(VII) THE WORDS
"MADE AVAILABLE" SHALL MEAN THAT THE INFORMATION REFERRED TO HAS BEEN MADE
AVAILABLE IF REQUESTED BY THE PARTY TO WHOM SUCH INFORMATION IS TO BE MADE
AVAILABLE.
(B)
REFERENCES TO AGREEMENTS AND OTHER DOCUMENTS
SHALL BE DEEMED TO INCLUDE ALL SUBSEQUENT AMENDMENTS AND OTHER MODIFICATIONS
THERETO.
(C)
REFERENCES TO STATUTES SHALL INCLUDE ALL
REGULATIONS PROMULGATED THEREUNDER AND REFERENCES TO STATUTES OR REGULATIONS
SHALL BE CONSTRUED AS INCLUDING ALL STATUTORY AND REGULATORY PROVISIONS
CONSOLIDATING, AMENDING OR REPLACING THE STATUTE OR REGULATION.
(D)
"KNOWLEDGE" OF THE COMPANY MEANS ACTUAL
KNOWLEDGE OF THE FOLLOWING SENIOR EXECUTIVE OFFICERS OF THE COMPANY: MARTINE A.
ROTHBLATT, PH.D, ROGER JEFFS, PH.D, PAUL A. MAHON AND JOHN FERRARI.
(E)
THE ANNEXES, SCHEDULES AND EXHIBITS TO THIS
AGREEMENT ARE A MATERIAL PART HEREOF AND SHALL BE TREATED AS IF FULLY
INCORPORATED INTO THE BODY OF THE AGREEMENT.
(F)
WHENEVER THIS AGREEMENT REFERS TO A
NUMBER OF DAYS, SUCH NUMBER SHALL REFER TO CALENDAR DAYS UNLESS BUSINESS DAYS
ARE SPECIFIED AND SHALL BE COUNTED FROM THE DAY IMMEDIATELY FOLLOWING THE DATE
FROM WHICH SUCH NUMBER OF DAYS ARE TO BE COUNTED.
(G)
ALL ACCOUNTING TERMS USED HEREIN AND NOT
EXPRESSLY DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO THEM UNDER GAAP.
ARTICLE II.
PURCHASE AND SALE OF THE SHARES
2.1
PURCHASE AND SALE OF THE SHARES.
UPON THE
TERMS AND SUBJECT TO THE CONDITIONS CONTAINED HEREIN, ON THE CLOSING DATE, THE
COMPANY SHALL SELL, CONVEY, TRANSFER, ASSIGN AND DELIVER TO THE PURCHASER, AND
THE PURCHASER SHALL PURCHASE AND ACCEPT FROM THE
6
COMPANY, FREE AND CLEAR OF ANY AND ALL LIENS, AT A PRICE PER SHARE EQUAL TO THE
PER SHARE PRICE, A NUMBER OF SHARES OF COMMON STOCK (ROUNDED UP TO THE NEAREST
WHOLE NUMBER) (THE "SHARES") DETERMINED BY DIVIDING (I) ONE HUNDRED AND FIFTY
MILLION DOLLARS ($150,000,000) (THE "AGGREGATE PURCHASE PRICE") BY (II) THE PER
SHARE PRICE.
2.2
CLOSING.
UPON THE TERMS AND CONDITIONS SET
FORTH HEREIN, THE CLOSING (THE "CLOSING") OF THE TRANSACTIONS CONTEMPLATED
HEREIN SHALL OCCUR AT 10:00 A.M. LOCAL TIME ON THE CLOSING DATE AT THE OFFICES
OF LATHAM & WATKINS LLP, 885 THIRD AVENUE, NEW YORK, NEW YORK 10022 (OR BY THE
EXCHANGE OF DOCUMENTS AND INSTRUMENTS BY MAIL, COURIER, FACSIMILE OR EMAIL TO
THE EXTENT MUTUALLY ACCEPTABLE TO THE PARTIES HERETO) OR SUCH OTHER PLACE OR
TIME AGREED TO BY THE COMPANY AND THE PURCHASER.
2.3
DELIVERIES AT CLOSING.
TO EFFECT THE SALE
AND PURCHASE OF THE SHARES AND THE DELIVERY OF THE AGGREGATE PURCHASE PRICE
REFERRED TO IN SECTION 2.1, THE COMPANY AND THE PURCHASER SHALL DELIVER THE
FOLLOWING:
(A)
WIRE INSTRUCTIONS.
NO LATER THAN THREE
(3) BUSINESS DAYS PRIOR TO THE CLOSING DATE, THE COMPANY SHALL PROVIDE TO THE
PURCHASER WIRE TRANSFER INSTRUCTIONS FOR THE RECEIPT OF THE AGGREGATE PURCHASE
PRICE.
(B)
CLOSING CERTIFICATE.
AT THE CLOSING, THE
COMPANY SHALL DELIVER TO THE PURCHASER A CERTIFICATE SETTING FORTH THE NUMBER OF
SHARES AND THE AGGREGATE PURCHASE PRICE, EACH CALCULATED IN ACCORDANCE WITH THIS
AGREEMENT, WHICH CERTIFICATE SHALL