OTHER PARTIES IN DOING,
ALL THINGS REASONABLY REQUESTED BY PARENT FROM SUCH STOCKHOLDER TO CONSUMMATE
AND MAKE EFFECTIVE, IN THE MOST EXPEDITIOUS MANNER PRACTICABLE, THE MERGER AND
THE OTHER TRANSACTIONS CONTEMPLATED HEREBY AND BY THE MERGER AGREEMENT AS IN
EFFECT ON THE DATE HEREOF.
EXCEPT AS MAY BE REQUIRED BY LAW, PRIOR TO THE
SECOND CLOSING, NEITHER PARENT NOR ARTAL SHALL ISSUE ANY PRESS RELEASE OR
OTHERWISE MAKE ANY PUBLIC STATEMENTS ABOUT THE MERGER AGREEMENT, THE MERGER OR
ANY OTHER TRANSACTIONS CONTEMPLATED HEREBY OR BY THE MERGER AGREEMENT WITHOUT
THE CONSENT OF ARTAL, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR
DELAYED, PROVIDED, HOWEVER, THAT NO CONSENT SHALL BE REQUIRED FOR PARENT TO MAKE
SUCH PUBLIC DISCLOSURE AS ITS LEGAL COUNSEL DEEMS NECESSARY, PROVIDED THAT
PARENT IN SUCH CIRCUMSTANCES SHALL, TO THE EXTENT PRACTICABLE AND AS SOON AS
PRACTICABLE, BE OBLIGED TO FIRST PROVIDE A COPY OF ANY
4
ANTICIPATED ANNOUNCEMENT TO ARTAL AND HAVE DUE REGARD TO ANY COMMENTS MADE
THEREON BY ARTAL IN GOOD FAITH.
(E)
EACH STOCKHOLDER HEREBY CONSENTS TO AND
ADOPTS AND APPROVES THE ACTIONS TAKEN BY THE BOARD OF DIRECTORS OF THE COMPANY
IN ADOPTING, APPROVING AND DECLARING ADVISABLE THIS AGREEMENT, THE MERGER
AGREEMENT, THE MERGER, THE CHARTER AMENDMENT AND THE OTHER TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
EACH STOCKHOLDER HEREBY WAIVES AND AGREES NOT
TO EXERCISE OR ASSERT, ANY APPRAISAL RIGHTS UNDER SECTION 262 IN CONNECTION WITH
THE MERGER.
SECTION 4.
NON-COMPETE.
(A)
ARTAL AGREES, PRIOR TO THE EFFECTIVE TIME,
THAT: (I) ARTICLE IV OF THE CORPORATE AGREEMENT, DATED AS OF NOVEMBER 5, 2001,
BETWEEN PARENT AND ARTAL SHALL BE AMENDED (A) SO THAT FOLLOWING THE CLOSING THE
REFERENCE TO THE "COMPANY" IN THAT ARTICLE WILL INCLUDE
WEIGHTWATCHERS.COM, INC., AND (B) SECTION 4.3 OF THAT ARTICLE WILL BE AMENDED TO
INCLUDE ANY INTERNET DIET BUSINESS (AS DEFINED BELOW); (II) THE PARENT'S CODE OF
BUSINESS CONDUCT AND ETHICS, ADOPTED MARCH 16, 2004, SHALL BE AMENDED TO MAKE
CLEAR THAT, FOLLOWING THE CLOSING, THE TERM "CONFLICTING BUSINESS" (AS DEFINED
THEREIN) SHALL INCLUDE THE BUSINESS OF WEIGHTWATCHERS.COM, INC.; AND (III) ARTAL
SHALL NOT, AND SHALL CAUSE ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
REPRESENTATIVES AND AGENTS TO NOT, DURING THE NON-COMPETE PERIOD (AS DEFINED
BELOW), ENGAGE IN, OWN, MANAGE, OPERATE, PROVIDE FINANCING TO, CONTROL OR
PARTICIPATE IN THE OWNERSHIP, MANAGEMENT, OPERATION OR CONTROL OF, OR OTHERWISE
HAVE AN INTEREST, DIRECTLY OR INDIRECTLY, IN ANY OTHER PERSON IN THE CONDUCT OF
THE INTERNET DIET BUSINESS.
(B)
AS USED HEREIN, "INTERNET DIET BUSINESS"
SHALL MEAN THE USE OF THE ELECTRONIC MEDIUM (AS DEFINED BELOW) TO CONDUCT A
BUSINESS PRIMARILY RELATED TO DIET, WEIGHT LOSS AND/OR WEIGHT CONTROL PROGRAMS,
PRODUCTS, SERVICES, INFORMATION, OR MEASUREMENT, INCLUDING, WITHOUT LIMITATION,
THE MARKETING, ADVERTISEMENT, PROMOTION, SALE OR DISTRIBUTION OF PRODUCTS AND
SERVICES PERTAINING TO WEIGHT MANAGEMENT, THE DEVELOPMENT AND PUBLICATION VIA
THE ELECTRONIC MEDIUM OF ANY CONTENT OR FORUMS PERTAINING TO WEIGHT MANAGEMENT,
AND THE SALE AND DELIVERY VIA THE ELECTRONIC MEDIUM OF SUBSCRIPTION ELECTRONIC
PRODUCTS PERTAINING TO WEIGHT MANAGEMENT, BUT NOT INCLUDING, IN EACH AND