Agreement and Plan of Merger

Exhibit 2.1

Agreement and Plan of Merger

dated as of May 12, 2008

among

Intercell AG,

Zebra Merger Sub, Inc.

and

Iomai Corporation

Table of Contents

		Page
ARTICLE 1 THE MERGER			1
SECTION 1.1. The Merger			1
SECTION 1.2. Effects of the Merger			2
SECTION 1.3. Closing			2
SECTION 1.4. Consummation of the Merger			2
SECTION 1.5. Organizational Documents; Directors and Officers			2
ARTICLE 2 EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES			3
SECTION 2.1. Conversion of Merger Sub Capital Stock			3
SECTION 2.2. Conversion of Company Common Stock			3
SECTION 2.3. Exchange of Certificates			4
SECTION 2.4. Company Options			6
SECTION 2.5. Warrants			7
SECTION 2.6. Taking of Necessary Action; Further Action			7
SECTION 2.7. Adjustments to Prevent Dilution			8
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY			8
SECTION 3.1. Organization			8
SECTION 3.2. Capitalization			9
SECTION 3.3. Authorization; No Conflict			10
SECTION 3.4. Subsidiaries			12
SECTION 3.5. SEC Reports and Financial Statements			12
SECTION 3.6. Absence of Material Adverse Changes, etc.			15
SECTION 3.7. Litigation			15
SECTION 3.8. Information Supplied			15
SECTION 3.9. Broker’s or Finder’s Fees			15
SECTION 3.10. Employee Plans			16
SECTION 3.11. Opinion of Cowen			18
SECTION 3.12. Taxes			18
SECTION 3.13. Environmental Matters			19
SECTION 3.14. Compliance			21
SECTION 3.15. Intellectual Property			24
SECTION 3.16. Material Contracts			27
SECTION 3.17. Government Contract Regulatory Matters			29
SECTION 3.18. Employment Matters			31
SECTION 3.19. Real Property			32
SECTION 3.20. Insurance			33

		Page
SECTION 3.21. Affiliate Transactions			33
SECTION 3.22. State Takeover Statutes			33
SECTION 3.23. Assets			33
SECTION 3.24. Foreign Corrupt Practices Act			34
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB			34
SECTION 4.1. Organization			34
SECTION 4.2. Merger Sub			34
SECTION 4.3. Authorization; No Conflict			34
SECTION 4.4. Information Supplied			36
SECTION 4.5. Broker’s or Finder’s Fees			36
SECTION 4.6. Available Funds			36
SECTION 4.7. Absence of Litigation			36
SECTION 4.8. No Ownership of Company Capital Stock			36
ARTICLE 5 CONDUCT OF BUSINESS PENDING THE MERGER			36
SECTION 5.1. Conduct of Business by the Company Pending the Merger			36
SECTION 5.2. Conduct of Business by Parent Pending the Merger			40
ARTICLE 6 ADDITIONAL AGREEMENTS			40
SECTION 6.1. Preparation of Proxy Statement; Stockholders Meeting			40
SECTION 6.2. Employee Benefit Matters			41
SECTION 6.3. Regulatory Filings			42
SECTION 6.4. Public Statements			42
SECTION 6.5. Standard of Efforts			42
SECTION 6.6. Notification of Certain Matters			44
SECTION 6.7. Access to Information; Confidentiality			44
SECTION 6.8. No Solicitation			44
SECTION 6.9. Indemnification and Insurance			47
SECTION 6.10. Section 16 Matters			49
SECTION 6.11. Stockholder Litigation			49
SECTION 6.12. Estoppel Certificate			49
SECTION 6.13. Interim Financing			49
ARTICLE 7 CONDITIONS			50
SECTION 7.1. Conditions to Each Party’s Obligation To Effect the Merger			50
SECTION 7.2. Conditions to Obligations of Parent and Merger Sub			51
SECTION 7.3. Conditions to Obligation of the Company			52
SECTION 7.4. Frustration of Conditions			52
ARTICLE 8 TERMINATION, AMENDMENT AND WAIVER			52
SECTION 8.1. Termination			52
SECTION 8.2. Effect of Termination			54
SECTION 8.3. Fees and Expenses			54

		Page
SECTION 8.4. Amendment			57
SECTION 8.5. Waiver			57
ARTICLE 9 GENERAL PROVISIONS			57
SECTION 9.1. Notices			57
SECTION 9.2. Representations and Warranties			58
SECTION 9.3. Knowledge Qualifiers			58
SECTION 9.4. Interpretations			58
SECTION 9.5. Governing Law; Jurisdiction			59
SECTION 9.6. Counterparts; Facsimile Transmission of Signatures			59
SECTION 9.7. Assignment; No Third Party Beneficiaries			59
SECTION 9.8. Severability			60
SECTION 9.9. Entire Agreement			60
SECTION 9.10. Enforcement			60

Defined Terms

Affiliate			33
Agreement			1
Appraisal Shares			3
Authorizations			22
Average Price			56
Bankruptcy and Equity Exception			11
Bayh-Dole Act			25
Business Day			59
Certificate of Merger			2
Certificates			4
CFIUS			12
Closing			2
Closing Date			2
Code			6
Company			1
Company Adverse Recommendation Change			46
Company Board			6
Company Charter Documents			9
Company Common Stock			1
Company Disclosure Letter			8
Company Employee			41
Company Employee Benefit Plan			16
Company Financial Statements			13
Company Intellectual Property			25
Company Material Adverse Effect			8
Company Preferred Stock			9
Company Recommendation			41
Company SEC Reports			12
Company Stockholders Meeting			40
Confidentiality Agreement			44
Constituent Corporations			2
Contract			29
controlled by			33
Copyrights			26
Cowen			15
Current Government Contract			29
D&O Insurance			48
DGCL			1
DOJ			42
DPA			12
Drug Laws			21
Effective Date			2
Effective Time			2
Environmental Laws			20
Environmental Permits			19
ERISA			17
Exchange Act			12
Exchange Agent			4
Exchange Agreement			1
Exchange Fund			4
FDA			21
FDCA			21
FTC			42
GAAP			13
GLP			22
Good Clinical Practice			22
Government Contract			29
Governmental Authority			12
Hazardous Substance			21
HSR Act			12
ICH			22
Indemnified Party			48
Indemnifying Parties			48
Informed Consent			22
Institutional Review Boards			22
Intellectual Property			26
Interim Note			50
Internet Property			26
Judgment			11
Know-How			26
Law			11
Lease			28
Leased Real Property			28
Lien			11
Loan			49
Loan Default			49
Loans			49
Material Contract			27
Maximum Amount			48
Merger			1
Merger Consideration			3
Merger Sub			1
Nasdaq			12
Option Consideration			7
Options			7

Outside Date			52
Parent			1
Parent Financial Advisor			36
Parent Material Adverse Effect			34
Patents			26
Permits			8
Person			12
PHSA			21
Proceedings			15
Proxy Statement			12
Qualified Company Employee Benefit Plan			16
Representatives			45
requests			15
Required Company Stockholder Vote			11
Sarbanes-Oxley Act			13
SEC			12
Section 262			3
Securities Act			12
Stock Plans			7
Subsidiary			12
Substituted Unvested Option			6
Substituted Vested Option			6
Superior Proposal			47
Superior Proposal Notice			54
Surviving Corporation			2
Takeover Proposal			47
Tax Return			19
Taxes			19
Termination Fee			55
To the knowledge of the Company			58
Trade Secrets			27
Trademark			27
Transactions			11
under common control with			33
Voting Agreement			1
Warrant			7

Agreement and Plan of Merger (this “ Agreement ”), dated as of May 12, 2008, among Intercell AG , a joint stock corporation incorporated under the laws of the Republic of Austria (“ Parent ”), Zebra Merger Sub, Inc. , a Delaware corporation and wholly-owned subsidiary of Parent (“ Merger Sub ”), and Iomai Corporation , a Delaware corporation (the “ Company ”).

Introduction

          The respective Boards of Directors of Merger Sub and the Company, and the Management Board and Supervisory Board of Parent, have approved the acquisition of the Company by Parent on the terms and subject to the conditions set forth in this Agreement.

          In furtherance of such acquisition, the respective Boards of Directors of Merger Sub and the Company, and the Management Board and Supervisory Board of Parent, have approved and declared advisable the merger (the “ Merger ”) of Merger Sub into the Company, on the terms and subject to the conditions set forth in this Agreement, whereby each issued and outstanding share of common stock, par value $.01 per share, of the Company (the “ Company Common Stock ”) not owned by Parent, Merger Sub or the Company as of the Effective Time shall be converted into the right to receive the Merger Consideration.

          Concurrently with the execution of this Agreement and as an inducement to and condition of Parent’s willingness to enter into this Agreement, each of the stockholders of the Company listed on Schedule I hereto is entering into an Exchange Agreement, dated as of the date hereof (the " Exchange Agreement ”), the form of which is attached hereto as Exhibit A, pursuant to which, among other things, each such stockholder agrees to exchange all of its shares of Company Common Stock for (i) shares of common stock in Parent immediately prior to the Effective Time or (ii) cash immediately following the Effective Time.

          Concurrently with the execution of this Agreement and as an inducement to and condition of Parent’s willingness to enter into this Agreement, each of the stockholders of the Company listed on Schedule II hereto is entering into a Voting Agreement, dated as of the date hereof (the “ Voting Agreement ”), the form of which is attached hereto as Exhibit B, pursuant to which, among other things, each such stockholder agrees to vote its shares of Company Common Stock in favor of this Agreement, the Merger and the other transactions contemplated by this Agreement.

          In consideration of the foregoing and of the representations, warranties, covenants and agreements set forth in this Agreement, the parties hereto agree as follows:

ARTICLE 1
THE MERGER

          SECTION 1.1. The Merger . At the Effective Time, in accordance with this Agreement and the Delaware General Corporation Law (the “ DGCL ”), Merger Sub shall be merged with and into the Company, the separate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation. For purposes of this Agreement, (i) the corporation surviving the Merger after the Effective Time may be referred to as the “ Surviving

Corporation ” and (ii) the Company and Merger Sub are collectively referred to as the " Constituent Corporations .”

          SECTION 1.2. Effects of the Merger . The Merger shall have the effects set forth in Section 259 of the DGCL.

          SECTION 1.3. Closing . The closing of the Merger (the “ Closing ”) shall take place at 10:00 a.m. (East Coast time) on a date to be specified by the parties, which shall be no later than the second Business Day after satisfaction or (to the extent permitted by applicable Law) waiver of the conditions set forth in Article 7 (other than any such conditions which by their nature cannot be satisfied until the Closing Date, which shall be required to be so satisfied or (to the extent permitted by applicable Law) waived on the Closing Date), at the offices of Covington & Burling LLP, 1201 Pennsylvania Avenue, N.W., Washington, DC 20004, unless another time, date or place is agreed to in writing by the parties hereto (such date upon which the Closing occurs, the “ Closing Date ”).

          SECTION 1.4. Consummation of the Merger . On the Closing Date, as soon as practicable after the Closing, the parties hereto shall cause the Merger to be consummated by filing with the Secretary of State of the State of Delaware a certificate of merger or other appropriate documents (in any such case, the “ Certificate of Merger ”) in such form as required by, and executed in accordance 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 such Secretary of State, or at such later time as Parent and the Company shall agree and specify in the Certificate of Merger (the time and date the Merger becomes effective being the “ Effective Time ” and “ Effective Date ”, respectively).

          SECTION 1.5. Organizational Documents; Directors and Officers .

     The certificate of incorporation of the Surviving Corporation shall be amended at the Effective Time to conform to Exhibit C, and as so amended, shall be the certificate of incorporation of the Surviving Corporation until thereafter amended as provided therein and under the DGCL. The By-laws of Merger Sub, as in effect immediately prior to the Effective Time, shall be the By-laws of the Surviving Corporation until thereafter amended as provided therein and under the DGCL. The directors of Merger Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation and shall serve until the earlier of their resignation, removal or death or their respective successors are duly elected or appointed and qualified, as the case may be. The officers of Merger Sub immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation and shall serve until the earlier of their resignation, removal or death or until their respective successors have been duly elected or appointed and qualified, as the case may be.

