AGREEMENT AND PLAN OF MERGER

Agreement and Plan of Merger

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MASTERPIECE ACQUISITION CORP. | MEDICIS PHARMACEUTICAL CORPORATION | INAMED CORPORATION

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Title: AGREEMENT AND PLAN OF MERGER
Governing Law: Delaware Date: 3/21/2005
Industry: Biotechnology and Drugs Law Firm: Latham & Watkins LLP,Morrison & Foerster LLP Sector: Healthcare

AGREEMENT AND PLAN OF MERGER

, Parties: masterpiece acquisition corp. , medicis pharmaceutical corporation , inamed corporation

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EXECUTION COPY

AGREEMENT AND PLAN OF MERGER

dated as of

March 20, 2005

by and among

MEDICIS PHARMACEUTICAL CORPORATION,

MASTERPIECE ACQUISITION CORP.,

and

INAMED CORPORATION

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TABLE OF CONTENTS

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Page

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ARTICLE I THE MERGER..............................................................................................1

Section 1.01. The Merger............................................................................1

Section 1.02. Closing...............................................................................1

Section 1.03. Effect of the Merger..................................................................2

Section 1.04. Certificate of Incorporation of the Surviving Corporation.............................2

Section 1.05. Bylaws of the Surviving Corporation...................................................2

Section 1.06. Directors and Officers of the Surviving Corporation...................................2

ARTICLE II EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF

CERTIFICATES...................................................................................2

Section 2.01. Conversion of Securities..............................................................2

Section 2.02. Adjustment to Merger Consideration....................................................4

Section 2.03. Dissenting Stockholders...............................................................5

Section 2.04. Exchange of Certificates..............................................................6

Section 2.05. Stock Transfer Books..................................................................8

Section 2.06. Stock Options.........................................................................9

Section 2.07. Employee Stock Purchase Plan.........................................................10

Section 2.08. Restricted Stock.....................................................................11

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................................................11

Section 3.01. Organization and Qualification.......................................................12

Section 3.02. Capitalization.......................................................................12

Section 3.03. Subsidiaries.........................................................................14

Section 3.04. Authority; Non-Contravention; Approvals..............................................14

Section 3.05. Reports and Financial Statements.....................................................16

Section 3.06. Absence of Undisclosed Liabilities...................................................17

Section 3.07. Litigation...........................................................................17

Section 3.08. Absence of Certain Changes or Events.................................................18

Section 3.09. Registration Statement, Etc..........................................................18

Section 3.10. Compliance with Applicable Law; Permits..............................................19

Section 3.11. Company Material Contracts; Defaults.................................................20

Section 3.12. Taxes................................................................................21

Section 3.13. Employee Benefit Plans; ERISA........................................................23

Section 3.14. Labor and Other Employment Matters...................................................25

Section 3.15. Environmental Matters................................................................26

Section 3.16. Intellectual Property................................................................27

Section 3.17. Real Property........................................................................30

Section 3.18. Regulatory Compliance................................................................32

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Section 3.19. Insurance............................................................................34

Section 3.20. Opinion of Financial Advisor.........................................................34

Section 3.21. Brokers and Finders..................................................................34

Section 3.22. Foreign Corrupt Practices and International Trade Sanctions..........................35

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT..............................................................35

Section 4.01. Organization and Qualification.......................................................35

Section 4.02. Capitalization.......................................................................35

Section 4.03. Subsidiaries.........................................................................37

Section 4.04. Authority; Non-Contravention; Approvals..............................................37

Section 4.05. Reports and Financial Statements.....................................................39

Section 4.06. Absence of Undisclosed Liabilities...................................................40

Section 4.07. Litigation...........................................................................40

Section 4.08. Absence of Certain Changes or Events.................................................41

Section 4.09. Registration Statement, Etc..........................................................41

Section 4.10. Compliance with Applicable Law; Permits..............................................42

Section 4.11. Parent Material Contracts; Defaults..................................................43

Section 4.12. Taxes................................................................................44

Section 4.13. Employee Benefit Plans; ERISA........................................................46

Section 4.14. Labor and Other Employment Matters...................................................47

Section 4.15. Environmental Matters................................................................49

Section 4.16. Intellectual Property................................................................49

Section 4.17. Real Property........................................................................52

Section 4.18. Regulatory Compliance................................................................53

Section 4.19. Insurance............................................................................56

Section 4.20. Opinion of Financial Advisor.........................................................56

Section 4.21. Brokers and Finders..................................................................56

Section 4.22. Foreign Corrupt Practices and International Trade Sanctions..........................56

Section 4.23. Financing............................................................................57

Section 4.24. Interim Operations of Merger Sub.....................................................57

ARTICLE V COVENANTS..............................................................................................57

Section 5.01. Conduct of Business by the Company Pending the Closing...............................57

Section 5.02. Conduct of Business by Parent Pending the Closing....................................61

Section 5.03. No Solicitation by the Company.......................................................63

Section 5.04. No Solicitation by Parent............................................................66

Section 5.05. Access to Information; Confidentiality...............................................68

Section 5.06. Employee Benefits....................................................................70

Section 5.07. Registration Statement; Joint Proxy Statement; Stockholder Meetings;

Listing of Shares..................................................................71

Section 5.08. Section 16 Matters...................................................................72

Section 5.09. Public Announcements.................................................................73

Section 5.10. Expenses and Fees....................................................................73

Section 5.11. Agreement to Cooperate...............................................................75

Section 5.12. Directors' and Officers' Indemnification.............................................77

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Section 5.13. Rule 145.............................................................................78

Section 5.14. Tax Free Merger......................................................................78

Section 5.15. Stockholder Litigation...............................................................79

Section 5.16. Control of Other Party's Business....................................................79

Section 5.17. Rights Agreements....................................................................80

Section 5.18. Board of Directors...................................................................80

Section 5.19. Financing............................................................................80

Section 5.20. Further Assurances...................................................................81

ARTICLE VI CONDITIONS TO THE MERGER..............................................................................82

Section 6.01. Conditions to the Obligations of Each Party..........................................82

Section 6.02. Conditions to the Obligations of Parent..............................................83

Section 6.03. Conditions to the Obligations of the Company.........................................84

ARTICLE VII TERMINATION..........................................................................................84

Section 7.01. Termination..........................................................................84

Section 7.02. Effect of Termination................................................................86

ARTICLE VIII MISCELLANEOUS.......................................................................................87

Section 8.01. Non-Survival of Representations and Warranties.......................................87

Section 8.02. Notices..............................................................................87

Section 8.03. Defined Terms........................................................................88

Section 8.04. Interpretation.......................................................................98

Section 8.05. Miscellaneous........................................................................98

Section 8.06. Counterparts.........................................................................99

Section 8.07. Amendments; Extensions...............................................................99

Section 8.08. Entire Agreement.....................................................................99

Section 8.09. Severability........................................................................100

Section 8.10. Specific Performance................................................................100

Section 8.11. Disclosure..........................................................................100

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Exhibits

Exhibit A -- Form of Affiliate Letter

Exhibit B -- Tax Opinion Certificate of Parent and Merger Sub

Exhibit C -- Tax Opinion Certificate of the Company

iii

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AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER, dated as of March 20, 2005 (this

"AGREEMENT"), by and among Medicis Pharmaceutical Corporation, a Delaware

corporation ("PARENT"), Masterpiece Acquisition Corp., a Delaware corporation

and wholly-owned subsidiary of Parent ("MERGER SUB"), and Inamed Corporation, a

Delaware corporation (the "COMPANY").

WHEREAS, the respective Boards of Directors of Parent, Merger Sub

and the Company have approved, and deem it advisable and in the best interests

of their respective stockholders to consummate, the merger of the Company with

and into the Merger Sub (the "MERGER") upon the terms and subject to the

conditions of this Agreement and in accordance with the Delaware General

Corporation Law (the "DGCL");

WHEREAS, for federal income tax purposes, Parent, Merger Sub and the

Company intend that the Merger qualify as a reorganization within the meaning of

Section 368(a) of the Internal Revenue Code of 1986, as amended (the "CODE"),

and that this Agreement shall be, and hereby is, adopted as a plan of

reorganization for purposes of Section 368(a) of the Code; and

WHEREAS, certain capitalized terms used herein are defined in

Section 8.03;

NOW, THEREFORE, in consideration of the foregoing and the respective

representations, warranties, covenants and agreements set forth in this

Agreement and intending to be legally bound hereby, the parties agree as

follows:

ARTICLE I

THE MERGER

Section 1.01. The Merger. Upon the terms and subject to the

satisfaction or waiver of the conditions set forth in this Agreement, and in

accordance with the DGCL, the Company shall be merged with and into Merger Sub

at the Effective Time. Following the Effective Time, the separate corporate

existence of the Company shall cease and Merger Sub shall continue as the

surviving corporation of the Merger (the "SURVIVING CORPORATION").

Section 1.02. Closing. The closing of the Merger (the "CLOSING")

shall take place on the second Business Day after the satisfaction or waiver

(subject to applicable Law) of the conditions set forth in Article VI (excluding

conditions that, by their nature, cannot be satisfied until the Closing Date,

but subject to the satisfaction or, to the extent provided by Law and this

Agreement, waiver of those conditions), unless this Agreement has been

terminated pursuant to its terms or unless another time or date is agreed to in

writing by the parties hereto (the actual date of the Closing being referred to

herein as the "CLOSING DATE"). The Closing shall be held at the offices of

Latham & Watkins LLP, 650 Town Center Drive, 20th Floor, Costa Mesa, California

92626, unless another place is agreed to in writing by the parties hereto.

Subject to the provisions of this Agreement, as soon as practicable on the

Closing Date, the parties shall file a certificate of merger (the "CERTIFICATE

OF MERGER") executed in accordance

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with the relevant provisions of the DGCL and shall make all other filings or

recordings required under the DGCL. The Merger shall become effective at such

time as the Certificate of Merger is duly filed with the Secretary of State of

the State of Delaware, or at such later time as Parent and the Company shall

agree and specify in the Certificate of Merger (the time the Merger becomes

effective being the "EFFECTIVE TIME").

Section 1.03. Effect of the Merger. At the Effective Time, the

effect of the Merger shall be as provided in the applicable provisions of the

DGCL. Without limiting the generality of the foregoing, at the Effective Time,

except as otherwise provided herein, all the property, rights, privileges,

powers and franchises of the Company and Merger Sub shall vest in the Surviving

Corporation, and all debts, Liabilities and duties of the Company and Merger Sub

shall become the debts, Liabilities and duties of the Surviving Corporation.

Section 1.04. Certificate of Incorporation of the Surviving

Corporation. The certificate of incorporation of Merger Sub, as in effect

immediately prior to the Effective Time, shall be the certificate of

incorporation of the Surviving Corporation until thereafter changed or amended

as provided therein, by the DGCL or by applicable Law, except that Article I of

the certificate of incorporation of the Surviving Corporation shall be amended

and restated in its entirety to read as follows: "The name of the corporation

shall be Inamed Corporation."

Section 1.05. Bylaws of the Surviving Corporation. At and after the

Effective Time, the bylaws of Merger Sub, as in effect immediately prior to the

Effective Time, shall be the bylaws of the Surviving Corporation, until amended

as provided therein, by the DGCL or by applicable Law.

Section 1.06. Directors and Officers of the Surviving Corporation.

(a) The directors of Merger Sub immediately prior to the Effective

Time shall be the initial directors of the Surviving Corporation and shall hold

office from the Effective Time until their respective successors are duly

elected or appointed and qualified in the manner provided in the certificate of

incorporation or bylaws of the Surviving Corporation or as otherwise provided by

Law.

(b) The officers of Merger Sub immediately prior to the Effective

Time shall be the initial officers of the Surviving Corporation and shall hold

office from the Effective Time until their respective successors are duly

elected or appointed and qualified in the manner provided in the certificate of

incorporation or bylaws of the Surviving Corporation or as otherwise provided by

Law.

ARTICLE II

EFFECT OF THE MERGER ON THE CAPITAL STOCK OF

THE CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES

Section 2.01. Conversion of Securities.

(a) At the Effective Time, by virtue of the Merger and without any

action on the part of the Company, Parent, Merger Sub or any holder of any

shares of common stock, par

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value $0.01 per share, of the Company ("COMPANY COMMON STOCK") or any capital

stock of Merger Sub:

(i) Subject to this Article II, each share of Company Common

Stock issued and outstanding immediately prior to the Effective Time

(other than shares to be cancelled in accordance with Section

2.01(a)(ii) and Dissenting Shares referred to in Section 2.03) shall

be converted into the right to receive (A) 1.4205 (the "EXCHANGE

RATIO") shares of Class A common stock, par value $0.014 per share

("PARENT COMMON STOCK"), of Parent (the "STOCK MERGER

CONSIDERATION") and (B) $30.00 in cash, without interest (the "CASH

MERGER CONSIDERATION" and, together with the Stock Merger

Consideration, the "MERGER CONSIDERATION"), payable upon the

surrender of the Certificates (as defined in Section 2.04(b)). From

and after the Effective Time, all such shares of Company Common

Stock shall no longer be outstanding and shall automatically be

cancelled and retired and shall cease to exist, and each holder of a

Certificate representing any such shares shall cease to have any

rights with respect thereto, except the right to receive, upon

surrender of such Certificate in accordance with Section 2.04, the

Merger Consideration pursuant to this Section 2.01(a), any cash in

lieu of fractional shares payable pursuant to Section 2.04(e) and

any dividends or other distributions to which such holder is

entitled pursuant to Section 2.04(c), without interest.

(ii) All shares of Company Common Stock that are (A) held by

the Company as treasury shares or (B) owned by Parent or any

wholly-owned Subsidiary of Parent, in each case, immediately prior

to the Effective Time, shall be cancelled and retired and shall

cease to exist, and no cash, securities of Parent or other

consideration shall be delivered in exchange therefor.

(iii) Each share of common stock, par value $0.001 per share,

of Merger Sub issued and outstanding immediately prior to the

Effective Time shall be converted into and become one fully paid and

nonassessable share of common stock, par value $0.001 per share, of

the Surviving Corporation.

(b) Change in Shares. If, between the date of this Agreement and the

Effective Time, the outstanding shares of Parent Common Stock or Company Common

Stock shall have been changed into, or exchanged for, a different number of

shares or a different class, by reason of any stock dividend, subdivision,

reclassification, recapitalization, split, combination or exchange of shares,

the Cash Merger Consideration, the Exchange Ratio and the Option Exchange Ratio

shall be correspondingly adjusted to provide the holders of Company Common Stock

and Company Stock Options the same economic effect as contemplated by this

Agreement prior to such event.

