AGREEMENT AND PLAN OF MERGER

Exhibit 10.1

EXECUTION COPY

AGREEMENT AND PLAN OF MERGER

by and among

PHARMION CORPORATION,

CARLSBAD ACQUISITION CORPORATION

CABRELLIS PHARMACEUTICALS CORPORATION

and

Stuart J. M. Collinson
as the
EQUITYHOLDER REPRESENTATIVE

November 15, 2006

TABLE OF CONTENTS

LIST OF EXHIBITS

LIST OF SCHEDULES

AGREEMENT AND PLAN OF MERGER

     This AGREEMENT AND PLAN OF MERGER (this “ Agreement ”), dated as of November 15, 2006, is entered into by and among Pharmion Corporation, a Delaware corporation (“ Parent ”), Carlsbad Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary of Parent (“ Merger Sub ”), Cabrellis Pharmaceuticals Corporation, a Delaware corporation (the “ Company ”), and Stuart J. M. Collinson, acting in his capacity as Equityholder Representative in connection with the transactions contemplated by this Agreement (the “ Equityholder Representative ”). (Hereafter, the Parent, the Company, and the Equityholder Representative shall sometimes be referred to as the “Parties.”)

RECITALS

     WHEREAS, the Boards of Directors of the Company, Parent and Merger Sub have each (i) determined that the Merger (as defined below) is fair, advisable and in the best interests of their respective companies and stockholders and (ii) approved this Agreement and the transactions contemplated hereby, including the Merger, upon the terms and subject to the conditions set forth in this Agreement.

     WHEREAS, the stockholders of the Company (the “ Stockholders ”) have approved and adopted this Agreement and the consummation of the transactions contemplated hereby in accordance with Applicable Law (as hereinafter defined) and the Company’s Certificate of Incorporation and Bylaws.

AGREEMENT

     NOW THEREFORE, in consideration of the respective covenants and promises contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I.

DEFINITIONS

     1.1. Defined Terms . As used herein, the terms below shall have the following meanings. Any of such terms, unless the context otherwise requires, may be used in the singular or plural, depending upon the reference.

     “ Affiliate ” means, with respect to any Person, any other Person which directly or indirectly controls, is controlled by or is under common control with such Person.

     “ Applicable Law(s) ” means, with respect to any Person, any federal, state, local or other domestic or foreign statute, law, ordinance, rule, regulation, order, writ, injunction, judgment, award, decree or other requirement of any Governmental Authority applicable to such Person or any of such Person’s property, assets, officers, directors, employees, consultants or agents.

     “ Business ” means the business of the Company.

     “ Business Day ” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.

     “ Code ” means the Internal Revenue Code of 1986, as amended.

     “ Company Option Plan ” means the Company’s 2006 Equity Incentive Plan.

     “ Company Option Schedule ” means Schedule 4.4(d) of the Company Disclosure Schedule

     “ Company Option Shares ” means, with respect to any Company Option, the shares of Common Stock into which such Company Option (whether or not vested) is exercisable.

     “ Company Options ” means options to purchase Common Stock pursuant to the terms of the Company Option Plan.

     “ Compound ” shall mean the compound known as Amrubicin (international nonproprietary name) hydrochloride which is generically known as (+)-(7S, 9S)-9-acetyl-9-amino-7-[(2-deoxy-ß-D-erythro-pentopyranosyl) oxy]-7,8,9,10-tetrahydro-6,11-dihydroxy-5,12-naphthacenedione hydrochloride.

     “ Court Order ” means any judgment, decision, consent decree, injunction, ruling or order of any federal, state, local or other domestic or foreign court or Governmental Authority that is binding on any Person or its property under Applicable Law.

     “ Default ” means (a) any actual breach or default, (b) the occurrence of an event that with the passage of time or the giving of notice or both would constitute a breach or default or (c) the occurrence of an event that, with or without the passage of time or the giving of notice or both, would give rise to a right of termination, renegotiation or acceleration.

     “ EMEA ” means the European Medicines Evaluation Agency.

     “ EMEA Approval ” means any and all approvals, licenses, registrations or authorizations granted or issued by the EMEA, necessary to commercially distribute, promote and sell the Compound.

     “ Encumbrance ” means any claim, lien, pledge, option, charge, easement, security interest, deed of trust, mortgage, conditional sales agreement, encumbrance or other right of third parties, whether voluntarily incurred or arising by operation of law, and includes any agreement to give any of the foregoing in the future.

     “ Environmental Claim ” means, in respect of any Person, (i) any and all administrative, regulatory or judicial actions, suits, orders, decrees, demands, directives, claims, liens, proceedings or written notices of noncompliance or violation by any Governmental Authority, alleging potential presence or release of, or exposure to, any Hazardous Materials at any location, whether or not owned, operated, leased or managed by such Person, or (ii) any and all indemnification, cost recovery, compensation or injunctive relief resulting from the presence or release of, or exposure to, any Hazardous Materials.

     “ Escrow Expiration Date ” means the date that is twelve (12) months after the Effective Time.

     “ FDA ” means the United States Food and Drug Administration or any successor agency.

     “ FDA Approval ” means any and all approvals, licenses, registrations, or authorizations granted or issued by the FDA, necessary to commercially distribute, promote and sell the Compound.

     “ FDCA ” means the Federal Food, Drug, and Cosmetic Act of 1938, as amended.

     “ Financial Statements ” means the unaudited balance sheet of the Company dated as of September 30, 2006, and the related unaudited statements of operations, changes in stockholders’ equity and cash flow for the five-month period ended September 30, 2006.

     “ First MAA Subsequent Payment Date ” means the date upon which the first EMEA Approval of an MAA is obtained by or on behalf of Parent or any of its Affiliates or sublicensees for the use of a product containing the Compound in a single tumor type (the “ First MAA Indication ”), the receipt of such EMEA Approval being the “ First MAA Milestone .”

     “ First NDA Subsequent Payment Date ” means the date upon which the first FDA Approval of an NDA is obtained by or on behalf of Parent or any of its Affiliates or sublicensees for the use of a product containing the Compound in a single tumor type (the “ First NDA Indication ”), the receipt of such FDA Approval being the “ First NDA Milestone .”

