules and forms of the SEC, and that
all such information is accumulated and communicated to the
Company's management as appropriate to
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      certifications of the chief executive
officer and chief financial
officer of the Company required under the Exchange Act with respect to such
reports.

       

      (iii)         
Neither the Company nor any of the
Company Subsidiaries is a party to, or has any commitment to become a party to, any joint
venture, off-balance sheet partnership or any similar contract
(including any contract or arrangement relating to any transaction or
relationship between or among the Company or any of the Company Subsidiaries,
on the one hand, and any unconsolidated Affiliate, including any
structured finance, special
purpose or limited purpose entity or Person, on the other hand, or any "off-balance sheet
arrangements" (as defined in Item 303(a) of
Regulation S-K of the SEC), where the result, purpose or intended effect of such contract
is to avoid disclosure of
any material transaction involving, or material liabilities of, the Company or
any of the Company Subsidiaries in the
Company's or such Company Subsidiary's published financial statements or other Company SEC
Reports.

       

      (iv)         Since October 1, 2006, the Company has not received any oral or
written notification of any (x) "significant deficiency" or (y) "material weakness" in the Company's internal control over financial
reporting.  For
purposes of this Agreement, the terms "significant deficiency" and "material weakness" shall have the meanings assigned to
them by the Public Company
Accounting Oversight Board in Auditing Standard No. 2, as in effect on the date
hereof.

       

      (e)           None of the Company Subsidiaries is, or
has at any time since October 1, 2006 been, subject to the reporting
requirements of Sections 13(a) and 15(d) of the Exchange
Act.

       

      Section
4.8          Absence of
Certain Changes or Events.  Except
as contemplated by this Agreement, since the date of the most recent audited
financial statements included in the Company SEC Reports and through the date
hereof, each of the Company and the Company Subsidiaries has conducted its
respective businesses only in the ordinary course in all material respects and
in a manner consistent with prior practice in all material respects and there
has not been any event or occurrence of any condition that has had or is
reasonably expected to have, individually or in the aggregate, a Company
Material Adverse Effect.  Except as contemplated by this Agreement,
since the date of the most recent audited financial statements included in the
Company SEC Reports and through the date hereof, there has not been (i) any
material change in accounting methods, principles or practices employed by the
Company, other than as required by Law or GAAP or (ii) any action of the types
described in Section 6.1(b) which, had such action been taken after the date of
this Agreement, would be in violation of such Section.

       

      Section
4.9          FDA
and Related
Matters.

       

      (a)           Section 4.9 of the Company Disclosure Letter sets
forth a true and complete list of all Regulatory Authorizations from the FDA, EMEA and all other Regulatory Authorities owned by the Company or the Company
Subsidiaries or held by
Company Partners (as defined in Section 4.9(b) hereof) and relating to the Core Products (as defined in Section 9.14(g)) and used in the conduct of the Company's business, and there are no other Regulatory


       

       

      
        
          
          

        

        
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      Authorizations required for the Company,
the Company Subsidiaries
or the Core Products in connection with the conduct of the Company's business as currently conducted.  All such Regulatory
Authorizations owned by the
Company or a Company Subsidiary are, and to the knowledge of the Company
all other Regulatory Authorizations are, in all material respects, (i) in full force and effect,
(ii) validly registered and
on file with applicable
Regulatory Authorities,
(iii) in compliance with all formal filing
and maintenance
requirements, and (iv) in
good standing, valid and enforceable.  The Company and the
Company Subsidiaries have
filed all required notices and responses to notices,
supplemental applications, reports (including adverse
experience reports) and other information with the FDA, EMEA and all other applicable Regulatory
Authorities.

       

      (b)           Without limiting the generality of any other
representations and warranties made by the Company under this Agreement,
to the knowledge of the Company, the conduct of the business of the Company
and the Company Subsidiaries as currently conducted is in compliance in all material respects with (1)
all written communications,
requirements and applicable Laws and Orders of the FDA, EMEA and other Regulatory Authorities and (2) all Regulatory
Authorizations,
including all requirements
of the FDA, the EMEA and all other Regulatory Authorities in warning letters,
notices of adverse findings and Section 305 notices and similar letters or
notices, and in connection with all product recalls, notifications and safety
alerts, and any request from the FDA, the EMEA or any Regulatory Authority requesting the Company or
any Company Subsidiary to cease to investigate, test or market any product, and
all consent decrees (including plea agreements) issued with respect to the
Company or any Company
Subsidiary.  There are no, and have not
been, any inspection
reports, warning letters, notices of adverse findings, Section 305
notices or similar written documents received by the Company or, to the
knowledge of the Company, by any Company Partner, that assert a lack of compliance with any
applicable Laws, Orders, or regulatory requirements that have not been fully resolved
to the satisfaction of the FDA, the EMEA or any other Regulatory Authorities, as applicable.  None of the Company or any of the Company Subsidiaries has knowledge
(or has been notified by a
third party) of any pending regulatory action, investigation or inquiry of any
sort by the FDA, EMEA or any other Regulatory Authority (other than non-material routine or
periodic inspections or reviews) against any of the
Company, a
Company Subsidiary, the
Core Products or any Person that manufactures, develops or distributes the Core Products pursuant to a development,
commercialization, manufacturing, supply or other collaboration arrangement with
the Company or any Company Subsidiary (each, a "Company
Partner"), and, to the knowledge of the
Company, there is no basis
for any adverse regulatory action.  Without limiting the
foregoing, (i) to the knowledge of the Company,
there have been no product
recalls, warnings,
notifications or safety alerts conducted or issued by the Company or
Company Subsidiaries, the
FDA, the EMEA or any other Regulatory Authorities with respect to the Company's and the Company Subsidiaries' Products, none of the foregoing has been
requested or demanded by the FDA, the EMEA or any other Regulatory Authorities, and to the Company's knowledge, and there is no reasonable basis for any of the foregoing; (ii) none of the Company, the Company
Subsidiaries or, to the knowledge of the Company, any of their respective agents or
subcontractors, has been convicted of any
crime or engaged in any conduct which would reasonably be expected to
result in criminal
liability, debarment or disqualification by the
FDA, the EMEA or any other Regulatory Authority, and (iii) no criminal, injunctive, seizure or
civil 

       

       

      
        
          
          

        

        
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      penalty actions have at any time been commenced or
threatened by any Regulatory Authority against the Company or any Company
Subsidiary or, to the
knowledge of the Company, any of their respective agents or subcontractors, and there are no consent
decrees (including plea agreements) or similar actions to which the
Company or any Company
Subsidiary is bound or which relate to the Core Products. Neither the Company nor any Company Subsidiary
is, to the knowledge of the Company, employing or utilizing the services of
any individual who has been debarred, temporarily denied approval or suspended
under any applicable Law or
Order.  To the knowledge of the Company,
neither the Company nor any Company Subsidiary has made any untrue statement of fact or fraudulent
statement to the FDA, the
EMEA or any other Regulatory Authority nor have they failed to disclose any fact required to be
disclosed to the FDA, the
EMEA or any other Regulatory Authority, and to the knowledge of the Company, no Company Partner (as defined below)
has made any untrue statement of fact or fraudulent statement to the FDA, the
EMEA or any other Regulatory Authority relating to the Products, nor to
the knowledge of
the Company, has any
Company Partner failed to
disclose any facts required to be disclosed to the FDA, the EMEA or any other
Regulatory Authority
relating to the Products.

       

      (c)           The Company and the Company Subsidiaries
have made available to Parent complete and accurate copies of all
Regulatory Authorizations
and regulatory dossiers relating thereto, all
serious adverse event reports, periodic adverse event reports and other
pharmacoviligence reports
and data, and all other material Regulatory Authority communications, documents and other
information submitted by the Company to or received by the
Company from the FDA, the EMEA or any equivalent Regulatory Authority, including
inspection reports, warning letters and similar documents, relating to the
Company or any Company Subsidiary, the conduct of their business, or the Core Products.

       

      (d)           All preclinical studies and clinical
trials conducted or being conducted with respect to the Company's and the Company
Subsidiaries' Products by or at the direction of the
Company or any Company Subsidiary have been and are being conducted in
material compliance with the applicable requirements of Good Laboratory
Practices and Good Clinical
Practices and applicable regulations and guidances that relate to
the conduct of clinical studies, and, the Company (1) is not aware of any failure by any
Company Partner to conduct clinical studies in compliance with such applicable
requirements, regulations and guidances and (2) has not received any
notifications from any institutional review board (IRB) raising any issues.  All results of studies,
tests and trials related to the Core Products and conducted by or at the
direction of the Company, and all other material information related to such
studies, tests and trials, have been made available to
Parent.

       

      (e)           The manufacture of products by the Company and any
Company Subsidiary is, or, in the case of any products manufactured by a
Company Partner, to the knowledge of the
Company is, being conducted in material compliance with the applicable
requirements of Current Good Manufacturing Practices. In addition, the Company and each Company
Subsidiary and, to the knowledge of the Company, their respective Company
Partners, are in material
compliance with all
applicable registration and listing
requirements, including, for example, those set forth in 21 U.S.C. Section 360 and
21 C.F.R. Parts 207 and 807 and all similar applicable
Laws and
Orders.  To the
knowledge of the Company, no Product sold by the Company or held in inventory by the Company has been adulterated or
misbranded.  All labeling is in compliance with FDA, EMEA and
other Regulatory Authority
requirements, and
all advertising and promotional materials
of the Company and each Company Subsidiary are in material compliance with FDA, EMEA and other applicable Regulatory Authority requirements.

       

      
        
          
          

        

        
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      Section
4.10         Taxes.

       

      (a)           Each of the Company and each Company Subsidiary has duly filed all Tax Returns required
to be filed by it, and all such Tax Returns are true, complete and accurate, except to the extent that all such
failures to file, taken together, have not had and are not
reasonably expected to have a Company Material Adverse Effect.  The Company and each of the
Company Subsidiaries have paid (or the Company has paid on its behalf)
(i) all taxes shown as due on such Tax Returns
and (ii) all material Taxes otherwise due and payable, except for
those Taxes (x) being contested in good faith by
appropriate proceedings and for which
adequate reserves have been established in the financial statements included in the Company Filed SEC
Reports in accordance with
GAAP.  There are no Liens for any Taxes upon the assets of the Company
or the Company Subsidiaries, other than
(A) statutory Liens for
Taxes not yet due and payable and (B) Liens for Taxes contested in good
faith by appropriate proceedings.

       

      (b)           There is no audit, examination, deficiency,
refund litigation, proposed adjustment or matter in controversy currently in existence with respect to any Taxes or Tax Return
of the Company or any of the Company Subsidiaries.  Neither the
Company nor any of the Company Subsidiaries has received notice
of any claim made by a Governmental Entity in a jurisdiction where the Company or
any of the Company Subsidiaries, as applicable, does not file a Tax Return, that
the Company or such Company
Subsidiary is or may be
subject to taxation by that
jurisdiction.  There are no outstanding requests, agreements, consents
or waivers to extend the statutory period of limitations applicable to the
assessment of any Taxes or deficiencies against the Company or the Company
Subsidiaries, and no power of attorney granted by
either the Company or any of the Company Subsidiaries with respect to any Taxes
is currently in force.

       

      (c)           Neither the Company nor any of the
Company Subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" (within the meaning of Section
355(a)(1)(A) of the
Code) in a distribution of
stock qualifying for tax-free treatment under Section 355 of the Code (i) in the
two years prior to the date of this Agreement or (ii) in a
distribution which could
otherwise constitute part of a "plan" or "series of related
transactions" (within the meaning of Section 355(e)
of the Code) in conjunction with the Merger.

       

      (d)           Neither the Company nor any of the
Company Subsidiaries has participated, within the meaning of Treasury Regulation
Sections 1.6011-4(c), or has been a "material advisor" or "promoter" (as those terms are defined in Section
6111 and 6112 of the Code) in (A) any "reportable transaction" within the meaning of Sections 6011,
6662A and 6707A of the
Code, (B) any "confidential corporate tax
shelter" within the meaning of Section 6111 of
the Code or (C) any "potentially abusive tax
shelter" within the meaning of Section 6112 of
the Code.

       

      (e)           The Company and the Company Subsidiaries
have complied in
all material respects
with all applicable Laws relating to the payment
and withholding of Taxes.

       

       

      (f)           Neither the Company nor any of the
Company Subsidiaries has any liability for any material amount of Taxes of any Person (other than the Company and the
Company Subsidiaries) under
Treasury Regulation § 1.1502-6 (or any similar provision of
any state, local 

       

       

      
        
          
          

        

        
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      or foreign law), as a transferee or
successor, by contract or otherwise, that, individually or in the aggregate, has
had or would reasonably be expected to have a Company Material Adverse
Effect.

       

      (g)           Neither the Company nor any of the
Company Subsidiaries has
since October 1, 2006 (A) changed an annual accounting period or
changed any accounting
method, (B) settled any material Tax claim or assessment, or
(C) received a Tax ruling or entered into
a closing agreement with any taxing
authority.

       

      (h)           As used in this Agreement (A)
"Taxes" means any and all federal, state,
local, foreign or other taxes of any kind (together with any and all interest,
penalties, additions to tax and additional amounts imposed with respect thereto)
imposed by any Governmental Entity, including, without limitation, taxes or other
similar charges on or with respect to income,
franchises, windfall or other profits, gross receipts, property, capital, sales,
use, transfer, inventory, license, capital stock, payroll, employment,
unemployment, social security, workers' compensation, severance, stamp,
occupation, premium or net worth, and taxes or other similar charges in the nature of excise,
withholding, ad valorem, value added, estimated taxes, or custom duties and (B)
"Tax
Return" means any report, return, document, declaration
or other information or filing required to be filed with respect to
taxes (whether or not a payment is required to be made with respect to such
filing), including information returns, any documents with respect to
or accompanying payments of estimated taxes,
or with respect to or accompanying requests for the extension of time in
which to file any such report, return, document, declaration or other
information.

       

      Section
4.11        Change of
Control Arrangements; No Excess
Parachute Payment.

       

      (a)           Neither the execution and delivery of
this Agreement, the Offer,
the consummation of the
Merger or the other transactions contemplated by this Agreement nor compliance
with the terms hereof will (either alone or in conjunction with any other event), except as otherwise set forth in
Section 4.11(a) of the Company Disclosure
Letter, (i) entitle any current or former
employee, officer, director or consultant of the Company or any Company
Subsidiary (each, a "Company
Participant") to enhanced severance or
termination pay, change in control or
similar payments or benefits, (ii) result in, cause the accelerated vesting or delivery of, or increase
the amount or value of, any payment or benefit to any Company Participant, (iii) trigger any
payment or funding (through a grantor trust or otherwise) of any compensation or benefits under, increase
the amount payable or trigger any other material obligation pursuant to, or
increase the cost of, any Company
Benefit Plan (as defined in Section 4.14(a)) or Company Benefit Agreement
(as defined in Section 4.14(a)) or (iv) result in any breach or
violation of, or a default under, any Company Benefit Plan or Company Benefit Agreement.  The
total amount of all payments and the fair market value of all
non-cash benefits (other than benefits pursuant to the Company Stock
Options or any Company
Common Stock held by any Company Participant that does not constitute restricted
shares as of the date hereof) that may become payable or be provided to any
Company Participant under the Company Benefit Plans and Company Benefit
Agreements (assuming for such purpose that such individual's employment were terminated immediately
following the Effective Time as if the
Effective Time were the date hereof) will
not exceed the amount set forth in Section 4.11(a) of the Company Disclosure
Letter.

       

       

      
        
          
          

        

        
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      (b)           Other than payments that shall be made to Persons set forth on Section 4.11(b) of the Company Disclosure
Letter (the "Primary
Company Executives"), no amount or other entitlement that could be received (whether
in cash or property or the vesting of property) as a result of the Offer, the Merger or any other transaction
contemplated by this Agreement (alone or in
combination with any other
event) by any other
Company Participant who is
a "disqualified individual" (as such term is defined in Treasury
Regulation Section 1.280G-1) under any Company Benefit Plan, Company Benefit
Agreement or other compensation arrangement would be characterized as an "excess parachute payment" (as such term is defined in Section
280G(b)(1) of the Code), and no such other disqualified individual is
entitled to receive any additional payment
(e.g., any Tax gross up or other payment)
from the Company, Parent or any other Person in the event that the excise Tax
required by Section 4999(a) of the Code is imposed on such disqualified
individual.  Section 4.11(b) of the
Company Disclosure Letter sets forth (i) a complete and accurate list of the Company's reasonable, good faith estimate of the
maximum amount that could be received (whether in cash or property or the
vesting of property, and including the amount of any Tax gross up) by each
Primary Company Executive as a result of the Offer, the Merger or any other transaction contemplated by
this Agreement (alone or in combination with any other event) under all
Company Benefit Agreements and Company Benefit Plans and (ii) the
"base amount" (as defined in Section 280G(b)(3) of
the Code) for each Primary Company Executive, estimated as of the date of Closing.

       

      Section
4.12         Litigation.  Other
than tax matters, employee benefits matters, labor and employment matters,
environmental matters or intellectual property matters, which are the subjects
of Sections 4.10, 4.14, 4.15, 4.16 and 4.17, respectively:

       

      (a)           There is no claim, suit, action,
investigation, indictment or information, or administrative, arbitration
or other proceeding ("Litigation") pending or, to the knowledge of the
Company, threatened against or affecting the Company or any of the Company
Subsidiaries or any of their respective assets which, individually or in the aggregate,
has had or, if adversely determined, would reasonably be expected to have, a Company Material Adverse Effect.

       

      (b)           There is no Order of any Governmental Entity or
arbitrator outstanding against, or, to the knowledge
of the Company,
investigation by, any Governmental Entity involving the Company or any of the
Company Subsidiaries or any of their respective assets that, individually or in
the aggregate, has had or is reasonably expected to have a Company Material Adverse Effect.

       

      Section
4.13        Material
Contracts.

