A complete copy of such opinion will be made available to Parent as soon as practicable after the date of this Agreement

Section 5.23                                Amendment of Rights Plan; State Takeover Statute.

(a)                                  The Company has taken all necessary actions to render the Rights Agreement inapplicable to the Offer, the Merger and the other transactions contemplated by this Agreement and to terminate the Rights Agreement as of the Merger Effective Time.

(b)                                 The Company has taken all action necessary to exempt this Agreement, the Offer, the Merger and the other transactions contemplated hereby from the provisions of Section 203 of the DGCL, and, accordingly, no such Section nor other anti-takeover or similar statute or regulation applies or purports to apply to any such transactions.  No other “control share acquisition,” “fair price,” “moratorium” or other anti-takeover laws enacted under U.S. state or federal laws apply to this Agreement or any of the transactions contemplated hereby.

ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BUYER PARTIES

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

Section 6.01                                Organization.  Each of the Buyer Parties has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization and has the requisite corporate or other power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted, except where the failure to be so organized, existing or in good standing or to have such power, authority and governmental approvals would not have a Parent Material Adverse Effect.

Section 6.02                                Ownership of Purchaser; No Prior Activities.  Purchaser was formed solely for the purpose of engaging in the transactions contemplated by this Agreement and has not engaged in any business activities or conducted any operations other than in connection with the transactions contemplated by this Agreement.  All the issued and outstanding shares of capital stock of Purchaser are, and as of the Acceptance Time and the Closing Date will be, owned of record and beneficially by Parent and/or a wholly owned subsidiary of Parent.

Section 6.03                                Power and Authority.  Each of the Buyer Parties has all necessary corporate or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement.  The execution and delivery of this Agreement by each of the Buyer Parties and the consummation by the Buyer Parties of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary corporate action,

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and no other corporate proceedings on the part of the Buyer Parties are necessary to authorize this Agreement or to consummate the transactions contemplated by this Agreement.  This Agreement has been duly and validly executed and delivered by the Buyer Parties and, assuming due authorization, execution and delivery by the Company, constitutes a legal, valid and binding obligation of each of the Buyer Parties enforceable against each of the Buyer Parties in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws or by general equity principles.

Section 6.04                                No Conflict; Required Filings and Consents.

(a)                                  The execution and delivery of this Agreement by each of the Buyer Parties do not, and the performance of each of the Buyer Parties’ obligations hereunder will not, (i) conflict with or violate the organizational documents of Parent or the certificate of incorporation or bylaws of Purchaser, (ii) assuming that all consents, approvals, authorizations and other actions described in subsection (b) of this Section 6.04 have been obtained and all filings and obligations described in subsection (b) of this Section 6.04 have been made, conflict with or violate any Law applicable to any of the Buyer Parties, or by which any of its properties or assets is bound, or (iii) result in any breach of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration, prepayment or cancellation of, or result in the creation of a Lien or other encumbrance on any of its properties or assets pursuant to, Contract to which it is a party or by which it or any of its properties or assets is bound or any Permit affecting, or relating in any way to, the assets or business of the Company and the Company Subsidiaries, except, with respect to clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults or other occurrences that would not prevent or delay consummation of the Merger or otherwise prevent it from performing its obligations under this Agreement.

(b)                                 The execution and delivery of this Agreement by each of the Buyer Parties does not, and the performance of each of the Buyer Parties’ obligations hereunder and thereunder will not, require any consent, approval, authorization or permit of, or filing with, or notification to, any Governmental Authority, except (i) for (A) applicable requirements, if any, of the Exchange Act, (B) the pre-merger notification requirements of the HSR Act, (C) compliance with the Antitrust Laws in the jurisdictions listed in Section 5.05(b) of the Company Disclosure Schedule, (D) if applicable, filings and notice requirements under the rules and regulations of the NYSE and the United Kingdom Financial Services Authority, and (D) the filing of the Certificate of Merger pursuant to the DGCL, (F) the filing of customary applications and notices, as applicable, with the FDA, EMEA or PMDA, and (G) any registration, filing or notification required pursuant to state securities or blue sky laws and (ii) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.

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Section 6.05                                Information Supplied.  None of the information supplied or to be supplied by Parent or Purchaser specifically for inclusion or incorporation by reference in (a) the Offer Documents, (b) the Schedule 14D-9 (including the information required by Section 14(f) of the Exchange Act and Rule 14f-1 thereunder) or (c) the Proxy/Information Statement, as required, will, (i) in the case of the Offer Documents and the Schedule 14D-9, at the respective times the Offer Documents and the Schedule 14D-9 are filed with the SEC or first published, sent or given to the Company Stockholders, or (ii) in the case of the Proxy/Information Statement, at the time the Proxy/Information Statement is first mailed to the Company 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.  No representation is made by the Buyer Parties with respect to statements made or incorporated by reference therein based on information supplied by or on behalf of the Company in connection with the preparation of the Proxy/Information Statement.

Section 6.06                                Absence of Litigation.  There is no Action pending or, to the knowledge of Parent, threatened against Parent or any of its subsidiaries or any of its or their respective properties or assets except as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.  None of Parent or its subsidiaries is subject to any order, judgment, writ, injunction or decree, except as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.

Section 6.07                                Availability of Funds.  Parent has available or committed to it and will have available or committed to it through the expiration of the Offer and the Merger Effective Time, the funds necessary to accept for payment and pay for any Company Common Shares pursuant to the Offer and consummate the Merger and the other transactions contemplated hereby.

Section 6.08                                No Ownership of Company Capital Stock.  Neither Parent nor Purchaser, nor any of their respective Affiliates, owns, or at any time during the past three (3) years has owned, any Company Common Shares or any option, warrant or other right to acquire any Company Common Shares.

Section 6.09                                Other Agreements or Understandings.  Parent has disclosed to the Company all contracts, arrangements or understandings (and, with respect to those that are written, Parent has furnished to the Company correct and complete copies thereof) between or among Parent, Purchaser, or any affiliate of Parent, on the one hand, and any member of the board of directors or management of the Company.

Section 6.10                                Brokers.  No broker, finder or investment banker (other than Merrill Lynch & Co.) is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Parent, Purchaser or any of their affiliates.

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Section 6.11                                No Additional Representations.

(a)                                  Parent acknowledges that it and its representatives have received access to such books and records, facilities, equipment, contracts and other assets of the Company which it and its representatives have desired or requested to review, and that it and its representatives have had full opportunity to meet with the management of the Company and to discuss the business and assets of the Company.

(b)                                 Parent acknowledges that neither the Company nor any person has made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding the Company furnished or made available to Parent and its representatives except as expressly set forth in this Agreement (which includes the Company Disclosure Schedule and the Company SEC Reports), and neither the Company nor any other person shall be subject to any liability to Parent or any other person resulting from the Company’s making available to Parent or Parent’s use of such information, or any information, documents or material made available to Parent in the due diligence materials provided to Parent, including in the “data room,” management presentations (formal or informal) or in any other form in connection with the transactions contemplated by this Agreement.  Without limiting the foregoing, the Company makes no representation or warranty to Parent with respect to any financial projection or forecast relating to the Company or any of the Company Subsidiaries.

