AUXILIUM PHARMACEUTICALS INC (Form: 8-K, Received: 04/29/2013 07:15:40)

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of report (Date of earliest event reported): April 26, 2013

Auxilium Pharmaceuticals, Inc.

(Exact Name of Registrant Specified in Charter)

Delaware

000-50855

23-3016883

(State or Other

Jurisdiction of

Incorporation)

(Commission File

Number)

(I.R.S. Employer

Identification No.)

640 Lee Road
Chesterbrook, PA		19087
(Address of Principal Executive Offices)		(Zip Code)

Registrant’s telephone number, including area code: (484) 321-5900

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01 Entry into a Material Definitive Agreement.

Merger Agreement

The information provided in Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 1.01.

Registration Rights Agreement

On April 26, 2013, in connection with the closing of the transactions contemplated by the Merger Agreement (as defined below), Auxilium Pharmaceuticals, Inc., a Delaware corporation, (“Auxilium” or the “Company”) and, on behalf of each of the Sellers (as defined below), the Representative (as defined below) entered into a registration rights agreement (the “Registration Rights Agreement”) in respect of the Warrant Shares (as defined below) to be issued to the Sellers upon the exercise of the Warrants (as defined below) in an offering exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”).

The Registration Rights Agreement is attached hereto as Exhibit 10.2 and is incorporated herein by reference. The foregoing description of the Registration Rights Agreement is qualified in its entirety by reference to the full text of the Registration Rights Agreement.

Loan Agreement

On April 26, 2013, the Company and its existing domestic subsidiaries entered into a Credit Agreement and related security and other agreements with Morgan Stanley Senior Funding, Inc. (“MSSF”) (the “Credit Agreement”) providing for a $225,000,000 senior secured term loan (“Term Loan”).

On April 26, 2013 the Company borrowed $225,000,000 to pay for a portion of the costs and related expenses of the acquisition of Actient (as defined below), including the closing costs and expenses of the Credit Agreement. The Credit Agreement is collateralized by a first priority security interest on certain real and all personal property of the Company and certain of its subsidiaries including (i) a pledge of all of the equity interests held by the Company and such subsidiaries and (ii) a lien encumbering all intellectual property owned by the Company and such subsidiaries. The obligations of the Company and such subsidiaries under the Credit Agreement are unconditionally cross guaranteed by the Company and such subsidiaries.

The principal amount outstanding under the Credit Agreement plus interest accrued and unpaid thereon, will be due and payable in full at maturity on April 15, 2018, and will amortize at a rate of 1% per annum. The principal amount outstanding is also subject to mandatory prepayment from excess positive cash flow and upon the happening of certain events including: (i) receipt of net cash proceeds from dispositions; (ii) receipt of net cash proceeds from the sale or issuance of debt or equity; and (iii) receipt of proceeds from casualty and condemnation events, in each case subject to certain limitations and conditions set forth in the Credit Agreement. The Company can elect, at the time of borrowing or conversion of its loans, for loans to bear interest at a rate

equal to either base rate or LIBOR plus a margin. The LIBOR interest rate margin is 3.75% and the base rate interest rate margin is 2.75%.

The Credit Agreement contains no financial covenants but contains usual and customary operating and restrictive covenants for a facility of this type including: (i) requiring the Company and certain of its subsidiaries, among other things, to maintain collateral, comply with applicable laws, keep proper books and records, preserve corporate existence, maintain insurance and take action in a timely manner and (ii) restricting the Company and certain of its subsidiaries from incurring additional indebtedness, incurring liens, merging or consolidating with or into other companies or selling substantially all of their assets, making restricted payments, including dividends, making investments, repurchasing their debt and capital stock, and entering into transactions with affiliates. Events of default under the Credit Agreement are usual and customary for transactions of this type, subject to, in specific instances, materiality and cure periods, and these events of default include, among other things: (a) any failure to pay principal hereunder when due or to pay interest or fees on the due date; (b) material misrepresentation; (c) default under other agreements governing material indebtedness of the Company; (d) default in the performance or observance of any covenants; (e) any event of insolvency or bankruptcy; (f) any final judgments or orders to pay more than $15 million that remain uncured or unpaid; (g) change in control, as defined in the Credit Agreement; (h) the failure of a collateral document to create a valid lien and (i) any delisting of the Company from a stock exchange on which its stock is trading.

On April 26, 2013 the Company also entered into an engagement letter and a fee letter with MSSF which provides that after the initial funding by MSSF, MSSF will administer the Term Loan under the Credit Agreement and will syndicate the Term Loan to other lenders. The fee letter provides, among other things, that MSSF has the flexibility to change certain of the terms in the Credit Agreement if necessary to effect a successful syndication.

The Credit Agreement is attached hereto as Exhibit 10.1 and is incorporated herein by reference. The foregoing description of the Credit Agreement is qualified in its entirety by reference to the full text of the Credit Agreement.

Item 2.01 Completion of Acquisition or Disposition of Assets.

On April 26, 2013 (the “Closing Date”), Auxilium acquired Actient Holdings LLC, a Delaware limited liability company (“Actient”), pursuant to that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of the Closing Date, by and among Actient, Auxilium, Opal Acquisition, LLC, a Delaware limited liability company and wholly owned subsidiary of Auxilium (the “Merger Sub”), GTCR Fund IX/B, L.P., a Delaware limited partnership (“Blocker Seller”), and GTCR Fund IX/A, L.P., a Delaware limited partnership (the “Representative”), solely in its capacity as representative for the Blocker Seller and Actient’s other unit holders and option holders (collectively, the “Sellers”). Actient, a privately-held specialty pharmaceutical company headquartered in Lake Forest, Illinois, has a diversified product offering with four marketed products in the urology space and two marketed products in the respiratory space.

Pursuant to the terms of the Merger Agreement, at the effective time of the merger (the “Merger”), Merger Sub merged with and into Actient, with Actient surviving the merger as a wholly-owned subsidiary of Auxilium and GTCR/Actient Holdings/B Corp (the “Blocker Corp”). Pursuant to the Merger Agreement and concurrently with the consummation of the Merger, Auxilium acquired all of the issued and outstanding shares of the Blocker Corp (the “Shares”). Following the consummation of the Merger and the acquisition of the Shares, Blocker Corp. was merged with and into Auxilium, thereby resulting in Actient being a direct, wholly-owned subsidiary of Auxilium.

In accordance with the terms of the Merger Agreement, at the effective time of the Merger, each issued and outstanding unit of the Merger Sub was automatically converted into one unit of the surviving company’s membership interests and each issued and outstanding unit of Actient was cancelled and automatically converted into the right to receive an amount in cash equal to a pro rata portion of the transaction consideration.

The aggregate amount to be paid by Auxilium to the Sellers (including the Blocker Seller) in connection with the transactions contemplated by the Merger Agreement (the “transaction consideration”) consists of: (i) $585 million, reduced by (ii) the amount of Actient’s third-party indebtedness, which was repaid in full at Closing, and adjusted further based on (iii) Actient’s cash, net working capital and transaction expenses.

Pursuant to the terms of the Merger Agreement, at the Closing, Auxilium also issued warrants to the Representative, on behalf of the Sellers, (the “Warrants”), on a pro rata basis, for the right to purchase up to 1.25 million shares of Auxilium’s common stock (the “Warrant Shares”), in the aggregate, at a per share exercise price equal to $17.80, or 105% of the volume weighted average price of Auxilium’s common stock for the thirty consecutive trading days ended on April 25, 2013.

The Warrant is attached hereto as Exhibit 4.1 and is incorporated herein by reference. The foregoing description of the Warrants is qualified in its entirety by reference to the full text of the Warrants.

Each Actient option outstanding immediately prior to the Merger, whether or not then vested or exercisable, was cancelled and converted into the right to receive, without interest, an amount in cash equal to the pro rata portion of the transaction consideration attributable to each Actient unit subject to such option, less the per share exercise price of each such option.

Additionally, subject to the limitations described in the Merger Agreement, Auxilium will be required to pay the Sellers additional amounts in cash upon the occurrence of the following events (the “Earn-Out Payments”):

· $15 million when cumulative net sales of Actient’s urology products from and after the Closing equal $150 million;

· $10 million if cumulative net sales of Actient’s urology products during the twelve-month period commencing May 1, 2013 exceed $150 million; and

· $25 million if cumulative net sales of Actient’s urology products during the twenty four month-period commencing May 1, 2013 exceed $300 million.

At the Closing, Auxilium deposited $25 million of the transaction consideration (the “Escrow Funds”) into an escrow account (the “Escrow Account”), which funds will be used as security for satisfaction of any payments required to be made to Auxilium for post-Closing adjustments to the final transaction consideration and indemnification obligations of the Sellers. Any Escrow Funds remaining in the Escrow Account as of September 30, 2014 will be released to the Sellers on such date, although any amounts related to any pending indemnification claims will remain in the Escrow Account until such matters are finally resolved. In addition, Auxilium has the right to offset Earn-Out Payments to the extent that the Escrow Funds remaining in the Escrow Account are insufficient to satisfy the indemnification obligations of the Sellers under the Merger Agreement.

The Merger Agreement contains customary representations and warranties from Actient and Auxilium, and also contains customary covenants of the parties.

The transaction consideration was funded with cash on Auxilium’s balance sheet and the net proceeds from borrowings under the Loan Agreement described above.

None of the Sellers are entitled to dissenters or appraisal rights in connection with the transactions contemplated by the Merger Agreement.

A copy of the Merger Agreement is attached hereto as Exhibit 2.1 and is incorporated herein by reference. The foregoing description of the Merger Agreement is qualified in its entirety by reference to the full text of the Merger Agreement.

The Merger Agreement has been included solely to provide investors and security holders with information regarding its terms. It is not intended to be a source of financial, business or operational information about Auxilium, Actient or their respective subsidiaries or affiliates. The representations, warranties and covenants contained in the Merger Agreement are made only for purposes of such agreement and are made as of specific dates; are solely for the benefit of the parties; may be subject to qualifications and limitations agreed upon by the parties in connection with negotiating the terms of the Merger Agreement, including being qualified by confidential disclosures made for the purpose of allocating contractual risk between the parties instead of establishing matters as facts; and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors or security holders. Investors and security holders should not rely on the representations, warranties and covenants or any description thereof as characterizations of the actual state of facts or condition of Auxilium, Actient, the Representative or their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in Auxilium’s public disclosures.

Item 2.02 Results of Operations and Financial Condition.

On April 29, 2013, Auxilium issued a press release announcing its results of operations for the fiscal quarter ended March 31, 2013. The full text of such press release is furnished as Exhibit 99.1 to this report and is incorporated herein by reference.

The information furnished in this Current Report under the heading “Item 2.02 Results of Operations and Financial Condition” including Exhibit 99.1 shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section or Sections 11 and 12(a)(2) of the Securities Act of 1933, as amended.

Item 3.02 Unregistered Sales of Equity Securities.

The information provided in Items 1.01 and 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02. The Warrants issued in connection with the Merger were issued without registration under the Securities Act, in reliance upon an exemption from registration pursuant to Section 4(2) of the Securities Act, as a transaction by an issuer not involving a public offering.

Item 7.01 Regulation FD Disclosure.

The Company will conduct a conference call today, Monday, April 29, 2013 at 8:30 a.m. ET to discuss first quarter results and the Actient acquisition. The presentation slides to be used during the call will be available on the “For Investors” section of the Company’s web site (http://www.auxilium.com) under the “Presentations” tab beginning at approximately 7:00 a.m. ET today, Monday, April 29, 2013. A question and answer session will follow the presentation. The conference call and the presentation slides will be simultaneously webcast on the “For Investors” section of the Auxilium web site under the “Events” tab beginning at 8:30 a.m. ET on Monday, April 29, 2013, and will remain available for future review until July 29, 2013. The information contained in, or that can be accessed through the Company’s web site, is not a part of this filing.

On April 29, 2013, Auxilium issued a press release announcing the completion of the transactions contemplated by the Merger Agreement. A copy of the press release is attached hereto as Exhibit 99.2 and is incorporated herein by reference.

The information furnished in this Current Report under the heading “Item 7.01 Regulation FD Disclosure” including Exhibit 99.2 shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section or Sections 11 and 12(a)(2) of the Securities Act of 1933, as amended.

Item 8.01 Other Events.

Auxilium previously disclosed certain risks related to its business and operations, which we believe should be considered in evaluating our business, financial position, future results and prospects. We disclosed these risks in Part I, Item 1A “Risk Factors” in our Annual Report on

Form 10-K for the year ended December 31, 2012 (our “Form 10-K”). The information presented below updates and supplements those risk factors for the matters identified below and should be read in conjunction with the risks and other information contained in our Form 10-K. The risks described in our Form 10-K, as updated as described above and in this Current Report, are not the only risks we face. Additional risks that we do not presently know or that we currently believe are immaterial could also materially and adversely affect any of our business, financial position, future results or prospects. Additional risk factors that we believe should be considered are set forth below.

Risks Related to Our Acquisition of Actient

We may fail to realize some or all of the anticipated benefits and synergies of our acquisition of Actient, which may adversely affect any of our revenues, expenses, operating results or the value of our common stock.

Our ability to successfully integrate Actient’s operations into ours will depend, in part, on our ability to realize the anticipated benefits and cost savings from our acquisition of Actient. To realize these anticipated benefits, which include expected revenue and profits growth, and cost savings, we must successfully combine our respective operations, technologies and personnel. If we are not able to achieve these objectives within the anticipated time frame, or at all, the anticipated benefits and cost savings of the acquisition may not be realized fully, or at all, or may take longer to realize than expected, and the value of our common stock may be adversely affected. In addition, the integration of Actient’s business will be a complex, time-consuming and expensive process. Proper planning and effective and timely implementation will be critical to avoid any significant disruption to our operations. It is possible that the integration process could result in the loss of key employees, the disruption of our ongoing business or identify inconsistencies in standards, controls, procedures and policies that adversely affect our ability to maintain relationships with customers, suppliers, distributors, creditors, lessors, clinical trial investigators or managers or to achieve the anticipated benefits of the acquisition. Delays encountered in the integration process could have a material adverse effect on our revenues, expenses, operating results and financial condition, including the value of our common stock.

Specifically, risks in integrating Actient into our operations in order to realize the anticipated benefits and synergy savings of the acquisition include, among other factors, our inability to effectively:

· coordinate standards, compliance programs, controls, procedures and policies, business cultures and compensation structures;

· integrate and harmonize financial reporting and information technology systems of the two companies;

· coordinate research and drug candidate development efforts to effectuate our product capabilities;

· coordinate research and development activities to enhance the introduction of new drug and medical device development methodologies and drug discovery platforms to be pursued in connection with the acquisition;

· compete against companies already serving the broader market opportunities expected to be available to us and our expanded product offerings;

· manage our lack of experience in new markets, including the medical device market;

· retain Actient’s relationships with commercial partners;

· transition all facilities to a common information technology and financial reporting and controls environment;

· manage inefficiencies associated with integrating the operations of the companies;

· identify and eliminate redundant or underperforming personnel, operations and assets;

· retain and integrate key employees from Actient;

· manage the diversion of management’s attention from business matters to integration issues; and

· control additional costs and expenses in connection with, and as a result of, the acquisition, including professional fees to comply with corporate, tax, compliance and other laws relating to the medical device industry and financial reporting requirements.

In addition, the actual integration may result in additional and unforeseen expenses, and the anticipated benefits of the integration plan may not be realized. Actual cost synergies, if achieved at all, may be lower than we expect and may take longer to achieve than anticipated. If we are not able to adequately address these challenges, we may be unable to successfully integrate the operations of the business acquired from Actient into our own, or to realize the anticipated benefits and our anticipated cost synergy savings of the integration. The anticipated benefits and synergies assume a successful integration and are based on projections, which are inherently uncertain, and other assumptions. Even if integration is successful, anticipated benefits and synergies may not be as expected.

As a result of this transaction, we have become a significantly larger company and our business and corporate structure have become substantially more complex. There can be no assurance that we will effectively manage the increased complexity without experiencing operating inefficiencies or control deficiencies. Significant management time and effort is required to effectively manage the increased complexity of the combined business and our failure to successfully do so could have a material adverse effect on our business, financial condition, results of operations and growth prospects. In addition, as a result of these transactions, our financial statements and results of operations in prior years may not provide meaningful guidance to form an assessment of the prospects or potential success of our future business operations.

The risks arising with respect to the historic business and operations of Actient and its subsidiaries may be different than we anticipate, which could significantly increase the costs and decrease the benefits of the acquisition and materially and adversely affect our operations going forward .

Although we performed significant financial, legal, manufacturing and business due diligence with respect to Actient and its subsidiaries, we may not have appreciated or understood the extent of the risks associated with the acquisition. We have secured indemnification for certain matters from the former equity holders of Actient in order to mitigate the consequence of breaches of the provisions of the acquisition agreement and the risks associated with historic operations, including those with respect to compliance with laws, accuracy of financial statements, financial reporting controls and procedures, tax matters and undisclosed liabilities, and certain matters known to us, including a wrongful death suit in which Actient is the defendant. We believe that the indemnification provisions of the Merger Agreement, together with the insurance policies that we and Actient and its subsidiaries have in place will limit the economic consequence of the issues we have identified in our due diligence to acceptable levels. Notwithstanding our due diligence exercise and risk mitigation strategies, the risks of the acquisition and the costs associated with these risks may be greater than we anticipated. We may not be able to contain or control the costs associated with unanticipated risks or liabilities, which could materially and adversely affect our ability to execute on our business plan, integrate operations or continue as a viable going concern.

We may not have accurately calculated the tax benefit that we expect to receive as a result of our acquisition of Actient, which could cause our forecasts and projections to be inaccurate and have an adverse effect on our stock price.

We have calculated that we will receive a tax benefit of approximately $60 million as a consequence of our acquisition of Actient in the form of a step-up in basis resulting in tax deductible amortization of the goodwill associated with the acquisition. We may not receive this tax benefit or it may be less than we anticipate. Additionally, even if the tax benefit is as or greater than we have calculated, we may not be able to use the full benefit of the tax benefit to amortize the goodwill associated with the Actient acquisition. If any of the foregoing were to occur, the forecasts and projections that we have prepared may be inaccurate which could cause us to revise the guidance as to our expected future financial performance that we have announced publicly. Any revision to this guidance could cause the price of our stock to decline.

Risks Related to Commercialization

If medical doctors do not prescribe our products or the medical profession or patients do not accept our products, our ability to grow or maintain our revenues will be limited.

Our business is dependent on market acceptance of our products and, if approved, our product candidates, including, without limitation, XIAFLEX for the potential treatment of Peyronie’s, by physicians, healthcare payors, patients and the medical community. Medical doctors’ willingness to prescribe, and patients’ willingness to accept, our products depend on many factors, including:

· perceived safety and efficacy of our products;

· convenience and ease of administration;

· prevalence and severity of adverse side effects in both clinical trials and commercial use;

· availability of alternative treatments or products, including generics;

· cost effectiveness and the pricing of our products;

· the adequacy and effectiveness of our sales force and that of any co-promotion partner’s or international partner’s sales force;

· the adequacy and effectiveness of our production, distribution and marketing capabilities and those of our international partners;

· publicity concerning our products or competing products; and

· existence and level of third-party coverage or reimbursement for our products and, in the cases of XIAFLEX for the treatment of Dupuytren’s, TESTOPEL ® for testosterone replacement for congenital or acquired primary hypogonadism, congenital or acquired hypogonadotropic hypogonadism, or to stimulate puberty in carefully selected males with clearly delayed puberty, and, if approved, XIAFLEX for the potential treatment of Peyronie’s, the procedures performed by physicians while treating patients with these therapies.

Even though we have received regulatory approval for the products that we market currently, and even if we receive regulatory approval and satisfy the above criteria for any of our product candidates, including, without limitation, XIAFLEX for the treatment of Peyronie’s, physicians may not prescribe, and patients may not accept, our products if we do not promote our products effectively. If any of our products or product candidates fails to achieve market acceptance, we may not be able to market and sell the products successfully, which would limit our ability to generate revenue and could harm our business.

Our products and any of our product candidates, if approved, and our competitors’ branded products may face competition from lower cost generic or follow-on products and such generic competition could have a material adverse effect on our business.

Testim, XIAFLEX, TESTOPEL, Edex ® , and our other marketed products are approved under the provisions of the U.S. Food, Drug and Cosmetic Act that renders each susceptible to potential competition from generic manufacturers via the Abbreviated New Drug Application (“ANDA”) procedure. Generic manufacturers can sell their products at prices much lower than those charged by the innovative pharmaceutical companies who have incurred substantial expenses associated with the research and development of the drug product.

The ANDA procedure includes provisions allowing generic manufacturers to challenge the effectiveness of the innovator’s patent protection long before the generic manufacturer actually commercializes their products through the paragraph IV certification procedure. In recent years, generic manufacturers have used paragraph IV certifications extensively to challenge patents on a wide array of innovative pharmaceuticals, and we expect this trend to continue and to implicate drug products with even relatively small total revenues.

TESTOPEL and Edex and certain other of our products do not currently have any patent protection and, as a result, potential competitors face fewer barriers in introducing competing products. Therefore, we must rely on trade secrets and other unpatented proprietary information in order to obtain a competitive advantage, which we may be unable to do. While we attempt to protect our proprietary information as trade secrets effectively, we cannot guarantee that the measures we have taken will provide effective protection for our proprietary information. It is possible that our competitors will independently develop products that compete with TESTOPEL and Edex and certain other of our products.

Upsher-Smith Litigations

We are currently engaged in separate litigations with Upsher-Smith Pharmaceuticals, Inc. (“Upsher-Smith”) in Federal court in Delaware regarding Upsher-Smith’s attempts to bring a generic testosterone gel product to market via an ANDA or 505(b)(2) New Drug Application (“505(b)(2) NDA”) using Testim as its reference drug. The previously pending ANDA litigation in Federal court in New Jersey was dismissed in March 2013, and is currently on appeal. We refer to the ANDA litigation in Delaware as the “Delaware Upsher-Smith ANDA Litigation”, the 505(b)(2) NDA litigation in Delaware as the “Delaware Upsher-Smith 505(b)(2) NDA Litigation”, the litigation in New Jersey as the “New Jersey Upsher-Smith ANDA Litigation”, and all three of them collectively as the “Upsher-Smith Litigations”.

Delaware ANDA

In October 2008, we and our licensor, CPEX Pharmaceuticals, Inc. (FCB I LLC’s (“FCB”) predecessor in interest to Testim), received notice that Upsher-Smith filed an ANDA containing a paragraph IV certification seeking approval from the FDA to market a generic version of Testim prior to the January 2025 expiration of the ‘968 Patent. Shortly after, we commenced the Delaware Upsher-Smith Litigation. Upsher-Smith will not be able to lawfully launch a generic version of Testim in the U.S. without the necessary approval from the FDA. Although it would seem unlikely based on the FDA’s public statements in its responses to the Citizen’s Petitions submitted by each of us and Abbott and Upsher-Smith’s public stance that its generic product has different penetration enhancers than Testim, the FDA could approve the generic product proposed in Upsher-Smith’s ANDA. With FDA approval, even if the Delaware Upsher-Smith Litigation remains pending, Upsher-Smith may nevertheless choose to launch this generic product, if approved, at risk of infringing the ‘968 patent. Although administratively closed in December 2011, the Delaware Upsher-Smith Litigation has not been dismissed or finally resolved and could also result in a finding that Upsher-Smith’s proposed testosterone product does not infringe the ‘968 Patent or that the ‘968 Patent is invalid and/or unenforceable. All discovery obligations of the parties continue to be in effect. In April 2012, we and FCB received a notice from Upsher-Smith in connection with its ANDA advising us and FCB of Upsher-Smith’s Paragraph IV certification relating to the eight additional patents listed in the Orange Book in addition to the ‘968 patent-in-suit, and asserting that Upsher-Smith does not believe that the product for which it is seeking approval infringes any of the Orange Book listed Testim patents and that those patents are invalid. A tenth U.S. patent issued to FCB on May 15, 2012 and was listed in the Orange Book.

New Jersey ANDA

On March 27, 2013, we and FCB learned that Judge Linares of the United States District Court for the District of New Jersey ruled in favor of Auxilium and FCB on their motion to dismiss the lawsuit previously filed by Upsher-Smith on September 10, 2012. On April 25, 2013, Upsher-Smith filed a Notice of Appeal, appealing the dismissal to the United States Court of Appeals for the Federal Circuit. The lawsuit had sought a declaration of non-infringement and/or invalidity of FCB’s U.S. Patent Nos.: 7,608,605; 7,608,606; 7,608,607; 7,608,608; 7,608,609; 7,608,610; 7,935,690; and 8,063,029. All of the eight referenced patents cover our Testim® 1% testosterone gel, and the eight referenced patents are among the ten FCB patents covering Testim that are currently listed in the Orange Book. The referenced patents will expire between 2023 and 2025.

Delaware 505(b)(2) NDA

On or about December 28, 2012, we and FCB became aware of a notice from Upsher-Smith that advised us and FCB of Upsher-Smith’s filing of a 505(b)(2) NDA containing a Paragraph IV certification under 21 U.S.C. Section 314.52(c) for testosterone gel (the “Upsher-Smith NDA”). This Paragraph IV certification notice refers to the ten U.S. patents, covering Testim, that are listed in the Orange Book. These ten patents are owned by FCB and are exclusively licensed to Auxilium and will expire between 2023 and 2025. Upsher-Smith may seek to have any drug approved under the Upsher-Smith NDA as a generic version of Testim. On January 28, 2013, we and FCB filed a lawsuit in the United States District Court of Delaware against Upsher-Smith for infringement of FCB’s ten patents listed in the Orange Book as covering Testim® 1% testosterone gel.

Watson Litigation

ANDA Litigation with Watson

On May 24, 2012, we and FCB filed a lawsuit against Watson Pharmaceuticals, Inc. (now known as Actavis, Inc.) (“Watson”) for infringement of FCB’s ten patents listed in the Orange Book as covering Testim® 1% testosterone gel (the “Watson Litigation”). The lawsuit was filed in the United States District Court for the District of New Jersey on May 23, 2012 in response to a notice letter, dated April 12, 2012, sent by Watson Laboratories, Inc. (NV) regarding its filing with the FDA of an ANDA for a generic 1% testosterone gel product. This letter also stated that the ANDA contained Paragraph IV certifications with respect to the nine patents listed in the Orange Book on that date as covering Testim. Our lawsuit filed against Watson involves those nine patents, as well as a tenth patent covering Testim that was issued on May 15, 2012 and is listed in the Orange Book.

An adverse outcome in any of the Upsher-Smith Litigations, the Watson Litigation, or any other such legal action, could result in one or more generic versions of Testim being launched in the U.S. before the expiration of the last to expire of the ten Orange Book patents relating to Testim in January 2025.

In addition, we expect that a generic version of Androgel may potentially be introduced as early as August 2015. Since Testim and XIAFLEX for Dupuytren’s are significant products for us, the introduction of a generic version to Testim or Abbot’s AndroGel testosterone gel franchise could have a material adverse effect on our ability to successfully execute our business

strategy to maximize the value of Testim as we continue the commercialization of XIAFLEX for Dupuytren’s.

In addition, the Patient Protection and Affordable Care Act (the “PPACA”) , enacted in March 2010, includes provisions covering biological product exclusivity periods and a specific reimbursement methodology for biosimilars. As a new biological product, we expect that XIAFLEX will be eligible for 12 years of marketing exclusivity from the date of its approval by the FDA (although this could change as the regulations are enacted). PPACA also establishes an abbreviated licensure pathway for products that are biosimilar to or interchangeable with FDA-approved biological products, such as XIAFLEX. As a result, we could face competition from other pharmaceutical companies that develop biosimilar versions of our biological product XIAFLEX that do not infringe our patents or other proprietary rights. Similar legislation has also been adopted in the EU.

If third-party payors do not adequately reimburse customers for our products, any of our product candidates that are approved for marketing, or medical procedures associated with our products, our products might not be used or purchased, and our revenues and profits will not grow.

Our revenues and profits depend heavily upon the availability of adequate coverage and reimbursement for the use of our products (both our pharmaceutical products and our medical device products), any of our product candidates that are approved for marketing and medical procedures administered in connection with our products, from third-party healthcare and state and federal government payors, both in the U.S. and in foreign markets. Demand for many of our existing and new products and our new medical device products is, and will continue to be, affected by the extent to which government healthcare programs and private health insurers reimburse our customers for patients’ medical expenses in the countries where we do business. Reimbursement by a third-party payor may depend upon a number of factors, including the third-party payor’s determination that the product and related procedures are:

· competitively priced;

· safe, effective and medically necessary;

· appropriate for the specific patient;

· cost-effective; and

· neither experimental nor investigational.

Since reimbursement approval for a product is required from third-party and government payors, seeking this approval, particularly when seeking approval for a preferred form of reimbursement over other competitive products, is a time-consuming and costly process. Third-party payors may require cost-benefit analysis data from us in order to demonstrate the cost-effectiveness of any product we might bring to market. For any individual third-party payor, we may not be able to provide data sufficient to gain reimbursement on a basis similar or preferred to competitive products or at all. If reimbursement is approved, it may be at prices below that which we believe to be appropriate. Once reimbursement at an agreed level is approved by a third-party payor, we may lose that reimbursement entirely or we may lose the similar or better reimbursement we receive compared to competitive products. In addition, as a result of their purchasing power, third party payors are implementing cost cutting measures such as seeking

discounts, price reductions or other incentives from pharmaceutical products and medical device products suppliers and imposing limitations on coverage and reimbursements for pharmaceutical and medical device technologies and procedures. As reimbursement is often approved for a period of time, this risk is greater at the end of the time period, if any, for which the reimbursement was approved. These trends could compel us to reduce prices for our existing products and potential new products and could cause a decrease in the size of the market or a potential increase in competition that could negatively affect our business, financial condition and results of operations.

Physicians may perceive the reimbursement levels associated with our marketed products to be inadequate, which could affect the use of such codes by physicians and have a material adverse effect on our business.

If product liability lawsuits are brought against us, we may incur substantial liabilities.

The commercialization of our products and the clinical testing, manufacture and commercialization of our product candidates, if approved, involves significant exposure to product liability claims. We have products liability insurance that covers our products and the clinical trials of our product candidates that we believe is adequate in both scope and amount and has been placed with what we believe to be reputable insurers. This insurance has a self-insurance retention for the first $1.0 million of liability. Our product liability policies have been written on a claims-made basis. If any of our product candidates are approved for marketing, we may seek additional coverage. We cannot predict all of the adverse health events that our products or product candidates may cause. As a result, our current and future coverages may not be adequate to protect us from all the liabilities that we may incur. If losses from product liability claims exceed our insurance coverage and indemnities, we may incur substantial liabilities that exceed our financial resources. In addition, we may not be able to maintain our clinical trial insurance or product liability insurance at an acceptable cost, if at all, and this insurance may not provide adequate coverage against potential claims or losses. If we are required to pay a product liability claim, we may not have sufficient financial resources and our business and results of operations may be harmed. Whether or not we are ultimately successful in product liability litigation, such litigation could also consume substantial amounts of our financial and managerial resources, and might result in adverse publicity, all of which would impair our business. Additionally, we enter into various agreements where we indemnify third parties such as manufacturers, investigators and collaborative partners for certain product liability claims related to our products. These indemnification obligations may require us to pay significant sums of money for claims that are covered by these indemnifications.