Stock shall include, unless the context requires otherwise, the associated

preference share purchase rights ("PARENT RIGHTS") issued pursuant to the Rights

Agreement dated as of August 15, 1995 between Parent and American Stock Transfer

and Trust Company, as Rights Agent, as amended (the "PARENT RIGHTS AGREEMENT").

References in this Agreement to

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Company Common Stock shall include, unless the context requires otherwise, the

associated preferred share purchase rights ("COMPANY RIGHTS") issued pursuant to

the Amended and Restated Rights Agreement dated as of November 16, 1999 by and

between the Company and U.S. Stock Transfer Corporation, as Rights Agent, as

amended prior to the Effective Time (the "COMPANY RIGHTS AGREEMENT").

Section 2.02. Adjustment to Merger Consideration.

(a) If the amount obtained by dividing (x) the Aggregate Parent

Stock Value by (y) the Closing Transaction Value is less than 0.4500, the

following shall occur:

(i) The Exchange Ratio shall be adjusted to a number, rounded

to the nearest fourth decimal place, equal to (x) the product of 0.4500

and the Closing Transaction Value, divided by (y) the product of the

Aggregate Company Share Number and the Closing Parent Stock Price; and

(ii) The Cash Merger Consideration shall be adjusted to an

amount, rounded to the nearest cent, equal to the quotient obtained by

dividing (x) the amount obtained by subtracting the Aggregate Dissenter's

Value from the product of 0.5500 and the Closing Transaction Value, by (y)

the Aggregate Company Share Number.

(b) In the event that the Exchange Ratio and the Cash Merger

Consideration are adjusted as provided for in this Section 2.02, all references

in this Agreement to the "Exchange Ratio" and the "Cash Merger Consideration"

shall refer to the Exchange Ratio and the Cash Merger Consideration as adjusted

in this Section 2.02 except as may be otherwise specified herein.

have the following meanings:

(i) "AGGREGATE DISSENTER'S VALUE" means the product of (x) the

aggregate number of Dissenting Shares determined at Closing, and (y) the

sum of (1) the Cash Merger Consideration (before any adjustment pursuant

to Section 2.02) and (2) the product of the Exchange Ratio (before any

adjustment pursuant to Section 2.02) and the Closing Parent Stock Price.

(ii) "AGGREGATE CASH AMOUNT" means the product of (x) the Cash

Merger Consideration (before any adjustment pursuant to Section 2.02) and

(y) the Aggregate Company Share Number.

(iii) "AGGREGATE COMPANY SHARE NUMBER" means the number

obtained by subtracting (x) the aggregate number of shares of Company

Common Stock to be cancelled in the Merger pursuant to Section 2.01(a)(ii)

and (y) the aggregate number of Dissenting Shares determined at Closing,

from (z) the aggregate number of shares of Company Common Stock

outstanding on the Closing Date.

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(iv) "AGGREGATE PARENT SHARE NUMBER" means the product of (x)

the Exchange Ratio (before any adjustment pursuant to Section 2.02) and

(y) the Aggregate Company Share Number.

(v) "AGGREGATE PARENT STOCK VALUE" means the product of (x)

the Aggregate Parent Share Number (before any adjustment pursuant to

Section 2.02) and (y) the Closing Parent Stock Price.

(vi) "CLOSING PARENT STOCK PRICE" means the mean between the

high and low selling prices, regular way, of the Parent Common Stock on

the NYSE on the date of the Effective Time.

(vii) "CLOSING TRANSACTION VALUE" means the sum of (x) the

Aggregate Cash Amount, (y) the Aggregate Parent Stock Value and (z) the

Aggregate Dissenters Value.

(d) Notwithstanding anything in this Agreement to the contrary, this

Section 2.02 shall have no force and effect, if, prior to the Closing Date,

final or temporary Treasury Regulations are promulgated or other guidance is

issued by the IRS upon which the parties to this Agreement can rely, with an

effective date prior to the Closing Date, in substantially the same form or with

substantially the same effect of Proposed Treasury Regulations Section

1.368-1(e)(2) (REG-129706-04; August 10, 2004).

Section 2.03. Dissenting Stockholders. Notwithstanding anything in

this Agreement to the contrary, shares of Company Common Stock that are

outstanding immediately prior to the Effective Time and held by a holder thereof

who shall not have voted to adopt this Agreement and who properly exercises and

perfects appraisal rights for such shares in accordance with Section 262 of the

DGCL (the "DISSENTING SHARES") will not be converted as described in Section

2.01(a) but shall be converted into the right to receive such consideration as

may be determined to be due pursuant to Section 262 of the DGCL; provided,

however, that if any such holder shall fail to perfect or otherwise shall waive,

withdraw or lose the right to appraisal and payment under the DGCL, the right of

such holder to such appraisal of its shares of Company Common Stock shall cease

and such shares of Company Common Stock shall be deemed converted as of the

Effective Time into the right to receive the Merger Consideration to which any

such holder is entitled pursuant to Section 2.01(a), any cash in lieu of

fractional shares payable to any such holder pursuant to Section 2.04(e) and any

dividends or other distributions to which any such holder is entitled pursuant

to Section 2.04(c). The Company shall give Parent (a) prompt notice of any

written demands for appraisal received by the Company, withdrawals of such

demands, and any other related instruments served pursuant to Section 262 of the

DGCL and received by the Company and (b) the opportunity to direct in compliance

with all applicable Laws all negotiations and proceedings with respect to

demands for appraisals under the DGCL; provided, that any definitive actions

taken by the Company at the direction of Parent in respect of any such

negotiations and proceedings may be conditioned upon occurrence of the Effective

Time. The Company shall not, except with prior written consent of Parent, (i)

voluntarily make any payment with respect to any demands for appraisal for

Dissenting Shares, (ii) offer to settle, or settle, any such demands, (iii)

waive any failure to timely deliver a written demand for appraisal in accordance

with the DGCL or (iv) agree to do any of the foregoing.

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Section 2.04. Exchange of Certificates.

(a) As of the Effective Time, Parent shall deposit, or shall cause

to be deposited, with a bank or trust company designated by Parent and

reasonably satisfactory to the Company (the "EXCHANGE AGENT"), for the benefit

of the holders of shares of Company Common Stock, for exchange in accordance

with this Article II through the Exchange Agent, (i) certificates representing a

number of shares of Parent Common Stock equal to the Exchange Ratio multiplied

by the number of outstanding shares of Company Common Stock held by holders of

record other than Parent, Merger Sub or any wholly-owned Subsidiary of Parent or

Merger Sub, rounded down to the nearest whole number and (ii) an amount of cash

sufficient to deliver to holders of Company Common Stock the Cash Merger

Consideration. For purposes of such deposit, Parent shall assume that there will

not be any fractional shares of Parent Common Stock. Parent further agrees to

provide to the Exchange Agent, from time to time as needed, immediately

available funds sufficient to pay cash in lieu of fractional shares pursuant to

Section 2.04(e) and any dividends and other distributions pursuant to Section

2.04(c). Any cash and certificates representing Parent Common Stock deposited

with the Exchange Agent shall hereinafter be referred to as the "EXCHANGE FUND."

The Exchange Agent shall, pursuant to irrevocable instructions, deliver the

Merger Consideration contemplated to be paid per share of Company Common Stock

pursuant to Section 2.01 out of the Exchange Fund. Except as contemplated by

Sections 2.04(c) and 2.04(e) hereof, the Exchange Fund shall not be used for any

other purpose.

(b) Promptly (and in any event within five (5) Business Days) after

the Effective Time, Parent shall cause the Exchange Agent to mail to each holder

of record of a certificate formerly representing Company Common Stock (a

"CERTIFICATE"), other than Parent or Merger Sub or any wholly-owned Subsidiary

of Parent or Merger Sub, (i) a letter of transmittal that shall specify that

delivery shall be effected, and risk of loss and title to the Certificates shall

pass, only upon proper delivery of the Certificates to the Exchange Agent, which

letter shall be in customary form and (ii) instructions for effecting the

surrender of such Certificates in exchange for the Merger Consideration. Upon

surrender of a Certificate to the Exchange Agent, together with such letter of

transmittal, duly executed and completed in accordance with the instructions

thereto, and such other documents as may reasonably be required by the Exchange

Agent, the holder of such Certificate shall be entitled to receive in exchange

therefor (A) one or more shares of Parent Common Stock representing, in the

aggregate, the whole number of shares that such holder has the right to receive

pursuant to Section 2.01(a)(i) (after taking into account all shares of Company

Common Stock then held by such holder), (B) the Cash Merger Consideration which

such holder has the right to receive pursuant to Section 2.01(a)(i) in respect

of the shares represented by such Certificate and/or (C) a check in the amount

equal to the cash that such holder has the right to receive with respect to any

fractional shares of Parent Common Stock pursuant to Section 2.04(e) and

dividends and other distributions pursuant to Section 2.04(c), if any, and the

Certificate so surrendered shall forthwith be canceled. No interest will be paid

or will accrue on any cash payable pursuant to Section 2.01(a)(i), Section

2.04(c) or Section 2.04(e). In the event of a transfer of ownership of Company

Common Stock which is not registered in the transfer records of the Company, the

Merger Consideration may be issued and paid with respect to such Company Common

Stock to such a transferee if the Certificate representing such shares of

Company Common Stock is presented to the Exchange Agent in accordance with this

Section 2.04(b), accompanied by all

<PAGE>

documents required to evidence and effect such transfer and evidence that any

applicable stock transfer taxes have been paid.

Effective Time with respect to Parent Common Stock, with a record date after the

Effective Time, shall be paid to the holder of any unsurrendered Certificate,

and no cash payment in lieu of fractional shares shall be paid to any such

holder pursuant to Section 2.04(e), unless and until the holder of such

Certificate shall surrender such Certificate in accordance with Section 2.04(b).

Subject to the effect of escheat, Tax or other applicable Laws, following

surrender of any such Certificate, there shall be paid to the holder of the

certificates representing whole shares of Parent Common Stock issued in exchange

therefor, without interest, (i) promptly, the amount of any cash payable with

respect to a fractional share of Parent Common Stock to which such holder is

entitled pursuant to Section 2.04(e) and the amount of dividends or other

distributions with a record date after the Effective Time theretofore paid with

respect to such whole shares of Parent Common Stock and (ii) at the appropriate

payment date, the amount of dividends or other distributions, with a record date

after the Effective Time but prior to surrender and a payment date occurring

after surrender, payable with respect to such whole shares of Parent Common

Stock.

(d) The Merger Consideration delivered upon surrender of the

Certificates in accordance with the terms hereof (including any cash paid

pursuant to Section 2.04(c) or Section 2.04(e)) shall be deemed to have been

paid in full satisfaction of all rights pertaining to such share of Company

Common Stock.

(e) No certificates or scrip representing fractional shares of

Parent Common Stock, or book-entry credit of the same, shall be issued upon the

surrender for exchange of Certificates, no dividend or distribution with respect

to Parent Common Stock shall be payable on or with respect to any fractional

share and such fractional share interests shall not entitle the owner thereof to

any rights of a stockholder of Parent. For purposes of this Section 2.04(e), all

fractional shares to which a single record holder would be entitled shall be

aggregated and calculations shall be rounded to the fourth decimal point. In

lieu of any such fractional share of Parent Common Stock, each holder of Company

Common Stock otherwise entitled to a fraction of a share of Parent Common Stock

will be entitled to receive from the Exchange Agent a cash payment in an amount

equal to the product of (i) such fractional part of a share of Parent Common

Stock multiplied by (ii) an amount equal to the average of the closing sale

prices for Parent Common Stock on the NYSE, as reported in The Wall Street

Journal, Northeastern edition, for each of the ten consecutive trading days

ending with the second complete trading day prior to the Effective Time.

(f) Any portion of the Exchange Fund which remains undistributed to

the holders of Company Common Stock for six months after the Effective Time

shall be delivered to Parent, upon demand, and, from and after such delivery to

Parent, any holders of Company Common Stock who have not theretofore complied

with this Article II shall thereafter look only to Parent for the Merger

Consideration payable in respect of such shares of Company Common Stock, any

cash in lieu of fractional shares of Parent Common Stock to which they are

entitled pursuant to Section 2.04(e) and any dividends or other distributions

with respect to Parent Common Stock to which they are entitled pursuant to

Section 2.04(c), in each case, without any interest thereon.

<PAGE>

(g) Neither Parent, Merger Sub, the Surviving Corporation, the

Exchange Agent nor the Company shall be liable to any holder of shares of

Company Common Stock for any such shares of Parent Common Stock (or dividends or

distributions with respect thereto) or cash from the Exchange Fund delivered to

a public official pursuant to any abandoned property, escheat or similar Law.

(h) If any Certificate shall have been lost, stolen or destroyed,

upon the making of an affidavit of that fact by the Person claiming such

Certificate to be lost, stolen or destroyed and, if required by Parent, the

posting by such Person of a bond, in such reasonable amount as Parent may

direct, as indemnity against any claim that may be made against it with respect

to such Certificate, the Exchange Agent shall pay in exchange for such lost,

stolen or destroyed Certificate the Merger Consideration payable in respect of

the shares of Company Common Stock represented by such Certificate, any cash in

lieu of fractional shares of Parent Common Stock to which the holders thereof

are entitled pursuant to Section 2.04(e) and any dividends or other

distributions to which the holders thereof are entitled pursuant to Section

2.04(c), in each case, without any interest thereon.

(i) Parent or the Exchange Agent shall be entitled to deduct and

withhold from the consideration otherwise payable pursuant to this Agreement to

any holder of Company Common Stock such amounts as Parent or the Exchange Agent

are required to deduct and withhold under the Code, or any Tax Law, with respect

to the making of such payment. To the extent that amounts are so withheld by

Parent or the Exchange Agent, such withheld amounts shall be treated for all

purposes of this Agreement as having been paid to the holder of Company Common

Stock in respect of whom such deduction and withholding was made by Parent or

the Exchange Agent.

(j) The Exchange Agent shall invest any cash included in the

Exchange Fund, as directed by Parent, on a daily basis. Any interest and other

income resulting from such investments shall be paid to Parent upon termination

of the Exchange Fund pursuant to Section 2.04(f). In the event the cash in the

Exchange Fund shall be insufficient to fully satisfy all of the payment

obligations to be made by the Exchange Agent hereunder, Parent shall promptly

deposit cash into the Exchange Fund in an amount which is equal to the

deficiency in the amount of cash required to fully satisfy such payment

obligations.