     “ GAAP ” means generally accepted United States accounting principles consistently applied over all relevant periods.

     “ Good Clinical Practices ” means the then current standards for clinical trials for pharmaceuticals, as set forth in the FDCA and applicable regulations promulgated thereunder, as amended from time to time, and such standards of good clinical practice as are required by the regulatory authorities of the European Union and other organizations and governmental agencies in any other countries in which the products containing the Compound are sold or intended to be sold, to the extent such standards are not less stringent than in the United States.

     “ Good Laboratory Practices ” means the then current standards for pharmaceutical laboratories, as set forth in the FDCA and applicable regulations promulgated thereunder, as amended from time to time, and such standards of good laboratory practices as are required by the regulatory authorities of the European Union and other organizations and governmental agencies in any other countries in which the products containing the Compound are sold or intended to be sold, to the extent such standards are not less stringent than in the United States.

     “ Good Manufacturing Practices ” means the then current standards for the manufacture, processing, packaging, testing and holding of drug products, as set forth in the FDCA and applicable regulations promulgated thereunder, as amended from time to time, and such standards of good manufacturing practices as are required by the regulatory authorities of the European Union and other organizations and governmental agencies in any other countries in

which the products containing the Compound are sold or intended to be sold, to the extent such standards are not less stringent than in the United States.

     “ Governmental Authority ” means any court, administrative agency, regulatory body, commission or other governmental authority or instrumentality of the United States or any other country or any state, county, municipality or other governmental division of any country.

     “ Initial Merger Consideration ” means $59,000,000.

     “ Intellectual Property ” means patents and patent applications, trademarks, service marks, trade names, copyrights, trade secrets, inventions, disclosures, technology, know-how, software, designs, formulae, confidential and proprietary information and similar proprietary rights and registrations and applications for registration of copyrights, trademarks, service marks, trade names, trade dress, domain names, and invention disclosures.

      “Knowledge” of the Company means the actual knowledge of the officers of the Company.

     “ Liabilities ” means any direct or indirect liability, indebtedness, obligation, commitment, expense, claim, deficiency, guaranty or endorsement of or by any Person of any type, known or unknown, and whether accrued, absolute, contingent, matured, unmatured or other, including “off-balance sheet” Liabilities.

     “ MAA ” means a Marketing Authorization Application.

     “ Material Adverse Effect ” will be deemed to occur if any event (whether specific to the applicable party or generally applicable to multiple parties), violation, inaccuracy, circumstance or other matter has, or would, individually or in the aggregate with other events, reasonably be expected to have or give rise to, a material adverse effect on or material adverse change to (a) the condition (financial or otherwise), business, results of operations, assets, liabilities, capitalization or financial performance of the party making the representations and warranties, or (b) the ability of such party to consummate the transactions contemplated by this Agreement or to perform any of its obligations under this Agreement; provided , however , that any adverse effects attributable to any of the following as they relate to the Company shall not be deemed to constitute, and the following shall not be taken into account in determining whether there has been or will be, a Material Adverse Effect of the Company: (i) conditions affecting the industries in which the Company participates or the U.S. economy as a whole (other than those that disproportionately affect the Company); and (ii) actions taken by the Company at Parent’s express written direction or with Parent’s express written consent.

      “Merger Consideration” means (i) the Initial Merger Consideration plus (ii) the Subsequent Merger Consideration.

     “ Milestone ” means any of the First MAA Milestone, First NDA Milestone, Second MAA Milestone or Second NDA Milestone.

     “ Most Recent Balance Sheet ” means the unaudited balance sheet of the Company dated as of September 30, 2006.

     “ NDA ” means a new drug application filed with the FDA for authorization to market a pharmaceutical product or its equivalent.

     “ Ordinary Course of Business ” or “ Ordinary Course ” or any similar phrase means the ordinary course of the Business, consistent with the past practice of the Company.

     “ Participating Rights Holders ” means those Persons (other than the holders of Company Dissenting Shares) who, immediately prior to the Effective Time, were holders of Common Stock, Preferred Stock or Company Options, and whose interests therein, as the result of the Merger, are converted into rights to receive a portion of the Merger Consideration.

     “ Paying Agent ” means JPMorgan Chase Bank, N.A.

     “ Paying Agent Agreement ” means the Paying Agent Agreement entered into as of the date hereof between Parent and the Paying Agent pursuant to which the Stockholders and the holders of the Company Options shall receive consideration for their shares of capital stock of the Company and/or Company Options, as the case may be, that are surrendered in accordance with this Agreement and the Paying Agent Agreement.

     “ Permits ” means all licenses, permits, franchises, approvals, authorizations, consents or orders of, or filings with, any Governmental Authority, whether foreign, federal, state or local, or any other Person, necessary for the conduct of, or relating to, the operation of the Business.

     “ Permitted Encumbrances ” means (a) liens, taxes, assessments and other governmental charges, in each case, not yet due and payable, or which are being contested in good faith by appropriate proceedings, (b) statutory, mechanics’, laborers’ and materialmen liens arising in the Ordinary Course of Business for sums not yet due, (c) statutory and contractual landlord liens under leases pursuant to which the Company is a lessee and not in default, (d) with regard to real property, any and all matters of record in the jurisdiction where the real property is located including restrictions, reservations, covenants, conditions, oil and gas leases, mineral severances and liens; (e) with regard to real property, any easements, rights-of-way, building or use restrictions, prescriptive rights, encroachments, protrusions, rights and party walls, and liens for taxes, assessments, and other governmental charges, in each case, not yet due; (f) liens securing rental payments under capital lease arrangements to the extent they are imposed only upon the leased equipment; (g) pledges or deposits made in the Ordinary Course of Business which do not in the aggregate materially detract from the value of the related assets or properties or materially impair the use thereof in the operation of the Business; and (h) similar liens and encumbrances which are incurred in the Ordinary Course of Business and which do not in the aggregate materially detract from the value of the related assets or properties or materially impair the use thereof in the operation of the Business.

     “ Person ” means any person or entity, whether an individual, trustee, corporation, partnership, limited partnership, limited liability company, trust, unincorporated organization, business association, firm, joint venture or Governmental Authority.

     “ Post-Closing Tax Period ” means any Tax Period beginning after the Closing Date and that portion of a Straddle Period beginning after the Closing Date.