As a result of our acquisition of Actient, we now have a medical device business that exposes us to potential product liability risks that are inherent in the design, manufacture and marketing of those medical devices that we sell. There are a number of factors that could result in an unsafe condition or injury of a patient with respect to those medical devices that we manufacture or sell, including quality issues, component failures, manufacturing flaws, unanticipated or improper uses of our medical devices, design defects or inadequate disclosure of product-related risks or product-related information. Any of these issues could lead to a recall of, or safety alert relating to, one or more of our medical devices and could ultimately result in claims against us. Any recall, whether voluntary or required by the FDA or similar governmental authorities in other countries, could result in significant costs and significant negative publicity. Negative publicity, including regarding a quality or safety issue, whether accurate or

inaccurate, could reduce market acceptance of our medical devices, harm our reputation, decrease demand for our medical devices, result in the loss of customers, lead to product withdrawals and/or harm our ability to successfully launch and market our medical devices in the future. The foregoing problems could also result in enforcement actions by state and federal governments or other enforcement bodies, or product liability claims or lawsuits including those being brought by individuals or by groups seeking to represent a class or establish multi-district litigation proceedings. Moreover, in some circumstances adverse events arising from or associated with the design, manufacture, quality or marketing of our medical devices could result in the FDA suspending or delaying its review of our applications for new medical device approvals. Any of the foregoing problems could have a material adverse effect on our business, results of operations, financial condition and/or liquidity.

Testim, TESTOPEL and Striant ® (together our “TRT Products”) and Edex and Osbon ErecAid (together our “ED Products”) compete in a very competitive market, and if we are unable to compete effectively with the other companies that produce products for the treatment of urologic or sexual health disorders, our ability to generate revenues will be limited.

The TRT and erectile dysfunction (“ED”) markets are highly competitive. Our success will depend, in part, on our ability to grow our prescription volume and protect our share of the market from the competition. Potential competitors in North America, Europe and elsewhere include major pharmaceutical companies, specialty pharmaceutical companies and biotechnology firms, universities and other research institutions and government agencies. As competition has increased, access to managed care plans has also become more competitive in the TRT and ED markets. Pricing, rebate and discount strategies required to gain or maintain access or in some cases preferential access to certain managed care plans may have a material adverse effect on the revenue we derive from our TRT Products and ED Products. The loss of preferred status or any access at all for certain managed care plans may have a material adverse effect on our TRT Products’ and/or our ED Products’ share of their respective markets.

Other pharmaceutical or medical device companies may develop generic versions of our TRT Products or our ED Products or any products that compete with our TRT Products or ED Products that do not infringe our patents or other proprietary rights, and, as a result, our business may be adversely affected. Because the ingredients of our products and parts for our devices are commercially available to third parties, it is possible that competitors may design formulations, propose dosages or develop methods of administration that would be outside the scope of the claims of one or more, or of all, of the patent and other proprietary rights that we in-license. This would enable their products to effectively compete with our products. Governmental and other pressures to reduce pharmaceutical costs may result in physicians writing prescriptions for these generic products. The strategies that we deploy to make products price-competitive with lower cost generic products may reduce our profit margins on our products significantly. Consequently, increased competition from the sale of competing generic products could cause a material decrease in revenue from our products and adversely affect our business.

In addition to potential generic competition, Androgel 1% and Androgel 1.62%, two additional competing TRT products were launched in the U.S. in the first quarter of 2011 and several other pharmaceutical companies have TRT products in development that may be approved for marketing in the U.S. and the rest of the world.

International commercialization of our products, including the continued commercialization of XIAPEX in the European Union, and our product candidates faces significant obstacles.

We may commercialize some of our products, and product candidates, if approved, internationally on our own or through collaborative relationships with foreign partners. Our foreign regulatory, clinical and commercial resources are limited, and accordingly, our ability to expand our business outside of the U.S. on our own is limited. We may not be able to enter into collaboration agreements with appropriate partners for important foreign markets on acceptable terms, or at all. Future and current collaborations with foreign partners may not be effective or profitable for us. Any international commercialization may carry risks that we do not foresee due to our limited international resources.

We now market XIAPEX (EU tradename for XIAFLEX) for the treatment of Dupuytren’s contracture in the European Union and certain Eurasian countries. We also hold the development rights in this territory for XIAPEX for, if approved, the treatment of Peyronie’s. Pfizer Inc. (“Pfizer”) held these rights prior to April 24, 2013. On March 28, 2013, we and Pfizer entered into a Transition Services Agreement relating to the transition from Pfizer to us of the development and commercialization activities related to XIAPEX for the treatment of Dupuytren’s contracture and, if approved, for the treatment of Peyronie’s disease in the European Union and certain Eurasian countries. The Transition Services Agreement provides, and sets out schedules for, among other matters, an orderly transition of regulatory approvals and licenses, packaging and labeling responsibilities, distribution activities, pharmacovigilance obligations, recall obligations, product testing activities, ongoing clinical trial activities and redesign of packaging. Although we are currently committed to the continued commercialization of XIAPEX for the treatment of Dupuytren’s and the continued development of XIAPEX, if approved, for the treatment of Peyronie’s in this territory, we may not have adequate resources or capabilities to do so on our own, we may not be successful in entering into a new collaboration agreement with a new partner, and continued commercialization may not be profitable for us. Also, we may not be successful in completing all actions necessary for the full implementation of the transfer of the Marketing Authorization (“MA”) to us.

Our ability to generate revenue is somewhat dependent upon the growth of the markets in which we sell our products. If these markets do not continue to grow, our ability to maintain our revenue and generate profits, if any, could be negatively impacted.

Large pharmaceutical companies with greater resources than we have continue to enter the TRT and ED markets. As large pharmaceutical companies launch products that compete with the TRT Products and the ED Products, the amount of promotional activities to increase awareness of the benefits of TRT and ED therapies has increased significantly. We believe that the increase in promotional activities has been the primary driver of the growth of the overall TRT and ED markets. The amount of resources we devote to promotional activities is significantly less than that of our competitors. Consequently, we do not influence the growth of the TRT or ED market in any material manner. If our competitors do not continue to devote significant resources to consumer awareness, advertising, promotional and other activities, the growth of the overall TRT and ED market, and the gel segment of the TRT market specifically, would likely slow or decline. Any slowing or decline in the growth of the markets in which we

sell our products, could negatively impact our ability to maintain our revenue and generate profits.

Risks Related to our Manufacturing Operations.

We have limited experience in manufacturing pharmaceutical and biologic products and may encounter difficulties in our manufacturing processes, which could materially adversely affect our results of operations or delay or disrupt manufacture of those of our products that are reliant upon our manufacturing operations.

The manufacture of pharmaceutical and biologic products requires significant expertise and capital investment. Although we leased our facilities in Horsham in order to have direct control over the manufacturing of the active ingredient of XIAFLEX, for which we are the sole supplier, we have limited experience in manufacturing XIAFLEX or any other pharmaceutical product. Biologics, such as XIAFLEX, require processing steps that are highly complex and generally more difficult than those required for most chemical pharmaceuticals. In addition, TESTOPEL is manufactured using a unique, proprietary process. If our manufacturing processes at the Rye, New York facility or our Horsham facility are disrupted, it may be difficult to find an alternate manufacturing site. We may encounter difficulties with the manufacture of the active ingredient of XIAFLEX or TESTOPEL, which could delay, disrupt or halt our manufacture of XIAFLEX and TESTOPEL, respectively, require write-offs which may affect our financial results, result in product recalls or product liability claims or otherwise materially affect our results of operations. These problems with manufacturing may include:

· our ability to develop, implement and improve our internal manufacturing capability;

· our ability to manage XIAFLEX or TESTOPEL’s unique manufacturing processes;

· difficulties with production and yields, including the viability of the working cell bank and cell growth at lower than expected levels, scale-up and achieving adequate capacity for such supply;

· adequately aligning production and inventory with sales;

· availability of raw materials and supplies at a commercially reasonable price or at all;

· contamination issues;

· equipment failures;

· issues with quality control and assurance;

· shortages of qualified personnel;

· demand for our products may exceed our capacity;

· compliance with strictly enforced federal, state and foreign regulations; and

· lack of capital funding.

Furthermore, our manufacturing operations expose us to a variety of significant risks, including:

· product defects and potential product liability claims;

· contamination of product or product loss;

· environmental liabilities or claims resulting from our production process or contamination at our manufacturing facilities;

· sudden loss of inventory;

· termination by any of our licensees of its license agreement for breach of contract;

· inability to manufacture products at a cost that is competitive with third party manufacturing operations, below the prices at which we are contractually obligated to supply to our partners or consistent with our costs of goods expectations.

If we are unable to maintain regulatory approval for XIAFLEX and TESTOPEL, we may not have an alternate use for our Horsham or Rye facilities and, in the case of our Horsham facility, we will still be required to make payments under our lease.

We have entered into leases for our facilities in Horsham, the first of which expires on January 1, 2017. We also own a facility in Rye, New York, where we manufacture TESTOPEL. If we are unable to maintain regulatory approval for TESTOPEL, we may not have an alternate use for our Rye facility. If we are unable to maintain regulatory approval for XIAFLEX for Dupuytren’s or obtain regulatory approval for XIAFLEX for Peyronie’s, we may not have an alternate use for the Horsham facilities but will be required to make payments under our leases. As of December 31, 2012, the total future minimum lease payments of the Horsham leases during their initial noncancellable terms are approximately $18.9 million.

Our Horsham and Rye facilities and the facilities of the manufacturer who we are in the process of qualifying as a secondary manufacturer for XIAFLEX (such manufacturer, the “Proposed Secondary Manufacturer” and such facility, the “Proposed Secondary Facility”) are subject to regulatory oversight, which may delay or disrupt our development and commercialization efforts for XIAFLEX or TESTOPEL.

We must ensure that all of the processes, methods, equipment and facilities employed in the manufacturing operations at our Horsham and Rye facilities and the Proposed Secondary Facility are compliant with the current cGMP requirements. The cGMP requirements govern quality control of the manufacturing process and documentation policies and procedures. Compliance with cGMP requires record keeping and quality control to assure that the clinical and commercial product meets applicable specifications and other requirements. If we or the Proposed Secondary Manufacturer fail to comply with these requirements, we may not be permitted to sell our products or may be limited in the jurisdictions in which we are permitted to sell them. Our manufacturing facilities and the Proposed Secondary Facility are subject to inspection by regulatory agencies at any time. If an inspection by regulatory authorities indicates that there are deficiencies including non-compliance with regulatory requirements, we could be required to take remedial actions, stop production or close our Horsham and/or Rye facilities or the Proposed Secondary Facility, which would disrupt the manufacturing processes, limit the supplies of XIAFLEX and TESTOPEL and delay clinical trials and subsequent licensure, and/or limit the sale of commercial supplies.

Future noncompliance with any applicable regulatory requirements may result in refusal by regulatory authorities to allow use of XIAFLEX made at our Horsham facilities or the Proposed Secondary Facility or TESTOPEL made at our Rye facilities in clinical trials, refusal of the government to allow distribution of XIAFLEX or TESTOPEL for commercialization, criminal

prosecution and fines, recall or seizure of products, total or partial suspension of production, prohibitions or limitations on the commercial sale of products or refusal to allow the entering into of federal and state supply contracts.

Risks Related to Our Dependence on Third-Party Manufacturers, Service Providers, Testing Laboratories and Suppliers

Since we currently rely on third-party manufacturers, suppliers and packagers, we may be unable to control the availability or cost of manufacturing and packaging our products, which could adversely affect our results of operations.

We currently do not manufacture any of our marketed products or devices or any of our product candidates, except for TESTOPEL and the active ingredient for XIAFLEX, for which, in each case, we are the sole source of supply. JHS fills and lyophilizes the XIAFLEX bulk drug substance that we manufacture and produces sterile diluent. Catalent packages and labels the XIAFLEX products. Testim is manufactured for us by DPT, under a contract that expires on December 31, 2015, and also by CPL as a secondary supplier under a contract that expires on July 31, 2014. We are in the process of qualifying the Proposed Secondary Manufacturer for XIAFLEX. We rely on other third party manufacturers for our products as well as third parties for certain packaging services for our products.

The manufacture of pharmaceutical products requires significant expertise and capital investment. Our third-party manufacturers or packagers may encounter difficulties in production. These problems may include:

· difficulties with production costs and yields;

· availability of raw materials and supplies;

· issues with quality control and assurance;

· damage to, or complete loss of, raw materials, supplies or finished product;

· shortages of qualified personnel;

· compliance with strictly enforced federal, state and foreign regulations; and

· lack of capital funding.

JHS, Catalent, DPT, CPL, the Proposed Secondary Manufacturer or any of our other third-party manufacturers and packagers may not perform as agreed. Likewise, we may not perform as agreed under our contracts with these manufacturers and packagers. In either event, the applicable manufacturer or packager or we, as the case may be, may terminate the applicable agreement, which would adversely impact our ability to produce and sell our products or produce our product candidates for use in clinical trials. Also, any of our third-party manufacturers and packagers could become insolvent or cease operations. The number of third-party manufacturers with the expertise, required regulatory approvals and facilities to manufacture bulk drug substance on a commercial scale is limited, and it would take a significant amount of time to arrange and receive regulatory approval for alternative arrangements. We may not be able to contract for the manufacturing of our products or any of our product candidates on acceptable terms, if at all, which would materially impair our business.

Any of these factors could increase our costs and result in our being unable to effectively commercialize or develop our products. Furthermore, if any third-party manufacturer fails to deliver the required commercial quantities of finished product on a timely basis and at commercially reasonable prices, we may be unable to meet the demand for our products and we may lose potential revenues.

Because we depend on third parties to conduct certain laboratory tests, clinical trials and other critical services, including regulatory review services, we have limited control and may encounter delays in our efforts to develop product candidates.

We commonly rely on third parties to conduct laboratory tests, clinical trials and other critical services for us, including regulatory review services. If we are unable to obtain these services on acceptable terms, we may be unable to complete our product development efforts in a timely manner. Also, to the extent we will rely on third parties for laboratory tests and clinical trials, we will have limited control over these activities and may be unable to manage them appropriately. Actient outsources complaint handling, adverse event reporting and federal government price reporting to a third party. If such third parties fail to adequately handle complaints, report adverse events and calculate and report all required U.S. federal and state drug prices, Auxilium, which acquired Actient, could face significant regulatory issues. Communicating with third parties can also potentially lead to mistakes as well as difficulties in coordinating activities. Third parties may:

· have staffing difficulties;

· fail to comply with contractual obligations;

· experience regulatory compliance issues; or

· undergo changes in priorities or may become financially distressed.

These third parties may not complete the tests or trials on our schedule, and the tests or trials may be methodologically flawed, may not comply with applicable laws or may be otherwise defective. We may experience unexpected cost increases that are beyond our control. Problems with the timeliness or quality of the work of a contract research organization may lead us to seek to terminate the relationship and use an alternative service provider. However, making this change may be costly and may delay our trials, and contractual restrictions may make such a change difficult. Our contracts with the contract research organizations on which we currently rely are generally terminable upon 30-days prior written notice. If we must replace any of these contract research organizations or any other contract research organization we may use in the future to conduct our clinical trials, our trials may have to be suspended until we find another contract research organization that offers comparable services. The time that it takes us to find alternative organizations may cause a delay in the commercialization of our product candidates or may cause us to incur significant expenses to replicate data that may be lost. Although we do not believe that the contract research organizations on which we rely offer services that are not available elsewhere, it may be difficult to find a replacement organization that can conduct our trials in an acceptable manner and at an acceptable cost.

Our third-party manufacturers are subject to regulatory oversight, which may delay or disrupt our development and commercialization efforts.

Third-party manufacturers of our products or product candidates must ensure that all of the processes, methods and equipment are compliant with cGMP, and conduct extensive audits of vendors, contract laboratories and suppliers. If they fail to comply with these requirements, we also may be required to curtail the clinical trials of our product candidates, which are also supplied by these manufacturers, and may not be permitted to sell our products or may be limited in the jurisdictions in which we are permitted to sell them. Manufacturing facilities are subject to inspection by regulatory agencies at any time. If an inspection by regulatory authorities indicates that there are deficiencies, third-party manufacturers could be required to take remedial actions, stop production or close the facility, which would disrupt the manufacturing processes and limit the supplies of Testim, Edex, our other marketed products or our product candidates.

If we or our suppliers fail to comply with the FDA’s Quality System Regulation or equivalent global regulations and standards for medical devices, the manufacture and processing of our medical devices could be delayed and we may be subject to an enforcement action by the FDA or other government agencies.

We and our suppliers are required to comply with the FDA’s Quality System Regulation, and other applicable standards and requirements, which cover the methods and documentation of the design, testing, production or processing, control, quality assurance, labeling, packaging, storage and shipping of our medical devices. The FDA and other regulatory bodies enforce compliance with regulatory requirements and standards through periodic inspections. If we or one or none of our suppliers fail an inspection or if any corrective action plan implemented following an inspection is not sufficient, the release of our medical devices could be delayed. A failure by us or our suppliers to comply with applicable regulatory requirements can result in enforcement action against us by the FDA, which may include any of the following sanctions:

· fines, injunctions, civil penalties and criminal prosecution;

· recall or seizure of our products;

· operating restrictions, partial suspension or total shutdown of production;

· refusing our request for 510(k) clearance or premarket approval of new products; and

· withdrawing 510(k) clearance or premarket approvals that are already granted.

We currently rely on single source suppliers for certain raw materials and services for manufacturing of our marketed products, and on only two suppliers for a primary ingredient for Testim, and the loss of any of these suppliers could prevent us from selling our marketed products, which would materially harm our business.

We rely on third-party suppliers for our supply of raw materials for the manufacture of the ingredients of our marketed products. Certain raw materials are available to us from only limited sources and are sole sourced. Testosterone is available to us from only three sources, and we rely exclusively on two outside sources for our supply of cyclopentadecanolide (“CPD”). We do not have supply agreements in place with all of our raw material suppliers, including our suppliers of testosterone and CPD. If any of the suppliers stops manufacturing, or if we are unable to procure raw materials or services on commercially favorable terms, or if we are not able to obtain them

in a timely manner, we may be unable to continue to produce or sell our marketed products on commercially viable terms, if at all. In addition, the limited number of suppliers of these raw materials and services with whom we do not have supply agreements in place may provide such companies with greater opportunity to raise their prices. Any increase in price for these raw materials or services may reduce our gross margins.

Risks Related to Collaborators

We are dependent upon our collaborative relationships with third parties to further develop and commercialize XIAFLEX (or XIAPEX as it is known in the EU) outside of the U.S. and to commercialize Testim outside of the U.S. There may be circumstances that delay or prevent any of these third parties’ ability to develop and commercialize XIAFLEX or to commercialize Testim.

We have entered into agreements with each of Asahi Kasei Pharma Corporation (“Asahi Kasei”) and Actelion Pharmaceuticals Ltd. (“Actelion”) under which we have granted them the right to develop and commercialize XIAFLEX in Japan, and in Australia, Brazil, Canada and Mexico, respectively. In addition, we may seek to enter into similar arrangements with other third parties with respect to the development and commercialization of XIAFLEX in the rest of the world, including the European Union and certain Eurasian countries for which Pfizer had been our commercialization partner until April 24, 2013. We have entered into agreements with Ferring and Paladin under which we have granted them the right to commercialize Testim in Europe and Canada, respectively. We are subject to a number of risks associated with our dependence on our collaborative relationship with these third parties, including:

· adverse decisions by a third party regarding the amount and timing of resource expenditures for the development and commercialization of XIAFLEX or Testim;

· possible disagreements as to the timing, nature and extent of our development plans, including clinical trials or regulatory approval strategy;

· lack of alignment between specifications for product that we have agreed to provide to a third party and specifications that have or might be approved by regulatory authorities;

· the right of a third party to terminate its collaboration agreement with us on limited notice upon the occurrence of certain defined events;

· loss of significant rights if we fail to meet our obligations under the collaboration agreement;

· withdrawal of support by a third party following change of that third party’s corporate strategy or due to competing priorities;

· changes in key management personnel at a third party that are members of the collaboration’s various operating committees; and

· possible disagreements with a third party regarding the collaboration agreement or ownership of proprietary rights, including with respect to inventions discovered under the applicable collaborative agreement.

Due to these factors and other possible disagreements with a third party, including disputes over intellectual property ownership, we may be delayed or prevented from further developing,

manufacturing or commercializing XIAFLEX outside the U.S. or further commercializing Testim outside the U.S., or we may become involved in litigation or arbitration, which would be time consuming and expensive.

If a third party were to unilaterally terminate its collaboration agreement with us, we would need to undertake development and marketing activities for XIAFLEX or marketing activities for Testim, as the case may be, in that third party’s territory solely at our own expense and/or seek another partner for some or all of these activities in that territory. If we pursued these activities in that territory on our own, it would significantly increase our capital and infrastructure requirements, and might limit the indications we are able to pursue and could prevent us from effectively developing and commercializing XIAFLEX and could prevent us from effectively commercializing Testim, as the case may be. If we sought to find another pharmaceutical company partner for some or all of these activities, we may not be successful in such efforts, or they may result in a collaboration that has us expending greater funds and efforts than the relationship with the terminating third party.

Until April 24, 103, Pfizer marketed XIAPEX (EU tradename for XIAFLEX) for the treatment of Dupuytren’s contracture in the European Union and certain Eurasian countries. Pfizer also held development rights in this territory for XIAPEX for, if approved, the treatment of Peyronie’s. On March 28, 2013, we and Pfizer entered into a Transition Services Agreement relating to the transition from Pfizer to us of the development and commercialization activities related to XIAPEX for the treatment of Dupuytren’s contracture and, if approved, for the treatment of Peyronie’s disease in the European Union and certain Eurasian countries. The Transition Services Agreement provides, and sets out schedules, for, among other matters, an orderly transition of regulatory approvals and licenses, packaging and labeling responsibilities, distribution activities, pharmacovigilance obligations, recall obligations, product testing activities, ongoing clinical trial activities and redesign of packaging. Although we are currently committed to the continued commercialization of XIAPEX for the treatment of Dupuytren’s and the continued development of XIAPEX, if approved, for the treatment of Peyronie’s in this territory, we may not have adequate resources or capabilities to do so on our own, we may not be successful in entering into a new collaboration agreement with a new partner, and continued commercialization may not be profitable for us. Also, we may not be successful in completing all actions necessary for the full implementation of the transfer of the MA to us.

In general, we cannot control the amount and timing that our third party partners may devote to our collaborations. We are relying on our third-party partners to obtain regulatory approvals for and successfully commercialize XIAFLEX in the relevant territories. If a third party fails to adequately market and promote XIAFLEX in its territory, we may be unable to obtain any remedy against that third party and sales of XIAFLEX may be harmed, which would negatively impact our business, results of operations, cash flows and liquidity due to reduced milestone and royalty payments under the applicable third party agreement.

We do not control the actions of our collaborators, and breaches of our agreements by any of them as well as disagreements over strategic goals could affect our business, our regulatory approvals or our reputation.

We have agreements in place with our collaborators, including Pfizer, GlaxoSmithKline LLC, Asahi Kasei, Actelion and BioSpecifics Technologies Corp. (“BioSpecifics”), and we

expect that any future collaborators would similarly be engaged under contract. We also have entered into agreements with Ferring and Paladin under which we have granted them the right to commercialize Testim in Europe and Canada, respectively. Nevertheless, for reasons that we may not have an ability to foresee or control, any of our collaborators may breach their respective agreements. We also may disagree with our collaborators as to strategic issues or the manner in which our rights should be enforced. Depending on its nature, a breach could affect our regulatory approvals for our products and could affect our reputation if the consequences of a breach are imputed to us. We may need to engage in costly litigation to enforce our rights, and we may not prevail in such litigation. A breach by, or disagreement with, one of our collaborators may lead to termination of the applicable agreement, which, in the case of a license agreement, may affect the scope of our license, such as modifying an exclusive license to a non-exclusive license. Any such breach or disagreement and its consequences could have a material adverse effect on our business and financial condition.

We may not be able to license XIAFLEX for development and commercialization in the rest of the world on commercially reasonable terms or at all.

Reaching agreement or agreements with one or multiple partners for development and commercialization of XIAFLEX in areas of the world outside the U.S. and the territories covered by our collaboration agreements with Pfizer, Asahi Kasei and Actelion is uncertain. We may not be able to timely find interested or suitable partners for such collaboration, and any such collaboration may not be as profitable as planned or profitable at all. If we are unable to license XIAFLEX for development and commercialization in areas of the world outside the U.S. and the territories covered by our current collaboration agreements with Asahi Kasei and Actelion on commercially reasonable terms or at all, it could have an adverse effect on our ability to commercialize XIAFLEX worldwide and on our financial condition.

Risks Related to Business Development

Our failure to successfully in-license or acquire additional technologies, product candidates or approved products could impair our ability to grow.

We intend to in-license, acquire, develop and market additional products and product candidates so that we are not solely reliant on sales from our currently approved products for our revenues. The success of this strategy depends upon our ability to identify, select and acquire the right pharmaceutical or medical device product candidates, products and technologies. We have a limited number of product candidates in our development pipeline. We may not be able to acquire or in-license the rights to additional product candidates and approved products on terms that we find acceptable, or at all. We face extensive competition in the acquisition or in-licensing of pharmaceutical or medical device products or small companies to enhance our portfolio of products. A number of more established companies, which have strategies to in-license or acquire products, may have competitive advantages, as may other emerging companies taking similar or different approaches to product acquisitions. In addition, a number of established research-based pharmaceutical, medical device and biotechnology companies may acquire products in late stages of development to augment their internal product lines. These established companies may have a competitive advantage over us due to their size, resources and experience. If we are unable to in-license or acquire additional commercial products or product candidates,

we may be reliant solely on sales of our currently approved products for revenues. As a result, our ability to grow our business or increase our profits could be severely limited.

We face strong competition in the medical device business. Our failure to successfully develop and market new products could adversely affect our business.

The medical device industry is highly competitive. We compete with many domestic and foreign medical device companies ranging from small start-up enterprises that might sell only a single or limited number of competitive products or compete only in a specific market segment, to companies that are larger and more established than us, have a broad range of competitive products, participate in numerous markets and have access to significantly greater financial and marketing resources than we do.

In addition, the medical device industry is characterized by extensive product research and development and rapid technological advances. The future success of our business will depend, in part, on our ability to design and manufacture or acquire new competitive products and enhance existing products. Our product development efforts may require us to make substantial investments. There can be no assurance that unforeseen problems will not occur with respect to the development, performance or market acceptance of new technologies or products, such as our inability to:

· identify viable new products;

· obtain adequate intellectual property protection;

· gain market acceptance of new products; or

· successfully obtain regulatory approvals.

In addition, our competitors currently may be developing, or may develop in the future, products that are more effective than those that we currently offer or subsequently develop. Our failure to successfully develop and market new products or enhance existing products could have an adverse effect on our business, financial condition and results of operations.

Risks Related to Regulatory Approval of Our Products and Product Candidates

If we do not receive regulatory approval to market XIAFLEX for the treatment of Peyronie’s disease in a timely manner, or at all, we may not be able to expand our revenues for XIAFLEX and our business could be materially affected.

In December 2012, the FDA accepted for filing our sBLA for XIAFLEX for the potential treatment of Peyronie’s disease. The FDA has designated a PDUFA target action date of September 6, 2013. As the FDA is not bound by, and has in the past missed, its PDUFA goals, it is unknown whether the review of our sBLA will be completed within the FDA review goals or will be delayed. Additionally, government budget cuts, as a result of federal sequestration, may affect review periods.

The FDA has broad discretion in the drug approval process. Even if we believe that we have demonstrated positive results from our preclinical and clinical trials of XIAFLEX for the treatment of Peyronie’s disease, our results from these preclinical and clinical trials may not be sufficient, in the judgment of the FDA, to support marketing approval, or regulatory

interpretation of our data and procedures may be unfavorable. The FDA may determine after review of our data for XIAFLEX for the treatment of Peyronie’s disease that our application is insufficient, and decline to allow approval of XIAFLEX for the treatment of Peyronie’s disease. Alternatively, the FDA might approve our application but with a restricted label, thus limiting who the drug may be marketed to.

Obtaining approval of a sBLA is inherently uncertain. Even after completing clinical trials and other studies, XIAFLEX for the treatment of Peyronie’s disease may not receive regulatory approval for many reasons, including the following:

· we may not be able to demonstrate to the satisfaction of the FDA that XIAFLEX for the treatment of Peyronie’s disease is safe and effective;

· the FDA may disagree with the design or conduct of our clinical trials or other studies;

· the results of our clinical trials or other studies may not demonstrate that the clinical and other benefits of XIAFLEX for the treatment of Peyronie’s disease outweigh its safety risks;

· the FDA’s interpretation of the data from our clinical trials or other studies may be different than ours;

· the FDA may decide that the data collected from our clinical trials and other studies of XIAFLEX for the treatment of Peyronie’s disease is not sufficient to support the approval of our sBLA;

· the approval policies or regulations of the FDA may significantly change in a manner rendering our clinical and other study data insufficient for approval;

· government funding of the FDA;

· the FDA may determine that one of our investigator sites did not comply with Good Clinical Practices (GCP) regulations and that such site’s data are dis-qualified, thus jeopardizing our approval; and

· an Advisory Committee, if eventually required by FDA, may delay or adversely affect approval or force a rejection of our sBLA.

If the FDA does not approve our application, it may require that we conduct additional clinical or pre-clinical studies and submit that data before it will reconsider our application. Depending on the extent of these or any other studies, approval of any application that we subsequently submit may be delayed by several years, or may require us to expend more resources than we have available. It is also possible that additional studies, if performed and completed, may not be successful or considered sufficient by the FDA for approval or even to make our application approvable. As a result, we cannot predict when or whether regulatory approval will be obtained for our sBLA for XIAFLEX for the treatment of Peyronie’s disease.

Even if XIAFLEX for the treatment of Peyronie’s disease receives regulatory approval from the FDA, any approvals that we obtain could contain significant limitations in the form of narrow indications, warnings, precautions or contra-indications with respect to conditions of use, restricted label claims or the requirement that we implement a risk evaluation and mitigation

strategy. In such an event, our ability to generate revenues could be greatly reduced and our business could be harmed.