       

      (a)           Except for (1) Contracts filed
or listed as an exhibit to the Company's annual report on Form 10-K for the
fiscal year ended September 30, 2008 and (2) those Contracts set forth on
Section 4.13(a) of the Company Disclosure Letter, neither the
Company nor any Company Subsidiary is party to any Company Material Contract.  For the purposes of
this Agreement, "Company
Material Contract" shall mean the following (including any series of one or more related
Contracts):

       

      (i)           Any severance agreement and any employment or other Contract (as defined
in Section 9.14(g)) with an employee or former employee,
officer or 

       

       

      
        
          
          

        

        
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      director of the Company or any Company
Subsidiary providing for aggregate compensation in
excess of $50,000 in any twelve month period (other than any unwritten Contract for
the employment of any such employee or former employee implied at
law);

       

      (ii)          Except as contemplated by the budget
attached as Schedule
4.13(a)(ii), any Contract
for capital expenditures or the acquisition or construction of fixed assets
which requires aggregate future payments in excess of $50,000;

       

      (iii)          Any Contract (A) entered into other than in the
ordinary course of business containing covenants of the Company or any
Company Subsidiary (A) to indemnify or hold harmless another Person, unless such
indemnification or hold harmless obligation to such Person, or group of Persons,
as the case may be, is less than $50,000 or (B) containing covenants of the Company or any Company
Subsidiary not to (or
otherwise restricting or limiting the ability
of the Company or any Company Subsidiary to) compete in any line of
business or geographic or therapeutic area, including any covenant not to
compete with respect to the
manufacture, marketing, distribution or sale of any product or product
line;

       

      (iv)          Any Contract requiring aggregate future payments or
expenditures and relating to Cleanup, abatement, remediation or similar
actions in connection with environmental liabilities;

       

      (v)           Any license, royalty Contract or other
Contract with respect to (i)
material Company IP
relating to Core Products
to which the Company or any
Company Subsidiary is a party that grants, assigns
or otherwise transfers to
any Person, or
restricts the use or
registration of, any
material rights (including
any licenses, assignments, consents to use or register,
options or rights of
negotiation), title or interest in or to such Intellectual Property (as defined
in Section 9.14(r)) or (ii) Intellectual Property which,
pursuant to the terms thereof, requires, or may require upon the occurrence of
certain events, future material payments by the Company or any Company
Subsidiary;

       

      (vi)          Any Contract pursuant to which the
Company or any Company Subsidiary is required
to (with or without the satisfaction of any conditions), or obtains or grants
any material rights (including any options or rights
of negotiation) to, undertake the development or commercialization of any
pharmaceutical product or technology, or any material interest
therein;

       

      (vii)         Any Contract pursuant to which the
Company or any Company Subsidiary has
entered into a partnership or joint venture with any other Person (other than
the Company or any Company Subsidiary);

       

      (viii)        Any indenture, mortgage, loan or credit
Contract under which the Company or any Company Subsidiary has outstanding
indebtedness in a principal
amount in excess of $50,000 or any outstanding note, bond, indenture
or other evidence of Indebtedness in a principal amount in excess of $50,000
for borrowed


       

       

      
        
          
          

        

        
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      money or otherwise, or guaranteed
outstanding indebtedness for money borrowed by
others;

       

      (ix)          Any Contract under which the Company or
any Company Subsidiary is (A) a lessee of real property, (B) a lessee of, or
holds or uses, any
machinery, equipment, vehicle or other tangible personal property owned by a third person or entity,
(C) a lessor of real property, or (D) a lessor of
any tangible personal property owned by the Company or Company Subsidiary, in
any case referred to in
clauses (B) or (D) only which requires future annual payments in excess of
$50,000;

       

      (x)          Any Contract under which the Company or
any Company Subsidiary is a purchaser or supplier of goods and services which,
pursuant to the terms thereof, requires future payments by the Company or any
Company Subsidiary in excess of
$50,000 per annum;

       

      (xi)          Any material Contract (including
guarantees) between the Company and any Company Subsidiary, other than any Contract relating to
the operation of the Company and the Company Subsidiaries in the ordinary
course;

       

      (xii)         Any Contract which requires future payments by the Company or any Company
Subsidiary in excess of $50,000 per annum containing "change of control" or similar provisions;

       

      (xiii)        Any Contract relating to the acquisition
or disposition of any
business or any material
assets other than in the ordinary course of
business (whether by
merger, sale of stock or assets or otherwise);

       

      (xiv)        Any Contract entered into other than in the ordinary course of
business that (A) involves aggregate payments by or to the Company or any
Company Subsidiary in excess of $50,000 per annum, other than a purchase or
sales order or other Contract entered into in the ordinary course of business
consistent with past practice or (B) by its terms does not
terminate within one year
after the date of such Contract and is not cancelable during such period without
penalty or without payment;

       

      (xv)         Any Contract the termination or breach
of which, or in respect of
which the failure to
obtain any consent required in connection with the transactions contemplated by
this Agreement, is
reasonably likely to have a Company Material Adverse Effect; and

       

      (xvi)        Any material Contracts relating in any material
respect to any Core Product
(any such contract, a
"Products
Contract").

       

      To the knowledge of the Company,
all Company Material
Contracts are valid and in full force and effect and, to the knowledge of the
Company, enforceable in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws
relating to or affecting the rights and remedies of creditors generally and to
general 

       

      
        
          
          

        

        
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      principles of equity (regardless of whether
considered in a proceeding in equity or at law), except to the extent that (x)
they have previously
expired or terminated
in accordance with their terms, (y) in the
case of Company Material Contracts that are not Products Contracts, any failures
to be in full force and effect which, individually or in the aggregate, are not
reasonably likely to have a
Company Material Adverse Effect, and (z) in the case of Company Material
Contracts that are Products Contracts, any failures to be in full force
and effect which, individually or in the aggregate, are not reasonably likely to
materially and adversely affect the related
Product.  Neither the Company nor any Company Subsidiary, nor, to the
knowledge of the
Company, any counterparty
to any Company Material Contract, has violated any provision of, or committed or
failed to perform any act which, with or without notice, lapse of time or
both, would constitute a default under the provisions of, any Company Material
Contract, except in each case for those violations or defaults which, individually or in the
aggregate, are not reasonably likely to have a Company Material Adverse Effect.  Neither
the Company nor any Company Subsidiary, nor, to the knowledge of the Company, any counterparty to any Products
Contract has (A) violated any provision of, or committed or failed to perform any act which,
with or without notice,
lapse of time or both, would constitute a default under the provisions of any
Products Contract or (B) notified the Company, either orally or in writing, of
any intent to breach, fail to perform, terminate, or not renew any Products
Contract, other than, in the case of (A) and
(B) above, any such violations, commissions, failures or
notifications that, individually or in the aggregate, are not reasonably likely to materially and
adversely affect the related Product.  The Company has no
knowledge of any pending or
threatened bankruptcy, insolvency or similar proceeding with respect to any party to any Company
Material Contract which has had or is reasonably expected to have a Company Material Adverse
Effect.  Neither the Company nor any Company Subsidiary (i) is a party to any
voting agreement with respect to the voting of any securities of the Company or
(ii) has any contractual obligation to file a registration statement under the Securities Act, in
respect of any securities of the Company or any Company Subsidiary.

       

      Section
4.14        Employee
Benefit Plans.

       

      (a)           Section 4.14(a)(i) of the Company Disclosure Letter
sets forth a list, as of the date hereof, of all "employee pension benefit
plans" (as defined in Section 3(2) of the
Employee Retirement Income Security
Act of 1974, as amended
("ERISA")) (sometimes referred to individually
as a "Company
Pension Plan" and collectively as the "Company
Pension Plans"), all "employee welfare benefit plans" (as defined in Section 3(1) of ERISA)
(sometimes referred to individually as a "Company
Welfare Plan" and collectively as the "Company
Welfare Plans"), and each vacation or paid time off,
severance, termination, retention, change in
control, employment, incentive compensation, performance, profit sharing,
stock-based, stock-related, stock option, fringe benefit, perquisite, stock
purchase, stock ownership, phantom stock and deferred compensation plan, arrangement, agreement and
understanding and other compensation, benefit and fringe benefit plans,
arrangements, agreements and understandings
(whether or not legally binding), sponsored, maintained, contributed to or
required to be sponsored, maintained or contributed to, by the Company,
any Company Subsidiary or any other Person that, together with the Company, is
treated as a single employer under Section 414(b), (c), (m) or
(o) of the Code or any other applicable Law (each, a "Commonly
Controlled Entity"), in each case, providing benefits to
any Company Participant, but not including the Company
Benefit Agreements (all such plans, arrangements, agreements and understandings,
including any such plan, arrangement, agreement or understanding entered


       

       

      
        
          
          

        

        
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      into or adopted on or after the date of
this Agreement, collectively, "Company
Benefit Plans").  Section 4.14(a)(ii) of the Company Disclosure Letter sets forth a list, as of
the date hereof, of (i)
each employment, deferred compensation, change in control, severance, termination, employee
benefit, loan or indemnification agreement between the Company or any
Company Subsidiary, on the one hand, and
any Company Participant, on the other hand,
and (ii) each contract
between the Company or any Company Subsidiary, on the one hand, and any Company
Participant, on the other hand (all such contracts under the foregoing clauses
(i) and (ii), including any contract which is entered into
on or after the date of
this Agreement, collectively, "Company
Benefit Agreements").

       

      (b)           The Company has made available to Parent
true and complete copies of (i) each Company Benefit Plan and each Company
Benefit Agreement (or, in the case of any unwritten Company Benefit Plan or Company
Benefit Agreement, a written summary of the material provisions of such plan or
agreement) in effect on the date hereof, (ii)
the most recent report on Form 5500 filed with the Internal Revenue Service with
respect to each Company
Benefit Plan in effect on the date hereof, to the extent any such report was
required by applicable Law, (iii) the most recent summary plan description for
each Company Benefit Plan for which such a summary plan description is required by applicable Law and (iv) each
currently effective trust agreement or other funding vehicle relating to any
Company Benefit Plan.  Neither the Company nor any Commonly Controlled
Entity has sponsored, maintained, contributed to or been obligated to sponsor, maintain or contribute to, or has
any actual or contingent liability under, any benefit plan that is subject to
Title IV of ERISA or Section 412 of the Code or is otherwise a defined benefit pension plan or is a plan
described in Section 3(40) of ERISA or Section 413 of the
Code.  With respect to any Company Welfare Plan or any Company Benefit
Agreement that is an employee welfare benefit plan, (A) no such Company Welfare
Plan or Company Benefit Agreement is funded through a "welfare benefits fund" (as such term is defined in Section 419(e)
of the Code), (B) each such Company Welfare Plan and Company Benefit Agreement that is a "group health plan" (as such term is defined in Section
5000(b)(1) of the Code) materially complies with the applicable
requirements of Section
4980B(f) of the Code and any applicable similar state or local Law and (C)
to the knowledge of the
Company, each such Company Welfare Plan and
Company Benefit Agreement (including any such plan or agreement covering
retirees or other former
employees) may be amended or terminated without material liability to the
Company or any Company Subsidiary on or at any time after the
Effective Time.  No Company Welfare Plan or Company Benefit Agreement
that is an employee welfare benefit plan as defined under ERISA Section 3(1)
provides benefits to, or on
behalf of, any former employee after the termination of employment except (1)
where the full cost of such benefit is borne entirely by the former employee (or
his eligible dependents or beneficiaries) or (2) where the benefit is required
by Section 4980B of the Code.

       

      (c)           To the knowledge of the Company
(i) each Company Benefit Plan and Company
Benefit Agreement has been administered in all material respects in accordance with its terms and
with all applicable Laws,
including ERISA and the Code; (ii) all material contributions, including
participant contributions, and benefit payments required under each Company
Benefit Plan and Company Benefit Agreement have been made in full on
a timely and proper basis pursuant to the terms of such plan or
agreement and applicable Law; (iii) no Company Participant has received or is
reasonably expected to receive any payment or benefit
from the Company or any Company Subsidiary that would be nondeductible
pursuant to Section 

       

       

      
        
          
          

        

        
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      162(m) of the Code or any other
applicable Law, except as
otherwise set forth in Section 4.14(c) of the Company Disclosure
Letter; (iv) each Company
Pension Plan that is intended to comply with the provisions of
Section 401(a) of the Code
has been the subject of a determination letter from the Internal
Revenue Service or an
application therefor with
respect to all material and
applicable Tax law changes
to the effect that such Company Pension Plan currently is qualified and
exempt from income Taxes
under Section 401(a) of the Code and the trust relating to such plan is exempt
from income Taxes under Section 501(a) of the Code,
and, to the knowledge of
the Company, no such
determination letter has been revoked and, to the knowledge of the Company, revocation has not
been threatened, and, to
the knowledge of the Company, no event has occurred since the date of the most recent
determination letter or application therefor relating to any such
Company Pension Plan that is reasonably expected to affect the qualification
of such Company Pension Plan adversely or materially increase the costs
relating thereto or require security under Section 307 of ERISA;
(v) the Company has made available to Parent a copy of the most recent
determination letter received with respect to
each Company Pension Plan for which such a letter has been issued, as well as a
copy of any pending application for a determination letter and a complete and
accurate list of all amendments to any Company Pension Plan in effect as of the date hereof as to
which a favorable determination letter has not yet been received;
(vi) there are no understandings, agreements or undertakings, written or oral,
with any Person (other than pursuant to the
express terms of the applicable Company Benefit Plan or Company
Benefit Agreement) that are (pursuant to any such understandings, agreements or
undertakings) reasonably expected to result in
any material liabilities if such Company Benefit
Plan or Company Benefit Agreement were amended or terminated upon or at any time after the
Effective Time or that would prevent any unilateral action by the Company (or,
after the Effective Time, Parent) to effect such amendment or termination; (vii)
only officers, directors and employees of the
Company or any Company
Subsidiaries are eligible for compensation or benefits under the terms of each
Company Benefit Plan and Company Benefit Agreements, and, to the knowledge of the
Company, each individual
who is classified by the Company or any Company Subsidiary as an "employee" or as an "independent contractor" is properly so classified; and (viii) except as set forth in Section 4.14(b) of the Company Disclosure Letter or
Section 4.14(c) of the Company Disclosure Letter, notwithstanding any oral or written representation to the
contrary, no Company Participant is entitled to any
gross-up, make-whole or other additional payment from the Company or any
Company Subsidiary in respect of any Tax (including Federal, state, local or foreign
income, excise or other Taxes (including Taxes
imposed under Section 409A of the Code)) or interest or penalty related
thereto.

       

      (d)           To the knowledge of the Company,
each Company Benefit Plan
and each Company Benefit Agreement for the benefit of any employee, officer
or director of the Company
that is a "nonqualified deferred compensation
plan" within the meaning of Section
409A(d)(1) of the Code (a "Nonqualified
Deferred Compensation Plan") subject to Section 409A of the Code
has been operated in material compliance with Section 409A of the Code
since January 1, 2005, based upon a good faith, reasonable
interpretation of (i) Section 409A of the Code and (ii)(A) the Final Regulations issued thereunder or (B) Internal
Revenue Service Notice 2005-1 (clauses (i) and (ii), together, the "409A
Authorities"), and the Company has used its
reasonable best efforts to amend each Nonqualified
Deferred Compensation Plan
to the extent required to comply with Section 409A and the Final Regulations
issued thereunder.

       

       

      
        
          
          

        

        
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      Section
4.15        Labor and
Employment Matters.

       

      (a)           The Company and the Company Subsidiaries
are neither party to, nor bound by, any labor agreement, collective bargaining
agreement, work rules or
practices, or any other labor-related agreements or arrangements with any labor
union, labor organization or works council; there are no labor agreements,
collective bargaining agreements or any other labor-related agreements
that pertain to any of the
employees of the Company or the Company Subsidiaries; and no employees of the
Company or the Company Subsidiaries are represented by any labor organization
with respect to their employment with the Company or the Company
Subsidiaries.

       

      (b)           No labor union, labor organization, works
council, or group of employees of the Company or the Company Subsidiaries has
made a pending demand for recognition or certification, and there are no
representation or certification proceedings or petitions seeking a representation proceeding presently
pending or threatened in writing to be brought or filed with the National Labor
Relations Board or any other labor relations tribunal or
authority.  The Company and the Company Subsidiaries have no knowledge of any labor union organizing activities with
respect to any employees of the Company or the Company
Subsidiaries.

       

      (c)           From January 1, 2004 to the date of this Agreement, there has been no actual or, to the
knowledge of the Company or the Company
Subsidiaries, threatened
material labor arbitrations, material grievances, labor
disputes, strikes, lockouts, slowdowns or work stoppages against or affecting
the Company or the Company Subsidiaries.

       

      (d)           The Company and the Company Subsidiaries
are in compliance in all material respects with all applicable laws respecting
employment and employment practices, including, without limitation, all laws
respecting terms and conditions of employment, health and safety, wages and
hours, child labor, immigration, employment discrimination, disability rights or benefits, equal
opportunity, plant closures and layoffs, affirmative action, workers' compensation, labor relations, employee
leave issues and
unemployment insurance, except where such non-compliance would not,
individually or in the aggregate, reasonably be expected to
have a Company Material Adverse Effect.

       

      (e)           The Company and the Company Subsidiaries
are not delinquent in any material respect in payments to any employees or
former employees for any services or amounts required to be reimbursed or otherwise paid, except where such
delinquency would not, individually or in the aggregate, reasonably be expected
to have a Company Material Adverse Effect.

       

      (f)           To the knowledge of the Company, no employee of the Company or any Company Subsidiary is in any respect in violation of any term of
any employment agreement, nondisclosure agreement, common law nondisclosure
obligation, fiduciary duty, non-competition agreement, restrictive
covenant or other obligation to a former employer of any such employee
relating (i) to the right
of any such employee to be employed by the Company or the Company Subsidiaries
or (ii) to the knowledge or use of trade secrets or proprietary information, except
for such violations as would not, individually or in the aggregate,
reasonably be expected to
have a Company Material Adverse Effect.