Section 2.05. Stock Transfer Books. At the Effective Time, the stock

transfer books of the Company shall be closed and thereafter there shall be no

further registration of transfers of shares of Company Common Stock theretofore

outstanding on the records of the Company. From and after the Effective Time,

the holders of Certificates representing shares of Company Common Stock

outstanding immediately prior to the Effective Time shall cease to have any

rights with respect to such shares of Company Common Stock except as otherwise

provided herein or by Law. On or after the Effective Time, any Certificates

presented to the Exchange Agent or Parent, for any reason, in accordance with

Section 2.04(b), shall be canceled against delivery of the Merger Consideration

payable in respect of the shares of Company Common Stock formerly represented by

such Certificates, any cash in lieu of fractional shares of Parent Common Stock

to which the holders thereof are entitled pursuant to Section 2.04(e) and any

dividends or other distributions to which the holders thereof are entitled

pursuant to Section 2.04(c), in each case, without any interest thereon.

<PAGE>

Section 2.06. Stock Options.

(a) At the Effective Time and without any action on the part of the

parties hereto, each unexercised and unexpired stock option that is then

outstanding under the Company Stock Plans (other than options outstanding under

the Company's 1999 Stock Option Plan (the "1999 OPTION PLAN") or the Company's

2000 Stock Option Plan (the "2000 OPTION PLAN")), which options shall be treated

as set forth in Section 2.06(b), whether vested or unvested (the "EXCHANGE

OPTIONS"), shall be assumed by Parent in accordance with the terms (as in effect

at the Effective Time) of the Company Stock Plans, the stock option agreement by

which such Exchange Option is evidenced (including any amendments thereto) and

this Agreement, and converted into an option to purchase Parent Common Stock in

accordance with this Section 2.06(a). Each Exchange Option so converted shall

continue to have, and be subject to, the same terms and conditions (including

restrictions on vesting and exercisability) as set forth in the applicable

Company Stock Plan and any applicable agreement thereunder, as in effect

immediately prior to the Effective Time, except that, as of the Effective Time,

(i) the number of whole shares of Parent Common Stock issuable upon exercise of

such Exchange Option shall be equal to the product of the number of shares of

Company Common Stock that were issuable upon exercise of such Exchange Option,

whether or not exercisable, immediately prior to the Effective Time multiplied

by 2.3674 (the "OPTION EXCHANGE RATIO"), rounded down to the nearest whole

number of shares of Parent Common Stock, (ii) the per share exercise price for

the shares of Parent Common Stock issuable upon exercise of such Exchange Option

so converted shall be equal to the quotient determined by dividing the exercise

price per share of Company Common Stock at which such Exchange Option was

exercisable immediately prior to the Effective Time by the Option Exchange

Ratio, rounded up to the nearest whole cent, (iii) the vesting requirements

applicable to each Exchange Option which is outstanding as of the date of this

Agreement and remains outstanding at the Effective Time shall automatically

lapse and such Exchange Option shall become immediately vested and exercisable

for all of the shares Parent Common Stock at the time subject to such Exchange

Option and may be exercised for any or all of those shares as fully vested

shares, (iv) all references in the Company Stock Plan and the agreement

evidencing the Exchange Option to the Company shall be deemed to be references

to Parent and (v) all references in the Company Stock Plan and the agreement

evidencing the Exchange Option to Company Common Stock shall be deemed to be

references to Parent Common Stock. Notwithstanding anything to the contrary in

this Section 2.06(a), the conversion of any Company Stock Options (regardless of

whether such options qualify as "incentive stock options" within the meaning of

Section 422 of the Code) into options to purchase Parent Common Stock shall be

made in such a manner as would not constitute a "modification" of such Company

Stock Options within the meaning of Section 424 of the Code.

(b) At the Effective Time and without any action on the part of the

parties hereto, each unexercised and unexpired stock option that is then

outstanding under the 1999 Option Plan or the 2000 Option Plan, whether vested

or unvested (the "CONVERSION OPTIONS" and together with the Exchange Options,

the "COMPANY STOCK OPTIONS"), shall be assumed by Parent in accordance with the

terms (as in effect at the Effective Time) of the 1999 Option Plan or 2000

Option Plan, as applicable, and the stock option agreement by which such

Conversion Option is evidenced (including any amendments thereto) and this

Agreement and converted into an option to purchase a number of shares of Parent

Common Stock and an amount of cash as determined in accordance with this Section

2.06(b). Each Conversion Option so converted shall

<PAGE>

continue to have, and be subject to, the same terms and conditions (including

restrictions on vesting and exercisability) as set forth in the 1999 Option Plan

or 2000 Option Plan, as applicable, and any applicable agreements thereunder, as

in effect immediately prior to the Effective Time, except that, as of the

Effective Time, (i) each Conversion Option shall be exercisable for the

aggregate amount of Merger Consideration the optionee would have been entitled

to receive in connection with the Merger in the event he or she exercised the

Conversion Option immediately prior to the Effective Time for the number of

shares of Company Common Stock that were issuable upon exercise of such

Conversion Option, whether or not exercisable, (ii) the exercise price per Unit

shall be equal to the sum obtained by dividing the aggregate exercise price

payable for the Company Common Stock for which such Conversion Option was

exercisable immediately prior to the Effective Time by the number of Units

subject to such Conversion Option immediately following the Effective Time,

rounded up to the nearest whole cent, (iii) the vesting requirements applicable

to each Conversion Option which is outstanding as of the date of this Agreement

and remains outstanding at the Effective Time shall automatically lapse and such

Conversion Option shall become immediately vested and exercisable for all of the

Units at the time subject to such Conversion Option and may be exercised for any

or all of such Units without vesting restrictions, (iv) all references in the

1999 Option Plan and the 2000 Option Plan and the agreement evidencing the

Conversion Option to the Company shall be deemed to be references to Parent, and

(v) all references in the 1999 Option Plan and the 2000 Option Plan and the

agreement evidencing the Conversion Option to Company Common Stock shall be

deemed to be references to either Parent Common Stock or Units, as the context

requires. Notwithstanding the foregoing, the adjustments to be made to the

Conversion Options (regardless of whether such options qualify as "incentive

stock options" within the meaning of Section 422 of the Code) shall be made in

such a manner as would not be intended to constitute a "modification" of such

Conversion Options within the meaning of Section 424 of the Code. For purposes

of this Section 2.06, "UNIT" shall mean one share of Parent Common Stock plus an

amount of cash equal to the sum obtained by dividing (x) the aggregate amount of

cash for which the Conversion Option is exercisable immediately following the

Effective Time (as determined pursuant to (i) above) by (y) the whole number of

shares of Parent Common Stock issuable upon exercise of such Conversion Option

immediately following the Effective Time (as determined pursuant to (i) above),

rounded down to the nearest whole cent. In no event will a Conversion Option be

exercisable for a fraction of a Unit.

and in no event later than three (3) Business Days after the Closing Date, a

registration statement on Form S-8 relating to the Parent Common Stock subject

to the Company Stock Options, (ii) prior to such filing, take such further

actions as may be reasonably necessary to cover under such registration

statement (or on a Form S-3 or any other successor or other appropriate form

reasonably satisfactory to those persons whose shares are not covered by the

Form S-8) shares of Parent Common Stock subject to the Company Stock Options

held by those persons eligible under the Company's registration statement on

Form S-8 immediately prior to the Closing Date, and (iii) maintain the

effectiveness of such registration statement(s) (and maintain the current status

of the prospectus(es) contained in such registration statement(s)) for so long

as the Company Stock Options remain outstanding.

Section 2.07. Employee Stock Purchase Plan. The Company shall take

all requisite action with respect to the Company's 2000 Employee Stock Purchase

Plan, as amended

<PAGE>

(the "COMPANY ESPP"), to ensure that (i) all Company Purchase Rights (as defined

in Section 3.02) issued and outstanding as of the date of the Company

Stockholder Approval (as defined in Section 3.04) will be exercised on such

date, (ii) no Company Purchase Rights will be issued and outstanding as of the

Effective Time, (iii) conditioned upon the occurrence of the Closing, the

Company ESPP will be terminated no later than the Effective Time, and (iv) the

Company ESPP will be suspended as of the date of the Company Stockholder

Approval and no additional offering periods shall commence on or after the date

of the Company Stockholder Approval. The Company shall deliver to Parent prior

to the Effective Time sufficient evidence that the Company ESPP will be

terminated no later than the Effective Time. In addition, prior to the Company

Stockholder Approval, the Company shall take all actions (including, if

appropriate, amending the terms of the Company ESPP and the terms of any

offering period(s) commencing prior to the Effective Time) that are necessary to

provide that, as of the date of the Company Stockholder Approval, participants

and former participants in the Company ESPP shall cease to have any right or

interest thereunder. Notwithstanding the foregoing, all actions taken and all

amendments made pursuant to this Section 2.07 shall be taken or made in

compliance with Sections 423 and 424 of the Code and so as not to result in a

"modification" under such Sections. All shares of Company Common Stock issued in

connection with the exercise of the Company Purchase Rights shall be, at the

Effective Time, converted into the right to receive the Merger Consideration in

accordance with, and pursuant to, the terms and conditions of this Agreement.

Section 2.08. Restricted Stock. All outstanding rights of the

Company which it may hold immediately prior to the Effective Time to acquire

unvested shares of the Company Common Stock issued pursuant to the Company

Restricted Stock Plan (the "REPURCHASE RIGHTS") shall lapse at the Effective

Time. Notwithstanding the foregoing, all Repurchase Rights which the Company may

hold immediately prior to the Effective Time to acquire unvested shares of the

Company Common Stock issued after March 20, 2005 (the "ASSIGNED REPURCHASE

RIGHTS") shall be assigned to Parent at the Effective Time and shall thereafter

be exercisable by Parent upon the same terms and conditions in effect

immediately prior to the Effective Time, except that (i) the Assigned Repurchase

Rights shall be adjusted to apply to the Merger Consideration received in

exchange for the unvested shares of the Company Common Stock subject to the

Assigned Repurchase Rights and (ii) the repurchase price to be paid (if any) for

the Merger Consideration received in exchange for a share of Company Restricted

Stock shall be an amount determined by dividing the repurchase price per share

of Company Restricted Stock, as determined immediately prior to the Effective

Time, by the Option Exchange Ratio, rounded down to the nearest whole cent. In

the event that the exercise of an Assigned Repurchase Right would result in the

return of Cash Merger Consideration to Parent, Parent shall be entitled to

offset the Cash Merger Consideration to be returned against the repurchase price

(if any) to be paid.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants to Parent that except as set

forth in the disclosure letter dated as of the date hereof delivered by the

Company to Parent (the "COMPANY DISCLOSURE LETTER"):

<PAGE>

Section 3.01. Organization and Qualification. The Company is a

corporation duly organized and validly existing under the laws of the State of

Delaware and has the requisite corporate power and authority to own, lease,

license and operate its assets and properties and to carry on its business as it

is now being conducted. The Company is qualified to transact business and, where

applicable, is in good standing in each jurisdiction in which the properties

owned, leased, licensed or operated by it or the nature of the business

conducted by it makes such qualification necessary, except as would not,

individually or in the aggregate, reasonably be expected to have a Company

Material Adverse Effect. True, accurate and complete copies of the certificate

of incorporation and bylaws of the Company, in each case, as amended and in

effect on the date hereof, including all amendments thereto, have heretofore

been filed with the SEC or delivered to Parent.

Section 3.02. Capitalization.

(a) The authorized capital stock of the Company consists of

100,000,000 shares of Company Common Stock and 1,000,000 shares of preferred

stock, par value $0.01 per share ("COMPANY PREFERRED STOCK"). As of March 10,

2005, (i) 36,189,410 shares of Company Common Stock, including in each case the

associated Company Rights, were issued and outstanding, (ii) no shares of

Company Preferred Stock were issued or outstanding, (iii) no shares of Company

Common Stock were held in the treasury of the Company, (iv) 1,754,870 shares of

Company Common Stock were reserved for issuance upon exercise of Company Stock

Options issued and outstanding, (v) 1,378,395 shares of Company Common Stock

were authorized and reserved for future issuance pursuant to the Company Stock

Plans (other than shares of Company Common Stock authorized and reserved for

future issuance upon exercise of Company Stock Options issued and outstanding)

and the Company ESPP and (vi) 25,000 shares of Company Preferred Stock were

designated as Series A Junior Preferred Stock, par value $0.01 per share, and

were reserved for issuance upon exercise of the Company Rights issued pursuant

to the Company Rights Agreement. The Company has delivered or made available to

Parent a complete and correct copy of the Company Rights Agreement as in effect

on the date hereof. Each issued and outstanding share of capital stock of the

Company is, and each share of Company Common Stock reserved for issuance as

specified above will be, upon issuance on the terms and conditions specified in

the instruments pursuant to which it is issuable, duly authorized, validly

issued, fully paid, nonassessable and free of preemptive rights. Since March 10,

2005 through the date hereof, except as permitted by this Agreement, (i) no

shares of Company Common Stock have been issued, except in connection with the

exercise of purchase rights issued in accordance with the terms of the Company

ESPP ("COMPANY PURCHASE RIGHTS") or Company Stock Options issued and outstanding

and (ii) no options, warrants, securities convertible into, or commitments with

respect to the issuance of, shares of capital stock of the Company have been

issued, granted or made, except Company Rights in accordance with the terms of

the Company Rights Agreement.