We are subject to numerous complex regulatory requirements and failure to comply with these regulations, or the cost of compliance with these regulations, may harm our business.

Our products and product candidates are subject to regulation by numerous governmental authorities in the U.S., Canada, Europe and the rest of the world. These regulations govern or affect the research and development, testing, manufacturing, labeling, distribution, safety, storage, record-keeping, approval, advertising, promotion, sampling, marketing and import and export of our products and our product candidates, as well as safe working conditions and the experimental use of animals. Noncompliance with any applicable regulatory requirements can result in refusal of the government to approve facilities for testing or manufacture of products as well as refusal to approve products for commercialization. Noncompliance with any applicable regulatory requirements also can result in criminal prosecution and fines, recall or seizure of products, total or partial suspension of production, prohibitions or limitations on the commercial sale of products or refusal to allow the entering into of federal and state supply contracts. The FDA and comparable governmental authorities have the authority to withdraw product approvals that have been previously granted. Currently, there is a substantial amount of congressional and administrative review of the FDA and the regulatory approval process for drug candidates in the U.S. As a result, there may be significant changes made to the regulatory approval process in the U.S. In addition, the regulatory requirements relating to the manufacturing, testing, labeling, promotion, marketing and distribution of our products may change in the U.S. or the other jurisdictions in which we may have obtained or be seeking regulatory approval for our products or product candidates. Such changes may increase our costs and adversely affect our operations.

Additionally, failure to comply with, or changes to, the regulatory requirements that are applicable to our products or our other product candidates may result in a variety of consequences, including the following:

· restrictions on our products or manufacturing processes;

· warning letters from a governmental authority;

· withdrawal of a product or a product candidate from the market;

· voluntary or mandatory recall of a product or a product candidate;

· fines against us;

· suspension or withdrawal of regulatory approvals for a product or a product candidate;

· suspension or termination of any of our ongoing clinical trials of a product candidate;

· refusal to permit import or export of our products;

· refusal to approve pending applications or supplements to approved applications that we submit;

· denial of permission to file an application or supplement in a jurisdiction;

· product seizure; and

· injunctions, consent decrees, or the imposition of civil or criminal penalties against us.

Testosterone is listed by the DEA as a Schedule III substance under the Controlled Substances Act of 1970. The DEA classifies substances as Schedule I, II, III, IV or V substances, with Schedule I substances considered to present the highest risk of substance abuse and Schedule V substances the lowest risk. Scheduled substances are subject to DEA regulations relating to manufacturing, storage, distribution, and physician prescription procedures. For example, all regular Schedule III drug prescriptions must be signed by a physician and may not be refilled. Furthermore, the amount of Schedule III substances we can obtain for clinical trials and commercial distribution is limited by the DEA and our quota may not be sufficient to complete clinical trials or meet commercial demand, if any. In addition to federal scheduling, our TRT Products are subject to state-controlled substance regulation and may be placed in more restrictive schedules than those determined by the DEA and the FDA. However, to date, with the exception of the State of New York where TESTOPEL is manufactured, which has given testosterone a Schedule II classification, testosterone has not been placed in a more restrictive schedule by any state.

Entities must be registered annually with the DEA to manufacture, distribute, dispense, import, export and conduct research using controlled substances. State controlled substance laws also require registration for similar activities. In addition, the DEA requires entities handling controlled substances to maintain records, file reports, follow specific labeling and packaging requirements, and provide appropriate security measures to control against diversion of controlled substances. Failure to follow these requirements can lead to significant civil and/or criminal penalties and possibly even lead to a revocation of a DEA registration.

Products containing controlled substances may generate public controversy. As a result, these products may have their marketing rights or regulatory approvals withdrawn. Political pressures and adverse publicity could lead to delays in, and increased expenses for, and limit or restrict the introduction and marketing of our product candidates. For some scheduled substances or any product, the FDA may require us to develop a comprehensive risk management program to reduce the inappropriate use of our products and product candidates, including the manner in which they are marketed and sold, so as to reduce the risk of improper patient selection and diversion or abuse of the product. Developing such a program in consultation with the FDA may be a time-consuming process and could delay approval of any of our product candidates. Such a program or delays of any approval from the FDA could increase our product development costs and may allow our competitors additional time to develop or market competing products. In addition, in many foreign markets, including the countries in the EU, pricing of pharmaceutical products is subject to governmental control. In the U.S., there have been, and we expect that there will continue to be, a number of federal and state proposals to implement similar governmental pricing control. While we cannot predict whether such legislative or regulatory proposals will be adopted, the adoption of such proposals could have a material adverse effect on our business, financial condition and profitability. Failure to obtain pricing approval in a timely manner or approval of pricing which would support an adequate return on investment or generate a sufficient margin to justify the economic risk might delay or prohibit the commercial launch of the product in those countries.

The products and business activities of medical device companies are subject to rigorous regulation by the FDA and other federal, state and international governmental authorities, as well as comparable government agencies in other countries. The regulations govern the development, design, testing, approval, manufacturing, labeling, importing and exporting and sale and marketing of many of our medical devices. Moreover, these regulations are subject to future change. Failure to comply with applicable regulations could lead to manufacturing shutdowns, product shortages, delays in medical device manufacturing, medical device seizures, recalls, operating restrictions, withdrawal or suspension of required licenses, and prohibitions against exporting of products to, or importing products from, countries outside the United States. We could be required to expend significant financial and human resources to remediate failures to comply with applicable regulations and quality assurance guidelines. In addition, civil and criminal penalties, including exclusion under Medicaid or Medicare, could result from regulatory violations. Any one or more of these events could have a material adverse effect on our business, financial condition and results of operations.

These authorities and members of Congress have been increasing their scrutiny over the medical device industry. In recent years, the U.S. Congress, the Department of Justice, the Office of Inspector General of the Department of Health and Human Services, and the Department of Defense have issued subpoenas and other requests for information to, conducted investigations of and commenced civil and criminal litigation against medical device manufacturers, primarily related to financial arrangements with health care providers, regulatory compliance and product promotional practices. We anticipate that these governmental authorities will continue to scrutinize our industry closely, and that additional regulation by government authorities may increase compliance costs, exposure to the risks of civil and criminal litigation, and other potentially adverse effects on our operations. Our defense of these claims and governmental actions, whether ongoing or filed in the future and regardless of the merits of the action or complaint, could divert the attention of our technical and management personnel away from the development and marketing of our products and services for significant periods of time. The costs incurred to defend these actions and claims could have a material adverse effect on our results of operations or financial condition, even if our defense is ultimately successful.

In the United States, before we can market a new medical device, or a new use of, or claim for, or significant modification to, an existing product, we generally must first receive either 510(k) clearance or approval of a premarket approval, or PMA, application from the FDA. In order for us to obtain 510(k) clearance, the FDA must determine that our proposed product is “substantially equivalent” to a device legally on the market, known as a “predicate” device, with respect to intended use, technology and safety and effectiveness. Obtaining PMA approval is more difficult, requiring us to demonstrate the safety and effectiveness of the device based, in part, on data obtained in human clinical trials. Similarly, most major markets for medical devices outside the United States also require clearance, approval or compliance with certain standards before a product can be commercially marketed. The process of obtaining regulatory clearances and approvals to market a medical device, particularly from the FDA and certain foreign governmental authorities, can be costly and time consuming, and clearances and approvals might not be granted for new products on a timely basis, if at all. In addition, once a device has been cleared or approved, a new clearance or approval may be required before the device may be modified or its labeling changed. Furthermore, the FDA or a foreign governmental authority may

make its review and clearance or approval process more rigorous, which could require us to generate additional clinical or other data, and expend more time and effort, in obtaining future medical device clearances or approvals. The regulatory clearance and approval process may result in, among other things, delayed realization of medical device revenues, substantial additional costs or limitations on indicated uses of medical devices, any one of which could have a material adverse effect on our financial condition and results of operations.

Even after a medical device has received marketing approval or clearance, such medical device approval or clearance can be withdrawn or limited due to unforeseen problems with the device or issues relating to its application. Violations of FDA requirements for medical devices could result in FDA enforcement actions, including warning letters, fines, delays in obtaining new regulatory clearances, product seizures or recalls, injunctions, advisories or other field actions, and/or operating restrictions. Medical devices are cleared or approved for one or more specific intended uses. Promoting a device for an off-label use could result in government enforcement action.

Furthermore, our and our third party suppliers’ facilities are subject to periodic inspection by the FDA and other federal, state and foreign government authorities, which require manufacturers of medical devices to adhere to certain regulations, including the FDA’s Quality System Regulation, which requires periodic audits, design controls, quality control testing and documentation procedures, as well as complaint evaluations and investigation. The FDA also requires the reporting of certain adverse events, certain recalls or other field safety corrective actions. Issues identified through such inspections and reports may result in warning letters, manufacturing shutdowns, medical device shortages, medical device seizures or recalls, fines and delays in medical device manufacturing, and may require significant resources to resolve.

As a condition for approval of XIAFLEX for Dupuytren’s, we are required to comply with post-marketing requirements. Failure to comply with these requirements or any future post-marketing requirements, or the cost of compliance with such requirements, may harm our business.

The FDA or, for products outside the U.S. for which we hold the regulatory approvals, international regulatory agencies can establish requirements for approved products with which we must comply. For example, the law allows the FDA to require us as the sponsor of a marketing application to conduct and report the results of certain studies or clinical trials for certain purposes (“post-marketing requirements”) if the FDA makes certain findings required by the statute. Failure to report or conduct the studies is considered a violation and can result in enforcement action. Additionally, the FDA can request that we voluntarily conduct studies or clinical trials to address questions or concerns (“post-marketing commitments”). These studies or clinical trials could be time-consuming and costly and the results could have negative effects on our ability to market the product.

Now that the MA for XIAPEX in the EU and certain Eurasian countries has been transferred to us after the mutual termination of the Pfizer Agreement, we will be required to comply with post-marketing requirements applicable to maintaining the approval of XIAPEX in those territories.

For XIAFLEX for Dupuytren’s and Testim, we are required to implement a REMS. Failure to comply, or the cost of compliance with such REMS or any future REMS, may harm our business.

The FDA is authorized to require us as the sponsor of an approved or unapproved marketing application to submit a proposed REMS if the FDA determines that a REMS is necessary to ensure that the benefits of a drug outweigh the risks of the drug. Failure to comply with the requirements of the approved REMS can render the drug misbranded. A violation of a REMS requirement is subject to civil penalties. Complying with the requirements of a REMS can be costly and time-consuming and adversely affect our operations.

As a condition of approval for XIAFLEX for Dupuytren’s, the FDA required a REMS. The goal of the REMS is to inform and train healthcare providers about the risks of tendon rupture, serious adverse reactions affecting the injected extremity, and the potential risk of serious hypersensitivity reactions (including the potential for anaphylaxis) associated with XIAFLEX. The REMS consists of a medication guide, a communication plan, and a timetable for submission of assessments of the REMS. The communication plan includes a Dear Healthcare Provider Letter and educational materials (i.e., training guide and procedure training video).

On May 7, 2009, the FDA announced that it was requiring the manufacturers of two prescription topical testosterone gels, Solvay S.A. (since acquired by Abbott, which is now AbbVie) and Auxilium, to make changes to the prescribing information and develop REMS for the products. The FDA stated that it was requiring this action after it became aware, through spontaneous post-marketing adverse event reports and peer-reviewed biomedical literature, of cases of secondary exposure of children and female partners to testosterone due to drug transfer from adult males using testosterone gel drug products (known as transference). The FDA considered this information to be “new safety information.” We believe that all topical testosterone gels have a potential for transference. Testim’s prescribing information has described the risk and procedures for avoidance of transference since the product was launched in 2003. The changes to the prescribing information for Testim include a “boxed warning”, which is used to highlight warning information that is especially important to the prescriber. The goal of the REMS is to inform patients about the serious risk of transference or secondary exposure associated with the use of Testim and Abbvie’s AndroGel. The REMS includes assessments and a Medication Guide to inform patients. The revised prescribing information and REMS for Testim was approved in September 2009.

If clinical trials for our product candidates are delayed, we would be unable to commercialize our product candidates on a timely basis, or at all, which could materially harm our business.

Clinical trials that we may conduct, or that may be conducted by our partners, may not begin on time or may need to be restructured or temporarily suspended after they have begun. Clinical trials can be delayed or may need to be restructured for a variety of reasons, including delays or restructuring related to:

· changes to the regulatory approval process for product candidates in those jurisdictions, including the U.S., in which we may be seeking approval for our product candidates;

· obtaining an IND, or other regulatory approval to commence a clinical trial;

· timing of responses required from regulatory authorities;

· negotiating acceptable clinical trial agreement terms with prospective investigators or trial sites;

· obtaining institutional review board, or equivalent, approval to conduct a clinical trial at a prospective site;

· recruiting subjects to participate in a clinical trial;

· competition in recruiting clinical investigators;

· shortage or lack of availability of clinical trial supplies from external and internal sources;

· the need to repeat clinical trials as a result of inconclusive results or poorly executed testing;

· failure to validate a patient-reported outcome questionnaire;

· the placement of a clinical hold on a study;

· the failure of third parties conducting and overseeing the operations of our clinical trials to perform their contractual or regulatory obligations in a timely fashion;

· exposure of clinical trial subjects to unexpected and unacceptable health risks or noncompliance with regulatory requirements, which may result in suspension of the trial; and

· manufacturing and/or distribution issues associated with clinical supplies.

We have four projects currently in clinical development, specifically XIAFLEX for the treatment of Peyronie’s, Frozen Shoulder syndrome, cellulite and a high concentration testosterone gel product. Completion of clinical trials for each product candidate will be required before commercialization. If we experience delays in, or termination of, clinical trials, or fail to enroll patients in clinical trials in a timely manner, or if the cost or timing of the regulatory approval process increases, our financial results and the commercial prospects for our product candidates will be adversely impacted. In addition, our product development costs would increase and our ability to generate additional revenue from new products could be impaired.

Risks Related to Intellectual Property

We have only limited patent protection for our products and our product candidates, and we may not be able to obtain, maintain or protect proprietary rights necessary for the development and commercialization of our products or our product candidates.

Our business and competitive positions are in part dependent upon our ability to obtain and protect our proprietary position for our products and our product candidates in the U.S., Canada, Europe and elsewhere throughout the world. We attempt to protect our intellectual property position by filing, or obtaining licenses to, patents and patent applications related to our proprietary technology, inventions and improvements that are important to the development of our business.

Our and our licensors’ patents and patent applications may not protect our technologies and products because, among other things:

· there is no guarantee that any of our or our licensors’ pending patent applications will result in issued patents;

· we may develop additional proprietary technologies that are not patentable;

· there is no guarantee that any patents issued to us, our collaborators or our licensors will provide us with any competitive advantage or cover our product candidates;

· there is no guarantee that any patents issued to us or our collaborators or our licensors will not be challenged, interfered with, circumvented or invalidated by third parties; and

· there is no guarantee that any patents previously issued to others or issued in the future will not have an adverse effect on our ability to do business.

If we fail to obtain adequate patent protection for our products, our ability to compete could be impaired.

We may not control the patent prosecution, maintenance or enforcement of our in-licensed technology. Consequently, such licensed patents could be held invalid or unenforceable or could have claims construed in a manner adverse to our interests in litigation, which we would not control or to which we would not be a party. If any of the intellectual property rights of our licensors is found to be invalid, this could have a material adverse impact on our operations.

Testosterone, the active ingredient in our TRT Products, and alprostadil, the active ingredient in Edex, are off-patent and are included in competing products. In the U.S., the ‘968 Patent covers a method for maintaining blood serum testosterone levels for treating a hypogonadal male using Testim and is listed in the Orange Book. The ‘968 Patent expires in January 2025. Nine additional U.S. patents issued between 2009 and 2012 covering the composition of Testim and methods of its use and have been listed in the Orange Book. They expire in April 2023. Our licensor, FCB, also has filed continuation applications that are currently pending.

We are currently party to patent infringement litigations against each of Upsher-Smith and Watson relating to Upsher-Smith’s and Watson’s respective intentions to market a different version of Testim prior to the expiration of the patents listed in the Orange Book covering Testim. Also, we have sued Upsher-Smith with respect to its 505(b)(2) NDA seeking approval from the FDA to market a competing testosterone gel product listing Testim as the reference listed drug prior to expiration of the same patents.

An adverse outcome in any of the Upsher-Smith Litigations, the Watson Litigation, or any other such legal action, could result in one or more generic or different versions of Testim being launched in the U.S. before the expiration of the last to expire of the ten Orange Book patents relating to Testim in January 2025. The introduction of a generic version to Testim or the potential 2015 introduction of a generic or different version to Abbvie’s AndroGel franchise

could have a material adverse effect on our ability to successfully execute our business strategy to maximize the value of Testim as we continue to seek to expand the market of the commercial launch of XIAFLEX for Dupuytren’s.

The standards that the USPTO and its foreign counterparts use to grant patents are not always applied predictably or uniformly and can change. Limitations on patent protection in some countries outside the U.S. and the differences in what constitutes patentable subject matter in these countries may limit the protection we seek outside of the U.S. In the U.S., issued patent claims may be broadened, narrowed, or even cancelled as a result of post-issuance procedures instituted by us or third parties, including reissue, re-examination, and the new supplemental examination procedure enacted as part of the Leahy-Smith America Invents Act. In addition, laws of foreign countries may not protect our intellectual property to the same extent as would laws of the U.S. Also, some countries will not grant patents on patent applications that are filed after the public sale or disclosure of the material claimed in the patent application. Failure to obtain adequate patent protection for our proprietary product candidates and technology would impair our ability to be commercially competitive in these markets. Accordingly, we do not know the degree of future protection for our proprietary rights or the breadth of claims allowed in any patents issued to us or others.

We also rely on trade secrets, know-how and technology, which are not protected by patents, to maintain our competitive position. To maintain the confidentiality of trade secrets and proprietary information, we generally seek to enter into confidentiality agreements with our employees, consultants and collaborators upon the commencement of a relationship with us. However, we may not obtain these agreements in all circumstances. Nor can we guarantee that these agreements will provide meaningful protection, that these agreements will not be breached, or that we will have an adequate remedy for any such breach. In addition, adequate remedies may not exist in the event of unauthorized use or disclosure of this information. Others may have developed, or may develop in the future, substantially similar or superior know-how and technology. In addition, our research collaborators and scientific advisors may have contractual rights to publish our data and other proprietary information, subject to our prior review. Publications by our research collaborators and scientific advisors containing such information, either with our permission or in contravention of the terms of their agreements with us, may impair our ability to obtain patent protection or protect our proprietary information. The loss or exposure of our trade secrets, know-how and other proprietary information, as well as independent development of similar or superior know-how, could harm our operating results, financial condition and future growth prospects. Many of our employees and consultants were, and many of our consultants may currently be, parties to confidentiality agreements with other companies. Although our confidentiality agreements with these employees and consultants require that they do not bring to us, or use without proper authorization, any third party’s proprietary technology, if they violate their agreements, we could suffer claims or liabilities.

If we breach any of the agreements under which we license development or commercialization rights to products or technology from others, we could lose license rights that are critical to our business.

We are a party to a number of license and other agreements by which we have rights to use the intellectual property of third parties that are necessary for us to operate our business. In

particular, we have obtained the exclusive right to develop and commercialize Testim pursuant to a license agreement with FCB. FCB may unilaterally terminate the agreement if we fail to make payments under this agreement and this failure continues for a period of 30 days following written notice to us by FCB. If the agreement is properly terminated by FCB, we may not be able to manufacture or sell Testim.

We have also obtained exclusive worldwide rights from BioSpecifics to develop, market and sell products, other than dermal formulations labeled for topical administration, that contain BioSpecifics’s enzyme, which we refer to as XIAFLEX, for the treatment of Dupuytren’s, and, potentially, for the treatment of Peyronie’s, Frozen Shoulder syndrome and cellulite. Either party may terminate this agreement in the event of bankruptcy or insolvency by the other party. Additionally, either party may terminate this agreement if the other party is in material breach of its obligations under the agreement which continues for a period of 90 days following receipt of written notice of such material breach. We may terminate this agreement in its entirety, or on a country-by-country basis, on an indication-by-indication basis, or on a product-by-product basis, at any time upon 90 days prior written notice to BioSpecifics. If this agreement is properly terminated by BioSpecifics, we may not be able to execute our strategy to commercialize XIAFLEX for Dupuytren’s or to develop and potentially commercialize XIAFLEX for the treatment of Peyronie’s, Frozen Shoulder syndrome, cellulite or future product candidates utilizing BioSpecifics’ enzyme. If this agreement is properly terminated by us, we will retain a non-exclusive license for these rights.

We expect to enter into additional licenses and other similar agreements in the future. These licenses and agreements may impose various development, commercialization, funding, royalty, diligence or other obligations on us. If we breach any of these obligations, the licensor may have the right to terminate the license or render the license non-exclusive, which could make it impossible for us to develop, manufacture or sell the products covered by the license.

Disputes may arise with respect to our licensing and other agreements regarding manufacturing, development and commercialization of any products relating to our in-licensed intellectual property. These disputes could lead to delays in or termination of the development, manufacture and commercialization of our products or our product candidates or to litigation and could have a material adverse effect on our business.

If our products or our future products infringe the intellectual property of our competitors or other third parties, we may be required to pay license fees or cease these activities and pay damages, which could significantly harm our business.

Even though our products and our product candidates may be covered by patents, they may nonetheless infringe the patents or violate the proprietary rights of third parties. In these cases, we may be required to obtain licenses to patents or proprietary rights of others in order to continue to sell and use our products and develop and commercialize our product candidates. We may not, however, be able to obtain any licenses required under any patents or proprietary rights of third parties on acceptable terms, or at all. Even if we were able to obtain rights to a third party’s intellectual property, these rights may be non-exclusive, thereby giving our competitors potential access to the same intellectual property.

Third parties may assert patent or other intellectual property infringement claims against us, or our licensors or collaborators, with respect to technologies used in our products or our

potential product candidates. For example, we are aware of competing intellectual property relating to the TRT gel market. While we currently believe that we have freedom to operate in the TRT gel market, others may challenge our position in the future. Any claims that might be brought against us relating to infringement of patents may cause us to incur significant expenses and, if successfully asserted against us, may cause us to pay substantial damages. We may not have sufficient resources to effectively litigate these claims. Even if we were to prevail, any litigation could be costly and time-consuming and could divert the attention of our management and key personnel from business operations. In addition, any patent claims brought against our licensors or collaborators could affect their ability to carry out their obligations to us.

Furthermore, if a patent infringement suit were brought against us, or our licensors or collaborators, the development, manufacture or potential sale of product candidates claimed to infringe a third party’s intellectual property may have to cease or be delayed. Ultimately, we may be unable to commercialize one or more of our product candidates, our patent claims may be substantially limited or we may have to cease some portion of our operations as a result of patent infringement claims, which could severely harm our business.

We may have to engage in costly litigation to enforce or protect our proprietary technology or to defend challenges to our proprietary technology by our competitors or collaborators, which may harm our business, results of operations, financial condition and cash flow.

The medical device and pharmaceutical fields are characterized by a large number of patent filings involving complex legal and factual questions, and, therefore, we cannot predict with certainty whether our licensed patents will be enforceable. Competitors or collaborators may have filed applications for, or have been issued, patents and may obtain additional patents and proprietary rights related to products or processes that compete with or are similar to ours. We may not be aware of all of the patents potentially adverse to our interests that may have been issued to others. Litigation may be necessary to protect our proprietary rights, and we cannot be certain that we will have the required resources to pursue litigation or otherwise to protect our proprietary rights.

An adverse determination in any intellectual property litigation or interference or other post-grant review proceedings could prohibit us from selling a product or service, subject us to significant immediate payments to third parties and require us to seek licenses from third parties. The costs associated with these license arrangements may be substantial and could include substantial up-front payments and ongoing royalties. Furthermore, the necessary licenses may not be available to us on satisfactory terms, if at all. Adverse determinations in a judicial or administrative proceeding or failure to obtain necessary licenses could prevent us from manufacturing and selling a product or service.

Competitors or collaborators may infringe our patents or successfully avoid them through design innovation. Some companies in the medical device industry have employed intellectual property litigation in an attempt to gain a competitive advantage. To prevent infringement or unauthorized use, we may need to file infringement lawsuits, which are expensive and time-consuming. In any such proceeding, a court may decide that a patent of ours or one that we have

licensed is not valid or is unenforceable, may narrowly interpret our patent claims or may refuse to stop the other party from using the technology at issue on the grounds that our patents do not cover its technology. In particular, if a competitor were to file a paragraph IV certification under the Hatch-Waxman Act in connection with that competitor’s submission to the FDA of an ANDA or a 505(b)(2) NDA for approval of a generic or different version of any of our products for which we believed we held a valid patent (e.g. Testim, XIAFLEX), then we could initiate a lawsuit against such competitor claiming patent infringement and defending the relevant patent’s validity and enforceability. Depending on the facts and circumstances, the FDA may stay the approval of the ANDA or 505(b)(2) NDA for a generic or different version of any of our products for 30 months so long as we initiate litigation against the filer of the ANDA or 505(b)(2) NDA within 45 days of receiving the paragraph IV certification. If, prior to the expiration of the 30-month stay, a court found that all of our patents were invalid or not infringed, then, notwithstanding the 30-month stay, the FDA would be permitted to approve the competitor’s ANDA or 505(b)(2) NDA resulting in a competitive generic product. An ANDA or 505(b)(2) filer seeking approval of a generic of any of our products for which there is no patent coverage (e.g., TESTOPEL, Edex) could reach the market with such a product upon approval by the FDA.

For example, we are currently engaged in litigations in Federal court in Delaware with Upsher-Smith regarding Upsher-Smith’s attempts to bring a generic or different testosterone gel product to market via an ANDA or NDA using Testim as its reference drug. We are also engaged in litigation in Federal court in New Jersey with Watson regarding Watson’s attempts to bring a generic testosterone gel product to market via an ANDA. An adverse outcome in any of these litigations or any other such legal action could result in one or more generic versions of Testim or any other of our products being launched in the U.S. before the expiration of patents, if any. The introduction of a generic or different version of Testim or any of our other products could have a material adverse effect on our ability to successfully execute our business strategy to maximize the value of Testim as we continue to develop our product pipeline and therefore could have a material negative impact on our financial condition and results of operations.

Risks Related to Healthcare Reform

Legislative or regulatory reform of the healthcare system may affect our ability to sell our products profitably, may increase competition and may increase governmental oversight and compliance costs.

In both the U.S. and certain foreign jurisdictions, there have been a number of legislative and regulatory proposals to change the healthcare systems in ways that could impact our ability to sell our products profitably. In March 2010, PPACA and the associated reconciliation bill became law (collectively, the “Healthcare Reform Law”), and it includes a number of healthcare reform provisions and requires most U.S. citizens to have health insurance. Effective January 1, 2010, the Healthcare Reform Law increased the minimum Medicaid drug rebates for pharmaceutical companies, expanded the 340B drug discount program, and made changes to affect the Medicare Part D coverage gap, or “donut hole.” The Healthcare Reform Law also revised the definition of “average manufacturer price” for reporting purposes (effective October 1, 2010), which could increase the amount of our Medicaid drug rebates to states. The Healthcare Reform Law also imposed annual fees on companies that manufacture or import

branded prescription drug and biological products, which began in 2011. Substantial new provisions affecting compliance were also added, which may require us to modify our business practices with healthcare practitioners.

In addition, the Healthcare Reform Law included provisions covering biological product exclusivity periods and a specific reimbursement methodology for biosimilars. As a new biological product, we expect that XIAFLEX will be eligible for 12 years of marketing exclusivity from the date of its approval by the FDA (although this is subject to change as the regulations are enacted). The Healthcare Reform Law also established an abbreviated licensure pathway for products that are biosimilar to or interchangeable with FDA-approved biological products, such as XIAFLEX. As a result, we could face competition from other pharmaceutical companies that develop biosimilar versions of our biological product XIAFLEX that do not infringe our patents or other proprietary rights.

The full effects of the Healthcare Reform Law cannot be known until these provisions are fully implemented and CMS and other federal and state agencies issue applicable regulations or guidance. Furthermore, legislation repealing, replacing or modifying all or part of the Healthcare Reform Law may be enacted or courts may issue rulings suspending, interpreting or otherwise affecting all or part of the Healthcare Reform Law, and these changes could significantly alter any advantages or disadvantages to the Company currently stemming from the Healthcare Reform Law. Specifically, any repeal or modification of the exclusivity for biological products could have an adverse effect on our business. Moreover, in the coming years, additional changes could be made to governmental healthcare programs that could significantly impact the success of our products.

The cost of pharmaceuticals and medical devices continues to generate substantial governmental interest. We expect to experience pricing pressures in connection with the sale of our products due to the trend toward managed healthcare, the increasing influence of managed care organizations and additional legislative proposals. Our results of operations could be adversely affected by current and future healthcare reforms.

The PPACA was enacted in March 2010. Under the PPACA, beginning in 2013, medical device manufacturers will pay a 2.3% excise tax on U.S. sales of certain medical devices. Currently, Actient’s medical device, Osbon ErecAid, will likely be considered exempt from the medical device excise tax under the “retail exemption” for devices generally purchased by the public at retail for individual use by non-medical professional customers and in a home setting. If the retail exemption is eliminated or modified, Actient’s medical device may be subject the excise tax.

Lastly, the Healthcare Reform Law provisions known as the “Physicians Payments Sunshine Act” require reporting to the federal government of all payments in excess of $10 or that aggregate to $100 annually that we make to physicians, including honoraria, consulting fees, payment for research, gifts, speakers’ fees, entertainment, travel, education and royalties. Required data submission includes a recipient’s name, address, medical specialty, amount received, date of payment, type of payment (cash, stock, items, or services), and if the payment is related to a specific drug or medical product. Several states currently have similar laws and

more states may enact similar legislation. Reporting and potential public disclosure of these expenses may make it more difficult to recruit physicians for assistance with activities that would be helpful or necessary to our business. Tracking and reporting the required expenses may result in considerable expense.

Risks Related to Compliance

Our corporate compliance program cannot guarantee that we are in compliance with all potentially applicable regulations.