ARTICLE 2
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT
CORPORATIONS; EXCHANGE OF CERTIFICATES

          SECTION 2.1. Conversion of Merger Sub Capital Stock . At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub or the Company, each share of Merger Sub capital stock will be converted into and become one fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation.

          SECTION 2.2. Conversion of Company Common Stock. At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or any holder of shares of Company Common Stock:

          (a) Each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than (i) any shares to be canceled pursuant to Section 2.2(b) and (ii) any Appraisal Shares) shall be canceled and shall be converted automatically into the right to receive $6.60 in cash (the “ Merger Consideration ”) from Parent. As of the Effective Time, all such shares of Company Common Stock shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of a certificate representing any such shares of Company Common Stock shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration upon surrender of such certificate in accordance with Section 2.3, without interest.

          (b) Each share of Company Common Stock held in the treasury of the Company and each share of Company Common Stock owned by Merger Sub, Parent or any wholly-owned Subsidiary of Parent immediately prior to the Effective Time shall be canceled without any conversion thereof and no payment or distribution shall be made with respect thereto.

          (c) Appraisal Rights . Notwithstanding anything in this Agreement to the contrary, shares of Company Common Stock that are outstanding immediately prior to the Effective Time and that are held by any Person who is entitled to demand and properly demands appraisal of such shares (“ Appraisal Shares ”) pursuant to, and who complies in all respects with, Section 262 of the DGCL (“ Section 262 ”) shall not be converted into the right to receive Merger Consideration as provided in Section 2.2(a), but rather the holders of Appraisal Shares shall be entitled to payment of the fair value of such Appraisal Shares in accordance with Section 262 (and at the Effective Time, such Appraisal Shares shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and such holders shall cease to have any right with respect thereto, except the right to receive the fair value of such Appraisal Shares in accordance with Section 262); provided , however , that if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, then the right of such holder to be paid the fair value of such holder’s Appraisal Shares shall cease and such Appraisal Shares shall be deemed to have been converted as of the Effective Time into, and to have become exchangeable solely for the right to receive, Merger Consideration as provided in Section 2.2(a). The Company shall serve reasonably prompt notice to Parent of any demands received by the Company for appraisal of any shares of Company Common Stock, and Parent shall have the right to participate in all negotiations and proceedings with respect to such

demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent, make any payment with respect to, or settle or offer to settle, any such demands, or agree to do any of the foregoing. Any portion of the Merger Consideration made available by the Exchange Agent pursuant to Section 2.3(a) to pay for Appraisal Shares shall be returned to Parent upon demand.

          SECTION 2.3. Exchange of Certificates .

          (a) Exchange Agent . Prior to the Effective Time, Parent shall enter into an agreement with such bank or trust company as may be designated by Parent and reasonably acceptable to the Company (the “ Exchange Agent ”), which shall provide for the payment of Merger Consideration in accordance with the terms of this Section 2.3. At or prior to the Effective Time, Parent shall, or shall take all steps necessary to enable and cause the Surviving Corporation to, deposit with the Exchange Agent in accordance with this Article 2, the cash necessary to pay for the shares of Company Common Stock converted into the right to receive Merger Consideration (the “ Exchange Fund ”). The Exchange Fund shall not be used for any other purpose. Such Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to holders of shares of Company Common Stock, be invested by the Exchange Agent as directed by Parent in (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for payment of all principal and interest, (iii) commercial paper obligations receiving the highest rating from either Moody’s Investor Services, Inc. or Standard & Poor’s, a division of The McGraw Hill Companies or (iv) money market funds investing solely in a combination of the foregoing, or a combination thereof, as directed by and for the benefit of the Surviving Corporation; provided , however , that no gain or loss thereon shall affect the amounts payable hereunder and Parent shall take all actions necessary to ensure that the Exchange Fund includes at all times cash sufficient to satisfy Parent’s obligation under this Agreement to pay the Merger Consideration. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs.

          (b) Exchange Procedures . As soon as reasonably practicable after the Effective Time but in any event not later than five Business Days thereafter, the Exchange Agent shall mail to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Common Stock (the “ Certificates ”) whose shares were converted into the right to receive the Merger Consideration pursuant to Section 2.2, (i) a letter of transmittal (in customary form which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other provisions as Parent may reasonably specify) and (ii) instructions for use in surrendering the Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate shall receive in exchange therefor the amount of cash which the shares of Company Common Stock theretofore represented by such Certificate entitle such holder to receive pursuant to the provisions of this Article 2 and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Company Common Stock that is not registered in the transfer records of the Company, payment may be made to a Person other than the Person in whose name

the Certificate so surrendered is registered if such Certificate shall be properly endorsed or otherwise be in proper form for transfer and the Person requesting such issuance shall pay any transfer or other taxes required by reason of the payment to a Person other than the registered holder of such Certificate or establish to the satisfaction of Parent that such tax has been paid or is not applicable. Each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon surrender in accordance with this Section 2.3 the Merger Consideration into which the shares of Company Common Stock shall have been converted pursuant to Section 2.2. No interest shall be paid or shall accrue on any cash payable to holders of Certificates pursuant to the provisions of this Article 2.

          (c) No Further Ownership Rights in Company Common Stock . The Merger Consideration paid upon the surrender for exchange of Certificates in accordance with the terms of this Article 2 shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock theretofore represented by such Certificates, and there shall be no further registration of transfers on the stock transfer books of the Company of the shares of Company Common Stock which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and exchanged as provided in this Article 2, except as otherwise provided by Law.

          (d) Termination of Exchange Fund . Any portion of the Exchange Fund which remains undistributed to the holders of Certificates for six months after the Effective Time shall be delivered to Parent, upon demand, and any holders of Certificates who have not theretofore complied with this Article 2 shall thereafter look only to Parent (subject to abandoned property, escheat or similar Laws, as general creditors thereof) for payment of their claim for Merger Consideration.

          (e) No Liability . None of Parent, Merger Sub, the Company or the Exchange Agent shall be liable to any Person in respect of any cash from the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate shall not have been surrendered prior to five years after the Effective Time (or immediately prior to such earlier date on which any amounts payable pursuant to this Article 2 would otherwise escheat to or become the property of any Governmental Authority), any such amounts shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.

          (f) Lost Certificates . 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 issue in exchange for such lost, stolen or destroyed Certificate the applicable Merger Consideration with respect thereto pursuant to this Agreement.

          (g) Withholding Rights . Parent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Company Common Stock such amounts as it is required to deduct and withhold with respect to the making

of such payment under the Internal Revenue Code of 1986, as amended (the “ Code ”) and the rules and regulations promulgated thereunder, or any provision of state, local or foreign tax law. To the extent that amounts are so withheld by Parent and paid to the appropriate taxing authorities, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Parent.

          SECTION 2.4. Company Options . Except as set forth on Section 2.4 of the Company Disclosure Letter:

          (a) As soon as practicable following the date of this Agreement, the Board of Directors of the Company (the “ Company Board ”) (or, if appropriate, any committee thereof administering the Stock Plans) shall adopt such resolutions or take such other actions as may be required to provide that each Option outstanding at the applicable time described below (i) issued under either the 1998 Stock Option Plan, as amended, or the 1999 Stock Incentive Plan (whether or not then vested or exercisable) shall be fully vested and exercisable no less than 30 days prior to the Effective Time and (ii) issued under the 2005 Incentive Plan that, under the terms of the 2005 Incentive Plan and the applicable Option agreement, will vest prior to the Effective Time shall be exercisable prior to the Effective Time. To the extent that an Option issued under the 1998 Stock Option Plan, as amended, or the 1999 Stock Incentive Plan that is vested and exercisable pursuant to the terms of this Section 2.4 or under the terms of the applicable Option Plan and the applicable Option agreement is not exercised prior to the Effective Time, such Option shall be cancelled and terminated, and converted at the Effective Time into the right to receive a cash amount equal to the Option Consideration for each share of Company Common Stock then subject to the Option. If the Option Consideration shall be zero or a negative number, the Option shall be cancelled and terminated and no such cash payment shall be due and owing. Except as otherwise provided below, any Option Consideration due and owing shall be paid by Parent and the Surviving Corporation as soon after the Closing Date as shall be practicable and in any event, within three Business Days following the Effective Time. Notwithstanding the foregoing, Parent and the Surviving Corporation shall be entitled to deduct and withhold from any Option Consideration otherwise payable such amounts as may be required to be deducted and withheld with respect to the making of such payment under the Code, or any provision of state, local or foreign tax law.

          (b) Each Option issued under the 2005 Incentive Plan that is vested under the terms of the 2005 Incentive Plan and the applicable Option agreement but is not exercised prior to the Effective Time, shall be cancelled and terminated at the Effective Time and the holder of such cancelled and terminated Option shall receive as of the Effective Time a vested option to purchase shares of Parent (the “ Substituted Vested Option”) . Each Option issued under the 2005 Incentive Plan that, under the terms of the 2005 Incentive Plan and the applicable Option agreement, will not vest prior to the Effective Time shall be cancelled and terminated at the Effective Time and the holder of such cancelled and terminated Option shall receive as of the Effective Time an unvested option to purchase shares of Parent (the “ Substituted Unvested Option" ). A Substituted Unvested Option will vest on the same schedule as the corresponding Option under the 2005 Incentive Plan that was cancelled and terminated in exchange for such Substituted Unvested Option. However, a Substituted Unvested Option may be subject to accelerated vesting under the terms of an option holder’s employment or change in control

agreement with Parent or the Surviving Corporation, as the case may be. For the avoidance of doubt, the exercise price and number of shares subject to the Substituted Vested Option and the Substituted Unvested Option shall be determined in a manner consistent with the objective that the substitution or assumption of Options satisfy the requirements of Treasury Regulations Section 1.409A-1(b)(5)(v)(D). The Surviving Corporation and its Affiliates shall treat the Substituted Vested Options and the Substituted Unvested Options for tax reporting and withholding purposes in accordance with the regulations and other applicable guidance under Section 409A of the Code.

          (c) Prior to the Effective Time, the Company shall use reasonable best efforts to make any amendments to the terms of the Stock Plans and obtain any consents from holders of Options that, in each case, are necessary to give effect to the transactions contemplated by this Section 2.4 and, notwithstanding anything to the contrary, payment may be withheld in respect of any Option until any necessary consents are obtained. Prior to the Effective Time, the Company shall take all actions necessary to terminate all its Stock Plans, such termination to be effective at or before the Effective Time.

          (d) For purposes of this Agreement, “ Option Consideration ” means, with respect to any share of Company Common Stock issuable under a particular Option, an amount equal to (i) the Merger Consideration per share of Company Common Stock less (ii) the exercise price payable in respect of each share of Company Common Stock issuable under such Option; “ Options ” means any option granted, and, immediately before the Effective Time not exercised, expired or terminated, to purchase shares of Company Common Stock pursuant to the Stock Plans; and “ Stock Plans ” means the Company’s 1998 Stock Option Plan, as amended, 1999 Stock Incentive Plan and 2005 Incentive Plan.

          SECTION 2.5. Warrants . No later than 15 calendar days prior to the record date applicable to the Company Stockholders Meeting, the Company shall deliver to each holder of a Warrant any notice regarding the Transactions as required by the Warrants. Each Warrant that is outstanding immediately prior to the Effective Time and is not exercised prior to the Effective Time shall cease to represent a right to acquire shares of the Company Common Stock and shall be converted, at the Effective Time, into the right to receive (upon surrender of the warrant certificate) an amount in cash, without interest, equal to the product of (a) the amount, if positive, by which the Merger Consideration exceeds the per share exercise price of such Warrant and (b) the number of shares of Company Common Stock issuable upon exercise of such Warrant. Following the Effective Time, Parent shall, or shall cause the Surviving Corporation to, honor the obligations of the Company under the Warrants. As used in this Agreement, “ Warrant ” means a Common Stock Purchase Warrant issued by the Company pursuant to the Securities Purchase Agreement dated as of March 2, 2007.