     “ Pre-Closing Tax Period ” means any Tax Period ending on or before the Closing Date and the portion of any Straddle Period ending on the Closing Date.

     “ Pre-Closing Taxes” means (i) all liability for Taxes (other than franchise taxes in the State of California) of the Company for any Pre-Closing Tax Period and (ii) all liability resulting by reason of the several liability of the Company pursuant to Treasury Regulations § 1.1502-6(a).

     “ Regulations ” means any laws, statutes, ordinances, regulations, rules, notice requirements, court decisions, agency guidelines, principles of law and orders of any foreign, federal, state or local government and any other Governmental Authority, and including environmental laws, energy and public utility laws and regulations, health codes, occupational safety and health regulations and laws respecting employment practices, employee documentation, terms and conditions of employment and wages and hours.

     “ Representative ” means, with respect to any Person, any officer, director, principal, attorney, agent, employee or other representative of such Person.

     “ Second MAA Subsequent Payment Date ” means the date upon which an EMEA Approval of an MAA is obtained by or on behalf of Parent or any of its Affiliates or sublicensees for the use of a product containing the Compound in a tumor type other than the First MAA Indication, the receipt of such EMEA Approval being the “ Second MAA Milestone .” For the avoidance of doubt and for all purposes under this Agreement, small cell lung cancer and non-small cell lung cancer shall be considered distinct tumor types.

     “ Second NDA Subsequent Payment Date ” means the date upon which an FDA Approval of an NDA is obtained by or on behalf of Parent or any of its Affiliates or sublicensees for the use of a product containing the Compound in a tumor type other than the First NDA Indication, the receipt of such FDA Approval being the “ Second NDA Milestone .”

     “ Series A Financing Documents ” means each of (i) the Series A Preferred Stock Purchase Agreement, (ii) the Investor Rights Agreement, (iii) the Co-Sale Agreement, and (iv) the Voting Agreement, each dated as of August 4, 2006, between the Company and the parties listed on the signature pages thereto.

     “ Serious Adverse Event ” means any adverse drug experience occurring at any dose that results in any of the following outcomes: death, a life-threatening adverse drug experience, inpatient hospitalization or prolongation of existing hospitalization, a persistent or significant disability/ incapacity, or a congenital anomaly/ birth defect.

     “ Shares ” means, collectively, the shares of Common Stock and Preferred Stock.

     “ Straddle Period ” means a taxable period which begins prior to the Closing Date but ends after the Closing Date.

      “Subsequent Merger Consideration” means the sum of the First MAA Subsequent Payment Amount, the First NDA Subsequent Payment Amount, the Second MAA Subsequent Payment Amount and the Second NDA Subsequent Payment Amount.

     “ Subsidiary ” means (a) any corporation in an unbroken chain of corporations beginning with the Company if each of the corporations other than the last corporation in the unbroken chain then owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain, (b) any partnership in which the Company is a general partner or (c) any limited liability company, partnership or other entity in which the Company possesses a 50% or greater interest in the total capital or total income of such limited liability company, partnership or other entity.

     “ Tax ” (including with correlative meaning, the terms “ Taxes ” and “ Taxable ”) means (A) all taxes, duties, or similar governmental charges, levies, imposts, or withholdings (including net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, duties, charges, levies, imposts withholdings or charges of any kind whatsoever) whenever and by whatever Governmental Authority imposed, and whether of the United States or elsewhere, whether or not any such taxes, duties, charges, levies, imposts or withholdings are directly or primarily chargeable against or to the Company, together with in any such case any interest, fines, penalties, surcharges and charges incidental or relating to the imposing of any of such Taxes and any additions to tax or additional amounts with respect thereto, (B) any liability for payment of amounts described in clause (A) whether as a result of transferee liability, of being a member of an affiliated, consolidated, combined or unitary group for any period, or otherwise through operation of law, and (C) any liability for the payment of amounts described in clauses (A) or (B) as a result of any tax sharing, tax indemnity or tax allocation agreement or any other express or implied agreement to indemnify any other person.

     “ Tax Claim ” means any claim relating to Taxes that, if successful, might result in an indemnification payment pursuant to Section 8.2 .

     “ Tax Return ” means any return, declaration, report, statement, information statement and other document required to be filed with respect to Taxes.

     “ Taxable Period ” means any period prescribed by any Governmental Authority for which a Tax Return is required to be filled or a Tax is required to be paid.

     “ Territory ” means North America and Europe.

     “ Transaction Fees ” means fees and expenses incident to this Agreement and the transactions contemplated hereby, including legal and accounting fees, investment banking fees, and related disbursements in connection with any of the foregoing.

     “ Treasury Regulation ” or “ Treasury Regulation Section ” means the Treasury regulations promulgated under the Code.

     1.2. Terms Defined Elsewhere . The following is a list of additional terms used in this Agreement and a reference to the Section hereof in which such term is defined:

     1.3. Other Terms . Other terms may be defined elsewhere in the text of this Agreement and, unless otherwise indicated, shall have such meaning indicated throughout this Agreement.

     1.4. Interpretation . (a) In this Agreement, unless the context otherwise requires, references:

          (b) The table of contents and headings contained herein are for reference purposes only and do not limit or otherwise affect any of the provisions of this Agreement.

          (c) Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”

          (d) Whenever the words “herein” or “hereunder” are used in this Agreement, they shall be deemed to refer to this Agreement as a whole and not to any specific Section, unless otherwise indicated.

          (e) The terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa.

          (f) The terms “dollars” and “$” shall mean dollars of the United States of America.

          (g) It is understood and agreed that neither the specifications of any dollar amount in this Agreement nor the inclusion of any specific item in the Schedules or Exhibits is intended to imply that such amounts or higher or lower amounts, or the items so included or other items, are or are not material, and neither party shall use the fact of setting of such amounts or the fact of the inclusion of such item in the Schedules or Exhibits in any dispute or controversy between the parties as to whether any obligation, item or matter is or is not material for purposes hereof.

ARTICLE II.