We are a relatively small company and we rely heavily on third parties to conduct many important functions. As a biopharmaceutical and now medical device company, we are subject to a large body of legal and regulatory requirements. We are also subject to a new regulatory regime with respect to our medical device products and as a supplier of durable medical equipment, prosthetics, orthotics and supplies, with which we do not have experience, as a consequence of our acquisition of Actient. In addition, as a publicly traded company we are subject to significant regulations, some of which have either only recently been adopted or are currently proposals subject to change. We cannot give assurances that we are or will be in compliance with all potentially applicable laws and regulations. We cannot verify that the past procedures, programs, and polices of Actient or its subsidiaries were compliant with all potentially applicable laws and regulations. Any such past compliance failures could increase the costs of the Actient acquisition and adversely affect our operations and revenues. Failure to comply with all potentially applicable federal, state, and foreign laws and regulations could lead to the imposition of fines, result in our exclusion from participation in state and federal healthcare programs, cause the value of our common stock to decline, impede our ability to raise capital or lead to the de-listing of our stock.

If we fail to comply with applicable requirements of the Health Insurance Portability Accountability Act of 1996, as amended (“HIPAA”) and the HIPAA regulations or state health information privacy or identity theft laws with respect to its DME supplier business, we could be subject to significant monetary penalties and loss of reputation, which could have a material adverse effect on us.

The Administrative Simplification provisions of HIPAA, directed the Secretary of the U.S. Department of Health and Human Services (“HHS”) to promulgate regulations establishing protections for the privacy and security of individually identifiable health information, known as “protected health information.” The HIPAA privacy regulations establish comprehensive requirements relating to the use and disclosure of protected health information. The HIPAA security regulations establish minimum standards for the protection of protected health information that is stored or transmitted electronically. The breach notification regulations require that certain notifications be made to individuals, to HHS and potentially to the media in the event of breaches of the privacy of protected health information. Violations of the HIPAA regulations are punishable by civil and criminal penalties.

The Health Information Technology for Economic and Clinical Health Act (“HITECH”), part of the American Recovery and Economic Reinvestment Act of 2009, contained significant changes to HIPAA, including major changes to the enforcement provisions. Among other things, HITECH significantly increased the amount of civil monetary penalties that can be imposed for violations of HIPAA. HITECH also authorized state attorneys general to bring civil enforcement actions under HIPAA. These enhanced penalties and enforcement provisions went into effect immediately upon enactment of HITECH. A number of HITECH’s changes to HIPAA required the issuance of implementing regulations by HHS.

The breach notification regulations were promulgated as a result of HITECH. In addition, on January 25, 2013, the HHS Office for Civil Rights (“OCR”) published a comprehensive set of final regulations designed to implement a number of the HITECH changes and to make other changes to the HIPAA regulations. The new regulations require compliance by September 23, 2013.

The changes to HIPAA enacted as part of HITECH reflect a Congressional intent that HIPAA’s privacy and security provisions be more strictly enforced. It is likely that these changes will stimulate increased enforcement activity and enhance the potential that health care providers will be subject to financial penalties for violations of HIPAA.

In addition to the federal HIPAA regulations, most states also have laws that protect the confidentiality of health information. Also, in response to concerns about identity theft, many states have adopted so-called “security breach” notification laws that may impose requirements regarding the safeguarding of personal information, such as social security numbers and bank and credit card account numbers, and that impose an obligation to notify persons when their personal information has or may have been accessed by an unauthorized person. Some state security breach notification laws may also impose physical and electronic security requirements. Violation of state security breach notification laws can trigger significant monetary penalties. The Company, through its acquisition of Actient’s DME supplier business, is subject to HIPAA and the HIPAA regulations and may be subject to the foregoing fines and penalties, which may be significant.

We could be negatively impacted by future interpretation or implementation of federal and state fraud and abuse laws, including anti-kickback laws, false claims laws and federal and state anti-referral laws.

We are subject to various federal and state laws pertaining to health care fraud and abuse, including anti-kickback laws, false claims laws and physician self-referral laws. Violations of these laws are punishable by criminal and/or civil sanctions, including, in some instances, imprisonment and exclusion from participation in federal and state health care programs, including Medicare, Medicaid, Department of Defense and Veterans’ health programs. To date, we have not been challenged by a governmental authority under any of these laws.

However, because of the far-reaching nature of these laws, we may be required to alter one or more of our practices to be in compliance with these laws. Health care fraud and abuse regulations are complex, and even minor, inadvertent irregularities can potentially give rise to claims that the law has been violated. Any violations of these laws could result in a material adverse effect on our business, financial condition and results of operations. If there is a change in law, regulation or administrative or judicial interpretations, we may have to change our business practices or our existing business practices could be challenged as unlawful, which could have a material adverse effect on our business, financial condition and results of operations.

We could become subject to false claims litigation under federal or state statutes, which can lead to civil monetary penalties, criminal fines and imprisonment, and/or exclusion from participation in federal health care programs. These false claims statutes include the federal False Claims Act, which allows any person and/or the government to bring suit alleging the false or fraudulent submission of claims for payment under federal programs or other violations of the statute and to share in any amounts paid by the entity to the government in fines or settlement. Such suits, known as qui tam actions, have increased significantly in recent years and have

increased the risk that companies like us may have to defend a false claim action. We could also become subject to similar false claims litigation under state statutes. If we must defend any such action and/or if we are unsuccessful in defending any such action, such action may have a material adverse effect on our business, financial condition and results of operations.

We are required to report pricing information to the Federal and state governments as part of our participation in programs such as the Medicaid Drug Rebate Program, Medicare Part B, and programs run by the Public Health Service, and the Department of Defense. If these reports are not filed in a timely and accurate fashion, we could be subjected to fines and liability under the False Claims Act.

We may also become subject to liability arising from Actient’s role as a durable medical equipment (“DME”) supplier. DME suppliers are subject to the Stark Law ( i.e. , the physician self-referral law), the Anti-Kickback Statute, the False Claims Act, and other federal healthcare program fraud and abuse laws, other federal healthcare program laws that regulate DME suppliers specifically, and federal and state privacy laws. Violations of these laws can result in significant penalties. We also may be liable to third-party payors, including Medicare, Medicaid and other federal healthcare programs, for repayment of overpayments of claims for DME products that are asserted by such payors or their contractors, or we may incur expenses appealing any such overpayment determinations.

Our medical device business faces periodic and routine reviews, audits and investigations under our contracts with Federal and state government agencies and private payors, and these audits could have adverse findings that may negatively impact our business.

As a result of our participation in the Medicare and Medicaid programs, our medical device business is subject to various governmental reviews, audits and investigations to verify our compliance with these programs and applicable laws and regulations. Our medical device business is also subject to audits under various government programs, including the Recovery Audit Contractor (“RAC”) and Zone Program Integrity Contractor (“ZPIC”) programs, in which third party firms engaged by CMS conduct extensive reviews of claims data and medical and other records to identify potential improper payments under the Medicare program for our devices. Private pay sources also reserve the right to conduct audits. If billing errors are identified in the sample of reviewed claims, the billing error can be extrapolated to all claims filed which could result in a larger overpayment than originally identified in the sample of reviewed claims. Our costs to respond to and defend reviews, audits and investigations may be significant. Moreover, an adverse review, audit or investigation could result in:

· required refunding or retroactive adjustment of amounts we have been paid for our medical devices pursuant to the Federal or state programs or from private payors;

· state or Federal agencies imposing fines, penalties and other sanctions on us;

· loss of our right to participate in the Medicare program, state programs, or one or more private payor networks; or

· damage to our business and reputation in various markets.

These results could have a material adverse effect on our business and consolidated financial condition, results of operations and cash flows.

We face risks associated with having foreign operations, including compliance with applicable foreign laws and regulations.

We are faced with increasingly complex standards for complying with foreign laws and regulations that may differ substantially from country to country and may conflict with corresponding U.S. laws and regulations. We may not be able to operate in or maintain compliance with foreign laws and regulations. In addition, there may be unexpected changes in foreign regulatory requirements, including quality standards and other certification requirements, data privacy safeguards, financial reporting controls and procedures, and reimbursement procedures of which we may not become aware. Any changes to such regulatory requirements could require us to alter one or more of our practices to maintain compliance, which could significantly increase our costs and have a material adverse effect on our business and our ability to manufacture, market and sell our products. If we do not comply with foreign laws and regulations we could be faced with significant penalties that could impose considerable costs on us or prevent us from operating in those jurisdictions, either of which could have an adverse effect on our business operations, financial condition and results of operations.

We may be exposed to liability claims associated with the use of hazardous materials and chemicals.

Our research and development activities and our commercial products, Testim and TESTOPEL, involve the use of testosterone and large amounts of alcohol which are classified as hazardous materials and chemicals. In addition, we manufacture TESTOPEL ourselves at our Rye, New York facility due to our acquisition of Actient. XIAFLEX is a biologic product. Biologic products may present a manufacturing health hazard due to risk of infection with the bacterial cell line used to produce the product or with potential bacteriophage contamination with the fermentation. Although we believe that our safety procedures for using, storing, handling, manufacturing and disposing of these materials comply with federal, state and local laws and regulations, we cannot completely eliminate the risk of accidental injury or contamination from these materials. In the event of such an accident, we could be held liable for any resulting damages and any liability could materially adversely affect our business, financial condition and results of operations. In addition, the federal, state and local laws and regulations governing the use, manufacture, storage, handling and disposal of hazardous or radioactive materials and waste products may require us to incur substantial compliance costs that could materially adversely affect our business and financial condition. To our knowledge, we have not been the subject of any investigation by any agency or authority for failure to comply with any rules or regulations applicable to hazardous materials or chemicals. We do not maintain specific insurance for the handling of biological, hazardous and radioactive materials. We have contracts with third-party providers for the storage and disposal of hazardous waste and believe that any claims against us in these areas would be the responsibility of these third parties. However, we may be held responsible for these claims despite the fact that we have contracted with third parties for the storage and disposal of hazardous waste. If we are exposed to these types of claims, we could be held responsible for liabilities that exceed our financial resources, which could severely affect our operations.

Risks Related to Our Financial Results, Our Need for Additional Financing and Our Stock Price

Our results of operations and earnings may not meet guidance or expectations .

We provide public guidance on our expected results of operations for future periods. This guidance is comprised of forward-looking statements subject to risks and uncertainties, including the risks and uncertainties described in our Annual Report on Form 10-K for the year ended December 31, 2012 filed with the Securities and Exchange Commission on January 23, 2013 as updated by this Current Report on Form 8-K and in our other public filings and public statements, and is based necessarily on assumptions we make at the time we provide such guidance. Our actual results may not always be consistent with our guidance, especially in light of our acquisition of Actient, with whose products we have limited experience, rendering it difficult to provide guidance. If, in the future, our results of operations for a particular period do not meet our guidance or the expectations of investment analysts or if we reduce our guidance for future periods, the market price of our common stock could decline significantly.

Outstanding options and warrants could result in substantial dilution.

As of March 31, 2013, options to purchase 7,378,730 shares of our common stock were outstanding. In addition, as of December 31, 2012, a total of 4,474,750 stock options are available for grant under our 2004 Equity Compensation Plan amended and restated as of June 21, 2012. A total of 812,672 of the outstanding options were “in the money” and exercisable as of December 31, 2012. “In the money” means that the current market price of the common stock is above the exercise price of the shares subject to the option. In addition, we have 481,752 restricted stock units outstanding as of March 31, 2013. The issuance of common stock upon the exercise of these options or the vesting of any restricted stock units could adversely affect the market price of the common stock or result in substantial dilution to our existing stockholders.

As part of the consideration delivered to Actient’s shareholders, we issued warrants to purchase an aggregate of 1.25 million shares of our common stock on April 26, 2013, at an exercise price of $17.80 per share. In connection with our issuance of our 2018 Convertible Notes, we issued warrants to purchase 14.48 million shares of our common stock at an exercise price of $27.36 per share. To the extent the warrants are exercised, additional shares of our common stock will be issued that will be eligible for resale in the public market, which will result in dilution to our security holders. The issuance of additional securities could also have an adverse effect on the market price of our common stock.

Risks Relating to Our Convertible Senior Notes and Related Hedge Transactions, and Term Loan

We incurred significant indebtedness through the sale of our 1.5% convertible senior notes due 2018 and under the Credit Agreement, and we may incur additional indebtedness in the future. The indebtedness created by the sale of the notes, the Term Loan and any future indebtedness we incur exposes us to risks that could adversely affect our business, results of operations and financial condition.

We incurred $350.0 million of senior indebtedness in January 2013 when we sold $350.0 million aggregate principal amount of 1.5% convertible senior notes due 2018, or the 2018 Convertible Notes. We incurred $225 million in senior secured indebtedness

in connection with the acquisition of Actient in April 2013, which, pursuant to the Credit Agreement, will amortize at a rate of 1% per annum and has a final maturity date of April 15, 2018. Certain terms of the Credit Agreement governing the Term Loan may change if it is determined that such changes are necessary for MSSF to achieve a successful syndication of the Term Loan. We may also incur additional long-term indebtedness or obtain additional working capital lines of credit to meet future financing needs. Our indebtedness could have significant negative consequences for our business, results of operations and financial condition, including:

· increasing our vulnerability to adverse economic and industry conditions;

· limiting our ability to obtain additional financing;

· requiring the dedication of a substantial portion of our cash flow from operations to service our indebtedness, thereby reducing the amount of our cash flow available for other purposes;

· limiting our flexibility in planning for, or reacting to, changes in our business; and

· placing us at a possible competitive disadvantage with less leveraged competitors and competitors that may have better access to capital resources.

We cannot assure stockholders that we will continue to maintain sufficient cash reserves or that our business will continue to generate cash flow from operations at levels sufficient to permit us to pay principal, premium, if any, and interest on our indebtedness, or that our cash needs will not increase. If we are unable to generate sufficient cash flow or otherwise obtain funds necessary to make required payments, or if we fail to comply with the various requirements of the 2018 Convertible Notes, the Credit Agreement or any indebtedness which we may incur in the future, we would be in default, which may permit the holders of the 2018 Convertible Notes, the lenders under the Credit Agreement and holders of such other future indebtedness to accelerate the maturity of the 2018 Convertible Notes, the Term Loan and such other indebtedness and could cause defaults thereunder. Any acceleration of the 2018 Convertible Notes, the Term Loan or any indebtedness which we may incur in the future could have a material adverse effect on our business, results of operations and financial condition, including without limitation, our liquidity and net working capital.

In the event the conditional conversion features of the 2018 Convertible Notes are triggered, holders of the 2018 Convertible Notes will be entitled to convert the 2018 Convertible Notes at any time during specified periods at their option. If one or more holders elect to convert their 2018 Convertible Notes, unless we elect to satisfy our conversion obligation by delivering solely shares of our common stock, we would be required to make cash payments to satisfy all or a portion of our conversion obligation based on the applicable conversion rate. If we are unable to satisfy any portion of such obligation, we would be in default. In addition, the expenditure of cash to satisfy such obligation could adversely affect our liquidity. In addition, even if holders do not elect to convert their 2018 Convertible Notes, we could be required under applicable accounting rules to reclassify all or a portion of the outstanding principal of the 2018 Convertible

Notes as a current rather than long-term liability, which could result in a material reduction of our net working capital.

Restrictive covenants in the Credit Agreement may adversely affect us.

We must comply with operating and financing restrictions set forth in the Credit Agreement pursuant to which we secured the Term Loan. We may also have similar restrictions with any future debt. These restrictions affect, and in many respects limit or prevent us from:

· incurring additional indebtedness;

· incurring liens;

· merging or consolidating with or into other companies or selling substantially all our assets;

· selling assets;

· making restricted payments, including dividends or other distributions;

· making investments, including joint venture and partnership investments;

· repurchasing our debt and our capital stock; and

· entering into transactions with affiliates.

Under the Credit Agreement, we are required to make regularly scheduled quarterly payments and payments from excess positive cash flow, if any, and, other mandatory payments upon the occurrence of certain events, including the issuance of debt, the sale of assets and the receipt of condemnation or casualty proceeds, in each case subject to certain limitations and conditions set forth in the Credit Agreement.

The foregoing restrictions could limit our ability to plan for or react to market conditions or meet extraordinary capital needs or otherwise could restrict our activities. These restrictions could also adversely affect our ability to finance our future operations, capital needs or engage in other business activities that would be in our interest.

Item 9.01 Financial Statements and Exhibits

(a) Financial Statements of Business Acquired.

Financial statements of the business acquired will be provided by amendment to this report not later than 71 days after the due date of this Current Report on Form 8-K.

(b) Pro Forma Financial Information.

Pro-forma financial information with respect to the business acquired will be provided by amendment to this report not later than 71 days after the due date of this Current Report on Form 8-K.

(c) Exhibits.

The following exhibits are filed herewith or incorporated by reference herein:

Exhibit No.		Description
2.1		Agreement and Plan of Merger dated April 26, 2013, by and among Actient Holdings LLC, a Delaware limited liability company, Auxilium Pharmaceuticals, Inc., a Delaware corporation, Opal Acquisition, LLC, a Delaware limited liability company and wholly owned subsidiary of Auxilium Pharmaceuticals, Inc., GTCR Fund IX/B, L.P., a Delaware limited partnership, and GTCR Fund IX/A, L.P., a Delaware limited partnership, solely in its capacity as representative for GTCR Fund IX/B, L.P., and the Actient Holdings, LLC’s Unitholders and Optionholders
4.1		Warrant to purchase 1,250,000 shares of common stock at a price per share of $17.80 issued by Auxilium Pharmaceuticals, Inc. to GTCR Fund X/A, L.P., as representative for the unitholders and optionholders of Actient Holdings, LLC
10.1		Credit Agreement dated April 26, 2013, by and among Auxilium Pharmaceuticals, Inc., as Borrower, the lenders from time to time party thereto, Morgan Stanley Senior Funding, Inc. as Administrative Agent, Collateral Agent and as Syndication Agent, and Morgan Stanley Senior Funding, Inc. as Sole Lead Arranger and Sole Bookrunner
10.2		Registration Rights Agreement dated April 26, 2013, by and between Auxilium Pharmaceuticals, Inc., a Delaware corporation, and GTCR Fund IX/A, L.P., a Delaware limited partnership, solely in its capacity as representative for the GTCR Fund IX/B, L.P., and the Actient Holdings, LLC’s Unitholders and Optionholders
99.1		Auxilium Pharmaceuticals, Inc. Press Release dated April 29, 2013.
99.2		Auxilium Pharmaceuticals, Inc. Press Release dated April 29, 2013.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.

	AUXILIUM PHARMACEUTICALS, INC.


Date: April 29, 2013	By:	/s/ Andrew I. Koven

		Andrew I. Koven
		Chief Administrative Officer and General Counsel

EXHIBIT INDEX

Exhibit No.		Description
2.1		Agreement and Plan of Merger dated April 26, 2013, by and among Actient Holdings LLC, a Delaware limited liability company, Auxilium Pharmaceuticals, Inc., a Delaware corporation, Opal Acquisition, LLC, a Delaware limited liability company and wholly owned subsidiary of Auxilium Pharmaceuticals, Inc., GTCR Fund IX/B, L.P., a Delaware limited partnership, and GTCR Fund IX/A, L.P., a Delaware limited partnership, solely in its capacity as representative for GTCR Fund IX/B, L.P., and the Actient Holdings, LLC’s Unitholders and Optionholders
4.1		Warrant to purchase 1,250,000 shares of common stock at a price per share of $17.80 issued by Auxilium Pharmaceuticals, Inc. to GTCR Fund X/A, L.P., as representative for the unitholders and optionholders of Actient Holdings, LLC,
10.1		Credit Agreement dated April 26, 2013, by and among Auxilium Pharmaceuticals, Inc., as Borrower, the lenders from time to time party thereto, Morgan Stanley Senior Funding, Inc. as Administrative Agent, Collateral Agent and as Syndication Agent, and Morgan Stanley Senior Funding, Inc. as Sole Lead Arranger and Sole Bookrunner
10.2		Registration Rights Agreement dated April 26, 2013, by and between Auxilium Pharmaceuticals, Inc., a Delaware corporation, and GTCR Fund IX/A, L.P., a Delaware limited partnership, solely in its capacity as representative for the GTCR Fund IX/B, L.P., and the Actient Holdings, LLC’s Unitholders and Optionholders
99.1		Auxilium Pharmaceuticals, Inc. Press Release dated April 29, 2013.
99.2		Auxilium Pharmaceuticals, Inc. Press Release dated April 29, 2013.

Exhibit 2.1

Execution Version

AGREEMENT AND PLAN OF MERGER

by and among

AUXILIUM PHARMACEUTICALS, INC.,

OPAL ACQUISITION, LLC,

ACTIENT HOLDINGS LLC,

GTCR FUND IX/B, L.P.

and

THE REPRESENTATIVE NAMED HEREIN

April 26, 2013

TABLE OF CONTENTS

		Page
ARTICLE I THE MERGER AND THE STOCK PURCHASE		6
1.01	The Merger	6
1.02	Conversion of Units	7
1.03	Merger Consideration	8
1.04	Unit Exchange	9
1.05	Options; Incentive Units	10
1.06	Organizational Documents of the Surviving Company	11
1.07	Directors and Officers of the Surviving Company	11
1.08	Representative Holdback	11
1.09	No Dissenter’s Rights or Appraisal Rights	12
1.10	Stock Purchase	12

ARTICLE II MERGER CONSIDERATION ADJUSTMENT		12
2.01	Final Closing Balance Sheet Calculation	12
2.02	Post-Closing Adjustment Payment	14
2.03	Earn-Out	14

ARTICLE III THE CLOSING		17
3.01	The Closing	17
3.02	The Closing Transactions	17
3.03	Required Withholding	19

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY		20
4.01	Organization And Organizational Power	20
4.02	Subsidiaries	20
4.03	Authorization; No Breach; Valid and Binding Agreement	21
4.04	Capitalization	22
4.05	Financial Statements and Related Matters	23
4.06	Absence of Certain Developments	24
4.07	Title to Properties	26
4.08	Tax Matters	27
4.09	Contracts and Commitments	29
4.10	Intellectual Property	30
4.11	Litigation; Proceedings	31
4.12	Governmental Consents, etc.	32
4.13	Employee Benefit Plans	32
4.14	Insurance	34
4.15	Governmental Licenses and Permits	34
4.16	Compliance with Laws	34
4.17	FDA Regulatory Compliance	35
4.18	United States Healthcare Fraud and Abuse Law Compliance	36
4.19	HIPAA; HITECH Compliance	38
4.20	Names and Locations	39

4.21	Customers and Suppliers	39
4.22	Environmental Compliance	40
4.23	Affiliated Transactions	40
4.24	Employees	41
4.25	Approval of Merger by Unitholders	42
4.26	Brokerage	42
4.27	The Blocker Seller	42
4.28	The Blocker Corp	43
4.29	No Other Representations or Warranties	45

ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND THE MERGER SUB		45
5.01	Organization and Organizational Power	45
5.02	Authorization	46
5.03	No Violation	46
5.04	Governmental Consents	46
5.05	Litigation	46
5.06	Brokerage	46
5.07	Investment Representation	47
5.08	Availability of Funds	47
5.09	The Merger Sub	47
5.10	Solvency	47
5.11	The Warrant and Warrant Shares	48
5.12	SEC Reports	48
5.13	No Other Representations or Warranties	48

ARTICLE VI COVENANTS OF THE PURCHASER		48
6.01	Access to Books and Records	48
6.02	Director and Officer Liability and Indemnification	49
6.03	Employment and Benefit Arrangements	50

ARTICLE VII INDEMNIFICATION		51
7.01	Survival of Representations, Warranties, Covenants, Agreements and Other Provisions	51
7.02	Indemnification from the Escrow Account for the Benefit of the Purchaser Parties	52
7.03	Indemnification by the Purchaser for the Benefit of the Sellers	55
7.04	Procedures	56
7.05	Determination of Loss Amount	58
7.06	Acknowledgment of the Parties	58
7.07	Other Indemnification Provisions	60

ARTICLE VIII ADDITIONAL COVENANTS		60
8.01	Disclosure Generally	60
8.02	Provision Respecting Legal Representation	61
8.03	Tax Matters	61
8.04	Blocker Seller Release	67

ARTICLE IX DEFINITIONS		67
9.01	Definitions	67
9.02	Other Definitional Provisions	75
9.03	Index of Defined Terms	75

ARTICLE X MISCELLANEOUS		77
10.01	Representative	77
10.02	Press Releases and Communications	80
10.03	Expenses	80
10.04	Knowledge Defined	80
10.05	Notices	80
10.06	Assignment	82
10.07	Severability	82
10.08	References	82
10.09	Construction	83
10.10	Amendment and Waiver	83
10.11	Complete Agreement	83
10.12	Third-Party Beneficiaries	83
10.13	Waiver of Trial by Jury	83
10.14	Purchaser and Merger Sub Deliveries	84
10.15	Delivery by Electronic Transmission	84
10.16	Counterparts	84
10.17	Governing Law	84
10.18	Jurisdiction	84
10.19	Specific Performance	85
10.20	Prevailing Party	85

iii

INDEX OF EXHIBITS

Exhibit A		Certificate of Merger
Exhibit B		Letter of Transmittal
Exhibit C		Surviving Company LLC Agreement
Exhibit D		Calculation of Net Working Capital as of March 31, 2013
Exhibit E		Rules of Engagement for Valuation Firm
Exhibit F		Calculation of Net Sales of the Urology Products for the twelve months ended December 31, 2012 and the three months ended March 31, 2013
Exhibit G		Form of Escrow Agreement
Exhibit H		Form of Registration Rights Agreement
Exhibit I		Form of Resignation
Exhibit J		Form of Release, Confidentiality and Non-Interference Agreement
Exhibit K		Form of Warrant
Exhibit L		Allocation Methodology
Exhibit M		Form of Paying Agent Agreement

INDEX OF SCHEDULES

Accounts Receivable Schedule

Affiliated Transactions Schedule

Allocation Schedule

Authorization Schedule

Blocker Corp Capitalization Schedule

Blocker Corp Balance Sheet Schedule

Brokerage Schedule

Capitalization Schedule

Compliance with Laws Schedule

Consent Schedule

Contracts Schedule

Customers and Suppliers Schedule

Developments Schedule

Disclosure Schedules Indemnity Schedule

Drug/Device Applications Schedule

Employee Benefits Schedule

Environmental Schedule

FDA Regulatory Schedule

Financial Statements Schedule

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Indebtedness Schedule

Insurance Schedule

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Names and Locations Schedule

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Owned Real Property Schedule

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United States Healthcare Fraud and Abuse Law Compliance Schedule

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “ Agreement ”), dated as of April 26, 2013, is made by and among Actient Holdings LLC, a Delaware limited liability company (the “ Company ”), Auxilium Pharmaceuticals, Inc., a Delaware corporation (the “ Purchaser ”), Opal Acquisition, LLC, a Delaware limited liability company and wholly owned subsidiary of the Purchaser (the “ Merger Sub ”), GTCR Fund IX/B, L.P., a Delaware limited partnership (the “ Blocker Seller ”), and GTCR Fund IX/A, L.P., a Delaware limited partnership, solely in its capacity as representative (the “ Representative ”) for the Blocker Seller and the Company’s Unitholders and Optionholders (all of whom are listed on the attached Sellers Schedule , collectively, the “ Sellers ”). Capitalized terms used and not otherwise defined herein have the meanings set forth in Article IX below.

WHEREAS, the Purchaser desires to acquire 100% of the membership interests of the Company through (i) the acquisition of all of the issued and outstanding shares of capital stock (the “ Shares ”) of GTCR/Actient Holdings/B Corp., a Delaware corporation (the “ Blocker Corp ”), an entity that, immediately prior to the Closing, owned certain membership interests of the Company, on the terms and subject to the conditions set forth herein (the “ Stock Purchase ”) and (ii) a reverse subsidiary merger transaction pursuant to which the Merger Sub will merge with and into the Company, with the Company surviving as a wholly owned subsidiary of the Purchaser and the Blocker Corp, on the terms and subject to the conditions set forth herein (the “ Merger ” and, together with the Stock Purchase, the “ Transaction ”);

WHEREAS, the respective boards of directors or managers (or the equivalent governing bodies) of the Purchaser, the Merger Sub, the Blocker Seller and the Company have approved this Agreement, the Merger and/or the Stock Purchase (as applicable) and the related transactions contemplated hereby, upon the terms and subject to the conditions set forth herein; and

WHEREAS, simultaneous with the execution and delivery of this Agreement, the parties hereto have entered into that certain Escrow Agreement with the Escrow Agent, pursuant to which the Escrow Amount and the Management Holdback Escrow will be deposited with the Escrow Agent in the Escrow Account and the Management Holdback Escrow Account, respectively.

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

ARTICLE I

THE MERGER AND THE STOCK PURCHASE

1.01 The Merger .

(a) Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, the Merger Sub shall merge with and into the Company in accordance with the Delaware Limited Liability Company Act (as amended, “ Delaware LLC Law ”),

whereupon the separate existence of the Merger Sub shall cease and the Company shall be the surviving limited liability company (the “ Surviving Company ”) and a wholly owned subsidiary of the Purchaser and the Blocker Corp.

(b) At the Closing, the Company and the Merger Sub shall cause a certificate of merger substantially in the form of Exhibit A hereto (the “ Certificate of Merger ”) to be executed, acknowledged and filed with the Secretary of State of the State of Delaware and shall make all other filings or recordings required by Delaware LLC Law in connection with the Merger. The Merger shall become effective at such time (the “ Effective Time ”) as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware in accordance with the Delaware LLC Law or at such later time as the Purchaser and the Company mutually agree and specify in the Certificate of Merger.

(c) From and after the Effective Time, the Surviving Company shall succeed to all the assets, rights, privileges, powers and franchises and be subject to all of the liabilities, restrictions, disabilities and duties of the Company and the Merger Sub, all as provided under Delaware LLC Law.