          SECTION 2.6. Taking of Necessary Action; Further Action . Each of Parent, Merger Sub and the Company shall use reasonable best efforts to take all such actions as may be necessary or appropriate in order to effectuate the Merger under the DGCL as promptly as commercially practicable. If at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges, powers and franchises of either of the Constituent Corporations, the officers and directors of the Surviving

Corporation are fully authorized in the name of each Constituent Corporation or otherwise to take, and shall take, all such lawful and necessary action.

          SECTION 2.7. Adjustments to Prevent Dilution . In the event that the Company changes the number of shares of Company Common Stock or securities convertible or exchangeable into or exercisable for shares of Company Common Stock issued and outstanding prior to the Effective Time as a result of a reclassification, stock split (including a reverse stock split), stock dividend or distribution, recapitalization, merger, issuer tender or exchange offer, or other similar transaction, the Merger Consideration shall be equitably adjusted.

ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

          Except as set forth on the disclosure letter ( provided , however , that a matter disclosed with respect to one representation or warranty shall also be deemed to be disclosed with respect to each other representation or warranty to which the matter disclosed reasonably relates, but only to the extent such relationship is reasonably apparent on the face of such disclosure) previously delivered by the Company to Parent (the “ Company Disclosure Letter ”), the Company hereby represents and warrants to Parent and Merger Sub as follows:

          SECTION 3.1. Organization .

          (a) The Company is a corporation validly existing and in good standing under the laws of the State of Delaware. The Company has all requisite power and authority necessary to enable it to own, operate and lease its properties and to carry on its business as now conducted. The Company possesses all licenses, franchises, permits, exemptions, clearances, certificates, approvals and authorizations, and any applications for, and supplements or amendments to, the foregoing (collectively, “ Permits ”) from Governmental Authorities, or required by Governmental Authorities to be obtained, in each case necessary for the lawful conduct of its business as now conducted, the lack of which, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. A “ Company Material Adverse Effect ” means any event, condition, change, occurrence or development of a state of facts that, individually or in the aggregate with all other events, conditions, changes, occurrences or developments of a state of facts, is materially adverse to (A) the business, operations, properties, assets, liabilities (contingent or otherwise), condition (financial or otherwise) or results of operations of the Company or (B) the ability of the Company to timely perform its obligations under this Agreement in compliance with its terms or to consummate the Transactions; provided , however , that no such event, condition, change, occurrence or development of a state of circumstances shall be considered in determining whether a Company Material Adverse Effect has occurred to the extent that it is proximately caused by (1) changes in economic or vaccine industry conditions in the United States (and in each case to the extent that the Company is not disproportionately adversely affected), (2) acts of terrorism, war or natural disasters occurring after the date hereof (and in each case to the extent that the Company is not disproportionately affected), (3) any loss of employees, customers or suppliers proximately caused by the pendency or announcement of the Transactions ( provided , however , that any legal or contractual consequence of the execution of this Agreement or the consummation of the Transactions that has not been disclosed to Parent in this Agreement or the Company Disclosure

Letter shall not be excluded under this clause (3)); (4) any loss of funding under a Government Contract proximately caused by the fact that Parent is a non-U.S. entity; (5) changes in GAAP; (6) the failure of the Company to meet revenue, earnings or other internal or analysts’ projections, in and of itself (it being understood that any event, condition, change, occurrence or development of a state of facts that may have caused or contributed to any such failure may be deemed to constitute, in and of itself, a Company Material Adverse Effect and may be taken into consideration when determining whether a Company Material Adverse Effect has occurred); (7) any action taken by the Company with Parent’s written consent or the taking of any action expressly required by this Agreement; (8) a decline in the Company’s stock price, in and of itself (it being understood that any event, condition, change, occurrence or development of a state of facts that may have caused or contributed to any such decline may be deemed to constitute, in and of itself, a Company Material Adverse Effect and may be taken into consideration when determining whether a Company Material Adverse Effect has occurred); and (9) any legal proceedings commenced by any stockholder of the Company against the Company or any member of the Company Board or Parent arising out of the execution of this Agreement or the consummation of the Transactions.

          (b) The copies of the Third Amended and Restated Certificate of Incorporation and the Third Amended and Restated By-laws of the Company (the “ Company Charter Documents ”) which are incorporated by reference as exhibits to the Company’s Annual Report on Form 10-K for the year ended December 31, 2007 are complete and correct copies of such documents and contain all amendments thereto as in effect on the date of this Agreement. All such Company Charter Documents are in full force and effect and the Company is not in violation of any of their respective provisions. The Company has made available to Parent correct and complete copies of the minutes (or, in the case of minutes that have not yet been finalized, a brief summary of the meeting) of all meetings of stockholders, the Company Board and each committee of the Company Board since January 1, 2005; provided , however , that the Company shall not be obligated to furnish to Parent any minutes for meetings to the extent that they discuss the Transactions or alternative transactions considered by the Company Board.

          SECTION 3.2. Capitalization .

          (a) The authorized capital stock of the Company consists of (i) 200,000,000 shares of Company Common Stock and (ii) 25,000,000 shares of preferred stock, par value $.01 per share (“ Company Preferred Stock ”). As of the date of this Agreement: (i) 25,601,344 shares of Company Common Stock were issued and outstanding; (ii) no shares of Company Preferred Stock were issued or outstanding; (iii) no shares of Company Common Stock were held by the Company in its treasury; (iv) there were outstanding Options to purchase 4,404,876 shares of Company Common Stock and 4,818,507 shares of Company Common Stock were reserved for issuance under the Stock Plans (including upon exercise of the Options); and (v) there were outstanding Warrants exercisable for 2,202,139 shares of Company Common Stock and such number of shares of Company Common Stock were reserved for issuance upon conversion of the Warrants. Section 3.2(a) of the Company Disclosure Letter sets forth, as of the date of this Agreement, each equity-based award and Option outstanding under the Stock Plans indicating the applicable Stock Plan and type of award such as an “incentive stock option” (as defined in Section 422 of the Code) or a nonqualified stock option, the extent to which such award or option is vested and exercisable or subject to acceleration, the date on which such award or

Option was granted, the Stock Plan under which such award or Option was granted, the number of shares of capital stock of the Company issuable thereunder and the expiration date and exercise or conversion price relating thereto. All of the Options have been granted solely to employees, consultants (who are individuals) or directors of the Company. All Options have been granted in accordance with the terms of the Stock Plans and applicable Law, and, with respect to each outstanding Option, the exercise price is no less than the fair market value of such Option on the date of grant and the Option is not otherwise subject to the requirements of Section 409A of the Code. The Company has not declared or paid any dividend, or declared or made any distribution on, or authorized the creation or issuance of, or issued, or authorized or effected any split-up or any other recapitalization of, any of its capital stock, or directly or indirectly redeemed, purchased or otherwise acquired any of its outstanding capital stock within the last twelve months. The Company has not heretofore agreed to take any such action that is pending as of the date of this Agreement, and there are no outstanding contractual obligations of the Company of any kind to redeem, purchase or otherwise acquire any outstanding shares of capital stock of the Company other than as provided in the Exchange Agreement.

          (b) The issued and outstanding shares of Company Common Stock have been, and all such shares of Company Common Stock that may be issued prior to the Effective Time will be when issued, duly authorized and validly issued, are fully paid and nonassessable, and are free of preemptive rights. Other than the Company Common Stock, there are no outstanding bonds, debentures, notes or other indebtedness or securities of the Company having the right to vote (or, other than the outstanding Options and Warrants, 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 stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party relating to the voting or disposition of any shares of the capital stock of the Company or granting to any Person or group of Persons the right to elect, or to designate or nominate for election, a director to the Company Board.

          (c) Except as indicated in Section 3.2(a), as of the date of this Agreement, (i) no shares of capital stock or other voting securities of the Company are issued, reserved for issuance or outstanding, and (ii) there are no outstanding securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company is a party or bound (A) obligating the Company to issue, deliver, register or sell, or cause to be issued, delivered, registered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in or other voting securities of, the Company, (B) obligating the Company to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, or (C) that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights occurring to holders of capital stock of the Company.

          SECTION 3.3. Authorization; No Conflict .

          (a) The Company has the requisite corporate power and authority to enter into and deliver this Agreement and all other agreements and documents contemplated hereby to which it is a party and to carry out its obligations hereunder and thereunder and to consummate the Transactions. The execution and delivery of this Agreement by the Company, the

performance by the Company of its obligations hereunder and the consummation by the Company of the Transactions have been duly and validly authorized and approved by the Company Board. No other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery of this Agreement, the performance by the Company of its obligations hereunder and the consummation by the Company of the Transactions, except for the approval of this Agreement by the holders of a majority of the issued and outstanding shares of Company Common Stock (the “ Required Company Stockholder Vote ”). No other vote of the Company’s stockholders is necessary in connection with this Agreement, the Exchange Agreement, the Voting Agreement or the consummation of any of the Transactions. This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery hereof by Parent and Merger Sub, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws of general application affecting or relating to the enforcement of creditors rights generally and equitable principles of general applicability, whether considered in a proceeding at law or in equity (the “ Bankruptcy and Equity Exception ”).

          (b) The Company Board, at a meeting duly called and held prior to the execution of this Agreement, duly and unanimously adopted resolutions (i) authorizing the execution, delivery and performance of this Agreement, (ii) approving, adopting and declaring advisable this Agreement, the Merger and the other transactions contemplated by this Agreement, (iii) authorizing, approving and declaring advisable the Exchange Agreement and the transactions contemplated thereby, (iv) authorizing, approving and declaring advisable the Voting Agreement and the transactions contemplated thereby, (v) determining that the terms of the Merger and the other Transactions are fair to and in the best interests of the Company and its stockholders, and (vi) authorizing the submission of this Agreement to the Company’s stockholders for their approval and recommending that the Company’s stockholders adopt this Agreement. As used in this Agreement, “ Transactions ” means the Merger and the other transactions contemplated by each of this Agreement and the Exchange Agreement.

          (c) Neither the execution and delivery of this Agreement by the Company nor the consummation by the Company of the Transactions nor compliance by the Company with any of the provisions herein will (i) result in a violation or breach of or conflict with the Company Charter Documents, (ii) result in a violation or breach of or conflict with any provisions of, or result in the loss of any benefit under 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, cancellation of, or give rise to a right of purchase under, or accelerate the performance required by, or result in a right of termination or acceleration under, or result in the creation of any Lien upon any of the properties or assets owned or operated by the Company under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, contract, lease, agreement or other instrument or obligation of any kind to which the Company is a party or by which the Company or any of its properties or assets may be bound, or (iii) subject to obtaining or making the consents, approvals, orders, authorizations, registrations, declarations and filings referred to in paragraph (d) below, violate any judgment, ruling, order, writ, injunction or decree of any Governmental Authority (“ Judgment ”) or any statute, code, decree, law, ordinance, rule or regulation or orders of Governmental Authorities (“ Law ”) applicable to the Company or its properties or assets, other than any such event described in items (ii) or (iii) which, individually

or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. As used in this Agreement, “ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset.