       

       

      
        
          
          

        

        
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      (g)           The Company and the Company Subsidiaries
have no knowledge that any of the individuals at or above the level of
Vice-President intends to terminate his or her employment.

       

      Section
4.16        Environmental
Matters.

       

      (a)           Each of the Company and the Company
Subsidiaries has been at all times and is in compliance with all applicable
Environmental Laws, including, but not limited to, possessing all Environmental
Permits (as defined in Section 9.14(i)) required for its operations under
applicable Environmental Laws, except for such noncompliance as would not,
individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.  To
the extent that any applicable Environmental Law requires the Company or
any Company Subsidiary to have filed applications to renew any such
Environmental Permits, the Company and each such Company Subsidiary has filed
such applications in accordance with the time periods set forth in such Environmental Law in order to allow
continued operation in accordance with the terms of such Environmental Permits,
except as would not, individually or in the aggregate, reasonably be expected to
have a Company Material Adverse Effect.

       

      (b)           There is no pending or, to the knowledge of the Company, threatened claim, lawsuit or
administrative proceeding against the Company or any Company Subsidiary under or
pursuant to any Environmental Law that, individually or in the aggregate, would
reasonably be expected to
have a Company Material Adverse Effect.

       

      (c)           Neither the Company nor any Company
Subsidiary has received written notice from any Person, including but not limited to any
Governmental Entity, alleging that the Company or such Company Subsidiary has
been or is in violation or
potentially in violation of any applicable Environmental Law or otherwise may be
liable under any applicable Environmental Law, except with respect to matters
that would not, individually or in the aggregate, reasonably be expected to
have a Company Material Adverse Effect.  Neither the Company nor any
Company Subsidiary has received any written requests for information from any
Person, including, but not limited to any
Governmental Entity, with respect to any matter that could result in
liability pursuant to any
Environmental Law, including, but not limited to, written requests for
information pursuant to the federal Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), except with respect to such
matters that, individually
or in the aggregate, would reasonably be expected to have a Company Material
Adverse Effect.

       

      (d)           Neither the Company nor any Company
Subsidiary is a party or subject to any administrative or judicial order or
decree pursuant to the Environmental Laws that, individually or
in the aggregate, would reasonably be expected to have a Company Material Adverse Effect.

       

      (e)           With respect to real property currently
or formerly owned, leased or operated by the Company or any Company Subsidiary,
to the knowledge of the Company, there have been no Releases of
Hazardous Substances (as defined in Section 9.14(n)) on or underneath any of such real
property that, individually or in the aggregate, would reasonably be expected to
have a Company Material Adverse Effect.

       

       

      
        
          
          

        

        
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      (f)           The transactions contemplated by this
Agreement will not require any filing or other action under any so-called "transaction-triggered" Environmental Laws, including, but not
limited to, the New Jersey Industrial Site Recovery Act and the Connecticut
Transfer Act.

       

      (g)           To the knowledge of the Company, there
are presently no conditions or circumstances, including, but not limited to, pending
or proposed Environmental Laws or any changes or amendments to existing
Environmental Laws or
Environmental Permits that
would be reasonably likely to require the Company or any Company Subsidiary to
incur expenditures or
conduct any Cleanup under
any current Environmental Laws that, individually or in the aggregate, would
reasonably be expected to
have a Company Material Adverse Effect.

       

      Section
4.17        Intellectual
Property.

       

      (a)           Set forth in Section 4.17(a) to the Company Disclosure Letter is a
true and complete list of all (A) patents and patent applications,
trademarks and service
marks and all applications and registrations therefor, all
Internet domain names and copyrights included in the Company Owned IP and
(B) patents, patent applications, trademarks
and service marks included in the Company Licensed IP that are related to any
Products.

       

      (b)           The Company has or the Company
Subsidiaries have an unrestricted and exclusive ownership interest in all
Company Owned IP (in each case, free and clear of any Liens) and is listed in
the records of the appropriate United States, foreign or other registry
as the sole and exclusive
current owner of record for each application and registration included in the
Company Owned IP.  The Company IP includes all Intellectual Property,
and the Company's and the Company
Subsidiaries' rights in and to the Company IP
include all Intellectual
Property rights, used or otherwise exploited in or necessary for the conduct of
the business of the Company and the Company Subsidiaries as currently conducted
and planned to be conducted.  No academic institution or Governmental
Entity has any right, title or interest in
or to any Company Owned IP (including any "march in" rights) or any Intellectual Property
included in Section 4.17(a) of the Company Disclosure
Letter.  The Company or a Company Subsidiary has taken commercially reasonable
efforts, or contractually requires the Company Partners in those jurisdictions
where the Products are marketed or sold solely through Company
Partners to take
commercially reasonable efforts, to make appropriate
submissions of the Company
IP to the FDA's "Orange Book" and all equivalent documents maintained
by the EMEA or any other Regulatory Authority for jurisdictions in which the
Company or any of the Company Subsidiaries sells, markets or authorizes the sale
or marketing of the
Products.

       

      (c)           To the knowledge of the Company, the Contracts under which the Company has
been granted rights in any Intellectual Property owned or controlled by a third
Person are valid and legally enforceable, and free and clear of all
Liens.  The Company has provided Parent with access
to true and complete copies of all Contracts under which the Company or any Company
Subsidiary has obtained or granted any rights, title or interests in or to, or
which by their terms expressly restrict the Company or any Company Subsidiaries with respect
to any Intellectual Property (each, an "IP
Contract") related to any or all of the Products,
other than standard license
agreements for commercially-available,
off-the-shelf software.  The Company or a Company Subsidiary has the
exclusive right to develop, commercialize, manufacture, market, sell, import and
otherwise exploit each of the Products and neither the 

       

       

      
        
          
          

        

        
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      Company nor any Company
Subsidiary has granted,
assigned or otherwise transferred to any Person any right, title or
interest in or to any Product or Product IP.

       

      (d)           To the knowledge of the Company, no
Person, during the past six years, has misappropriated, infringed,
diluted, or otherwise violated, either directly
or indirectly, any Company IP, nor is any Person currently doing
so.  To the
knowledge of the Company, no Litigation has been brought or threatened against any Person during the past
six years, with respect to any Company IP by the Company, any Company
Subsidiaries or, with respect to any or all of the Product IP and to the knowledge of the
Company, by any of their
licensors during the past six years and, to the knowledge of the Company,
there is no basis for any Litigation regarding any of the foregoing.

       

      (e)           (A) There has not been any Litigation during the past six years with
respect to any Company IP, there is no
pending Litigation and, to the knowledge of the Company,
there is no threatened Litigation (1) alleging misappropriation,
infringement, dilution or other violation by the Company or any Company Subsidiary of any Intellectual Property of any
Person, (2) challenging the Company's or any Company Subsidiary's ownership or use of, or the
registrability or maintenance of, any Company Owned IP, (3) challenging the validity or enforceability of any Company Owned IP, (4)
alleging that the use by
the Company or any Company
Subsidiary of Company Licensed IP is in breach of
any applicable grant, license, agreement, instrument or other arrangement pursuant to which the Company or
any Affiliate acquired the
right to use such Intellectual Property, or (5) alleging misuse or antitrust
violations arising from the use or other exploitation of any Intellectual
Property, and (B) with respect to (1) any or
all of the Products and (2) any other material Company IP, to the knowledge of the
Company, there is no basis for any Litigation regarding any of the foregoing in (A)(1),
(A)(2), (A)(3), (A)(4) or (A)(5); no Company IP has been or is being
used or enforced by the Company or the Company Subsidiaries or, with respect to any or all of the Product
IP, by any of their licensors, in a manner that,
individually or in the aggregate, is reasonably
likely to result in the cancellation, invalidity or unenforceability of such
Intellectual Property.

       

      (f)           All patents and patent applications, trademark
registrations and applications and all other applications,
registrations and filings under the Company IP (A) meet all material applicable requirements for
obtaining a patent, trademark registration or other Intellectual
Property registration,
including any applicable disclosure requirements, (B) are subsisting, in full
force and effect, (C) to
the knowledge of the Company, are valid and enforceable, (D) have not
expired, been cancelled or abandoned, and (E) have had paid in a
timely manner all
registration, maintenance and renewal fees
necessary to preserve the rights of the Company and the Company Subsidiaries in
connection with such Intellectual
Property.

       

      (g)           The Company and the Company Subsidiaries
have taken all commercially reasonable measures to obtain patent rights
worldwide, to the extent commercially reasonable to do so, under Company Owned
IP and Company Licensed IP as to which they have the necessary prosecution
rights, and, to the
knowledge of the
Company, have not forfeited or otherwise lost any right to file
any material patent applications or obtain any material patents in any country in North America or those countries in Europe or Asia in which the Company has
the necessary prosecution rights and where the Company, Company
Subsidiaries or Company Partners market, sell, manufacture, develop or distribute the Products, such as by failing to meet any filing


       

       

      
        
          
          

        

        
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      deadline or otherwise; the Company and
the Company Subsidiaries have no reason to believe that the scope of any issued
claims under any patents under the Company IP should be less than the scope reflected as of the
date hereof in such patents or that the scope of any issued claims under any
patent applications under the Company IP will or should be materially less than
the scope reflected as of the date hereof in such patent applications.

       

      (h)           Neither the Company nor any Company
Subsidiary has granted any Person any right to control the prosecution
or registration of any Product IP or to bring, defend or otherwise control any
Litigations with respect to Product IP, except as expressly
permitted under an IP
Contract.

       

      (i)           Neither the Company nor any Company
Subsidiary has entered into nor is subject to any consents, judgments, orders,
indemnifications, forbearances to sue, settlement agreements, licenses or other arrangements in
connection with the
resolution of any disputes or Litigation that (A) restricts the Company or any Company Subsidiaries
with respect to any material Intellectual Property, (B) restricts the Company's or any Company Subsidiary's businesses in any material manner in
order to accommodate any
Person's Intellectual Property, or (C)
permits any Person to use any material Company
IP except as expressly permitted under an IP Contract.

       

      (j)           The Company and each Company Subsidiary
has implemented commercially reasonable measures to
maintain the
confidentiality of the trade secrets and other proprietary information under the Company
IP.  No current or former employee or contractor of the Company or any
Company Subsidiary owns any right, title or interest in or to any of the
Company Owned IP.  To the knowledge of the
Company, there has not been
any disclosure of any material confidential information of the Company or any Company Subsidiary
(including any such information of any
other Person disclosed in confidence to the Company or any Company Subsidiary) to any Person in a manner that has
resulted or is likely to result in the loss of trade secret or other rights in
and to such information. Except as set forth in Section 4.17(j) of the Company Disclosure
Letter, the Company and
the Company Subsidiaries have complied in all
material respects with all applicable Laws, as well as its own rules, policies,
and procedures, relating to privacy, data protection, and the collection and use
of personally identifiable information.

       

      Section
4.18        Stockholders' Rights
Agreement.  Neither
the Company nor any Company Subsidiary has adopted, or intends to adopt, a
stockholders' rights agreement or any similar plan or agreement which limits or
impairs the ability to purchase, or become the direct or indirect beneficial
owner of, shares or any other equity or debt securities of the Company or any of
the Company Subsidiaries.

       

      Section
4.19        Brokers;
Schedule of Fees and Expenses.  No
broker, investment banker, financial advisor or other Person, other than UBS
Securities LLC, the fees and expenses of which will be paid by the Company, is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the Offer, the Merger and the other transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
the
Company.  The estimated aggregate fees and expenses incurred and to be
incurred by the Company in connection with the Offer, the Merger and the other
transactions contemplated by 

       

       

      
        
          
          

        

        
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      this
Agreement (including the fees of UBS Securities LLC and the fees of the
Company's legal counsel) are set forth in Section 4.19 of the Company Disclosure
Letter.  The Company has furnished to Parent a true and complete copy
of all agreements between the Company and UBS Securities LLC relating to the
Offer, the Merger and the other transactions contemplated by this
Agreement.

       

      Section
4.20         Insurance.  The
Company has delivered to Parent prior to the date hereof a list that is true and
complete in all material respects of all material insurance policies in force
naming the Company, any of the Company Subsidiaries or employees thereof as an
insured or beneficiary or as a loss payable payee or for which the Company or
any Company Subsidiary has paid or is obligated to pay all or part of the
premiums.  Except as has not had, or is not reasonably expected to
have, individually or in the aggregate, a Company Material Adverse Effect, all
such insurance policies are in full force and effect, all premiums due and
payable thereon have been paid, and neither the Company nor any Company
Subsidiary has received, as of the date hereof, written notice of any pending or
threatened cancellation or premium increase (retroactive or otherwise) with
respect thereto.  Each of the Company and each Company Subsidiary is
in compliance with all conditions contained in such insurance policies, except
where the failure to so comply has not had, or is not reasonably expected to
have, individually or in the aggregate, a Company Material Adverse
Effect.

       

       

      ARTICLE V

       

      REPRESENTATIONS AND
WARRANTIES

      OF PARENT AND MERGER
SUB

       

      Each of
Parent and Merger Sub represents and warrants to the Company as of the date
hereof and as of the Closing Date (except for those representations and
warranties made as of a specific date or time) as follows (except as disclosed
in the Parent SEC Reports (as defined in Section 5.6(a))) on or prior to the
date hereof (and without regard to any amendment thereto filed after the date of
this Agreement)).

       

      Section
5.1          Organization
and Good
Standing.  Each
of Parent and Merger Sub is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of
incorporation.  Parent is the legal and beneficial owner of all of the
issued and outstanding capital stock of Merger Sub.  Merger Sub was
formed at the direction of Parent solely for the purposes of effecting the
Merger and the other transactions contemplated hereby.

       

      Section
5.2           Authority.

       

      (a)           Each of Parent and Merger Sub has all
necessary corporate power
and authority to execute and deliver this Agreement and the other Transaction Agreements to which it is a
party, to perform its obligations hereunder and thereunder
and to consummate the Offer, the Merger and the other transactions
contemplated hereby and thereby.  The
execution, delivery and performance by each of Parent and Merger Sub of this
Agreement and the other
Transaction Agreements to
which it is a party and the consummation by each of Parent and Merger Sub
of  the Merger and the other transactions contemplated hereby and
thereby, have been duly authorized by all necessary corporate action on the part of each of
Parent and Merger Sub and 

       

       

      
        
          
          

        

        
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      no other corporate proceedings on the
part of each of Parent or Merger Sub, respectively, are necessary to authorize this Agreement and
the Transaction Agreements to which it is a party or to consummate the Offer or the Merger or the other transactions
contemplated hereby and thereby (other than the filing and recordation of
appropriate merger documents as required by the DGCL).  Each of this
Agreement and the other
Transaction Agreements to
which it is a party has been, or prior to the Effective Time will
be, duly executed and delivered by each of
Parent and Merger Sub, as
applicable, and, assuming
the due
authorization, execution and delivery by the
other parties hereto and thereto, constitutes, or prior to the Effective Time will constitute, a legal, valid and binding obligation
of each of Parent and Merger Sub enforceable against each of Parent and
Merger Sub in accordance
with its terms subject, as to enforcement of remedies, to
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
rights and remedies of creditors generally and to the effect of general
principles of equity.  The affirmative vote of a
majority of the total votes cast by holders of common stock, par value $0.01 per share,
of Merger Sub entitled to
vote is the only vote of the holders of capital stock of Merger Sub necessary to approve this
Agreement, the Transaction
Agreements to which it is a party, the Merger and the other transactions
contemplated hereby and thereby.

       

      (b)           The Parent Board, at a meeting duly
called and held duly and unanimously adopted resolutions approving this
Agreement and the other Transaction Agreements, the Offer, the Merger, and the other transactions
contemplated by this Agreement.

       

      (c)           The Board of Directors of Merger Sub, at a meeting
duly called and held (or
acting by written consent) duly and unanimously adopted resolutions
(i) approving this
Agreement, the Offer, the
Merger and the other
transactions contemplated by this Agreement, (ii) determining that the terms of
the Offer, the Merger and the other transactions
contemplated by this Agreement are
fair to and in the best interests of Merger Sub and its stockholders and (iii)
recommending that Parent, as the sole stockholder of Merger Sub, approve and
adopt this Agreement and the Merger.

       

      (d)           Parent, in its capacity as sole
stockholder of Merger Sub, has unanimously approved and adopted this Agreement and the
Merger.

       

      Section
5.3           No
Conflict.  The
execution and delivery of this Agreement by each of Parent and Merger Sub do
not, and the performance of this Agreement and the Transaction Agreements to
which it is a party by each of Parent and Merger Sub and the consummation of the
Merger and the other transactions contemplated hereby and thereby will not (a)
conflict with or violate (i) the Certificate of Incorporation of Parent or the
Bylaws of Parent or (ii) the Certificate of Incorporation of Merger Sub or the
Bylaws of Merger Sub, (b) subject to Section 5.4, conflict with or violate any
Law or any Order or any rule or regulation of any securities exchange on which
Parent's common stock is listed for trading, or (c) result in a breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, give to others any right of termination,
amendment, acceleration or cancellation of, result in the triggering of any
payment or other obligation or any right of consent, or result in the creation
of a Lien on any property or asset of Parent or any of its Subsidiaries pursuant
to any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise
or other instrument or obligation to which Parent or any of its Subsidiaries is
a party or by which Parent or any of its Subsidiaries or any property or asset
of any of them is bound or 

       

       

      
        
          
          

        

        
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      affected
except, in the case of clauses (b) and (c) above, for any such conflicts,
violations, breaches, defaults or other occurrences which have not had and are
not reasonably expected to have, individually or in the aggregate, a Parent
Material Adverse Effect.