THE MERGER

     2.1. The Merger . At the Effective Time (as defined below) and upon the terms and subject to the conditions of this Agreement and in accordance with the General Corporation Law of the State of Delaware (the “ DGCL ”), Merger Sub shall be merged with and into the Company (the “ Merger ”). Following the Merger, the Company shall continue as the surviving corporation (the “ Surviving Corporation ”) and the separate corporate existence of Merger Sub shall cease.

     2.2. Effective Time . Subject to the terms and conditions set forth in this Agreement, on the Closing Date (as defined below), a certificate of merger substantially in the form attached hereto as Exhibit A (the “ Merger Certificate ”), shall be duly executed and acknowledged by the Company and thereafter delivered to the Secretary of State of the State of Delaware for filing pursuant to the DGCL. The Merger shall become effective at such time as a properly executed copy of the Merger Certificate is duly filed with the Secretary of State in accordance with the DGCL or such later time as Parent and the Company may agree upon and as set forth in the Merger Certificate (the time the Merger becomes effective being referred to herein as the “ Effective Time ”).

     2.3. Closing of the Merger . The closing of the transactions contemplated hereby (the “ Closing ”) will take place at the offices of Latham & Watkins LLP, 12636 High Bluff Drive, Suite 400, San Diego, CA 92130, on the date hereof, or such later date as the parties may agree (the “ Closing Date ”).

     2.4. Effects of the Merger . From and after the Effective Time, the Surviving Corporation shall possess all the property, rights, privileges, immunities, powers and franchises and be subject to all of the debts, liabilities, obligations, restrictions, disabilities and duties of the Company and Merger Sub, all as provided under the DGCL.

     2.5. Certificate of Incorporation and Bylaws . The Certificate of Incorporation of Merger Sub in effect immediately prior to the Effective Time, the form of which is attached hereto as Exhibit B , shall be the Certificate of Incorporation of the Surviving Corporation until amended in accordance with Applicable Law. The bylaws of Merger Sub in effect immediately prior to the Effective Time, the form of which is attached hereto as Exhibit C , shall be the bylaws of the Surviving Corporation until amended in accordance with Applicable Law.

     2.6. Directors . The directors of Merger Sub at the Effective Time shall be the initial directors of the Surviving Corporation, each to hold office in accordance with the Certificate of Incorporation and bylaws of the Surviving Corporation until such director’s successor is duly elected or appointed and qualified.

     2.7. Officers . The officers of the Company at the Effective Time shall be the initial officers of the Surviving Corporation, each to hold office in accordance with the Certificate of Incorporation and bylaws of the Surviving Corporation until such officer’s successor is duly elected or appointed and qualified.

     2.8. Conversion of Shares; Treatment of Company Options .

          (a) Conversion of Shares . At the Effective Time, without any action on the part of Parent, Merger Sub or the Company or the holder of any capital stock of Parent, Merger Sub or the Company, all shares of common stock, par value $0.0001, of the Company (the “Common Stock” ) and shares of Series A convertible preferred stock, par value $0.0001, of the Company (the “Preferred Stock” ) (but excluding shares to be cancelled in accordance with Section 2.8(d) and shares that are Dissenting Shares) shall no longer be outstanding and shall be cancelled automatically and shall cease to exist, and each holder of a certificate representing any Shares shall cease to have any rights with respect thereto, except the right to receive, without interest, the applicable Merger Consideration, upon the surrender of such certificate in accordance with Section 2.10. Exhibit 2.8 hereof sets forth: (i) the name of each Stockholder and holder of a Company Option; (ii) the portion of the Initial Merger Consideration payable pursuant to this Section 2.8 to each Stockholder and holder of a Company Option at Closing assuming full compliance with the payment procedures contained in Section 2.10 (as set forth in column ii of Exhibit 2.8); (iii) the portion of the Initial Merger Consideration to be withheld from each Stockholder and holder of a Company Option pursuant to Section 2.10(a) in establishing the Escrow Account (as set forth in column iii of Exhibit 2.8) and the Equityholder Representative’s Fund (as set forth in column iv of Exhibit 2.8); (iv) the portion of the Initial Merger Consideration to be paid to each Stockholder and holder of a Company Option at Closing after deduction for the amounts set forth in (iii) above and any amounts owed to the Company by any Stockholder (as set forth in column v of Exhibit 2.8); (v) the amount to be paid to each Stockholder and each holder of a Company Option at Closing upon the Escrow Expiration Date, expressed as a percentage of the amount remaining in the Escrow Account at the Escrow Expiration Date (as set forth in column vi of Exhibit 2.8); (vi) the amount to be paid to each Stockholder and each holder of a Company Option at Closing upon the termination of the Equityholder Representative’s Fund, expressed as a percentage of the amount remaining in the Equityholder Representative’s Fund upon termination of the Equityholder Representative’s Fund (as set forth in column vi of Exhibit 2.8); (viii) the amount, expressed as a percentage, payable to each Stockholder and holder of a Company Option at Closing for the First MAA Subsequent Payment Amount, if any, after payment of the applicable Montgomery & Co., LLC fee (as set forth in column vii or viii, as applicable, of Exhibit 2.8); (ix) the amount, expressed as a percentage, payable to each Stockholder and holder of a Company Option at Closing for the First NDA Subsequent Payment Amount, if any after payment of the applicable Montgomery & Co., LLC fee (as set forth in column vii or viii, as applicable, of Exhibit 2.8); (x) the amount, expressed as a percentage, payable to each Stockholder and holder of a Company Option at Closing for the Second MAA Subsequent Payment Amount, if any, after payment of the

applicable Montgomery & Co., LLC fee (as set forth in column ix of Exhibit 2.8); and (xi) the amount, expressed as a percentage, payable to each Stockholder and holder of a Company Option at Closing for the Second NDA Subsequent Payment Amount, if any, after payment of the applicable Montgomery & Co., LLC fee (as set forth in column ix of Exhibit 2.8).