          (d) No consent, permit, approval, order or authorization of, or registration, declaration or filing with, any Federal, state, local or foreign governmental or regulatory (including stock exchange) authority (a “ Governmental Authority ”) is necessary to be obtained or made by the Company in connection with the Company’s execution, delivery and performance of this Agreement or the consummation by the Company of the Transactions, except for (i) compliance with the DGCL, with respect to the filing of the Certificate of Merger, (ii) compliance with and filings pursuant to the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended, and the rules and regulations promulgated thereunder (the “ HSR Act ”) and other applicable foreign competition or antitrust laws, if any, (iii) the filing with the United States Securities and Exchange Commission (the “ SEC ”) of a proxy statement relating to the Company Stockholders Meeting (such proxy statement, as amended or supplemented from time to time, the “ Proxy Statement ”), and such reports under Section 13 or 16 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) and the rules and regulations promulgated thereunder, as may be required in connection with this Agreement and the Transactions, (iv) compliance with the rules of The Nasdaq Stock Market LLC (“ Nasdaq ”), (v) compliance with the applicable requirements of the Committee on Foreign Investment in the United States (“ CFIUS ”), pursuant to Section 721 of the Defense Production Act of 1950 (codified at 50 U.S.C. § 2170) (the “ DPA ”), (vi) compliance with the “blue sky” laws of various states, (vii) completing any notice required under the FDCA or similar Laws of jurisdictions other than the United States, (viii) any such consent, approval, order, authorization, registration, declaration or filing necessary as a result of Parent’s status as an entity organized under the laws of the Republic of Austria, and (ix) any such consent, approval, order, authorization, registration, declaration or filing, the lack of which, individually or in the aggregate, has not had and would not reasonably be expected to have or result in a Company Material Adverse Effect.

          SECTION 3.4. Subsidiaries . The Company has no, and has never had any, Subsidiaries. As used in this Agreement, (i) “ Subsidiary ” means with respect to any Person, another Person, an amount of the voting securities or other voting ownership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by such first Person; and (ii) “ Person ” means an individual, corporation, partnership, joint venture, association, trust, unincorporated organization, limited liability company or other entity.

          SECTION 3.5. SEC Reports and Financial Statements .

          (a) Since February 1, 2006, the Company has filed with the SEC all forms, reports, schedules, registration statements, definitive proxy statements and other documents (collectively, including all exhibits thereto, the “ Company SEC Reports ”) required to be filed by the Company with the SEC in a timely manner. As of their respective filing dates, and giving effect to any amendments or supplements thereto filed prior to the date of this Agreement, the Company SEC Reports complied in all material respects with the requirements of the Securities

Act of 1933, as amended (the “ Securities Act ”), the Exchange Act and the Sarbanes-Oxley Act, as the case may be, and the respective rules and regulations of the SEC promulgated thereunder applicable to such Company SEC Reports, and none of the Company SEC Reports contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

          (b) The consolidated financial statements (including, in each case, any related notes and schedules thereto) (collectively, the “ Company Financial Statements ”) of the Company contained in the Company SEC Reports comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been prepared in conformity with United States generally accepted accounting principles (“ GAAP ”) (except, in the case of unaudited statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods involved (except as otherwise noted therein) and present fairly the consolidated financial position and the results of operations and cash flows of the Company as of the dates or for the periods presented therein (subject, in the case of unaudited statements, to normal and recurring year-end adjustments).

          (c) With respect to each annual report on Form 10-K, each quarterly report on Form 10-Q and each amendment of any such report included in the Company SEC Reports filed since February 1, 2006, the principal executive officer and principal financial officer of the Company have made all certifications required by the Sarbanes-Oxley Act of 2002 (the “ Sarbanes-Oxley Act ”) and any related rules and regulations promulgated by the SEC, and the statements contained in any such certifications are complete and correct.

          (d) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) or 15d-15(e) promulgated by the SEC under the Exchange Act); such disclosure controls and procedures are designed to ensure that material information relating to the Company required to be disclosed in the Company’s reports filed or submitted under the Exchange Act is made known to the Company’s principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared; and, to the knowledge of the Company, such disclosure controls and procedures are effective in timely alerting the Company’s principal executive officer and its principal financial officer to material information required to be included in the Company’s periodic reports required under the Exchange Act and to ensure that information 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 SEC rules and forms.

          (e) The Company is in compliance in all material respects with all current listing and corporate governance requirements of Nasdaq, and is in compliance in all material respects with all rules, regulations and requirements of the Sarbanes-Oxley Act and the SEC.

          (f) The Company’s principal executive officer and its principal financial officer have disclosed, based on their most recent completed evaluation, to the Company’s auditors and the audit committee of the Company Board and to Parent, (i) all significant deficiencies in the design or operation of internal controls which could adversely affect the Company’s ability to

record, process, summarize and report financial data and have identified for the Company’s auditors any material weaknesses in internal controls and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls.

          (g) Since February 1, 2006, the Company has not identified any material weaknesses in the design or operation of its internal control over financial reporting. To the knowledge of the Company, there is no reason to believe that its auditors and its principal executive officer and principal financial officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of the Sarbanes-Oxley Act, without qualification, when next due. 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) access to assets is permitted only in accordance with management’s general or specific authorization; and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

          (h) The Company has no liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) required to be reflected or reserved against on a consolidated balance sheet of the Company prepared in accordance with GAAP or the notes thereto, except liabilities or obligations that (i) are accrued or reserved against in the most recent Company Financial Statements included in the Company SEC Reports filed prior to the date of this Agreement or are reflected in the notes thereto, (ii) were incurred in the ordinary course of business since the date of such Company Financial Statements and, individually and in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (iii) are incurred in connection with the Transactions, (iv) have been discharged or paid in full prior to the date of this Agreement in the ordinary course of business, or (v) individually or in the aggregate, have not been and would not reasonably be expected to be material to the Company.

          (i) Prior to the date of this Agreement, the Company has made available to Parent complete and correct copies of all comment letters from the SEC since October 3, 2005 through the date of this Agreement with respect to any of the Company SEC Reports and all correspondence since October 3, 2005 through the date of this Agreement from the SEC or the DOJ relating to sales and other business practices of the Company. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any of the Company SEC Reports.

          (j) To the knowledge of the Company, as of the date of this Agreement, there are no SEC inquiries or investigations or internal investigations pending or threatened, in each case regarding any accounting practices of the Company or any malfeasance by any director or executive officer of the Company. Except as set forth in Company compliance reports made available to Parent prior to the date of this Agreement, since October 3, 2005 through the date of this Agreement, there have been no internal investigations regarding accounting or revenue recognition discussed with, reviewed by or initiated at the direction of the principal executive officer, principal financial officer, general counsel or similar legal officer, the Company Board or any committee thereof.

          SECTION 3.6. Absence of Material Adverse Changes, etc . Between January 1, 2008 and the date of this Agreement, the Company has conducted its business in the ordinary course of business consistent with past practice and there has not been or occurred:

          (a) any event, condition, change, occurrence or development of a state of circumstances which, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect; or

          (b) any event, condition, action or occurrence that, if taken during the period from the date of this Agreement through the Effective Time, would constitute a breach of Section 5.1(b).

          SECTION 3.7. Litigation . There are no suits, claims, actions, proceedings, arbitrations, mediations, or, to the knowledge of the Company, governmental investigations, informal inquiries or requests for documents, whether by subpoena or informal letter (“ Proceedings ”), pending or, to the knowledge of the Company, threatened in writing against the Company, against any of their respective directors, officers, employees or agents or which affect the assets or operations of the Company, except where such Proceedings would not reasonably be expected to result in a Judgment for money damages in excess of $150,000 and would not reasonably be expected to result in material injunctive relief. Neither the Company nor any of its properties is or are subject to any material Judgment.

          SECTION 3.8. Information Supplied . None of the information supplied or to be supplied by the Company specifically for inclusion or incorporation by reference in the Proxy Statement will, at the date it is first mailed to the Company’s stockholders or at the time of the Company Stockholders Meeting, 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 are made, not misleading and will not, at the time of the Company Stockholders Meeting, omit to state any material fact necessary to correct any statement in any earlier communication from the Company with respect to the solicitation of proxies for the Company Stockholders Meeting which shall have become false or misleading in any material respect. The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder. No representation or warranty is made by the Company with respect to statements made or incorporated by reference therein based on information supplied by Parent in writing specifically for inclusion or incorporation by reference in the Proxy Statement.

          SECTION 3.9. Broker’s or Finder’s Fees . Except for Cowen and Company, LLC (“ Cowen ”), no agent, broker, investment banker, Person or firm acting on behalf of the Company or under the Company’s authority is or will be entitled to any advisory, commission or broker’s or finder’s fee or similar fee or commission or reimbursement of expenses from any of the parties hereto in connection with any of the Transactions. The Company has heretofore delivered to Parent a complete and correct copy of the Company’s engagement letter with Cowen, which letter describes all fees payable to Cowen in connection with the Transactions, all agreements under which any such fees or any expenses are payable and all indemnification and other agreements related to the engagement of Cowen.

          SECTION 3.10. Employee Plans .

          (a) Section 3.10 of the Company Disclosure Letter sets forth all Company Employee Benefit Plans established, maintained, adopted, participated in, sponsored, contributed or required to be contributed to, or provided by, the Company and under which the Company would reasonably be expected to have any liability. As used in this Agreement, “ Company Employee Benefit Plan ” means any welfare benefit plan within the meaning of Section 3(1) of ERISA, any pension benefit plan within the meaning of Section 3(2) of ERISA, and any other material plan, program, policy, practice, agreement or arrangement providing compensation or benefits in any form to any current or former employee, officer, director, independent contractor or consultant of the Company or any beneficiary or dependent thereof, whether written or unwritten, formal or informal, including any other pension, profit-sharing, bonus, incentive compensation, deferred compensation, vacation, sick pay, stock purchase, stock option, phantom equity, severance, employment, consulting, independent contractor, unemployment, hospitalization or other medical, dental, vision, life, or other insurance, long- or short-term disability, change of control, fringe benefit, cafeteria plan or any other plan, program, policy, agreement or arrangement.

          (b) With respect to each Company Employee Benefit Plan, the Company has made available to Parent a true, correct and complete copy of: (i) each writing constituting a part of any written Company Employee Benefit Plan and all amendments thereto, and all trusts or service agreements relating to the administration and recordkeeping of the Plan; (ii) the three most recent Annual Reports (Form 5500 Series) including all applicable schedules (other than Schedule SSA), if any, for each Company Employee Benefit Plan that is subject to such reporting requirements; (iii) the current summary plan description and any material modifications thereto, if any, or any similar written summary provided to participants with respect to any plan for which no summary plan description exists; (iv) the most recent determination letter (or if applicable, advisory or opinion letter) from the Internal Revenue Service, if any, and any pending applications for a determination letter; and (v) all material notices given to such Company Employee Benefit Plan or to the Company by the Internal Revenue Service, Department of Labor, Pension Benefit Guarantee Corporation, or other governmental agency relating to such Company Employee Benefit Plan or provided to any such entity by the Company Employee Benefit Plan or to the Company.

          (c) Each Company Employee Benefit Plan that is intended to be “qualified” within the meaning of Section 401(a) of the Code has been the subject of a favorable determination, advisory or opinion letter from the Internal Revenue Service on which the Company is entitled to rely, and no event has occurred and no condition exists that would reasonably be expected to adversely affect the qualified status of any such Company Employee Benefit Plan.

          (d) The Company has (i) filed or caused to be filed all returns and reports on the Company Employee Benefit Plans that it and/or any such plan are required to file and (ii) paid or made adequate provision for all fees, interest, penalties, assessments or deficiencies that have become due pursuant to those returns or reports or pursuant to any assessment or adjustment that has been made relating to those returns or reports.

          (e) Each Company Employee Benefit Plan has been operated and administered in all material respects in accordance with its provisions and in compliance with all provisions of ERISA, the Code and all Laws and regulations applicable to the Company Employee Benefit Plans. All contributions required to have been made to any Company Employee Benefit Plan (or to any person pursuant to the terms thereof) have been made or the amount of such payment or contribution obligation has been appropriately reflected in the books of the Company.