1.02 Conversion of Units.

At the Effective Time, by virtue of the Merger and without any action on the part of any party:

(a) Each Unit (and the membership interests represented thereby) issued and outstanding immediately prior to the Effective Time (other than (i) any Units (and the membership interests represented thereby) which are held by any wholly owned Subsidiary of the Company or in the treasury of the Company or by the Purchaser or the Merger Sub, all of which shall cease to be outstanding and be canceled and none of which shall receive any payment with respect thereto, and (ii) any Units (and the membership interests represented thereby) which are held by the Blocker Corp, all of which shall be converted, without Blocker Corp receiving any payment with respect thereto, into common units in the Surviving Company with a fair market value equal to the fair market value of such Units held by the Blocker Corp, as such common units are provided for by the Surviving Company LLC Agreement) and all rights in respect thereof shall, by virtue of the Merger and without any action on the part of the holder thereof, forthwith cease to exist and be converted into and represent the right to receive an amount in cash, without interest, equal to the Allocable Portion of the Closing Merger Consideration attributable to such Unit plus any Additional Merger Consideration attributable to such Unit. Notwithstanding anything herein to the contrary, twenty-five percent (25%) of the Allocable Portion of the Closing Merger Consideration plus twenty-five percent (25%) of any Additional Merger Consideration payable by the Purchaser pursuant to the immediately preceding sentence with respect to the Units set forth on the Management Holdback Schedule (less the purchase price paid by such Unitholder for such Units, which amount is also set forth on such Schedule) shall, in accordance with the terms of the Escrow Agreement be placed into the Management Holdback Escrow Account (the “ Management Holdback Escrow ”), at the Purchaser’s expense, and such portion of the Management Holdback Escrow attributable to each such Unitholder, together with any earnings thereon, shall be released, and the Purchaser shall instruct the Escrow Agent to release, (i) to such Unitholder, on the earlier of (x) the date set forth

on the Management Holdback Schedule with respect to such Unitholder, if he or she is employed by the Purchaser or any of its Affiliates as of such date and (y) the date on which the employment of such Unitholder is terminated (1) by his or her employer, if such termination is without “cause” (as defined in the agreement evidencing the award of such Unit), (2) by such Unitholder for “good reason” (as defined in the agreement evidencing the award of such Unit) or (3) due to death or disability of such Unitholder or (ii) to the Paying Agent, on the date set forth on the Management Holdback Schedule with respect to such Unitholder, if such Unitholder is not employed by the Purchaser or any of its Affiliates as of such date and the termination of such Unitholder’s employment was not as a result of any of the circumstances set forth in clause (y) above. Any amounts placed in the Management Holdback Escrow Account that are distributed to the Paying Agent pursuant to the immediately preceding sentence (i) except as otherwise contemplated by clause (ii) below, shall be treated as Additional Merger Consideration for all purposes hereunder and (ii) shall be distributed to the holders of Common Units set forth on the MH Release Distribution Schedule pro rata based on the percentages set forth opposite the name of each Person on such schedule; provided , that any Common Units held by the Blocker Corp immediately prior to the Effective Time will be deemed to have been held by the Blocker Seller for this purpose.

(b) Each membership interest of the Merger Sub (a “ Merger Sub Interest ”) issued and outstanding immediately prior to the Effective Time shall be converted into common units in the Surviving Company, as such common units are provided for by the Surviving Company LLC Agreement. As of the Effective Time, the Merger Sub Interests shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and the holder or holders of such membership interests shall cease to have any rights with respect thereto, except the right to receive common units in the Surviving Company to be issued in consideration therefor as provided herein, without interest. As of the Effective Time, the Purchaser and the Blocker Corp shall be the holders of all the issued and outstanding units of the Surviving Company.

1.03 Merger Consideration.

(a) Prior to the execution of this Agreement, the Representative prepared and delivered to the Purchaser a written statement (the “ Pre-Closing Statement ”), signed and reviewed by the chief financial officer of the Company, setting forth its good faith calculation of its estimate of (i) Cash (the “ Estimated Cash ”), (ii) Indebtedness as of the open of business on the Closing Date (the “ Estimated Indebtedness ”), (iii) Net Working Capital (the “ Estimated Net Working Capital Amount ”) and (iv) Transaction Expenses (the “ Estimated Transaction Expenses ”).

(b) The Pre-Closing Statement has been prepared and Estimated Cash, Estimated Indebtedness, Estimated Net Working Capital and Estimated Transaction Expenses have been determined on a consolidated basis, in accordance with the terms of Section 2.01 regarding the preparation of the Preliminary Statement.

(c) For purposes of this Agreement, the term “ Closing Merger Consideration ” means (i) $585,000,000 (the “ Base Consideration ”), minus (ii) the amount of the Estimated Indebtedness, plus (iii) the amount, if any, by which the Estimated Net Working Capital Amount

exceeds the Target Net Working Capital Amount, minus (iv) the amount, if any, by which the Target Net Working Capital Amount exceeds the Estimated Net Working Capital Amount, minus (v) the Escrow Amount, plus (vi) the amount of Estimated Cash if the amount of Estimated Cash is positive, minus (vii) the amount by which zero (0) exceeds the amount of Estimated Cash if the amount of Estimated Cash is negative, minus (viii) the amount of the Estimated Transaction Expenses, plus (ix) the aggregate exercise price of the Options that are outstanding immediately prior to the Effective Time. For the avoidance of doubt, excluding any adjustments pursuant to clauses (ii) , (iii) , (iv) , (vi) , (vii) and (viii) of the prior sentence, the sum of (x) the aggregate consideration that the Purchaser and the Company shall be obligated to pay to the Unitholders and the Optionholders pursuant to Section 3.02(b) and clause (i) of Section 1.05(a) plus (y) the Escrow Amount shall be an amount equal to the Base Consideration.

(d) For purposes of this Agreement, the term “ Final Merger Consideration ” means (i) the Base Consideration, minus (ii) the amount of Indebtedness as finally determined pursuant to Article II , plus (iii) the amount, if any, by which the Net Working Capital as finally determined pursuant to Article II exceeds the Target Net Working Capital Amount, minus (iv) the amount, if any, by which the Target Net Working Capital Amount exceeds the Net Working Capital as finally determined pursuant to Article II , minus (v) the Escrow Amount, plus (vi) the amount of Cash as finally determined pursuant to Article II if such amount of Cash is positive, minus (vii) the amount of Cash as finally determined pursuant to Article II if such amount of Cash is negative, minus (viii) the amount of Transaction Expenses as finally determined pursuant to Article II , plus (ix) the aggregate exercise price of the Options that are outstanding immediately prior to the Effective Time.

1.04 Unit Exchange .

(a) The Purchaser shall cause a paying agent mutually appointed by the Purchaser and the Representative (the “ Paying Agent ”) to effect the exchange of cash for Units which are entitled to payment pursuant to Section 1.02 . After the Effective Time, each Unitholder who has surrendered his, her or its Units pursuant to a duly executed and completed letter of transmittal, substantially in the form of Exhibit B attached hereto (each, a “ Letter of Transmittal ”), to the Paying Agent, shall be entitled to receive from the Paying Agent in exchange therefor the portion of the Closing Merger Consideration into which such Unitholder’s Units shall have been converted as a result of the Merger as determined pursuant to Section 1.02 and thereafter, as and when any Additional Merger Consideration is payable in accordance with the terms of this Agreement or the Escrow Agreement, such Unitholder shall be entitled to be paid the Additional Merger Consideration into which such Unitholder’s Units shall have been converted as a result of the Merger as determined pursuant to Section 1.02 . Surrendered Units shall forthwith be canceled. Until so surrendered and exchanged, each such Unit shall represent solely the right to receive the Allocable Portion of the Closing Merger Consideration and any Additional Merger Consideration into which it was converted pursuant to Section 1.02 . Notwithstanding the foregoing, if any certificate representing such Units shall have been lost, stolen or destroyed, then, upon the making of an affidavit of such fact by the Person claiming such certificate to be lost, stolen or destroyed and, at the request of the Purchaser, the execution of an indemnification agreement with respect to such certificate in form and substance reasonably acceptable to the Purchaser, the Paying Agent shall issue, in exchange for such lost, stolen or destroyed certificate, the Allocable Portion of the Closing Merger Consideration and

any Additional Merger Consideration to be paid in respect of the Units represented by such certificate, as contemplated by this Article I. For all purposes of this Agreement and notwithstanding anything to the contrary contained herein, any and all amounts paid by the Purchaser to the Paying Agent for the benefit of the Sellers or the Representative hereunder shall be deemed to have been paid to the Sellers or the Representative, as the case may be, and in no event shall the Purchaser have any further obligation or liability to any Seller or the Representative in respect thereof unless such amounts have been delivered to the Purchaser or the Surviving Company pursuant to Section 1.04(b) .

(b) If and to the extent any Unitholder fails to deliver a Letter of Transmittal to the Paying Agent prior to the one (1) year anniversary of the Closing Date, any funds received by the Paying Agent as Closing Merger Consideration or Additional Merger Consideration and payable to such Unitholder in respect of such Unitholder’s Units shall, to the extent permitted by applicable Law, become the property of the Surviving Company (and any such cash may be commingled with the general funds of the Purchaser or the Surviving Company, as the case may be), free and clear of all claims or interest of any Person previously entitled thereto (other than the claims of a Seller and its heirs, assigns and transferees hereunder) and shall be promptly delivered to the Surviving Company by the Paying Agent, and such Unitholder shall look only to the Purchaser and the Surviving Company for payment of such amounts. Each Unitholder who prior to the one (1) year anniversary of the Closing Date delivers to the Paying Agent a duly completed and executed Letter of Transmittal shall look only to the Paying Agent for satisfaction of any claims related to the Closing Merger Consideration or Additional Merger Consideration (except to the extent the Paying Agent has returned such funds to the Surviving Company as contemplated above, in which case such Unitholder shall only look to the Purchaser and the Surviving Company as contemplated above). Any interest, dividends or other income earned on the investment of cash held by the Paying Agent, together with all tax and other liabilities associated therewith, shall be for the account of the Surviving Company. Notwithstanding the foregoing, none of the Paying Agent, the Purchaser or the Surviving Company will be liable to any Unitholder for any Closing Merger Consideration or Additional Merger Consideration if delivered to a public official if required pursuant to any applicable abandoned property, escheat or similar applicable Law.

1.05 Options; Incentive Units .

(a) The Company shall, as of the Effective Time, cause all Options, whether or not then vested or exercisable, to be canceled and extinguished, no longer be outstanding and cease to represent the right to acquire Common Units, and in consideration therefor, the Optionholders shall be entitled to receive with respect to each Option: (i) reasonably promptly following the Effective Time an amount in cash, without interest and subject to withholding pursuant to Section 3.03 below, equal to the product of (A) the excess, if any, of the Allocable Portion of the Closing Merger Consideration attributable to each Unit that is subject to such Option over the exercise price per Common Unit payable upon exercise of such Option, multiplied by (B) the number of Common Units that would be issued upon exercise of such Option if such holder had exercised such Option in full immediately prior to the Effective Time (regardless of whether or not the Optionholder actually had the right to exercise such Option) (the “ Closing Option Consideration ”), and (ii) any Additional Merger Consideration in respect of

the Common Units underlying such Option to the extent payable in accordance with the terms of this Agreement or the Escrow Agreement.

(b) The Company has obtained, and provided copies to the Purchaser of, all consents necessary to give effect to the transactions described in the foregoing sentence (including adopting any necessary resolutions of the Company’s board of managers and/or any committee thereof and providing all required notices and obtaining any required consents in connection therewith) and to ensure that no Optionholder shall have any rights from and after the Effective Time with respect to any Options except the right to receive cash payments as expressly provided in this Agreement.

(c) The Company shall take all limited liability company action necessary to cause each unvested Incentive Unit as of immediately prior to the Effective Time to vest upon the consummation of the Transaction.

1.06 Organizational Documents of the Surviving Company .

(a) At the Effective Time and without any further action on the part of the Company or the Merger Sub, the certificate of formation of the Company, as in effect immediately prior to the Effective Time, shall be the certificate of formation of the Surviving Company as of the Effective Time, until duly amended in accordance with applicable Law.

(b) At the Effective Time and without any further action on the part of the Company or the Merger Sub, the limited liability company agreement of the Company, as in effect immediately prior to the Effective Time, shall be amended and restated to read in its entirety as provided by Exhibit C and, commencing as of the Effective Time, shall be the limited liability company agreement of the Surviving Company (the “ Surviving Company LLC Agreement ”), until thereafter amended as provided therein and by applicable Law.

1.07 Directors and Officers of the Surviving Company.

(a) At the Effective Time, the Company’s board of managers shall resign and the managers of the Merger Sub immediately prior to the Effective Time shall become the managers of the Surviving Company and shall hold office subject to the applicable provisions of the Surviving Company LLC Agreement.

(b) At the Effective Time, the officers of the Merger Sub immediately prior to the Effective Time shall be the officers of the Surviving Company and shall hold office subject to the applicable provisions of the Surviving Company LLC Agreement.

1.08 Representative Holdback . A portion of the proceeds otherwise to be received by the Sellers pursuant to Article I in an amount equal to $2,000,000 (such initial deposit, as it may be increased or decreased at any time in accordance with this Agreement, the “ Representative Holdback Amount ”) shall be delivered by the Purchaser to the Representative at the Closing, on behalf of the Sellers, by wire transfer of immediately available funds to a segregated account designated by the Representative (which account shall be used only to hold the Representative Holdback Amount and to pay any fees, costs and expenses of the Representative payable out of the Representative Holdback Amount pursuant to the terms of this

Agreement). The portion of the Representative Holdback Amount delivered to, and held by, the Representative on behalf of each such Seller shall be determined pro rata based upon each Seller’s Residual Percentage. The Representative is entitled to pay on behalf of the Sellers, and to the extent paid by the Representative from its own funds, obtain reimbursement for, any fees, costs and expenses incurred by the Representative in the performance of its duties hereunder (“ Representative Expenses ”) from the Representative Holdback Amount, and the Representative shall not use any portion of the Representative Holdback Amount for any other purpose. For all purposes of this Agreement, any and all amounts paid by the Purchaser to the Representative pursuant to this Section 1.08 or otherwise in respect of the Representative Holdback Amount shall be deemed to have been paid to the Unitholders and the holders of Options and in no event shall the Purchaser have any further obligation or liability to any Unitholder or holder of Options in respect thereof.

1.09 No Dissenter’s Rights or Appraisal Rights . No holder of Units or Options shall be entitled to any “dissenter’s rights,” “appraisal rights” or any similar remedies under Delaware LLC Law or any other applicable law. Following the Effective Time, each holder of any Units and/or Options shall be entitled only to the right to receive the appropriate portion of the Closing Merger Consideration and any other consideration payable in respect of such Units and/or Options, as applicable, pursuant to the terms and conditions of this Agreement.

1.10 Stock Purchase .

(a) Sale and Purchase of Shares . At the Closing, upon the terms and subject to the conditions set forth in this Agreement, the Blocker Seller agrees to sell, assign, transfer and deliver to the Purchaser, and the Purchaser agrees that it shall purchase and accept delivery from the Blocker Seller of, the Shares, free and clear of any Liens (other than those imposed by federal or state securities laws).

(b) Consideration . At the Closing, the Purchaser shall cause the Paying Agent to deliver to the Blocker Seller an aggregate amount equal to the Allocable Portion of the Closing Merger Consideration attributable to the Units that are held by the Blocker Corp (assuming for purposes of calculating such amount that such Units are outstanding at the Effective Time). Additionally, to the extent the Sellers are entitled to receive any Additional Merger Consideration, then the Blocker Seller shall be entitled to receive the Blocker Seller’s Residual Percentage of such Additional Merger Consideration in accordance with the terms of this Agreement or the Escrow Agreement.

ARTICLE II

MERGER CONSIDERATION ADJUSTMENT

2.01 Final Closing Balance Sheet Calculation . As promptly as possible, but in any event within ninety (90) days after the Closing Date, the Purchaser will deliver to the Representative an unaudited consolidated balance sheet of the Company and its Subsidiaries as of the open of business on the Closing Date (the “ Closing Balance Sheet ”) and a statement showing the calculation of Cash, Indebtedness and Net Working Capital derived from the Closing Balance Sheet and the Transaction Expenses (together with the Closing Balance Sheet,

the “ Preliminary Statement ”). In connection with its preparation of the Preliminary Statement, the Purchaser and its accountants shall be permitted to make reasonable inquiries of the Representative and its accountants regarding questions or disagreements relating to the Pre-Closing Statement, and the Representative shall use its commercially reasonable efforts to cause such accountants to reasonably cooperate with and respond to such inquiries. The Preliminary Statement shall be prepared in accordance with (i) the accounting methods, policies, categorizations, definitions, principles, asset recognition bases, practices, techniques and procedures (including in respect of management’s exercise of judgment) that are specified in the calculation of Net Working Capital as of March 31, 2013 set forth in Exhibit D (which amounts included in Exhibit D are for illustrative purposes only); (ii) to the extent not inconsistent with clause (i) , the accounting methods, policies, categorizations, definitions, principles, assets recognition bases, practices, techniques and procedures (including in respect of management’s exercise of judgment) adopted in connection with the latest balance sheet included in the Audited Financial Statements; and (iii) to the extent not inconsistent with clauses (i) or (ii) , GAAP, and shall not include any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated hereby. Cash, Indebtedness and Net Working Capital shall be derived from the Closing Balance Sheet. The parties agree that the purpose of preparing the Closing Balance Sheet and determining Cash, Indebtedness and Net Working Capital and the related purchase price adjustment contemplated by this Section 2.01 is to (i) measure the amount of Cash and Indebtedness and (ii) measure changes in Net Working Capital against the Target Net Working Capital Amount, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of preparing the Closing Balance Sheet or determining Cash, Indebtedness or Net Working Capital. The Representative and its accountants and other representatives shall be permitted reasonable access during normal business hours upon reasonable advance notice to review the Company’s and its Subsidiaries’ books and records and any work papers related to the preparation of the Preliminary Statement and the adjustments contemplated hereby. The Representative and its accountants and other representatives may make reasonable inquires of the Purchaser, the Surviving Company and their respective accountants regarding questions or disagreements, and the Purchaser shall use its, and shall cause the Surviving Company and its Subsidiaries to use their, commercially reasonable efforts to cause any such accountants to reasonably cooperate with and respond to such inquiries. If the Representative has any objections to the Preliminary Statement, the Representative shall deliver to the Purchaser a statement setting forth its objections thereto (an “ Objections Statement ”) with reasonable supporting detail as to any such disputed items. If an Objections Statement is not delivered to the Purchaser within forty-five (45) days after delivery of the Preliminary Statement to the Representative, the Preliminary Statement shall be final, binding and non-appealable by the parties hereto. If an Objections Statement is timely delivered, the Representative and the Purchaser shall negotiate in good faith to resolve any such objections set forth therein, but if they do not reach a final resolution within thirty (30) days after the delivery of the Objections Statement, the Representative and the Purchaser shall submit such dispute to Deloitte & Touche LLP or such other independent accountants of nationally recognized standing reasonably satisfactory to the Purchaser and the Representative (who shall not have any material relationship with the Purchaser or the Representative) (the “ Valuation Firm ”). Any further submissions to the Valuation Firm must be written and delivered to each party to the dispute. The Valuation

Firm shall make a final determination of Cash, Indebtedness, Net Working Capital and Transaction Expenses, and the resulting Final Merger Consideration calculated with reference to such amounts to the extent such amounts are in dispute, in accordance with the guidelines and procedures set forth in this Agreement and on Exhibit E . The parties will cooperate with the Valuation Firm during the term of its engagement. If an Objections Statement is delivered to the Valuation Firm for resolution, the determination of Cash, Indebtedness, Net Working Capital and Transaction Expenses, and the resulting Final Merger Consideration calculated with reference thereto, shall become final and binding on the parties on the date the Valuation Firm delivers its final resolution in writing to the parties.

2.02 Post-Closing Adjustment Payment . If the Final Merger Consideration is greater than the Closing Merger Consideration, the Purchaser shall promptly (but in any event within five (5) Business Days after the final determination of the Final Merger Consideration) pay, or cause to be paid, to the Paying Agent for further payment to the Sellers, on a pro rata basis according to each Seller’s Residual Percentage, the amount of such excess (less any applicable Management Holdback Escrow), by wire transfer of immediately available funds to the account or accounts designated by the Paying Agent and deposit with the Escrow Agent any amounts attributable to the Management Holdback Escrow. If the Final Merger Consideration is less than the Closing Merger Consideration, the Representative and the Purchaser shall promptly (but in any event within five (5) Business Days after the final determination of the Final Merger Consideration) cause the Escrow Agent to pay on behalf of the Sellers (on a pro rata basis according to each Seller’s Residual Percentage) to the Purchaser from the Escrow Account the absolute value of such difference by wire transfer of immediately available funds to one or more accounts designated in writing by the Purchaser to the Escrow Agent. Other than in the case of fraud (in which case a claim for fraud may only be asserted against the Person(s) that committed such fraud), the Sellers and the Representative shall not have any liability for any amounts due pursuant to Section 2.01 or this Section 2.02 except to the extent of the funds available from the Escrow Account.

2.03 Earn-Out .

(a) In accordance with the terms and conditions of this Section 2.03 , including the review and dispute procedures set forth herein, and solely to the extent required by this Section 2.03 , the Purchaser shall pay, or cause to be paid, to the Paying Agent for further payment to the Sellers (on a pro rata basis according to each Seller’s Residual Percentage) an aggregate amount equal to each Earn-Out Amount (if any) achieved in accordance with this Section 2.03 . For the avoidance of doubt, the Purchaser may be obligated, pursuant to the terms and conditions of this Section 2.03 , to pay each of the Earn-Out Amounts.

(b) Base Earn-Out . The Purchaser shall be obligated to pay an aggregate amount equal to $15,000,000 (the “ Base Earn-Out Amount ”) when cumulative Net Sales of the Urology Products from and after the Closing first equal $150,000,000.

(c) Twelve-Month Earn-Out . If Net Sales of the Urology Products for the twelve-month period beginning on May 1, 2013 and ending on April 30, 2014 (such period, the “ Twelve-Month Earn-Out Period ”) equal or exceed $150,000,000, the Purchaser shall be

obligated to pay an aggregate amount equal to $10,000,000 (the “ Twelve-Month Earn-Out Amount ”).

(d) Twenty-Four-Month Earn-Out . If Net Sales of the Urology Products for the twenty-four-month period beginning on May 1, 2013 and ending on April 30, 2015 (such period, the “ Twenty-Four-Month Earn-Out Period ”) equal or exceed $300,000,000, the Purchaser shall be obligated to pay an aggregate amount equal to $25,000,000 (the “ Twenty-Four-Month Earn-Out Amount ”).

(e) Subject to compliance with Section 2.03(g) , if Net Sales of the Urology Products for the Twelve-Month Earn-Out Period or the Twenty-Four-Month Earn-Out Period are less than $150,000,000 or $300,000,000, respectively, then the Earn-Out Amount for such Earn-Out Period shall be zero.

(f) Any calculation of Net Sales of the Urology Products for purposes of this Section 2.03 shall be determined in accordance with GAAP and based upon the Company’s existing principles, practices, methodologies and policies as used in the 2012 Audited Financial Statements (example calculations of Net Sales of the Urology Products for the twelve months ended December 31, 2012 and the three months ended March 31, 2013 are attached as Exhibit F hereto) so long as such principles, practices, methodologies and policies are in accordance with GAAP. Such calculation is included for reference purposes only, and the Company does not make any representation or warranty, and will not incur any liability, in respect thereof.

(g) The Purchaser agrees that, commencing on the Closing Date and continuing through the later of (x) April 30, 2015 and (y) the month-end of the month in which the Base Earn-Out Amount is achieved, it will not, and will not permit the Surviving Company or any of its Subsidiaries to, take any action with the intent of preventing the achievement of any Earn-Out Amount. In the event that prior to April 30, 2015, the Purchaser disposes of the Surviving Company or any of its Subsidiaries, or the Surviving Company or any of its Subsidiaries sell or otherwise dispose of any significant portion of their respective assets (other than sales of assets in the Ordinary Course of Business), then the contribution of such disposed assets to Net Sales of the Urology Products for any Earn-Out Period ending after the disposition of such assets shall be deemed to be an amount equal to the sum of (x) the Net Sales relating to such disposed assets for the portion of any such Earn-Out Period ending on the Divestiture Measurement Date and (y) an amount equal to the Net Sales relating to such disposed assets for the period following the Divestiture Measurement Date through the end of the applicable Earn-Out Period, calculated assuming that such Net Sales would grow or contract at the same rate that such Net Sales have grown or contracted, as the case may be, during the twelve-month period ended on the month-end immediately prior to the Divestiture Measurement Date. In the event that prior to the achievement of the Base Earn-Out Amount, the Purchaser disposes of the Surviving Company or any of its Subsidiaries, or the Surviving Company or any of its Subsidiaries sell or otherwise dispose of any significant portion of their respective assets (other than sales of assets in the Ordinary Course of Business), then for purposes of determining when the Base Earn-Out Amount is achieved, Net Sales of the Urology Products for each calendar month following the Divestiture Measurement Date shall be deemed to include an amount equal to the Net Sales relating to such disposed assets for such calendar month, calculated assuming that such Net Sales would grow or contract at the same rate that such Net Sales have grown or

contracted, as the case may be, during the twelve-month period ended on the month-end immediately prior to the Divestiture Measurement Date.

(h) Not later than forty-five (45) days following the end of each calendar quarter during the period beginning on the Closing Date and ending on the later of (i) April 30, 2015 and (ii) the month-end of the month in which the Base Earn-Out Amount is achieved, the Purchaser shall prepare and deliver to the Representative a statement that sets forth in reasonable detail its calculation of the Net Sales of the Urology Products, by Urology Product (other than any Urology Products divested by the Purchaser, the Surviving Company or any of its Subsidiaries prior to such calendar quarter, which divestitures, for the avoidance of doubt, shall not include sales of Urology Products in the Ordinary Course of Business), for each calendar month within such calendar quarter (or portion thereof, as applicable). All amounts set forth in any such statement, including the amount of any Net Sales, shall be good faith estimates and shall not be final or binding on the parties. Until the later of (i) April 30, 2015 and (ii) the month-end of the month in which the Base Earn-Out Amount is achieved, as promptly as possible, but in any event within thirty (30) days after April 30 th of each year, the Purchaser will deliver to the Representative a statement (a “ Preliminary Earn-Out Statement ”) setting forth in reasonable detail the Purchaser’s calculation of the actual amount of Net Sales of the Urology Products for the twelve-month period ended on April 30 th of such year as determined in accordance with Section 2.03(f) and Section 2.03(g) . The Representative and its accountants and other representatives shall be permitted reasonable access during normal business hours upon reasonable advance notice to review the Purchaser’s, the Surviving Company’s and their respective Subsidiaries’ books and records and any work papers related to the preparation of the Preliminary Earn-Out Statement. The Representative and its accountants and other representatives may make reasonable inquires of the Purchaser, the Surviving Company and their respective accountants regarding questions or disagreements arising in the course of their review thereof, and the Purchaser shall use its, and shall cause the Surviving Company and its Subsidiaries to use their, commercially reasonable efforts to cause any such accountants to reasonably cooperate with and respond to such inquiries. If the Representative has any objections to the Preliminary Earn-Out Statement, the Representative shall deliver to the Purchaser a statement setting forth its objections thereto (an “ Earn-Out Objections Statement ”) with reasonable supporting detail as to any such disputed items. If an Earn-Out Objections Statement is not delivered to the Purchaser within thirty (30) days after delivery of a Preliminary Earn-Out Statement to the Representative, such Preliminary Earn-Out Statement shall be final, binding and non-appealable by the parties hereto. If an Earn-Out Objections Statement is timely delivered, the Representative and the Purchaser shall negotiate in good faith to resolve any such objections set forth therein, but if they do not reach a final resolution within thirty (30) days after the delivery of the Earn-Out Objections Statement, the Representative and the Purchaser shall submit such dispute to the Valuation Firm. Any further submissions to the Valuation Firm must be written and delivered to each party to the dispute. The Valuation Firm shall make a final determination of Net Sales of the Urology Products for such period in accordance with the guidelines and procedures set forth in this Agreement and on Exhibit E (applied mutatis mutandis to this Section 2.03 ). The parties will cooperate with the Valuation Firm during the term of its engagement. The determination of Net Sales of the Urology Products calculated with reference thereto, shall become final and binding on the parties on the date the Valuation Firm delivers its final resolution in writing to the parties.

(i) Within two (2) Business Days of the earlier to occur of (i) the delivery by the Purchaser to the Representative of a quarterly Net Sales statement or a Preliminary Earn-Out Statement showing the achievement of any Earn-Out Amount and (ii) a final determination of Net Sales of the Urology Products pursuant to Section 2.03(h) resulting in the achievement of any Earn-Out Amount, the Purchaser shall pay, or cause to be paid, to the Paying Agent for further distribution to the Sellers on a pro rata basis according to each Seller’s Residual Percentage an aggregate amount equal to the applicable Earn-Out Amount, by wire transfer of immediately available funds to the account or accounts designated in writing by the Paying Agent to the Purchaser. Subject only to Section 7.02(c) , payment of the Earn-Out Amounts shall be absolute and unconditional and shall not be subject to any set-off, counterclaim, reduction or defense.

(j) All Earn-Out Amounts shall be treated by the parties as an adjustment to the proceeds received by the Sellers pursuant to Article III hereof.

(k) The right of the Sellers to receive any Earn-Out Amount (i) is solely a contractual right and is not a security for purposes of any federal or state securities laws (and shall confer upon the Sellers only the rights of a general unsecured creditor under applicable Law); (ii) will not be represented by any form of certificate or instrument; (iii) does not give the Sellers any dividend rights, voting rights, liquidation rights, preemptive rights or other rights common to holders of the Purchaser’s or the Surviving Company’s equity securities; and (iv) is not redeemable. The Representative hereby agrees to maintain the confidentiality of any information delivered to it pursuant to this Section 2.03 , except as otherwise required by applicable Law, in which case the Representative shall use commercially reasonable efforts to provide the Purchaser with advance notice of such requirement and a reasonable opportunity to attempt to seek confidential treatment with respect to such information.

ARTICLE III

THE CLOSING

3.01 The Closing . The closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place concurrently with the execution of this Agreement at the offices of Willkie Farr & Gallagher LLP located at 787 Seventh Avenue, New York, New York 10019 at 4:01 p.m. local time on the date hereof. The date of the Closing is referred to herein as the “ Closing Date .”