ARTICLE VII
CONDUCT OF BUSINESS PENDING THE MERGER

Section 7.01                                Conduct of Business by the Company Pending the Merger. From the date hereof until such time as Parent’s designees shall constitute a majority of the Company Board, except as required or expressly permitted by this Agreement or as set forth in Section 7.01 of the Company Disclosure Schedule and except with the prior written consent of Parent which consent shall not be unreasonably withheld or delayed, the Company shall, and shall cause each of the Company Subsidiaries, to conduct its business in the ordinary course and shall use its commercially reasonable efforts to preserve substantially intact the business organization of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with any persons with which the Company or any Company Subsidiary has significant business relations.  Except as required, permitted or otherwise contemplated by this Agreement or as set forth in Section 7.01 of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary shall, between the date of this Agreement and such time as Parent’s designees shall constitute a majority of the Company Board, do any of the following without the prior written consent of Parent, which consent shall not be unreasonably withheld or delayed:

(a)                                  amend or otherwise change any provision of the Company Charter or Company Bylaws, or similar organizational or governance documents (whether by merger, consolidation or otherwise);

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(b)                                 amend the terms of any capital stock of the Company or any Company Subsidiary (in each case, whether by merger, consolidation or otherwise);

(c)                                  (i) authorize for issuance, issue or sell or agree or commit to issue or sell any shares of any class of capital stock of the Company or any Company Subsidiary or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest, of the Company or any Company Subsidiary (including any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units), other than the issuance of Company Common Shares (A) pursuant to Company Stock Awards and Company Warrants outstanding on the date hereof, (B) upon the award of Company Stock Awards granted in the ordinary course of business consistent with past practice to new hires and (C) upon the conversion of the Convertible Notes and upon exercise of the Call-Spread Warrants; (ii) repurchase, redeem or otherwise acquire any capital stock, securities or equity equivalents, except in connection with the exercise of the Company Hedge Options or upon the exercise of holders of Company Notes of their rights pursuant to Sections 3.02 of each of the indentures referred to in clauses (b) and (c) of the definition of “Indentures”; (iii) declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions (whether in cash, shares, property or otherwise) in respect of, any of its shares of capital stock, other than dividends by any direct or indirect wholly owned Company Subsidiary to the Company or any other Company Subsidiary; or (iv) split, combine or reclassify any of its shares, stock or other equity interests or issue or authorize the issuance of any securities in respect of, in lieu of or in substitution for shares of its shares, stock or other equity interests;

(d)                                 acquire (by merger, consolidation, acquisition of equity interests or assets, any other business combination or otherwise) any corporation, partnership, limited liability company, joint venture or other business organization (or division thereof) or any property, for a purchase price exceeding Twenty Five Million Dollars ($25,000,000) individually or Seventy Five Million Dollars ($75,000,000) in the aggregate;

(e)                                  sell, lease, license, transfer or otherwise dispose of any of its properties or assets, having a fair market value in excess of Twenty Five Million Dollars ($25,000,000) individually or Seventy Five Million Dollars ($75,000,000) in the aggregate, except (A) sales of inventory in the ordinary course of business, (B) pursuant to written Contracts in force on the date of this Agreement, (C) dispositions of obsolete or worthless assets; (D) pursuant to transactions solely among the Company and the Company Subsidiaries;

(f)                                    enter into any license agreement with respect to the Intellectual Property of a third person or any Company Intellectual Property, except in the ordinary course of business consistent with past practice and as would not materially restrict the Company or any of the Company Subsidiaries in the operation of their businesses as currently conducted or proposed by the Company to be conducted;

(g)                                 take (or omit to take) any action that adversely affects, or would reasonably be expected to adversely affect, any material patent or patent application, or

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abandon or permit to lapse any rights to any material patent or patent application, in each case, of the Company or any Company Subsidiary;

(h)                                 (i) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible or liable for, the obligations of any person (other than a Company Subsidiary) for borrowed money, other than (A) indebtedness for borrowed money incurred in the ordinary course of business consistent with past practice (which shall be deemed to include, without limitation, draws or standby letters of credit under the Company’s line of credit facility or other similar lines of credit) or (B) indebtedness for borrowed money in an amount not in excess of Twenty Five Million Dollars ($25,000,000) in the aggregate for the Company and the Company Subsidiaries taken as a whole; or (ii) make any loans, advances or capital contributions to, or investments in, any Person in an amount in excess of Fifteen Million Dollars ($15,000,000) individually or Fifty Million Dollars ($50,000,000) in the aggregate, other than in or to any direct or indirect wholly owned Company Subsidiary, except as permitted by Section 7.01(d);

(i)                                     except as required by applicable Law, materially amend or terminate any Company Material Contract or enter into any new Contract that, if entered into prior to the date of this Agreement, would have been required to be listed in Section 5.19 of the Company Disclosure Schedule as a Company Material Contract;

(j)                                     except as required by applicable Law or by the terms of the Plans, (i) increase the compensation or benefits payable to its current or former directors, officers or employees other than increases awarded to employees with an aggregate annual base salary of $250,000 or less, which are made in the ordinary course of business consistent with past practice or (ii) grant to any current or former director, officer or employee of the Company or of any Company Subsidiary any new severance, change of control or termination pay, grant any increase in, or otherwise alter or amend, any right to receive any severance, change of control or termination pay or benefits or establish, adopt, enter into or amend any Plan, agreement or arrangement relating to benefits under any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, loan, retention, consulting, indemnification, termination, severance or other similar plan, agreement, trust, fund, policy or arrangement with any current or former director, officer or employee;

(k)                                  except as required by Law or changes in GAAP which become effective after the date of this Agreement, or as recommended by the Company’s audit committee or independent auditors, in which case the Company shall notify Parent, materially change any of its accounting policies (whether for financial accounting or Tax purposes);

(l)                                     except as required by Law or changes in GAAP which become effective after the date of this Agreement, change an annual Tax accounting period, adopt or materially change any Tax accounting method, file any material amended Tax Return,

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or settle a material Tax claim or assessment, in each case, relating to the Company or a Company Subsidiary;

(m)                               authorize, or enter into any commitment for, any new material capital expenditure (such authorized or committed new material capital expenditures being referred to hereinafter as the “Capital Expenditures”) other than (i) Capital Expenditures set forth on Section 7.01(m) of the Company Disclosure Schedule and (ii) any other individual Capital Expenditures not exceeding Twenty Five Million Dollars ($25,000,000) in the aggregate;

(n)                                 pay, discharge, settle or satisfy any material litigation, arbitrations, proceedings, claims, liabilities or obligations (including with respect to Company Intellectual Property) other than any settlement, payment, discharge or satisfaction where the amounts paid or to be paid (i) are covered by insurance coverage maintained by the Company or (ii) in an amount less than Twenty Five Million Dollars ($25,000,000) in the aggregate;

(o)                                 fail to use commercially reasonable efforts to maintain existing insurance policies or comparable replacement policies to the extent available for a reasonable cost;

(p)                                 adopt a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, recapitalization or other similar reorganization;

(q)                                 withdraw or modify, nor permit the withdrawal or modification of, the Compensation Arrangement Approvals; or

(r)                                    announce an intention, enter into any agreement or otherwise make a commitment, to do any of the foregoing.

Section 7.02                                Conduct of Business by Buyer Parties Pending the Merger.  The Buyer Parties agree that, between the date of this Agreement and the Merger Effective Time, except as contemplated by this Agreement, they shall not, directly or indirectly, without the prior written consent of the Company, take or cause to be taken any action that (a) could be expected to materially delay or impair the consummation of the transactions contemplated by this Agreement, or propose, announce an intention, enter into any agreement or otherwise make a commitment to take any such action, or (b) would cause any of the representations or warranties of the Buyer Parties contained herein to become inaccurate in any material respect or any of the covenants of the Buyer Parties to be breached in any material respect.

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ARTICLE VIII
ADDITIONAL AGREEMENTS

Section 8.01                                Company Proxy/Information Statement; Other Filings; Stockholders’ Meeting.

