COMMITMENT.
JOHN N. SHELL, JOHN W. SHELL AND ORBIMED
ADVISORS LLC SHALL HAVE EXECUTED AND DELIVERED NOMINEE VOTING COMMITMENTS IN THE
FORM ATTACHED AS EXHIBIT G.
7.8
SECRETARY'S CERTIFICATE.
THE COMPANY SHALL HAVE DELIVERED A
CERTIFICATE, EXECUTED ON BEHALF OF THE COMPANY BY ITS SECRETARY, DATED AS OF THE
CLOSING DATE, CERTIFYING THE RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS OF
THE COMPANY APPROVING THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE
ISSUANCE OF THE SECURITIES, THE RESERVATION FOR ISSUANCE OF ANY WARRANT SHARES
ISSUABLE UPON EXERCISE OF THE WARRANTS AND ADDITIONAL WARRANTS, CERTIFYING THE
CURRENT VERSIONS OF THE ARTICLES OF INCORPORATION AND BYLAWS OF THE COMPANY AND
CERTIFYING AS TO THE SIGNATURES AND AUTHORITY OF PERSONS SIGNING THIS AGREEMENT
AND RELATED DOCUMENTS ON BEHALF OF THE COMPANY.
7.9
NO INJUNCTIONS.
NO JUDGMENT, WRIT, ORDER, INJUNCTION, AWARD OR
DECREE OF OR BY ANY COURT, OR JUDGE, JUSTICE OR MAGISTRATE, INCLUDING ANY
BANKRUPTCY COURT OR JUDGE, OR ANY ORDER OF OR BY ANY GOVERNMENTAL AUTHORITY,
SHALL HAVE BEEN ISSUED, AND NO ACTION OR PROCEEDING SHALL HAVE BEEN INSTITUTED
BY ANY GOVERNMENTAL AUTHORITY, ENJOINING OR PREVENTING THE ISSUANCE AND SALE OF
THE SECURITIES AND THE CONSUMMATION OF THE OTHER TRANSACTIONS CONTEMPLATED
HEREBY.
7.10
NO STOP ORDERS.
NO STOP ORDER OR SUSPENSION OF TRADING SHALL HAVE
BEEN IMPOSED BY AMEX, THE COMMISSION OR ANY OTHER GOVERNMENTAL REGULATORY BODY
WITH RESPECT TO PUBLIC TRADING IN THE COMMON STOCK.
21
SECTION 8.
REGISTRATION OF REGISTRABLE SECURITIES;
COMPLIANCE WITH THE SECURITIES
ACT.
8.1
REGISTRATION PROCEDURES AND EXPENSES.
THE COMPANY HEREBY
COVENANTS AND AGREES TO DO THE FOLLOWING:
(A)
THE COMPANY SHALL PREPARE AND FILE THE REGISTRATION STATEMENT WITH
THE COMMISSION AS PROMPTLY AS PRACTICABLE, BUT IN ANY EVENT WITHIN TEN BUSINESS
DAYS, AFTER THE CLOSING DATE.
THE REGISTRATION STATEMENT SHALL BE A "SHELF"
REGISTRATION STATEMENT ON FORM S-3 IF THE COMPANY IS THEN ELIGIBLE TO USE SUCH
FORM OR, IF NOT THEN ELIGIBLE, ANOTHER FORM OF REGISTRATION STATEMENT THEN
AVAILABLE TO THE COMPANY APPROPRIATE FOR THE INTENDED METHOD OR METHODS OF
DISPOSITION OF THE COMMON STOCK PURCHASED HEREUNDER AND THE WARRANT SHARES
(COLLECTIVELY, THE "REGISTRABLE SECURITIES"), INCLUDING WITHOUT LIMITATION A
REGISTRATION STATEMENT ON FORM S-1.
THE REGISTRATION STATEMENT SHALL REGISTER
WITH THE COMMISSION THE RESALE BY THE PURCHASERS, FROM TIME TO TIME, OF THE
REGISTRABLE SECURITIES THROUGH AMEX (OR ANY OTHER SECURITIES EXCHANGE OR
QUOTATION SYSTEM ON WHICH THE COMMON STOCK IS THEN LISTED OR QUOTED) OR IN
PRIVATELY-NEGOTIATED TRANSACTIONS, AND SHALL NOT INCLUDE ANY OTHER SECURITIES OF
THE COMPANY OR ANY OTHER HOLDER WITHOUT THE PRIOR WRITTEN CONSENT OF MDS AND THE
HOLDERS OF A MAJORITY OF THE COMMON STOCK AND WARRANT SHARES HELD BY THE
PURCHASERS, EXCEPT PURSUANT TO PIGGYBACK REGISTRATION RIGHTS GRANTED BY THE
COMPANY TO (I) BIOVAIL PURSUANT TO THE REGISTRATION RIGHTS AGREEMENT DATED AS OF
JULY 9, 2002 BY AND BETWEEN THE COMPANY AND BIOVAIL, AND (II) ELAN INTERNATIONAL
SERVICES, LTD. ("EIS") PURSUANT TO THE REGISTRATION RIGHTS AGREEMENT DATED AS OF
JANUARY 21, 2000 BY AND BETWEEN THE COMPANY AND EIS.