3.02 The Closing Transactions . The parties hereto are consummating the following transactions concurrently with the execution of this Agreement:

(a) the Company and the Merger Sub shall cause the Certificate of Merger to be executed, acknowledged and filed with the Secretary of State of the State of Delaware;

(b) the Purchaser shall deposit with the Paying Agent, for distribution by the Paying Agent in accordance with Section 1.04 and Section 1.10 , an amount equal to (i) the Closing Merger Consideration, less (ii) the aggregate Closing Option Consideration, less (iii) the Representative Holdback Amount, less (iv) the Management Holdback Escrow, less (v) the

aggregate exercise price of the Options that are outstanding immediately prior to the Effective Time;

(c) the Purchaser shall deposit $25,000,000 (the “ Escrow Amount ”) into an escrow account (the “ Escrow Account ”) established pursuant to the terms and conditions of an escrow agreement (the “ Escrow Agreement ”) by and among the Purchaser, the Representative and Citibank, N.A., as escrow agent (the “ Escrow Agent ”), in the form of Exhibit G attached hereto, and shall deposit the Management Holdback Escrow into a separate escrow account (the “ Management Holdback Escrow Account ”) established pursuant to the terms and conditions of the Escrow Agreement;

(d) the Purchaser shall execute and deliver the Warrant to the Representative and the Purchaser and the Representative shall enter into a registration rights agreement in the form of Exhibit H hereto (the “ Registration Rights Agreement ”);

(e) (i) the Purchaser shall repay, or cause to be repaid, on behalf of the Company and its Subsidiaries, all amounts necessary to discharge fully the then outstanding balance of all of the Estimated Indebtedness set forth in the Pre-Closing Statement, by wire transfer of immediately available funds to the account(s) designated by the holders of such Estimated Indebtedness, and (ii) the Representative shall cause the delivery to the Purchaser of pay-off letters from the holders of Indebtedness outstanding on the Closing Date;

(f) in accordance with Section 1.08 , the Purchaser shall deliver the Representative Holdback Amount to the Representative by wire transfer of immediately available funds;

(g) each member of the board of managers (or other equivalent governing body) and each officer of the Company, each of its Subsidiaries and the Blocker Corp shall deliver to the Purchaser a resignation therefrom in the form of Exhibit I attached hereto;

(h) each of GTCR Co-Invest III, L.P., GTCR Fund IX/A, L.P. and GTCR Fund IX/B, L.P. shall execute and deliver to the Purchaser a release, confidentiality and non-interference agreement in the form of Exhibit J attached hereto;

(i) the Company shall deliver to the Purchaser and the Merger Sub each of the following:

(i) a certification dated as of the Closing Date that the Company is not described in Section 1.897-7T of the Treasury Regulations promulgated under the Code;

(ii) the written consent of the holders of Units (the “ Written Consent ”) representing the Company Unitholder Approval;

(iii) written evidence of the termination of all agreements set forth on the Terminated Affiliated Transactions Schedule , which terminations shall be effective on or prior to the Closing Date, and the Company and its Subsidiaries shall have no further obligation or liability thereunder; and

(iv) certified copies of resolutions duly adopted by the Company’s board of managers and the Blocker Seller’s general partner authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby, and the consummation of all transactions contemplated hereby and thereby;

(j) the Purchaser and the Merger Sub shall deliver to the Representative certified copies of the resolutions duly adopted by the Purchaser’s board of directors (or its equivalent governing body) and the Merger Sub’s board of managers (or its equivalent governing body) authorizing the execution, delivery and performance of this Agreement;

(k) the Purchaser shall pay, or cause to be paid, on behalf of the Company, its Subsidiaries, the Sellers and the Representative (or any of their respective Affiliates), the Estimated Transaction Expenses set forth in the Pre-Closing Statement by wire transfer of immediately available funds as directed in writing by the Representative;

(l) the Purchaser shall deliver, or cause the Surviving Company (at the Purchaser’s expense) to deliver, a prepaid insurance policy ( i.e. , “tail coverage”) (the “ Tail D&O Policy ”), which policy provides liability insurance coverage for the individuals who were officers, managers and directors of the Company and its Subsidiaries at or prior to the Closing Date;

(m) subject to Section 3.03 , the Purchaser shall deliver or cause the Surviving Company to deliver to each Optionholder such holder’s Closing Option Consideration (as determined in accordance with Section 1.05 ), less such Optionholder’s portion of the Representative Holdback Amount, by wire transfer of immediately available funds (or by such other method as is directed by the Representative) to the account(s) designated by the Representative; provided , that (i) if an Optionholder is a current or former employee of the Surviving Company or any of its Subsidiaries on the Closing Date or (ii) in the case of any amounts required to be paid with respect to Incentive Units for which elections under Section 83(b) of the Code were not made, the Purchaser shall cause the Surviving Company to make such payment to such Optionholder or holder of Incentive Units through the payroll system of the Surviving Company and its Subsidiaries;

(n) the Blocker Corp shall deliver to Purchaser a certification dated as of the Closing Date that interests in the Blocker Corp are not U.S. real property interest as of such date, as described in Section 1.897-2(g)(1)(ii)(A) of the Treasury Regulations promulgated under the Code;

(o) the Blocker Seller shall deliver to the Purchaser stock certificates representing all of the Shares, which certificates shall be endorsed to the Purchaser or accompanied by stock powers executed in blank; and

(p) the Representative and the paying agent shall enter into a paying agent agreement in the form of Exhibit M hereto (the “ Paying Agent Agreement ”).

3.03 Required Withholding . The Purchaser shall, or shall cause the Surviving Company to, deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Units or Options such amounts as

may be required to be deducted or withheld therefrom under the Code or under any applicable provision of federal, state, local or foreign Tax law (including, for avoidance of doubt, as a result of the vesting of any Incentive Units for which elections under Section 83(b) of the Code were not made), taking into account any applicable exemption under such law. To the extent such amounts are so deducted or withheld and paid to the appropriate taxing authority, the amount of such consideration shall be treated for all purposes under this Agreement as having been paid to the Person to whom such consideration would otherwise have been paid.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants to the Purchaser and the Merger Sub that, except as set forth in the schedules accompanying this Agreement (each, a “ Schedule ” and, collectively, the “ Disclosure Schedules ”); provided , any information set forth in any Schedule or incorporated in any Section of this Agreement shall be considered to have been set forth in each other Schedule and shall be deemed to modify the representations and warranties in this Article IV , in each case, if the relevance of the disclosure set forth in such Schedule to another Schedule or any representation or warranty that is not expressly qualified by such Schedule is reasonably apparent on the face of such disclosure:

4.01 Organization And Organizational Power . The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, and the Company has all requisite limited liability company power and authority and, except as would not, individually or in the aggregate, have a Material Adverse Effect, all authorizations, licenses and permits necessary to own and operate its properties and to carry on its businesses as now conducted. The Company is qualified to do business as a foreign entity and is in good standing in each jurisdiction in which its ownership of property or the conduct of business as now conducted requires it to qualify, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have a Material Adverse Effect. The Organization Schedule sets forth a complete and accurate list of each such jurisdiction in which the Company is required to be qualified to do business. The Company has made available to the Purchaser correct and complete copies of its certificate of formation and limited liability company agreement, which documents reflect all amendments made thereto. Copies of the minute books containing the records of meetings of the Unitholders and board of managers of the Company have been made available to the Purchaser, and such copies are correct and complete in all material respects. The Company is not in default under or in violation of any provision of its certificate of formation or limited liability company agreement currently in effect.

4.02 Subsidiaries .

(a) Neither the Company nor any of its Subsidiaries owns or holds the right to acquire any stock, partnership interest or joint venture interest or other equity ownership interest in any other Person, other than as set forth on the Subsidiaries Schedule . Except as set forth on the Subsidiaries Schedule , the Company or a Subsidiary thereof owns all of the issued and outstanding stock, partnership interests, limited liability company interests or other equity

ownership interests in each Subsidiary of the Company listed on the Subsidiaries Schedule , in each case free and clear of all Liens (except for Permitted Liens), and all such stock, partnership interests, limited liability company interests or other equity ownership interests have been duly authorized and are validly issued, fully paid and nonassessable (to the extent such concepts are applicable to such interests) and have not been issued in violation of any preemptive rights, rights of first refusal or similar rights. Except as set forth on the Subsidiaries Schedule , no Subsidiary listed thereon has any other stock, partnership interests, limited liability company interests, equity ownership interests or securities containing any equity features authorized, issued or outstanding, and there are no agreements, options, warrants, profits interests, commitments or other rights or arrangements outstanding that provide for the sale or issuance of any of the foregoing by the Company or its Subsidiaries. There are no outstanding or authorized equity appreciation, phantom equity, or similar rights with respect to any Subsidiary listed on the Subsidiaries Schedule . There are no voting trusts, proxies or any other agreements or understandings with respect to the voting of the stock, partnership interests, limited liability company interests or equity ownership interests of any Subsidiary listed on the Subsidiaries Schedule . There are no agreements or other obligations (contingent or otherwise) that require the Company or its Subsidiaries to repurchase or otherwise acquire or retire any of the stock, partnership interests, limited liability company interests or equity ownership interests of any Subsidiary listed on the Subsidiaries Schedule .

(b) Each of the Subsidiaries listed on the Subsidiaries Schedule is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, has all requisite power and authority and, except as would not, individually or in the aggregate, have a Material Adverse Effect, all authorizations, licenses and permits, necessary to own its properties and to carry on its businesses as now conducted. Each such Subsidiary is qualified to do business in every jurisdiction in which its ownership of property or the conduct of its businesses as now conducted requires it to qualify, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect. The Subsidiaries Schedule sets forth a complete and accurate list of each jurisdiction in which each Subsidiary listed thereon is incorporated or organized and required to be qualified to do business. The Company has no Subsidiaries other than those listed on the Subsidiaries Schedule . The Company has made available to the Purchaser correct and complete copies of the organizational documents for each of its Subsidiaries, which documents reflect all amendments made thereto. Copies of the minute books containing the records of meetings of the equityholders and boards of directors or managers of each Subsidiary have been made available to the Purchaser, and such copies are correct and complete in all material respects. None of the Company’s Subsidiaries are in default under or in violation of any provision of their respective organizational documents as currently in effect.

4.03 Authorization; No Breach; Valid and Binding Agreement .

(a) The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, and the performance by the Company of its obligations hereunder and thereunder, have been duly and validly authorized by all requisite limited liability company action of the Company, including providing the requisite notice to the holders of the Required Interest (as defined therein) pursuant to Section 4.1(c)(ii) of the limited

liability company agreement of the Company as in effect immediately prior to the Effective Time, and no other limited liability company proceedings on the part of the Company are necessary to authorize the execution, delivery or performance of this Agreement and the other Transaction Documents by the Company or the consummation of the transactions contemplated hereby or thereby. The Company has duly executed and delivered this Agreement and, at or prior to the Closing, will have duly and validly executed and delivered each of the other Transaction Documents.

(b) Except as set forth on the Authorization Schedule , the execution, delivery and performance by the Company of the Transaction Documents to which it is a party do not, and the consummation of the transactions contemplated hereby and thereby will not, (i) conflict with or result in any breach of the terms, conditions or provisions of the Company’s or its Subsidiaries’ certificates or articles of formation or incorporation, bylaws or limited liability company agreements (or similar organizational documents), (ii) conflict with or violate any Law to which the Company or its Subsidiaries is subject or (iii) constitute a breach or default under (with or without notice or lapse of time, or both), result in a violation of, result in the creation of any Lien upon any assets of the Company or its Subsidiaries under, or require any authorization, consent, approval, exemption or other action by or notice or declaration to, or filing with, any court or other Governmental Entity or other Person under, the provisions of any indenture, mortgage, lease, loan agreement or other agreement or instrument to which the Company or its Subsidiaries is a party or otherwise bound.

(c) Assuming the due authorization, execution and delivery by each of the Blocker Seller, the Purchaser and the Merger Sub of this Agreement and the other Transaction Documents to which they are a party, this Agreement constitutes, and upon their execution and delivery, the other Transaction Documents to which the Company is to become a party will constitute, valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies.

4.04 Capitalization .

(a) As of the date hereof, the Capitalization Schedule sets forth (i) the number of the Company’s issued and outstanding Class A Preferred Units (the “ Class A Preferred Units ”), Class B Preferred Units (the “ Class B Preferred Units ”) and Common Units (the “ Common Units ”), and (ii) the number of outstanding Options. All such Units and Options are owned of record by the Unitholders and Optionholders in the amounts set forth on the Capitalization Schedule , and all of the outstanding Units have been duly authorized and have not been issued in violation of any preemptive rights, rights of first refusal or similar rights. Except as set forth on the Capitalization Schedule , the Company does not have any other limited liability company interests, equity securities or securities containing any equity features authorized, issued or outstanding, and there are no agreements, options, warrants, profits interests, commitments or other rights or arrangements outstanding that provide for the sale or issuance of any of the foregoing by the Company or its Subsidiaries. Except as set forth on the Capitalization Schedule , there are no outstanding or authorized equity appreciation, phantom equity, or similar rights with respect to the Company. Except as set forth on the Capitalization

Schedule , there are no voting trusts, proxies or any other agreements or understandings with respect to the voting of the limited liability company interests or other equity securities of the Company. Except as set forth on the Capitalization Schedule , there are no agreements or other obligations (contingent or otherwise) other than those contemplated by the transactions hereby that require the Company or its Subsidiaries to repurchase or otherwise acquire or retire any of their respective limited liability company interests or other equity securities.

(b) With respect to the Options, (i) each grant of an Option was duly authorized no later than the date on which the grant of such Option was by its terms to be effective (the “ Grant Date ”) by all necessary limited liability company action of the Company, including approval by the board of managers of the Company, or a committee thereof, or a duly authorized delegate thereof, and any required approval by the Unitholders of the Company by the necessary number of votes or written consents, and the award agreement governing such grant, if any, was duly and timely executed and delivered by each party thereto, (ii) each such grant was made in material compliance with the terms of the applicable Plan and all applicable Law, (iii) the per share exercise price of each Option was not less than the fair market value of a Common Unit on the applicable Grant Date and (iv) no modifications have been made to any such grants after the Grant Date.

(c) The Indebtedness Schedule sets forth all Indebtedness of the Company and any of its Subsidiaries outstanding as of the date hereof.

4.05 Financial Statements and Related Matters.

(a) The Financial Statements Schedule attached hereto consists of: (i) the Company’s unaudited consolidated balance sheet as of March 31, 2013 (the “ Latest Balance Sheet ”) and the related unaudited consolidated statement of income and cash flows for the three-month period then ended (the “ Latest Statement of Income and Cash Flows ” and together with the Latest Balance Sheet, the “ Unaudited Financial Statements ”) and (ii) the Company’s audited consolidated balance sheets as of December 31, 2010, 2011 and 2012, and the related audited consolidated statements of income, cash flows and members’ equity for each of the twelve-month periods then ended (the “ Audited Financial Statements ” and together with the Unaudited Financial Statements, the “ Financial Statements ”). Except as set forth on the attached Financial Statements Schedule , the Financial Statements have been prepared in accordance with GAAP (subject in the case of the Unaudited Financial Statements to the absence of footnote disclosures and year-end adjustments), consistently applied, and present fairly in all material respects the financial condition, results of operations and cash flows of the Company and its Subsidiaries (taken as a whole) as of the times and for the periods referred to therein. Neither the Company nor any of its Subsidiaries has any liabilities or obligations that would be required by GAAP to be reflected or reserved against in a consolidated balance sheet, other than liabilities and obligations (x) included or disclosed in the Financial Statements, (y) incurred in the Ordinary Course of Business since the date of the Latest Balance Sheet (none of which is a liability or obligation for breach of contract, breach of warranty, tort or infringement or a claim or lawsuit or an environmental liability) or (z) incurred directly in connection with this Agreement or the transactions contemplated hereby.

(b) The Company and its Subsidiaries have established and maintain a system of internal accounting controls which it believes is sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any auditor, accountant or representative of the Company or its Subsidiaries has received any adverse written complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or its Subsidiaries or their respective accounting controls.

(c) Except as set forth on the Accounts Receivable Schedule , all accounts receivable of the Company and its Subsidiaries that are reflected on the Latest Balance Sheet of the Company or its Subsidiaries as of the Closing Date (collectively, the “ Accounts Receivable ”) represent or will represent valid obligations arising from bona fide sales actually made or services actually performed in the Ordinary Course of Business, and the goods and services involved have been sold, delivered and performed to the account obligors, and no further goods are required by the Company or any Subsidiary thereof to be provided and no further services are required to be rendered by the Company or any Subsidiary thereof in order to entitle the Company or the applicable Subsidiary thereof to seek collection of such accounts receivable. Except as set forth on the Accounts Receivable Schedule , (i) the Accounts Receivable have not been assigned or pledged to any other Person, and (ii) unless paid prior to the Closing Date, the Accounts Receivable are subject to no valid counterclaims, deductions, credits, setoffs or other offsets, other than as set forth in the Company’s and its Subsidiaries’ books and records.

(d) Except as set forth on the Inventory Schedule , the Company’s and its Subsidiaries’ inventory, net of the reserves applicable to such inventory specifically included in the Company’s and its Subsidiaries’ books and records, consists of a quantity and quality which, except as reflected in such reserves, (i) is properly reflected on the Company’s and its Subsidiaries’ books and records in accordance with GAAP (subject to the absence of footnote disclosures and year-end adjustments), (ii) is usable and, with respect to finished goods, saleable in the Ordinary Course of Business without rework or discount, and (iii) the items of such inventory are not damaged, defective, slow-moving or obsolete. Except as set forth on the Inventory Schedule , the Company and its Subsidiaries has good title to such inventory, free and clear of all Liens, except for Permitted Liens.

(e) Neither the Company nor any of its Subsidiaries is a party to, nor has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract relating to any transaction or relationship between the Company or any of its Subsidiaries, on the one hand, and any unconsolidated Affiliate of the Company or any of its Subsidiaries, including any structured finance or special purpose or limited purpose entity or Person, on the other hand, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the Securities Exchange Commission)).

4.06 Absence of Certain Developments . Since December 31, 2012, there has not been any Material Adverse Effect. Except as set forth on the Developments Schedule or except as expressly contemplated by this Agreement, since December 31, 2012 to the date hereof, the Company and its Subsidiaries have conducted their business in the Ordinary Course of Business, and neither the Company nor its Subsidiaries has:

(a) effected any recapitalization, reclassification, merger, consolidation, equity dividend, equity split or like change in its capitalization;

(b) transferred, issued, sold, pledged, encumbered, disposed or delivered any units or shares of its or its Subsidiaries’ equity securities or issued or sold any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any units or shares of its or its Subsidiaries’ equity securities, except for issuances of Units upon exercise of outstanding Options or as otherwise expressly contemplated by this Agreement;

(c) amended its or its Subsidiaries’ certificate or articles of formation or incorporation, operating agreement or bylaws or other organizational documents;

(d) sold, assigned or transferred any material portion of its assets, properties or rights, except in the Ordinary Course of Business or pursuant to any agreement set forth on the Contracts Schedule ;

(e) materially amended, terminated or accelerated, or exercised or waived any material rights under, any contract required to be disclosed on the Contracts Schedule (or any contract that would be required to be disclosed on the Contracts Schedule , but for the amendment, termination, acceleration, or exercise or waiver of any rights thereunder), or entered into any contract required to be disclosed on the Contracts Schedule , in each case other than in the Ordinary Course of Business;

(f) made any loans or incurred any Indebtedness other than in the Ordinary Course of Business;

(g) made any capital expenditures in excess of $300,000 individually or $500,000 in the aggregate or commitments therefor;

(h) granted any material Lien (other than Permitted Liens) in any of the Owned Real Property or Leased Real Property;

(i) (i) materially increased the compensation or fringe benefits (including vacation or paid-time-off entitlement) of any present or former director, officer, employee, individual consultant or independent contractor of the Company or any of its Subsidiaries, other than compensation raises to employees who are not officers or directors of the Company or any Company Subsidiary, individual consultants and independent contractors which are made in the Ordinary Course of Business and did not exceed 10% with respect to any such Person, (ii) granted any severance, bonus or termination pay to any present or former director, officer, employee, individual consultant or independent contractor of the Company or any of its Subsidiaries, (iii) granted any equity or equity-based awards or (iv) forgiven or discharged in whole or in part any outstanding material loans or advances to any present or former director, officer, employee, individual consultant or independent contractor of the Company or any of its Subsidiaries;

(j) settled, compromised or waived any material right in respect of any material litigation; or

(k) materially accelerated the collection of accounts receivable, materially delayed the purchase of supplies, materially delayed normal capital expenditures, repairs or maintenance, or materially delayed payment of accounts payable or accrued expenses.

4.07 Title to Properties .

(a) Except as set forth on the Liens Schedule , the Company or its Subsidiaries owns good title to, or holds pursuant to valid and enforceable leases, all of the tangible personal property shown to be owned or leased by it on the Latest Balance Sheet, free and clear of all Liens, except for Permitted Liens.

(b) The Leased Real Property Schedule sets forth the address of each parcel of Leased Real Property and a true a complete list of all Real Property Leases for such Leased Real Property (including the date and name of the parties to such Real Property Lease document). The Leased Real Property constitutes all of the real property leased by the Company and its Subsidiaries. Except as set forth on the Leased Real Property Schedule , the Leased Real Property leases are valid, binding, enforceable and in full force and effect, and the Company or its Subsidiaries holds a valid and existing leasehold interest under each such lease, subject to proper authorization and execution of such lease by the other party and the application of any bankruptcy or creditor’s rights laws. The Company has delivered or made available to the Purchaser complete and accurate copies of each of the Real Property Leases. With respect to each Real Property Lease listed on the Leased Real Property Schedule :

(i) neither the Company nor its Subsidiaries is in default in any material respect under, nor in receipt of any claim of default under, any of such Real Property Leases, and to the Company’s knowledge, no other party under any Real Property Lease is in material default under such Real Property Lease. No event has occurred which with the passage of time or the giving of notice or both would result in a material default, breach or event of noncompliance by the Company or its Subsidiaries or, to the Company’s knowledge, any other party under any Real Property Lease;

(ii) all required deposits and additional rents due to date pursuant to each Real Property Lease have been paid in full;

(iii) no security deposit or portion thereof deposited with respect to such Real Property Lease has been applied in respect of a breach or default under such Real Property Lease which has not been redeposited in full;

(iv) neither the Company nor any of its Subsidiaries has subleased, licensed or otherwise granted any Person the right to use or occupy the Leased Real Property or any portion thereof; and

(v) neither the Company nor any of its Subsidiaries has collaterally assigned or granted, other than Permitted Liens, any other Lien in such Real Property Lease or any interest therein.

(c) The Owned Real Property Schedule sets forth a true and complete description of all Owned Real Property. Except as set forth on the Owned Real Property

Schedule , neither the Company nor any of its Subsidiaries owns any Owned Real Property. With respect to each parcel of Owned Real Property listed on the Owned Real Property Schedule :

(i) either the Company or a Subsidiary of the Company owns good and valid title to such parcel of real property, free and clear of all Liens, security interests, easements and other restrictions, other than Permitted Liens;

(ii) except as set forth on the Owned Real Property Schedule , there are no leases, subleases, licenses, concessions or other agreements granting to any party or parties the right of use or occupancy of any portion of such parcel of real property;

(iii) there are no outstanding options or rights of first refusal to purchase, lease or otherwise obtain title or the right to use or occupy such parcel of real property, any portion thereof or interest therein;

(iv) the Company has made available to the Purchaser copies of any title insurance policies (together with copies of any documents of record listed as exceptions to title on such policies) currently insuring each Owned Real Property and copies of the most recent surveys of the same in the Company’s possession;

(v) except as set forth on the Owned Real Property Schedule , the Owned Real Property and the Company’s and its Subsidiaries’ current operation thereof is in compliance in all material respects with all applicable zoning, building, set back requirements and other applicable Laws of any Governmental Entity; and

(vi) to the knowledge of the Company, no condemnation, requisition or taking by any public authority has been threatened or contemplated, and neither the Company nor any Subsidiary thereof has received any notice of any such condemnation, requisition or taking by a Governmental Entity with respect to the Owned Real Property. To the knowledge of the Company, there are no public improvements or re-zoning measures proposed or in progress that will result in special assessments against or otherwise adversely affecting any of the Owned Real Property and neither the Company nor any Subsidiary thereof has received any notice of any such proposed public improvements or re-zoning measures by any Governmental Entity.

(d) All improvements, systems, equipment, machinery and fixtures on the Owned Real Property are in good operating condition and repair and generally are adequate and suitable in all material respects for the present and continued use, operation and maintenance thereof as now used, operated or maintained, ordinary wear and tear excepted.

(e) Neither the Company nor any of its Subsidiaries is a party to any agreement or option to purchase any real property or interest therein. The Leased Real Property and the Owned Real Property is adequate to permit the use thereof in the manner that it is currently utilized by the Company and its Subsidiaries.

4.08 Tax Matters . Where no applicable pre-Closing period is otherwise specified, with respect to taxable periods ending no earlier than three (3) years preceding the Closing Date, and except as set forth on the attached Taxes Schedule :

(a) (i) The Company and its Subsidiaries have filed all income and other material Tax Returns that they were required to file; (ii) the Company and its Subsidiaries have paid all income and other material Taxes (whether or not shown to be due on such Tax Returns) and have withheld and paid over to the appropriate taxing authority all material Taxes that they were required to withhold from amounts paid or owing to any employee, independent contractor or creditor; (iii) neither the Company nor its Subsidiaries has waived any statute of limitations beyond the date hereof with respect to any material Taxes or agreed to any extension of time with respect to any material Tax assessment or deficiency that has not yet been either paid or resolved; and (iv) no audits or administrative or judicial proceedings are pending or being conducted with respect to a material amount of Taxes of the Company or its Subsidiaries.

(b) The Company has not been a “United States real property holding corporation” within the meaning of Code §897(c)(2) during the applicable period specified in Code §897(c)(1)(A)(ii).

(c) Neither the Company nor its Subsidiaries has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Code §355 or §361.

(d) Neither the Company nor its Subsidiaries is or has been a party to any “listed transaction” as defined in Code §6707A and Regulation §1.6011-4.

(e) All deficiencies asserted in writing or assessments made in writing as a result of any examination of the Tax Returns referred to in Section 4.08(a)(i) have been paid in full or otherwise resolved.

(f) No claim has been made in writing by any Tax authority in a jurisdiction where the Company or any Subsidiary has not filed a Tax Return that it is or may be subject to Tax by such jurisdiction.

(g) Neither the Company nor any of its Subsidiaries is a party to, is bound by, or has an obligation under, any agreement, contract or arrangement relating to the apportionment, sharing, assignment or allocation of any Taxes (other than (i) any such customary agreements with customers, vendors, lenders, lessors or the like entered into in the Ordinary Course of Business, (ii) property Taxes payable with respect to leased properties and (iii) any other agreements for which Taxes are not the principal subject matter).

(h) Neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting for a taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed prior to the Closing; (iii) intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law); (iv) installment sale or open transaction disposition made prior to the Closing;

(v) election under Section 108(i) of the Code; or (vi) prepaid amount received prior to the Closing.

(i) Each of the Company, Actient Pharmaceuticals LLC and Actient Therapeutics LLC is, and has at all times since its formation been, treated for U.S. federal income tax purposes as a partnership or as a disregarded entity.

(j) No Person is entitled to receive any additional payment (including any tax gross-up or other payment) from the Company as a result of the imposition of the excise taxes required by Section 4999 of the Code.

For the avoidance of doubt, no representation is made concerning the existence or amount of any net operating loss.

4.09 Contracts and Commitments .

(a) Except as set forth on the attached Contracts Schedule , neither the Company nor any of its Subsidiaries is party to or bound by any: (i) collective bargaining agreement or any other agreement with any labor union, or severance agreements, programs, policies or arrangements; (ii) equity purchase, option or similar plan; (iii) contract or agreement for the employment of any officer, individual employee or other person on a full-time or consulting basis providing for or resulting in aggregate compensation in excess of $200,000 per annum, or any consulting or employment agreement with a health care provider entered into in the past twelve (12) months; (iv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien, except for Permitted Liens, on any material portion of the assets of the Company and its Subsidiaries; (v) guaranty of any obligation for borrowed money or other material guaranty; (vi) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $50,000; (vii) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, for which the annual rental exceeds $50,000; (viii) contract or group of related contracts with the same party for the purchase of products or services which provided for payments by the Company or its Subsidiaries in excess of $200,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet or which is reasonably expected as of the date hereof to be greater than $200,000 during any calendar year beginning on or after January 1, 2013; (ix) agreements relating to any completed or pending material business or product acquisition by the Company or its Subsidiaries within the last three (3) years; (x) material license or royalty agreement relating to the use of any third party Intellectual Property (other than off-the-shelf software) for which the royalty payments exceeded $100,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet or which is reasonably expected as of the date hereof to be greater than $100,000 during any calendar year beginning on or after January 1, 2013 (other than employment agreements); (xi) material license or royalty agreement relating to the use by a third party of material Intellectual Property owned by the Company; (xii) contract or agreement with any Affiliate; (xiii) agreement that contains covenants materially limiting the freedom of the Company to compete in any business, industry or geographic area or requiring the Company or its Subsidiaries to exclusively sell, buy, lease or distribute products of any Person or which contain pricing protection or “most favored nation” provisions or minimum purchase or minimum sale

obligations; (xiv) material contract with minimum purchase commitments or “take or pay” contract terms; (xv) distribution, vendor, dealership, franchise or service agreement (excluding purchase orders issued or received in the Ordinary Course of Business) relating to the distribution, marketing or sale of its products or services; (xvi) warranty agreement with respect to products sold or services rendered by the Company, co-promotion agreement or managed care contract; (xvii) settlement, conciliation or similar agreement with any governmental entity or pursuant to which the Company will be required after the execution date of this Agreement to pay consideration in excess of $25,000; (xviii) agreement with a Governmental Entity; or (xix) material agreement relating to the subcontracting to another Person of the Company’s obligations under any agreement identified pursuant to items (i) through (xviii) above.

(b) Except as set forth on the Contracts Schedule , true and correct copies of all written contracts, agreements, settlements and instruments which are referred to on the Contracts Schedule have been made available to the Purchaser and the Merger Sub, in each case together with all amendments, waivers or other changes thereto. The Contracts Schedule contains an accurate and complete description of all material terms of all oral contracts referred to therein.

(c) Neither the Company nor its Subsidiaries is in default in any material respect under any contract, agreement, settlement or instrument listed on or required to be listed on the Contracts Schedule , and each such contract, agreement, settlement or instrument is valid, binding, enforceable and in full force and effect as it relates to the Company and its Subsidiaries and, to the Company’s knowledge, as it relates to the other parties thereto, in each case except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies. No event has occurred that with the passage of time or the giving of notice or both would result in a material default, breach or event of noncompliance by the Company or any of its Subsidiaries or, to the Company’s knowledge, any other party under any such contract, agreement, settlement or instrument required to be listed on the Contracts Schedule . Except as set forth on the Contracts Schedule , with respect to each contract, agreement, settlement or instrument required to be set forth on the Contracts Schedule : (i) neither the Company nor any of its Subsidiaries has received written notice of the intention of any party to such contract, agreement, or instrument to decrease the rate of business, cancel, terminate or renegotiate any such contract, agreement or instrument; and (ii) to the Company’s knowledge, there has not been any breach by any other party to such contract, agreement, settlement or instrument.

4.10 Intellectual Property .

(a) The Intellectual Property Schedule contains a true and correct list of: (i) registered Intellectual Property and all applications for the registration of Intellectual Property rights owned by the Company or any of its Subsidiaries (“ Owned Intellectual Property ”) that is material to the operation of the businesses of the Company or any of its Subsidiaries as presently conducted, and (ii) all contracts pursuant to which the Company and its Subsidiaries is licensed by a third party to use any Intellectual Property rights that are material to the business of the Company or any of its Subsidiaries (other than Shrink-Wrap Licenses, defined below) (in each case, indicating whether the item listed is licensed from a third party or owned by the Company or its Subsidiaries, and identifying such third party or the Company or its Subsidiaries). For

purposes of this Agreement, “ Shrink-Wrap Licenses ” means “shrink-wrap,” “click-wrap,” or “click-through” type licenses for commercially available, non-customized software with an aggregate license fee (per software application, for all users) of less than $50,000.