(a)                                  If approval of the Company Stockholders is required under the DGCL in order to consummate the Merger other than pursuant to Section 253 of the DGCL, as soon as practicable following the later of the Acceptance Time or the expiration of any subsequent offering period provided in accordance with Rule 14d-11 under the Exchange Act, the Company shall prepare and, after consultation with Parent, file with the SEC the Proxy/Information Statement, and each of the Company and Parent shall, or shall cause their respective affiliates to, prepare and, after consultation with each other, file with the SEC all Other Filings that are required to be filed by such party in connection with the transactions contemplated hereby.  Parent and the Company shall cooperate with one another in connection with the preparation of the Proxy/Information Statement and shall furnish all information concerning such party as the other party may reasonably request in connection with the preparation of the Proxy/Information Statement.  Parent and the Company shall each use its reasonable best efforts to have the Proxy/Information Statement cleared by the SEC as promptly as reasonably practicable after such filing.  The Company will use reasonable best efforts to cause the Proxy/Information Statement to be mailed to the Company Stockholders as promptly as reasonably practicable after the Proxy/Information Statement is cleared by the SEC.

(b)                                 Each of Parent and the Company shall as promptly as practicable notify the other of (i) the receipt of any comments from the SEC and all other written correspondence and oral communications with the SEC relating to the Proxy/Information Statement and (ii) any request by the SEC for any amendment or supplement to the Proxy/Information Statement or for additional information with respect thereto.  All filings by the Company with the SEC in connection with the transactions contemplated hereby, including the Proxy/Information Statement and any amendment or supplement thereto, shall be subject to the reasonable prior review and comment of Parent, and all mailings to the Company Stockholders in connection with the Merger and transactions contemplated by this Agreement shall be subject to the reasonable prior review and comment of Parent.  All filings by Parent with the SEC in connection with the transactions contemplated hereby shall be subject to the prior review and comment of the Company.

(c)                                  If at any time prior to the Merger Effective Time any information relating to the Company, Parent or Purchaser, or any of their respective Affiliates, directors or officers, is discovered by the Company, Parent or Purchaser, which should be set forth in an amendment or supplement to the Proxy/Information Statement or Other Filings, so that the Proxy/Information Statement or Other Filings would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall

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promptly notify the other parties and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the Company Stockholders.

(d)                                 If approval of the Company Stockholders is required under the DGCL in order to consummate the Merger other than pursuant to Section 253 of the DGCL, the Company, acting through the Company Board, shall, in accordance with the Company Charter and Company Bylaws and applicable Law and the Nasdaq Marketplace Rules, promptly and duly call, give notice of, convene and hold as soon as practicable following the date upon which the Proxy/Information Statement is cleared by the SEC, a meeting of the holders of Common Shares (the “Company Stockholders’ Meeting”) for the sole purpose of seeking the Company Stockholder Approval and shall (i) except as otherwise provided in Section 8.03, recommend the approval and adoption of this Agreement by the Company Stockholders and include in the Proxy/Information Statement such recommendation and the opinion of Goldman, Sachs & Co., dated as of the date hereof, to the extent set forth in Section 5.22 and (ii) use its reasonable best efforts to solicit such adoption.

(e)                                  Each of Parent and Purchaser shall vote all Company Common Shares acquired in the Offer (or otherwise beneficially owned by it or any of its respective subsidiaries as of the applicable record date) in favor of the adoption of this Agreement in accordance with the DGCL at the Company Stockholders’ Meeting or otherwise. Parent shall vote all of the shares of capital stock of Purchaser beneficially owned by it in favor of the adoption of this Agreement in accordance with the DGCL.

(f)                                    Notwithstanding anything to the contrary in this Agreement, in the event that Purchaser shall acquire at least ninety percent (90%) of the issued and outstanding Company Common Shares pursuant to the Offer or otherwise, each of Parent, Purchaser and the Company shall take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after such acquisition, without a meeting of the Company Stockholders, in accordance with Section 253 of the DGCL.

Section 8.02                                Access to Information; Confidentiality.

(a)                                  Upon reasonable prior notice and subject to applicable Law, from the date hereof until the earlier to occur of the termination of this Agreement in accordance with Section 10.01 and the Merger Effective Time, the Company shall, and shall cause the Company Subsidiaries and the officers, directors, employees, auditors and agents of the Company and the Company Subsidiaries to afford Parent, following notice from Parent to the Company in accordance with this Section 8.02, reasonable access during normal business hours to the officers, employees, agents, properties, offices, plants and other facilities, Contracts, books and records of the Company and the Company Subsidiaries, and all other financial, operating and other data and information as Parent may reasonably request.  Notwithstanding the foregoing the Company and the Company Subsidiaries shall not be obligated to disclose any information if the Company, in its reasonable judgment, determines that doing so would (i) violate any applicable Law, (ii) result in the loss of attorney-client privilege with respect to such information or (iii) result in a breach of an agreement to which the Company or any of the Company

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Subsidiaries is a party.  Parent shall schedule and coordinate all inspections with the Company and shall give the Company at least three (3) Business Days prior written notice thereof, setting forth the inspection or materials that Parent or its representatives intend to conduct or review, as applicable.  The Company shall be entitled to have representatives present at all times during any such inspection.  No investigation pursuant to this Section 8.02 or information provided, made available or delivered to Parent pursuant to this Section 8.02 shall affect any representations or warranties made herein or the conditions to the obligations of the respective parties to consummate the Merger.

(b)                                 Prior to the Merger Effective Time, all information obtained by Parent pursuant to this Section 8.02 shall be kept confidential in accordance with the confidentiality agreement dated March 23, 2007 between Parent and the Company (the “Confidentiality Agreement”).

Section 8.03                                No Solicitation of Transactions by the Company.

(a)                                  At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Section 10.01 hereof and the Acceptance Time, none of the Company or any Company Subsidiary shall, nor shall it authorize or permit, directly or indirectly, any officer, trustee, director, employee, investment banker, financial advisor, attorney, broker, finder or other agent, representative or affiliate of the Company or any Company Subsidiary to, (i) initiate, solicit, knowingly encourage or knowingly facilitate (including by way of furnishing nonpublic information or assistance or access to properties or assets) any inquiries or the making of any proposal or other action that constitutes, or may reasonably be expected to lead to, any Company Acquisition Proposal, (ii) enter into discussions or negotiate with any Person in furtherance of such inquiries or to obtain a Company Acquisition Proposal, (iii) grant any Person any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any Company Subsidiary, (iv) take any action not already taken to make the provisions of any “business combination” or other similar anti-takeover statute or regulation (including approving any transaction under Section 203 of the DGCL), any restrictive provision of any applicable anti-takeover provision in the Company Charter or Company Bylaws or under the Rights Agreement inapplicable to any transactions contemplated by a Company Acquisition Proposal, or (v) enter into an agreement, including any agreement in principle (other than a confidentiality agreement entered into in accordance with the provisions of this Section 8.03(a) or as expressly permitted by Section 8.03(b)), with respect to a Company Acquisition Proposal.  Notwithstanding the foregoing or any other provision of this Agreement to the contrary, at any time prior to the Acceptance Time, following the receipt after the date of this Agreement by the Company or any Company Subsidiary of a Company Acquisition Proposal (that was not solicited, encouraged or facilitated in violation of this Section 8.03(a)) that the Company Board determines in good faith after consultation with its legal and financial advisors is, or is reasonably likely to lead to, a Company Superior Proposal and that the failure to take the action specified in clause (x) or (y) below, as applicable, would be inconsistent with its fiduciary obligations under applicable Law, the Company Board may (directly or through advisors or representatives), subject to Section 8.03(c),

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(x) engage in negotiations or discussions with such Person who made such Company Acquisition Proposal and its advisors; and/or (y) furnish non-public information with respect to the Company and the Company Subsidiaries to the Person who made such Company Acquisition Proposal pursuant to a confidentiality agreement with terms overall no less favorable to the Company than those contained in the Confidentiality Agreement (a copy of which shall be provided, promptly after its execution, for informational purposes only to Parent, and which copy and the terms and existence thereof shall be subject to the confidentiality obligations imposed on Parent pursuant to the Confidentiality Agreement); provided that all such information (to the extent that such information has not been previously provided or made or had been previously made available to Parent) is provided to Parent prior to or substantially concurrently with the time it is provided or made available to such Person.

