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DOCUMENT TITLE:  AGREEMENT AND PLAN OF MERGER .
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Clause Heading
1 - Description of Transaction
1.2 - Effect of the Merger.
1.3 - Closing; Effective Time.
1.4 - Certificate of Incorporation and Bylaws; Directors and Officers.
(a) - Conversion.
(b) - Definitions.
(c) - Escrow Contribution.
(d) - Adjustments.
1.6 - Treatment of Stock Options.
(a) - Definitions.
(b) - Milestone Events and Milestone Payments.
(c) - Distribution of Milestone Payments.
(d) - Acceleration of Milestone Payments.
(e) - Milestone Payments Generally.
(f) - Milestone Rights Not Transferable.
(g) - Information Obligations.
(h) - Applicable Efforts.
(i) - Failure to Achieve Milestone Events.
(b) - Right to Make Share Issuance.
(c) - Exercise of Right to Make Share Issuance.
(d) - Share Issuance Closing.
(e) - Limitations on Share Issuances.
(f) - No Fractional Shares.
(g) - Successors.
(a) - Effect on Dissenting Shares.
(b) - Loss of Dissenting Share Status.
(c) - Notice of Dissenting Shares.
(a) - Payment Agent.
(d) - Stock Transfer Books.
(e) - Lost Certificates.
(f) - Undistributed Payment Funds.
(b) - Letter of Transmittal.
(c) - Payments to Others.
(g) - Escheat.
(h) - Withholding.
1.11 - Further Action.
2 - Representations and Warranties of the Company
(a) - Organization.
(b) - Qualification.
(c) - Directors and Officers.
(d) - No Subsidiaries.
2.2 - Charter Documents; Records.
(a) - Outstanding Securities.
(b) - Dividends, Authorization, Etc.
(c) - Stock Options.
(d) - Warrants.
(e) - No Other Securities.
(f) - Legal Issuance.
(g) - Repurchased Shares.
(a) - Delivery of Financial Statements.
(b) - Fair Presentation.
(c) - Internal Controls.
(d) - Insider Receivables.
(a) - No Liabilities.
(b) - Accounts Payable.
(d) - Director and Officer Indemnification.
(e) - Claims by Securityholders.
2.6 - Absence of Changes.
(a) - Good Title.
(b) - Leased Assets.
2.8 - Bank Accounts.
(a) - Equipment.
(b) - Real Property.
(a) - Registered IP.
(b) - Inbound Licenses.
(c) - Outbound Licenses.
(d) - Royalty Obligations.
(e) - Standard Form Company IP Contracts.
(f) - Ownership.
(g) - Valid and Enforceable.
(h) - No Third Party Infringement of Company IP.
(i) - Effects of This Transaction.
(k) - Information Technology.
(j) - No Infringement of Third Party IP.
(l) - Ownership of Data.
(m) - Information Security.
(a) - List of Contracts.
(b) - Delivery of Contracts.
(c) - No Breach.
(d) - No Renegotiation.
(e) - Proposed Contracts.
(a) - Compliance.
(b) - Certain Business Practices.
(a) - All Necessary Approvals.
(b) - Compliance.
(c) - Company Pharmaceutical Products.
(d) - Clinical Trials.
(e) - Access to Correspondence, Filings and Audits.
(f) - No False Statements.
(g) - Debarment.
(h) - Clinical Research Organizations.
(a) - Governmental Authorizations.
(b) - No Subsidies.
(a) - Tax Returns and Payments.
(b) - Audits; Claims.
(c) - Tax Sharing Agreements; Etc.
(d) - Closing Agreements; Etc.
(e) - Distributed Stock.
(f) - Tax Holidays.
(g) - Section 481 or 263A.
(h) - Section 6662.
(i) - Tax Shelters.
(k) - Section 1503.
(l) - Foreign Taxes.
(m) - FIRPTA.
(n) - Withholding Taxes.
(a) - Employee List.
(b) - Leave of Absence.
(c) - At Will Employment.
(d) - Employee Departures/Restrictions.
(e) - Employee Plans and Agreements.
(f) - Delivery of Documents.
(g) - No Foreign Plans.
(h) - Absence of Certain Retiree Liabilities.
(i) - No Defaults.
(j) - No Conflict.
(k) - Compliance.
(l) - Title IV of ERISA.
(m) - Labor Relations.
(n) - Claims Against Plans.
(o) - Independent Contractors.
(p) - No Misclassified Employees.
(q) - Labor-Related Claims.
(r) - Change in Control Severance Plan.
2.17 - Environmental Matters.
2.18 - Insurance.
2.19 - Related Party Transactions.
(a) - Legal Proceedings.
(b) - Orders.
(a) - Authority; Binding Nature.
(b) - Board Approval.
(c) - No Takeover Statute.
(b) - Certificate Amendment Vote.
2.24 - Brokers.
2.25 - Information Statement.
3 - Representations and Warranties of Parent and Merger Sub
3.1 - Due Organization.
2.22 - Non-Contravention; Consents.
(a) - Merger Vote.
(a) - Non-Contravention.
(b) - Consents.
3.3 - Authority; Binding Nature of Agreement.
3.4 - Legal Proceedings.
3.5 - Available Funds.
4.1 - Access and Investigation.