          (f) The Company has not engaged in any non-exempt prohibited transaction, within the meaning of Section 4975 of the Code or Section 406 of ERISA, as a fiduciary or party in interest with respect to any Company Employee Benefit Plan. To the knowledge of the Company, no prohibited transaction has occurred with respect to any Company Employee Benefit Plan.

          (g) No Company Employee Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, or is a “multiemployer plan” within the meaning of Section 3(37) of ERISA, and the Company has never sponsored, contributed to, been required to contribute to, or had any obligations or incurred any liability under any plan that is subject to Title IV of ERISA or Section 412 of the Code, or is a “multiemployer plan” within the meaning of Section 3(37) of ERISA.

          (h) The Company has not offered to provide life, health or medical benefits or insurance coverage to any individual, or to the family members of any individual, for any period extending beyond the termination of the individual’s employment, except to the extent required by the COBRA provisions in ERISA and the Code or similar provisions of state law.

          (i) Neither the execution and delivery of this Agreement nor the consummation of the Transactions, alone or in connection with any other event (such as a termination of employment) will (i) result in any payment becoming due under any Company Employee Benefit Plan, (ii) increase any benefits otherwise payable under any Company Employee Benefit Plan, or (iii) result in the acceleration of the time of payment or vesting of any such benefit. No benefit that is or may become payable by any Company Employee Benefit Plan as a result of, or arising under, this Agreement shall constitute an “excess parachute payment” (as defined in section 280G(b)(1) of the Code) that is subject to the imposition of an excise tax under section 4999 of the Code or that would not be deductible by reason of section 280G of the Code.

          (j) Except for benefits that may become payable in connection with the Transactions and that are set forth in Section 3.10(i) of the Company Disclosure Letter, to the knowledge of the Company no events have occurred or are expected to occur with respect to any Company Employee Benefit Plan that would cause a material change in the cost of providing the benefits under such plan or would cause a material change in the cost of providing for other liabilities of such plan.

          (k) There is no other entity with which the Company is considered a single employer under Section 414(b), (c), or (m) of the Code.

          (l) As used in this Agreement “ ERISA ” means the Employee Retirement Income Securities Act of 1974, as amended, and the rules and regulations promulgated thereunder.

          SECTION 3.11. Opinion of Cowen . Cowen has delivered to the Company Board its written opinion (or oral opinion to be confirmed in writing), dated as of the date hereof, that, as of such date, the Merger Consideration to be received by holders of the Company Common Stock (other than Parent and its affiliates and the stockholders of the Company party to the Exchange Agreement) pursuant to this Agreement is fair, from a financial point of view, to such holders of the Company Common Stock. A written copy of such opinion will be provided to Parent as soon as practicable after the date hereof. The Company has been authorized by Cowen to permit the inclusion of such opinion in its entirety and/or references thereto in the Proxy Statement, provided that the opinion is reproduced therein in full and any such references are in a form reasonably acceptable to Cowen and its counsel.

          SECTION 3.12. Taxes .

          (a) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) the Company has timely filed all material federal, state, local, and other Tax Returns required to be filed by it in the manner prescribed by applicable law and all such Tax Returns are true, complete and correct; and (ii) all Taxes shown as due on such Tax Returns have been paid in full, and the Company has made adequate provision (or adequate provision has been made on its behalf) for all accrued Taxes not yet due. The accruals and reserves for Taxes reflected in the Company’s Form 10-K for the fiscal year ended December 31, 2007 are adequate to cover all Taxes accruing through such date. There are no Liens on any of the assets, rights or properties of the Company with respect to Taxes, other than Liens for Taxes not yet due and payable or for Taxes that the Company is contesting in good faith through appropriate proceedings.

          (b) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) any deficiency resulting from any audit or examination relating to Taxes of the Company by any taxing authority has been paid or is being contested in good faith and in accordance with Law and is adequately reserved for on the balance sheets contained in the Company Financial Statements in accordance with GAAP; (ii) no deficiencies have been asserted in writing against the Company as a result of examinations by any state, local, federal or foreign taxing authority that, by application of the same principles, might result in a proposed deficiency for the same type of Tax for any other period not so examined which deficiency (or deficiencies), in either case, is not (or are not) adequately reserved for in the Company Financial Statements; and (iii) there are no outstanding written requests, agreements, consents, or waivers to extend the statutory period of limitations applicable to the assessment of any Taxes or Tax deficiencies (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business).

          (c) The Company has not been a party to a “listed transaction” within the meaning of Treas. Reg. Sec. 1.6011-4(b).

          (d) The Company is not a party to any Tax sharing agreement, Tax indemnity obligation or similar agreement, arrangement or practice with respect to Taxes. The Company is not a party to any advance pricing agreement or closing agreement relating to Taxes with any taxing authority that remains in effect.

          (e) The Company has not been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company). Except for any liability that, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, the Company has not been notified in writing that it will be required to incur any liability for Taxes of any Person (other than the Company) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law) with respect to any Tax claim that has been made by a taxing authority with respect to such other Person.

          (f) Notwithstanding any other provision of this Agreement, the Company makes no representation or warranty as to the amount of, or as to the existence or non-existence of limitations (or to the extent of any such limitations) on, the Company’s net operating loss carryforwards, net capital loss carryforwards, tax credit carryforwards, or any similar Tax attribute.

          (g) As used in this Agreement “ Taxes ” means all taxes, levies or other like assessments, charges or fees (including estimated taxes, charges and fees), including income, franchise, profits, corporations, advance corporation, gross receipts, transfer, excise, property, sales, use, value-added, ad valorem, license, capital, wage, employment, payroll, withholding, social security, severance, occupation, import, custom, stamp, alternative, add-on minimum, environmental or other governmental taxes, imposed by the United States or any state, county, local or foreign government or subdivision or agency thereof, including any interest, penalties or additions to tax applicable or related thereto. As used in this Agreement, “ Tax Return ” means any report, return, statement, declaration or other written information required to be supplied to a taxing or other Governmental Authority in connection with Taxes.

          SECTION 3.13. Environmental Matters .

          (a) The Company is and has for the past five years been in compliance in all material respects with all applicable Environmental Laws, which compliance includes obtaining, maintaining and complying with all permits, notices, licenses, consents, certificates, approvals and authorizations (“ Environmental Permits ”), if any, required under Environmental Laws in connection with the operation of the Company’s business or owned, leased or operated real property, and no Environmental Permit is or will be subject to review, revision, major modification or prior consent by any Governmental Authority as a result of the consummation of the Transactions.

          (b) Except as, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect:

     (i) there are no pending or, to the knowledge of the Company, threatened, demands, claims, investigations, proceedings, information requests, complaints, administrative or judicial orders, or notices against the Company or any property currently or formerly owned, operated or leased by the Company alleging non-compliance with or liability under any Environmental Law;

     (ii) there are no facts, circumstances or conditions associated with the Company or its operations or any real property currently or formerly owned, leased or operated by the Company or any other property, including any property to which the Company or any Person working at the request or direction of the Company has arranged for the disposal or treatment of Hazardous Substances, that would reasonably be expected to give rise to any violation of any Environmental Laws or result in the Company incurring any liability under and Environmental Law;

     (iii) the Company has not, in the course of its business, sent or disposed of, otherwise had taken or transported, arranged for the taking or disposal of (on behalf of itself, a customer or any other party) or in any other manner participated or been involved in the taking of or disposal or release of a Hazardous Substance to or at a site that is contaminated by any Hazardous Substance or that, pursuant to any Environmental Law, (A) has been placed on the “National Priorities List,” the “CERCLIS” list, or any similar state or federal list, or (B) is subject to or the source of a claim, an administrative order or other request to take removal, remedial, corrective or any other response action under any Environmental Law or to pay for the costs of any such action at the site; and

     (iv) any storage tanks (whether above or under ground) previously located at any real property or facility currently or formerly owned, operated or leased by the Company were at all times maintained, operated, sealed, closed or disposed of in accordance with all applicable Environmental Laws.

          (c) There are no circumstances or conditions relating to the properties, assets or business of the Company that would reasonably be expected to prevent the operations, when used and operated in the manner currently used and operated, from continuing to operate in material compliance with all applicable Environmental Laws.

          (d) The Company has not assumed or retained by contract (including leases) or other binding agreement or by operation of Law, any liabilities of a third party arising under or pursuant to any Environmental Law or has agreed to indemnify, defend or hold harmless any third party for any liabilities arising under or pursuant to any Environmental Law.

          (e) The Company has made available to Parent copies of all material environmental or health and safety assessments, audits, investigations, or similar reports pertaining to the operation of the Company’s business and the operation or use of any real property currently or formerly owned, leased, or operated by the Company, to the extent in the possession, custody or control of the Company.

          (f) As used in this Agreement, (i) “ Environmental Laws ” means any federal, foreign, state or local statute, law, code, or legal requirement, including regulations, rules, orders, judgments, judicial decisions, permits, licenses, approvals, ordinances, injunctions, directives and the common law, pertaining or relating to pollution, the environment, natural resources, the protection of the environment, or human health and safety, including any of the foregoing pertaining to (A) the presence, receipt, manufacture, processing, generation, use, distribution, transport, shipment, treatment, handling, storage, disposal, removal or remediation of any Hazardous Substance; (B) air, water (including ground, surface and drinking water), land surface

or subsurface strata, noise, or odor pollution; (C) the release or threatened release into the environment of any Hazardous Substance, including emissions, discharges, injections, spills, escapes, dumping or leaching of any Hazardous Substance; (D) the protection of natural resources, including wildlife, marine sanctuaries, wetlands and all endangered and threatened species; (E) storage tanks, vessels and containers whether above- or underground, abandoned, disposed or discarded barrels, containers and other closed receptacles; or (F) health and safety of employees and other persons, and (ii) “ Hazardous Substance ” means, whether alone or in combination and whether solid, liquid or gaseous, (A) biologic agents or vectors, genetically modified organisms (whether or not living), culture, or serum that are (i) listed in the HHS and USDA Select Agents and Toxins pursuant to 7 CFR Part 311, 9 CFR Part 121, and 42 CFR Part 73, and/or those that are not otherwise exempt under NIH guidelines for Research Involving Recombinant DNA Molecules (2002) or otherwise subject to regulation by Environmental Law; (B) any “hazardous substance,” as defined by the Comprehensive Environmental Response, Compensation, and Liability Act, (C) any “hazardous waste,” as defined by the Resource Conservation and Recovery Act, and (D) any chemical, pollutant, contaminant, waste, or hazardous, dangerous or toxic material or substance, infectious or contagious material or substance, special waste, medical waste, biomedical waste, mutagenic or carcinogenic material or substance, endotoxin, blood-borne pathogen or terms of similar import including asbestos and asbestos containing material, buried contaminants, regulated chemicals, flammable explosives, radiation and radioactive materials, polychlorinated biphenyls, oil, petroleum and petroleum products and by-products, lead and lead-based paint, pesticides, natural or synthetic gas, nuclear fuel, nuclear material, urea formaldehyde, bacteria, fungi, mold or any material subject to regulation, investigation, control or remediation under any applicable Law or that is capable of causing harm or injury to human health, natural resources or the environment or could give rise to liability or an obligation to remediate under any Law, all as amended or hereafter amended.

          SECTION 3.14. Compliance .

          (a) The Company is not, in any material respect, in violation of any Law applicable to it or by which any of its properties or other assets or any of its businesses or operations are bound or any rule, regulation, guideline, guidance or requirement issued under any of the foregoing nor has it received after January 1, 2006 any written notice or other communication, whether written or non-written, from any Governmental Authority of any violation or any investigation with respect to any such Law.