(b)                                 The Company Board shall not, directly or indirectly, (i) (A) fail to make, withdraw (or amend or modify in a manner adverse to Parent) or publicly propose to withdraw (or amend or modify in a manner adverse to Parent), the Company Board Recommendation (including pursuant to the Schedule 14D-9 or any amendment thereto) or the approval of the Company Board of this Agreement and the transactions contemplated hereby (it being understood that taking a neutral position or no position with respect to any Company Acquisition Proposal, other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act, shall be considered an adverse modification) or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Company Acquisition Proposal, or take any action or make any statement inconsistent with the Company Board Recommendation (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) approve or recommend, or publicly propose to approve or recommend, or allow the Company or any Company Subsidiary to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding (A) constituting or that could reasonably be expected to lead to any Company Acquisition Proposal or (B) requiring it to abandon, terminate or fail to consummate the Offer or the Merger or any other transaction contemplated by this Agreement.  Notwithstanding the foregoing, at any time prior to the Acceptance Time, and subject to the Company’s compliance with the other provisions of this Section 8.03 as applicable, the Company Board may make an Adverse Recommendation Change in response to a Superior Proposal, or a material event, development or change in circumstance that occurs, arises or becomes known to the Company Board following the date of this Agreement, if the Company Board determines in good faith after consultation with its legal and financial advisors that the failure to take such action would be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law.

(c)                                  The Company shall promptly (and in all cases within 24 hours) advise Parent in writing of any Company Acquisition Proposal, the terms and conditions of any such Company Acquisition Proposal (including any changes thereto) and the identity of the Person making any such Company Acquisition Proposal and of any discussions, explorations or negotiations sought to be entered into or continued or

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requests for information or access to properties or assets made or requested by such Person with the Company, any Company Subsidiary or any of their respective directors, officers, employees or representatives.  The Company shall keep Parent reasonably informed, on a current basis, of the status (including any change to the terms and conditions thereof) of any such Company Acquisition Proposal and shall promptly (but in no event later than 24 hours after receipt) provide to Parent copies of all correspondence and written materials sent or provided to the Company or any Company Subsidiary that describe the material terms and conditions of any Company Acquisition Proposal.  The Company Board shall not take any of the actions referred to in clauses (x) and (y) of ‎Section 8.03(a) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action, and the Company shall continue to advise Parent after taking such action of the status and terms of any discussions and negotiations with the Person who made the Company Acquisition Proposal in accordance with this Section 8.03(c).

(d)                                 The Company shall, and shall cause the Company Subsidiaries and its and their respective representatives to, cease immediately and cause to be terminated any and all existing soliciting activities, discussions or negotiations and non-public information access, if any, with or to any Person conducted prior to the date hereof with respect to any Company Acquisition Proposal.  The Company shall promptly request that each Person, if any, in possession of the confidential information about the Company or any of the Company Subsidiaries that was furnished by or on behalf of the Company or any of the Company Subsidiaries in connection with its consideration of any potential Company Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person.

(e)                                  Nothing in this Section 8.03 or elsewhere in this Agreement shall prevent the Company Board from disclosing any information required to be disclosed under applicable Law or from complying with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with respect to a Company Acquisition Proposal.  In addition, nothing in this Section 8.03 or this Agreement shall prohibit the Company from taking any action that any court of competent jurisdiction orders the Company to take.

Section 8.04                                Employee Benefits Matters.

(a)                                  From and after the Merger Effective Time, Parent shall honor and shall cause the Surviving Corporation to honor all Plans, compensation arrangements and agreements and employment, severance and termination plans and agreements in accordance with their terms as in effect immediately before the Merger Effective Time.  For a period of one year following the Merger Effective Time (the “Benefits Continuation Period”), Parent shall provide, or shall cause to be provided, to each employee of the Company and the Company Subsidiaries (“Company Employees”) (i) a base salary and annual bonus and commission opportunity no less favorable than the base salary and annual bonus and commission opportunity provided to such employees immediately before the Merger Effective Time and (ii) employee benefits that are substantially comparable, in the aggregate, to the benefits provided to such employees immediately before the Merger Effective Time.

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(b)                                 For all purposes (including purposes of vesting, eligibility to participate and level of benefits) under the employee benefit plans of Parent and its subsidiaries providing benefits to any Company Employees after the Merger Effective Time (the “New Plans”), each Company Employee shall, subject to applicable Law and applicable tax qualification requirements, be credited with his or her years of service with the Company and the Company Subsidiaries and their respective predecessors before the Merger Effective Time, to the same extent as such Company Employee was entitled, before the Merger Effective Time, to credit for such service under any similar Company employee benefit plan in which such Company Employee participated or was eligible to participate immediately prior to the Merger Effective Time; provided that the foregoing shall not apply to the extent that its application would result in a duplication of benefits.  In addition, and without limiting the generality of the foregoing, (i) each Company Employee shall be immediately eligible to participate, without any waiting time, in any and all New Plans to the extent coverage under such New Plan is comparable to the Plan in which such Company Employee participated immediately before the consummation of the Merger (such plans, collectively, the “Old Plans”), and (ii) (A) for purposes of each New Plan providing medical, dental, pharmaceutical or vision benefits to any Company Employee, Parent shall cause all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such Company Employee and his or her covered dependents, unless such conditions would not have been waived under Old Plan of the Company or its subsidiaries in which such Company Employee participated immediately prior to the Merger Effective Time and (B) Parent shall cause any eligible expenses incurred by such employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.

(c)                                  With respect to annual bonus arrangements for Company Employees who are not covered by commission plans of the Company for fiscal year 2007, the Company shall determine for each Company Employee a pro-rata portion (the “Pro-Rata Payments”) of his or her target annual bonus (determined as if all performance targets have been met) for fiscal year 2007 multiplied by a fraction, the numerator of which is the number of days in calendar year 2007 prior to the Closing Date, the denominator of which is 365.  Following the Closing Date, Parent agrees to continue the annual bonus arrangements for Company Employees for fiscal year 2007 in accordance with their terms for the remainder of fiscal year 2007; provided that each Company Employee who is employed as of the Effective Time and either (A) continues in employment as of December 31, 2007 or (B) ceases employment prior to December 31, 2007 due to a termination by the Company without good cause shall be entitled upon the completion of fiscal year 2007 to a bonus payment under the applicable bonus plan equal to at least the employee’s applicable Pro-Rata Payment.  All annual bonus arrangements for Company Employees for fiscal year 2006 that have not been paid prior to the date hereof will be paid in accordance with their terms.  The bonus plans for fiscal years 2006 and 2007 (including the Pro-Rata Payments) shall be calculated without taking into account any expenses or costs associated with or arising as a result of transactions

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contemplated by this Agreement (including any expenses or costs related to actions undertaken in anticipation of the transactions contemplated by this Agreement) or any non-recurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by this Agreement not been anticipated or occurred, and bonus amounts for the 2006 and 2007 fiscal years shall not be subject to negative discretion by the administrator for the bonus plans (except to the extent that negative discretion, if any, has historically been applied with respect to any employee or is clearly appropriate under the design of the bonus arrangement).

(d)                                 Parent and Purchaser shall, and following the Merger Effective Time shall cause the Surviving Corporation to, take all actions necessary or advisable to implement the employee retention arrangements contemplated in Section 8.04(d) of the Company Disclosure Schedule.

(e)                                  Prior to the Merger Effective Time, the Company Board, or an appropriate committee of non-employee directors thereof, shall adopt a resolution consistent with the interpretive guidance of the SEC so that the disposition by any officer or director of the Company who is a covered person of the Company for purposes of Section 16 of the Exchange Act and the rules and regulations thereunder (“Section 16”) of Company Common Shares or Company Stock Options to acquire Company Common Shares (or Company Common Shares acquired upon the vesting of any Company Stock Awards) pursuant to this Agreement and the Merger shall be an exempt transaction for purposes of Section 16.