          (b) Treatment of Options . Effective immediately prior to the Effective Time, each unexpired and unexercised Company Option shall become fully vested and exercisable; provided, however, that the exercise of any accelerated portion of any such Company Option shall be subject to and conditioned upon the consummation of the Merger. As of the Effective Time, by virtue of the Merger and without any action on the part of the Company or the holders of Company Options, each unexpired and unexercised Company Option shall terminate, be cancelled and cease to be outstanding and in exchange therefor, each holder of a Company Option shall, have the right to receive an amount in cash from Parent in respect thereof as set forth in Exhibit 2.8 equal to the product of (x) the total number of shares of Common Stock subject or related to such Company Option, and (y) the excess, if any, of the Initial Merger Consideration applicable to the Common Stock over the exercise price or purchase price, as the case may be, per share of Common Stock subject or related to such Company Option (subject to any applicable withholding taxes, the “ Cash Option Payment ”) plus the Subsequent Merger Consideration, if any, to be paid on such Company Option in accordance with Sections 2.10(e), (f), (g) and (h) as if such Company Option had been exercised and converted into Common Stock immediately prior to the Effective Time.

          (c) At the Effective Time, each of the 100 outstanding shares of the common stock, $0.0001 par value, of Merger Sub shall be converted into one share of common stock, $0.0001 par value, of the Surviving Corporation.

          (d) At the Effective Time, each share of Common Stock and Preferred Stock held in the treasury of the Company or owned by the Company, Parent or Merger Sub immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holder thereof, be canceled and extinguished and no payment shall be made with respect thereto.

          (e) Notwithstanding anything herein to the contrary, including Exhibit 2.8 , the aggregate Initial Merger Consideration payable by Parent pursuant to this Agreement shall not exceed $59,000,000.

     2.9. Escrow Amount .

          (a) Escrow Amount . At the Closing, ten percent (10%) of the Initial Merger Consideration (the “ Escrow Amount ”) shall be deposited into an escrow account (the “ Escrow Account ”) to be established by Parent with JPMorgan Chase Bank, N.A. (the “ Escrow Agent ”) to be held by the Escrow Agent, pursuant to the terms of an escrow agreement mutually agreeable to Parent and the Company (the “ Escrow Agreement ”), to serve as a source of payment and remedy for any claim for Damages for which any Parent Indemnified Party is entitled to recovery pursuant to Article VIII .

          (b) Release of Escrow Amount . Promptly following the Escrow Expiration Date, the Escrow Agent shall distribute to Paying Agent, who shall distribute to the Participating Rights Holders, in accordance with the percentage amounts to which each Participating Rights Holder is entitled under this Agreement and the Escrow Agreement as set forth on Exhibit 2.8 , the Escrow Amount then remaining in the Escrow Account minus an amount equal to the aggregate dollar amount of claims for Damages made by all Parent Indemnified Parties pursuant to Section 8.2(a)(i) hereof (the “ Aggregate Outstanding Claims ”) which are then outstanding and unresolved (such amount of the retained Escrow Amount, as it may be further reduced after the Escrow Expiration Date by distributions to Participating Rights Holders as set forth below and recoveries by Parent Indemnified Parties pursuant to Section 8.2(a)(i) hereof and the Escrow Agreement, the “ Retained Escrow Amount ”). For purposes of clarification, in the event that the amount of the Aggregate Outstanding Claims exceeds the remaining Escrow Amount, all the remaining Escrow Amount shall be retained in the Escrow Account as the Retained Escrow Amount. In the event and to the extent that after the Escrow Expiration Date any outstanding claim made by any Parent Indemnified Party pursuant to Section 8.2(a)(i) hereof is resolved against such Parent Indemnified Party, the Escrow Agent shall distribute to the Paying Agent, who shall distribute to the Participating Rights Holders, in accordance with the percentage amounts to which each Participating Rights Holder is entitled under this Agreement and the Escrow Agreement, as set forth on Exhibit 2.8 , an aggregate amount of the Retained Escrow Amount equal to the amount of the outstanding claim resolved against such Parent Indemnified Party; provided, however, that such distribution shall only be made to the extent that the Retained Escrow Amount remaining after such distribution would be sufficient to cover the amount of the Aggregate Outstanding Claims that are still unresolved at such time. In the event and to the extent that after the Escrow Expiration Date any outstanding claim made by any Parent Indemnified Party pursuant to Section 8.2(a)(i) hereof is resolved in favor of such Parent Indemnified Party, such Parent Indemnified Party shall be entitled to recover pursuant to Section 8.2(a)(i) hereof an amount equal to the amount of the outstanding claim resolved in favor of such Parent Indemnified Party.

          (c) Escrow Agent Fees and Expenses . Any fees and expenses of the Escrow Agent shall be paid by Parent. During the period in which the Escrow Amount (including any Retained Escrow Amount) is retained in the Escrow Account, all interest or other income earned from the investment of the Escrow Amount (the “ Escrow Earnings ”) shall be retained as additional amounts in the Escrow Account.

     2.10. Distribution of the Merger Consideration .

          (a) At the Closing, Parent shall deliver to the Paying Agent an amount (the “ Closing Amount ”) equal to the Initial Merger Consideration, less the Escrow Amount and less the Equityholder Representative Fund of Two Hundred Thousand Dollars ($200,000) to be deposited with an escrow agent for the purpose of paying the expenses if any, incurred by the Equityholder Representative in connection with this Agreement (the “ Equityholder Representative’s Fund ”), and the Paying Agent shall, at or as soon as reasonably practicable after the Effective Time, subject to the provisions of the Paying Agent Agreement, pay and distribute to each Participating Rights Holder the portion of the Closing Amount set forth on Exhibit 2.8 for such Participating Rights Holder.

          (b) Each holder of Shares that have been converted into a right to receive a portion of the Merger Consideration, upon surrender to the Paying Agent of a certificate or certificates formerly representing such Shares, together with a properly completed letter of transmittal covering such Shares in the form attached hereto as Exhibit D , will be entitled to receive from the Paying Agent payment of the portion of the Closing Amount set forth on Exhibit 2.8 opposite such holder’s name in column v. Each certificate that is surrendered pursuant to this Section 2.10(b) shall forthwith be canceled. Until so surrendered and except as otherwise set forth in Section 2.12 , each such certificate shall, after the Effective Time, represent for all purposes, only the right to receive the applicable portion of the Merger Consideration. No interest will be paid or will accrue on such portion of the Initial Merger Consideration.

          (c) After the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, certificates formerly representing Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the portion of the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article II .