(b) Except as set forth on Section (b) of the Intellectual Property Schedule , (i) the Company owns and possesses free and clear of all Liens (except Permitted Liens) all right, title, and interest in and to, the Owned Intellectual Property listed on the Intellectual Property Schedule, and (ii) during the three (3) year period prior to the date of this Agreement: (A) neither the Company nor its Subsidiaries has received any written notices of infringement or misappropriation from any third party with respect to any Intellectual Property owned by such third party (including “cease and desist” letters); (B) the Company has not received written notice of the invalidity of any Owned Intellectual Property of the Company; and (C) the Company has not received any written notice that a third party is infringing upon, misappropriating or otherwise violating the Intellectual Property rights of the Company.

(c) Except as set forth on Section (c) of the Intellectual Property Schedule , to the knowledge of the Company (which, for purposes of clarification, does not include any obligation to conduct a patent, trademark or other search of public registries of Intellectual Property or any other inquiry with respect to Intellectual Property) and except where the failure to do so would not, taken individually or in the aggregate, have a Material Adverse Effect, (i) the Company has the right to use all Intellectual Property currently used in the operation of the Company’s business as currently conducted; (ii) the Company has not infringed upon, misappropriated, or otherwise violated any Intellectual Property rights of any third parties, and (iii) no third party has infringed upon, misappropriated, or otherwise violated any Intellectual Property rights owned by the Company.

(d) The Company and each of its Subsidiaries have obtained from all parties (including current or former employees, consultants and contractors) who have created or developed any portion of, or otherwise who have any rights in or to, the Intellectual Property rights owned by the Company or its Subsidiaries written, valid and enforceable assignments of any such Intellectual Property rights to the Company or its Subsidiaries, except where the failure to obtain would not, individually or in the aggregate, have a Material Adverse Effect.

(e) Neither the Company nor any of its Subsidiaries has any present or future liability or obligations under any of the agreements set forth on the Terminated Contracts Schedule .

(f) The Company duly and properly exercised its Purchase Option (as defined in the UCB Agreement) pursuant to and in accordance with the terms and conditions of the UCB Agreement.

(g) Section 4.09 and this Section 4.10 constitute the sole and exclusive representations and warranties of the Company and its Subsidiaries with respect to all matters relating to Intellectual Property.

4.11 Litigation; Proceedings . Except for the Hartley Matter and as set forth on the attached Litigation Schedule , there are, and during the past three (3) years there have been,

no material actions, suits, proceedings, orders, judgments, decrees, or investigations pending or, to the Company’s knowledge, threatened in writing against the Company or its Subsidiaries (or, to the Company’s knowledge, against any of its officers, managers, directors, agents, or employees (in each case, in their capacity as such)), at law or in equity, or before or by any Governmental Entity, and neither the Company nor its Subsidiaries is subject to any outstanding judgment, order, settlement or decree of any court or other Governmental Entity. There is no claim, action, suit or proceeding pending or, to the Company’s knowledge, threatened, and to the Company’s knowledge there is no governmental investigation or audit pending or threatened, against the Company or its Subsidiaries, by or before any court, governmental or regulatory authority or by any third party which challenges the validity of this Agreement or which would be reasonably likely to adversely affect or restrict the Company’s performance under this Agreement or its ability to consummate the transactions contemplated hereby.

4.12 Governmental Consents, etc. . Except for the applicable requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “ HSR Act ”) and except as set forth on the attached Governmental Consents Schedule , no material permit, consent, approval or authorization of, or declaration to or filing with, any Governmental Entity is required in connection with any of the execution, delivery or performance of this Agreement by the Company or the consummation by the Company of any transaction contemplated hereby.

4.13 Employee Benefit Plans .

(a) Section (a) of the Employee Benefits Schedule sets forth a list of each material Plan.

(b) The Company has made available to Purchaser with respect to each material Plan, to the extent applicable: (i) a true and complete copy of the Plan document, if any, including any trust agreements, and insurance contracts that implement or fund such a Plan and all amendments thereto; (ii) the most recent determination letter, if any, received by the Company from the Internal Revenue Service (the “ IRS ”) regarding the tax-qualified status of such Plan; (iii) the most recent financial statements for such Plan, if any; (iv) the most recent actuarial valuation report, if any; (v) the current summary plan description and any summaries of material modifications; and (vi) Form 5500 Annual Returns/Reports, including all schedules and attachments, including the audit opinions, for the most recent plan year.

(c) Each of the Plans that is intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the “ Code ”), and its related trust, has received a favorable determination or prototype opinion letter from the Internal Revenue Service, and nothing has occurred with respect to the operation of any such plan which would reasonably be expected to cause the loss of such qualification or exemption or the imposition of any material liability for legal noncompliance, penalty or tax under ERISA or the Code.

(d) With respect to the Plans, all contributions and premium payments required by the terms of a Plan or applicable Law to have been made prior to the date hereof have been made. Neither the Company nor any of its Subsidiaries has, or could reasonably be expected to have, an obligation to contribute to or any liability (including any withdrawal liability as determined under Title IV of ERISA) with respect to any “multiemployer plan” (as

defined in Section 4001(a)(3) of ERISA) or any “pension plan” (as defined in Section 3(2) of ERISA) that is subject to Section 412 or 4971 of the Code, Section 302 of ERISA, or Title IV of ERISA.

(e) Except as set forth on Section (e) of the Employee Benefits Schedule , there are no pending or, to the knowledge of the Company, threatened actions, claims or lawsuits against or relating to any of the Plans, the assets of any of the trusts under such Plans or the Company or any of its Subsidiaries with respect to the Plans, or against any fiduciary of the Plans with respect to the operation of the Plans (other than routine benefits claims).

(f) Each Plan has been established, administered and funded in all material respects in accordance with its terms, and in compliance in all material respects with the applicable provisions of ERISA, the Code and other applicable Laws.

(g) Neither the Company nor any of its Subsidiaries has or will have any liability or be subject to any lien relating to any “employee benefit plan” (as defined in Section 3(3) of ERISA) on account of being considered a single employer under Section 414 of the Code with any Person other than the Company or its Subsidiaries.

(h) Except as set forth on Section (h) of the Employee Benefits Schedule, none of the Plans provide retiree health or life insurance benefits except as may be required by Section 4980B of the Code and Section 601 of ERISA, any other applicable Law or at the expense of the participant or the participant’s beneficiary. There has been no material violation of the “continuation coverage requirement” of “group health plans” as set forth in Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA with respect to any Plan to which such continuation coverage requirements apply.

(i) Except as set forth on Section (i) of the Employee Benefits Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) (i) result in any payment becoming due, or increase the amount of any compensation or benefits due, to any current or former employee of the Company and its Subsidiaries or with respect to any Plan; (ii) increase any benefits otherwise payable under any Plan; or (iii) result in the acceleration of the time of payment or vesting of any compensation or benefits under any Plan.

(j) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (excluding, for the avoidance of doubt, any transactions or arrangements initiated by the Purchaser to which the Company or its Subsidiaries are not party prior to the Closing Date) will result in the payment of any amount that would not be deductible pursuant to Section 280G of the Code.

(k) Each Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) is in documentary compliance with, and has been administered, since October 1, 2004, in good faith compliance with Section 409A of the Code in all material respects.

(l) Neither the Company nor any of its Subsidiaries maintains, sponsors or contributes (or is required to contribute) to any Plan on behalf of employees located outside of the United States.

(m) To the knowledge of the Company, each of its and its Subsidiaries’ directors, officers and employees that held any Incentive Units issued on or prior to March 18, 2013 (whether vested or unvested) immediately prior to the Effective Time made an election pursuant to Section 83(b) of the Code with respect to such Incentive Units on or promptly following the date on which such Incentive Units were issued.

4.14 Insurance . The attached Insurance Schedule lists each material insurance policy maintained by the Company and its Subsidiaries and specifies, with respect to each policy, the insurer, amount of coverage, type of insurance and expiration date relating thereto. Neither the Company nor its Subsidiaries is in material default with respect to its obligations under any such insurance policy. Neither the Company nor, during such time as such Person has been a Subsidiary of the Company, any Subsidiary of the Company has been denied insurance coverage. Each insurance policy listed on the Insurance Schedule is in full force and effect. To the Company’s knowledge, there has not been any failure to give any notice or present any claim under any insurance policy in a timely fashion. There are currently no unpaid (and past due) premiums under its insurance policies, nor has there been any written notice from any of the Company’s insurers to the Company or its Subsidiaries that any coverage listed on the Insurance Schedule may not be available in the future on substantially the same terms as currently in effect. Except as set forth on the Insurance Schedule , no written notice of cancellation or nonrenewal with respect to, material increase in any premium thereof or disallowance of any claim under, any insurance policy has been received by the Company or its Subsidiaries. The Insurance Schedule also contains a list of all outstanding bonds and other surety arrangements issued or entered into in connection with the business of the Company and its Subsidiaries. Except as set forth on the Insurance Schedule , there is no material claim by the Company or any of its Subsidiaries pending under any of the insurance policies.

4.15 Governmental Licenses and Permits . The attached Permits Schedule contains a complete listing of all material approvals, filings, permits, licenses, certificates and other authorizations of any Governmental Entity, or other similar rights (collectively, “ Permits ”) owned, possessed or held by the Company or its Subsidiaries in connection with the conduct of their business as presently conducted. The Permits identified on the Permits Schedule comprise all material Permits required for the Company and its Subsidiaries to conduct their business as presently conducted and are in full force and effect, except for such Permits the failure of which to possess or be in compliance with would not have a Material Adverse Effect. The Company and its Subsidiaries are in material compliance with the terms and conditions of such Permits. Except as otherwise set forth on the attached Permits Schedule , during the past (3) years, neither the Company nor any of its Subsidiaries has received written or, to the Company’s knowledge, oral notices from any Governmental Entity that it is in violation of any of the terms or conditions of such Permits. To the Company’s knowledge, no loss or expiration of any such Permit is pending or threatened, other than expiration in accordance with the terms thereof.

4.16 Compliance with Laws . Except as otherwise set forth on the attached Compliance with Laws Schedule , for the past three (3) years, (a) the Company, its Subsidiaries

and to the Company’s knowledge, their respective officers, directors, agents (in their capacity as such), and employees have complied in all material respects with and are in material compliance with all applicable Laws that are applicable to the business, business practices of the Company or its Subsidiaries, (b) no claims, written notices, charges, complaints, actions, suits, investigations, proceedings or hearings have been filed (other than any of the foregoing that is sealed under an order of protection or afforded similar confidential treatment by a Governmental Entity) or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries alleging a material violation of any such applicable Law and (c) to the Company’s knowledge, the Company has not received oral notice of any such material violation. Except as otherwise set forth on the Compliance with Laws Schedule , during the past three (3) years the Company’s products and product candidates have been developed, tested, manufactured and stored, as applicable, in compliance in all material respects with all applicable Laws.

4.17 FDA Regulatory Compliance . Except as otherwise set forth on the attached FDA Regulatory Schedule :

(a) The Company and each of its Subsidiaries are in compliance in all material respects with all applicable FDA Laws administered or issued by the FDA or any applicable, comparable Governmental Entity (such as the Drug Enforcement Administration (the “ DEA ”)), including requirements related to development, clinical and non-clinical evaluation, 510(k) premarket notification, investigational new drug applications, new drug applications, abbreviated new drug applications, establishment registration and product listing, medical device reporting, adverse drug experience reporting, field alert reporting, corrections and removals, recalls, quality system regulation, good manufacturing practices, product warranties (with respect to medical devices), distribution, importation, exportation, use, handling, quality, sale, labeling, promotion, or advertising and other premarket and postmarket requirements or commitments of any drug or medical device or controlled substance subject to regulation by the Drug Enforcement Administration under the Controlled Substances Act.

(b) During the past three (3) years neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any of the directors, officers, or employees of the Company or any of its Subsidiaries has been charged with, nor received any notice or other communication from the FDA or any other Governmental Entity alleging, any material violation of any FDA Laws by the Company or any of its Subsidiaries relating to its business. To the Company’s knowledge, the Company and its Subsidiaries, and the directors, officers, or employees of the Company and its Subsidiaries, are not the subject of any investigation that is pending, proposed, or threatened by the FDA or any comparable Governmental Entity. Neither the Company nor any of its Subsidiaries is subject to any obligation arising under any civil or criminal judicial, administrative, or regulatory action, FDA inspection, FDA warning letter, FDA untitled letter, FDA notice of violation letter, or other communication from the FDA or a comparable Governmental Entity, including the DEA, or other notice, response or commitment made to or with the FDA or a comparable Governmental Entity, including the DEA. During the past three (3) years, the Company and its Subsidiaries have not received any information regarding, nor have knowledge of, any facts or circumstances that furnish any reasonable basis for any future civil or criminal judicial, administrative, or regulatory action, Form FDA-483 inspectional observations, untitled letter, notice of violation letter, warning letter, or similar communication from the FDA, or any comparable Governmental Entity, including the DEA. To

the knowledge of the Company, no director, officer, or employee of the Company or any of its Subsidiaries, or any consultant or agent of the Company or any of its Subsidiaries has been convicted of any crime or engaged in any conduct for which debarment is mandated or permitted by 21 U.S.C. § 335a.

(c) No seizure, denial, withdrawal, recall, detention, field notification, field correction, termination or suspension of manufacturing or marketing, import alert, or safety alert relating to any of the Company’s or its Subsidiaries’ products has been initiated, proposed, requested, or threatened by FDA or a comparable Governmental Entity, including the DEA, within the past three (3) years. The Company and its Subsidiaries have not received any information regarding, nor have knowledge of, any facts or circumstances reasonably likely to cause any such action.

(d) Each filing, submission, or other communication to the FDA or any comparable Governmental Entity, including the DEA, in any other jurisdiction made by the Company or any of its Subsidiaries within the past three (3) years was true, accurate and complete in all material respects as of the date made. To the knowledge of the Company, there is no false or misleading information or significant omission in any product application or other submission to the FDA or other comparable Governmental Entity, including the DEA, made by the Company or any of its Subsidiaries within the past three (3) years. The Company and each of its Subsidiaries have notified the FDA and all such Governmental Entities, including the DEA, of any changes to such filings or submissions as required by Law.

(e) The Company and/or its Subsidiaries are the sole and exclusive owners of the pending, cleared, and approved abbreviated new drug applications, new investigational drug applications, and 510(k) premarket notifications set forth on the Drug/Device Applications Schedule , each of which is valid and existing in full force and effect, and may be assigned to, transferred to or assumed by the Purchaser in accordance with this Agreement. To the Company’s knowledge, neither the FDA nor any other comparable Governmental Entity, including the DEA, has notified the Company that it is considering limiting, suspending or revoking any such Regulatory Permit and Exemption or changing the regulatory classification or labeling of any Product. To the Company’s knowledge, no third party that is a supplier, manufacturer or contractor for the Company or any of its Subsidiaries has been subject to civil or criminal judicial, administrative, or regulatory action during the past three (3) years alleging material violation of FDA Laws, including receipt of an FDA warning letter, FDA untitled letter, FDA notice of violation letter, FDA-483 inspectional observations, or other communications from the FDA or comparable Governmental Entities, including the DEA, relating to the manufacture of the Products or product components for the Company or its Subsidiaries.

4.18 United States Healthcare Fraud and Abuse Law Compliance.

(a) Neither the Company nor any of its Subsidiaries, nor any of the officers, directors or employees of the Company or its Subsidiaries: (i) has been charged with or convicted of any criminal offense relating to the delivery of an item or service under Medicare, Medicaid or any other Federal Health Care Program; (ii) has been debarred, excluded or suspended, or threatened with exclusion, from participation in Medicare, Medicaid or any other Federal Health Care Program; (iii) has had a civil monetary penalty assessed or threatened

against it under Section 1128A of the Social Security Act; (iv) is currently listed on the U.S. General Services Administration published list of parties excluded from federal procurement programs and non-procurement programs or the U.S. Department of Health and Human Services Office of Inspector General’s List of Excluded Individuals/Entities; or (v) to the knowledge of the Company, is the target or subject of any current or potential investigation relating to any Medicare, Medicaid or other Federal Health Care Program-related offense.

(b) During the past three (3) years, neither the Company nor any of its Subsidiaries, nor, to the Company’s knowledge, any of the officers, directors or managing employees or agents (as those terms are defined in 42 C.F.R. § 1001.1001) of the Company or its Subsidiaries has engaged in any activity in violation of: the federal or state laws governing their participation in Title XVIII or Title XIX of the Social Security Act (the Medicare or Medicaid programs, respectively); the Federal Health Care Laws or related regulations; or substantially similar state laws or regulations; including:

(i) making or causing to be made a false statement or representation of a material fact in any application for any benefit or payment;

(ii) making or causing to be made a false statement or representation of a material fact for use in determining rights to any benefit or payment;

(iii) soliciting or receiving any remuneration (including any kickback, bribe, or rebate), directly or indirectly, overtly or covertly, in cash or kind (A) in return for referring an individual to a Person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part by any Federal Health Care Program, or (B) in return for purchasing, leasing, or ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service or item for which payment may be made in whole or in part by any Federal Health Care Program; or

(iv) offering or paying any remuneration (including any kickback, bribe or rebate), directly or indirectly, overtly or covertly, in cash or in kind, to any Person to induce such Person (A) to refer an individual to a Person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal Health Care Program, or (B) to purchase, lease, order or arrange for or recommend purchasing, leasing or ordering any good, facility, service or item for which payment may be made in whole or in part under a Federal Health Care Program.

(c) During the past three (3) years no Person has filed (other than any claim or action that is sealed under an order of protection or afforded similar confidential treatment by a Governmental Entity) or, to the knowledge of the Company, has threatened to file against the Company or any of its Subsidiaries a claim or action under any federal or state whistleblower statute, including the False Claims Act (31 U.S.C. § 3729 et seq .).

(d) During the past three (3) years neither the Company nor any of its Subsidiaries has received any notice of adverse finding, warning letter, notice of violation or

similar communication from any Governmental Entity concerning compliance or alleged non-compliance with any federal or state law governing its participation in Title XVIII or Title XIX of the Social Security Act (the Medicare or Medicaid programs, respectively); any of the Federal Health Care Laws or related regulations; or any substantially similar state law or regulation.

(e) Neither the Company nor any of its Subsidiaries is a party to, or bound by, any order, individual integrity agreement, corporate integrity agreement, or other formal or informal agreement with any Governmental Entity concerning compliance with any federal or state law governing its participation in Title XVIII or Title XIX of the Social Security Act (the Medicare or Medicaid programs, respectively); any of the Federal Health Care Laws or related regulations; or any substantially similar state law or regulation.

(f) The Company and its Subsidiaries routinely submit all bills, claims and reports to Federal Health Care Programs for services, items or goods actually provided to persons qualified under such Federal Health Care Programs to receive such services, items or goods. The regular practice of the Company and its Subsidiaries is that all such bills, claims and reports are complete and accurate and are prepared in compliance with all applicable Laws.

(g) Other than as identified in the attached United States Healthcare Fraud and Abuse Law Compliance Schedule , neither the Company nor any of its Subsidiaries have any outstanding overpayments or refunds due to any Federal Health Care Program except amounts arising from and subject to the Company’s or Subsidiary’s, as the case may be, regular practice of identifying and resolving such overpayments or refunds.

(h) During the past three (3) years, neither the Company nor any of its Subsidiaries have been audited or surveyed in connection with any Federal Health Care Program other than audits or surveys that are disclosed on the United States Healthcare Fraud and Abuse Law Compliance Schedule .

(i) Where acting as a durable medical equipment supplier, each of the Company and its Subsidiaries, as applicable, is certified for participation and reimbursement under all applicable Federal Health Care Programs.

(j) During the past three (3) years neither the Company nor any of its Subsidiaries has received any written notice indicating that its qualification as a participating supplier in a Federal Health Care Program is to be terminated or withdrawn, and, and to the knowledge of the Company, there are no facts or circumstances that would be reasonably likely to cause its qualification as a participating supplier in a Federal Health Care Program to be terminated or withdrawn.

4.19 HIPAA; HITECH Compliance . Except as otherwise set forth on the attached HIPAA; HITECH Compliance Schedule :

(a) To the extent applicable, the Company and its Subsidiaries comply, and during the past three (3) years have complied, in all material respects, with: (i) HIPAA; (ii) the HIPAA Regulations; (iii) the Health Information Technology for Economic and Clinical Health Act at Section 13400 et seq . of the American Recovery and Reinvestment Act of 2009 and regulations promulgated thereunder; and (iv) the Health Information Laws. Neither the

Company nor any of its Subsidiaries is under investigation or subject to any outstanding fine or criminal or civil penalty by any Governmental Entity for reasons of violation or alleged violation of any Health Information Law.

(b) During the past three (3) years, neither the Company nor any of its Subsidiaries has had any unauthorized use or disclosure of Protected Health Information that would constitute a breach under a federal or state data breach notification or similar law that requires notification under such data breach notification law.

(c) The Company and its Subsidiaries comply, and during the past three (3) years have complied, with all applicable Privacy Commitments. The Company and its Subsidiaries have put into place contractual commitments with its customers, subcontractors and other third parties as are required by applicable Health Information Laws and applicable Privacy Commitments. The Company and its Subsidiaries have undertaken all necessary surveys, audits, inventories, reviews, analyses and assessments (including any risk assessments) required under applicable provisions of the Health Information Laws.

(d) Neither the Company nor any of its Subsidiaries outsources any operation or gives access to customer data to an overseas entity. Except as set forth on the HIPAA; HITECH Compliance Schedule , neither the Company nor any of its Subsidiaries has sold Protected Health Information to any third party.

(e) During the past three (3) years, neither the Company nor any of its Subsidiaries has received an inquiry from the Federal Trade Commission, the Office of Civil Rights of the U.S. Department of Health and Human Services, the Centers for Medicare and Medicaid Services, a State Attorney General or any other Governmental Entity regarding a possible violation of any of the Health Information Laws.

4.20 Names and Locations . Except as otherwise set forth on the attached Names and Locations Schedule , during the past five (5) years, the Company and its Subsidiaries have not used any name or names under which they have invoiced account debtors, maintained records regarding its assets or otherwise conducted business other than the names set forth in this Agreement and the Schedules hereto. During the past five (5) years, neither the Company nor any Subsidiary has reincorporated or reorganized in a different jurisdiction.

4.21 Customers and Suppliers . The attached Customers and Suppliers Schedule lists the ten (10) largest customers based on the gross revenues of the Company and its Subsidiaries on a consolidated basis for the most recent fiscal year and the three (3) month period ended as of the date of the Latest Balance Sheet (and the revenues generated from such customer). Since January 1, 2012, neither the Company nor any of its Subsidiaries has received any written notice from any such customer (including distributors) set forth on the Customers and Suppliers Schedule to the effect that (and the Company has no knowledge of any written or oral notice that) any such customer will stop, or materially decrease the rate of, buying Products of the Company (whether as a result of the consummation of the transactions contemplated hereby or otherwise). The Customers and Suppliers Schedule lists the ten (10) largest vendors, suppliers or service providers based on the gross expenses of the Company and its Subsidiaries on a consolidated basis for the most recent fiscal year and the three (3) month period ended as of

the date of the Latest Balance Sheet (and the amounts paid to each such Person during such periods). Since January 1, 2012, neither the Company nor any of its Subsidiaries has received any written notice from any such Person listed on the Customers and Suppliers Schedule to the effect that (and the Company has no knowledge of any written or oral notice that) any such Person will stop, materially decrease the rate of, or materially increase the price of supplying materials, products or services to the Company (whether as a result of the consummation of the transactions contemplated by this Agreement or otherwise).

4.22 Environmental Compliance . Except as set forth on the attached Environmental Schedule :

(a) The Company and its Subsidiaries are in material compliance with all applicable Environmental Requirements. The Company and its Subsidiaries have not received, during the past three (3) years, any communication (written or oral) from any Person alleging that the Company or any of its Subsidiaries is not in such material compliance.

(b) The Company and its Subsidiaries have obtained and possess all material permits, licenses and other authorizations required under Environmental Requirements and are in material compliance with all terms and conditions of such permits, licenses and other authorizations.

(c) There is no material Environmental Claim pending or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries or, to the Company’s knowledge, against any Person or entity whose liability for any Environmental Claim the Seller has or may have retained or assumed either contractually or by operation of law.

(d) Neither the Company nor any its Subsidiaries, and to the Company’s knowledge, no other Person has Released any Hazardous Materials produced by, or resulting from, any business, commercial or industrial activities, operations or processes, on, beneath or adjacent to any property currently or formerly owned, operated or leased by the Company or its Subsidiaries, except for such substances used, and wastes generated therefrom, in the Ordinary Course of Business (which substances and wastes, if any, were and are stored or disposed of in material compliance with applicable Environmental Requirements or in a manner that would not reasonably be expected to give rise to an Environmental Claim).

(e) Neither the Company nor any of its Subsidiaries is subject to any material judgment, order or decree of any court or other Governmental Entity that is outstanding and was issued pursuant to Environmental Requirements.

4.23 Affiliated Transactions

(a) Except as set forth on the attached Affiliated Transactions Schedule , no officer, director, manager, equityholder, member or Affiliate of the Company or any of its Subsidiaries or, to the Company’s knowledge, any individual in such officer’s, director’s, manager’s, equityholder’s or member’s immediate family is a party to any material agreement, contract, commitment or transaction with the Company or any of its Subsidiaries or has any material interest in any material property, real or personal or mixed, tangible or intangible, used

by the Company or any of its Subsidiaries, other than any equity interests set forth on the Capitalization Schedule and any agreements set forth on the Contracts Schedule .

(b) On or prior to the date hereof, each of the agreements set forth on the Terminated Affiliated Transactions Schedule was terminated, and neither the Company nor any of its Subsidiaries has any further liabilities, rights or obligations thereunder.

4.24 Employees .

(a) None of the Company nor any of its Subsidiaries is a party to or otherwise bound by any collective bargaining agreement or other labor union contract applicable to employees of the Company or any of its Subsidiaries and, to the knowledge of the Company and its Subsidiaries, there are not any activities or proceedings of any labor union to organize any such employees. To the Company’s and its Subsidiaries’ knowledge: (i) there is no unfair labor practice charge or complaint pending before any applicable Governmental Entity relating to the Company or any of its Subsidiaries or any employee thereof; (ii) there is no labor strike, material slowdown or material work stoppage or lockout pending or threatened against or affecting the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries has experienced any strike, material slowdown or material work stoppage, lockout or other collective labor action by or with respect to its employees in the past three (3) years; (iii) there is no representation claim or petition pending before any applicable Governmental Entity; and (iv) there are no charges with respect to or relating to the Company or any of its Subsidiaries pending before any applicable Governmental Entity responsible for the prevention of unlawful employment practices.

(b) Each of the Company and each of its Subsidiaries is and has been in compliance in all material respects with all applicable Laws relating to employment, including all applicable Laws relating to wages, hours, collective bargaining, employment discrimination, civil rights, employment verification, safety and health, workers’ compensation, pay equity, classification of employees and independent contractors, overtime, and the collection and payment of withholding and/or social security Taxes.

(c) In the last three (3) years, none of the Company or any of its Subsidiaries has effectuated a “plant closing” or “mass layoff” (as defined in the United States Worker Adjustment and Retraining Notification Act, or any similar Law) or taken any other action that would trigger notice or liability under any state, local or foreign plant closing notice Law. Each of the Company and its Subsidiaries is, and for the last three (3) years has been, in compliance with the Worker Adjustment Retraining Notification Act of 1988, as amended and each similar state or local Law.

(d) Prior to the date hereof, the Company delivered to the Purchaser a list of all employees of the Company or any of its Subsidiaries that are, or were within the past six months, on long-term disability or other unpaid medical leave, or leave due to a workplace injury covered by a workers’ compensation policy or program incurred more than six months prior to the Closing Date.

(e) Neither the Company nor, to the knowledge of the Company or any of its Subsidiaries, any of the Company’s or its Subsidiaries’ employees or individual independent contractors is bound by any contract (including licenses, covenants or commitments of any nature) or subject to any judgment, decree or order of any Governmental Entity that would materially interfere with the use of such Person’s best efforts to promote the interests of the Company or any of its Subsidiaries or that would materially conflict with the Company’s or any of its Subsidiaries’ business as currently conducted.

4.25 Approval of Merger by Unitholders . On the basis of the limited liability company agreement of the Company as in effect immediately prior to the Effective Time and the Delaware LLC Law, the approval of this Agreement and the Merger, by vote or written consent, of a majority of the outstanding Class A Preferred Units is the only vote of any class or series of the equity interests of the Company required to approve this Agreement and the transactions contemplated by this Agreement (the “ Company Unitholder Approval ”). The execution and delivery of the Written Consent satisfies the Company Unitholder Approval. None of the holders of the Class A Preferred Units nor any other Units or Options will be entitled to any “dissenter’s rights,” “appraisal rights” or any similar remedies under Delaware LLC Law or any other applicable law in connection with the consummation of the transactions contemplated hereby.

4.26 Brokerage . Except for the Persons listed on the attached Brokerage Schedule , no Person is entitled to any brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of the Company or any of its Subsidiaries. The full amount of any such brokerage commissions, finders’ fees or similar compensation is included as a Transaction Expense on the Preliminary Statement.

4.27 The Blocker Seller .

(a) Capacity, Power and Authority; Absence of Conflicts . The Blocker Seller possesses full right, capacity, power and authority to enter into and carry out the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by the Blocker Seller. Assuming the due authorization, execution and delivery by each of the Company, the Purchaser and the Merger Sub of this Agreement and the other Transaction Documents to which they are a party, this Agreement constitutes, and upon their execution and delivery, the other Transaction Documents to which the Blocker Seller is to become a party will constitute, valid and binding obligations of the Blocker Seller, enforceable in accordance with their respective terms, except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies. The execution, delivery and performance by the Blocker Seller of the Transaction Documents to which it is a party do not, and the consummation of the transactions contemplated hereby and thereby will not, (i) conflict with or result in any breach of the terms, conditions or provisions of the Blocker Seller’s certificate of incorporation or bylaws, (ii) conflict with or violate any Law to which the Blocker Seller is subject or (iii) constitute a breach or default under (with or without notice or lapse of time, or both), result in a violation of, result in the creation of any Lien upon any assets of the Blocker Seller under, or require any authorization, consent, approval, exemption or other action by or

notice or declaration to, or filing with, any court or other Governmental Entity or other Person under, the provisions of any indenture, mortgage, lease, loan agreement or other agreement or instrument to which the Blocker Seller is a party or otherwise bound.