(b) Except for Company Rights, Company Purchase Rights and Company

Stock Options issued and outstanding, as of the date hereof, there are no

outstanding subscriptions, options, calls, contracts, commitments,

understandings, restrictions, arrangements, rights or warrants, including any

right of conversion or exchange under any outstanding security, instrument or

other agreement and also including any rights plan or other anti-takeover

agreement, obligating the Company or any Subsidiary of the Company to issue,

deliver or sell, or

<PAGE>

cause to be issued, delivered or sold, additional shares of Company Common Stock

or obligating the Company or any Subsidiary of the Company to grant, extend or

enter into any such agreement or commitment. As of the date hereof, there are no

obligations, contingent or otherwise, of the Company to (i) repurchase, redeem

or otherwise acquire any shares of Company Common Stock or the capital stock or

other equity interests of any Subsidiary of the Company or (ii) provide material

funds to, or make any material investment in (in the form of a loan, capital

contribution or otherwise), or provide any guarantee with respect to the

obligations of, any Person other than a Subsidiary. There are no outstanding

stock appreciation rights or similar derivative securities or rights of the

Company or any of its Subsidiaries. There are no bonds, debentures, notes or

other indebtedness of the Company having the right to vote (or convertible into,

or exchangeable for, securities having the right to vote) on any matters on

which stockholders of the Company may vote. There are no voting trusts,

irrevocable proxies or other agreements or understandings to which the Company

or any Subsidiary of the Company is a party or is bound with respect to the

voting of any shares of Company Common Stock. The Company's Board of Directors

has taken all action such that, for so long as this Agreement is in full force

and effect, (i) none of Merger Sub or Parent and its Subsidiaries shall become

an "Acquiring Person" and no "Shares Acquisition Date" shall occur as a result

of the execution, delivery and performance of this Agreement and the

consummation of the Merger, (ii) no "Distribution Date" shall occur as a result

of the announcement of or the execution of this Agreement or any of the

transactions contemplated hereby and (iii) the Company Rights Agreement shall

terminate immediately prior to the Effective Time. As used in this Section

3.02(b), the terms "Acquiring Person," "Distribution Date" and "Shares

Acquisition Date" shall have the meanings ascribed to such terms in the Company

Rights Agreement. The Company has not agreed to register any securities under

the Securities Act or under any state securities law or granted registration

rights to any Person (except rights which have terminated or expired). Neither

the Company nor any of its Subsidiaries has any outstanding obligations in

respect of prior acquisitions of businesses to pay, in the form of securities,

cash or other property, any portion of the consideration payable to the seller

or sellers in such transaction.

correct copies of each Company Stock Plan and the Company ESPP. Section 3.02(c)

of the Company Disclosure Letter sets forth a complete and correct list as of

March 18, 2005, of (i) all holders of outstanding Company Stock Options, whether

or not granted under the Company Stock Plans, including the date of grant, the

number of shares of Company Common Stock originally granted subject to each such

option, the exercise price per share, the exercise and vesting schedule, the

number of shares of Company Common Stock remaining subject to each such option,

and the maximum term of each such option, (ii) all holders of outstanding shares

of Company Restricted Stock, including the number and kind of shares subject to

the Repurchase Rights, the grant date of such shares, the purchase price per

share at which the Company may repurchase the Company Restricted Stock, and the

period during which each Repurchase Right may be exercised, and (iii) the number

of shares remaining available for purchase under the Company ESPP. Complete and

correct copies of the relevant forms of written agreements, including forms of

amendments thereto, evidencing the grant of Company Stock Options or Company

Restricted Stock and the grant of purchase rights pursuant to the Company ESPP

have been provided to Parent by the Company.

<PAGE>

Section 3.03. Subsidiaries. Each Subsidiary of the Company is duly

organized, validly existing and, where applicable, in good standing under the

laws of its jurisdiction of organization and has the requisite power and

authority to own, lease, license and operate its assets and properties and to

carry on its business as it is now being conducted, and each Subsidiary of the

Company is qualified to transact business, and is in good standing, in each

jurisdiction in which the properties owned, leased, licensed or operated by it

or the nature of the business conducted by it makes such qualification

necessary, except in all cases as would not, individually or in the aggregate,

reasonably be expected to have a Company Material Adverse Effect. All of the

outstanding shares of capital stock or other equity interests of each Subsidiary

of the Company are validly issued, fully paid, nonassessable and free of

preemptive rights and are owned directly or indirectly by the Company. There are

no subscriptions, options, warrants, voting trusts, proxies or other

commitments, understandings, restrictions or arrangements relating to the

issuance, sale, voting or transfer of any shares of capital stock or other

equity interests of any Subsidiary of the Company, including any right of

conversion or exchange under any outstanding security, instrument or agreement.

The Company has no material investment in any entity other than its

Subsidiaries.

Section 3.04. Authority; Non-Contravention; Approvals.

(a) The Company has all necessary power and authority to execute and

deliver this Agreement, to perform its obligations hereunder and, subject to

obtaining necessary stockholder approval in connection with this Agreement and

the Merger, to consummate the Merger and the other transactions contemplated by

this Agreement. The execution, delivery and performance by the Company of this

Agreement, and the consummation by the Company of the Merger and the other

transactions contemplated by this Agreement, have been duly authorized by all

necessary corporate action on the part of the Company, and no other corporate

proceedings on the part of the Company are necessary to authorize this Agreement

or to consummate the Merger or the other transactions contemplated by this

Agreement (other than the approval and adoption of this Agreement and the Merger

by the affirmative votes of the holders of a majority of the outstanding shares

of Company Common Stock and the filing and recordation of appropriate merger

documents as required by the DGCL). This Agreement has been duly executed and

delivered by the Company and, assuming the due authorization, execution and

delivery by Parent and Merger Sub, constitutes a valid and binding obligation of

the Company enforceable against the Company in accordance with its terms, except

as such enforceability may be limited by bankruptcy, insolvency, reorganization,

moratorium or similar Laws relating to or affecting the rights and remedies of

creditors generally and the effect of general principles of equity (regardless

of whether such enforceability is considered in a proceeding in equity or at

law). The affirmative vote of the holders of a majority of the outstanding

Company Common Stock entitled to vote at a duly called and held meeting of the

Company's stockholders is the only vote of the holders of capital stock of the

Company necessary to approve and adopt this Agreement and the Merger (the

"COMPANY STOCKHOLDER APPROVAL").

(b) At a meeting duly called and held on March 20, 2005, the Board

of Directors of the Company unanimously (i) determined that this Agreement and

the other transactions contemplated hereby, including the Merger, are advisable

and in the best interests of the Company and the Company's stockholders, (ii)

approved and adopted this Agreement and the transactions contemplated hereby,

including the Merger and (iii) resolved to recommend

<PAGE>

approval and adoption of this Agreement and the Merger by the Company's

stockholders. The actions taken by the Board of Directors of the Company

constitute approval of the Merger, this Agreement and the other transactions

contemplated hereby by the Board of Directors of the Company under the

provisions of Section 203 of the DGCL such that the restrictions on "business

combinations" as set forth in Section 203 of the DGCL do not apply to this

Agreement or the transactions contemplated hereby. No other takeover statute or

other similar statute or regulation relating to the Company is applicable to the

Merger or the transactions contemplated by this Agreement. Without giving effect

to the execution of this Agreement, neither the Company nor any affiliate or

associate of the Company is, or has been during the last three years, an

"interested stockholder" (as defined in Section 203 of the DGCL) of Parent.

Company and the consummation of the Merger and the other transactions

contemplated hereby do not and will not violate, conflict with, give rise to the

right to modify or result in a breach of any provision of, or constitute a

default (or an event which, with notice or lapse of time or both, would

constitute a default) under, or result in the termination of, or accelerate the

performance required by, or result in a right of termination or acceleration

under, or require any offer to purchase or any prepayment of any debt, or result

in the creation of any Lien, security interest or encumbrance upon any of the

properties or assets of the Company or any of its Subsidiaries under any of the

terms, conditions or provisions of (i) the respective certificate of

incorporation or bylaws or similar governing documents of the Company or any of

its Subsidiaries, (ii) any statute, law, ordinance, rule, regulation, judgment,

decree, order, injunction, writ, permit or license of any Governmental Entity

applicable to the Company or any of its Subsidiaries or any of their respective

properties or assets, subject in the case of consummation, to obtaining the

Company Required Statutory Approvals and the Company Stockholder Approval, or

(iii) any Company Permit or Contract to which the Company or any of its

Subsidiaries is a party or by which the Company or any of its Subsidiaries or

any of their respective properties or assets may be bound or affected, other

than, in the case of (ii) and (iii) above, such violations, conflicts, rights to

modify, breaches, defaults, terminations, accelerations or creations of Liens,

security interests or encumbrances that would not, individually or in the

aggregate, reasonably be expected to have a Company Material Adverse Effect.

(d) Except for (i) the filings by the Company required by the HSR

Act, (ii) the filings by the Company required by Antitrust Laws of foreign

jurisdictions, (iii) the applicable requirements of the Exchange Act, (iv) the

filing of the Certificate of Merger and (v) any required filings under the rules

and regulations of the NASDAQ National Market (the filings and approvals

referred to in clauses (i) through (v) collectively, the "COMPANY REQUIRED

STATUTORY APPROVALS"), no declaration, filing or registration with, or notice

to, or authorization, consent or approval of, any Governmental Entity is

necessary for the execution and delivery of this Agreement by the Company or the

consummation by the Company of the Merger and the other transactions

contemplated hereby, other than such declarations, filings, registrations,

notices, authorizations, consents or approvals which, if not made or obtained,

as the case may be, would not, individually or in the aggregate, reasonably be

expected to have a Company Material Adverse Effect.

<PAGE>

Section 3.05. Reports and Financial Statements.

(a) Since January 1, 2001, the Company has filed with the SEC all

material forms, registration statements, prospectuses, reports, schedules and

documents (including all exhibits, post-effective amendments and supplements

thereto) (the "COMPANY SEC DOCUMENTS") required to be filed by it under each of

the Securities Act and the Exchange Act, all of which, as amended if applicable,

complied in all material respects as to form with all applicable requirements of

the appropriate Act, SOX and the rules and regulations thereunder. As of their

respective dates (taking into account any amendments or supplements filed prior

to the date hereof), the Company SEC Documents did not contain any untrue

statement of a material fact or omit to state a material fact required to be

stated therein or necessary to make the statements therein, in the light of the

circumstances under which they were made, not misleading.

(b) Each of the principal executive officer of the Company and the

principal financial officer of the Company (or each former principal executive

officer of the Company and each former principal financial officer of the

Company, as applicable) has made all certifications required by Rule 13a-14 or

15d-14 under the Exchange Act or Sections 302 and 906 of SOX and the rules and

regulations of the SEC promulgated thereunder with respect to the Company SEC

Documents, and to the knowledge of the Company, the statements contained in such

certifications are true and correct. For purposes of this Section 3.05(b),

"principal executive officer" and "principal financial officer" shall have the

meanings given to such terms in SOX. Neither the Company nor any of its

Subsidiaries has outstanding, or has arranged any outstanding, "extensions of

credit" to directors or executive officers within the meaning of Section 402 of

SOX.

the Company SEC Documents comply as to form, as of their respective dates of

filing with the SEC, in all material respects with applicable accounting

requirements and the published rules and regulations of the SEC with respect

thereto, have been prepared in accordance with GAAP (except, in the case of

unaudited statements, as permitted by Form 10-Q or 8-K or the applicable rules

of the SEC) applied on a consistent basis during the periods involved (except as

may be indicated in the notes thereto) and fairly present the consolidated

financial position of the Company and its consolidated Subsidiaries as of the

dates thereof and the consolidated results of their operations and cash flows

for the periods then ended (subject, in the case of unaudited statements, to

normal year-end audit adjustments which are not material). The books and records

of the Company and its Subsidiaries are maintained in all material respects in

accordance with GAAP and any other applicable legal and accounting requirements.

(d) Neither the Company nor any of its Subsidiaries is a party to,

or has any commitment to become a party to, any joint venture, off-balance sheet

partnership or any similar contract or arrangement (including any contract or

arrangement relating to any transaction or relationship between or among the

Company and any of its Subsidiaries, on the one hand, and any unconsolidated

Affiliate, including any structured finance, special purpose or limited purpose

entity or Person, on the other hand or any "off-balance sheet arrangements" (as

defined in Item 303(a) of Regulation S-K of the SEC)), where the result, purpose

or intended effect of such contract or arrangement is to avoid disclosure of any

material transaction involving, or

<PAGE>

material Liabilities of, the Company or any of its Subsidiaries in the Company's

or such Subsidiary's published financial statements or other of the Company SEC

Documents.

(e) The Company maintains a system of internal accounting controls

sufficient to provide reasonable assurance that: (i) transactions are executed

in accordance with management's general or specific authorizations; (ii)

transactions are recorded as necessary to permit preparation of financial

statements in conformity with GAAP and to maintain asset accountability; (iii)

access to assets is permitted only in accordance with management's general or

specific authorization; and (iv) the recorded accountability for assets is

compared with the existing assets at reasonable intervals and appropriate action

is taken with respect to any differences.

(f) The Company has in place the "disclosure controls and

procedures" (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act)

required in order for the Chief Executive Officer and Chief Financial Officer of

the Company to engage in the review and evaluation process mandated by the

Exchange Act and the rules promulgated thereunder. The Company's "disclosure

controls and procedures" are reasonably designed to ensure that all information

(both financial and non-financial) required to be disclosed by the Company in

the reports that it files or submits under the Exchange Act is recorded,

processed, summarized and reported within the time periods specified in the

rules and forms of the SEC, and that all such information is accumulated and

communicated to the Company's management as appropriate to allow timely

decisions regarding required disclosure and to make the certifications of the

Chief Executive Officer and Chief Financial Officer of the Company required

under the Exchange Act with respect to such reports.

(g) Since December 31, 2000, the Company has not received from its

independent auditors any oral or written notification of a (x) "reportable

condition" or (y) "material weakness" in the Company's internal controls. For

purposes of this Agreement, the terms "reportable condition" and "material

weakness" shall have the meanings assigned to them in the Statements of Auditing

Standards 60, as in effect on the date hereof.

Section 3.06. Absence of Undisclosed Liabilities. Except as

disclosed in the audited financial statements included in the Company's Form

10-K for the year ended December 31, 2004 (the "COMPANY 10-K"), neither the

Company nor any of its Subsidiaries has as of the date hereof any Liabilities or

obligations (whether absolute, accrued, contingent or otherwise) of any nature,

except Liabilities, obligations or contingencies (a) which are accrued or

reserved against in the financial statements in the Company 10-K or reflected in

the notes thereto, (b) which were incurred in the ordinary course of business

and consistent with past practices, (c) which would not, individually or in the

aggregate, reasonably be expected to have a Company Material Adverse Effect or

(d) which are of a nature not required to be reflected in the consolidated

financial statements of the Company and its Subsidiaries prepared in accordance

with GAAP consistently applied.

Section 3.07. Litigation. Except as disclosed in the Company SEC

Documents prior to the date hereof, as of the date hereof, there are no Actions

pending, or, to the knowledge of the Company, threatened in writing against,

which relate to or affect the Company or any of its Subsidiaries, before any

court or other Governmental Entity or any arbitrator that would,

<PAGE>

individually or in the aggregate, reasonably be expected to have a Company

Material Adverse Effect. As of the date hereof, neither the Company nor any of

its Subsidiaries is subject to any judgment, decree, injunction, rule or order

of any Governmental Entity or any arbitrator which would, individually or in the

aggregate, reasonably be expected to have a Company Material Adverse Effect.

There has not, within the last four years, been nor, as of the date hereof, are

there any internal investigations or inquiries being conducted by the Company,

the Board of Directors of the Company (or any committee thereof) or any other

Person at the request of any of the foregoing concerning any financial,

accounting, Tax, conflict of interest, self-dealing, fraudulent or deceptive

conduct or other misfeasance or malfeasance issues.