       

      Section
5.4          Required
Filings and Consents.  The
execution and delivery by each of Parent and Merger Sub of this Agreement and
the Transaction Agreements to which it is a party do not, and the performance by
each of Parent and Merger Sub of this Agreement and the Transaction Agreements
to which it is a party will not, require any consent, approval, order,
authorization or permit of, or declaration, registration, filing with, or
notification to, any Governmental Entity, except for (i) applicable
requirements, if any, of (A) the Exchange Act, including, without limitation,
the filing with the SEC of the Schedule TO and the Proxy Statement, (B) state
securities or "blue sky" laws, (C) the DGCL to file the Certificate of Merger or
other appropriate documentation and (D) Nasdaq, (ii) those required by the HSR
Act, (iii) such filings and approvals as are required to be made or obtained
under any foreign antitrust, competition or similar Laws in connection with the
consummation of the Merger and the other transactions contemplated by this
Agreement, and (iv) the filing of customary applications and notices, as
applicable, with the FDA, the EMEA or any other Regulatory
Authority.

       

      Section
5.5          Compliance;
Regulatory Compliance.  Parent
(i) has been operated at all times in compliance with all Laws and Orders
applicable to Parent or by which any property, business or asset of Parent is
bound or affected and (ii) is not in default or violation of any governmental
licenses, permits or franchises to which Parent is a party or by which Parent or
any property or asset of Parent is bound or affected other than, in the case of
clauses (i) and (ii) above, failures to comply, defaults or violations which do
not have and are not reasonably expected to have, individually or in the
aggregate, a Parent Material Adverse Effect. Parent has not received any written
communication during the past two years from a Governmental Entity that alleges
that Parent is not in compliance in any material respect with any applicable Law
or Order other than any noncompliance that has not had and is not reasonably
expected to have, individually or in the aggregate, a Parent Material Adverse
Effect.

       

      Section
5.6          SEC Filings;
Financial Statements.

       

      (a)           Parent has filed all forms, reports,
statements and documents required to be filed with the SEC since December 31,
2005 (the "Parent
SEC Reports"), each of which has complied in all material
respects with the applicable requirements of the Securities Act and the rules
and regulations promulgated thereunder, the Exchange Act and the rules and
regulations promulgated thereunder, and the Sarbanes-Oxley Act and the rules and regulations
thereunder, each as in effect on the date so filed, except to the extent
updated, amended, restated or corrected by a subsequent Parent SEC Report filed
or furnished to the SEC by Parent, and in either case, publicly
available prior to the date hereof (each, a
"Parent
Filed SEC Report"). None of the Parent SEC Reports
(including any financial statements or schedules included or incorporated by
reference therein) contained when filed or currently contains, and any Parent SEC Reports
filed with the SEC subsequent to the date hereof will not contain, any untrue
statement of a material fact or omission to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except to the extent updated, amended,
restated or corrected by a subsequent Parent Filed SEC
Report.

       

      
        
          
          

        

        
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      (b)           Except to the extent updated, amended,
restated or corrected by a subsequent Parent Filed SEC Report, all of the
financial statements included in the Parent SEC Reports, in each case, including
any related notes thereto, as filed with the SEC (those filed with the SEC are
collectively referred to as
the "Parent
Financial Statements"), comply as to form in all material
respects with applicable accounting requirements and the published rules of the
SEC with respect thereto and have been prepared in accordance with GAAP applied
on a consistent basis throughout the periods involved (except as
may be indicated in the notes thereto or, in the case of the unaudited
statements, as may be permitted by Form 10-Q of the SEC and subject, in the case
of the unaudited statements, to normal, year-end audit adjustments which are not reasonably expected to
have, individually or in the aggregate, a Parent Material Adverse Effect). The
consolidated balance sheets (including the related notes) included in such
Parent Financial Statements (if applicable, as updated, amended, restated or corrected in a
subsequent Parent Filed SEC Report) fairly present, in all material respects,
the consolidated financial position of Parent and the Parent Subsidiaries at the
respective dates thereof, and the consolidated statements of operations, stockholders' equity and cash flows (in each case,
including the related notes) included in such Parent Financial Statements (if
applicable, as updated, amended, restated or corrected in a subsequent Parent
Filed SEC Report) fairly present, in all material respects, the consolidated
statements of operations, stockholders' equity and cash flows of Parent and the
Parent Subsidiaries for the periods indicated, subject, in the case of the
unaudited statements, to normal, year-end audit adjustments which are not reasonably expected to have,
individually or in the aggregate, a Parent Material Adverse
Effect.

       

      Section
5.7          Absence of
Certain Changes or Events. Except
as contemplated by this Agreement, since the date of the most recent audited
financial statements included in the Parent SEC Reports and through the date
hereof, Parent and its Subsidiaries have conducted their respective businesses
only in the ordinary course in all material respects and in a manner consistent
with prior practice in all material respects and there has not been any event or
occurrence of any condition that has had or is reasonably expected to have,
individually or in the aggregate, a Parent Material Adverse Effect.

       

      Section
5.8           Litigation.  There
is no Litigation pending or, to the knowledge of Parent, threatened against or
affecting Parent or any Subsidiary of Parent or any of their respective assets
which, if adversely determined, individually or in the aggregate, has had or is
reasonably expected to have a Parent Material Adverse Effect.

       

      Section
5.9           Financing.  Parent
has cash available or has existing borrowing facilities or firm financing
commitments that, together with the cash of the Company, are sufficient to
enable it to pay the cash portion of the Merger Consideration payable as
required by this Agreement and to otherwise consummate the transactions
contemplated by this Agreement.

       

      Section
5.10         Brokers.  No
broker, investment banker, financial advisor or other Person, other than Morgan
Stanley & Co., Inc., the fees and expenses of which will be paid by Parent,
is entitled to any broker's, finder's, financial advisor's or other similar fee
or commissionin
connection with the Merger and the other transactions contemplated by this
Agreement based upon arrangements made by or on behalf of Parent.

       

       

      
        
          
          

        

        
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      ARTICLE VI

       

      COVENANTS

       

      Section
6.1          Conduct of
Company's Business
Pending the Merger.

       

      (a)           From the date of this Agreement until the earlier of (i) such time as designees of Parent
first constitute at least a majority of the Company Board pursuant to
Section 1.3(a) and (ii) the Effective Time, except as otherwise consented to by
Parent in writing (including by electronic
mail) (such consent not to
be unreasonably delayed),
and except as disclosed in
Section 6.1(a) of the Company Disclosure Letter or as
otherwise explicitly required by this Agreement, (i) the Company
shall, and shall
cause the Company
Subsidiaries to, conduct their respective businesses only in, and the Company and the Company
Subsidiaries shall not take any action except in,
the ordinary course of business consistent with past practice and (ii) the
Company and the Company Subsidiaries shall use their reasonable best efforts to preserve
intact their business organizations, to preserve their assets and properties
in good repair and condition, to keep available the services of their current officers and
employees and to preserve, in all material respects, the current relationships of the
Company and the Company Subsidiaries with customers, suppliers, licensors,
licensees, distributors and other Persons with which the Company or the Company Subsidiaries have business
dealings.

       

      (b)           Without limiting the generality of the
foregoing, except as set
forth in Section 6.1(b) of the Company Disclosure Letter or as
otherwise explicitly required by this Agreement, from the date of this
Agreement until the earlier of (i) such time as designees of Parent
first constitute at least a majority of the Company Board pursuant to
Section 1.3(a) and (ii), except as otherwise consented to by
Parent in writing (including by electronic mail)(such consent not to be unreasonably
withheld or delayed), the
Company shall not, nor shall the Company permit any of the Company Subsidiaries
to:

       

      (i)           amend the Company Organizational
Documents or the equivalent organizational documents of any Company
Subsidiary;

       

      (ii)           declare or pay any dividends on or make
other distributions (whether in cash, stock or property) in respect of any of
its capital stock, except for dividends and distributions by a direct or
indirect wholly owned Company Subsidiary to its parent;

       

      (iii)          subdivide, reclassify, recapitalize,
split, combine or exchange or enter into any similar transaction with respect to
any of its capital stock or issue or authorize or propose the issuance of any other securities in
respect of, in lieu of or
in substitution for shares of its capital stock, except for any split,
combination or reclassification of capital stock of a wholly-owned
Company Subsidiary, or any issuance or
authorization or proposal to issue or authorize any securities of a
wholly-owned Company Subsidiary to the
Company or another wholly-owned Company
Subsidiary;

       

       

      
        
          
          

        

        
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      (iv)          repurchase, redeem or otherwise
acquire any shares of its capital stock or
any Company Stock Rights, other than in connection with (A) the forfeiture or
expiration of outstanding Company Options and (B) the
withholding of shares of Company Common Stock to satisfy Tax obligations with
respect to the exercise of
Company Options pursuant to any obligations
contained in the Company Stock Plans;

       

      (v)          issue, deliver or sell, or
authorize, propose or
reserve for issuance, delivery or sale, or otherwise encumber, any shares of its capital stock or any
Company Stock Rights, other than (A) the issuance of shares upon the
exercise of Company Options, in each case outstanding on the date
of this Agreement in
accordance with their present terms and (B) the issuance of stock options and shares
of capital stock to newly hired employees (the hiring of whom is otherwise
permissible pursuant to the terms of this Agreement) in the ordinary course
of business under the
Company Stock Plans in
existence as of the date hereof;

       

      (vi)         create, assume or incur any
indebtedness for borrowed money or guaranty any
such indebtedness of another Person, or repay, redeem or repurchase any
such indebtedness;

       

      (vii)         make any loans, advances or capital contributions
to, or any investments in, any other Person (other than loans or advances between
any wholly owned Company Subsidiaries or between the Company and any wholly
owned Company Subsidiaries);

       

      (viii)        (x) sell, assign, lease,
license, sell and
leaseback, mortgage, pledge or otherwise
encumber or dispose of any assets or properties that are material, individually
or in the aggregate, to the Company and the Company Subsidiaries, taken
as a whole, or (y) enter into, modify or amend any lease of property, except for
modifications or amendments that are not adverse to the Surviving Corporation;

       

      (ix)         directly or indirectly acquire (x) by
merging or consolidating with, or by purchasing assets of, or by any other
manner, any division, business or equity interest of any Person (including in a transaction involving a
tender or exchange offer, business combination, recapitalization, liquidation,
dissolution, joint venture or similar transaction) or (y) any material
assets;

       

      (x)          implement or adopt any material change in its accounting policies other than as may be
required by applicable Law or GAAP and as concurred with by the
Company's independent
auditors;

       

      (xi)         except to the minimum extent required in
order to comply with applicable Law: (A) amend any of the terms or conditions of employment for any of its
directors or officers, (B) adopt, enter into, terminate or amend any Company


       

       

      
        
          
          

        

        
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      Benefit Plan, Company Benefit Agreement
or collective bargaining agreement, other than amendments
that are immaterial or administrative in nature, (C) increase in any
manner the compensation or benefits of, or pay any bonus to, any Company
Participant, other than annual salary increases and target bonuses to be paid to Company
employees below the vice president
level in the
ordinary course of business
consistent with past practice, (D) grant any awards under any Company Benefit
Plan (including the grant of stock options, stock appreciation rights,
performance units, restricted stock, deferred stock awards,
stock purchase rights or other stock-based or stock-related
awards) except grants to
employees who are not officers or directors of the Company in the ordinary course of business
consistent with past practices, including with respect to amounts, not to exceed 1,000 shares in the aggregate or remove or modify existing
restrictions in any Company Benefit Plan
or Company Benefit Agreement on any awards made thereunder, (E) take any action
to accelerate the vesting or payment of any compensation or benefits under any
contract, Company Benefit
Plan or Company Benefit Agreement (except to the extent provided for
under any Company Benefit Plans or Company Benefit Agreements in existence as of
the date hereof) or
(F) make any material determination under
any Company Benefit Plan or Company Benefit Agreement that is
inconsistent with the ordinary course
of business or past
practice;

       

      (xii)         modify or amend in any material
respect or terminate or cancel or
waive, release or assign
any material rights or
claims with respect to, any Company Material Contract or enter into any agreement or
contract that would qualify as a Company Material Contract;

       

      (xiii)        enter into any material Contract relating to the development or
commercialization of any Product or pharmaceutical product, including but
not limited to licensing,
development, manufacturing, co-development, marketing or co-marketing
agreements;

       

      (xiv)       
pay, loan or advance (other than
the payment of compensation, directors' fees or reimbursement of expenses in
the ordinary course of business, including pursuant to existing indemnification
agreements with officers and directors) any amount to, or sell, transfer or lease any properties or assets
(real, personal or mixed, tangible or intangible) to,
or enter into any agreement with, any of its officers or directors or any
Affiliate or Associate of any of its officers or directors;

       

      (xv)        
form or commence the
operations of any business
or any corporation, partnership, joint venture, business
association or other business organization or division thereof or enter into any
new line of business that is material to Company and the Company Subsidiaries,
taken as a whole;

       

      (xvi)        make any material tax election or settle
or compromise any material tax liability or refund;

       

      (xvii)       (A) pay, discharge, settle or
satisfy any claims,
Litigation, Liabilities or obligations (whether absolute,
accrued, asserted or unasserted,

       

       

      
        
          
          

        

        
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      contingent or otherwise), other than the payment,
discharge, settlement or satisfaction, in the ordinary course of business consistent
with past practice or in accordance with their terms, of Liabilities: (1) reflected or reserved against in,
or contemplated by, the most recent consolidated financial statements
(or the notes thereto) included in the Company SEC Reports or (2) incurred in
the ordinary course of business consistent with past practice or, (B) cancel any
material indebtedness (individually or in the
aggregate) or waive any
claims or rights of substantial value;

       

      (xviii)      Except as contemplated by the budget
attached as Schedule 4.13(a)(ii), make or agree to make any new capital
expenditure or expenditures which, individually, are in excess of $150,000 or, in the aggregate, are in excess of $500,000;

       

      (xix)        fail to take any action necessary or
advisable to
protect or maintain the
Company Owned IP (to the extent that necessary prosecution rights are held by
the Company) that is
material to the conduct of the business of the Company as currently conducted
and planned by the Company to be conducted, including the prosecution of all pending applications for patents
and trademarks, the filing of any documents or other
information or the payment of any maintenance or other fees related
thereto; or

       

      (xx)        authorize, or commit or agree to take,
any of the foregoing actions.

       

      Section
6.2          Access to
Information; Confidentiality.

       

      (a)           Subject to the confidentiality agreement
between Parent and the Company, dated September 30, 2008 (the "Confidentiality
Agreement") and applicable Law, the Company shall,
and shall cause each of
its Subsidiaries to, afford to Parent and its officers,
employees, accountants, counsel, financial advisors and other Representatives, full access at all
reasonable times on reasonable notice during the period between the date of this Agreement and the earlier of the Effective
Time and the termination of this Agreement in accordance with Section 8.1 to all their properties, books,
contracts, commitments, personnel and records, including for the purpose of
conducting Phase I
environmental site assessments (provided, that such access shall not
unreasonably interfere with the business or operations of the Company) and,
during such period, the Company shall, and shall cause each of its Subsidiaries to, furnish promptly to Parent (i) a copy of each report,
schedule, registration statement and other document filed by it during such
period pursuant to the requirements of federal or state securities laws, and
(ii) all other information concerning its business, properties, litigation matters, personnel and environmental compliance and
property condition as
Parent may reasonably request, including bi-weekly sales reports, bi-weekly headcount reports, bi-weekly cash reports, bi-weekly
accounts receivable reports and bi-weekly reports on the average selling price
of all marketed products of
the Company and its Subsidiaries; provided, that nothing in this Section 6.2 shall require the Company to provide
any access, or to disclose any information, if permitting such access or disclosing
such information would (x) violate applicable Law, (y) violate any of its
obligations with respect to confidentiality (provided, that the Company shall, upon the
request of Parent, use its reasonable best efforts to obtain the required consent of any third
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      disclosure), or (z) result in the loss
of attorney-client privilege (provided, that the Company shall
use its reasonable best efforts to allow
for such access or disclosure in a manner that does not result in a loss of
attorney-client privilege).  In addition, the Company and its officers
and employees shall reasonably cooperate with Parent in Parent's efforts to comply with the rules and
regulations affecting public companies, including the Sarbanes-Oxley Act.  No review pursuant to this
Section 6.2 shall affect or be deemed to modify any
representation or warranty contained herein, the covenants or agreements of the
parties hereto or the conditions to the obligations of the parties hereto under this
Agreement.  All information provided pursuant to this Section 6.2 shall be subject to the terms of the
Confidentiality Agreement.

       

      (b)           As soon as practicable after the date
hereof, the parties shall
create a joint transition management committee (the "Transition
Committee") consisting of two Representatives from each of the parties
hereto designated from time to time as agreed by the Chief Executive Officers of
each of Parent and the Company.  The
Transition Committee shall be responsible for organizing, developing, managing
and implementing a transition plan for the prompt and efficient integration of
the business organizations of Parent and the Company and their
respective Subsidiaries (the "Transition
Plan") subject to the requirement that
control of the management, properties and assets of Parent and the Company, as
set forth in this Agreement, shall at all times prior to the Effective Time
remain under the control of
their respective Boards of Directors.

       

      Section
6.3          Notification
of Certain Matters; Regulatory Communications.

       

      (a)           Parent shall give prompt notice to the
Company and the Company shall give prompt notice to Parent, as the case may be,
of the occurrence, or
failure to occur, of any event, which occurrence or failure to occur is
reasonably likely to cause (a)(i) any representation or warranty of such party
contained in this Agreement that is qualified as to "materiality", "Company Material Adverse Effect" or "Parent Material Adverse
Effect" to be untrue or inaccurate in any
respect or (ii) any other representation or warranty of such party contained in
this Agreement to be untrue or inaccurate in any material respect, in each case
at any time from and after
the date of this Agreement until the Offer Closing or (b) any material failure of Parent
and Merger Sub or the Company, as the case may be, to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it under
this
Agreement.  In addition, Parent shall give prompt notice to the
Company and the Company shall give prompt notice to Parent, as the case may be,
of any change or event having, or which is reasonably likely to have, a
Company Material Adverse Effect or Parent Material Adverse
Effect, as the case may be,
or which would be reasonably likely to result in the failure of any of the
conditions set forth in Annex A to be
satisfied.  Notwithstanding the above, the delivery of any notice
pursuant to this Section
6.3 will not limit or
otherwise affect the representations, warranties, covenants or agreements of the
parties, the remedies available hereunder to the party receiving such notice or
the conditions to such party's obligation to consummate the Offer or the Merger.