          (b) The Company is not, in any material respect, in violation of the Federal Food, Drug, and Cosmetic Act (“ FDCA ”), the Public Health Service Act (“ PHSA ”), or the regulations and regulatory guidance promulgated thereunder or similar Laws of any foreign jurisdiction (collectively, “ Drug Laws ”), including those relating to good laboratory practices, good clinical practices, adverse event reporting, good manufacturing practices, recordkeeping, and filing of reports. Except for matters governed by Environmental Laws, which are addressed in Section 3.13 hereof, the Company has not received after January 1, 2006 any written notice or other communication, whether written or non-written, from the United States Food and Drug Administration (the “ FDA ”) or any other Governmental Authority alleging any violation of any Drug Law, including any failure to maintain systems and programs adequate to ensure compliance with any applicable Law related to product quality, including “Good Manufacturing Practice”, “Good Laboratory Practice”, and “Good Clinical Practice” as those terms are defined

by FDA and in all applicable Drug Laws, by the Company relating to any activity that is subject to Drug Laws. The Company has not received after January 1, 2006 any (i) notices of inspectional observations (including those recorded on form FDA 483), establishment inspection reports, warning letters, untitled letters, (ii) notice of any intention to conduct an investigation or review, or (iii) other written documents issued by the FDA or any other Governmental Authority that indicate lack of compliance with any Drug Law by the Company or by Persons who are otherwise performing services for the benefit of the Company.

          (c) The Company has all material registrations, applications, licenses, requests for approvals, exemptions, permits and other regulatory authorizations (collectively, “ Authorizations ”) from Governmental Authorities that are required to conduct the Company’s businesses as now being conducted, and such Authorizations are in full force and effect in all material respects. The Company has filed all material reports, notifications and filings with, and has paid all regulatory fees to, the applicable Governmental Authority necessary to maintain all of such Authorizations in full force and effect. The Company is (and since January 1, 2006 has been) in compliance in all material respects with the terms of all Authorizations. Since January 1, 2006, the Company has not received written notice to the effect that a Governmental Authority was considering the amendment, termination, revocation or cancellation of any Authorization. The consummation of the Merger or any of the other Transactions, in and of itself, will not cause the revocation or cancellation of any Authorization.

          (d) All preclinical tests performed in connection with or as the basis for any submission to the FDA or other comparable Government Authority, filed under an IND, CTA, or other foreign equivalent or that the Company anticipates will be submitted to FDA or other comparable Governmental Authority either (i) have been conducted in accordance, in all material respects, with applicable Good Laboratory Practice (“ GLP ”) requirements, including those contained in 21 C.F.R. Part 58 or (ii) involved experimental research techniques that were not required to be performed by a registered GLP testing laboratory (with appropriate notice being given to FDA or the applicable Governmental Authority, if required), but employed procedures and controls generally used by qualified experts in the conduct of preclinical studies.

          (e) The Company has no products with marketing approval from any Governmental Authority. All human clinical trials to the extent conducted by the Company or to the knowledge of the Company by a third party on behalf of the Company have been and are being conducted in material compliance with all applicable requirements of “Good Clinical Practice”, “Informed Consent” and, to the knowledge of the Company, “Institutional Review Boards”, as those terms are defined by FDA and in all applicable Drug Laws relating to clinical trials or the protection of human subjects, including those contained in the International Conference on Harmonization (“ ICH ”) E6: Good Clinical Practices Consolidated Guideline, and in 21 C.F.R. Parts 50, 54, 56, and 312, and the provisions governing the privacy of patient medical records under the Health Insurance Portability and Accountability Act of 1996 and the implementing regulations of the United States Department of Health and Human Services, and all applicable comparable foreign Drug Laws. Neither the Company, nor to the knowledge of the Company, anyone acting on behalf of the Company, has received since January 1, 2006 any notice that the FDA or any other Governmental Authority or institutional review board has initiated, or threatened to initiate, any clinical hold or other action to suspend any clinical trial or suspend or terminate any IND (or foreign equivalent thereto) sponsored by the Company, or

otherwise restrict the preclinical research on or clinical study of any Company product candidate. Notwithstanding the foregoing, any representation is made only to the knowledge of the Company with respect to activities by third parties to which the Company has transferred its regulatory obligations under the provisions of 21 C.F.R. Section 312.52 or any comparable foreign Drug Law.

          (f) All clinical trials conducted by or on behalf of the Company and the results of all such clinical trials have been registered and disclosed in all material respects in accordance with all applicable Drug Laws. The Company has filed all annual and periodic reports, amendments and IND Safety Reports required for any of its product candidates required to be made to the FDA or any other Governmental Authority.

          (g) All manufacturing operations conducted by or, to the knowledge of the Company, for the benefit of, the Company with respect to Company product candidates have been and are being conducted in accordance, in all material respects, with applicable current Good Manufacturing Practices as that term is defined by FDA and in all applicable Drug Laws.

          (h) There are no proceedings pending or, to the knowledge of the Company, threatened against the Company with respect to (i) a violation by the Company of any Drug Law, or (ii) any alleged injuries to a participant in any clinical trial conducted by or on behalf of the Company.

          (i) The Company has provided or made available for review all material preclinical and material clinical studies and trials conducted by the Company or by a third party on behalf of the Company regarding the efficacy and safety of its product candidates.

          (j) The Company has delivered or made available to Parent all material correspondence and material meeting minutes received from or sent to the FDA and any other similar Governmental Authority, and all written reports of phone conversations, visits or other contact with the FDA and any other similar Governmental Authority, relating to any product candidate of the Company or to compliance with any Drug Law, including any and all notices of inspectional observations, establishment inspection reports and any other documents received by the Company since January 1, 2006 from the FDA or comparable foreign Governmental Authorities which bear in any way on the Company’s compliance with regulatory requirements of the FDA or comparable foreign Governmental Authorities, or on the likelihood or timing of approval of any Company product candidates.

          (k) None of the Company or any officer, employee or, to the knowledge of the Company, agent of the Company, has made an untrue statement of a material fact or fraudulent statement to the FDA or any other Governmental Authority, failed to disclose a material fact required to be disclosed to the FDA or any other Governmental Authority, or committed any act, made any statement, or failed to make any statement, that would reasonably be expected to provide a basis for the FDA to invoke its policy respecting “Fraud, Untrue Statements of Material Fact, Bribery, and Illegal Gratuities”, set forth in 56 Fed. Reg. 46191 (September 10, 1991). Neither the Company nor, to the knowledge of the Company, any officer, employee or agent of the Company has been convicted of any crime or engaged in any conduct that would reasonably be expected to result in or that has resulted in (i) debarment under 21 U.S.C. Section

335a or any similar state or federal Law or (ii) exclusion from participating in the federal health care programs under Section 1128 of the Social Security Act or any similar state or federal Law.

          SECTION 3.15. Intellectual Property .

          (a) Schedule 3.15(a) of the Company Disclosure Letter sets forth a complete and accurate list of all Company Intellectual Property (other than trade secrets, Copyrights, Know-How and goodwill attendant to the Intellectual Property and other intellectual property rights not reducible to schedule form), including (i) a complete and accurate list of all Patents, (ii) a complete and accurate list of all Copyrights, and (iii) a complete and accurate list of all Trademarks.

          (b) The Company Intellectual Property is, to the knowledge of the Company, enforceable and valid. None of the Company Intellectual Property has been or is the subject of (i) any pending Proceeding (including, with respect to Patents, inventorship challenges, interferences, reissues, reexaminations and oppositions, and with respect to Trademarks, invalidation, opposition, cancellation, abandonment or similar Proceeding) or any order restricting (A) the use of such Company Intellectual Property or (B) assignment or license thereof by the Company, or (ii) to the knowledge of the Company, any threatened Proceeding or claim of infringement threatened or made in writing or any pending Proceeding to which the Company is a party. Schedule 3.15(b) of the Company Disclosure Letter sets forth any and all settlements or agreements reached with respect to any such Proceedings related to the Company Intellectual Property.

          (c) All Company Intellectual Property is owned or exclusively licensed by the Company. The Company has the right to assign, transfer or grant to Parent all rights in and to the Company Intellectual Property that are being assigned, transferred or granted to Parent under this Agreement free of any rights or claims of any Person or any other Liens, and without payment by any party of any royalties, license fees or other amounts to any other Person.

          (d) Schedule 3.15(d) of the Company Disclosure Letter sets forth a complete and accurate list of all royalty, license fee and other payment obligations with respect to the Company Intellectual Property. No royalties, license fees or other payment obligations would be owed to any Person in connection with the marketing, sale, use or other exploitation of any product currently in development by the Company after the Effective Time. "

          (e) The Company has not assigned, transferred, conveyed, or granted any licenses to any Company Intellectual Property to third parties, or otherwise caused or permitted any Lien to attach to any Company Intellectual Property or any Patents, Know-How, Trademarks or other Intellectual Property or related products that would have been Company Intellectual Property, but for such assignment, transfer, license, conveyance or Lien. Neither the Company nor, to the knowledge of the Company, any other Person, is party to any agreements with third parties that materially limit or restrict use of the Company Intellectual Property or require any payments for such use. No other Person has any proprietary, commercial, joint ownership, royalty or other interest in the Company Intellectual Property or the goodwill associated therewith. The Company has not entered into any Contract (i) granting any Person the right to bring infringement actions with respect to, or otherwise to enforce rights with respect to, any of the

Company Intellectual Property, (ii) expressly agreeing to indemnify any Person against any charge of infringement of any of the Company Intellectual Property, or (iii) granting any Person the right to control the prosecution of any of the Company Intellectual Property. There are no existing agreements, options, commitments, or rights with, of or to any third party to acquire or obtain any rights to any of the Company Intellectual Property.

          (f) To the knowledge of the Company, there is no unauthorized use, infringement, misappropriation or violation of any of the Company Intellectual Property by any Person. The marketing, sale, use or other exploitation of any product currently in development by the Company does not presently and, to the knowledge of the Company, will not, infringe or misappropriate or otherwise violate, as applicable, the intellectual property rights or other proprietary rights of any Person and the Company has not received any written notice from any Person, or has knowledge of, any claim or assertion to the contrary.

          (g) All issuance, renewal, maintenance and other material payments that are or have become due with respect to the Company Intellectual Property have been timely paid by or on behalf of the Company. All documents, certificates and other material in connection with the Company Intellectual Property have, for the purposes of maintaining such Company Intellectual Property, been filed in a timely manner with the relevant Governmental Authorities. The Company has properly filed, prosecuted and maintained all Patents and Trademarks included in the Company Intellectual Property and have properly filed and maintained all other Company Intellectual Property.

          (h) The Company has taken all reasonable measures to maintain in confidence all Know-How and to protect the secrecy, confidentiality and value of all trade secrets included within the Company Intellectual Property.

          (i) To the knowledge of the Company there are no domain names that consist of or include the Trademarks that are owned or registered by any Person other than the Company or its Affiliates

          (j) The Company has complied with any and all obligations pursuant to the Bayh-Dole Act, including with respect to any Patents that are part of the Company Intellectual Property.

          (k) As used in this Agreement:

     (i) “ Bayh-Dole Act ” means the Patent and Trademark Law Amendments Act, 35 U.S.C. §200 et seq., as may be amended or succeeded from time to time, and the regulations promulgated thereunder.

     (ii) “ Company Intellectual Property ” means all Intellectual Property owned, licensed or used by the Company that is material to or necessary for the conduct of the business of the Company as currently conducted or currently contemplated to be conducted in the future, including the marketing, use, sale or other exploitation of any product currently under investigation or in development.

     (iii) “ Copyrights ” means: (A) all copyrights (including copyrights in any package inserts, marketing or promotional materials, labeling information or other text provided to consumers), whether registered or unregistered throughout the world; (B) any registrations and applications therefor; (C) all rights and priorities afforded under any international treaty, convention, or the like; (D) all extensions and renewals of any thereof; (E) the right to sue for past, present and future infringements of any of the foregoing, and all proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages (including attorneys’ fees), and proceeds of suit; and (F) any rights similar to the foregoing in any country, including moral rights.