Section 3.08. Absence of Certain Changes or Events.

(a) Except as disclosed in the Company SEC Documents prior to the

date hereof, since December 31, 2004 through the date hereof:

(i) the Company and its Subsidiaries have conducted their

business only in the ordinary course consistent with past practice;

(ii) there has not been any split, combination or

reclassification of any of the Company's capital stock or any declaration,

setting aside or payment of any dividend on, or other distribution

(whether in cash, stock or property) in respect of, in lieu of, or in

substitution for, shares of the Company's capital stock;

(iii) except as required by a change in GAAP, there has not

been any change in accounting methods, principles or practices by the

Company materially affecting the consolidated financial position or

results of operations of the Company; and

(iv) the Company and its Subsidiaries have not made any

material Tax election or settled or compromised any material Tax liability

or refund, other than Tax elections required by Law, or changed any annual

Tax accounting period or method of Tax accounting, filed any material

amendment to a Tax Return, entered into any closing agreement relating to

any material Tax, surrendered any right to claim a material Tax refund, or

consented to any extension or waiver of the statute of limitations period

applicable to any material Tax claim or assessment; and

(v) no action has been taken by the Company or its

Subsidiaries to amend or waive any performance or vesting criteria or

accelerate vesting, exercisability or funding under any Company Benefit

Plan or Company Stock Option.

(b) Since December 31, 2004, there has not occurred any circumstance

or event, or series of circumstances or events, that, individually or in the

aggregate, has had or would reasonably be expected to have a Company Material

Adverse Effect.

Section 3.09. Registration Statement, Etc. None of the information

supplied or to be supplied by the Company for inclusion or incorporation by

reference in (a) the Registration Statement to be filed by Parent with the SEC

to register the shares of Parent Common Stock to be issued in the Merger (the

"REGISTRATION STATEMENT"), (b) the Joint Proxy Statement/Prospectus (the "JOINT

PROXY STATEMENT") to be mailed to the Company's

<PAGE>

stockholders in connection with the meeting of the Company's stockholders (the

"COMPANY STOCKHOLDERS' MEETING") to be called to consider this Agreement and to

Parent's stockholders in connection with the meeting of Parent's stockholders

(the "PARENT STOCKHOLDERS' MEETING") to be called to consider the Share Issuance

and (c) any other documents to be filed with the SEC in connection with the

transactions contemplated hereby will, at the respective times such documents

are filed and at the time such documents become effective or at the time any

amendment or supplement thereto becomes effective, contain any untrue statement

of a material fact, or omit to state any material fact required or necessary in

order to make the statements therein, in light of the circumstances under which

they are made, not misleading; and, in the case of the Registration Statement,

when it becomes effective or at the time any amendment or supplement thereto

becomes effective, will cause the Registration Statement or such supplement or

amendment to contain any untrue statement of a material fact, or omit to state

any material fact required to be stated therein or which is necessary in order

to make the statements therein not misleading, or, in the case of the Joint

Proxy Statement, when first mailed to the stockholders of the Company and the

stockholders of Parent, or in the case of the Joint Proxy Statement or any

amendment thereof or supplement thereto, at the time of the Company

Stockholders' Meeting or the time of the Parent Stockholders' Meeting, will

cause the Joint Proxy Statement or any amendment thereof or supplement thereto

to contain any untrue statement of a material fact, or omit to state any

material fact required to be stated therein or necessary in order to make the

statements therein, in light of the circumstances under which they were made,

not misleading. Notwithstanding the foregoing, no representation is made by the

Company with respect to statements made in any such documents based on

information supplied by Parent or with respect to information concerning Parent

which is incorporated by reference in such documents.

Section 3.10. Compliance with Applicable Law; Permits.

(a) The Company, its Subsidiaries and their employees hold all

authorizations, permits, licenses, certificates, easements, concessions,

franchises, variances, exemptions, orders, consents, registrations, approvals

and clearances of all Governmental Entities (including, without limitation, all

those that may be required by the FDA or any other Governmental Entity engaged

in the regulation of the Company's products) which are required for the Company

and its Subsidiaries to own, lease, license and operate its properties and other

assets and to carry on their respective business in the manner described in the

Company SEC Documents filed prior to the date hereof and as they are being

conducted as of the date hereof (the "COMPANY PERMITS"), and all the Company

Permits are valid, and in full force and effect, except where the failure to

have, or the suspension or cancellation of, or the failure to be valid or in

full force and effect of, any such Company Permits would not, individually or in

the aggregate, reasonably be expected to have a Company Material Adverse Effect.

(b) The Company and its Subsidiaries are, and have been at all times

since January 1, 2001, in compliance with the terms of the Company Permits and

all applicable Laws relating to the Company and its Subsidiaries or their

respective businesses, assets or properties, except where the failure to be in

compliance with the terms of the Company Permits or such applicable Law would

not, individually or in the aggregate, reasonably be expected to have an Company

Material Adverse Effect. Since January 1, 2001, neither the Company nor any of

its Subsidiaries has received any notification from any Governmental Entity (i)

asserting that the Company or any of its Subsidiaries is not in material

compliance with, or at any time since such

<PAGE>

date has failed to materially comply with, applicable Law or (ii) threatening to

revoke any material Company Permit. As of the date hereof, no material

investigation or review by any Governmental Entity is pending or, to the

knowledge of the Company, has been threatened against the Company or any of its

Subsidiaries.

Section 3.11. Company Material Contracts; Defaults.

(a) As of the date hereof and except as filed as exhibits to the

Company's SEC Documents, neither the Company nor any of its Subsidiaries is a

party to, and none of their respective assets, businesses or operations is bound

by, any Contract (whether written or oral) that (i) is a "material contract" (as

such term is defined in Item 601(a)(10) of Regulation S-K promulgated under the

Securities Act), (ii) relates to any indebtedness in excess of $500,000, (iii)

provides for aggregate payments from it or any of its Subsidiaries in excess of

$500,000, has an unexpired term exceeding six months, cannot be terminated

without penalty upon not more than sixty (60) days' prior written notice, and

which has yet-to-be performed executory obligations, (iv) materially limits its

freedom or the freedom of any of its Subsidiaries to compete in any line of

business or with any Person or in any geographical area or which would so

materially limit its freedom or the freedom of any of its Subsidiaries so to

compete after the Effective Time, (v) relates to the research, development,

distribution, supply, license, co-promotion or manufacturing by other Persons of

Company Key Products which Contract, if terminated or non-renewed, would

reasonably be expected to have a material adverse effect on any Company Key

Product; (vi) that relates to a Company Key Product and purports to prohibit the

Company or any Subsidiary from contesting the validity or ownership of any other

Person's patent or from challenging the inventorship of any other Person's

invention; (vii) which relates to a Company Key Product and where, in settlement

of an actual or threatened action for patent infringement, trade secrets

misappropriation or similar intellectual property action, the Company or any

Subsidiary purports to acknowledge or agree that certain acts infringe or

misappropriate the rights of another Person; (viii) where, in settlement of an

actual or threatened action for patent infringement, trade secret

misappropriation or similar intellectual property action, another Person agrees

in writing not to contest the validity or ownership of Company Owned

Intellectual Property which relates to a Company Key Product; (ix) relating to

the right of the Company or any Subsidiary to use the name "McGhan"; or (x) to

the extent not included within the foregoing, each Company Material License

(collectively, the "COMPANY MATERIAL CONTRACTS"). Except for Company Material

Contracts which have expired pursuant to their terms after the date hereof, each

of the Company Material Contracts is valid and binding on the Company or its

Subsidiary party thereto and, to the Company's knowledge, each other Person

thereto, and is in full force and effect and enforceable against the Company or

such Subsidiary, as the case may be, in accordance with its terms (except as

enforcement may be limited by (i) applicable bankruptcy, insolvency,

reorganization, moratorium, fraudulent transfer and similar laws of general

applicability relating to or affecting creditors' rights or by general equity

principles and (ii) to the extent applicable, securities laws limitations on the

enforceability of provisions regarding indemnification in connection with the

sale or issuance of securities).

(b) Neither the Company nor any of its Subsidiaries is in violation,

breach or default under any of the Company Material Contracts, and there has not

occurred any event that, with the lapse of time or the giving of notice or both,

would constitute such a violation, breach or default, except for such breaches

or defaults that would not, individually or in the aggregate,

<PAGE>

reasonably be expected to result in a Company Material Adverse Effect. No other

Person has alleged or claimed that the Company or any of its Subsidiaries or, to

the Company's knowledge, any sublicensee of the Company or any of its

Subsidiaries, is in violation, breach or default under any Company Material

Contract, except for such breaches or defaults that would not, individually or

in the aggregate, reasonably be expected to result in a Company Material Adverse

Effect.

Section 3.12. Taxes.

(a) Each of the Company and its Subsidiaries has (i) duly and timely

filed with the appropriate Tax authority all Tax Returns required to be filed by

it through the date hereof, and all such Tax Returns are true, correct and

complete in all respects and (ii) paid all Taxes due and owing (whether or not

shown due on any Tax Returns), except in each case where the failure to pay such

Taxes or the failure of such Tax Returns to be true, correct or complete in all

respects would not, individually or in the aggregate, reasonably be expected to

have a Company Material Adverse Effect. Neither the Company nor any of its

Subsidiaries currently is the beneficiary of any extension of time within which

to file any material Tax Return. No written claim has ever been made by a Tax

authority in a jurisdiction where the Company and its Subsidiaries do not file

Tax Returns that the Company or any of its Subsidiaries is or may be subject to

taxation by that jurisdiction.

(b) The unpaid Taxes of the Company and its Subsidiaries did not, as

of the date of the financial statements contained in the most recent Company SEC

Filings, exceed the reserve for Tax liability (excluding any reserve for

deferred Taxes established to reflect timing differences between book and Tax

income) set forth on the face of the balance sheets (rather than in any notes

thereto) contained in such financial statements. Since the date of the financial

statements in the most recent Company SEC Filings, neither the Company nor any

of its Subsidiaries has incurred any liability for Taxes outside the ordinary

course of business or otherwise inconsistent with past custom and practice,

except for any liability for Taxes which would not, individually or in the

aggregate, reasonably be expected to have a Company Material Adverse Effect.

Company or any Subsidiary thereof, except for Liens (i) for Taxes contested in

good faith and reserved against in accordance with GAAP and reflected in the

Company SEC Reports filed prior to the date hereof or (ii) that would not,

individually or in the aggregate, reasonably be expected to have a Company

Material Adverse Effect.

(d) No deficiencies for Taxes with respect to any of the Company and

its Subsidiaries have been set forth or claimed in writing, or proposed or

assessed by a Tax authority. There are no pending or, to the knowledge of the

Company, proposed or threatened audits, investigations, disputes or claims or

other actions for or relating to any Liability for Taxes with respect to any of

the Company and its Subsidiaries, and there are no matters under discussion with

any Tax authority, or known to the Company, with respect to Taxes that are

likely to result in a material additional Liability for Taxes with respect to

any of the Company and its Subsidiaries. No issues relating to Taxes of the

Company or its Subsidiaries were raised by the relevant Tax authority in any

completed audit or examination that would reasonably be

<PAGE>

expected to recur with a Company Material Adverse Effect on Taxes in a later

taxable period. The Company has delivered or made available to Parent true and

complete copies of federal, state and local income Tax Returns of each of the

Company and its Subsidiaries and their predecessors for the years ended December

31, 2001, 2002, 2003 and promptly upon their availability, 2004, and true and

complete copies of all examination reports and statements of deficiencies

assessed against or agreed to by any of the Company and its Subsidiaries or any

predecessor, with respect to Taxes. None of the Company, any of its Subsidiaries

or any predecessor has waived any statute of limitations in respect of Taxes or

agreed to any extension of time with respect to a Tax assessment or deficiency,

or has made any request in writing for any such extension or waiver.

(e) Each of the Company and its Subsidiaries has withheld and paid

all material Taxes required to have been withheld and paid in connection with

amounts paid or owing to any employee, independent contractor, creditor,

stockholder or other third party, and all Tax Returns (including without

limitation all IRS Forms W-2 and 1099) required with respect thereto have been

properly completed and timely filed in all material respects. Neither the

Company nor any of its Subsidiaries has classified any individual as an

"independent contractor" or similar non-employee status who, according to any

Company Benefit Plan or applicable Law, should have been classified as an

employee.

(f) There are no Tax sharing agreements or similar arrangements

(including indemnity arrangements) with respect to or involving any of the

Company and its Subsidiaries, and, after the Closing Date, none of the Company

and its Subsidiaries shall be bound by any such Tax sharing agreements or

similar arrangements or have any Liability thereunder for amounts due in respect

of periods prior to the Closing Date.

(g) Except for the affiliated group of which the Company is the

common parent, each of the Company and its Subsidiaries is not and has never

been a member of an affiliated group of corporations within the meaning of

Section 1504 of the Code or any group that has filed a combined, consolidated or

unitary Tax Return. Neither the Company nor any of its Subsidiaries has

Liability for the Taxes of any Person (including an individual, corporation,

general or limited partnership, limited liability company, joint venture,

estate, trust, association, organization, labor union or other entity or

Governmental Entity) other than the Company and its Subsidiaries (i) under

Treasury Regulations Section 1.1502-6 (or any similar provision of state, local

or foreign law), (ii) as a transferee or successor, (iii) by contract, or (iv)

otherwise.

(h) The Company has not constituted either a "distributing

corporation" or a "controlled corporation" in a distribution of stock qualifying

for tax-free treatment under Section 355 of the Code (i) in the two (2) years

prior to the date of this Agreement, or (ii) in a distribution which could

otherwise constitute part of a "plan" or "series of related transactions"

(within the meaning of Section 355(e) of the Code) that includes the Merger.

(i) Neither the Company nor any of its Subsidiaries has taken any

action or knows of any fact that is reasonably likely to prevent the Merger from

qualifying as a "reorganization" within the meaning of Section 368(a) of the

Code.

<PAGE>

(j) None of the Company and its Subsidiaries (i) has consented at

any time under former Section 341(f)(1) of the Code to have the provisions of

former Section 341(f)(2) of the Code apply to any disposition of the assets of

the Company (or under any similar provision of state, local or foreign law);

(ii) has agreed, or is or was required, to make any adjustment under Section

481(a) of the Code by reason of a change in accounting method or otherwise (or

by reason of any similar provision of state, local or foreign law); (iii) has

ever been a United States real property holding corporation within the meaning

of Section 897(c)(2) of the Code; (iv) has been a stockholder of a "controlled

foreign corporation" as defined in Section 957 of the Code (or any similar

provision of state, local or foreign law), (v) has ever made an election under

Section 338 of the Code (or under any similar provisions of state, local or

foreign Law), (vi) has been a "personal holding company" as defined in Section

542 of the Code (or any similar provision of state, local or foreign law); (vii)

has had a material Liability with respect to Taxes as a result of being a

stockholder of a "passive foreign investment company" within the meaning of

Section 1297 of the Code; or (viii) has engaged in a trade or business, had a

permanent establishment (within the meaning of an applicable Tax treaty) or has

otherwise become subject to Tax jurisdiction in a country other than the country

of its formation.

