provided in Section [4.2.1/4.2.2] of
that certain Collaborative Development and Commercialization Agreement between
the Company and the Purchaser dated October 5, 2007;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby mutually acknowledged, and intending
to be legally bound hereby, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1
FOR PURPOSES OF THIS AGREEMENT, THE FOLLOWING TERMS SHALL HAVE THE
MEANINGS SET FORTH BELOW:
(A)
"ACT" SHALL MEAN THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
SIMILAR FEDERAL STATUTE AND THE RULES, REGULATIONS AND POLICIES OF THE
COMMISSION THEREUNDER, ALL AS THE SAME SHALL BE IN EFFECT AT THE TIME.
(B)
"AFFILIATE" SHALL MEAN AN INDIVIDUAL, TRUST, BUSINESS TRUST, JOINT
VENTURE, PARTNERSHIP, CORPORATION, LIMITED LIABILITY COMPANY, ASSOCIATION OR ANY
OTHER ENTITY WHICH (DIRECTLY OR INDIRECTLY) IS CONTROLLED BY, CONTROLS OR IS
UNDER COMMON CONTROL WITH THE COMPANY OR THE PURCHASER, AS THE CASE MAY BE.
FOR
THE PURPOSES OF THIS DEFINITION, THE TERM "CONTROL" (INCLUDING, WITH CORRELATIVE
MEANINGS, THE TERM "CONTROLLED BY" AND "UNDER COMMON CONTROL WITH") AS USED WITH
RESPECT TO THE COMPANY OR THE PURCHASER, AS THE CASE MAY BE, MEANS THE
POSSESSION OF THE POWER TO DIRECT OR CAUSE THE DIRECTION OF THE MANAGEMENT AND
POLICIES OF AN ENTITY, THROUGH THE OWNERSHIP OF THE OUTSTANDING VOTING
SECURITIES OR BY CONTRACT OR OTHERWISE.
(C)
"BY-LAWS" SHALL MEAN THE RESTATED BY-LAWS OF THE COMPANY, AS
AMENDED FROM TIME TO TIME.
(D)
"CERTIFICATE OF INCORPORATION" SHALL MEAN THE COMPANY'S RESTATED
CERTIFICATE OF INCORPORATION ON FILE WITH THE SECRETARY OF STATE OF THE STATE OF
DELAWARE, AS AMENDED FROM TIME TO TIME.
(E)
"CLOSING" AND "CLOSING DATE" SHALL HAVE THE MEANINGS SPECIFIED IN
SECTION 2.2 HEREOF.
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
Exhibit A-2
(F)
"COMMISSION" SHALL MEAN THE SECURITIES AND EXCHANGE COMMISSION OR
ANY OTHER FEDERAL AGENCY AT THE TIME ADMINISTERING THE ACT.
(G)
"COMMON STOCK" SHALL HAVE THE MEANING SPECIFIED IN THE RECITALS.
(H)
"EXCHANGE ACT" SHALL HAVE THE MEANING SPECIFIED IN
SECTION 3.8(A) HEREOF.
(I)
"PURCHASE PRICE" SHALL HAVE THE MEANING SPECIFIED IN SECTION 2.1
HEREOF.
(J)
"SEC DOCUMENTS" SHALL MEAN EACH REPORT, REGISTRATION STATEMENT
AND DEFINITIVE PROXY STATEMENT FILED BY THE COMPANY WITH THE COMMISSION SINCE
[INSERT DATE THAT IS ONE YEAR BEFORE DATE OF THIS AGREEMENT], AND ALL AMENDMENTS
OR SUPPLEMENTS THERETO.
(K)
"SHARES" SHALL HAVE THE MEANING SPECIFIED IN SECTION 2.1 HEREOF.
1.2
CERTAIN OTHER WORDS AND PHRASES ARE DEFINED OR DESCRIBED ELSEWHERE
IN THIS AGREEMENT (AND THE EXHIBITS AND SCHEDULES HERETO, IF ANY).
1.3
WHEREVER USED IN THIS AGREEMENT:
(L)
THE WORDS "INCLUDE" OR "INCLUDING" SHALL BE CONSTRUED AS ALSO
INCORPORATING "BUT NOT LIMITED TO" AND "WITHOUT LIMITATION";
(M)
THE WORD "DAY" MEANS A CALENDAR DAY UNLESS SPECIFIED OTHERWISE; AND
(N)
THE WORD