REQUEST), AND
(Y) AGREED IN WRITING TO HOLD SUCH SUBJECT SHARES SUBJECT TO ALL OF THE TERMS
AND CONDITIONS SET FORTH IN THIS AGREEMENT.
(B)
UNLESS REQUIRED BY APPLICABLE LAW OR PERMITTED BY THE MERGER
AGREEMENT, STOCKHOLDER SHALL NOT, AND SHALL NOT AUTHORIZE OR DIRECT ANY OF ITS
AFFILIATES OR REPRESENTATIVES TO, MAKE ANY PRESS RELEASE OR PUBLIC ANNOUNCEMENT
WITH RESPECT TO THIS AGREEMENT OR THE MERGER AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, WITHOUT THE PRIOR WRITTEN CONSENT OF BIOSANTE IN
EACH INSTANCE.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS
OF STOCKHOLDER
Stockholder represents, warrants and covenants to BioSante that:
Section 3.1
Ownership.
Stockholder is the sole Beneficial Owner and
the record and legal owner of the Subject Shares identified on Schedule A and
such shares constitute all of the capital stock of the Company Beneficially
Owned by Stockholder.
Stockholder has good and valid title to all of such
shares, free and clear of all Liens, claims, options, proxies, voting agreements
and security interests and has the sole right to such Subject Shares and there
are no restrictions on rights of disposition or other Liens pertaining to such
Subject Shares.
None of the Subject Shares is subject to any voting trust or
other contract with respect to the voting thereof, and no proxy, power of
attorney or other authorization has been granted with respect to any of such
Subject Shares.
Section 3.2
Authority and Non-Contravention.
(A)
STOCKHOLDER IS AN INDIVIDUAL, AND NOT A CORPORATION, LIMITED
LIABILITY COMPANY, PARTNERSHIP, TRUST OR OTHER SUCH ENTITY.
STOCKHOLDER HAS ALL
NECESSARY LEGAL CAPACITY TO EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM
ITS OBLIGATIONS HEREUNDER AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREBY.
(B)
ASSUMING DUE AUTHORIZATION, EXECUTION AND DELIVERY OF THIS
AGREEMENT BY BIOSANTE, THIS AGREEMENT HAS BEEN DULY AND VALIDLY EXECUTED AND
DELIVERED BY STOCKHOLDER AND CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION
OF STOCKHOLDER, ENFORCEABLE AGAINST STOCKHOLDER IN ACCORDANCE WITH ITS TERMS
EXCEPT (I) TO THE EXTENT LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY OR SIMILAR
LAWS AFFECTING CREDITORS' RIGHTS AND (II) THE REMEDY OF SPECIFIC
4
PERFORMANCE AND INJUNCTIVE AND OTHER FORMS OF EQUITABLE RELIEF MAY BE SUBJECT TO
EQUITABLE DEFENSES AND TO THE DISCRETION OF THE COURT BEFORE WHICH ANY
PROCEEDING THEREFOR MAY BE BROUGHT.
(C)
STOCKHOLDER IS NOT NOR WILL IT BE REQUIRED TO MAKE ANY FILING WITH
OR GIVE ANY NOTICE TO, OR TO OBTAIN ANY CONSENT FROM, ANY PERSON IN CONNECTION
WITH THE EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT OR OBTAIN ANY
PERMIT OR APPROVAL FROM ANY GOVERNMENTAL AUTHORITY FOR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY, EXCEPT TO THE EXTENT REQUIRED BY SECTION 13 OR SECTION 16
OF THE EXCHANGE ACT AND THE RULES PROMULGATED THEREUNDER.
(D)
NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY
STOCKHOLDER NOR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY WILL
DIRECTLY OR INDIRECTLY (WHETHER WITH NOTICE OR LAPSE OF TIME OR BOTH)
(I) CONFLICT WITH, RESULT IN ANY VIOLATION OF OR CONSTITUTE A DEFAULT BY
STOCKHOLDER UNDER ANY MORTGAGE,