(k) Neither the Company nor any of its Subsidiaries has been a party

to a "reportable transaction," as such term is defined in Treasury Regulations

Section 1.6011-4(b)(1) or to a transaction that is or is substantially similar

to a "listed transaction," as such term is defined in Treasury Regulations

Section 1.6011-4(b)(2), or any other transaction requiring disclosure under

analogous provisions of state, local or foreign Tax law. The Company has

disclosed on its federal income Tax Returns all positions taken therein that

could give rise to a substantial understatement of federal income Tax within the

meaning of Code Section 6662.

Section 3.13. Employee Benefit Plans; ERISA.

(a) Section 3.13(a) of the Company Disclosure Letter includes a

complete list, as of the date hereof, of each material employee benefit plan,

program or policy providing benefits to any current or former employee, officer

or director of the Company or any of its Subsidiaries or any beneficiary or

dependent thereof that is sponsored or maintained by the Company or any of its

Subsidiaries or to which the Company or any of its Subsidiaries contributes or

is obligated to contribute, or with respect to which the Company or any of its

Subsidiaries has or may have any Liability or obligations, including any

employee welfare benefit plan within the meaning of Section 3(1) of ERISA or any

employee pension benefit plan within the meaning of Section 3(2) of ERISA

(whether or not such plan is subject to ERISA) and any material bonus,

incentive, deferred compensation, vacation, stock purchase, stock option,

severance, employment, change of control or fringe benefit or similar

arrangement, agreement, plan, program or policy (collectively, the "COMPANY

BENEFIT PLANS"). The Company has made available to Parent a copy of each of the

Company Benefit Plans, including any amendments thereto, and where applicable,

any related trust agreement, annuity or insurance contract, the most recent

actuarial valuation, the most recent summary plan description, the most recent

prospectus, the most recent IRS determination letter, and the most recent annual

report (Form 5500) and audited financial statements.

(b) Except as would not, individually or in the aggregate,

reasonably be expected to have a Company Material Adverse Effect: (i) the

Company and its Subsidiaries have

<PAGE>

complied, and are now in compliance, with all provisions of all laws and

regulations applicable to Company Benefit Plans and each Company Benefit Plan

has been administered in accordance with its terms, including the making of all

required contributions and the reflection by the Company of all required

accruals on its financial statements; (ii) no event or condition exists which

would reasonably be expected to subject the Company or any of its Subsidiaries

to Liability in connection with the Company Benefit Plans or any plan, program,

or policy sponsored or contributed to by any of their respective ERISA

Affiliates other than the provision of benefits thereunder in the ordinary

course; and (iii) there are no pending or, to the Company's knowledge,

threatened Actions (other than claims for benefits in the ordinary course)

relating to Company Benefit Plans which have been asserted or instituted and

which would reasonably be expected to result in any Liability of the Company or

any of its Subsidiaries.

any other related agreement, the consummation of the transactions contemplated

hereby or thereby, or the stockholder approval of the Merger (either alone or in

conjunction with any other event, such as termination of employment) result in,

cause the accelerated vesting, exercisability, funding or delivery of, or

increase the amount or value of, any material payment or benefit to any current

or former employee, officer or director of the Company or any of its

Subsidiaries or any beneficiary or dependent thereof or result in a limitation

on the right of the Company or any of its Subsidiaries to amend, merge,

terminate or receive a reversion of assets from any Company Benefit Plan or

related trust.

(d) Section 3.13(d) of the Company Disclosure Letter identifies each

Company Benefit Plan that is intended to be a "qualified plan" within the

meaning of Section 401(a) of the Code or is intended to be similarly qualified

or registered under applicable foreign law (collectively, the "COMPANY QUALIFIED

PLANS"). Except as would not, individually or in the aggregate, reasonably be

expected to have a Company Material Adverse Effect, the IRS (or other relevant

foreign regulatory agency) has issued a favorable determination letter (or

similar approval under foreign law) with respect to each Company Qualified Plan

and the related trust that has not been revoked, and the Company knows of no

existing circumstances or events that have occurred that would reasonably be

expected to adversely affect the qualified status of any Company Qualified Plan

or the related trust, which cannot be cured without a Company Material Adverse

Effect.

(e) No Company Benefit Plan or Company ERISA Affiliate Plan is, or

has ever been, subject to Title IV or Section 302 of ERISA or Section 412 or

4971 of the Code.

(f) No Company Benefit Plan or Company ERISA Affiliate Plan is, or

has ever been, a Multiemployer Plan.

(g) There is no contract, agreement, plan or arrangement to which

the Company or any Subsidiary of the Company is a party, including but not

limited to the provisions of this Agreement, that, individually or collectively,

could give rise to the payment of any material amount that would not be

deductible pursuant to Section 162(m) of the Code.

(h) No amount that could be received (whether in cash or property or

the vesting of property), as a result of the execution and delivery of this

Agreement or any other

<PAGE>

related agreement, the consummation of the transactions contemplated hereby or

thereby, or the stockholder approval of the Merger (either alone or in

conjunction with any other event, such as termination of employment), by any

employee, officer or director of the Company or any Subsidiary of the Company

who is a "disqualified individual" (as such term is defined in Treasury

Regulation Section 1.280G-1) under any Company Benefit Plan or otherwise could

be characterized as a "parachute payment" (as defined in Section 280G(b)(2) of

the Code). The Company has made available to Parent all necessary information to

determine, as of the date hereof, the estimated maximum amount that could be

paid to each disqualified individual in connection with the transactions

contemplated by this Agreement under all employment, severance and termination

agreements, other compensation arrangements and Company Benefit Plans currently

in effect, assuming that the individual's employment with the Company is

terminated immediately after the Effective Time. The Company has also provided

to Parent (i) the grant dates, exercise prices and vesting schedules applicable

to each Company Option granted to the individual; (ii) the grant dates and

vesting schedules applicable to each grant of Company Restricted Stock, (iii)

the "base amount" (as defined in Section 280G(b)(e) of the Code) for each such

individual as of the date of this Agreement and (iv) the maximum additional

amount that the Company has an obligation to pay to each disqualified individual

to reimburse the disqualified individual for any excise tax imposed under

Section 4999 of the Code with respect to the disqualified individual's excess

parachute payments (including any taxes, interest or penalties imposed with

respect to the excise tax).

Section 3.14. Labor and Other Employment Matters(a) .

(a) Except as would not, individually or in the aggregate,

reasonably be expected to have a Company Material Adverse Effect, (i) no work

stoppage, slowdown, lockout, labor strike, material arbitration or other

material labor dispute against the Company or any of its Subsidiaries by

employees is pending or threatened, (ii) neither the Company nor any of its

Subsidiaries is delinquent in payments to any of its employees for any wages,

salaries, commissions, bonuses or other direct compensation for any services

performed for it or amounts required to be reimbursed to such employees, (iii)

the Company and each of its Subsidiaries are in compliance with all applicable

Laws respecting labor, employment, fair employment practices, terms and

conditions of employment, workers' compensation, occupational safety, plant

closings, and wage and hours, (iv) the Company and each of its Subsidiaries has

withheld all amounts required by Law or by agreement to be withheld from the

wages, salaries, and other payments to employees and is not liable for any

arrears of wages or any Taxes or any penalty for failure to comply with any of

the foregoing, (v) neither the Company nor any of its Subsidiaries is liable for

any payment to any trust or other fund or to any Governmental Entity, with

respect to unemployment compensation benefits, social security or other benefits

or obligations for employees (other than routine payments to be made in the

ordinary course of business consistent with past practice), (vi) there are no

material pending claims against the Company or any of its Subsidiaries under any

workers' compensation plan or policy or for long term disability and (vii) there

are no material controversies pending or, to the knowledge of the Company,

threatened, between the Company or any of its Subsidiaries and any of their

respective current or former employees, which controversies have or could

reasonably be expected to result in an action, suit, proceeding, claim,

arbitration or investigation before any Governmental Entity. To the Company's

knowledge, as of the date hereof, no employees of the Company or any of its

Subsidiaries are in any material respect in violation of any term of any

employment Contract,

<PAGE>

non-disclosure agreement, noncompetition agreement, or any restrictive covenant

to a former employer relating to the right of any such employee to be employed

by the Company or any of its Subsidiaries because of the nature of the business

conducted or presently proposed to be conducted by the Company or such

Subsidiary or to the use of trade secrets or proprietary information of others.

As of the date hereof, no employee of the Company or any of its Subsidiaries, at

the officer level or above, has given notice to the Company or any of its

Subsidiaries that any such employee intends to terminate his or her employment

with the Company or any of its Subsidiaries.

(b) Neither the Company nor any of its Subsidiaries is a party to or

otherwise bound by any collective bargaining Contract with a labor union or

labor organization, nor is any such Contract presently being negotiated. From

January 1, 2001 to the date hereof, there has not been a representation question

respecting any of the employees of the Company or any of its Subsidiaries and,

to the knowledge of the Company, there are no campaigns being conducted to

solicit cards from employees of the Company or any of its Subsidiaries to

authorize representation by any labor organization.

Disclosure Letter and has made available to Parent true and complete copies of

(i) all severance and employment agreements with directors, officers or

employees of or consultants to the Company or any of its Subsidiaries, (ii) all

severance programs and policies of each of the Company and each of its

Subsidiaries with or relating to its employees, and (iii) all plans, programs,

agreements and other arrangements of each of the Company and each of its

Subsidiaries with or relating to its directors, officers, employees or

consultants which contain change in control provisions. In no event will the

execution and delivery of this Agreement or any other related agreement, the

consummation of the transactions contemplated hereby or thereby, or the

stockholder approval of the Merger (either alone or in conjunction with any

other event, such as termination of employment) (x) result in any payment

(including, without limitation, severance, unemployment compensation, parachute

or otherwise) becoming due to any director or any employee of the Company or any

of its Subsidiaries or Affiliates from the Company or any of its Subsidiaries or

Affiliates under any Company Benefit Plan or otherwise, (y) significantly

increase any benefits otherwise payable under any Company Benefit Plan or

otherwise, or (z) result in any acceleration of the time of payment or vesting

of any benefits.

(d) Each current and, to the best of Company's knowledge, former

employee of the Company or any of its Subsidiaries who is or was engaged in the

invention of products or development of technology or authoring of computer

software or other copyrighted materials for the Company or any of its

Subsidiaries has executed a written contract obligating such Person to assign to

the Company or such Subsidiary all of his or her right, title and interest in

any such invention, technology or work of authorship, except where the failure

to have executed such a written contract would not, individually or in the

aggregate, reasonably be expected to have a Company Material Adverse Effect or a

material adverse effect on a Company Key Product.

Section 3.15. Environmental Matters. Except as would not,

individually or in the aggregate, reasonably be expected to have a Company

Material Adverse Effect: (a) the Company is now and always has been in material

compliance with all Environmental Laws; (b) the Company has all the

Environmental Permits necessary for the conduct and operation of the

<PAGE>

business as now being conducted, and all such permits are in good standing; (c)

there is not now and has not been any Hazardous Substance used, generated,

treated, stored, transported, disposed of, released, handled or otherwise

existing on, under, about, or emanating from or to, any Company owned, leased or

operated property associated with the business except in full compliance with

all applicable Environmental Laws; (d) the Company has not received any notice

of alleged, actual or potential responsibility for, or any inquiry or

investigation regarding, any release or threatened release of Hazardous

Substances or alleged violation of, or non-compliance with, any Environmental

Law, nor is the Company aware of any information which might form the basis of

any such notice or any claim; and (e) there is no site to which the Company has

transported or arranged for the transport of Hazardous Substances which to the

knowledge of the Company is or may become the subject of any environmental

action. True, complete and correct copies of the written reports, and all parts

thereof, of all environmental audits or assessments which have been conducted at

any Company owned, leased or operated property, have been provided.

Section 3.16. Intellectual Property.

(a) Section 3.16(a) of the Company Disclosure Letter sets forth a

true and complete list as of the date hereof of all (i) statutory invention

certificates, U.S. and foreign patents, utility models, and patent applications

and for each, its number, issue date, title, owner and priority information for

each country in which such patent has been issued, or the application number,

date of filing, title, owner and priority information for each country in which

an application is pending; (ii) Company Registered Brand Names, the registration

number thereof, and, if applicable, the class(es) of goods or the description(s)

of goods or services covered thereby, the countries in which each such Company

Registered Brand Name is registered, and the owner of each such Company

Registered Brand Name; (iii) Company Unregistered Brand Names, and, if

applicable, the application serial number thereof, the date of filing, the

countries in which such application was filed and the class of goods or the

description of goods or services sought to be covered thereby; (iv) copyright

registrations and the number, title of the work, and date of registration

thereof for each country in which such copyright has been registered; (v)

applications for registration of copyrights, the title of the work, and the date

and countries in which each such application was filed; and (vi) domain name

registrations, in each case set forth in subsections (i) through (vi) above,

included in the Company Owned Intellectual Property as of the date hereof.

(b) Section 3.16(b) of the Company Disclosure Letter sets forth a

complete and accurate list or description, as appropriate, of all Contracts as

of the date hereof by which the Company or any of its Subsidiaries has been

granted or has granted to others any license to Intellectual Property that is

used in or necessary for the conduct of the business of the Company or any of

its Subsidiaries, as conducted as of the date hereof, and where (i) such

Intellectual Property is embodied in any Company Key Products; (ii) the

termination or expiration of such agreement would reasonably be expected to have

a Company Material Adverse Effect, (iii) the agreement requires or reasonably

could be expected to require the Company or any of its Subsidiaries to pay or be

paid royalties or amounts to/from another Person in an aggregate amount of

$100,000 or more; (iv) the agreement purports to be an inbound or outbound

license of rights on an exclusive basis; or (v) the agreement relates to

Intellectual Property which, to the Company's knowledge, is co-owned by another

Person or as to which, to the Company's

<PAGE>

knowledge, another Person has a right to acquire, right of first refusal or

right of first negotiation (collectively, "COMPANY MATERIAL LICENSES");

provided, however, Section 3.16(b) of the Company Disclosure Letter need not

list licenses of computer software which computer software has not been

significantly modified or customized and that is widely available on

commercially reasonable terms. A true and complete copy of each Company Material

License has been made available to Parent.