          (d) In the event that any certificate evidencing Shares shall have been lost, stolen or destroyed, the Paying Agent shall pay in exchange therefor, upon making of an affidavit of that fact by the holder thereof, a portion of the Closing Amount due in respect of such Shares that is payable pursuant to this Agreement; provided, however, that the Paying Agent or Parent may, in its respective discretion and as a condition precedent to the issuance thereof, require the delivery of a suitable bond or indemnity agreement by the owner of such lost, stolen or destroyed certificate.

          (e) Upon the First MAA Subsequent Payment Date, Parent shall deliver an aggregate payment of $12,500,000 (the “First MAA Subsequent Payment Amount” ), with such payment allocated to (i) the holders of Shares and holders of Company Options who have complied with the procedures set forth in this Section 2.10 , with each such holder’s portion of the First MAA Subsequent Payment Amount determined in accordance with Section 2.8 and (ii) Montgomery & Co., LLC as set forth in Exhibit 2.8 .

          (f) Upon the First NDA Subsequent Payment Date, Parent shall deliver an aggregate payment of $12,500,000 (the “First NDA Subsequent Payment Amount" ), with such payment allocated to (i) the holders of Shares and holders of Company Options who have complied with the procedures set forth in this Section 2.10 , with each such holder’s portion of the First NDA Subsequent Payment Amount determined in accordance with Section 2.8 and (ii) Montgomery & Co., LLC as set forth in Exhibit 2.8 .

          (g) Upon the Second MAA Subsequent Payment Date, Parent shall deliver an aggregate payment of $10,000,000 (the “Second MAA Subsequent Payment Amount" ), with such payment allocated to (i) the holders of Shares and holders of Company Options who have complied with the procedures set forth in this Section 2.10 , with each such holder’s portion of the Second MAA Subsequent Payment Amount determined in accordance with Section 2.8 and (ii) Montgomery & Co., LLC as set forth in Exhibit 2.8 .

          (h) Upon the Second NDA Subsequent Payment Date, Parent shall deliver an aggregate payment of $10,000,000 (the “Second NDA Subsequent Payment Amount" ), with

such payment allocated to (i) the holders of Shares and holders of Company Options who have complied with the procedures set forth in this Section 2.10 , with each such holder’s portion of the Second NDA Subsequent Payment Amount determined in accordance with Section 2.8 and (ii) Montgomery & Co., LLC as set forth in Exhibit 2.8 .

          (i) Neither Parent nor the Surviving Corporation shall be liable to any holder of Shares for any portion of the Merger Consideration delivered to a public official pursuant to any applicable abandoned property escheat or similar law. If any certificate formerly representing Shares shall not have been surrendered prior to eighteen months after the Effective Time (or immediately prior to such earlier date on which any Merger Consideration would otherwise escheat to or become the property of any Governmental Authority), any such Merger Consideration shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.

     2.11. Dissenting Shares . Any holder of Shares issued and outstanding immediately prior to the Effective Time with respect to which appraisal and/or dissenter’s rights, if any, are available by reason of the Merger pursuant to Section 262 of the DGCL (“ Company Dissenting Shares ”) shall not be entitled to receive any portion of the Merger Consideration pursuant to Section 2.8 , unless such holder fails to perfect, effectively withdraws or loses its appraisal rights and/or rights to dissent from the Merger under the DGCL. Such holder shall be entitled to receive only such rights as are granted under Section 262 of the DGCL. If any such holder fails to perfect, effectively withdraws or loses such appraisal and/or dissenter’s rights under the DGCL, such Company Dissenting Shares shall thereupon be deemed to have been converted as of the Effective Time into the right to receive (without interest) that portion of the Merger Consideration due pursuant to the provisions of Section 2.8 . Any payments made with respect to Company Dissenting Shares shall be made solely by the Surviving Corporation, and no funds or other property have been or shall be provided by Parent, Merger Sub or any of Parent’s Affiliates for such payment.

     2.12. Withholding Rights . Each of the Surviving Corporation and Parent shall be entitled to deduct and withhold from the Merger Consideration otherwise payable pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of United States federal, state or local, or any foreign, Tax law. To the extent that amounts are so withheld and paid over to or deposited with the relevant Governmental Authority by Parent or the Surviving Corporation, as the case may be, such amounts shall be treated for all purposes of this Agreement as having been paid to the applicable holder of Shares or Company Options in respect of which Parent made such deduction and withholding.

     2.13. Equityholder Representative .

          (a) Appointment . As used in this Agreement, the term “Equityholder Representative” shall mean Stuart J. M. Collinson, or any Person appointed as a successor Equityholder Representative pursuant to Section 2.13(b) hereof. Effective upon Closing, without any further action by any other Person, the Equityholder Representative shall be appointed and constituted in respect of each Participating Rights Holder, as his, her or its agent, to act in his,

her or its name, place and stead, as such Participating Rights Holder’s attorney-in-fact, as more fully set forth in Section 2.13(c) .

          (b) Election and Replacement . From and after the Effective Time until the date when all obligations under this Agreement have been discharged (including all indemnification obligations under Article VIII hereof), Participating Rights Holders who are entitled to receive in excess of 50% of the Initial Merger Consideration (the “ Majority ”), may, from time to time upon written notice to the Equityholder Representative and Parent, remove any Equityholder Representative (including any appointed by Parent as provided below) or appoint a new Equityholder Representative to fill any vacancy created by the death, incapacitation, resignation or removal of any Equityholder Representative. If the Majority is required to but has not appointed a successor Equityholder Representative to fill any vacancy within twenty (20) Business Days from written notice from Parent to all Participating Rights Holders and a request by Parent to appoint a successor Equityholder Representative, Parent shall have the right to appoint an Equityholder Representative to fill any such vacancy from the directors of the Company prior to the Merger, and shall use commercially reasonable efforts to advise all Participating Rights Holders of such appointment by written notice; provided , however , that a Majority shall thereafter retain the right to remove the Equityholder Representative or appoint a new Equityholder Representative pursuant to this Section 2.13 . A copy of any appointment by the Majority of any successor Equityholder Representative shall be provided to Parent promptly after it shall have been effected. Each successor Equityholder Representative shall have all of the power, authority, rights and privileges conferred by this Agreement upon the original Equityholder Representative, and the term “Equityholder Representative” as used herein shall be deemed to include any successor Equityholder Representative.