Section 8.05                                Directors’ and Officers’ Indemnification and Insurance of the Surviving Corporation.

(a)                                  Without limiting any additional rights that any director, officer, trustee, employee, agent, or fiduciary may have under any employment or indemnification agreement or under the Company Charter, Company Bylaws or this Agreement or, if applicable, similar organizational documents or agreements of any of the Company Subsidiaries, from and after the Merger Effective Time, Parent and the Surviving Corporation shall:  (i) indemnify and hold harmless each person who is at the date hereof or during the period from the date hereof through the Closing Date serving as a director, officer, trustee, employee, agent, or fiduciary of the Company or Company Subsidiaries or as a fiduciary under or with respect to any employee benefit plan (within the meaning of Section 3(3) of ERISA) (collectively, the “Indemnified Parties”) to the fullest extent authorized or permitted by applicable Law, as now or hereafter in effect, in connection with any Claim and any judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such judgments, fines, penalties or amounts paid in settlement) resulting therefrom with respect to any employee benefit plan (within the meaning of Section 3(3) of ERISA); and (ii) promptly pay on behalf of or, within thirty (30) days after any request for advancement, advance to each of the Indemnified Parties, to the fullest extent authorized or permitted by applicable Law, as now or hereafter in effect, any Expenses incurred in defending, serving as a witness with respect to or otherwise participating in any Claim in advance of the final disposition of such Claim,

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including payment on behalf of or advancement to the Indemnified Party of any Expenses incurred by such Indemnified Party in connection with enforcing any rights with respect to such indemnification or advancement, in each case without the requirement of any bond or other security; provided, however, that such advance shall be conditioned upon the Surviving Company’s receipt of an undertaking by or on behalf of the Indemnified Party to repay such amount if it shall ultimately be determined by final judgment of a court of competent jurisdiction that the Indemnified Party is not entitled to be indemnified pursuant to this Section 8.05(a).  The indemnification and advancement obligations of Parent and the Surviving Corporation pursuant to this Section 8.05(a) shall extend to acts or omissions occurring at or before the Merger Effective Time and any Claim relating thereto (including with respect to any acts or omissions occurring in connection with the approval of this Agreement and the consummation of the transactions contemplated hereby, including the consideration and approval thereof and the process undertaken in connection therewith and any Claim relating thereto), and all rights to indemnification and advancement conferred hereunder shall continue as to a person who continues to be or who has ceased to be a director, officer, trustee, employee, agent, or fiduciary of the Company or the Company Subsidiaries after the date hereof and shall inure to the benefit of such person’s heirs, executors and personal and legal representatives.  Neither Parent nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any actual or threatened claim, demand, Action, suit, proceeding, inquiry or investigation in respect of which indemnification has been or could be sought by such Indemnified Party hereunder unless such settlement, compromise or judgment includes an unconditional release of such Indemnified Party from all liability arising out of such claim, demand, Action, suit, proceeding, inquiry or investigation or such Indemnified Party otherwise consents thereto.  Any Indemnified Party wishing to claim indemnification under this Section 8.05(a), upon learning of any claim, demand, Action, suit, proceeding, inquiry or investigation relating to any acts or omissions covered under this Section 8.05(a), shall notify Parent and the Surviving Corporation thereof, provided, that the failure to so notify shall not affect the obligations of the Company or Parent, as applicable, under this ‎ Section 8.05(a), except to the extent such failure to notify materially prejudices Parent or the Surviving Corporation, as applicable.

(b)                                 Without limiting the foregoing, Parent and Purchaser agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Merger Effective Time now existing in favor of the current or former directors, officers, trustees, employees, agents, or fiduciaries of the Company or any of the Company Subsidiaries as provided in the Company Charter and Company Bylaws (or, as applicable, the charter, bylaws, partnership agreement, limited liability company agreement, or other organizational documents of any of the Company Subsidiaries) and indemnification agreements of the Company or any of the Company Subsidiaries identified on Section 8.05(b) of the Company Disclosure Schedule shall be assumed by the Surviving Corporation in the Merger, without further action, at the Merger Effective Time and shall survive the Merger and shall continue in full force and effect in accordance with their terms.

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(c)                                  For a period of six (6) years from the Merger Effective Time, the organizational documents of the Surviving Corporation shall contain provisions no less favorable with respect to indemnification than are set forth in the Company Charter and Company Bylaws, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Merger Effective Time in any manner that would affect adversely the rights thereunder of the Indemnified Parties, unless such modification shall be required by Law and then only to the minimum extent required by Law.

(d)                                 The Surviving Corporation shall maintain for a period of at least six (6) years the current policies of directors’ and officers’ liability insurance maintained by the Company and the Company Subsidiaries with respect to Claims arising from facts or events that occurred on or before the Merger Effective Time, including, without limitation, in respect of the transactions contemplated by this Agreement; provided, that (i) the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are, in the aggregate, no less advantageous to the insured; provided, further, that such substitution shall not result in gaps or lapses of coverage with respect to matters occurring before the Merger Effective Time and (ii) in no event shall the Surviving Corporation be required to expend pursuant to this Section 8.05(d) more than an amount per year of coverage equal to three hundred percent (300%) of the current annual premiums paid by the Company for such insurance.  In the event that, but for the proviso to the immediately preceding sentence, the Surviving Corporation would be required to expend more than three hundred percent (300%) of the current annual premiums paid by the Company, the Surviving Corporation shall obtain the maximum amount of such insurance obtainable by payment of annual premiums equal to three hundred percent (300%) of the current annual premiums paid by the Company.  Parent shall, and shall cause the Surviving Corporation or its successors or assigns to, maintain such policies in full force and effect, and continue to honor all obligations thereunder.

(e)                                  If the Surviving Corporation or any of its respective successors or assigns (i) consolidates with or merges with or into any other person and shall not be the continuing or surviving limited liability company, partnership or other entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this Section 8.05.

(f)                                    Parent shall cause the Surviving Corporation to perform all of the obligations of the Surviving Corporation under this Section 8.05 and the parties acknowledge and agree that Parent guarantees the payment and performance of the Surviving Corporation’s obligations pursuant to this Section 8.05.

(g)                                 This Section 8.05 is intended for the irrevocable benefit of, and to grant third party rights to, the Indemnified Parties and shall be binding on all successors and assigns of the Company, Parent and the Surviving Corporation.  Each of the

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Indemnified Parties shall be entitled to enforce the covenants contained in this Section 8.05.

Section 8.06                                Further Action; Reasonable Best Efforts.  Subject to the terms and conditions herein provided, as promptly as practicable, the Company, Parent and Purchaser shall (i) make all filings and submissions under the HSR Act and under the Antitrust Laws of the jurisdictions listed in Section 5.05(b) of the Company Disclosure Schedule, (ii) use reasonable best efforts to cooperate with each other in (A) determining which other filings are required or advisable to be made prior to the Acceptance Time and the Merger Effective Time with, and which material consents, approvals, permits, notices or authorizations are required or advisable to be obtained prior to the Acceptance Time and the Merger Effective Time from, Governmental Authorities in connection with the execution and delivery of this Agreement and related agreements and consummation of the transactions contemplated hereby and thereby and (B) timely making all such filings and timely seeking all such consents, approvals, permits, notices or authorizations, and (iii) use reasonable best efforts to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary or appropriate to consummate the transactions contemplated hereby as soon as practicable.  For purposes of this Section 8.06, “reasonable best efforts” shall include (A) executing settlements, undertakings, consent decrees, stipulations or other agreements, (B) selling, divesting, holding separate or otherwise conveying any particular assets or categories of assets or businesses of Parent, (C) agreeing to sell, divest, hold separate or otherwise convey any particular assets or categories of assets or businesses of the Company contemporaneously with or subsequent to the Closing, and (D) otherwise taking or committing to take actions that after the Closing Date would limit the freedom of action of Parent or its subsidiaries (including the Surviving Corporation) with respect to, or its or their ability to retain, one or more of its or their businesses, product lines or assets, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing or materially delaying the Closing.  In connection with the foregoing, the Company, on the one hand, will provide Parent, and Parent, on the other hand, will provide the Company, promptly with copies of material correspondence, filings or communications (and, in the case of oral communications, oral summaries or memoranda setting forth the substance thereof) between such party or any of its representatives, on the one hand, and any Governmental Authority or members of their respective staffs, on the other hand, with respect to this Agreement and the transactions contemplated hereby and will give the other party and its counsel a reasonable opportunity to review and comment on any response or other communication formulated in connection with such correspondence, filings or communications prior to delivery thereof to any such Governmental Authority.