       

      (b)           The Company: (i) shall keep Parent
promptly informed of (A) any communication (written or oral) with or from the
FDA, EMEA and any other Regulatory Authority and (B) any material communications (written or oral)
received from any Person
relating to the Company IP and (ii) shall not make any submissions to, or have
discussions with, the FDA, EMEA and any other Regulatory Authority without prior disclosure to Parent of
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      details of such communications or
submissions. Parent shall keep the Company informed on a
periodic basis of any material
communications from the FDA, EMEA, the National Institutes of Health,
the Medical Research Council (UK) and any other Regulatory Authority relating to any of the
Products.

       

      Section
6.4           Antitrust
Filings;
Reasonable Best Efforts.

       

      (a)           Each party shall make or cause to be
made, in cooperation with the other parties and to the extent applicable and as
promptly as practicable, (i) an appropriate filing of a Notification and Report
Form pursuant to the HSR Act with respect to the transactions
contemplated hereby and (ii) all other necessary filings, forms, declarations,
notifications, registrations and notices with other Governmental Entities under
Competition Laws relating to the transactions contemplated hereby.  "Competition
Laws" mean the HSR Act, the Sherman Antitrust
Act of 1890, as amended, the Clayton Act of 1914, as amended, the Federal Trade
Commission Act, as amended, and any other United States federal or state or
foreign statutes, rules,
regulations, orders, decrees, administrative or judicial doctrines or other laws
that are designed to prohibit, restrict or regulate actions having the purpose
or effect of monopolization or restraint of trade.  Each party shall
use its reasonable best efforts to respond at the
earliest practicable date to any requests for additional information made by the
United States Department of Justice or any other Governmental Entities, and act
in good faith and reasonably cooperate with the other party in connection with any investigation
of any Governmental Entity.  Each party shall use its reasonable best
efforts to furnish to each other all information required for any filing, form,
declaration, notification, registration and notice.  Each party
shall give the other party reasonable
prior notice of any communication with, and any proposed understanding or
agreement with, any Governmental Entity regarding any filings, forms,
declarations, notifications, registrations or notices, and permit the
other to review and discuss in advance, and
consider in good faith the views of the other in connection with, any proposed
communication, understanding or agreement with any Governmental Entity with
respect to the transactions contemplated by the
Agreement.  None of the parties shall independently
participate in any meeting, or engage in any substantive conversation, with
any Governmental Entity in respect of any filings or inquiry
without giving the other party prior notice of the meeting and, unless
prohibited by such
Governmental Entity, the opportunity to attend and/or
participate.  The parties will consult and cooperate with one another
in connection with any information or proposals submitted in connection with
proceedings under or relating to any Competition Law.  Without limiting the
foregoing, the Company and Parent shall each use its reasonable best efforts:
(i)  to avoid the entry of any judgment that would restrain, prevent
or delay the Closing; (ii) to eliminate every impediment under any
Competition Law that may be asserted by any
Governmental Entity so as to enable the Closing to occur as soon as reasonably
possible (and in any event no later than the Outside Date (as defined herein)); and (iii) vigorously to contest and
resist any such action or proceeding, including any administrative or
judicial action.

       

      (b)           Subject to Section 6.4(c), each of the parties to this Agreement
agrees to use its reasonable best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and
cooperate with the other parties to this Agreement in doing, all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the Offer, the Merger and the other transactions contemplated by this Agreement,
including (i) the obtaining of all other necessary actions or nonactions,
waivers, consents, licenses, permits, authorizations, orders and approvals from
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      the making of all other necessary
registrations and filings (including filings
with Governmental Entities, if any), (ii) the obtaining of all consents,
approvals or waivers from third parties related to or required in connection
with the Offer or the
Merger that are necessary
to consummate the Offer, the Merger and the transactions contemplated
by this Agreement, (iii) the preparation of the Proxy Statement and any other documents that may be
required to be filed with the SEC, (iv) the execution and delivery of any
additional instruments reasonably necessary to consummate the
transactions contemplated by, and to fully carry out the purposes of, this
Agreement, and (v) the providing of all such information concerning such party,
its subsidiaries, its Affiliates and its subsidiaries' and Affiliates' officers, directors, employees and
partners as may be reasonably requested in connection with any of the matters
set forth in Section
6.4(a) or this Section 6.4(b).  Each of Parent and the
Company agrees that it will
use its reasonable best efforts to obtain prior to the Offer Closing each of the consents that are listed in Section 6.4(b) of the Company Disclosure
Letter.

       

      (c)           Notwithstanding anything to the contrary
in this Section 6.4, neither Parent nor the Company shall
be required in order to resolve any objections asserted under Competition Laws
by any Governmental Entity with respect to the transactions contemplated by this
Agreement to divest any of
its businesses, product lines or assets, or take or agree to take any other
action or agree to any limitation or restriction.

       

      Section
6.5          No
Solicitation; Company Board Recommendation.

       

      (a)           The Company shall not, nor shall it
authorize or permit any of the
Company Subsidiaries or its
or their Representatives to, directly or indirectly, (i) solicit, initiate or encourage, or take any
other action designed to, or which is reasonably expected to, facilitate, any
Company Takeover
Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) enter into, continue or
otherwise participate in any discussions or negotiations regarding, or
furnish to any Person any information with respect to, or
otherwise cooperate with, any proposal that constitutes, or is reasonably expected
to lead to, any Company
Takeover Proposal.  The Company shall, and
shall cause the Company Subsidiaries and its Representatives to, immediately
cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to
any proposal that constitutes, or is reasonably expected to lead to, any
Company Takeover
Proposal and request the prompt return or destruction
of all confidential information previously furnished. Notwithstanding the foregoing, at
any time prior to the Offer
Closing, in response to a
bona fide written Company
Takeover Proposal that the
Company Board determines (after consultation with outside counsel and a
financial advisor of nationally recognized
reputation) constitutes, or
is reasonably expected to lead to, a Superior Proposal, and which Company Takeover Proposal was not solicited after the date
hereof, was made after the date hereof and did not otherwise result from a
breach of this Section
6.5(a), the Company may, if
a majority of the Company Board determines (after consultation with outside counsel) that it is necessary
to take such actions in order to comply with its
fiduciary duties to the stockholders of the Company under applicable Law, and subject to compliance
with this Section
6.5(a) and Section 6.5(c) and after giving Parent written notice
of such determination, (x) furnish information with respect to the Company and the Company Subsidiaries to
the Person making such Company Takeover Proposal (and its Representatives) pursuant to a
customary confidentiality agreement (which agreement
shall include a customary "standstill" or similar covenant) not less
restrictive of such
Person than the Confidentiality 

       

       

      
        
          
          

        

        
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      Agreement and containing provisions allowing
necessary disclosures to Parent pursuant to Section 6.5(c) hereof; provided that (1) all such information has
previously been provided to
Parent or is provided to Parent prior to the time it is provided to such
Person and (2) such customary confidentiality
agreement expressly provides the right for the Company to comply with the terms
of this Agreement, including Section 6.5(b) and Section 6.5(c), and (y) participate in discussions or
negotiations with the Person making such Company Takeover Proposal (and its Representatives) regarding
such Company Takeover
Proposal.  Without limiting the foregoing, it is agreed that any
violation of the restrictions set forth in this Section 6.5(a) by any Representative or Affiliate of the Company or any Company
Subsidiary shall be deemed to be a breach of this Section 6.5(a) by the Company.

       

      The term
"Company
Takeover
Proposal" means any inquiry, proposal or offer from any Person relating
to, or that is reasonably expected to lead to, any direct or indirect
acquisition or purchase, in one transaction or a series of transactions, of any
Product or of assets or businesses that constitute 15% or more of the revenues,
net income, EBITDA (earnings before interest expense, taxes, depreciation and
amortization) or the assets of the Company and the Company Subsidiaries, taken
as a whole, or 15% or more of any class of equity securities of the Company or
any Company Subsidiary, any tender offer or exchange offer that if consummated
would result in any Person beneficially owning 15% or more of any class of
equity securities of the Company or any Company Subsidiary, or any merger,
consolidation, business combination, recapitalization, liquidation, dissolution,
joint venture, binding share exchange or similar transaction involving the
Company or any Company Subsidiary pursuant to which any Person or the
stockholders of any Person would own 15% or more of any class of equity
securities of the Company or any Company Subsidiary or of any resulting parent
company of the Company, other than the transactions contemplated by this
Agreement.

       

      The term
"Superior
Proposal" means a bona fide Company Takeover Proposal (provided, that for
purposes of this definition references to 15% in the definition of "Company
Takeover Proposal" shall be deemed to be references to 50%) which the Company
Board determines in good faith (after consultation with outside counsel and a
financial advisor of nationally recognized reputation) to be (i) more favorable
to the stockholders of the Company from a financial point of view than the Offer
and the Merger, taking into account all relevant factors (including all the
terms and conditions of such proposal and the Offer and this Agreement
(including any changes to the terms of the Offer and this Agreement proposed by
Parent in response to such offer or otherwise)) and (ii) reasonably capable of
being completed, taking into account all financial, legal, regulatory and other
aspects of such proposal.

       

      (b)           Neither the Company Board nor any
committee thereof shall,
(i) (A) withdraw (or qualify or modify in a
manner adverse to Parent or Merger Sub), or publicly propose to withdraw (or
qualify or modify in a manner adverse to Parent or Merger Sub), the adoption,
approval, recommendation or declaration of advisability by the Company Board or any such committee thereof of this
Agreement, the Offer, the
Merger or the other
transactions contemplated by this Agreement or (B) recommend, adopt, approve or
declare advisable, or propose publicly to recommend, adopt, approve or declare advisable, any
Company Takeover
Proposal (any action described in this clause (i) being
referred to as a "Company
Adverse Recommendation Change") or (ii) adopt, approve, recommend or
declare advisable, or
propose to adopt, approve, recommend or declare advisable,
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      Company Subsidiaries to execute or enter
into, any letter of intent, memorandum of understanding,
agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture
agreement, partnership agreement or other similar agreement constituting or
related to, or that is intended to or is reasonably expected to lead to, any
Company Takeover
Proposal (other than a
confidentiality
agreement referred to in Section 6.5(a) pursuant to and in accordance with the
limitations set forth
therein).  Notwithstanding the foregoing, at any time prior to
Offer Closing Date, the Company Board may make a Company
Adverse Recommendation
Change if a majority of the Company Board determines (after consultation with outside counsel) that it is necessary to
take such actions in order to comply with its fiduciary duties to the
stockholders of the Company under applicable Law; provided, however, that no such Company Adverse
Recommendation Change may be made until after the fifth calendar day following
Parent's receipt of written notice (a "Company
Notice of Adverse Recommendation") from the Company advising Parent that
the Company Board intends to take such action and specifying the reasons
therefor, including the terms and conditions of any Superior Proposal that is
the basis of the proposed action by the Company Board (it being understood and agreed that (x) any
amendment to any material term of such Superior Proposal or (y) with respect to
any previous Company Adverse Recommendation Change, any
material change in the principal stated rationale by the Company Board for such
previous Company Adverse
Recommendation Change, shall, in the case of
either (x) or (y), require a new Company Notice of Adverse Recommendation and a
new five (5) calendar day-period).  In determining whether to make a
Company Adverse Recommendation Change, the Company Board shall take into
account any changes to the terms of this Agreement proposed by Parent in response to a
Company Notice of Adverse Recommendation or
otherwise.

       

      (c)           In addition to the obligations of the
Company set forth in Section 6.5(a) and Section 6.5(b), (i) the Company shall promptly advise
Parent orally and in writing (and in any case within 24 hours) of any
Company Takeover
Proposal or any inquiry
that is reasonably expected to lead to any Company Takeover Proposal, the material terms and conditions of
any such Company Takeover
Proposal or inquiry
(including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry and (ii) the Company shall (A) keep Parent fully and promptly
informed of the status and material details (including any change to any
material term thereof) of any such Company Takeover Proposal or inquiry and (B) provide to Parent promptly after
receipt or delivery thereof copies of all correspondence and other
written material sent or provided to the Company
or any of the Company Subsidiaries from any Person that describes any of the terms or
conditions of any Company
Takeover Proposal or
inquiry.  In
addition, during the period
from the date of this Agreement through the Offer Closing, the Company shall not terminate, amend, modify or waive any
provision of any confidentiality agreement to which it or any of its Subsidiaries
is a party.  During such period, the Company shall enforce, to the fullest extent
permitted under applicable law, the provisions of any such agreement, including
by obtaining injunctions to prevent any breaches of such agreements and to
enforce specifically the terms and provisions thereof in any court of the United States of America or of any
state having jurisdiction.

       

      (d)           Nothing contained in this Agreement shall prohibit the Company from taking and disclosing to its
stockholders a position contemplated by Rule 14(e)-2(a) or Rule 14(d)-9
promulgated under the
Exchange Act or from making any disclosure to the Company's stockholders (including, without limitation, any
amendments to its Schedule 14D-9 relating to a 

       

       

      
        
          
          

        

        
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      Company Adverse Change
Recommendation) if, in the
good faith judgment of the Company Board,
after consultation with
outside counsel, failure to so disclose would be inconsistent with applicable
Law; provided, however, that all actions taken or agreed to be
taken by the Company or the Company Board or any committee thereof shall comply
with the provisions of
Section 6.5(a).

       

      Section
6.6           Stockholder
Litigation.  The
Company shall give Parent the opportunity to participate (at Parent's expense)
in the defense or settlement of any stockholder Litigation against the Company
and its directors relating to the Offer, the Merger or the other transactions
contemplated by this Agreement; provided, however, that no such
settlement shall be agreed to without Parent's prior written consent, which
consent shall not be unreasonably withheld or delayed, except that Parent shall
not be obligated to consent to any settlement which does not include full
release of Parent and its Affiliates or which imposes an injunction or other
equitable relief upon Parent or any of its Affiliates (including, after the
Effective Time, the Surviving Corporation).

       

      Section
6.7           Indemnification; Director
and Officer Insurance.  For
not less than six years from and after the Effective Time, Parent agrees to, and
to cause the Surviving Corporation to, indemnify and hold harmless all past and
present directors, officers and employees of the Company to the same extent such
Persons are indemnified as of the date of this Agreement by the Company pursuant
to the Company Certificate of Incorporation and Company By-Laws and
indemnification agreements, if any, in existence on the date of this Agreement
with any directors, officers or employees of the Company for acts or omissions
occurring at or prior to the Effective Time; provided, however, that Parent
agrees to, and to cause the Surviving Corporation to, indemnify and hold
harmless such Persons to the fullest extent permitted by law for acts or
omissions occurring in connection with the approval of this Agreement and the
consummation of the transactions contemplated hereby. Parent shall cause the
Surviving Corporation to provide, for an aggregate period of not less than six
years from the Effective Time, the Company's current directors and officers an
insurance and indemnification policy that provides coverage for events occurring
prior to the Effective Time (the "D&O
Insurance") that is no less favorable than the Company's existing policy
or, if substantially equivalent insurance coverage is unavailable, the best
available coverage; provided, however, that the
Surviving Corporation shall not be required to pay an annual premium for the
D&O Insurance in excess of 250 percent of the last annual premium paid prior
to the date of this Agreement; provided that Parent
may substitute therefor a single premium tail coverage with respect to D&O
Insurance at a level at least as favorable as in the D&O
Insurance.

       

      Section
6.8           Public
Announcements.  The
initial press release shall be a joint press release and thereafter, during the
period between the date of this Agreement and the earlier of the Offer Closing
and the termination of this Agreement in accordance with Section 8.1, the
Company and Parent each shall obtain the prior consent of the other prior to
issuing any press releases or making other public statements and communications
with respect to the Merger, the other transactions contemplated by this
Agreement or Products, except as may be required by Law or by
obligations pursuant to any listing agreement with or rules of
Nasdaq.  In addition, the Company and Parent shall develop a joint
communications strategy and each party shall ensure that, during the period
between the date of this Agreement and the earlier of the Offer Closing


       

       

      
        
          
          

        

        
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      and the
termination of this Agreement in accordance with Section 8.1, all press releases and other
public statements and communications (including any communications that would
require a filing under Rules 14d-2 or 14d-9 of the Exchange Act), with analysts,
members of the financial community or otherwise, with respect to the Offer, the
Merger, the other transactions contemplated by this Agreement or Products shall
be consistent in all material respects with such joint communications
strategy.

       

      Section
6.9           Preparation
of SEC Documents; Stockholders' Meeting.

       

      (a)           If the adoption of this Agreement by the stockholders of the Company is required by
the DGCL, as soon as practicable following the
Offer Closing, the Company shall prepare and file
with the SEC, subject to the prior review, comment and
approval of Parent (which approval shall not be unreasonably withheld or
delayed), a proxy statement relating to the
Company Stockholder Approval (such proxy statement, as amended or supplemented from time
to time, the "Proxy
Statement").  The Company will use its
reasonable best efforts to
cause the Proxy Statement to be mailed to the Company's stockholders as promptly as practicable after clearing comments received from
the SEC.  No
filing of, or amendment or supplement to, the Proxy Statement will be made
by the Company without Parent's prior consent (which shall not be
unreasonably withheld or delayed) and without providing Parent the reasonable opportunity to review and comment
thereon.  The
Company will advise
Parent promptly of any request by the SEC for
amendment of the Proxy
Statement or comments thereon and responses thereto or requests by the SEC for
additional information.  If at any time prior to the Effective Time
any information relating to Parent or the Company, or any of their respective
Affiliates, officers or directors, should become known to
Parent or the Company which should be set forth in an amendment or supplement to
the Proxy Statement, so that any of such
documents would not include any misstatement of a material fact or omit to state
any material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, the party which discovers such information shall
promptly notify the other parties hereto and an appropriate amendment or
supplement describing such information shall be
promptly filed with the SEC and, to the extent required by law, disseminated to
the stockholders of the Company.

