THE STOCKHOLDERS' AGREEMENT; AND (C) THE
COMPANY SHALL BE ENTITLED TO ISSUE OPTIONS TO ACQUIRE UP TO AN AGGREGATE OF
1,500,000 SHARES OF VOTING COMMON STOCK PURSUANT TO THE STOCK PLAN, PROVIDED
THAT SUCH ISSUANCES DO NOT AND WILL NOT (ASSUMING THE EXERCISE OF SUCH OPTIONS)
RESULT, DIRECTLY OR INDIRECTLY, IN THE SHARES OF OUTSTANDING COMPANY STOCK THAT
ARE SUBJECT TO THE STOCKHOLDER OPTION AGREEMENTS BEING INSUFFICIENT TO AUTHORIZE
AND APPROVE THE MERGER PURSUANT TO THE CERTIFICATE OF INCORPORATION (INCLUDING
AS AMENDED BY THE CHARTER AMENDMENT), THE DGCL AND THE STOCKHOLDERS' AGREEMENT
(III)
AMEND ITS CERTIFICATE OF INCORPORATION,
BY-LAWS OR SIMILAR ORGANIZATIONAL DOCUMENTS, EXCEPT FOR THE CHARTER AMENDMENT
AND AS IS REQUIRED IN CONNECTION WITH ANY ISSUANCE OF SHARES OF SERIES C-2
PREFERRED STOCK PURSUANT TO CLAUSE (B) OF PARAGRAPH (II) ABOVE;
(IV)
ACQUIRE OR AGREE TO ACQUIRE BY MERGING OR
CONSOLIDATING WITH, OR BY PURCHASING A SUBSTANTIAL PORTION OF THE ASSETS OF OR
EQUITY IN, OR BY ANY OTHER MANNER, ANY BUSINESS OR ANY CORPORATION, PARTNERSHIP,
LIMITED LIABILITY COMPANY, ASSOCIATION OR OTHER BUSINESS ORGANIZATION OR
DIVISION THEREOF;
(V)
ALTER THROUGH MERGER, LIQUIDATION,
REORGANIZATION, RESTRUCTURING OR IN OTHER FASHION ITS CORPORATE STRUCTURE;
(VI)
VOLUNTARILY DISSOLVE OR LIQUIDATE;
47
(VII)
FILE A VOLUNTARY PETITION IN BANKRUPTCY OR
COMMENCE A VOLUNTARY LEGAL PROCEDURE FOR REORGANIZATION, ARRANGEMENT,
ADJUSTMENT, RELEASE OR COMPOSITION OF INDEBTEDNESS IN BANKRUPTCY OR OTHER
SIMILAR REQUIREMENTS OF LAW NOW OR HEREAFTER IN EFFECT, CONSENT TO THE ENTRY OF
AN ORDER FOR RELIEF IN AN INVOLUNTARY CASE UNDER ANY SUCH REQUIREMENTS OF LAW OR
APPLY FOR OR CONSENT TO THE APPOINTMENT OF A RESCUER, LIQUIDATOR, ASSIGNEE,
CUSTODIAN OR TRUSTEE (OR SIMILAR OFFICE) OF THE COMPANY OR ANY SUBSIDIARY;
(VIII)
ENTER INTO THE ACTIVE MANAGEMENT OF A BUSINESS
THAT IS NOT PRIMARILY RELATED TO, OR IN FURTHERANCE OF, BEING A PHARMACEUTICAL
COMPANY FOCUSED ON THE RESEARCH, DEVELOPMENT AND COMMERCIALIZATION OF
PROPRIETARY HEALTHCARE PRODUCTS;
(IX)
EXCEPT AS SET FORTH IN THE OPERATING PLAN,
MAKE OR INCUR ANY NEW CAPITAL EXPENDITURES IN EXCESS OF $200,000 (INDIVIDUALLY
OR IN THE AGGREGATE);
(X)
(A) MODIFY ANY OF THE AGREEMENTS,
UNDERSTANDINGS, OBLIGATIONS, COMMITMENTS OR OTHER OBLIGATIONS SET FORTH IN ANY
OF THE SCHEDULES TO THIS AGREEMENT, EXCEPT FOR SUCH MODIFICATIONS THAT ARE
CONSISTENT WITH THE OPERATING PLAN OR DO NOT MODIFY ANY SUCH AGREEMENTS OR OTHER
OBLIGATIONS IN ANY MATERIAL RESPECT (SUBJECT TO CLAUSE (2) BELOW) OR (B) CREATE,
INCUR OR ASSUME ANY INDEBTEDNESS (OR ENTER INTO ANY AGREEMENT, UNDERSTANDING,
OBLIGATION OR COMMITMENT TO DO SO); ENTER INTO, AS LESSEE, ANY CAPITAL LEASE (AS
DEFINED IN STATEMENT OF FINANCIAL ACCOUNTING STANDARDS NO. 13); GUARANTEE ANY
SUCH INDEBTEDNESS OR OBLIGATION; ISSUE OR SELL ANY DEBT SECURITIES, OR GUARANTEE
ANY DEBT SECURITIES OF OTHERS; OR MAKE ANY LOANS, ADVANCES OR CAPITAL
CONTRIBUTIONS TO, OR INVESTMENTS IN, ANY OTHER PERSON (OTHER THAN REASONABLE
ADVANCES FOR WORK-RELATED EXPENSES TO EMPLOYEES AND CONSULTANTS IN THE ORDINARY
COURSE CONSISTENT WITH COMPANY POLICIES) OR OBLIGATION, IN EACH CASE (1) OF THE
TYPE THAT WOULD HAVE BEEN REQUIRED TO BE LISTED IN SCHEDULE 3.17