BEEN
DULY EXECUTED AND DELIVERED BY PARENT AND, ASSUMING DUE EXECUTION AND DELIVERY
OF THIS AGREEMENT BY THE ARTAL AND THE COMPANY, CONSTITUTES THE LEGAL, VALID AND
BINDING OBLIGATION OF PARENT,
2
ENFORCEABLE AGAINST PARENT IN ACCORDANCE WITH ITS TERMS.
THE EXECUTION AND
DELIVERY OF THIS AGREEMENT BY PARENT DO NOT, AND THE PERFORMANCE BY PARENT OF
ITS OBLIGATIONS HEREUNDER WILL NOT, CONFLICT WITH, OR RESULT IN ANY VIOLATION OR
BREACH OF, OR DEFAULT (WITH OR WITHOUT NOTICE OR LAPSE OF TIME OR BOTH) UNDER,
OR GIVE RISE TO A RIGHT OF, TERMINATION, CANCELLATION OR ACCELERATION OF ANY
OBLIGATION, OR TO THE LOSS OF A MATERIAL BENEFIT UNDER, OR RESULT IN THE
CREATION OF ANY LIEN IN OR UPON ANY OF THE PROPERTIES OR OTHER ASSETS OF PARENT
UNDER, (I) ANY ORGANIZATIONAL DOCUMENTS OF PARENT, (II) ANY CONTRACT TO WHICH
PARENT IS A PARTY OR IS BOUND OR ANY OF ITS PROPERTIES OR OTHER ASSETS IS BOUND
BY OR SUBJECT TO OR OTHERWISE UNDER WHICH PARENT HAS RIGHTS OR BENEFITS OR
(III) SUBJECT TO THE GOVERNMENTAL FILINGS AND OTHER MATTERS REFERRED TO IN
SECTION 4.3 OF THE MERGER AGREEMENT, ANY LAW APPLICABLE TO PARENT OR ITS
PROPERTIES OR OTHER ASSETS, OTHER THAN, IN THE CASE OF CLAUSES (II) AND
(III) ABOVE, ANY SUCH CONFLICTS, VIOLATIONS, BREACHES, DEFAULTS, RIGHTS, LOSSES
OR LIENS THAT INDIVIDUALLY OR IN THE AGGREGATE ARE NOT REASONABLY LIKELY TO
IMPAIR IN ANY MATERIAL RESPECT OR PREVENT OR MATERIALLY IMPEDE, INTERFERE WITH,
HINDER OR DELAY THE ABILITY OF PARENT TO PERFORM ITS OBLIGATIONS HEREUNDER.
EXCEPT AS SET FORTH IN SECTION 4.3 OF THE MERGER AGREEMENT, NO CONSENT,
APPROVAL, ORDER OR AUTHORIZATION OF, ACTION BY OR IN RESPECT OF, OR
REGISTRATION, DECLARATION OR FILING WITH, ANY GOVERNMENTAL ENTITY IS REQUIRED BY
OR WITH RESPECT TO PARENT IN CONNECTION WITH ITS EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT.
(B)
SUBJECT SHARES.
PARENT IS THE RECORD AND
BENEFICIAL OWNER OF THE SUBJECT SHARES SET FORTH OPPOSITE ITS NAME ON SCHEDULE A
HERETO, FREE AND CLEAR OF ANY LIENS (OTHER THAN LIENS CREATED PURSUANT TO THE
TERMS OF THIS AGREEMENT OR ARISING UNDER FEDERAL OR STATE SECURITIES LAWS).
AS
OF THE DATE HEREOF, PARENT DOES NOT OWN, OF RECORD OR BENEFICIALLY, ANY SHARES
OF CAPITAL STOCK OF THE COMPANY OTHER THAN ITS SUBJECT SHARES SET FORTH OPPOSITE
ITS NAME ON SCHEDULE A HERETO AND THE SHARES OF COMPANY COMMON STOCK SUBJECT TO
THE WARRANTS.
PARENT HAS THE SOLE RIGHT TO DIRECT THE VOTING OF ITS SUBJECT
SHARES, AND NONE OF SUCH SUBJECT SHARES IS SUBJECT TO ANY VOTING TRUST OR OTHER
CONTRACT WITH RESPECT TO THE VOTING OF SUCH SUBJECT SHARES.
SECTION 3.
COVENANTS OF THE STOCKHOLDERS.
(A)
EACH STOCKHOLDER COVENANTS AND AGREES THAT
AS PROMPTLY AS PRACTICABLE FOLLOWING THE EXECUTION AND DELIVERY OF THE MERGER
AGREEMENT BY THE PARTIES THERETO, SUCH STOCKHOLDER SHALL:
(I)
CONSENT IN WRITING TO THE APPROVAL AND
ADOPTION OF THE MERGER AGREEMENT, THE MERGER, THE REDEMPTION AGREEMENT, THE
REDEMPTION AND THE CHARTER AMENDMENT AND THE OTHER