OF EVEN DATE HEREWITH (THE "OPTION AND PUT AGREEMENT").
(B)
THE OBLIGATION OF THE COMPANY TO ENTER INTO THIS AGREEMENT SHALL BE
SUBJECT TO THE CONDITIONS THAT:
(1)
ALL REPRESENTATIONS AND WARRANTIES AND
OTHER STATEMENTS OF THE INVESTORS SHALL BE TRUE AND CORRECT AS OF AND ON EACH OF
THE DATE OF THIS AGREEMENT AND THE DATE OF THE CLOSING;
(2)
THE INVESTORS SHALL HAVE PERFORMED ALL OF
ITS OBLIGATIONS HEREUNDER THERETOFORE TO BE PERFORMED;
(3)
ED SHALL HAVE EXECUTED AND DELIVERED THE
FUNDING AND ROYALTY AGREEMENT; AND
(4)
THE INVESTORS AND ED SHALL HAVE EXECUTED
AND DELIVERED THE OPTION AND PUT AGREEMENT.
6.
MISCELLANEOUS.
(A)
FEES AND EXPENSES.
THE COMPANY WILL REIMBURSE THE INVESTOR FOR THE
DOCUMENTED, FEES AND EXPENSES OF OUTSIDE LEGAL COUNSEL OF UP TO $250,000
INCURRED AS PART OF THIS TRANSACTION.
IN ADDITION, PROVIDED THAT THE AGGREGATE
PURCHASE PRICE IS PAID IN FULL BY THE INVESTORS FOR THE OFFERED SHARES, THE
COMPANY WILL PAY A FEE EQUAL TO 5% OF THE AGGREGATE PURCHASE PRICE TO DEERFIELD,
SIMULTANEOUSLY WITH THE CLOSING, FOR ARRANGING THE PURCHASE AND SALE OF THE
OFFERED SHARES.
OTHER THAN THE AMOUNT LISTED ABOVE, EACH OF THE PARTIES HERETO
SHALL BE RESPONSIBLE FOR THEIR OWN EXPENSES INCURRED IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED HEREBY.
(B)
BINDING AGREEMENT; ASSIGNMENT.
THIS AGREEMENT SHALL BE BINDING
UPON, AND SHALL INURE SOLELY TO THE BENEFIT OF, EACH OF THE PARTIES HERETO, AND
EACH OF THEIR RESPECTIVE HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS AND
PERMITTED ASSIGNS, AND NO OTHER PERSON SHALL ACQUIRE OR HAVE ANY RIGHT UNDER OR
BY VIRTUE OF THIS AGREEMENT.
THE INVESTORS MAY NOT ASSIGN ANY OF THESE RIGHTS
OR OBLIGATIONS HEREUNDER TO ANY OTHER PERSON OR ENTITY WITHOUT THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
(C)
ENTIRE AGREEMENT.
THIS AGREEMENT, INCLUDING SCHEDULES I AND II
HERETO, CONSTITUTES THE ENTIRE UNDERSTANDING BETWEEN THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND MAY BE AMENDED ONLY BY WRITTEN
EXECUTION BY BOTH PARTIES.
UPON EXECUTION BY THE COMPANY AND THE INVESTORS,
THIS AGREEMENT SHALL BE BINDING ON EACH OF THE PARTIES HERETO.
(D)
CONSENT TO JURISDICTION.
THIS AGREEMENT SHALL BE ENFORCED, GOVERNED
AND CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PRINCIPLES.
FURTHERMORE, THE INVESTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
FEDERAL OR STATE COURTS LOCATED IN THE STATE OF DELAWARE IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
EACH OF THE COMPANY AND THE INVESTOR (AND, TO THE EXTENT PERMITTED BY
LAW, ON BEHALF OF ITS AND THEIR EQUITY HOLDERS AND CREDITORS) HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.
(E)
NOTICES.
ALL NOTICES, REQUESTS, CONSENTS AND OTHER COMMUNICATION
HEREUNDER SHALL BE IN WRITING, SHALL BE MAILED BY FIRST CLASS REGISTERED OR