Section 8.07                                Public Announcements.  Parent and the Company have agreed upon the form and substance of a joint press release announcing the execution of this Agreement and the transactions contemplated hereby, which shall be issued promptly following the execution and delivery hereof.  Parent and the Company shall reasonably consult with each other and consider in good faith the views of the other party before issuing any other press release or making any other public statement, or scheduling any

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press conference or conference call with investors or analysts, with respect to this Agreement or the transactions contemplated hereby and, except as may be required by applicable Law, order of a court of competent jurisdiction or any listing agreement with or rule of any applicable securities exchange or association, shall not issue any such press release or make any such other public statement or schedule any such press conference or conference call before such consultation.

Section 8.08                                State Takeover Laws.  If any “fair price,” “business combination” or “control share acquisition” statute or other similar statute or regulation is or may become applicable to any transaction contemplated by this Agreement, the parties shall use commercially reasonable efforts to (a) take such actions as are reasonably necessary so that the transactions contemplated hereunder may be consummated as promptly as practicable on the terms contemplated hereby and (b) otherwise take all such actions as are reasonably necessary to eliminate or minimize the effects of any such statute or regulation on such transaction.

Section 8.09                                Obligations of Parent Relating to Call Spread Warrants.  Following the Acceptance Time, the Company shall, and Parent shall cause the Company to, satisfy its payment obligations, if any, under the terms of the Call Spread Warrants.

Section 8.10                                Compensation Arrangements.  Prior to the Effective Time, the Company (acting through its Compensation Committee) will take all steps that may be necessary or advisable to cause each Compensation Arrangement entered into by the Company or any Company Subsidiary on or after the date hereof to be approved by the Compensation Committee comprised solely of “independent directors” (described in the manner described in the last sentence of Section 5.12(h)) as an “employment compensation, severance or other employee benefit arrangement” within the meaning of Rule 14d-10(d)(2) under the Exchange Act and to satisfy the requirements of the non-exclusive safe harbor set forth in Rule 14d-10(d) of the Exchange Act.

Section 8.11                                Notification of Certain Matters. The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (a) any notice or other communication received by such party from any Governmental Authority in connection with the Offer, the Merger or the other transactions contemplated hereby or from any Person alleging that the consent of such Person is or may be required in connection with such transactions, and (b) any actions, suits, claims, investigations or proceedings commenced or, to such party’s knowledge, threatened against, such party or any of its subsidiaries and relating to the Offer, the Merger or the other transactions contemplated hereby.  Prior to the Acceptance Time, the Company shall give prompt notice to Parent of any material agreements or modifications of material agreements proposed to be entered into with any Governmental Authority, including the FDA, in respect of the operation of the business of the Company or any Company Subsidiary.  In addition, prior to the Acceptance Time, the Company shall give prompt notice to Parent of any inaccuracy of any representation or warranty of the Company contained in this Agreement, or any failure of the Company to materially comply with any covenant or agreement of the Company set forth herein, at any time during the term of this Agreement that would reasonably be expected to cause the Offer Conditions set forth in clause (2)(a)

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or (b) of Annex I not to be satisfied or reasonably be expected to give rise to a termination right pursuant to Section 10.01(e); provided, however, that the delivery of any notice pursuant to this Section 8.10 shall not limit or otherwise affect the remedies available hereunder to the party receiving that notice.

Section 8.12                                Nasdaq De-listing; Exchange Act Deregistration.  Prior to the Closing Date, the Company shall cooperate with Parent and use reasonable best efforts to take, or cause to be taken, all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under applicable Laws and rules and policies of Nasdaq to enable the de-listing by the Surviving Corporation of the Company Common Stock from Nasdaq and the deregistration of the Company Common Stock under the Exchange Act promptly after the Effective Time.

Section 8.13                                Further Assurances.  At and after the Effective Time, the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of the Company or Merger Sub, any deeds, bills of sale, assignments or assurances and to take and do, in the name and on behalf of the Company or Merger Sub, any other actions and things to vest, perfect or confirm of record or otherwise in the Surviving Corporation any and all right, title and interest in, to and under any of the rights, properties or assets of the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger.  Each of the Company and Parent shall, and shall use its commercially reasonable efforts to cause its representatives to, cooperate with the other party in making any determination or computation necessary or appropriate with respect to the Convertible Notes, the Call Spread Warrants and the Company Hedge Option, including with respect to any cash amounts or Company Common Shares that may be receivable, issuable, deliverable or payable by the Company pursuant to the Indentures and any instrument representing the Convertible Notes, the Call Spread Warrants and the Company Hedge Option.

ARTICLE IX
CONDITIONS TO THE MERGER

Section 9.01                                Conditions to the Obligations of Each Party.  The obligations of the Company, Parent and Purchaser to consummate the Merger are subject to the satisfaction or waiver in writing (where permissible) of the following conditions:

(a)                                  If the adoption of this Agreement by the Company Stockholders is required by the DGCL, the Company Stockholder Approval shall have been obtained by the Company;

(b)                                 Purchaser shall have accepted for payment and paid for all of the Company Common Shares validly tendered and not withdrawn pursuant to the Offer;

(c)                                  No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any injunction, order, decree or ruling (whether temporary, preliminary or permanent) which is then in effect and has the effect

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of making consummation of the Merger illegal or restraining, preventing or prohibiting consummation of the Merger.

Section 9.02                                Conditions to the Obligations of the Company.  The obligation of the Company to consummate the Merger is subject to the satisfaction or waiver in writing (where permissible) of the condition that Parent has complied in all respects with its obligations pursuant to Section 4.03(a) of this Agreement.

Section 9.03                                Frustration of Conditions.  None of the Company, Parent or Purchaser may rely on the failure of any condition set forth in Section 9.01 to be satisfied if such failure was caused by such party’s failure to act in good faith or to use its reasonable best efforts to consummate the Merger and the other transactions contemplated by this Agreement, as required by and subject to Section 8.06.