     (iv) “ Intellectual Property ” means intellectual property rights, including Trademarks, Internet Property, Copyrights and Patents, whether registered or unregistered, and all applications and registrations therefor, Know-How, confidential information, trade secrets, and similar proprietary rights in confidential inventions, discoveries, analytic models, improvements, processes, techniques, devices, methods, patterns, formulations and specifications.

     (v) “ Internet Property ” means: (A) all websites and rights thereto; (B) all news, information, illustrations, graphs, charts, artwork, photos, data, audio, video, text or other content or combinations thereof, in any form or media, used in Company websites; and (C) all URLs, internet protocol addresses and corresponding domain names, including all registrations and applications relating thereto.

     (vi) “ Know-How ” means any proprietary or nonproprietary information related to the manufacture, preparation, development (including research, pre-clinical and clinical), or commercialization of a product, including data, product specifications, processes, product designs, plans, trade secrets, ideas, concepts, inventions, formulae, chemical, pharmacological, toxicological, pharmaceutical, physical, analytical, stability, safety, quality assurance, quality control and clinical information, technical information, research information, and all other confidential or proprietary technical and business information, whether or not embodied in any documentation or other tangible materials, including any trade secret or other rights therein.

     (vii) “ Patents ” means: (A) all national, regional and international patents and patent applications, including provisional patent applications; (B) all patent applications filed either from such patents, patent applications or provisional applications or from an application claiming priority from either of these, including divisionals, continuations, continuations-in-part, substitutions, provisionals, converted provisionals, and continued prosecution applications; (C) any and all patents that have issued or in the future issue from the foregoing patent applications described in clauses (A) and (B), including utility models, petty patents and design patents and certificates of invention; (D) any and all extensions or restorations by existing or future extension or restoration mechanisms, including revalidations, reissues, re-examinations and extensions (including any supplementary protection certificates and the like) of the foregoing patents or patent applications described in clauses (A), (B) and (C); (E) any and all licenses, royalties, income, payments, causes of action, claims, demands or other rights occasioned from or because of any and all past, present and future infringement of any of the foregoing,

including all rights to recover damages (including attorneys’ fees), proceeds of suit, profits and injunctive or other relief for such infringement; and (F) any similar rights, including so-called pipeline protection, or any importation, revalidation, confirmation or introduction patent or registration patent or patent of additions to any such foregoing patent applications and patents.

     (viii) “ Trade Secrets ” means trade secrets (including those trade secrets defined in the Uniform Trade Secrets Act and under corresponding foreign statutory and common law), business, technical and know-how information, non-public information, and confidential information and rights to limit the use or disclosure thereof by any Person, including databases and collections and all rights therein.

     (ix) “ Trademark ” means: (A) all trademarks, trade names, trade dress, service marks, logos, trade styles, certification marks, collective marks, designs, industrial designs and other identifiers of source and all other general intangibles of a like nature, whether registered or unregistered; (B) all registrations and applications for any of the foregoing; (C) all extensions or renewals of any of the foregoing; (D) all of the goodwill connected with the use of and symbolized by the foregoing; (E) all rights and priorities afforded under the United States “common law,” under the “common law” of any other country or jurisdiction, or under any international treaty, convention, or the like; (F) the right to sue for past, present and future infringement, misappropriation or dilution of any of the foregoing or for any injury to goodwill; (G) all proceeds of the foregoing, including licenses, royalties, income, payments, claims, damages (including attorneys’ fees) and proceeds of suit; and (H) any rights similar to the foregoing in any country.

          SECTION 3.16. Material Contracts .

          (a) Set forth in Section 3.16(a) of the Company Disclosure Letter is a complete and accurate list of the following Contracts to which the Company is a party or by which it is bound as of the date hereof (each such Contract, whether or not set forth in such section of the Company Disclosure Letter, a “ Material Contract ”):

     (i) employment Contract, severance Contract, change of control Contract or any employee collective bargaining agreement or other Contract with any labor union;

     (ii) Contract not to compete or otherwise restricting in any material respect the development, manufacture, marketing, distribution or sale of any products or services (including any Contract that requires the Company to work exclusively with any Person in any particular area) or any other similar limitation on the ability of the Company to transact or compete in any line of business, in any therapeutic area, with any Person, in any geographic area or during any period of time;

     (iii) Contract containing any provision that applies to or restricts the operations or business of any Affiliate of the Company in a manner described in Section 3.16(a)(ii);

     (iv) Contract with (A) any Affiliate of the Company or (B) any director or officer of the Company (other than any Contracts of the type described in Section 3.16(a)(i) or indemnification agreements);

     (v) each lease, license, sublease or other occupancy right or similar Contract with any Person (together with any amendments or supplements thereto) (each, a “ Lease ”) under which the Company is a lessee, lessor or sublessor of, or makes available for use, to any Person (other than the Company), any real property or any portion or any premises otherwise occupied by or owned by the Company (referred to herein as the “ Leased Real Property ”);

     (vi) Contract (A) requiring or otherwise involving the potential payment by or to the Company of more than an aggregate of $150,000, (B) in which the Company has granted development rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any product or product candidate or (C) in which the Company has agreed to purchase a minimum quantity of goods relating to any product or product candidate or has agreed to purchase goods relating to any product or product candidate exclusively from a certain party;

     (vii) Contract for the disposition of any significant portion of the assets or business of the Company or any agreement for the acquisition, directly or indirectly, of a material portion of the assets or business of any other Person;

     (viii) non ordinary course Contract for any joint venture, partnership, material research and development project or similar arrangement;

     (ix) Contract involving Company Intellectual Property;

     (x) Contract (other than trade debt incurred in the ordinary course of business) under which the Company has borrowed money from, or issued any note, bond, debenture or other evidence of indebtedness for borrowed money to, any Person in excess of $150,000;

     (xi) Contract (including so-called take-or-pay or keepwell agreements) under which the Company has directly or indirectly guaranteed indebtedness for borrowed money, liabilities or obligations of any Person, in each case other than (I) endorsements for the purpose of collection in the ordinary course of business and (II) ordinary course Contracts relating to research and development of products;

     (xii) except for Contracts covered by clause (x) above, Contract under which the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person;

     (xiii) Contract providing for any mortgage or security interest in material property of the Company;

     (xiv) confidentiality agreements with any full time employee of the Company that is not substantially in the form of the Company’s form of confidentiality agreement;

     (xv) Contract involving a supply or tolling agreement or arrangement that commits the Company to purchase goods or supplies relating to any product candidate for clinical studies or commercial use;

     (xvi) Contract involving a standstill or similar obligation of the Company to a third party;

     (xvii) Current Government Contracts;

     (xviii) Contract, grants, agreements, cooperative agreements or other transactions with any Governmental Authority other than clinical trial Contracts and investigator initiated study Contracts; and

     (xix) Contract not entered into in the ordinary course of business that is material to the Company and not required to be disclosed in response to any other subparagraph of this Section 3.16(a).

          (b) Each of the Material Contracts is valid, binding and in full force and effect and is enforceable in accordance with its terms by the Company, subject to the Bankruptcy and Equity Exception and assuming enforceability against the counter-parties thereto. The Company is not in default under any Material Contract, nor, to the knowledge of the Company, does any condition exist that, with notice or lapse of time or both, would constitute a material default thereunder by the Company. To the knowledge of the Company, no other party to any Material Contract is in default thereunder, nor does any condition exist that, with notice or lapse of time or both, would constitute a default thereunder of such other party. The Company has not received any notice of termination or cancellation under any Material Contract or received any notice of breach or default in any material respect under any Material Contract which breach has not been cured. Except as separately identified in Section 3.16(b) of the Company Disclosure Letter, no approval, consent or waiver of any Person is needed in order that any Material Contract continue in full force and effect following the consummation of the Transactions. The Company has provided, or otherwise made available to Parent, complete and accurate copies of all of the Material Contracts currently in effect. As used in this Agreement, “ Contract ” means any loan or credit agreement, debenture, note, bond, mortgage, indenture, deed of trust, license, lease, contract, purchase order or other agreement, instrument or obligation.

          SECTION 3.17. Government Contract Regulatory Matters .

          (a) The Company has delivered or made available to Parent complete and accurate copies of all Current Government Contracts. Each of the Current Government Contracts is valid, binding and in full force and effect and is enforceable in accordance with its terms by the Company subject to the Bankruptcy and Equity Exception, and further subject to the Governmental Authority’s rights, including its right to terminate each such Current Government Contract for the convenience of the Governmental Authority. As used in this Agreement, “ Current Government Contract ” means any Government Contract, the period of performance of which has not yet expired or terminated or for which final payment has not yet been received. As used in this Agreement, “ Government Contract ” means any prime contract, subcontract, grant, cooperative agreement, base ordering agreement, pricing agreement, letter contract or other similar arrangement of any kind, between the Company, on the one hand, and (i) any Governmental Authority, (ii) any prime contractor of a Governmental Authority in its capacity as a prime contractor, or (iii) any subcontractor with respect to any contract of a type described in clauses (i) or (ii) above, on the other hand.

          (b) The Company has complied in all material respects with all statutory and regulatory requirements, including the Armed Services Procurement Act, the Service Contract Act, the Procurement Integrity Act, the False Claims Act, the Truth in Negotiation Act, the Federal Procurement and Administrative Services Act, the Federal Acquisition Regulation and related cost principles and the Cost Accounting Standards, where and as applicable to each of the Current Government Contracts and the representations and certifications made by the Company with respect to such Government Contracts were accurate in all material respects as of their effective date and, to the extent that any such certifications are on-going, the Company has complied with all such certifications in all material respects. The Company has not received any terminations or default, cure notice or show cause notice in writing from a Governmental Authority, which such notice or writing remains unresolved with respect to any such Current Government Contract. No past performance evaluation received by the Company, if any, with respect to any such Current Government Contract has set forth a default or other material failure to perform thereunder or termination thereof.

          (c) With respect to the Current Government Contracts, no Governmental Authority, prime contractor or higher-tier subcontractor under a Government Contract or any other Person has notified the Company in writing of any actual or alleged material violation or breach of any statute, regulation, representation, certification, disclosure obligation, contract term, condition, clause, provision or specification that would be reasonably expected to materially affect payments under Current Government Contracts or materially adversely affect the award of Government Contracts to the Company in the future. The Company has not received any written, show cause, cure, deficiency, default or similar notice relating to the Current Government Contracts; and the Company has not received any written notice terminating any of the Current Government Contracts for convenience or indicating an intent to terminate any of the Current Government Contracts for convenience.

          (d) The Company has not received any written or, to the knowledge of the Company, oral, notice of any outstanding Claims (as the term “Claim” is defined in FAR 2.101) or contract Disputes (as the term “Disputes” is used in the Contract Disputes Act of 1978, as amended, 41 U.S.C. 601 et . seq .) to which the Company is a party (i) relating to the Current Government Contracts and involving either a Governmental Authority, any prime contractor, any higher-tier subcontractor, vendor or any third party; and (ii) relating to the Current Government Contracts under the Contract Disputes Act.

          (e) The Company has never been and is not now, suspended, debarred or proposed for suspension or, to the knowledge of the Company, debarred from bidding on any Government Contract. The Company has not received written notice of the commencement of any suspension or debarment actions with respect to any Government Contract nor, to the knowledge of the Company, has a Governmental Authority threatened to initiate a suspension or debarment action against the Company or any of its officers or employees. To the knowledge of the Company, there is no valid basis for a Governmental Authority to initiate against the Company a suspension or debarment action. The Company has not received a negative determination of responsibility issued by a Governmental Authority against the Company during the past three years with respect to any quotation, bid or proposal for a Government Contract submitted by the Company.

          (f) In the past six years, the Company has not undergone and is not undergoing any audit, inspection, survey or examination of records relating to any Government Contract, the Company has not received written notice of, or undergone, any investigation or review relating to any Government Contract, and, to the knowledge of the Company, no such audit, review, inspection, investigation, survey or examination of records is threatened.