       

      (b)           Each of the Company and Parent shall
supply such information specifically for inclusion or incorporation by
reference in the Proxy Statement necessary so that,
at the date it is first mailed to the Company's stockholders or at the time of the
Company Stockholders' Meeting, the Proxy Statement shall not
contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading.  Each of
the parties hereto shall use their reasonable best efforts so that the Proxy Statement will comply as to form
in all material respects with the requirements of the Exchange Act and the rules
and regulations thereunder.

       

      (c)           If the adoption of this Agreement by the
stockholders of the Company is required by
the DGCL, the Company shall take all action necessary to duly call,
give notice of, convene and
hold a meeting of its stockholders as promptly as practicable for the purpose of obtaining the approval by the
Company's stockholders in accordance with the
DGCL (the "Company
Stockholders'
Meeting").  The Company shall ensure that the Company
Stockholders' Meeting is called, noticed, convened,
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      solicited in connection with the Company
Stockholders' Meeting are solicited in compliance with
applicable Law, the rules of Nasdaq and the Company Organizational
Documents.  

       

      (d)           Notwithstanding the foregoing, if
following the Offer and any subsequent offering period and the exercise, if any,
of the Top-Up Option, Parent and its Subsidiaries shall own at
least 90% of the outstanding shares of the Company Common Stock, the parties
hereto shall take all necessary and appropriate action, including with respect
to the transfer to
Merger Sub of any shares of
Company Common Stock held
by Parent or any Subsidiary of Parent, to cause the Merger to become effective
as soon as practicable after the Offer Closing without the Company Stockholder's Meeting in accordance with Section
253 of the DGCL.

       

      Section
6.10        Employees.

       

      (a)           Parent shall or shall cause the Surviving Corporation to employ
those individuals set forth
on Section
6.10(a) of the Company Disclosure Letter
(collectively, the "Nebido
Transition Team") from the Offer Closing until
at least the earliest of
(i) the Approval With Label Milestone Date (as defined in the Nebido Contingent
Cash Consideration Agreement), the (ii)
Approval Without Label Milestone Date (as defined in the Nebido
Contingent Cash Consideration Agreement, (iii) December 31, 2009
(the "Nebido Transition Team Employment
Period") and (iv) with
respect to any member of the Nebido Transition Team, such member's death,
disability or voluntary termination of employment.  During the Nebido
Transition Team Employment Period, the management structure and reporting
lines of the Nebido Transition Team shall be as set forth on Section 6.10(a) of
the Company Disclosure Letter.  Upon the Approval with
Label Milestone Date or Approval Without Label Milestone Date, provided that such
date occurs on or prior to December 31, 2009, each member of the Nebido
Transition Team who is then employed by Parent or the Surviving Corporation
shall be provided with a cash bonus in the amount set forth beside his or her
name on Section 6.10(a) of the Company Disclosure Letter.  

       

      (b)          For a period of one year following the Offer Closing, Parent shall or shall cause the
Surviving
Corporation to either (i)
provide the employees of the Company and the Company Subsidiaries who are
employed immediately prior to the Effective Time (the "Covered
Employees") who remain employed during such period
by Parent, the Surviving
Corporation or any of their
respective Subsidiaries with compensation and benefits (excluding equity based
compensation) which, taken
as a whole,
have a value
substantially comparable, in the
aggregate, to the compensation and benefits provided by the
Company and the Company Subsidiaries as of the date hereof or (ii) provide or
cause the Surviving
Corporation (or, in such
case, its successors or assigns) to provide Covered Employees who
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      respective Subsidiaries with
compensation and benefits that, taken as a
whole, have a value
substantially comparable,
in the aggregate, to the Covered Employees than those provided to similarly
situated employees of Parent and its Subsidiaries. In addition, except as set forth in
Section 6.10(a), for a period of one year following the Offer Closing, Parent
shall or shall cause the Surviving Corporation to provide Covered Employees
whose employment is terminated by Parent or the Surviving Corporation with
severance benefits in accordance with such employee's individual employment
agreement or, in the absence of any such agreement, in accordance with the
severance policy of Parent
in effect from time to time.  Effective not later than the Closing
Date, Parent will establish
a retention program for those Company employees Parent determines to seek to retain. Parent shall have no
obligation and the Company
shall take no action that would have the effect of
requiring Parent or the Surviving Corporation to continue any specific plans or to
continue the employment of any specific Person.

       

      (c)           For purposes of determining eligibility
to participate in, and non-forfeitable rights under, but not for purposes of
benefit accrual under, any employee benefit plan or arrangement of Parent or the Surviving Corporation or any of their respective
Subsidiaries, Covered Employees shall receive
service credit for service with the Company (and with any predecessor or acquired entities or any other
entities for which the Company granted service credit) as if such
service had been completed with Parent; provided, however, that such service need not be
recognized to the extent that such recognition would result in any duplication
of benefits for the same period of service.

       

      (d)           To the extent applicable, Parent shall or shall
cause the Surviving
Corporation and any of
their respective Subsidiaries to waive, or use reasonable best efforts to cause its
insurance carriers to waive, any pre-existing condition
limitation on participation and coverage applicable to any Covered Employee
or any of his or her covered dependents under any health or welfare plan of Parent or the Surviving Corporation or any of their respective Subsidiaries
(a "New
Plan") in which such Covered Employee
or covered dependent shall
become eligible to participate after the Effective
Time to the extent such Covered Employee or covered dependent was no longer
subject to such pre-existing condition limitation under the corresponding Company Benefit Plan in which such Covered Employee or such covered
dependent was participating immediately before he or she became eligible to participate in the New
Plan.  Parent shall or shall cause the Surviving Corporation or the relevant Subsidiary of either to
provide each Covered Employee with credit for any
co-payments and deductibles paid prior to the Effective
Time and during the calendar year in which the Effective Time occurs under any
Company Benefit Plan in satisfying any
applicable co-payment and deductible requirements for such calendar year under any New
Plan in which such Covered Employee participates after the Effective Time.

       

      (e)           Nothing in this Section 6.10 shall confer any rights or remedies of
any kind or description upon any Covered Employee or any other Person other than the Company and Parent and
their respective successors and assigns or be construed as an amendment,
waiver or creation of any Company Benefit Plan
or Company Benefit Agreement.

       

      (f)           The Company and the Company Subsidiaries
shall refrain from causing
any employees of the Company or the Company Subsidiaries to suffer an
"employment loss" as defined in the Worker Adjustment and
Retraining Notification Act of 1988 or any similar state or local law
(collectively, the "WARN
Act"), in the ninety-one (91) days prior to the Offer Closing, without the prior consent of
Parent.  Notwithstanding Section 6.8 of this Agreement, the


       

      
        
          
          

        

        
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      Company and the Company Subsidiaries, as
applicable, shall cooperate
with and provide reasonable assistance to Parent or its agents in preparing and
delivering any notices required or potentially required pursuant to the WARN Act
(as determined by Parent in its sole discretion) to effectuate the termination
of the employment of any employees of the Company or
the Company Subsidiaries as of the Effective Time in compliance with the WARN
Act; provided, however, that all such notices shall indicate
that the terminations of employment are contingent upon the consummation of
the
Merger.

       

      Section
6.11         Rule
16b-3.  Prior
to the Offer Closing, the Company shall use reasonable best efforts to cause any
dispositions of Company Common Stock (including derivative securities with
respect to Company Common Stock) resulting from the transactions contemplated by
this Agreement by each individual who is subject to the reporting requirements
of Section 16(a) of the Exchange Act with respect to the Company to be exempt
under Rule 16b-3 promulgated under the Exchange Act, such efforts to include all
steps required be taken in accordance with the No-Action Letter dated January
12, 1999, issued by the SEC to Skadden, Arps, Slate, Meagher & Flom
LLP.

       

      Section
6.12         Development
Drugs.  From and after the Offer Closing, Parent shall use commercially
reasonable efforts to develop, in the ordinary course, each of Nebido and Octreotide; provided, that, with respect to (i) Nebido,
Parent's obligations under this Section 6.12 shall terminate on the third anniversary of the Offer
Closing and (ii) with
respect Octreotide,
Parent's obligations under this Section 6.12 shall terminate on the fourth anniversary of the Offer
Closing.  For the purposes of
this Section 6.12, "commercially reasonable
efforts" shall mean efforts and resources
normally used by Parent for a product owned by it or to which it has exclusive
rights, which is of similar market potential at a similar stage in its
development or product life, taking into account issues
of safety and efficacy, product profile,
competitiveness of the marketplace, the proprietary position of the compound or
product, the regulatory and reimbursement structure involved, the profitability
of the applicable products, and other relevant factors.

       

      Section
6.13         State
Takeover
Laws.  If
any state takeover Law becomes applicable to the Merger or the other
transactions contemplated by this Agreement, the Company and the Company Board
shall grant such approvals and take such actions as are necessary so that such
transactions may be consummated as promptly as practicable on the terms
contemplated by this Agreement and otherwise act to eliminate or minimize the
effects of such statute or regulation on such transactions.

       

      Section
6.14        Contingent
Stock Rights.  Prior
to the Effective Time, Parent shall:

       

      (a)           pursuant to the Stent Contingent Stock Rights Agreement,
dated as of April 17, 2007, between the Company and American Stock Transfer & Trust
Company (the "Stent
Contingent Stock Rights Agreement"), execute and deliver to the Rights Agent
thereunder a supplemental contingent stock rights agreement, providing that
Parent shall (i) provide such cash and
Contingent Cash
Consideration Payments
as any Holder (as defined
in the Stent Contingent
Stock Rights Agreement) would be entitled in accordance with
the terms of the Stent
Contingent Stock Rights Agreement upon the occurrence of the Milestone
Date (as defined in the Stent Contingent Stock Rights
Agreement), and (ii)
perform and observe each and every 

       

      
        
          
          

        

        
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      covenant, condition, obligation and liability
under the Stent Contingent Rights Agreement to be performed and observed by the Company; and

       

      (b)           pursuant to the Octreotide Contingent Stock Rights Agreement,
dated as of April 17, 2007, between the Company and American Stock Transfer & Trust
Company (the "Octreotide
Contingent
Stock Rights Agreement"), execute and deliver to the Rights
Agent thereunder a supplemental contingent stock rights agreement, providing
that Parent shall (i) provide such cash and
Contingent Cash Consideration Payments as any Holder (as defined in the
Octreotide Contingent Stock Rights
Agreement) would be
entitled in accordance with the terms of the Octreotide Contingent Stock Rights
Agreement upon the occurrence of the Milestone
Date (as defined in the Octreotide Contingent Stock Rights
Agreement), and (ii)
perform and observe each and every covenant, condition, obligation and liability
under the Octreotide Contingent Rights Agreement to be
performed and observed by the
Company.

       

      (c)           Rule 14d-10
Matters.  Notwithstanding anything in this
Agreement to the contrary, the Company will not, after the date hereof and prior
to the Offer Closing, enter into, establish,
amend or modify any plan, program, agreement or arrangement pursuant to which
compensation is paid or payable, or pursuant to which benefits are provided, in
each case to any former, current or future director, officer, employee,
consultant, advisor or independent contractor of the Company or any of its Subsidiaries (or any person
who would have assumed such role or performed such duties but for a requirement
to refrain from assuming such role or performing such duties in such plan,
program, agreement or arrangement) unless, prior to such entry into, establishment, amendment or
modification, the Compensation Committee (each member of which shall be an
"independent director" in accordance with the requirements of
Rule 14d-10(d)(2) under the Exchange Act at the time of any such action) shall
have taken all such steps
as may be necessary to (i) approve as an Employment Compensation Arrangement
each such plan, program, agreement or arrangement and (ii) satisfy the
requirements of the non-exclusive safe harbor under Rule 14d-10(d)(2) under the
Exchange Act with respect to such plan, program,
agreement or arrangement.

       

      Section
6.15         Voting of
Shares.  Parent shall vote (or cause
to be voted) all shares of Company Common Stock beneficially owned by it or
Merger Sub in favor of approval of the Merger at the Company
Stockholders' Meeting, unless the DGCL does not require a
vote of the stockholders of the Company for consummation of the
Merger.

       

      Section
6.16        Conduct of
Business by Parent and Merger Sub Pending the Merger. From
the date of this Agreement until the Offer Closing Date, except as otherwise
contemplated by this Agreement, Parent and Merger Sub agree that they shall not,
directly or indirectly, knowingly take or cause to be taken any action that
reasonably would be expected to materially delay or impair the consummation of
the transactions contemplated hereby.

       

      Section
6.17         No Control
of Other Party's
Business. Nothing
contained in this Agreement shall give Parent, directly or indirectly, the right
to control or direct the Company's or its Subsidiaries' operations prior to the
Offer Closing Date, and nothing contained in this Agreement shall give the
Company, directly or indirectly, the right to control or direct Parent's or its
Subsidiaries' operations prior to the Offer Closing Date. Prior to the Offer
Closing Date, each 

       

       

      
        
          
          

        

        
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      of the
Company and Parent shall exercise, consistent with the terms and conditions of
this Agreement, complete control and supervision over its and its Subsidiaries'
respective operations.


       

       

      ARTICLE VII

       

      CONDITIONS

       

      Section
7.1           Conditions
to the Obligation of Each Party.  The
respective obligations of the Company, Parent and Merger Sub to effect the
Merger are subject to the satisfaction or waiver of the following
conditions:

       

      (a)           Prior
to the Effective Time the Company
Stockholder Approval shall have been obtained, if required by the DGCL;

       

      (b)           At
or prior to the Offer Closing, no
applicable Law and no
temporary restraining order, preliminary or permanent injunction or other
judgment, order or decree entered, enacted, promulgated, enforced or issued
by any court or other Governmental Entity of competent jurisdiction in the
United States or any material foreign jurisdiction
(collectively, "Judgments") shall be and remain in effect which
has the effect of prohibiting the consummation of the Merger or the other
transactions contemplated by this Agreement;

       

      (c)           At
or prior to the Offer Closing, there shall not be pending or threatened any suit, action or
proceeding by any Governmental Entity which challenges or seeks to enjoin the
Merger or the other transactions contemplated by this Agreement;

       

      (d)           At
or prior to the Offer Closing, Merger Sub shall have previously accepted for
payment all shares of Company Common Stock validly tendered and not
withdrawn pursuant to the
Offer.

       

      Section
7.2           Failure of
Conditions. None of
the Company, Parent or Merger Sub may rely on the failure of any condition set
forth in Section 7.1 to be satisfied to excuse performance by such party of its
obligations under this Agreement if such failure was caused by such party's
failure to act in good faith and in a manner consistent with the terms of this
Agreement.

       

       

      ARTICLE VIII

       

      TERMINATION, AMENDMENT AND
WAIVER

       

      Section
8.1           Termination.  Subject
to Section 1.3(c), this Agreement may be terminated and the Offer and the Merger
may be abandoned at any time prior to the Effective Time:

       

      (a)           by mutual written consent of Parent and
the Company;

       

      (b)           by either the Parent or the
Company:

       

       

      
        
          
          

        

        
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      (i)           if the Offer Closing shall not have occurred by July 1, 2009 (the "Outside
Date"); provided, however, that the right to terminate this
Agreement pursuant to this Section 8.1(b)(i) shall not be available to any party
whose failure to fulfill
any covenant or agreement contained in this Agreement has been the
cause of, or resulted in, the failure of the Offer Closing to have
occurred on or by such
date; or

       

      (ii)           if any Judgment having any of the
effects set forth in Section 7.1(b) shall be in effect and shall have
become final and nonappealable;

       

      (c)           prior to the Offer Closing, by Parent, if the Company shall have
breached or failed to perform any of its representations, warranties, covenants
or other agreements contained in this Agreement, which breach or
failure to perform (i) would give rise to the failure of a condition set forth in clauses (v) or (vi) of Exhibit
A and (ii) has not been
waived by Parent and is incapable of being cured, or is not cured, by the
Company within 20 calendar days following receipt of written notice of such
breach or failure to perform from Parent;

       

      (d)           by Parent:

       

      (i)           at any time prior to the Offer Closing, upon a Company Adverse Recommendation
Change; or

       

      (ii)           if the Company Board fails to reaffirm
publicly its recommendation to the Company's stockholders to tender their shares of Company Common
Stock in the Offer and to vote in favor of the Merger within seven
days of Parent's written request for such
reaffirmation;

       

      (e)           prior to the Offer Closing by Parent, if the Company shall have
materially breached any of
the provisions of Section
6.5;

       

      (f)           Prior to the Offer Closing by the Company, if (i) Parent or Merger Sub shall have breached
or failed to perform in any material respect any of its representations,
warranties, covenants or
other agreements contained in this Agreement, which
breach or failure to perform (A) would result in the representations and warranties of
Parent and Merger Sub contained in this Agreement and in any certificate or
other writing delivered by Parent or Merger Sub pursuant hereto that
are qualified by materiality or Parent Material Adverse Effect not being true and correct in all respects both
as of the date of this Agreement and as of the Offer Closing Date as though made on and as of
the Offer Closing Date (except to the extent such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties shall be true and correct in all
respects on and as of such earlier date) or (B) the representations and warranties of Parent and Merger
Sub in this Agreement and in any certificate or other writing delivered by
Parent or Merger Sub pursuant hereto that are not so qualified not being true and correct in all material
respects both as of the date of this Agreement and as of the Offer Closing Date as though made on and as
of the Offer Closing Date (except to the extent such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties shall be true and correct in all material respects on and
as of such earlier date); or (ii) Parent and Merger Sub shall not have performed in all


       

      
        
          
          

        

        
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      material respects all obligations
required to be performed by them under this Agreement at or prior to the Closing
Date, and in the case of either (i) or (ii) above,
such breach or failure to perform is incapable of being cured, or is not
cured, by Parent within 20 calendar days following
receipt of written notice of such breach or failure to perform from the
Company;


       

      (g)           by the Company, at any time prior to Offer Closing, to accept and enter into a binding
agreement with respect to a Superior Proposal; provided that for the termination of this
Agreement pursuant to this subsection (g) to be effected, the Company shall have complied with the
provisions of Section
6.5(a) and the Company shall have paid the
Company Termination Fee (as defined in Section 8.2(c)) and otherwise complied with its
obligations under
Section 8.2(c));

       

      (h)           prior to the Offer Closing, by Parent, if a Hydron Impeding Event
shall have occurred; or

       

      (i)           by the Company, if (1) Merger Sub fails to commence the Offer in
violation of Section 1.1 hereof and such breach is not cured within
20 calendar days following
receipt of written notice of such breach from the Company, (2) the Offer shall have expired or been
terminated without Merger
Sub having purchased any
shares of Company Common
Stock pursuant thereto or (3) Merger Sub, in violation of the terms of this
Agreement, fails to accept for payment and to purchase validly tendered
shares of Company Common
Stock pursuant to the Offer; provided, that the right to terminate this Agreement
pursuant to clause (2) of this Section 8.1(i) shall not be available if the Company's failure to fulfill any covenant or
agreement contained in this Agreement has been the cause of, or resulted in, the
failure of the Offer having
expired or terminated with
Merger Sub having purchased any shares of Company Common Stock pursuant
thereto.