ARTICLE X
TERMINATION, AMENDMENT AND WAIVER

Section 10.01                          Termination.  This Agreement may be terminated and the Offer and/or the Merger may be abandoned before or after the receipt of the Company Stockholder Approval (the date of any such termination, the “Termination Date”):

(a)                                  by mutual written consent of Parent and the Company at any time prior to the Acceptance Time;

(b)                                 by either Parent or the Company at any time after December 31, 2007 (the “Outside Date”) if the Acceptance Time shall not have occurred on or before the Outside Date; provided, however, that the right to terminate this Agreement under this Section 10.01(b) shall not be available to a party whose failure to fulfill any obligation under this Agreement materially contributed to the failure of the Acceptance Time to occur on or before such date;

(c)                                  by either Parent or the Company if any Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any injunction, order, decree or ruling or taken any other action (including the failure to have taken an action) that has the effect of making the acceptance for payment of Company Common Shares pursuant to the Offer or the consummation of the Merger illegal or otherwise preventing or prohibiting consummation of the Offer or the Merger (“Governmental Order”) which has become final and non-appealable; provided, however, that the terms of this Section 10.01(c) shall not be available to any party unless such party shall have used its reasonable best efforts to oppose any such Governmental Order or to have such Governmental Order vacated or made inapplicable to the Offer and the Merger;

(d)                                 by Parent or the Company if the Offer (as it may have been extended pursuant to Section 2.01) expires as a result of the non-satisfaction of the Minimum Condition, without Purchaser having accepted for payment any Company Common Shares tendered pursuant to the Offer; provided, however, that a party shall not be permitted to terminate this Agreement pursuant to this Section 10.01(d) if the non-satisfaction

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of the Minimum Condition is attributable to the failure of such party (or any Affiliate party) to fulfill its obligations under this Agreement;

(e)                                  by Parent if prior to the Acceptance Time there shall have been a breach or inaccuracy of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement, which breach or inaccuracy would (A) give rise to the failure of a condition set forth in sections (2)(a) or (b) of Annex I and (B) is either incurable or, if curable, is not cured by the Company by the earlier of (x) 60 days following receipt by the Company of written notice of such breach or failure and (y) the Outside Date; provided that neither Parent nor Purchaser is then in material breach of any representation, warranty or covenant under this Agreement;

(f)                                    by the Company, if prior to the Acceptance Time there shall have been a breach or inaccuracy of any representation, warranty, covenant or agreement on the part of Parent or Purchaser contained in this Agreement, which breach or inaccuracy (A) would reasonably be expected to have a Parent Material Adverse Effect and (B) is either incurable or, if curable, is not cured by Parent or Purchaser by the earlier of (x) 60 days following receipt by Parent or Purchaser of written notice of such breach or failure and (y) the Outside Date; provided that the Company is not then in material breach of any representation, warranty or covenant under this Agreement;

(g)                                 by Parent, if prior to the Acceptance Time, an Adverse Recommendation Change shall have occurred;

(h)                                 by the Company, if at any time prior to the Acceptance Time, (i) the Company Board has received a Company Superior Proposal, (ii) the Company is in compliance in all material respects with Section 8.03, (iii) the Company shall have first given Parent at least three business days notice of its intent to terminate pursuant to this subsection, indicating in such notice the material terms and conditions of such Company Superior Proposal and during the three business day period immediately following the delivery of such notice, the Company negotiates in good faith with Parent to make such adjustments to the terms and conditions of this Agreement as would enable the parties to proceed with the transactions contemplated herein on such adjusted terms, (iv) after taking into account any amendment to this Agreement entered into, or to which Parent irrevocably covenants to enter into, within such three business day period and for which all internal approvals of Parent have been obtained since receipt of such notice, such Company Superior Proposal continues to constitute a Company Superior Proposal and (v) the Company pays to Parent the Termination Fee in accordance with Section 10.03(b)(i) concurrently with or prior to such termination; or

(i)                                     by Parent, if prior to the Acceptance Time, the Company shall have willfully and materially breached its obligations under Section 8.03.

Section 10.02                          Effect of Termination.  In the event of the termination of this Agreement pursuant to Section 10.01 (other than Section 10.01(a)), written notice thereof shall be given to the other party or parties, specifying the provision hereof pursuant to which such termination is made, and this Agreement shall forthwith become

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void, and there shall be no liability under this Agreement on the part of any party hereto except that the provisions of Section 5.21, Section 6.10, this Section 10.02, Section 10.03 and ARTICLE XI shall survive any such termination and shall remain in full force and effect; provided, however, that nothing herein shall relieve any party hereto from liability for fraud or any willful breach of any of its representations, warranties, covenants or agreements set forth in this Agreement prior to such termination.

Section 10.03                          Fees and Expenses.

(a)                                  Except as otherwise set forth in this Section 10.03, all expenses incurred in connection with this Agreement shall be paid by the party incurring such expenses, whether or not the Merger is consummated.

(b)                                 In the event this Agreement shall be terminated:

(i)                                     by the Company pursuant to Section 10.01(h), the Company shall pay to Parent the Termination Fee; or

(ii)                                  by Parent or the Company pursuant to Section 10.01(b) or Section 10.01(d) or Section 10.01(i) if (A) at or prior to the Termination Date, a Company Acquisition Proposal shall have been publicly announced (and not withdrawn) prior to such date and (B) concurrently with such termination or within twelve (12) months following the Termination Date, the Company enters into a definitive agreement to consummate or consummates such Company Acquisition Proposal, then the Company shall pay to Parent the Termination Fee if and when the entering into of such definite agreement or consummation of such Company Acquisition Proposal occurs.  For purposes of this Section 10.03(b)(ii), “50%” shall be substituted for “20%” in the phrases dealing with assets and “50%” shall be substituted for “20%” in phrases dealing with equity securities or voting power in the definition of Company Acquisition Proposal.

(c)                                  If a Termination Fee is payable pursuant to Section 10.03(b), the Company shall pay Parent (by wire transfer of immediately available funds), if pursuant to Section 10.03(b)(i), on the Termination Date concurrently with such termination and if pursuant to Section 10.03(b)(ii), within two (2) Business Days after the date of the event giving rise to the obligation to make such payment.

(d)                                 For purposes of this Agreement, “Termination Fee” means $450 million.

(e)                                  Each of Parent and Purchaser acknowledges and agrees that in the event that Parent is entitled to receive the Termination Fee pursuant to this Agreement, the right of Parent to receive such amount shall constitute each of the Buyer Parties’ sole and exclusive remedy for, and such amount shall constitute liquidated damages in respect of, any termination of this Agreement regardless of the circumstances giving rise to such termination.

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(f)                                    Each of Parent, Purchaser and the Company shall bear its own expenses in connection with this Agreement and the transactions contemplated hereby, except that Parent and the Company shall bear and pay one-half of the costs and expenses incurred in connection with the filing, printing and mailing of the Proxy/Information Statement.

Section 10.04                          Waiver.  At any time prior to the Merger Effective Time, the Company, on the one hand, and Parent and Purchaser, on the other hand, may (a) extend the time for the performance of any obligation or other act of the other party, (b) waive any inaccuracy in the representations and warranties of the other party contained herein or in any document delivered pursuant hereto, and (c) waive compliance with any agreement of the other party or any condition to its own obligations contained herein.  Any such extension or waiver shall be valid if set forth in an instrument in writing signed by the Company or Parent (on behalf of Parent and Purchaser).  The failure of any party to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of those rights.

ARTICLE XI
GENERAL PROVISIONS

Section 11.01                          Non-Survival of Representations and Warranties.  The representations and warranties in this Agreement and in any certificate delivered pursuant hereto shall terminate at the Merger Effective Time.

Section 11.02                          Notices.  All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by prepaid overnight courier (providing proof of delivery), by facsimile or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses or facsimile numbers (or at such other address for a party as shall be specified in a notice given in accordance with this Section 11.02):

if to Parent or Purchaser:

AstraZeneca PLC

AstraZeneca PLC

15 Stanhope Gate

London

W1K 1LN

United Kingdom

Telecopier No:  +44 (0) 20 7304 5196

Attention:  Company Secretary

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with a copy to:

Davis Polk & Wardwell

450 Lexington Avenue

New York, New York 10017

Telecopier No:  (212) 450-3800

Attention:    Paul R. Kingsley, Esq.

                    Thomas J. Reid, Esq.

if to the Company:

MedImmune, Inc.

One MedImmune Way

Gaithersburg, Maryland 20878

Telecopier No. 301 ###-###-####

Attention: Chief Executive Officer

with a copy to:

MedImmune, Inc.

