(B)
THIS AGREEMENT CONSTITUTES A VALID AND
BINDING AGREEMENT OF THE SELLER, ENFORCEABLE AGAINST THE SELLER IN ACCORDANCE
WITH ITS TERMS, EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY (I) APPLICABLE
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM, FRAUDULENT CONVEYANCE OR
OTHER SIMILAR LAWS RELATING TO OR AFFECTING CREDITORS' RIGHTS GENERALLY AND
(II) GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER SUCH ENFORCEABILITY IS
CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW).
(C)
NO CONSENT, APPROVAL, QUALIFICATION, ORDER
OR AUTHORIZATION OF, OR FILING WITH, ANY LOCAL, STATE OR FEDERAL GOVERNMENTAL
AUTHORITY IS REQUIRED FOR THE CONSUMMATION BY THE SELLER OF THE TRANSACTIONS
CONTEMPLATED HEREBY, OTHER THAN THE PERMISSION OF THE BERMUDA MONETARY AUTHORITY
FOR THE SALE OF THE BERMUDA SECURITIES TO THE PURCHASER AS DETAILED HEREIN,
WHICH PERMISSION HAS BEEN OBTAINED.
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(D)
THE SELLER HAS GOOD AND MARKETABLE TITLE TO
THE SECURITIES THAT IT IS TRANSFERRING HEREUNDER, FREE AND CLEAR OF ANY LIENS,
CLAIMS, ENCUMBRANCES, CHARGES OR RESTRICTIONS OF ANY KIND (COLLECTIVELY,
"LIENS").
UPON CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, THE
PURCHASER WILL HAVE ACQUIRED GOOD AND MARKETABLE TITLE IN AND TO THE SECURITIES,
FREE AND CLEAR OF ANY LIENS.
(E)
IF AND WHEN THE SELLER SELLS, TRANSFERS OR
OTHERWISE DISPOSES OF THE 12,015 SHARES OF SERIES B CONVERTIBLE EXCHANGEABLE
PREFERRED STOCK OF THE PURCHASER WHICH ARE OWNED BY THE SELLER, A CONDITION TO
SUCH SALE, TRANSFER OR DISPOSITION SHALL BE THAT THE ACQUIROR OF SUCH SHARES
WILL IMMEDIATELY CONVERT SUCH SHARES INTO SHARES OF COMMON STOCK OF THE
PURCHASER.
7.
APPLICABLE LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
8.
INVALIDITY OF PROVISIONS.
THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION OF THIS AGREEMENT IN ANY JURISDICTION SHALL NOT AFFECT THE VALIDITY OR
ENFORCEABILITY OF THE REMAINDER OF THIS AGREEMENT IN THAT JURISDICTION OR THE
VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT, INCLUDING THAT PROVISION, IN ANY
OTHER JURISDICTION.
9.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES CONTAINED HEREIN SHALL SURVIVE THE CLOSING OR ANY TERMINATION OF THIS
AGREEMENT FOR A PERIOD OF SIX MONTHS.
10.
HEADINGS; EXECUTION IN COUNTERPARTS.
THE HEADINGS AND CAPTIONS CONTAINED
HEREIN ARE FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT CONTROL OR AFFECT THE
MEANING OR CONSTRUCTION OF ANY PROVISION HEREOF.
THIS AGREEMENT MAY BE EXECUTED
IN COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL AND WHICH
TOGETHER SHALL CONSTITUTE BUT ONE AND THE SAME INSTRUMENT.
11.
NOTICES.
ALL NOTICES AND OTHER COMMUNICATIONS RELATING TO THIS AGREEMENT
SHALL BE DATED AND IN WRITING AND SHALL BE DEEMED TO HAVE BEEN DULY GIVEN WHEN
DELIVERED, IF DELIVERED PERSONALLY OR SENT BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, POSTAGE PREPAID, AND WHEN RECEIVED IF DELIVERED
OTHERWISE, TO THE PARTY TO WHOM IT IS DIRECTED;
(A)
IF TO THE SELLER, TO THE SELLER AT THE
FOLLOWING ADDRESS:
Elan Pharmaceutical Investments II, Ltd.
Clarendon House
Church Street
Hamilton, Bermuda
Attn:
President
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Fax:
(441) 292-2224
(B)
IF TO THE PURCHASER, TO THE PURCHASER AT