Company Licensed Intellectual Property in connection with the operation of the

business of the Company or any of its Subsidiaries as conducted as of the date

hereof, and (ii) the manufacture, use, offer for sale, and sale of Company Key

Products (as such products exist as of the date hereof), do not, to the

Company's knowledge, infringe or misappropriate or otherwise violate the

Intellectual Property rights of any other Person, and no claim is pending or, to

the Company's knowledge, threatened against the Company or any of its

Subsidiaries alleging any of the foregoing.

(d) Except for the Company Material Licenses which Parent has been

provided copies, and applicable governmental and/or regulatory approvals, and as

listed in Section 3.16(d) of the Company Disclosure Letter, no right, license,

lease, consent, or other agreement is required with respect to any Intellectual

Property for the conduct of the business of the Company or any of its

Subsidiaries as conducted as of the date hereof that will require any material

payment or the undertaking of any material obligation by the Company or any of

its Subsidiaries.

(e) None of the patents or patent applications required to be listed

in Section 3.16(a) of the Company Disclosure Letter is involved in any

interference, reexamination, opposition or similar active proceeding which would

reasonably be expected to have a material adverse effect thereon, and to the

Company's knowledge, there has been no threat that any such proceeding will

hereafter be commenced. None of the Company Registered Brand Names or Company

Unregistered Brand Names required to be listed in Section 3.16(a) of the Company

Disclosure Letter is involved in any opposition, cancellation, nullification,

interference, or similar active proceeding which would reasonably be expected to

have a material adverse effect thereon, and to the Company's knowledge, there

has been no threat that any such proceeding will hereafter be commenced.

(f) The Company or a Subsidiary of the Company is the exclusive

owner of the entire and unencumbered right, title and interest in and to each

item of the Company Owned Intellectual Property. The Company or a Subsidiary of

the Company is entitled to use the Company Owned Intellectual Property and

Company Licensed Intellectual Property in the ordinary course of its business as

presently conducted, subject only to the terms of the Company Material Licenses

of which Parent has been provided copies.

(g) Other than the Company Owned Intellectual Property and Company

Licensed Intellectual Property, there are no items of Intellectual Property that

are necessary to the conduct of the business of the Company or any of its

Subsidiaries as conducted as of the date hereof. To the knowledge of the

Company, the Company Owned Intellectual Property is valid and enforceable, and

the Company has the right to enforce such Company Owned Intellectual Property

that has not been licensed to another Person on an exclusive basis, and such

Intellectual

<PAGE>

Property has not been adjudged by a court of competent jurisdiction to be

invalid or unenforceable (except for challenges and adjudications that may be

received in the ordinary course of the prosecution of Intellectual Property

applications in Intellectual Property offices) in whole or part.

(h) No legal proceedings are pending or, to the Company's knowledge,

are threatened against the Company or any of its Subsidiaries or licensors of

Company Licensed Intellectual Property (i) based upon, challenging or seeking to

deny or restrict the use by the Company of any of the Company Owned Intellectual

Property or Company Licensed Intellectual Property, (ii) alleging that any

services provided by, processes used by, or products manufactured or sold or to

be manufactured or sold by the Company or any of its Subsidiaries or any other

operation of the business of the Company or any of its Subsidiaries infringes,

misappropriates or violates any Intellectual Property right of any other Person,

or (iii) alleging that the Company Material Licenses conflict with the terms of

any other Person's license or other agreement.

(i) To the Company's knowledge, no other Person is engaging in any

activity that infringes or misappropriates the Company Owned Intellectual

Property or Company Licensed Intellectual Property as of the date hereof. The

Company and its Subsidiaries have not granted any material license or other

material right to any other Person with respect to the Company Owned

Intellectual Property or Company Licensed Intellectual Property as of the date

hereof other than pursuant to agreements listed in Section 3.11(a) or 3.16(b) of

the Company Disclosure Letter.

(j) To the Company's knowledge, all material software used in the

business of the Company or any of its Subsidiaries is free of all viruses, worms

and Trojan horses that would, individually or in the aggregate, reasonably be

expected to have a Company Material Adverse Effect.

(k) The Company and its Subsidiaries have a license to use all

software development tools, library functions, compilers and other third-party

software that are material to the business of the Company or any of its

Subsidiaries as presently conducted, or that are required to operate or modify

the software used in the Company's or any of its Subsidiaries' business as

presently conducted, except for such licenses the failure of which to obtain

would not, individually or in the aggregate, reasonably be expected to have a

Company Material Adverse Effect.

(l) The Company and its Subsidiaries have taken commercially

reasonable measures (but at least commensurate with industry standards) to

maintain their material trade secrets in confidence, including contractually

requiring licensees, contractors and other Persons with access to such trade

secrets to keep such trade secrets confidential.

(m) To the knowledge of the Company, as of the date hereof (i) there

has been no misappropriation of any material trade secrets or other material

confidential Intellectual Property of the Company or any of its Subsidiaries by

any Person, (ii) no employee, independent Contractor or agent of the Company or

any of its Subsidiaries has misappropriated any material trade secrets of any

other Person in the course of such performance as an employee, independent

<PAGE>

contractor or agent, and (iii) no employee, independent contractor or agent of

the Company or any of its Subsidiaries is in material default or breach of any

term of any employment agreement, nondisclosure agreement, assignment of

invention agreement or similar agreement or Contract which has or is likely to

have a Company Material Adverse Effect.

(n) The Company and each of its Subsidiaries has secured valid

written assignments from all current employees and, to the best of the Company's

knowledge, all former employees, who contributed to the creation or development

of Company Owned Intellectual Property or the rights to such contributions that

the Company or such Subsidiary does not already own by operation of law, and all

of its employees have assigned to the Company or such Subsidiary the rights to

such contributions that the Company or such Subsidiary does not already own by

operation of law, except where the failure to have secured such written

assignments would not, individually or in the aggregate, reasonably be expected

to have a Company Material Adverse Effect or a material adverse effect on any

Company Key Product. All employees of the Company or any of its Subsidiaries

with access to material confidential information of the Company or any of its

Subsidiaries, which information relates to a Company Key Product, are parties to

written agreements under which, among other things, each such employee is

obligated to maintain the confidentiality of confidential information of the

Company or any of its Subsidiaries, except where the absence of such written

agreements would not, individually or in the aggregate, reasonably be expected

to have a Company Material Adverse Effect or a material adverse effect on any

Company Key Product. To the knowledge of the Company, as of the date hereof, no

employees of the Company or any of its Subsidiaries are in violation thereof.

(o) The execution, delivery and performance of this Agreement, and

the consummation of the transactions contemplated hereby, will not result in or

give rise to (i) any right of termination or other right to impair or limit any

of the Company's rights to own or license any of the Company Owned Intellectual

Property or Company Licensed Intellectual Property, or (ii) the inability (for

any period of time) of the Surviving Corporation to succeed to the rights and

perform the obligations of the Company with respect to the Company Owned

Intellectual Property and Company Licensed Intellectual Property, pursuant to

the terms of this Agreement.

(p) To the Company's knowledge, there are no facts or circumstances

that materially adversely affect or are reasonably likely to materially

adversely affect the continued supply (either for clinical purposes or in bulk)

of the active ingredients of the pharmaceutical products currently used in

clinical trials by or for the Company or any of its Subsidiaries.

Section 3.17. Real Property.

(a) Section 3.17(a) of the Company Disclosure Letter sets forth a

complete list, as of the date hereof, of all material real property owned by the

Company or any of its Subsidiaries as of the date hereof ("COMPANY OWNED REAL

PROPERTY"). The Company and each of its Subsidiaries has good and valid title in

fee simple to all Company Owned Real Property, free and clear of all mortgages,

liens, pledges, charges or encumbrances of any nature whatsoever, except (i)

liens for current taxes, payments of which are not yet delinquent or are being

disputed in good faith, (ii) such imperfections in title and easements and

encumbrances, if any, as are not substantial in character, amount or extent and

do not materially detract from the

<PAGE>

value, or interfere with the present use of the property subject thereto or

affected thereby, or otherwise materially impair the Company's business

operations (in the manner presently carried on by the Company), or (iii) for

such matters which would not, individually or in the aggregate, reasonably be

expected to have a Company Material Adverse Effect.

(b) Section 3.17(b) of the Company Disclosure Letter sets forth a

complete list, as of the date hereof, of all material real property leased by

the Company or any of its Subsidiaries as of the date hereof ("COMPANY MATERIAL

LEASED REAL PROPERTY"). A copy of the lease for each Company Material Leased

Real Property (the "COMPANY LEASES") has been filed as an exhibit to the Company

SEC Documents prior to the date hereof or has been delivered or made available

to Parent and Merger Sub. With respect to each of the Company Leases: (i) such

Company Lease is legal, valid, and binding on the Company or its Subsidiary

party thereto, and, to the Company's knowledge, each other Person thereto, and

is enforceable and in full force and effect, except as such enforceability may

be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws

relating to or affecting the rights and remedies of creditors generally and the

effect of general principles of equity (regardless of whether such

enforceability is considered in a proceeding in equity or at law); (ii) the

transactions contemplated by this Agreement do not require the consent of any

other party to such Company Lease, will not result in a breach of or default

under such Company Lease, or otherwise cause such Company Lease to cease to be

legal, valid, binding, enforceable and in full force and effect on identical

terms following the Closing; (iii) neither the Company nor any of its

Subsidiaries, as the case may be, nor, to the knowledge of the Company or any of

its Subsidiaries, as the case may be, any other party to the Company Lease is in

material breach or default under such Company Lease, and no event has occurred

or failed to occur or circumstance exists which, with the delivery of notice,

the passage of time or both, would constitute such a breach or default, or

permit the termination, modification or acceleration of rent under such Company

Lease; (iv) the other party to such Company Lease is not an Affiliate of, and

otherwise does not have any economic interest in, the Company or any of its

Subsidiaries; (v) neither the Company nor any of its Subsidiaries, as the case

may be, has subleased, licensed or otherwise granted any Person the right to use

or occupy such Company Material Leased Real Property or any portion thereof; and

(vi) neither the Company nor any of its Subsidiaries, as the case may be, has

collaterally assigned or granted any other security interest in such Company

Lease or any interest therein, except in the case of (i) through (vi) above, for

any such case that would not, individually or in the aggregate, reasonably be

expected to have a Company Material Adverse Effect.

improvements on the Company Material Leased Real Property are, in all material

respects, in conformity with all Laws, including all applicable zoning Laws,

ordinances and regulations and with all registered deeds or other restrictions

of record, and neither the Company nor any of its Subsidiaries, as the case may

be, has received any written notice of violation thereof, except for such

nonconformities or violations that would not, individually or in the aggregate,

reasonably be expected to have a Company Material Adverse Effect. Neither the

Company nor any of its Subsidiaries, as the case may be, has received any

written notice of any material conflict or dispute with any regulatory authority

or other Person relating to any Company Material Leased Real Property or the

activities thereon, other than where there is no current or reasonably likely

material interference with the operations at the Company Material Leased Real

Property as presently conducted (or as would be conducted at full capacity).

<PAGE>

(d) Neither the Company nor any of its Subsidiaries, as the case may

be, has received any notice from any insurance company of any material defects

or inadequacies in the Company Material Leased Real Property or any part

thereof, which would materially and adversely affect the insurability of the

same or of any termination or threatened (in writing) termination of any policy

of insurance relating to any such Company Material Leased Real Property.

Section 3.18. Regulatory Compliance.

(a) Neither the Company nor any of its Subsidiaries has knowledge of

any actual or threatened enforcement action by the FDA or any other Governmental

Entity which has jurisdiction over the operations of the Company and its

Subsidiaries, and none has received notice of any pending or threatened claim

against either the Company, its Subsidiaries or any Company Partner, and the

Company and its Subsidiaries have no knowledge or reason to believe that any

Governmental Entity is considering such action, except where such action would

not, individually or in the aggregate, reasonably be expected to have a Company

Material Adverse Effect.

(b) All material reports, documents, claims and notices required to

be filed, maintained, or furnished to the FDA or any Governmental Entity by the

Company, its Subsidiaries, or, to the knowledge of the Company, Company Partners

have been so filed, maintained or furnished. All such reports, documents,

claims, and notices were complete and correct in all material respects on the

date filed (or were corrected in or supplemented by a subsequent filing) such

that no liability exists with respect to such filing.

date hereof, the Company, its Subsidiaries and, to the knowledge of the Company,

Company Partners have not received any FDA Form 483, notice of adverse finding,

Warning Letters, untitled letters or other correspondence or notice from the

FDA, or other Governmental Entity alleging or asserting noncompliance with any

applicable Laws or any licenses, approvals, clearances, authorizations,

registrations, certificates, permits, filings, notifications and supplements or

amendments thereto required by any applicable Laws, and the Company and its

Subsidiaries have no knowledge or reason to believe that the FDA or any

Governmental Entity is considering such action, except where such action would

not, individually or in the aggregate, reasonably be expected to have a Company

Material Adverse Effect.

(d) All material licenses, approvals, clearances, authorizations,

registrations, certificates, permits, filings, notifications and supplements or

amendments thereto that the Company, its Subsidiaries, or, to the knowledge of

the Company, Company Partners has received or made to the FDA or any other

Governmental Entity has not been limited, suspended, modified or revoked and the

Company and its Subsidiaries have no knowledge or reason to believe that the FDA

or any other Governmental Entity is considering such action.

(e) All studies, tests and preclinical and clinical trials being

conducted by the Company or its Subsidiaries are, and any such studies or trials

being conducted by a Company Partner are to the knowledge of the Company being

conducted in material compliance with experimental protocols, procedures and

controls pursuant to accepted professional scientific

<PAGE>

standards and applicable local, state and federal Laws, rules, regulations and

guidances, including, but not limited to the applicable requirements of Good

Laboratory Practices or Good Clinical Practices, as applicable, and the FDCA and

its implementing regulations including, but not limited to, 21 C.F.R. Parts 50,

54, and 56, 58 and 312. The descriptions of the studies, tests and preclinical

and clinical trials, including the related results and regulatory status are

accurate and complete in all material respects. The Company and its Subsidiaries

are not aware of any studies, tests or trials the results of which call into

question the clinical results described or referred to in the Company Disclosure

Letter and Company SEC reports when viewed in the context in which such results

are described and the clinical state of development. The Company and its

Subsidiaries have not received any notices, correspondence or other

communication from the FDA or any other Governmental Entity requiring the

termination, suspension or material modification of any clinical trials

conducted by, or on behalf of, the Company or its Subsidiaries, or in which the

Company or its Subsidiaries have participated, and the Company and its

Subsidiaries have no knowledge or reason to believe that the FDA or any other

Governmental Entity is considering such action, except where such action would

not, individually or in the aggregate, reasonably be expected to have a Company

Material Adverse Effect.