          (c) Authority . The Equityholder Representative shall be authorized (i) to determine the occurrence of any Milestone, (ii) to resolve any disputes related to the occurrence of any Milestone, including the authorization to demand mediation or arbitration in accordance with the terms of this Agreement and to comply with orders of courts and awards of arbitrators related thereto, (iii) to discuss, negotiate, resolve and fully and finally settle on behalf of the Participating Rights Holders any claims for indemnification by Parent under Article VIII hereof, including the authorization to demand mediation in accordance with the terms of this Agreement and to comply with orders of courts with respect to any such claim for indemnification, (iv) to take any action, including litigating, defending or enforcing any actions, and to make, deliver and sign any certificate, notice, consent or instrument required or permitted to be made or delivered under this Agreement or under the documents referred to in this Agreement (an “ Instrument ”) which the Equityholder Representative determines in his or her discretion to be necessary, appropriate or desirable, and, in connection therewith ( provided however if any individual Participating Rights Holder is named in such litigation, the Participating Rights Holder shall have the right to tender defense), (v) to hire or retain, at the sole expense of the Participating Rights Holders, such counsel, investment bankers, accountants, representatives and other professional advisors as he or she determines in his or her sole and absolute discretion to be necessary, advisable or appropriate in order to carry out and perform his or her rights and obligations hereunder, (vi) to act as disbursement agent for any payments to the Company Indemnified Parties pursuant to Article VIII, (vii) to act as disbursement agent for any payments to the D&O Indemnified Parties pursuant to Section 6.1 , and (viii) to receive all documents, certificates and notices and make all determinations on behalf of the Participating Rights Holders

required under this Agreement. A decision, act, consent or instruction of the Equityholder Representative shall constitute a decision of the Participating Rights Holders, and shall be final, binding and conclusive upon the Participating Rights Holders, as the case may be. Any party receiving an Instrument from the Equityholder Representative shall have the right to rely in good faith upon such Instrument, and to act in accordance with the Instrument without independent investigation. The Equityholder Representative shall promptly, and in any event within five Business Days, provide written notice to each Participating Rights Holder of any action taken on behalf of the Participating Rights Holders by the Equityholder Representative pursuant to the authority delegated to the Equityholder Representative under this Section 2.13 .

          (d) No Liability of Equityholder Representative or Parent . Neither the Equityholder Representative (nor any of the directors, officers, agents or employees of Equityholder Representative, if applicable) shall be liable to any Participating Rights Holder or any other Person for any error of judgment, or any action taken, suffered or omitted to be taken, under this Agreement, except in the case of the Equityholder Representative’s gross negligence or willful misconduct. The Equityholder Representative may consult with legal counsel, independent public accountants and other experts selected by the Equityholder Representative and shall not be liable for any action taken or omitted to be taken in good faith in accordance with the advice of such counsel, accountants or experts. As to any matters not expressly provided for in this Agreement, the Equityholder Representative shall not be required to exercise any discretion or take any action. Parent (and the Surviving Corporation) shall have no Liability to any of the Participating Rights Holders or otherwise arising out of the acts or omissions of the Equityholder Representative or any disputes among the Participating Rights Holders or between the Participating Rights Holders and the Equityholder Representative. Parent may rely entirely on its dealings with, and notices to and from, the Equityholder Representative to satisfy any obligations it might have under this Agreement or otherwise to the Participating Rights Holders.

          (e) Indemnity; Fees, Costs and Expenses . Each Participating Rights Holder shall, only to the extent of and in proportion to the portion of the Merger Consideration received by such Participating Rights Holder, indemnify and defend the Equityholder Representative and hold the Equityholder Representative harmless against any loss, damage, cost, liability or expense incurred without fraud, gross negligence or willful misconduct by the Equityholder Representative and arising out of or in connection with the acceptance, performance or administration of the Equityholder Representative’s duties under this Agreement. Any liabilities, losses, penalties, fines, claims, damages, out-of-pocket costs or expenses incurred by or reasonably expected to be incurred by the Equityholder Representative in connection with the acceptance, performance and administration of his or her duties as the Equityholder Representative pursuant to this Agreement (including the hiring of legal counsel, accountants or auditors and other advisors pursuant to the terms of this Agreement but excluding any of the foregoing arising out of the Equityholder Representative’s fraud, gross negligence or willful misconduct) and all fees payable hereunder to the Equityholder Representative by the Participating Rights Holders (collectively, the “ Equityholder Representative’s Fees and Costs ”), shall be paid as follows: (i) first by recourse to the Equityholder Representative’s Fund, and (ii) if such amounts held in the Equityholder Representative’s Fund are insufficient to pay for such Equityholder Representative’s Fees and Costs, then by recourse to the Subsequent Merger Consideration and (iii) if such amounts are insufficient to pay such Equityholder Representative’s Fees and Costs, then by recourse directly to the Participating Rights Holders (in

proportion to the pro rata portion of the Closing Amount otherwise to be received by such Participating Rights Holders).

          (f) Compensation . In consideration for the services to be rendered pursuant to this Agreement, the Participating Rights Holders shall pay the Equityholder Representative fees in the amount of $500 per hour in connection with the duties authorized pursuant to Section 2.13(c). The Equityholder Representative shall keep itemized records of all fees, costs and expenses incurred in connection with the acceptance, performance and administration of his duties pursuant to this Agreement and, at the written request of a Participating Rights Holder, shall promptly make such records available for review. The Equityholder Representative shall be responsible for all withholding and deductions for taxes and shall pay, when and as due, any and all taxes incurred as a result of his compensation hereunder, including estimated taxes, and if reasonably requested by a Participating Rights Holder, provide proof of said payments. The Equityholder Representative further agrees to indemnify and hold harmless in all respects the Participating Rights Holders with respect to withholding or deductions of payment of such amounts and with respect to all costs, expenses or penalties that may be assessed in the event of the Equityholder Representative’s failure to comply with Applicable Law, Regulations and governing agreements in making such deductions and corresponding payments.

          (g) Access to Information . Parent shall provide to the Equityholder Representative on a quarterly basis a written report concerning the status of any unachieved Milestones. Parent shall promptly (but no later than five Business Days following the achievement of a Milestone) notify the Equityholder Representative of the achievement of any Milestone. At the request of the Equityholder Representative, upon reasonable notice and at a reasonable time and location on no more than a semi-annual basis, the Equityholder Representative shall be entitled to ask, and have answered, reasonable questions arising from their review of the quarterly updates provided by Parent.