4.2 - Operation of the Business of the Company.
4.3 - Notification.
4.4 - No Negotiation.
4.5 - Termination of Certain Employee Benefit Plans.
(b) - Termination of Severance Plans and Company Option Plan.
4.6 - Termination/Amendment of Agreements.
4.7 - FIRPTA Matters.
4.8 - Insider Receivables.
4.9 - Net Cash Shortfall Amount.
4.10 - Third Quarter Financial Statements.
(a) - Filings.
(b) - Efforts.
(c) - Limitations.
(a) - Information Statement.
(b) - Parachute Payments.
5.3 - Public Announcements.
5.4 - Reasonable Efforts.
5.5 - Employee Benefits.
5.6 - Communications with Employees.
5.7 - Resignation of Officers and Directors.
5.8 - Amendment to Certificate of Incorporation.
5.9 - Directors and Officers.
5.10 - Investor Representation Letters.
6 - Conditions Precedent to Obligations of Parent and Merger Sub
(a) - Accuracy of Certain Representations.
(b) - Accuracy of Other Representations.
6.2 - Performance of Covenants.
6.3 - Governmental Consents.
6.4 - No Material Adverse Effect.
6.5 - Stockholder Approval.
6.6 - Certificate Amendment.
6.7 - Agreements and Documents.
6.8 - FIRPTA Compliance.
6.9 - No Restraints.
6.10 - No Legal Proceedings.
6.11 - No Company Options/Warrants.
6.12 - Termination of Employee Plans.
6.13 - Section 280G Stockholder Approval.
6.14 - Pay-Off Letters; Insider Receivables.
6.15 - Securities Exemption.
7 - Conditions Precedent to Obligations of the Company
7.1 - Accuracy of Representations.
7.2 - Performance of Covenants.
7.3 - Stockholder Approval.
7.4 - Documents.
7.5 - No Restraints.
8.1 - Termination Events.
8.2 - Termination Procedures.
8.3 - Effect of Termination.
(a) - General Survival.
(b) - Specified Representations and IP Representations.
(c) - Parent Representations.
(d) - Survival of Pre-Closing Covenants.
(e) - Fraud.
(f) - Representations Not Limited.
(g) - Disclosure Schedule.
(h) - Survival Period.
(a) - Deductible.
(b) - Applicability of Deductible.
(c) - Exclusive Remedy.
(a) - Indemnification.
(b) - Damage to Parent.
(d) - Other Liability Caps.
(e) - Limit on Direct Recovery from Effective Time Holders.
9.4 - No Contribution.
9.6 - Setoff.
9.7 - Exercise of Remedies Other Than by Parent.
9.5 - Defense of Third Party Claims.
(a) - Appointment.
(b) - Authority.
(c) - Power of Attorney.
(d) - Indemnification; Reimbursement.
(e) - Replacement.
10.2 - Further Assurances.
10.3 - Fees and Expenses.
10.4 - Attorneys Fees.
10.5 - Notices.
10.6 - Headings.
10.7 - Counterparts and Exchanges by Electronic Transmission or Facsimile.
(a) - Governing Law.
(b) - Venue.
(c) - Indemnification Claims; Disputes Related to Milestones.
10.13 - Amendments.
10.14 - Severability.
10.9 - Assignment; Successors and Assigns.
10.10 - Remedies Cumulative; Specific Performance.
10.11 - Waiver.
10.12 - Waiver of Jury Trial.
10.15 - Parties in Interest.
10.16 - Entire Agreement.
10.17 - Disclosure Schedule.
(a) - Gender; Etc.
(b) - Ambiguities.
(c) - Including.
(d) - References.
4 - Michael G.
5 - Christopher J.
7 - Mark K.
9 - Stephen Brady
1 - Certain Defined Terms; Related Matters.
2.1 - Cash Placed in Escrow.
2.2 - Security Interest.
2.3 - Investment of Escrow Property.
2.4 - Transferability.
2.5 - Trust Fund.
3 - Administration of Indemnification Escrow Account and Expenses Escrow Account.
3.1 - Claim Notice.
3.2 - Response Notice.
3.3 - Full Agreement.
3.4 - Partial Agreement.
3.5 - Dispute Resolution.
3.6 - Timing of Release of Contested Amounts.
3.7 - Distributions to Parent.
3.8 - Releases from Expenses Escrow Account.
4 - Distribution of Escrow Property.
5 - Fees and Expenses.
6.1 - Duties of Escrow Agent.
6.2 - Indemnification.
7 - Termination.
8 - Successor Escrow Agent.
9 - Stockholders Agent.
10.1 - Attorneys Fees.
10.2 - Notices.
10.3 - Headings.
10.4 - Counterparts and Exchanges by Facsimile.
10.5 - Applicable Law; Waiver of Jury Trial.
10.6 - Successors and Assigns.
10.7 - Waiver.
10.8 - Amendment.
10.9 - Severability.
10.10 - Parties in Interest.
10.11 - Entire Agreement.
10.12 - Tax Reporting Information and Certification of Tax Identification Numbers.
10.13 - Cooperation.
10.14 - Reliance on Own Counsel.
10.15 - Construction.
1 - Release.
2 - Definitions.
3 - Unknown Claims.
4 - Miscellaneous.