          (g) The Company performs no activities under Current Government Contracts, and has no other relationships with any other Person, that could result in an “organizational conflict of interest” as defined in Subpart 9.5 of the Federal Acquisition Regulation and agency supplements thereto.

          (h) During the last five years, the Company has not made any voluntary disclosure in writing to any Governmental Authority with respect to any material alleged irregularity, misstatement or omission arising under or relating to a Government Contract.

          (i) None of the Company’s employees, consultants or agents is (or during the last five years has been) under administrative, civil or criminal investigation or indictment by any Governmental Authority with respect to the conduct of the Company’s business.

          SECTION 3.18. Employment Matters .

          (a) The Company is not a party to or otherwise bound by any collective bargaining agreement, contract or other agreement or understanding with a labor union or labor organization, nor is any such contract or agreement presently being negotiated, nor, to the knowledge of the Company, is there, nor has there been in the last five years, a representation campaign with respect to any of the employees of the Company. As of the date of this Agreement, there is no pending or, to the knowledge of the Company, threatened, labor strike, dispute, walkout, work stoppage, slow-down or lockout involving the Company.

          (b) Section 3.18(b) of the Company Disclosure Letter sets forth a complete and accurate list of the name of each officer and employee of the Company as of the date hereof, together with each such person’s actual position or function, date of hire, seniority recognized to the extent preceding hire dates, status as active or non-active and as a U.S. citizen or lawful permanent resident, annual base salary or wages and any incentive or bonus arrangement with respect to such person in effect on such date and the amounts expected to be earned under those arrangements for the current fiscal year. The Company has not received any information that would lead it to believe that any current officer of the Company will resign from employment with the Company because of the consummation of the Transactions.

          (c) All employees of the Company are employed on an “at-will” basis and their employment can be terminated at any time without any amounts being owed to such individual other than with respect to wages accrued before the termination. The Company’s relationships with all individuals who act on their own as contractors or as other service providers can be terminated at any time for any reason without any amounts being owed to such individuals, other than with respect to compensation or payments accrued before the notice of termination. No employee is on disability or other leave of absence, other than short term absences of less than three weeks. The Company has complied, in all material respects, with all Laws governing the

employment of its employees and governing the employment of non-U.S. nationals in the United States, including the Immigration and Nationality Act 8 U.S.C. Sections 1101 et seq. and its implementing regulations. The Company has not sponsored any employee for, or otherwise engaged any employee working pursuant to, a non-immigrant visa.

          (d) The Company has not taken any action that, by itself or in conjunction with any action of equal magnitude that may be taken after the Effective Time, will require any compliance with the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any other similar or comparable applicable Law.

          (e) All amounts required by applicable Law to be deducted or withheld from remuneration payable to employees of the Company, and all employer premiums, contributions or amounts payable by the Company thereon or in respect thereof, have been so deducted and withheld and remitted, paid or contributed in material compliance with applicable Law to the appropriate governmental or regulatory authority.

          (f) The Company has not used the services of workers provided by third party contract labor suppliers, temporary employees, “leased employees” (as that term is defined in Section 414(n) of the Code). The Company has not used the services of individuals who have provided services while classified as independent contractors to an extent that they would be eligible to participate in any Company Employee Benefit Plan. All employees of the Company are employed in the United States, and all of the terms and conditions of their employment are governed exclusively by United States law and not the law of any other jurisdiction.

          (g) The Company has made available to Parent prior to the date of this Agreement a current, accurate and complete copy of each written material personnel policy, rule, or procedure applicable to employees of the Company.

          (h) The Company is not a party to, or otherwise bound by, any consent decree or settlement agreement with, or citation by, any Governmental Authority relating to employees or employment practices.

          SECTION 3.19. Real Property .

          (a) The Company does not own any real property.

          (b) The Company is the sole owner and holder of a valid leasehold interest in each Lease free and clear of Liens other than those Liens permitted under the applicable Lease and this Agreement. The Company has delivered or otherwise made available to Parent true, correct and complete copies of all Leases. The Company has peaceful and undisturbed possession under each Lease. To the knowledge of the Company, no party has a right to occupy any of the premises subject to a Lease except for the Company. There are not pending or, to the knowledge of the Company, threatened condemnation or eminent domain actions or proceedings, or any special assessments or other activities of any public or quasi-public body that are reasonably likely to materially adversely affect the Company’s rights pursuant to any Lease. No current use by the Company of the Leased Real Property or any improvements thereon is dependent on a nonconforming use or other approval from a Governmental Authority, the absence of which would significantly materially limit the use of any of the properties or assets in

the operation of the business of the Company. With respect to each Lease under which the Company is a lessee, the lessee under such Lease has no obligation to remove any tenant improvements, alterations or installations existing at the Leased Real Property as of the date hereof, prior to expiration or earlier termination of such Lease.

          SECTION 3.20. Insurance . Section 3.20 of the Company Disclosure Letter sets forth a complete and accurate list of all material insurance policies of the Company. There is no claim made against an insurance company by the Company pending under any such insurance policy. All insurance policies of the Company are in full force and effect and provide insurance in such amounts and against such risks as are customary in the industry in which they operate. The Company is not in breach or default, and the Company has not taken any action or failed to take any action which, with notice or the lapse of time, would constitute such a breach or default, or permit termination or modification of, any of such insurance policies. No notice of cancellation or termination has been received with respect to any such policy except customary notices of cancellation in advance of scheduled expiration.

          SECTION 3.21. Affiliate Transactions . No present or former officer or director of the Company or any Person owning 5% or more of the shares of Company Common Stock or any other Affiliate, and no family member of any such Person, is a party to any material loan, lease or other Contract with or binding upon the Company or any of its properties or assets or has any interest in any property owned by the Company or has engaged in any transaction with any of the foregoing within the last 12 months preceding the date of this Agreement. As used in this Agreement, " Affiliate ” means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with, such Person. For this purpose, “ control ” (including, with its correlative meanings, “ controlled by ” and “ under common control with ”) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise.

          SECTION 3.22. State Takeover Statutes . No “fair price”, “moratorium”, “control share acquisition” or other similar antitakeover statute or regulation enacted under state or federal laws in the United States (with the exception of Section 203 of the DGCL) applicable to the Company is applicable to the Merger or any of the other Transactions. The action of the Company Board in approving this Agreement, the Exchange Agreement, the Voting Agreement and the Transactions, is sufficient to render inapplicable to this Agreement, the Exchange Agreement, the Voting Agreement and the Transactions, the restrictions on “business combinations” (as defined in Section 203 of the DGCL) as set forth in Section 203 of the DGCL.

          SECTION 3.23. Assets . Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, the Company has good title to all the tangible personal property reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or acquired after the date thereof that are material to the Company’s business (except tangible personal property sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens, except (i) statutory Liens for current Taxes or other governmental charges not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) Liens arising under worker’s

compensation, unemployment insurance, social security, retirement and similar legislation, (iii) other statutory Liens securing payments not yet due including builder, mechanic, warehousemen, materialmen, contractor, landlord, workmen, repairmen, and carrier Liens, (iv) purchase money Liens and Liens securing rental payments under capital lease arrangements, (v) such imperfections or irregularities of title, claims, liens, charges, security interests, easements, covenants and other restrictions or encumbrances as do not affect the use of the properties or assets subject thereto or affected thereby or otherwise impair business operations at such properties, and (vi) mortgages, or deeds of trust, security interests or other encumbrances on title related to indebtedness reflected on the Company Financial Statements.

          SECTION 3.24. Foreign Corrupt Practices Act . Neither the Company nor any director, officer, agent or employee of the Company has (a) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity or (b) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns or violated any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any other federal, foreign or state anti-corruption or anti-bribery Law or requirement applicable to the Company.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

          Parent and Merger Sub hereby jointly and severally represent and warrant to the Company as follows:

          SECTION 4.1. Organization . Parent is a duly organized and validly existing stock corporation under the laws of the Republic of Austria. Merger Sub is a corporation organized, validly existing and in good standing under the laws of the State of Delaware. Each of Parent and Merger Sub has all requisite power and authority and possesses all governmental franchises, licenses, permits, authorizations and approvals necessary to enable it to own, operate and lease its properties and to carry on its business as now conducted, except for such franchises, licenses, permits, authorizations and approvals, the lack of which, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. A “ Parent Material Adverse Effect ” means any event, change, occurrence or development of a state of facts that has, individually or in the aggregate with all other events, changes, occurrences or developments of a state of facts, a material adverse effect on the ability of either Parent or Merger Sub to timely perform its obligations under this Agreement or to consummate the Merger and the other Transactions.

          SECTION 4.2. Merger Sub . Merger Sub is a direct, wholly owned Subsidiary of Parent that was formed solely for the purpose of engaging in the Transactions. Since the date of its incorporation, Merger Sub has not carried on any business or conducted any operations other than the execution of this Agreement, the performance of its obligations hereunder and matters ancillary thereto.

          SECTION 4.3. Authorization; No Conflict .

          (a) Each of Parent and Merger Sub has the requisite corporate power and authority to enter into and deliver this Agreement and all other agreements and documents contemplated hereby to which it is a party and to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement, the Exchange Agreement and the Voting Agreement by Parent and Merger Sub (to the extent a party), the performance by Parent and Merger Sub of their respective obligations hereunder and thereunder and the consummation by Parent and Merger Sub of the Transactions have been duly and validly authorized by the Management Board and Supervisory Board of Parent and the Board of Directors of Merger Sub. Except as set forth in the Exchange Agreement, no other corporate proceedings on the part of Parent or Merger Sub are necessary to authorize the execution and delivery of this Agreement, the Exchange Agreement and the Voting Agreement, the performance by Parent and Merger Sub of their respective obligations hereunder and thereunder and the consummation by Parent and Merger Sub of the Transactions. No vote of Parent’s stockholders is required in connection with this Agreement, the Exchange Agreement, or any of the Transactions, other than the approval of Parent’s stockholders in connection with revisions to Parent’s stock option plan. Each of this Agreement, the Exchange Agreement and the Voting Agreement has been duly and validly executed and delivered by Parent and Merger Sub (to the extent a party) and, assuming the due authorization, execution and delivery by the Company (to the extent a party) and the other parties thereto, constitute legal, valid and binding obligations of Parent and Merger Sub, enforceable against Parent and Merger Sub in accordance with their respective terms, subject in each case to the Bankruptcy and Equity Exception.

          (b) Neither the execution and delivery of this Agreement, the Exchange Agreement and the Voting Agreement by Parent or Merger Sub (to the extent a party), nor the consummation by Parent or Merger Sub of the Transactions nor compliance by Parent or Merger Sub with any of the provisions herein or therein will (i) result in a violation or breach of or conflict with the certificate of incorporation or by-laws of Merger Sub or any of the organizational documents of Parent, (ii) result in a violation or breach of or conflict with any provisions of, or result in the loss of any benefit under 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, cancellation of, or accelerate the performance required by, or result in a right of termination or acceleration under, or result in the creation of any Lien upon any of the properties or assets owned or operated by Parent or Merger Sub under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, contract, lease, agreement or other instrument or obligation of any kind to which Parent or Merger Sub is a party or by which Parent or Merger Sub or any of their respective properties or assets may be bound, or (iii) subject to obtaining or making the consents, approvals, orders, authorizations, registrations, declarations and filings referred to in paragraph (c) below, violate any Judgment or Law applicable to Parent or Merger Sub or any of their respective properties or assets other than any such event described in clauses (ii) and (iii) above which, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.

          (c) No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority is necessary to be obtained or made by Parent or Merger Sub in connection with Parent’s or Merger Sub’s (to the extent a party) execution, delivery and performance of this Agreement, the Exchange Agreement and the Voting Agreement, or the consummation by Parent or Merger Sub of the Transactions, except for (i)

compliance with the DGCL, with respect to the filing of t