INFORMATION DISCLOSURES WITH RESPECT TO THE STOCK
AGREEMENTS, THE LICENSE AGREEMENT AND ANY OF THE TRANSACTIONS CONTEMPLATED
12
HEREBY AND THEREBY, AND NEITHER PARTY HERETO DIRECTLY OR INDIRECTLY THROUGH ITS
OFFICERS AND/OR DIRECTORS SHALL MAKE ANY FURTHER ANNOUNCEMENT, NEWS RELEASE OR
DISCLOSURE WITHOUT FIRST CONSULTING WITH THE OTHER PARTY HERETO EXCEPT (A) WITH
THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD, OR (B) TO THE EXTENT SUCH PARTY BELIEVES IN GOOD FAITH,
AFTER CONSULTATION WITH LEGAL COUNSEL, THAT SUCH ANNOUNCEMENT, RELEASE OR
DISCLOSURE IS REQUIRED BY LAW OR BY THE RULES OR REGULATIONS GOVERNING ANY
APPLICABLE SECURITIES EXCHANGE OR THE NASDAQ NATIONAL MARKET.
5.3
HSR ACT. THE COMPANY AND PURCHASER SHALL
EQUALLY SHARE THE COST OF ALL APPLICABLE FILING FEES UNDER THE HSR ACT, TO THE
EXTENT APPLICABLE TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, RELATING
TO THE ACQUISITION OF THE SHARES, AND THE OTHER TRANSACTIONS CONTEMPLATED HEREBY
AND BY THE RIGHTS AGREEMENT AND LICENSE AGREEMENT. EACH OF THE PARTIES HERETO
AGREES, SUBJECT TO COMPLIANCE WITH APPLICABLE LAW, TO FURNISH PROMPTLY TO EACH
OTHER PARTY HERETO SUCH NECESSARY INFORMATION AND REASONABLE ASSISTANCE AS SUCH
OTHER PARTY MAY REQUEST IN CONNECTION WITH ITS PREPARATION OF NECESSARY FILINGS
OR SUBMISSIONS TO ANY GOVERNMENTAL ENTITIES, INCLUDING, WITHOUT LIMITATION, ANY
FILING NECESSARY UNDER THE PROVISIONS OF THE HSR ACT. EACH PARTY HERETO SHALL
PROMPTLY INFORM EACH OTHER PARTY OF ANY MATERIAL COMMUNICATION FROM THE U.S.
FEDERAL TRADE COMMISSION OR ANY OTHER GOVERNMENTAL ENTITY REGARDING ANY OF THE
TRANSACTIONS CONTEMPLATED BY THE STOCK AGREEMENTS OR THE LICENSE AGREEMENT. EACH
OF THE PURCHASER AND THE COMPANY AGREES NOT TO PARTICIPATE IN ANY MEETING(S)
WITH ANY GOVERNMENTAL ENTITY IN RESPECT OF ANY SUBMISSION, NOTIFICATION OR
INVESTIGATION UNDER ANY ANTITRUST AND TRADE LAWS UNLESS SUCH PARTY CONSULTS WITH
THE OTHER IN ADVANCE AND, TO THE EXTENT PERMITTED BY SUCH GOVERNMENTAL ENTITY,
GIVES SUCH PARTY OR THE OTHER PARTY'S COUNSEL A REASONABLE OPPORTUNITY TO ATTEND
AND PARTICIPATE AT SUCH MEETING(S).
5.4
CONDUCT. PRIOR TO THE CLOSING DATE, NEITHER
THE PURCHASER NOR THE COMPANY SHALL TAKE ANY ACTION THAT WOULD MATERIALLY IMPAIR
PERFORMANCE OF THE LICENSE AGREEMENT BY EITHER PARTY.
5.5
CONDUCT OF COMPANY BUSINESS PRIOR TO CLOSING.
EXCEPT AS CONTEMPLATED BY THIS AGREEMENT, AND WITHOUT LIMITING THE GENERALITY OF
SECTION 5.4 HEREOF, DURING THE PERIOD FROM THE DATE OF THIS AGREEMENT TO THE
EARLIER OF (I) THE TERMINATION OF THIS AGREEMENT, OR (II) THE CLOSING DATE, EACH
OF THE COMPANY AND EACH SUBSIDIARY WILL:
5.5.1
CONDUCT THEIR OPERATIONS, TAKEN AS A WHOLE, IN THE
ORDINARY COURSE OF BUSINESS, CONSISTENT WITH PAST PRACTICE AND IN ACCORDANCE
WITH APPLICABLE LAW, AND WILL USE COMMERCIALLY REASONABLE EFFORTS CONSISTENT
WITH PAST PRACTICE AND POLICIES TO PRESERVE INTACT ITS BUSINESS ORGANIZATION;
5.5.2
NOT TERMINATE, AMEND OR MODIFY ANY THIRD PARTY
AGREEMENTS (AS THAT TERM IS DEFINED IN THE LICENSE AGREEMENT); AND
5.5.3
NOTIFY THE PURCHASER PROMPTLY, AND IN ANY EVENT PRIOR
TO THE CLOSING DATE, IN THE EVENT THAT ANY OF AUDREY JAKUBOWSKI, PH.D., SANJEEV
REDKAR,