       

      Section
8.2           Effect of
Termination.

       

      (a)           In the event of the termination of this
Agreement by either Parent or the Company pursuant to Section 8.1 hereof, this Agreement shall forthwith
be terminated and have no further effect, the obligations of the parties
hereunder shall terminate, and there shall be no liability on the part of any
party hereto with respect thereto, except that (i) the provisions of Section 4.19, Section 5.10, the last sentence of Section 6.3(a), this Section 8.2, Section 8.3 and Article IX shall survive the termination of this
Agreement and (ii) nothing herein shall relieve any party from liability or
damages for fraud or
for any willful
breach or hereof or for any willful misrepresentation.

       

      (b)           Except as provided in this Section 8.2, all fees and expenses incurred in
connection with the Offer,
the Merger, this Agreement
and the transactions contemplated by this Agreement shall be paid by the party
incurring such fees or
expenses, whether or not the Offer or the Merger is consummated.

       

      (c)           (i)  In the event that: (w) (A)
prior to the Offer
Closing, a Company Takeover Proposal shall have been made to the Company and
such Company Takeover
Proposal becomes publicly
known prior to the Offer
Closing or shall have been
made directly to the stockholders of the Company generally prior to the
Offer Closing and, in either case, such 

       

       

      
        
          
          

        

        
          59

          
            

          

        

        
          
          

        

      

       

      Company Takeover Proposal shall not have been publicly withdrawn
at least two business days prior to the Offer Closing or any Person shall have publicly
announced an intention (whether or not conditional) to make a Company Takeover
Proposal, (B) this
Agreement is terminated by Parent pursuant to Section 8.1(c) or Section 8.1(e) and (C) within 12 months after such termination, the
Company enters into a definitive agreement to consummate a Company Takeover Proposal or consummates a Company Takeover Proposal; or (x) (A) prior to the Offer Closing, a Company Takeover Proposal shall have been made to the Company or
shall have been made directly to the stockholders of the Company generally or
shall have otherwise become publicly known or any Person shall have publicly announced an intention (whether or not conditional)
to make a Company Takeover
Proposal, (B) this
Agreement is terminated by Parent or
the Company pursuant to Section 8.1(b)(i) and (C) within 12 months after such termination,
the Company enters into a definitive agreement to
consummate a Company
Takeover Proposal or
consummates a Company Takeover Proposal; or (y) this Agreement is terminated by
Parent pursuant to Section
8.1(d); or (z) this
Agreement is terminated by Company pursuant to Section 8.1(g), then the Company shall pay Parent a fee equal to $20
million (the
"Company
Termination Fee") by wire transfer of same-day funds on
the date of termination of
this Agreement (except that in the case of termination pursuant to clause (w) or (x)
above, the Company shall pay Parent 50% of the Company Termination Fee
upon such termination and
50% of the Company Termination Fee on the date of execution of such
definitive agreement or, if
earlier, consummation of such transactions).

       

      (ii)           In the event that this Agreement is
terminated by Parent pursuant to (A) Section 8.1(c) or (B) Section 8.1(h) and the
cause of the Hydron Impeding Event underlying such termination is not an act of
God, natural disaster, war (whether or not declared) or terrorism (and, in the
case of either (A) or (B), no amount is payable by Company pursuant
to Section 8.2(c)), then, in the case or either (A) or
(B), Company shall pay Parent a fee equal to Parent's out-of-pocket fees and expenses incurred in connection with the
Merger, this Agreement and the transactions contemplated hereby but not in
excess of $5 million, by
wire transfer of same-day
funds three (3) business days after the date of such termination of this
Agreement as referred to in this sentence; provided that the foregoing shall not limit or
be deemed to limit any liability of the Company or damages or other remedy to
which Parent may be
entitled as a result of any willful breach of this Agreement by the Company.  The Company will not be obligated to make a
payment pursuant to this Section 8.2(c)(ii) if Company has paid or is required to
pay the Company Termination
Fee set forth in Section 8.2(c), and any fees paid by the Company under this Section 8.2(c)(ii) will be credited against any such Company
Termination Fee to the extent that such fee subsequently becomes payable by the Company.

       

      (iii)           The Company acknowledges that the agreements
contained in this Section
8.2(c) are an integral part of the transactions
contemplated by this Agreement, and that, without these agreements, Parent would not enter into this
Agreement; accordingly, if the Company fails promptly to pay the
amount(s) due pursuant to this Section 8.2(c), and, to obtain such payment, Parent
commences a suit which results in a judgment against the Company for the amount(s) due pursuant
to this Section
8.2(c), the Company shall pay to Parent its
out-of-pocket costs and expenses (including attorneys' fees and expenses) in connection with
such suit, together with
interest on such amount(s) at the prime rate of Citibank, N.A. in effect on the
date such payment was required to be made.

       

       

      
        
          
          

        

        
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      Section
8.3           Amendments.  Subject
to Section 1.3(c) and subject to compliance with applicable Law, this Agreement
may be amended by the parties, by action taken or authorized by their respective
boards of directors, at any time before or after approval of the matters
presented in connection with the Merger by the stockholders the Company; provided, however, that after
any approval of the transactions contemplated by this Agreement by the
stockholders of the Company, there may not be, without further approval of the
stockholders of the Company, any amendment of this Agreement that changes the
amount or the form of the consideration to be delivered under this Agreement to
the holders of Company Common Stock, or which by applicable Law otherwise
expressly requires the further approval of such stockholders.  No
amendment shall be made to this Agreement after the Effective
Time.  This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties.

       

      Section
8.4           Waiver.  Subject
to Section 1.3(c), at any time prior to the Effective Time, whether before or
after the Company Stockholders' Meeting, any party hereto may (i) extend the
time for the performance of any of the covenants, obligations or other acts of
any other party hereto or (ii) waive any inaccuracy of any representations or
warranties or compliance with any of the agreements, covenants or conditions of
any other party or with any conditions to its own obligations.  Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party by its duly authorized officer.  The failure of any party to
this Agreement to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of such rights.  The waiver of any such
right with respect to particular facts and other circumstances shall not be
deemed a waiver with respect to any other facts and circumstances and each such
right shall be deemed an ongoing right that may be asserted at any time and from
time to time.

       

       

      ARTICLE IX

       

      GENERAL
PROVISIONS

       

      Section
9.1           Nonsurvival of
Representations and Warranties.  None
of the representations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Effective
Time.  This Section 9.1 shall not limit the survival of any covenant
or agreement of the parties in the Agreement which by its terms contemplates
performance after the Effective Time.

      Section
9.2           Notices.  All
notices, requests, claims, demands and other communications under this Agreement
shall be in writing and shall be deemed given if delivered personally, sent via
electronic mail (receipt confirmed), facsimile (receipt confirmed) or sent by a
nationally recognized overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):

       

      
        
          
          

        

        
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      (a)        if to the Company to:

       

      
        Indevus
Pharmaceuticals, Inc.

        33
Hayden Avenue

        Lexington,
MA 02421

        Fax
No.: (781) 861-3830

        Attention:  Mark
Butler, Esq.

      

       

      with a
copy to:

       

      Burns
& Levinson LLP

      125
Summer Street

      Boston,
MA  02110

      Fax
No:  617) 345-3299

      Attention:  Josef
B. Volman, Esq.

       

      (b)       if to Parent or Merger Sub, to it
at:



      
        Endo
Pharmaceuticals Holdings Inc.

        100
Endo Boulevard

        Chadds
Ford, PA 19317

        Fax
No.:  (610) 558-9864

        Attention:  Caroline
B. Manogue, Esq.

      

       

      with a
copy to:

       

      Skadden,
Arps, Slate, Meagher & Flom LLP

      Four
Times Square

      New York,
NY 10036

      Fax
No:  (212) 735-2000

      Attention:  Eileen
T. Nugent, Esq.

       

      Section
9.3           Interpretation.  When
a reference is made in this Agreement to an Article, Section or Exhibit, such
reference shall be to an Article or Section of, or an Exhibit to, this Agreement
unless otherwise indicated. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."  The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement. All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.  The definitions contained in this
Agreement are applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neuter genders of such
term. Any agreement, instrument or statute defined or referred to herein or in
any agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by waiver or consent and
(in the case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein.
References to a Person are also to its permitted successors and
assigns.

       

      
        
          
          

        

        
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      Section
9.4           Counterparts.  This
Agreement may be executed in two or more counterparts, all of which shall be
considered one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered to the other parties.

       

      Section
9.5           Entire
Agreement; No Third-Party Beneficiaries.  This
Agreement and the other Transaction Agreements (including the Confidentiality
Agreement and the documents and instruments referred to herein or therein) (a)
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement and (b) except for the provisions of Section
6.7, is not intended to confer, nor shall it confer, upon any Person other than
the parties hereto any rights or remedies or benefits of any nature
whatsoever.

       

      Section
9.6           Governing
Law.  This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware, regardless of the laws that might otherwise govern under
applicable principles of conflict of laws thereof.

       

      Section
9.7          Assignment.  Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of law or
otherwise by either of the parties hereto without the prior written consent of
the other party.  Any assignment in violation of the preceding
sentence shall be void. Subject to the preceding two sentences, this Agreement
will be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective successors and assigns.

       

      Section
9.8           Consent to
Jurisdiction.  Each
of the parties hereto (a) consents to submit itself to the personal jurisdiction
of any federal court located in the State of Delaware or any Delaware state
court for the purpose of any action or proceeding arising out of this Agreement
or any of the transactions contemplated by this Agreement, (b) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, and (c) agrees that it will not bring any
action relating to this Agreement or any of the transactions contemplated by
this Agreement in any court other than a federal court located in the State of
Delaware or a Delaware state court.

       

      Section
9.9           Headings,
etc.  The
headings and table of contents contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.  The disclosure of any matter in the Company
Disclosure Letter shall expressly not be deemed to constitute an admission by
the Company or Parent, respectively, or to otherwise imply, that any such matter
is material for the purpose of this Agreement.

       

      Section
9.10         Severability.  If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any rule of law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect,
insofar as the foregoing can be accomplished without materially affecting the
economic benefits anticipated by the parties to this Agreement.  Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
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      possible
to the fullest extent permitted by applicable Law in an acceptable manner to the
end that the transactions contemplated hereby are fulfilled to the extent
possible.

       

       

      Section
9.11         Failure or
Indulgence Not Waiver; Remedies Cumulative.  No
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or of any other right.  All rights and
remedies existing under this Agreement are cumulative to, and not exclusive of,
any rights or remedies otherwise available.

       

      Section
9.12         Waiver of
Jury Trial.  EACH
OF PARENT, MERGER SUB AND THE COMPANY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF PARENT, MERGER SUB OR THE
COMPANY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT.

       

      Section
9.13         Specific
Performance.  The
parties agree that irreparable damage would occur and that the parties would not
have any adequate remedy at law in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached.  It is accordingly agreed that the parties shall
be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement
in any federal court located in the State of Delaware or in Delaware state
court, this being in addition to any other remedy to which they are entitled at
law or in equity.

       

      Section
9.14         Certain
Definitions.

       

      (a)           "Cleanup" means all actions required to: (1)
cleanup, remove, treat or remediate Hazardous Substances in the indoor or
outdoor environment; (2) prevent the Release of Hazardous Substances so that
they do not migrate, endanger or threaten to endanger public health or welfare
or the indoor or outdoor environment; (3) perform pre-remedial studies and investigations and
post-remedial monitoring and care; or (4) respond to any government requests for
information or documents in any way relating to cleanup, removal, treatment or
remediation or potential cleanup, removal, treatment or remediation of Hazardous Substances in the indoor
or outdoor environment.

       

      (b)           "Company
Licensed IP" shall mean all Intellectual Property
owned or controlled by a third Person and licensed to the Company or any Company
Subsidiary.

       

      (c)           "Company
Owned
IP" shall mean any Intellectual Property in
which the Company or any Company Subsidiary has any ownership interest, whether
singly, jointly or otherwise.

       

      (d)           "Company
IP" shall mean the Company Licensed IP and
the Company Owned
IP.

       

       

      
        
          
          

        

        
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      (e)         
"Contingent
Cash Consideration Agreements " shall mean, collectively, the Nebido
Contingent Cash Consideration Agreement and the Octreotide Contingent Cash
Consideration Agreement.

       

      (f)           "Contingent
Cash
Consideration
Payments " shall mean, collectively, the Nebido
Contingent Cash Consideration Payments and the Octreotide Contingent Cash Consideration Payments.

       

      (g)           "Contract" shall mean any written or oral
agreement, contract, subcontract, settlement agreement, lease, sublease, binding
understanding, instrument, note, option, bond, mortgage, indenture, trust
document, loan or credit agreement, purchase order, license, sublicense, insurance policy,
benefit plan or legally binding commitment or undertaking of any nature, as in
effect as of the date hereof or as may hereinafter be in
effect.

       

      (h)           "Core
Product" shall mean (1)  the Products listed under the heading "OUR CORE PRODUCTS AND PRODUCT
CANDIDATES" in the Company's Annual Report on Form 10-K for the
fiscal year ended September 30, 2008 and (2) the Hydron
Technology.

       

      (i)           "Environmental
Laws" shall mean all federal, state,
local or foreign laws,
statutes, regulations, ordinances, decrees, directives, judgments, common law,
or other enforceable requirements of Governmental Entities, relating to
pollution or protection of human health and safety (including workplace health
and safety) or the environment, including,
without limitation, laws relating to Releases or threatened Release of Hazardous
Substances, the protection of human health as a result of exposure to Hazardous
Substances, the storage, transport or disposal of solid and hazardous waste, discharges of
substances to surface water or groundwater, air emissions, recordkeeping,
notification, disclosure and reporting requirements respecting Hazardous
Substances, and all laws relating to endangered or threatened species
of fish, wildlife and plants and the
management or use of natural resources.

       

      (j)           "Environmental
Permits" means permits, licenses, approvals,
exemptions, registrations, certificates, identification numbers or other
authorizations issued
pursuant to Environmental Law.

       

      (k)           "FIRPTA
Certificate" means a certificate executed on behalf of the
Company certifying that the Company is not a United States real property holding
corporation (as defined in section 897(c)(2) of the Code) in the form and manner that
complies with section 1445 of the Code and the Treasury Regulations promulgated
thereunder.

       

      (l)           "Good
Clinical Practices" means with respect to the Company, the
then current standards for clinical trials for
pharmaceuticals (including
all applicable requirements relating to protection of
human subjects), as set forth in the FDCA and
applicable regulations promulgated thereunder (including, for example, 21 C.F.R. Parts 50, 54, and
56), as amended from time to time, and such
standards of good clinical practice (including all applicable requirements relating to protection of
human subjects)
as are required by other
organizations and Governmental Entities in any other countries,
including applicable
regulations or guidelines from the International Conference on
Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use,
in which the products of
the Company, any Company Subsidiary or any Company Partner are sold or
intended to be sold, to the extent such
standards are not less stringent than in the United States.

       

       

      
        
          
          

        

        
          65

          
            

          

        

        
          
          

        

      

       

      (m)           "Good
Laboratory Practices" means with respect to the Company, the
then current standards for pharmaceutical laboratories, as set forth in the FDCA and applicable
regulations and guidances
promulgated thereunder, as
amended from time to time, and such standards of good laboratory practices as
are required by other organizations and Governmental Entities in any other
countries, including
applicable regulations or guidelines from the International Conference on
Harmonisation of Technical Requirements for Registration of Pharmaceuticals for
Human Use in which the products of the Company, any Company Subsidiary or any
Company Partner are sold or intended to be sold, to
the extent such standards are not less stringent than in the United
States.

       

      (n)           "Good
Manufacturing Practices" means (i) with respect to the Company,
the then current standards for the manufacture, processing, packaging,
testing, transportation, handling and holding of drug products, as set forth in
the FDCA and applicable regulations and guidances promulgated thereunder, as amended from
time to time, and such standards of good manufacturing practices as are required by other
organizations and Governmental Entities in any other countries, including
applicable regulations or guidelines from the International Conference on
Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use in which the
products of the Company, any Company Subsidiary or any Company Partner are sold
or intended to be sold, to the extent such standards are not less stringent than
in the United States.