          (h) Dispute Resolution .

               (1) In the event that the Equityholder Representative shall dispute the occurrence of a Milestone or a request for indemnification or setoff under Article VIII, then the Equityholder Representative shall provide written notice to Parent (the “ Dispute Notice ”) specifying the amount disputed and the basis for the dispute, together with supporting documentation reflecting the analysis and justification thereof. Parent and the Equityholder Representative shall thereafter attempt to resolve the dispute as set forth in this Section 2.13(h).

               (2) The Participating Rights Holders and Parent shall attempt to resolve any dispute arising out of or relating to this Agreement promptly by negotiation in good faith between an agent chosen by the Equityholder Representative and an executive officer of Parent who has authority to settle the dispute. Each Party shall give the other party involved written notice of any dispute not resolved in the ordinary course of business. Within seven (7) days after delivery of such notice, the party receiving notice shall submit to the other a written response thereto. The notice and the response shall include: (i) a statement of each party’s position(s) regarding the matter(s) in dispute and a summary of arguments in support thereof, and (ii) the name and title of the executive officer who will represent Parent and any other Person who will accompany that executive officer, in the case of Parent, or the name of the agent

who will represent the Participating Rights Holders and any other Person who will accompany that agent, in the case of the Participating Rights Holders.

          (3) Within fourteen (14) days after delivery of the notice, the designated agent chosen by the Equityholder Representative and the designated executive officer of Parent shall meet at a mutually acceptable time and place, and thereafter, as often as they reasonably deem necessary, to attempt to resolve the dispute. All reasonable requests for information made by one party to the other shall be honored in a timely fashion. All negotiations conducted pursuant to this Section 2.13(h) (and any of the parties’ submissions in contemplation hereof) shall be kept confidential by the parties and shall be treated by the parties and their representatives as compromise and settlement negotiations under the Federal Rules of Evidence and any similar state rules.

          (4) With regard to a dispute regarding the occurrence of a Milestone, if the parties are unable to reach an agreement within thirty (30) days following the initiation of discussions between them, such dispute shall be finally settled by binding arbitration. Any arbitration hereunder shall be conducted under the rules of the American Arbitration Association. The arbitration shall be conducted before one (1) arbitrator chosen by mutual agreement of the parties. If the parties cannot agree on the choice of the arbitrator within a period of thirty (30) days after submission, then the arbitrator shall be appointed by the Court of Arbitration of the American Arbitration Association. Any such arbitration shall be held in San Francisco, California. The arbitrator shall have the authority to grant specific performance, and to allocate between the parties the costs of arbitration in such equitable manner as he or she may determine. The arbitral decision shall be final and binding upon the parties.

          (5) With regard to all other disputes, including those regarding a request for indemnification or setoff under Article VIII, if the parties are unable to reach an agreement within thirty (30) days following the initiation of discussions between them, the parties shall thereafter enter into mediation with one (1) mediator chosen by mutual agreement of the parties. If the parties are unable to reach an agreement within fifteen (15) days after entering into mediation, the dispute shall be resolved pursuant to Sections 9.14 and 9.15 hereof.

     2.14. Transaction Fees . On the day prior to the Closing Date, the Company shall provide to Parent an itemized and complete schedule of the Transaction Fees of the Company and, to the extent agreed or required to be paid by the Company, the Stockholders (the “ Transaction Fee Schedule ”). The Company shall pay the Transaction Fees set forth on the Transaction Fee Schedule prior to the Closing Date.

ARTICLE III.

CLOSING DELIVERIES

     3.1. Deliveries by the Company at the Closing . At the Closing, the Company shall deliver, or cause to be delivered:

          (a) certified organizational documents and certificates of good standing (i) issued by the Secretary of State of the State of Delaware for the Company, and (ii) issued by the states in which the Company is qualified to do business as a foreign corporation;

          (b) a certificate, dated as of the Closing Date and signed by the Company’s Chief Financial and Administrative Officer, as to the fulfillment of the conditions set forth in Section 7.2;

          (c) a certificate executed by the Secretary of the Company, dated as of the Closing Date, certifying resolutions adopted by the Company’s board of directors and stockholders relating to the transactions contemplated by this Agreement;

          (d) a copy of the Escrow Agreement, executed by the Equityholder Representative;

          (e) an executed copy of that certain Escrow Agreement, dated as of the date hereof, by and between the Equityholder Representative and JPMorgan Chase Bank, N.A.; and

          (f) such other documents and items as Parent may reasonably request.

     3.2. Deliveries by Parent and Merger Sub at the Closing . At the Closing, Parent and Merger Sub shall deliver, or cause to be delivered:

          (a) the Closing Amount to the Paying Agent to be distributed pursuant to Section 2.8 ;

          (b) the Equityholder Representative’s Fund to the JPMorgan Chase Bank, N.A.;

          (c) the Escrow Amount to the Escrow Agent to be held pursuant to the terms of the Escrow Agreement;

          (d) a certificate, dated as of the Closing Date and signed by an officer of Parent, as to the fulfillment of the conditions set forth in Section 7.1 ;

          (e) a copy of the Escrow Agreement, executed by Parent;

          (f) a copy of the Paying Agent Agreement, executed by Parent; and

          (g) such other documents and items as the Company may reasonably request.

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES OF
THE COMPANY

     As a material inducement to Parent and Merger Sub to enter into this Agreement, except as disclosed in the disclosure schedules delivered to Parent and Merger Sub by the Company

concurrently herewith (the “ Company Disclosure Schedule ”) (it being understood that the Company Disclosure Schedule shall be arranged in sections corresponding to the sections contained in this Agreement, and the disclosures in any section of the Company Disclosure Schedule shall qualify the representations in the corresponding section of this Article IV and shall be deemed made in any other section or sections of the Company Disclosure Schedule to the extent the relevance of such disclosures is readily apparent from the text of such disclosure), the Company hereby makes the following representations and warranties to Parent and Merger Sub.

     4.1. Organization of the Company . The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware with full corporate