(f) The manufacture of products by the Company and its Subsidiaries

is, and the manufacture of products by Company Partners is to the knowledge of

the Company, being conducted in material compliance with all applicable Laws

including the FDA's current Good Manufacturing Practices. In addition, the

Company and its Subsidiaries and, to the knowledge of the Company, the Company

Partners, are in material compliance with all other applicable FDA requirements,

including, but not limited to, registration and listing requirements set forth

in 21 U.S.C. Section 360 and 21 C.F.R. Part 207 and all other applicable Law.

(g) The Company and its Subsidiaries have not either voluntarily or

involuntarily, initiated, conducted, or issued, or caused to be initiated,

conducted or issued, any recall, market withdrawal or replacement, safety alert,

warning, "dear doctor" letter, investigator notice or other notice or action

relating to an alleged lack of safety or efficacy of any product or product

candidate. The Company and its Subsidiaries are not aware of any facts which are

reasonably likely to cause (1) the recall, market withdrawal or replacement of

any product sold or intended to be sold by the Company or its Subsidiaries; (2)

a change in the marketing classification or a material change in labeling of any

such products, or (3) a termination or suspension of marketing of any such

products.

(h) The Company and its Subsidiaries are and at all times have been

in material compliance with federal or state criminal or civil laws (including

without limitation the federal Anti-Kickback Statute (42 U.S.C. Section

1320a-7b(b)), Stark Law (42 U.S.C. Section 1395nn), False Claims Act (31 U.S.C.

Section 3729 et seq.), Health Insurance Portability and Accountability Act of

1996 (Pub. L. No. 104-191), and any comparable state laws), or the regulations

promulgated pursuant to such Laws, or which are cause for civil penalties or

mandatory or permissive exclusion from Medicare, Medicaid or any other state or

federal health care program ("PROGRAM"). There is no civil, criminal,

administrative or other action, suit, demand, claim, hearing, investigation,

proceeding, notice or demand pending, received or, to the knowledge of the

Company, threatened against the Company or any of its Subsidiaries which could

reasonably result in its exclusion from participation in any Program or other

third party payment programs in which the Company or any of its Subsidiaries

participates.

<PAGE>

(i) To the Company's knowledge, the Company and each Subsidiary are

and have been in substantial compliance with all applicable Laws and regulations

related to 21 C.F.R. Part 11 compliance. The Company and each Subsidiary have

policies and procedures or a formal compliance program to ensure compliance with

all requirements of 21 C.F.R. Part 11, including those necessary: (i) to ensure

that its records are validated and audit trails are generated, such that

procedure is compliant with the legal requirements imposed by the appropriate

jurisdictions and the jurisdictions in which the Company conducts business; (ii)

to analyze and evaluate the potential risks and failures associated with the use

of electronic records and electronic signatures; and (iii) to train and educate

its new and current employees as required by Law. All such policies, procedures

or formal compliance programs are in full compliance with applicable Laws and

regulations. A true, accurate and complete copy of the written policies and

procedures or formal compliance program described immediately above has been

provided to Parent.

Section 3.19. Insurance.

(a) The Company has provided or made available to Parent true,

correct and complete copies of its director and officer and employee and officer

insurance policies and all policies of insurance material to the Company and its

Subsidiaries, taken as a whole, to which the Company or its Subsidiaries is a

party or is a beneficiary or named insured. The Company and its Subsidiaries

maintain insurance coverage with reputable insurers in such amounts and covering

such risks as are appropriate and reasonable, considering the Company's and its

Subsidiaries' properties, business and operations.

(b) Excluding insurance policies that have expired and been replaced

in the ordinary course of business, as of the date of this Agreement, to the

Company's knowledge, no threat in writing has been made to cancel (excluding

cancellation upon expiration or failure to renew) any such insurance policy of

the Company or any Subsidiary of the Company during the period of one year prior

to the date hereof. As of the date hereof, to the Company's knowledge, no event

has occurred, including the failure by the Company or any Subsidiary of the

Company to give any notice or information or by giving any inaccurate or

erroneous notice or information, which materially limits or impairs the rights

of the Company or any Subsidiary of the Company under any such excess Liability

or protection and indemnity insurance policies.

Section 3.20. Opinion of Financial Advisor. The Company's financial

advisor, JP Morgan Securities Inc. (the "COMPANY FINANCIAL ADVISOR"), has

delivered to the Company's Board of Directors an oral opinion, to be confirmed

in writing, to the effect that, as of the date of this Agreement, the Merger

Consideration is fair, from a financial point of view, to the holders of Company

Common Stock.

Section 3.21. Brokers and Finders. The Company and its Subsidiaries

have not entered into any contract, arrangement or understanding with any Person

or firm which may result in the obligation of the Company or any of its

Subsidiaries to pay any investment banking fees, finder's fees, or brokerage

commissions in connection with the transactions contemplated hereby, other than

fees payable to the Company Financial Advisor. The Company has delivered to

Parent a true and complete copy of the engagement letter between the Company and

the Company Financial Advisor.

<PAGE>

Section 3.22. Foreign Corrupt Practices and International Trade

Sanctions. To the Company's knowledge, neither the Company, nor any of its

Subsidiaries, nor any of their respective directors, officers, agents, employees

or any other Persons acting on their behalf has, in connection with the

operation of their respective businesses, (i) used any corporate or other funds

for unlawful contributions, payments, gifts or entertainment, or made any

unlawful expenditures relating to political activity to government officials,

candidates or members of political parties or organizations, or established or

maintained any unlawful or unrecorded funds in violation of Section 104 of the

Foreign Corrupt Practices Act of 1977, as amended (the "FCPA"), or any other

similar applicable foreign, Federal or state Law, (ii) paid, accepted or

received any unlawful contributions, payments, expenditures or gifts, or (iii)

violated or operated in noncompliance with any export restrictions, anti-boycott

regulations, embargo regulations or other applicable domestic or foreign Laws

and regulations, in each case, except as is not, individually or in the

aggregate, reasonably likely to have a Company Material Adverse Effect.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF PARENT

Parent represents and warrants to the Company that except as set forth

in the disclosure letter dated as of the date hereof delivered by Parent to the

Company (the "PARENT DISCLOSURE LETTER"):

Section 4.01. Organization and Qualification. Parent is a corporation

duly organized and validly existing under the laws of the State of Delaware and

has the requisite corporate power and authority to own, lease, license and

operate its assets and properties and to carry on its business as it is now

being conducted. Parent is qualified to transact business and, where applicable,

is in good standing in each jurisdiction in which the properties owned, leased,

licensed or operated by it or the nature of the business conducted by it makes

such qualification necessary, except as would not, individually or in the

aggregate, reasonably be expected to have a Parent Material Adverse Effect.

True, accurate and complete copies of the certificate of incorporation and

bylaws of Parent, in each case, as amended and in effect on the date hereof,

including all amendments thereto, have heretofore been filed with the SEC or

delivered to the Company.

Section 4.02. Capitalization.

(a) The authorized capital stock of Parent consists of 150,000,000

shares of Parent Common Stock, 1,000,000 shares of Class B common stock, par

value $0.014 per share ("PARENT CLASS B STOCK"), and 5,000,000 shares of

preferred stock, par value $0.01 per share ("PARENT PREFERRED STOCK"). As of

March 18, 2005, (i) 54,252,846 shares of Parent Common Stock, including in each

case the associated Parent Rights, were issued and outstanding, (ii) no shares

of Parent Class B Stock or Parent Preferred Stock were issued or outstanding,

(iii) 12,712,554 shares of Parent Common Stock were held in the treasury of

Parent, (iv) 13,839,278 shares of Parent Common Stock were reserved for issuance

upon exercise of Parent Stock Options issued and outstanding, (v) a variable

number of shares of Parent Common Stock were subject to outstanding convertible

debt (the "CONVERTIBLE NOTES"), (vi) 2,217,648 shares of Parent Common Stock

were authorized and reserved for future issuance pursuant to the Parent

<PAGE>

Stock Plans (other than shares of Parent Common Stock Authorized and reserved

for future issuance upon exercise of Parent Stock Options issued and

outstanding), and (vii) 623,669 shares of Parent Preferred Stock were designated

as Series A Junior Participating Preference Stock, par value $0.01 per share,

and were reserved for issuance upon exercise of Parent Rights issued pursuant to

the Parent Rights Agreement. Parent has delivered or made available to the

Company a complete and correct copy of the Parent Rights Agreement as in effect

on the date hereof. Each issued and outstanding share of capital stock of Parent

is, and each share of Parent Common Stock reserved for issuance as specified

above will be, upon issuance on the terms and conditions specified in the

instruments pursuant to which it is issuable, duly authorized, validly issued,

fully paid, nonassessable and free of preemptive rights. Since March 18, 2005

through the date hereof, except as permitted by this Agreement, (i) no shares of

Parent Common Stock have been issued, except in connection with the exercise of

Parent Stock Options issued and outstanding and (ii) no options, warrants,

securities convertible into, or commitments with respect to the issuance of,

shares of capital stock of Parent have been issued, granted or made, except

Parent Rights in accordance with the terms of the Parent Rights Agreement.

(b) Except for Parent Rights and Parent Stock Options issued and

outstanding and the Convertible Notes, as of the date hereof, there are no

outstanding subscriptions, options, calls, contracts, commitments,

understandings, restrictions, arrangements, rights or warrants, including any

right of conversion or exchange under any outstanding security, instrument or

other agreement and also including any rights plan or other anti-takeover

agreement, obligating Parent or any Subsidiary of Parent to issue, deliver or

sell, or cause to be issued, delivered or sold, additional shares of Parent

Common Stock or obligating Parent or any Subsidiary of Parent to grant, extend

or enter into any such agreement or commitment. As of the date hereof, there are

no obligations, contingent or otherwise, of Parent to (i) repurchase, redeem or

otherwise acquire any shares of Parent Common Stock or the capital stock or

other equity interests of any Subsidiary of Parent or (ii) provide material

funds to, or make any material investment in (in the form of a loan, capital

contribution or otherwise), or provide any guarantee with respect to the

obligations of, any Person other than a Subsidiary. There are no outstanding

stock appreciation rights or similar derivative securities or rights of Parent

or any of its Subsidiaries. There are no bonds, debentures, notes or other

indebtedness of Parent having the right to vote (or convertible into, or

exchangeable for, securities having the right to vote) on any matters on which

stockholders of Parent may vote. There are no voting trusts, irrevocable proxies

or other agreements or understandings to which Parent or any Subsidiary of

Parent is a party or is bound with respect to the voting of any shares of Parent

Common Stock. None of the Company and its Subsidiaries shall become an

"Acquiring Person" and no "Shares Acquisition Date" shall occur as a result of

the execution, delivery and performance of this Agreement and the consummation

of the Merger, and no "Distribution Date" shall occur as a result of the

announcement of or the execution of this Agreement or any of the transactions

contemplated hereby. As used in this Section 4.02(b), the terms "Acquiring

Person," "Distribution Date" and "Shares Acquisition Date" shall have the

meanings ascribed to such terms in the Parent Rights Agreement. Parent has not

agreed to register any securities under the Securities Act or under any state

securities law or granted registration rights to any Person (except rights which

have terminated or expired). Neither Parent nor any of its Subsidiaries has any

outstanding obligations in respect of prior acquisitions of businesses to pay,

in the form of securities, cash or other property, any portion of the

consideration payable to the seller or sellers in such transaction.

<PAGE>

correct copies of each Parent Stock Plan. Section 4.02(c) of the Parent

Disclosure Letter sets forth a complete and correct list as of March 18, 2005,

of all holders of outstanding Parent Stock Options, whether or not granted under

the Parent Stock Plans, including the date of grant, the number of shares of

Parent Common Stock originally granted subject to each such option, the exercise

price per share, the exercise and vesting schedule, the number of shares of

Parent Common Stock remaining subject to each such option, and the maximum term

of each such option. Complete and correct copies of the relevant forms of

written agreements, including forms of amendments thereto, evidencing the grant

of Parent Stock Options have been provided to the Company by Parent.

Section 4.03. Subsidiaries. Each Subsidiary of Parent is duly organized,

validly existing and, where applicable, in good standing under the laws of its

jurisdiction of organization and has the requisite power and authority to own,

lease, license and operate its assets and properties and to carry on its

business as it is now being conducted, and each Subsidiary of Parent is

qualified to transact business, and is in good standing, in each jurisdiction in

which the properties owned, leased, licensed or operated by it or the nature of

the business conducted by it makes such qualification necessary, except in all

cases as would not, individually or in the aggregate, reasonably be expected to

have a Parent Material Adverse Effect. All of the outstanding shares of capital

stock or other equity interests of each Subsidiary of Parent are validly issued,

fully paid, nonassessable and free of preemptive rights and are owned directly

or indirectly by Parent. There are no subscriptions, options, warrants, voting

trusts, proxies or other commitments, understandings, restrictions or

arrangements relating to the issuance, sale, voting or transfer of any shares of

capital stock or other equity interests of any Subsidiary of Parent, including

any right of conversion or exchange under any outstanding security, instrument

or agreement. Parent has no material investment in any entity other than its

Subsidiaries.

Section 4.04. Authority; Non-Contravention; Approvals.

(a) Parent has all necessary power and authority to execute and deliver

this Agreement, to perform its obligations hereunder and, subject to obtaining

necessary stockholder approval in connection with this Agreement and the Merger,

to consummate the Merger and the other transactions contemplated by this

Agreement. The execution, delivery and performance by Parent of this Agreement,

and the consummation by Parent of the Merger and the other transactions

contemplated by this Agreement, have been duly authorized by all necessary

corporate action on the part of Parent, and no other corporate proceedings on

the part of Parent are necessary to authorize this Agreement or to consummate

the Merger or the other transactions contemplated by this Agreement (other than

the approval of the Share Issuance by Parent's stockholders and the filing and

recordation of appropriate merger documents as required by the DGCL and approval

of this Agreement by Parent as the sole stockholder of Merger Sub (which

approval of Parent shall be obtained promptly after the date hereof)). This

Agreement has been duly executed and delivered by Parent and Merger Sub and,

assuming the due authorization, execution and delivery by the Company,

constitutes a valid and binding obligation of Parent enforceable against Parent

in accordance with its terms, except as such enforceability may be limited by

bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to

or affecting the rights and remedies of creditors generally and the effec

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