       

      (o)           "Hazardous
Substances" means any chemicals, materials or
substances defined as or included in the definition of "hazardous substances", "hazardous wastes", "hazardous materials", "hazardous constituents", restricted hazardous
materials", "extremely hazardous substances", "toxic substances", "contaminants", "pollutants", "toxic pollutants", or words of similar meaning and
regulatory effect under any applicable Environmental Law including, without
limitation, petroleum and asbestos.

       

      (p)           "Hydron Impeding
Event" shall mean (1) any change, effect, event, occurrence,
state of facts or development which, individually or in the
aggregate, the effect of
which shall be that
an approved prescription
pharmaceutical product using the Hydron Technology is voluntarily or involuntarily recalled
from the market due to safety or efficacy issues relating to the Hydron
Technology or (2)
any regulatory occurrence
or event that would reasonably be expected to materially and negatively affect
future sales of any Product
utilizing the Hydron Technology.

       

      (q)           "Hydron
Technology" shall mean the Company's hydrogel implant technology for
subcutaneous drug delivery (currently known as "Hydron"), and any products incorporating or
utilizing such technology.

       

      (r)           "IND" means an investigational new drug
application filed with the FDA, including all documents, data and other
information concerning the applicable drug which are necessary for or filed with
such application.

       

      
        
          
          

        

        
          66

          
            

          

        

        
          
          

        

      

      (s)           "Intellectual
Property" shall mean trademarks, service marks,
trade names, brand names, certification marks, designs, logos, slogans,
commercial symbols, business name registrations, Internet domain names, trade
dress and other similar indications of source or origin and general intangibles of like
nature, the goodwill associated with the foregoing and registrations and
applications relating to the foregoing in any jurisdiction, including any
extension, modification or renewal of any such registration or application; industrial designs,
inventions, discoveries, ideas and biological materials, whether patentable or
not and whether or not reduced to practice, in any jurisdiction; patents and
patent applications (including divisions, continuations, continuations-in-part, reissues and renewals, and
applications for any of the foregoing), and any renewals, extensions,
supplementary protection certificates or reissues thereof, in any jurisdiction;
research and development data (including the results of research into and development of drug or
biologic-based products and drug delivery systems), formulae, know-how,
proprietary processes, algorithms, models and methodologies, technical
information, designs, procedures, laboratory notes, trade secrets and
confidential information and rights in any
jurisdiction to limit the use or disclosure thereof by any Person; writings and
other works of authorship of any type (including the content contained on any
Web site), whether copyrightable or not, in any jurisdiction; computer software (whether in source code or
object code form), databases, compilations and data; copyright registrations and
applications in any jurisdiction, and any renewals or extensions thereof; any
other intellectual property or proprietary rights and the right to sue for past infringement, misappropriation, or
other violation of any of the foregoing.

       

      (t)           "NDA" means a new drug application for a drug
filed in accordance with 21 C.F.R. Part 314, and all supplements filed pursuant
to the requirements of the
FDA, including all documents, data and other information concerning the
applicable drug which are necessary for FDA approval to market such drug in the United
States.

       

      (u)           "Nebido" means the long-acting intramuscular depot injection of testosterone undecanoate currently under development for the treatment of
male hypogonadism and that
is the subject of the NDA submitted by the Company to the FDA on August 28,
2007.

       

      (v)           "Nebido
Contingent Cash
Consideration
Payment " means the right to receive one or more
contingent cash consideration payments, subject to the terms and conditions of a
contingent cash consideration payment agreement (the "Nebido Contingent
Cash Consideration
Payment Agreement") substantially in the form attached
hereto as Exhibit
B.

       

      (w)           "Octreotide" means the octreotide implant currently
under development for the treatment of acromegaly and carcinoid syndrome, which development product the Company
acquired through its acquisition of Valera and which is a soft, flexible 6-month
hydrogel implant based on the patented HYDRON Polymer Technology that delivers
octreotide, a somatostatin analogue.

       

      (x)           "Octreotide
Contingent
Cash Consideration
Payment " means the right to receive a contingent cash consideration payment, subject to the terms and conditions of a
contingent cash consideration payment agreement (the "Octreotide Contingent
Cash
Consideration
Payment Agreement") substantially in the form attached
hereto as
Exhibit
C.

       

       

      
        
          
          

        

        
          67

          
            

          

        

        
          
          

        

      

      (y)           "Per Share
Paid Value" shall mean, as of any Valuation Point, the sum of (1) the per
Share cash portion of the Merger Consideration and (2) the amount per Share in
cash previously paid or to be paid at such Valuation Point in connection with
the Contingent Cash Consideration Agreements.

       

      (z)           "Product
IP" shall mean Company IP relating to
any or all of the
Products.

       

      (aa)         "Products" shall mean all marketed and development products and services of the Company
and the Company Subsidiaries, including drugs and medical devices and any
services related thereto, and any line extensions, expansions or other modifications
thereof, including NEBIDO, Sanctura, Sanctura XR, the Hydron Technology, VANTAS, Supprelin-LA, VP003 (Octreotide
implant), VP004 (Naltrexone implant), VP005 (anti-inflammatory polymer solution
instillation), VP006
(rapid dissolve Desmopressin), Valrubicin (including the products marketed as
VALSTAR and Valtaxin), Delatestryl, PRO 2000, Pagoclone, and any other products and services
marketed, sold, manufactured, developed or distributed, including products and
services manufactured,
developed or distributed by Company Partners, or in clinical or preclinical
development, by or for the Company, any Company Subsidiaries or any Company
Partner.

       

      (bb)         "Regulatory
Authorizations" means all approvals, clearances, authorizations, registrations,
certifications, licenses and permits granted by any Regulatory Authority, including all INDs and
NDAs.

       

      (cc)         "Release" means any release, spill, emission,
discharge, leaking, pumping, injection, deposit, disposal, dispersal, leaching or migration
into the indoor or outdoor environment (including, without limitation, ambient
air, surface water, groundwater and surface or subsurface strata) or into or out
of any property, including the movement of Hazardous Substances through or in the air, soil,
surface water, groundwater or property.

       

      (dd)         "Representatives" shall mean the officers, directors,
employees, auditors, attorneys, financial advisors, lenders and other agents to
each of Parent and the
Company.

       

      (ee)          "Supprelin" shall mean
Supprelin-LA.

       

      (ff)          
"Valuation
Point" shall mean each of (1) the Effective Time, (2) the Approval With
Label Milestone Date (as defined in the Nebido Contingent Cash Consideration
Agreement), (3) the Approval Without Label Milestone Date (as defined in the
Nebido Contingent Cash Consideration Agreement), (4) the Net Sales Milestone
Date (as defined in the Nebido Contingent Cash Consideration Agreement) and (5)
the Approval Milestone Date (as defined in the Octreotide Contingent Cash
Consideration Agreement).

       

      (gg)           For purposes of this Agreement, the terms "Associate" and "Affiliate" shall have the same meaning as set
forth in Rule 12b-2 promulgated under the Exchange Act, and the term "Person" shall mean any individual, corporation,
partnership (general or limited), limited liability company, limited liability
partnership, trust, joint venture, joint-stock company, syndicate, association,
entity, unincorporated
organization or government or any political subdivision, agency or
instrumentality thereof.

       

      
        
          
          

        

        
          68

          
            

          

        

        
          
          

        

      

      (hh)           For purposes of this Agreement, the
phrase "Company Material
Adverse Effect" means (1) any change, effect,
event, occurrence, state of
facts or development which individually or in the aggregate (i) results in any
change or effect that is materially adverse to the business, financial
condition, properties, assets, liabilities (contingent or otherwise) or results
of operations of the Company and its
Subsidiaries, taken as a whole, or (ii) prevents or materially impedes,
interferes with, hinders or delays the consummation by the Company of the Merger
or the other transactions contemplated by this Agreement; provided that none of the following shall be deemed,
either alone or in combination, to constitute a Company Material Adverse Effect:
(A) any change relating to the economy or securities markets in general, (B) any
adverse change, effect, event, occurrence, state of facts or development attributable to
conditions affecting the industry in which the Company participates, including
any changes to reimbursement rates related to any Products, (C) any failure, in
and of itself, by the Company to meet any internal or published projections, forecasts or revenue or
earnings predictions for any period ending on or after the date of this Agreement
(provided, that the underlying causes of such
failure may be considered in determining whether a Company Material Adverse
Effect has occurred), (D)
the effect of any change in any applicable Law or GAAP or (E) any change, effect, event, occurrence,
state of facts or development resulting from any action required pursuant to the
terms of this Agreement; except, in the cases of clauses (A), (B) or (D) above, if such change, effect, event, occurrence, state
of facts or development disproportionately affects the Company
and its Subsidiaries as compared to other participants in the industry
in which the Company
participates or
(2) the occurrence of a Hydron Impeding Event; provided, that any changes, effects and occurrences as
a result of either (X) the
Company's receipt of notice from the FDA that
additional clinical trials with respect to Octreotide will be required for
approval by the FDA
of Octreotide or (Y) the publication of the results of
the clinical
trial relating to PRO
2000 sponsored by
the National Institutes of
Health, shall not individually or in the
aggregate, in and of
itself or
themselves, constitute a
Material Adverse Effect.

       

      (ii)           "Parent
Material
Adverse
Effect" means any change, effect, event,
occurrence, state of facts or development which individually or in the
aggregate prevents or materially impedes,
interferes with, hinders or delays the consummation by Parent of the Merger or
the other transactions contemplated by this Agreement.

       

      (jj)           For purposes of this Agreement, a
"Subsidiary" of any Person means another Person, (i) an amount of the voting
securities, other voting rights or voting partnership interests of
which that is sufficient to elect at least a majority of its board of directors
or other governing body is directly or indirectly owned or controlled by such
first Person or by any one or more of its
Subsidiaries, or by such
first Person and one or more of its Subsidiaries
(or, if there are no such voting interests, 50% or more of the equity interests
of which is owned directly or indirectly by such first Person) or (ii) of which such first
Person or any other Subsidiary of such first Person is a general partner (excluding
partnerships, the general partnership interests of which held by such first
Person and any Subsidiary of such first
Person do not have a majority of the voting
interests in such partnership).

       

      (kk)           For purposes of this Agreement, the phrases
"to
the knowledge of the Company," "known
to Company," and similar formulations shall mean the
actual current knowledge, after reasonable investigation, of the people set forth in Section
9.14(kk) of the Company Disclosure
Letter.

       

       

      
        
          
          

        

        
          69

          
            

          

        

        
          
          

        

      

       

      (ll)           For purposes of this Agreement, the
phrases "to
the knowledge of Parent", "known
to Parent", and similar formulations shall mean
the actual current knowledge, after reasonable investigation, of the
people set forth in Section 9.14(ll) of the Company Disclosure
Letter.

       

       

      [REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK.]

       

       

       

      
        
          
          

        

        
          70

          
            

          

        

        
          
          

        

      

       

       

      IN
WITNESS WHEREOF, Endo Pharmaceuticals Holdings Inc., BTB Purchaser Inc. and
Indevus Pharmaceuticals, Inc. have each caused this Agreement to be executed as
of the date first written above by their respective officers thereunto duly
authorized.

       

       

      
        
          
            
              
                
                  
                    
                      
                        
                          
                            	 
      	 
      	
                                    ENDO
      PHARMACEUTICALS HOLDINGS INC.

                                  	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	
                                    By:

                                  	 /s/
      David P. Holveck 	 
      
	 
      	 
      	 
      	
                                    Name:

                                  	David
      P. Holveck  	 
      
	 
      	 
      	 
      	
                                    Title

                                  	President
      and Chief Executive Officer  	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 	 	 	 	 	 
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                                    BTB
      PURCHASER INC.

                                  	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 	 	 	 	 	 
	 
      	 
      	
                                    By:

                                  	 /s/
      David P. Holveck 	 
      
	 
      	 
      	 
      	
                                    Name:

                                  	David
      P. Holveck  	 
      
	 
      	 
      	 
      	
                                    Title:

                                  	President
      and Chief Executive Officer  	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 	 	 	 	 	 
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                                    INDEVUS
      PHARMACEUTICALS, INC.

                                  	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	 	 	 	 	 	 
	 
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	
                                    By:

                                  	 /s/
      Glenn L. Cooper 	 
      
	 
      	 
      	 
      	
                                    Name:

                                  	Glenn
      L. Cooper  	 
      
	 
      	 
      	 
      	
                                    Title:

                                  	Chairman
      and CEO  	 
      


                          

                        

                      

                    

                  

                

              

            

          

        

      

       

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      EXHIBIT
A

      


      


      CONDITIONS
OF THE OFFER

      


                Notwithstanding
any other provisions of the Offer, Merger Sub shall not be required to, and
Parent shall not be required to cause Merger Sub to, accept for payment or,
subject to any applicable rules and regulations of the SEC, including Rule
14e-1(c) under the Exchange Act, pay for any tendered shares of Company Common
Stock unless:

      


      
        	
                 
      

              	
                (i)

              	
                there
      shall have been validly tendered and not validly withdrawn prior to the
      expiration date for the Offer (as it may have been extended or re-extended
      pursuant to the Agreement, the "Expiration
      Date") that number of shares of Company Common Stock which, when
      added to the shares of Company Common Stock already owned by Parent and
      its Subsidiaries, represents at least a majority of the total number of
      outstanding shares of Company Common Stock on a "fully diluted basis"
      (which assumes conversion or exercise of all derivative securities
      regardless of the conversion or exercise price, the vesting schedule or
      other terms and conditions thereof) on the Expiration Date (the "Minimum
      Tender Condition"),

              


      

      


      
        	
                 
      

              	
                (ii)

              	
                Any
      waiting period (and any extension thereof) applicable to the consummation
      of the Offer under the HSR Act and any other applicable foreign antitrust,
      competition or similar Law shall have expired or been
      terminated;

              


      

      


      
        	
                 
      

              	
                (iii)

              	
                No
      applicable Law and no permanent injunction or other judgment, order or
      decree entered, enacted, promulgated, enforced or issued by any court or
      other Governmental Entity of competent jurisdiction in the United States
      or any material foreign jurisdiction shall be and remain in effect which
      has the effect of prohibiting the consummation of the Offer, the Merger or
      the other transactions contemplated by the
  Agreement

              


      

      


      
        	
                 
      

              	
                (iv)

              	
                There
      shall not be existing any temporary restraining order, preliminary
      injunction, pending or threatened any suit, action or proceeding by any
      Governmental Entity which challenges or seeks to enjoin the Offer Closing,
      the Merger or the other transactions contemplated by the
      Agreement;

              


      

      


      
        	
                 
      

              	
                (v)

              	
                (A)
      The representations and warranties of the Company contained in the
      Agreement and in any certificate or other writing delivered by the Company
      pursuant thereto that are qualified by materiality or Company Material
      Adverse Effect shall be true and correct in all respects both as of the
      date of the Agreement and as of the Offer Closing Date as though made on
      and as of the Offer Closing Date (except to the extent such
      representations and warranties expressly relate to an earlier date, in
      which case such representations and warranties shall be true and correct
      in all respects on and as of such earlier date) and (B) the
      representations and warranties of the Company in the Agreement and in any
      certificate or other writing delivered by the Company pursuant thereto
      that are not so qualified shall be 

              


      

       

       

       

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

       

       

      
        
          	
                   
      

                	
                   

                	
                  true
      and correct in all material respects both as of the date of the Agreement
      and as of the Offer Closing Date as though made on and as of the Offer
      Closing Date (except to the extent such representations and warranties
      expressly relate to an earlier date, in which case such representations
      and warranties shall be true and correct in all material respects on and
      as of such earlier date);

                


        

         

      

      
        	
                 
      

              	
                (vi)

              	
                The
      Company shall have performed in all material respects all obligations
      required to be performed by it under the Agreement at or prior to the
      Offer Closing Date;

              


      

      


      
        	
                 
      

              	
                (vii)

              	
                The
      Company shall have delivered to Parent a certificate, signed by the chief
      executive officer and chief financial officer of the Company, to the
      effect that each of the conditions specified in (vi) and (vii) above is
      satisfied;

              


      

      


      
        	
                 
      

              	
                (viii)

              	
                The
      Company shall have delivered a duly executed FIRPTA
      Certificate;

              


      

      


      
        	
                 
      

              	
                (ix)

              	
                There
      shall not be pending any suit, action or proceeding by any Governmental
      Entity seeking to prohibit or impose any material limitations on Parent's
      ownership of the Company or the operation of all or a material portion of
      Parent's or the Company's businesses or assets (whether held directly or
      through Subsidiaries), or to compel Parent or the Company or any of their
      respective Subsidiaries to dispose of or hold separate any material
      portion of the business or assets of Parent or the Company (whether held
      directly or through Subsidiaries);

              


      

      


      
        	
                 
      

              	
                (x)

              	
                Since
      the date of the Agreement there shall not have been any occurrence, event,
      change, effect or development that, individually or in the aggregate, has
      had or is reasonably expected to have a Company Material Adverse Effect;
      and

              


      

      


      
        	
                 
      

              	
                (xi)

              	
                the
      Company and Parent shall not have reached an agreement that the Offer or
      the Agreement be terminated, and the Agreement shall not have been
      terminated in accordance with its
terms.

              


      

      


      The foregoing conditions shall be in
addition to, and not a limitation of, the rights of Parent and Merger Sub to
extend, terminate and/or modify the Offer pursuant to the terms of the
Agreement.

      


      The foregoing conditions are for the
benefit of Parent and Merger Sub, may be asserted by Parent or Merger Sub
regardless of the circumstances giving rise to any such conditions and may be
waived by Parent or Merger Sub in whole or in part at any time and from time to
time in their sole discretion (except for the Minimum Tender Condition), in each
case, subject to the terms of the Agreement and the applicable rules and
regulations of the SEC. The failure by Parent or Merger Sub at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right and each such right shall be deemed an ongoing right which may be asserted
at any time and from time to time.

    

     

     

     

     

     

     

    
    

     

    
      	
               2