CATEGORIES OF CAPITAL EXPENDITURES SPECIFIED IN
SCHEDULE 5.1(I) OR, AFTER THE FIRST CLOSING DATE, IN THE SUBSTITUTE BUSINESS
PLAN.
THE FOREGOING SHALL NOT PROHIBIT ANY ADDITIONAL ITEMS REQUIRED BE
REPORTED IN THE FINANCIAL STATEMENTS UNDER GAAP AS "CAPITAL EXPENDITURES";
(J)
ACCOUNTING.
CHANGE ITS ACCOUNTING POLICIES OR PROCEDURES, OTHER
THAN AS REQUIRED BY GAAP PRIOR TO THE FIRST CLOSING;
(K)
LEGAL ACTIONS.
WAIVE, RELEASE, ASSIGN, SETTLE OR COMPROMISE ANY
MATERIAL LEGAL ACTIONS WHERE THE AMOUNT CLAIMED IS OVER $200,000;
31
(L)
INTELLECTUAL PROPERTY.
OTHER THAN IN RELATION TO ANY PATENTS
HELD JOINTLY BY THE COMPANY AND PARENT OR THE INTELLECTUAL PROPERTY OF PARENT OR
ITS SUBSIDIARIES, AND EXCEPT FOR THE DISCLOSURE OF TRADE SECRETS AS REQUIRED BY
THE APPLICABLE PATENT OFFICE PURSUANT TO THE FILING OF A PATENT APPLICATION,
TAKE ANY ACTION OR OMIT TO TAKE ANY ACTION THAT CAUSES ANY MATERIAL COMPANY
INTELLECTUAL PROPERTY TO BECOME INVALIDATED, ABANDONED OR DEDICATED TO THE
PUBLIC DOMAIN PRIOR TO THE FIRST CLOSING;
(M)
RELATED PARTY AGREEMENTS.
AMEND ANY OF THE EXISTING AGREEMENTS
BETWEEN PARENT AND THE COMPANY, OR ENTER INTO ANY NEW AGREEMENTS WITH PARENT OR
ENTER INTO ANY AGREEMENTS WITH ANY AFFILIATE OF PARENT OR INVUS (OTHER THAN ANY
AGREEMENT THAT CAN BE CANCELLED UPON 30 DAYS' NOTICE OR THAT, ALONE OR IN
CONJUNCTION WITH RELATED AGREEMENTS, INVOLVES LESS THAN $100,000 IN PAYMENTS BY
THE COMPANY IN ANY 12 MONTH PERIOD); OR
(N)
RELATED ACTIONS.
AUTHORIZE, PROPOSE, COMMIT OR AGREE TO DO ANY OF
THE FOREGOING.
Section 5.2
Other Actions.
Parent and the Company shall not, and
shall not permit any of their respective Subsidiaries to, take any action that
could reasonably be expected to result in any of the conditions to the Merger
set forth in ARTICLE VI of this Agreement not being satisfied or satisfaction of
those conditions being delayed.
Section 5.3
Access to Information; Confidentiality.
(A)
THE COMPANY SHALL, AND SHALL CAUSE ITS SUBSIDIARIES, TO:
(I) PROVIDE TO PARENT AND ITS REPRESENTATIVES ACCESS AT REASONABLE TIMES UPON
PRIOR WRITTEN NOTICE TO THE OFFICERS, EMPLOYEES, AGENTS, PROPERTIES, BOOKS AND
RECORDS OF THE COMPANY AND ITS SUBSIDIARIES; (II) FURNISH PROMPTLY SUCH
INFORMATION CONCERNING THE COMPANY AND ITS SUBSIDIARIES AS PARENT OR ITS
REPRESENTATIVES MAY REASONABLY REQUEST; AND (III) ON AT LEAST A QUARTERLY BASIS,
INFORMATION AS TO THE COMPANY'S BUSINESS, OPERATIONS AND FINANCIAL RESULTS.
NO
INVESTIGATION CONDUCTED UNDER THIS SECTION 5.3(A) PRIOR TO THE EFFECTIVE TIME,
HOWEVER, WILL AFFECT OR BE DEEMED TO MODIFY ANY REPRESENTATION OR WARRANTY MADE
IN THIS AGREEMENT.
(B)
PARENT AND THE COMPANY SHALL COMPLY WITH, AND SHALL CAUSE THEIR
RESPECTIVE REPRESENTATIVES TO COMPLY WITH, ALL OF THEIR RESPECTIVE OBLIGATIONS
UNDER THE CONFIDENTIALITY AGREEMENT, DATED APRIL 13, 2005 (THE "CONFIDENTIALITY
AGREEMENT"), BETWEEN PARENT AND THE COMPANY WITH RESPECT TO THE INFORMATION
DISCLOSED UNDER THIS SECTION 5.3.
(C)
NOTHING CONTAINED IN THIS AGREEMENT SHALL GIVE PARENT, DIRECTLY OR
INDIRECTLY, RIGHTS TO CONTROL OR DIRECT THE COMPANY'S OR ITS SUBSIDIARIES'
OPERATIONS PRIOR TO THE EFFECTIVE TIME (OTHER THAN THOSE RIGHTS PARENT HAS AS A
STOCKHOLDER OF THE COMPANY)