One MedImmune Way

Gaithersburg, Maryland 20878

Telecopier No. 301 ###-###-####

Attention: General Counsel

with copies to:

Dewey Ballantine LLP

1301 Avenue of the Americas

New York, NY 10019

Telecopier No:  (212) 259-6333

Attention: Frederick W. Kanner, Esq.

                 Chang-Do Gong, Esq.

All such notices, requests, claims, demands and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. on the business day in the place of receipt.  Otherwise, any such notice, request, claim, demand or other communication shall be deemed to have been received on the next succeeding business day in the place of receipt.

Section 11.03                          Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy or the application of this Agreement to any person or circumstance is invalid or

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incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party.  To such end, the provisions of this Agreement are agreed to be severable.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the fullest extent possible.

Section 11.04                          Amendment.  This Agreement may be amended by the parties hereto by action taken by their respective board of directors (or similar governing body or entity) at any time prior to the Merger Effective Time; provided, however, that, after approval of the Merger by the Company Stockholders, no amendment may be made without further stockholder approval which, by Law or in accordance with the rules of the Nasdaq, requires further approval by such stockholders.  This Agreement may not be amended except by an instrument in writing signed by the parties hereto.

Section 11.05                          Entire Agreement; Assignment.  This Agreement, together with the Confidentiality Agreement, the Disclosure Schedules and Annex I, constitute the entire agreement among the parties with respect to the subject matter hereof, and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.  This Agreement shall not be assigned (whether pursuant to a merger, by operation of law or otherwise) ; provided that Parent and Purchaser may assign any of its rights and obligations hereunder, in whole or in part, to any subsidiary of Parent without obtaining the consent of the Company and any such assignment shall not relieve Parent or Purchaser of its obligations hereunder.  Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.  Any purported assignment not permitted under this Section 11.05 shall be null and void.

Section 11.06                          Performance Guaranty.  Parent hereby guarantees the due, prompt and faithful performance and discharge by, and compliance with, all of the obligations covenants, terms, conditions and undertakings of each of the Buyer Parties under this agreement in accordance with the terms hereof including any such obligations, covenants, terms, conditions and undertakings that are required to be performed discharged or complied with following the Merger Effective Time.

Section 11.07                          Specific Performance.  Subject to Section 10.03(e), the parties hereto agree that irreparable damage would occur in the event any provision of this Agreement were not performed in accordance with the terms hereof and that money damages would not be a sufficient remedy for any breach of this Agreement, and accordingly, the parties hereto shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.

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Section 11.08                          Parties in Interest.  This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, other than (a) the provisions of Section 8.05 (which are intended to be for the benefit of the persons covered thereby and may be enforced by such persons); and (b) the right of the Company, on behalf of its stockholders, to pursue damages in the event of Parent’s or Purchaser’s breach of this Agreement or fraud, which right is hereby acknowledged and agreed by Parent and Purchaser.

Section 11.09                          Governing Law; Forum.

(a)                                  All disputes, claims or controversies arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its rules of conflict of laws.

(b)                                 Except as set out below, each of the Company, Parent and Purchaser hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of any court of the State of Delaware or of the United States located in New Castle County, Delaware (the “Delaware Courts”) for any litigation arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby (and agrees not to commence any litigation relating thereto except in such courts), waives any objection to the laying of venue of any such litigation in the Delaware Courts and agrees not to plead or claim in any Delaware Court that such litigation brought therein has been brought in any inconvenient forum.  Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any Delaware Court.  Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 11.02 shall be deemed effective service of process on such party.

Section 11.10                          Waiver of Jury Trial.  Each of the parties hereto hereby waives to the fullest extent permitted by applicable Law any right it may have to a trial by jury with respect to any litigation directly or indirectly arising out of, under or in connection with this Agreement or the transactions contemplated by this Agreement.  Each of the parties hereto (a) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce that foregoing waiver and (b) acknowledges that it and the other hereto have been induced to enter into this Agreement and the transactions contemplated by this Agreement, as applicable, by, among other things, the mutual waivers and certifications in this Section 11.10.

Section 11.11                          Headings.  The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.

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Section 11.12                          Counterparts.  This Agreement may be executed and delivered (including by facsimile transmission) in two or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

Section 11.13                          Waiver.  Except as provided in this Agreement, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representations, warranties, covenants or agreements contained in this Agreement.  The waiver by any party hereto of a breach of any provision hereunder shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereunder.

Section 11.14                          Company SEC Reports.  In no event shall any information contained in any part of any Company SEC Report entitled “Risk Factors” or “Forward-Looking Statements” be deemed to be an exception to (or, as applicable, a disclosure for purposes of) any representation and warranty of the Company that is contained in this Agreement, except to the extent such information consists of factual historical statements (e.g., factual descriptions of the performance, results of operations, assets, liabilities or financial condition of the Company and the Company Subsidiaries).

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IN WITNESS WHEREOF, Parent, Purchaser, and the Company have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

ANNEX I

CONDITIONS OF THE OFFER

(1)         Purchaser shall not be obligated to accept for payment, and (subject to the rules and regulations of the SEC) shall not be obligated to pay for, any Company Common Shares tendered pursuant to the Offer and not theretofore accepted for payment or paid for unless, immediately prior to the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Agreement):

(a)                  there shall have been validly tendered in the Offer and not properly withdrawn Company Common Shares that, considered together with all other Company Common Shares (if any) beneficially owned by Parent and its Affiliates, represent more than 50% of the Company Outstanding Shares on a “fully-diluted basis” (which shall mean, as of any time, the number of Company Common Shares outstanding, together with all Company Common Shares which the Company would be required to issue pursuant to any then outstanding warrants, options, or other securities convertible into or exercisable or exchangeable for shares of Company Common Stock (other than the Call Spread Warrants) regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof); and

(b)                 (i) any applicable waiting period under the HSR Act relating to the Offer shall have expired or been terminated and (ii) any applicable waiting period under any antitrust or competition Laws of any other applicable jurisdiction shall have expired or been terminated and all other foreign antitrust and competition approvals as may be required to consummate the Offer shall have been obtained (the “Foreign Antitrust Laws and Approvals”) (in the case of Foreign Antitrust Laws and Approvals, only if such Foreign Antitrust Laws and Approvals (a) if not expired, terminated or obtained would have a suspensory effect, (b) if not obtained would reasonably be expected to result in material limitations on the ownership or operation by Parent of the assets of Parent, its subsidiaries or the Surviving Corporation or (c) if not obtained, would subject Parent or Purchaser to the payment of a material fine or penalty).

The condition set forth in clause “(1)(a)” above is referred to as the “Minimum Condition.”

(2)         Furthermore, Purchaser shall not be required to accept for payment, and (subject to the rules and regulations of the SEC) shall not be obligated to pay for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) if, upon the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Agreement) and before acceptance of such Company Common Shares for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such condition:

(a)                  The representations and warranties of the Company contained in this Agreement that (i) are not made as of a specific date are not true and correct as of the date of this Agreement and as of the Acceptance Time, as though made on and as of the Acceptance Time, and (ii) are made as of a specific date are not true and correct as of such date, in each case, except where the failure of such representations or warranties to be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth in such representations and warranties, other than the representation in clause (a) of Section 5.08) has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(b)                 The Company shall have failed to perform and comply with, in any material respect, its obligations, agreements and covenants to be performed or complied with by it under this Agreement on or prior to the Acceptance Time;

(c)                  The Company shall have failed to deliver to Parent a certificate signed by an executive officer of the Company and certifying as to the satisfaction by the Company, of the applicable conditions specified in clauses (2)(a) and (2)(b) of this Annex I;

(d)                 Any Governmental Authority shall have issued or granted any Governmental Order; provided that Parent and Purchaser shall have used their reasonable best efforts to oppose any such Governmental Order or to have such Governmental Order vacated or made inapplicable to the Merger; or

(e)                  The Agreement shall have been terminated in accordance with its terms.