EVERY
CASE MENTIONED ABOVE, OTHER "LIFE STYLE" AND/OR "EXERCISE" BUSINESSES.
(C)
AS USED HEREIN, "ELECTRONIC MEDIUM" SHALL
MEAN THE INTERNET AND ANY OTHER RELATED OR SIMILAR FORMS OF ELECTRONIC OR
DIGITAL TRANSMISSION, DELIVERY, RECEPTION, RECORDATION OR DISPLAY ARISING FROM
ANY NETWORK OR OTHER CONNECTION OF INSTRUMENTS OR DEVICES NOW KNOWN OR HEREAFTER
INVENTED CAPABLE OF TRANSMISSION, DELIVERY, RECEPTION, RECORDATION AND/OR
DISPLAY (SUCH INSTRUMENTS OR DEVICES TO INCLUDE, WITHOUT LIMITATION, COMPUTERS,
LAPTOPS, CELLULAR OR PCS TELEPHONES, PAGERS, PDAS, WIRELESS TRANSMITTERS OR
RECEIVERS, MODEMS, RADIOS, TELEVISIONS, SATELLITE RECEIVERS, CABLE NETWORKS,
SMART CARDS, SET-TOP BOXES, BROADBAND AND DIGITAL WIRELESS DEVICES).
5
(D)
AS USED HEREIN, "NON-COMPETE PERIOD" SHALL
MEAN THE EARLIER OF (I) FIVE YEARS FROM THE DATE OF THE FIRST CLOSING, OR
(II) SIX MONTHS AFTER THERE ARE NO NOMINEES OF ARTAL ON THE BOARD OF DIRECTORS
OF PARENT.
SECTION 5.
NO SOLICITATION; NO PUBLIC OFFERING.
ARTAL, FOR ITSELF AND ITS DIRECTORS, OFFICERS, CONSULTANTS, ACCOUNTANTS, LEGAL
COUNSEL, INVESTMENT BANKERS, AGENTS AND OTHER REPRESENTATIVES, AGREES TO BE
BOUND BY SECTION 5.4 OF THE MERGER AGREEMENT, WHICH IS HEREBY MADE APPLICABLE TO
ARTAL.
SECTION 6.
STOCKHOLDER CAPACITY.
NO PERSON
EXECUTING THIS AGREEMENT WHO IS OR BECOMES DURING THE TERM HEREOF A DIRECTOR OR
OFFICER OF THE COMPANY MAKES ANY AGREEMENT OR UNDERSTANDING HEREIN IN HIS OR HER
CAPACITY AS SUCH DIRECTOR OR OFFICER OF THE COMPANY.
EACH STOCKHOLDER SIGNS
SOLELY IN ITS CAPACITY AS THE BENEFICIAL AND RECORD OWNER OF SUCH STOCKHOLDER'S
SUBJECT SHARES.
NOTHING HEREIN SHALL LIMIT OR AFFECT ANY ACTIONS TAKEN BY ANY
STOCKHOLDER (OR REPRESENTATIVES ACTING ON ITS BEHALF) IN HIS OR HER CAPACITY AS
AN OFFICER OR DIRECTOR OF THE COMPANY.
SECTION 7.
SPECIAL COMMITTEE.
ARTAL HEREBY
AGREES AND ACKNOWLEDGES THAT ANY ACTIONS TAKEN BY THE SPECIAL COMMITTEE FROM AND
AFTER THE EFFECTIVE TIME WITH RESPECT TO THIS AGREEMENT, THE MERGER AGREEMENT,
THE REDEMPTION AGREEMENT, AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY,
SHALL BE TAKEN ON THE SOLE BEHALF OF PARENT AND PARENT'S STOCKHOLDERS, AND THE
MEMBERS OF THE SPECIAL COMMITTEE SHALL HAVE NO FIDUCIARY OBLIGATION OR LIABILITY
TO ARTAL, IN ITS CAPACITY AS A STOCKHOLDER OF THE COMPANY, OR ANY OTHER
STOCKHOLDER OF THE COMPANY.
SECTION 8.
STOP TRANSFER.
THE COMPANY AGREES
WITH, AND COVENANTS TO, PARENT THAT THE COMPANY SHALL NOT REGISTER THE TRANSFER
OF ANY CERTIFICATE REPRESENTING ANY STOCKHOLDER'S SUBJECT SHARES IN VIOLATION OF
THIS AGREEMENT.
SECTION 9.
TERMINATION.
THIS AGREEMENT SHALL
TERMINATE UPON THE EARLIER OF (I) THE SECOND CLOSING AND (II) THE TERMINATION OF
THE MERGER AGREEMENT IN ACCORDANCE WITH ITS TERMS; PROVIDED, HOWEVER, THAT ANY
SUCH TERMINATION SHALL NOT RELIEVE ANY PARTY OF ANY LIABILITY OF SUCH PARTY
ARISING AS A RESULT OF THE BREACH OF THIS AGREEMENT PRIOR TO SUCH TERMINATION.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF A TERMINATION PURSUANT TO CLAUSE
(I), THE PROVISIONS OF SECTION 4 SHALL SURVIVE THIS AGREEMENT IN ACCORDANCE WITH
TERMS OF SECTION 4.
SECTION 10.
ADDITIONAL MATTERS.
ARTAL SHALL, FROM TIME
TO TIME, EXECUTE AND DELIVER, OR CAUSE TO BE EXECUTED AND DELIVERED, SUCH
ADDITIONAL