(b) Ownership of the Shares; No Other Equity Interests . The Shares constitute 100% of the issued and outstanding capital stock of the Blocker Corp. The Blocker Seller is the sole legal and beneficial owner of the Shares, free and clear of any Liens, other than those imposed by federal or state securities laws, and at the Closing will transfer and convey to the Purchaser good, marketable and valid title to and complete ownership of all such Shares, free and clear of all Liens, other than those imposed by federal or state securities laws. The Blocker Seller has the legal right, power and authority to sell to the Purchaser the Shares. The Blocker Seller has no other equity, security, derivative security, phantom security, stock appreciation right or equity-based interest (or right to any such interest) in or with respect to the Blocker Corp or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of capital stock of the Blocker Corp.

4.28 The Blocker Corp .

(a) Blocker Corp Organization . The Blocker Corp is a corporation duly organized, validly existing and in good standing under the laws of Delaware. The Blocker Corp has made available to the Purchaser complete and correct copies of the charter and bylaws of the Blocker Corp as now in effect, and no amendments thereto are pending. The charter and bylaws of the Blocker Corp shall be in full force and effect as of the Closing. The Blocker Corp is not in default under or in violation of any of the provision of its charter or bylaws currently in effect.

(b) Blocker Corp Capitalization; Subsidiaries and Affiliates .

(i) The Blocker Corp Capitalization Schedule sets forth all of the Shares as of the date of this Agreement and the holder of record thereof. The Shares have been duly authorized and validly issued in accordance with applicable Law and are fully paid and non-assessable. Except for the Shares, there is no other issued and outstanding capital stock of the Blocker Corp, or securities convertible into or exchangeable or exercisable for capital stock outstanding, and there are no outstanding phantom equity, stock appreciation rights, options, warrants, rights, contracts, commitments, voting trusts, proxies, understandings or arrangements by which the Blocker Corp is bound to issue, transfer, repurchase, redeem or otherwise acquire or retire any capital stock or other securities of the Blocker Corp.

(ii) Other than the Units set forth on the Capitalization Schedule , the Blocker Corp does not own any capital stock or other equity securities of any Person and does not have any other type of interest (whether ownership or other) in any other Person. The Blocker Corp is not subject to any obligation or requirement to provide funds for, or to make any investment (in the form of a loan, capital contribution or otherwise) to or in, any Person.

(c) Consents and Approvals . Except for compliance with the HSR Act, no consent, approval or authorization of, or declaration, filing or registration with, any

Governmental Entity is required to be made or obtained by the Blocker Corp in connection with the consummation of the transactions contemplated by this Agreement. No consent, approval or authorization of, or notice to any counterparty to any contract to which the Blocker Corp is bound must be made or obtained by the Blocker Corp in connection with the consummation of the transactions contemplated by this Agreement.

(d) Blocker Corp Operations; No Liabilities or Obligations . The Blocker Corp, since the date of its incorporation, has not carried on any business or conducted any operations other than acquiring and holding ownership (directly or indirectly) in the Company. Other than with respect to the ownership of the Units set forth on the Capitalization Schedule , or as contemplated by this Agreement, the Blocker Corp has no assets or liabilities except as set forth on the Blocker Corp Balance Sheet Schedule .

(e) Blocker Corp Tax Matters .

(i) The Blocker Corp has filed all federal income and other material Tax Returns that are required to be filed by it. All income and other material Taxes required to be paid by the Blocker Corp have been fully paid (whether or not shown to be due on such Tax Returns), and all material Taxes which the Blocker Corp is obligated to withhold from amounts owing to any employee, creditor or third party have been withheld and paid to the appropriate taxing authority.

(ii) There are no pending audits or similar examinations with respect to any Tax Return of or with respect to the Blocker Corp, nor has the Blocker Corp received any notice from a taxing authority that it intends to conduct such an audit or investigation. All deficiencies asserted or assessments made as a result of any past examinations by any taxing authority of the Tax Returns of, or including, the Blocker Corp have been fully paid.

(iii) The Blocker Corp has not waived any statute of limitations in respect of any Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.

(iv) The Blocker Corp has not distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Code §355 or §361.

(v) The Blocker Corp has not been a “United States real property holding corporation” within the meaning of Code §897(c)(2) during the applicable period specified in Code §897(c)(1)(A)(iii).

(vi) No claim has been made in writing by any Tax authority in a jurisdiction where the Blocker Corp has not filed a Tax Return that it is or may be subject to Tax by such jurisdiction.

(vii) The Blocker Corp will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any:

(i) change in method of accounting for a taxable period ending on or prior to the Closing Date; (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed prior to the Closing; (iii) intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law); (iv) installment sale or open transaction disposition made prior to the Closing; (v) election under Section 108(i) of the Code; or (vi) prepaid amount received prior to the Closing.

(viii) There are no Liens as a result of any unpaid Taxes upon any of the assets of the Blocker Corp, other than Liens for Taxes not yet due and payable.

For the avoidance of doubt, no representation or warranty is made concerning the existence or amount of any net operating loss.

4.29 No Other Representations or Warranties . Except for the representations and warranties contained in this Article IV , each of the Purchaser and the Merger Sub acknowledges that none of the Company, the Sellers nor any other Person on behalf of the Company makes any other express or implied representation or warranty (a) with respect to the Company or any of its Subsidiaries, (b) with respect to any other information provided to the Purchaser or the Merger Sub or (c) in connection with the transactions contemplated by this Agreement. Neither the Company nor any other Person will have or be subject to any liability to the Purchaser, the Merger Sub or any other Person resulting from the distribution to the Purchaser or the Merger Sub, or the Purchaser’s or the Merger Sub’s use of any such other information, including any information, documents, projections, forecasts or other material made available to the Purchaser, the Merger Sub or its or their representatives in certain “data rooms” or management presentations or otherwise in expectation of the transactions contemplated by this Agreement.

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND THE MERGER SUB

The Purchaser and the Merger Sub represent and warrant to the Sellers and the Company that, except as set forth in the Disclosure Schedules; provided , any information set forth in any Schedule or incorporated in any Section of this Agreement shall be considered to have been set forth in each other Schedule and shall be deemed to modify the representations and warranties in this Article V , in each case, if the relevance of the disclosure set forth in such Schedule is reasonably apparent on the face of such disclosure:

5.01 Organization and Organizational Power . The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, with full power and authority to enter into this Agreement and perform its obligations hereunder. The Merger Sub is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, with full power and authority to enter into this Agreement and perform its obligations hereunder.

5.02 Authorization . The execution, delivery and performance by each of the Purchaser and the Merger Sub of this Agreement and the other Transaction Documents to which they are a party and the consummation of the transactions contemplated hereby and thereby, and the performance of their obligations hereunder and thereunder, have been duly and validly authorized by all requisite corporate or limited liability company action, as the case may be, and no other proceedings on their part are necessary to authorize the execution, delivery or performance of this Agreement and the other Transaction Documents or the consummation of the transactions contemplated hereby and thereby. The Purchaser and Merger Sub have duly executed and delivered this Agreement and, at or prior to the Closing, will have duly and validly executed and delivered each of the other Transaction Documents to which they are a party. Assuming the due authorization, execution and delivery by each of the Company and the Blocker Seller of this Agreement and the other Transaction Documents to which they are a party, this Agreement constitutes, and upon their execution and delivery, the other Transaction Documents to which the Purchaser or Merger Sub is to become a party, will constitute, valid and binding obligations of each of the Purchaser and the Merger Sub, enforceable in accordance with their respective terms, except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies. No vote of the holders of any class or series of capital stock of the Purchaser or the Merger Sub (other than the consent of the Purchaser which has been obtained) is required to adopt this Agreement and approve the transactions contemplated hereby.

5.03 No Violation . Neither the Purchaser nor the Merger Sub is subject to or obligated under its certificate or articles of incorporation or formation, its bylaws or its operating agreement (or similar organizational documents), any Law, or any material permit, agreement or instrument, or any license or franchise, or subject to any order, writ, injunction or decree, which would be breached or violated in any material respect by either of the Purchaser’s or the Merger Sub’s execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby.

5.04 Governmental Consents . Except for the applicable requirements of the HSR Act and except as set forth on the attached Purchaser Governmental Consents Schedule , no material permit, consent, approval or authorization of, or declaration to or filing with, any Governmental Entity is required to be obtained by either of the Purchaser or the Merger Sub in connection with its execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby.

5.05 Litigation . There are no suits or proceedings pending or, to either of the Purchaser’s or the Merger Sub’s knowledge, threatened in writing against either of the Purchaser or the Merger Sub at law or in equity, or before or by any Governmental Entity, which challenges the validity of this Agreement or would adversely affect or restrict the Purchaser’s or the Merger Sub’s performance under this Agreement or their ability to consummate the transactions contemplated hereby. Neither the Purchaser nor the Merger Sub is subject to any outstanding judgment, order or decree of any court or other Governmental Entity.

5.06 Brokerage . Except for the Persons listed on the attached Purchaser Brokerage Schedule , no Person is entitled to any brokerage commissions, finders’ fees or similar

compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of either the Purchaser or the Merger Sub.

5.07 Investment Representation . The Purchaser is acquiring the membership interests of the Company for its own account with the present intention of holding such securities for investment purposes and not with a view to, or for sale in connection with, any distribution of such securities in violation of any federal or state securities laws. The Purchaser is an “accredited investor” as defined in Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “ Securities Act ”). The Purchaser acknowledges that the membership interests of the Company have not been registered under the Securities Act, or any state or foreign securities laws and that the membership interests of the Company may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of unless such transfer, sale, assignment, pledge, hypothecation or other disposition is pursuant to the terms of an effective registration statement under the Securities Act, and the membership interests of the Company are registered under any applicable state or foreign securities laws or sold pursuant to an exemption from registration under the Securities Act, and any applicable state or foreign securities laws.

5.08 Availability of Funds . Assuming (x) that the representations and warranties of the Company set forth in Article IV are true and correct in all material respects and (y) the performance in all material respects by the Company of its obligations under this Agreement, the Purchaser and the Merger Sub, in the aggregate, will have at the Closing sufficient cash to make payment of all amounts to be paid by them hereunder on and after the Closing Date.

5.09 The Merger Sub . The Merger Sub is a newly organized limited liability company, formed solely for the purpose of engaging in the transactions contemplated by this Agreement. Prior to the date hereof, the Merger Sub has not engaged in any business activities or conducted any operations other than in connection with the transactions contemplated by this Agreement. The Merger Sub is a wholly owned Subsidiary of the Purchaser.

5.10 Solvency . Immediately after giving effect to the transactions contemplated hereby (including the incurrence of any related debt financing and assuming the Assumptions are correct), the Purchaser and each of its Subsidiaries (including the Surviving Company and its Subsidiaries) shall be able to pay their respective debts as they become due and shall own property which has a fair saleable value greater than the amounts required to pay their respective debts (including a reasonable estimate of the amount of all contingent liabilities). Immediately after giving effect to the transactions contemplated hereby (including the incurrence of any related debt financing and assuming the Assumptions are correct), the Purchaser and each of its Subsidiaries (including the Surviving Company and its Subsidiaries) shall have adequate capital to carry on their respective businesses. No transfer of property is being made and no obligation is being incurred in connection with the transactions contemplated by this Agreement with the intent to hinder, delay or defraud either present or future creditors of the Purchaser and its Subsidiaries (including the Surviving Company and its Subsidiaries). For purposes of this Section 5.10 , the “ Assumptions ” shall mean (i) that the representations and warranties of the Company contained in this Agreement are true and correct in all material respects, at and immediately after the Closing and (ii) that information set forth in the Pre-Closing Statement is

true and correct in all material respects, subject to any adjustments taken into account in the final determination of the Final Merger Consideration pursuant to Article II , and that any estimates, projections or forecasts of the Company and its Subsidiaries provided to the Purchaser have been prepared in good faith based upon reasonable assumptions, immediately after giving effect to the transactions contemplated by this Agreement and the other Transaction Documents.

5.11 The Warrant and Warrant Shares . The Warrant has been duly authorized and, when executed and delivered as contemplated hereby, will constitute a valid and legally binding obligation of the Purchaser in accordance with its terms, and the shares of common stock, $0.01 par value per share, of the Purchaser (the “ Purchaser Common Stock ”) issuable upon exercise of the Warrant (the “ Warrant Shares ”) have been duly authorized and reserved for issuance upon exercise of the Warrant and, when so issued, will be validly issued, fully paid and non-assessable, free from all Liens and will not be subject to preemptive rights of any other stockholders of the Purchaser.

5.12 SEC Reports . Except as set forth on the Purchaser SEC Reports Schedule , the reports and forms filed by the Purchaser with the Securities and Exchange Commission under Sections 13(a), 14(a) or 15(d) of the Securities Exchange Act of 1934 (the “ Exchange Act ”) during the past three (3) years conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Securities and Exchange Commission thereunder.

5.13 No Other Representations or Warranties . Except for the representations and warranties contained in this Article V , each of the Representative and the Blocker Seller acknowledges that none of the Purchaser, the Merger Sub, nor any other Person on behalf of the Purchaser or Merger Sub makes any other express or implied representation or warranty (a) with respect to the Purchaser, Merger Sub, or any of their respective Subsidiaries, (b) with respect to any other information provided to the Sellers or the Representative or (c) in connection with the transactions contemplated by this Agreement. Neither the Purchaser nor any other Person will have or be subject to any liability to the Sellers, the Representative or any other Person resulting from the distribution to the Sellers or the Representative, or their use of any such other information, including any information, documents, projections, forecasts or other material made available to the Sellers, the Representative or its or their representatives or management presentations or otherwise in expectation of the transactions contemplated by this Agreement.

ARTICLE VI

COVENANTS OF THE PURCHASER

6.01 Access to Books and Records . From and after the Closing, for a period of seven (7) years, the Purchaser shall, and shall cause the Surviving Company to, provide the Representative and its authorized representatives with reasonable access, during normal business hours and upon reasonable prior notice, to the books and records (for the purpose of examining and copying at the Representative’s expense) of the Company and its Subsidiaries with respect to periods or occurrences prior to or on the Closing Date as may be reasonably necessary for (i) the Representative to prepare and file any Tax Returns or other report or document with any Governmental Entity or (ii) any indemnity claim pursuant to the indemnification provisions

hereunder; provided that, notwithstanding the foregoing, (a) such access does not unreasonably interfere with the normal operations of the Surviving Company or its Subsidiaries, (b) except as necessary for a purpose described in clause (i) or (ii) above, the Representative or its authorized representatives maintain the confidentiality of any information delivered to it pursuant to this Section 6.01 , (c) nothing in this Section 6.01 shall require the Purchaser to provide access to, or to disclose any information to, the Representative if such access or disclosure would be in violation of applicable Law or is unrelated to the purposes for which the Representative is permitted access to such information pursuant to the terms of this sentence and (d) nothing in this Section 6.01 shall require the Purchaser to provide access to, or to disclose any information to, the Representative to the extent that such information is subject to an attorney/client or work product privilege; provided , however , that the Purchaser shall, to the extent that the same may be provided in a fashion consistent with the maintenance of such privilege, make reasonable efforts to provide such information and records reasonably required by the Representative or any of its representatives. Unless otherwise consented to in writing by the Representative, the Purchaser shall not, and shall not permit the Surviving Company or its Subsidiaries to, for a period of seven (7) years following the Closing Date, destroy, alter or otherwise dispose of any of the books and records of the Company or its Subsidiaries for any period prior to the Closing Date without first giving reasonable prior notice to the Representative and offering to surrender to the Representative such books and records or any portion thereof which the Purchaser or the Surviving Company may intend to destroy, alter or dispose of.

6.02 Director and Officer Liability and Indemnification .

(a) For a period of six (6) years after the Closing Date, the Purchaser shall not, and shall not permit the Surviving Company or its Subsidiaries to amend, repeal or otherwise modify any provision in the Company’s or its Subsidiaries’ certificate of formation, certification of incorporation, articles of incorporation, operating agreement, bylaws, or equivalent governing documents relating to the exculpation or indemnification (including fee advancement) of any officers, managers and/or directors (unless required by Law) in a manner that would adversely affect the rights thereunder of individuals who, as of the Closing Date or at any time prior to the Closing Date, were officers, managers and directors of the Company or its Subsidiaries, it being the intent of the parties that such Persons shall continue to be entitled to such exculpation and indemnification (including fee advancement) to the full extent of the Law. The Purchaser shall, and shall cause the Surviving Company and its Subsidiaries to, honor and perform under all indemnification obligations owed to any of the individuals who were officers, managers and/or directors of the Company or its Subsidiaries at or prior to the Closing Date to the maximum extent permitted by applicable Law.

(b) If the Surviving Company, its Subsidiaries or any of their respective successors or assigns (i) is to consolidate with or merges into any other Person and will not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) is to transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Surviving Company and its Subsidiaries shall assume all of the obligations set forth in this Section 6.02 The provisions of this Section 6.02 are intended for the benefit of, and will be enforceable by, each current and former officer, manager, director or similar functionary of the Company or its Subsidiaries and his or her heirs and representatives, and are in addition to, and not in

substitution for, any other rights to indemnification or contribution that any such person may have had by contract or otherwise.

(c) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Closing Date) is made against any individuals who were officers, managers or directors of the Company and its Subsidiaries at or prior to the Closing Date or any other party covered by directors’ and officers’ liability insurance, on or prior to the sixth anniversary of the Closing Date, the provisions of this Section 6.02 shall continue in effect solely with respect to any such claim, action, suit, proceeding or investigation until the final disposition of such claim, action, suit, proceeding or investigation.

6.03 Employment and Benefit Arrangements .

(a) For a period of no less than twelve (12) months following the Closing Date, the Purchaser will provide (or cause an Affiliate of the Purchaser to provide) each employee who continues in employment with the Surviving Company or any of its Subsidiaries following the Effective Time (each, a “ Continuing Employee ”) with (i) a base salary or an hourly wage rate, as applicable, that is no lower than the base salary or hourly wage rate provided to such Continuing Employee immediately prior to the Effective Time, and (ii) employee benefits, including, without limitation, health, welfare, retirement and severance benefits (other than equity-based awards), that are substantially similar to those provided by the Company to such employee immediately prior to the Effective Time or provided to similarly situated employees of the Purchaser and its Affiliates from time to time. Notwithstanding anything to the contrary in this Section 6.03 , the Purchaser shall have full discretion with respect to bonuses to be paid to employees for fiscal year 2013 (subject to any pre-existing contract arrangements binding on the Purchaser). The Purchaser shall be solely responsible for any obligations arising under Section 4980B of the Code with respect to all “M&A qualified beneficiaries” as defined in Treasury Regulation §54.4980B-9.

(b) For purposes of determining eligibility, vesting, participation and, in the case of vacation and severance programs only, benefit accrual under the Purchaser’s and its Affiliates’ plans and programs providing employee benefits (excluding any defined benefit pension plans) to Continuing Employees after the Closing Date (the “ Purchaser Benefit Plans ”), each Continuing Employee shall be credited with his or her years of service with the Company (and its predecessors) prior to the Closing Date to the same extent as such Continuing Employee was (or would have been) entitled, before the Closing Date, to credit for such service under Plans, except to the extent providing such credit would result in any duplication of benefits. In addition, the Purchaser shall (or shall cause an Affiliate of the Purchaser to) use commercially reasonable efforts to cause: (i) each Continuing Employee to be eligible to participate, without any waiting time (other than administrative delays expressly required pursuant to the terms of an applicable Purchaser Benefit Plan), in any and all Purchaser Benefit Plans; (ii) each Purchaser Benefit Plan providing medical, dental, hospital, pharmaceutical or vision benefits to provide that all pre-existing condition exclusions and actively-at-work requirements of such Purchaser Benefit Plan are waived for such Continuing Employee and his or her covered dependents (except to the extent that such exclusions or requirements applied to the Continuing Employee under comparable Plans as of the Closing Date), and (iii) each Purchaser Benefit Plan providing

medical, dental, hospital, pharmaceutical or vision benefits to give effect, in determining any deductible and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed to, the Continuing Employees during the plan year of the applicable Plan during which the Closing occurs with respect to similar Purchaser Benefit Plans.

(c) Nothing contained in this Section 6.03 shall (i) subject to compliance with the requirements of this Section 6.03 , be construed to restrict in any way the ability of the Purchaser, the Surviving Company or any of their Affiliates to (A) amend, terminate or modify the duties, responsibilities or employment of any Continuing Employee, (B) to amend, terminate or modify any Plan or Purchaser Benefit Plan, compensation or benefit arrangement or any other employee benefit plans or programs maintained by the Purchaser, the Surviving Company or their Affiliates at any time or from time to time, or (C) grant any employee any special right for compensation, (ii) be treated as an amendment or other modification of any compensation or benefit arrangement of the Purchaser, the Surviving Company or any of its Affiliates, including any Plan or Purchaser Benefit Plan, or (iii) be construed to create any third-party beneficiary rights in any present or former employee, service provider, independent contractor, consultant, any such Person’s alternate payees, dependents or beneficiaries or any other Person.

ARTICLE VII

INDEMNIFICATION

7.01 Survival of Representations, Warranties, Covenants, Agreements and Other Provisions . Except to the extent a different period is expressly set forth herein, the representations, warranties, covenants and agreements in this Agreement shall survive the Closing and shall terminate on the Applicable Limitation Date. For purposes of this Agreement, the term “ Applicable Limitation Date ” shall mean September 30, 2014; provided , that (a) the Applicable Limitation Date with respect to the Fundamental Representations and the representations and warranties set forth in Section 4.08 (Tax Matters), Section 4.16 (Compliance with Laws), Section 4.17 (FDA Regulatory Compliance), Section 4.18 (United States Healthcare Fraud and Abuse Law Compliance), Section 4.19 (HIPAA; HITECH Compliance) shall be September 30, 2015, (b) the Applicable Limitation Date with respect to the covenants and agreements set forth in Article VII (other than Section 7.02(a)(i) as it relates to representations and warranties not listed in clause (a) above and Section 7.02(a)(vii) except as it relates to the first item on the Disclosure Schedules Indemnity Schedule ), Section 8.03 , Article IX and Article X shall be September 30, 2015 and (c) the covenants and agreements set forth in Section 8.04 (Blocker Seller Release) shall survive in perpetuity and shall not have an Applicable Limitation Date. No claim for indemnification hereunder for breach of any such representations, warranties, covenants and agreements may be made after the expiration of the Applicable Limitation Date; provided , however , that any obligation under Section 7.02 , Section 7.03 and/or Section 8.03 shall not terminate (and shall expressly survive until the final resolution thereof, notwithstanding anything contained herein to the contrary) with respect to any claim in respect of which the Person to be indemnified shall have given notice to the indemnifying party in accordance with this Article VII before the termination of the Applicable Limitation Date.

7.02 Indemnification from the Escrow Account for the Benefit of the Purchaser Parties .

(a) From and after the Closing (but subject to the provisions of this Article VII and the Escrow Agreement), the Purchaser, on behalf of the Purchaser Parties, shall be entitled to assert, as the Purchaser Parties’ sole and exclusive remedy for any action relating (directly or indirectly) to this Agreement and the transactions contemplated hereby, other than with respect to claims for fraud (in which case a claim for fraud may only be asserted against the Person(s) that committed such fraud), and only in accordance with the terms of this Article VII and the Escrow Agreement, claims against the Escrow Account and the Earn-Out Amounts in respect of any Losses that the Purchaser Parties determined in good faith may be suffered or incurred by the Purchaser Parties or any of them to the extent arising or resulting from:

(i) any breach of any representation or warranty set forth herein by the Company, the Representative or the Sellers or in any Exhibit, Schedule or certificate delivered hereunder (it being understood and agreed that the existence of any such breach of any representation or warranty referred to in this clause (i) (other than the first sentence of Section 4.06 ) and any resulting Losses shall be determined without regard to any qualification or exception contained therein relating to materiality, Material Adverse Effect or any similar qualification standard);

(ii) any nonfulfillment or breach of any covenant or agreement set forth herein by the Company, the Representative or the Sellers or in any Exhibit, Schedule or certificate delivered hereunder (excluding in all cases any nonfulfillment or breach of the Company or its Subsidiaries that occurs after the Closing);

(iii) any claim by any current or former holder of Units or Options (but only to the extent that such claim specifically arises out of or relates to such Person’s status as a current or former holder of Units or Options, as the case may be); provided , however , the Purchaser shall not be entitled to indemnification pursuant to this clause (iii) to the extent that such claim arises under Section 7.03 ;

(iv) the Hartley Matter;

(v) any Indebtedness of the Company or its Subsidiaries or any Transaction Expenses, in each case to the extent not taken into account in determining the Final Merger Consideration;

(vi) the matters set forth on the Specific Indemnity Schedule ; or

(vii) the matters set forth on the Disclosure Schedules Indemnity Schedule .

Notwithstanding the foregoing, other than with respect to claims for fraud (in which case a claim for fraud may only be asserted against the Person(s) that committed such fraud), no claims by the Purchaser Parties arising from indemnification claims made pursuant to Section 7.02(a)(i) or Section 7.02(a)(vii) shall be asserted unless and until the aggregate amount of Losses that would otherwise be payable hereunder from the Escrow Account or through the exercise of the right of

set-off in accordance with Section 7.02(c) exceeds, on a cumulative basis, an amount equal to $5,850,000 (the “ Deductible ”), and then only to the extent such Losses exceed the Deductible; provided that, the Deductible shall not apply to any claims by the Purchaser on behalf of the Purchaser Parties (A) to the extent based upon or arising or resulting from any breach of any of the Fundamental Representations or any representation or warranty set forth in Section 4.08 (Tax Matters) or (B) made pursuant to Section 7.02(a)(ii) , Section 7.02(a)(iii) , Section 7.02(a)(iv) , Section 7.02(a)(v) , Section 7.02(a)(vi) or Section 8.03 . In addition, other than with respect to claims for fraud (in which case a claim for fraud may only be asserted against the Person(s) that committed such fraud), (i) no individual claim by the Purchaser on behalf of the Purchaser Parties shall be so asserted unless and until the aggregate amount of Losses that would be payable pursuant to such claim exceeds an amount equal to $25,000 (the “ Mini-Basket ”) (it being understood that any such individual claims for amounts less than the Mini-Basket shall be disregarded in determining whether the Deductible has been exceeded and thereafter); provided that, the Mini-Basket shall not apply to any claims by the Purchaser on behalf of the Purchaser Parties (A) to the extent based upon or arising or resulting from any breach of any of the Fundamental Representations or any representation or warranty set forth in Section 4.08 (Tax Matters) or (B) made pursuant to Section 7.02(a)(ii) , Section 7.02(a)(iii) , Section 7.02(a)(iv) , Section 7.02(a)(v) , Section 7.02(a)(vi) or Section 8.03 ; and (ii) the aggregate amount of all payments received by the Purchaser Parties (whether from releases from the Escrow Account or through the exercise of the right of set-off in accordance with Section 7.02(c) ) in satisfaction of claims for indemnification pursuant to this Section 7.02 and Section 8.03 shall not exceed $43,875,000 (the “ Indemnification Cap ”). For the avoidance of doubt, the Purchaser Parties shall only be entitled to receive indemnification payments pursuant to this Section 7.02 with respect to Losses that have actually been suffered or incurred by the Purchaser Parties.

(b) Except in the case of fraud (in which case a claim for fraud may only be asserted against the Person(s) that committed such fraud) or the right to specific performance or other equitable relief in accordance with the terms of this Agreement, the Purchaser Parties’ sole and exclusive remedies for any and all Losses or other claims relating to or arising from this Agreement or in connection with the transactions contemplated hereby, including in any Exhibit, Schedule or certificate delivered hereunder shall be limited to recovery against the funds then remaining and available in the Escrow Account pursuant to this Section 7.02 and the Escrow Agreement as their first recourse, and thereafter, the right of set-off pursuant to Section 7.02(c) ; provided that the foregoing shall not limit any rights or remedies of the Purchaser Parties arising pursuant to or in connection with the agreements identified in Section 3.02(h) . The Purchaser, on behalf of itself and the other Purchaser Parties, agrees that other than in the case of fraud (in which case a claim for fraud may only be asserted against the Person(s) that committed such fraud), pursuant to the agreements required to be delivered pursuant to Section 3.02(h) or indirectly through the payment of all or a portion of the Escrow Amount to the Purchaser Parties if and as required by the terms of this Agreement and the Escrow Agreement and the right of set-off pursuant to Section 7.02(c) , under no circumstances will the Representative, the Sellers or any of their Affiliates, or their respective officers, directors, partners, members, employees, agents, representatives, successors and permitted assigns (collectively, the “ Seller Parties ”) have any liability to the Purchaser or any of its Affiliates, or their respective officers, directors, partners, members, employees, agents, representatives, successors and permitted assigns (collectively, the “ Purchaser Parties ”) relating to or arising from this Agreement or in connection

with the transactions contemplated hereby, including in any Exhibit, Schedule or certificate delivered hereunder.

(c) If any Purchaser Party is entitled (pursuant only to an executed settlement agreement between the Purchaser and the Representative or a judgment or decree entered by a court of competent jurisdiction in favor of any Purchaser Party (a “ Final Determination ”)) to payment of any amount under this Section 7.02 or Section 8.03(a) and if at such time no funds remain in the Escrow Account or if there are good-faith indemnity claims in an amount equal to or exceeding the then-current balance in the Escrow Account, the Purchaser, on behalf of the Purchaser Parties, may set-off, or cause to be set-off, such amount against amounts otherwise payable under pursuant to Section 2.03 . Prior to a Final Determination with respect to any outstanding claim by the Purchaser, on behalf of the Purchaser Parties, under this Section 7.02 or Section 8.03(a) , if at such time no funds are available in the Escrow Account to satisfy such claim or if there are good-faith indemnity claims in an amount equal to or exceeding the then-current balance in the Escrow Account, the Purchaser, on behalf of the Purchaser Parties, may withhold, or cause to be withheld, from the amounts otherwise payable under Section 2.03 an amount equal to such outstanding claim and instead deposit such amount (or cause such amount to be deposited) into an escrow account for the benefit of the Sellers and the Purchaser Parties, which amounts shall be released, as appropriate, to the Sellers (through the Paying Agent) or the Purchaser Parties as directed in a Final Determination. In connection with any amounts deposited into escrow pursuant to the immediately preceding sentence, the escrow amount shall be held by the Escrow Agent, or another escrow agent mutually agreeable to the Purchaser and the Representative, pursuant to an escrow agreement upon the same terms and in substantially the same form as the Escrow Agreement, subject to such modifications as are reasonably acceptable to the Purchaser, the Representative and the escrow agent thereunder.

(d) None of the Purchaser or the other Purchaser Parties may avoid the limitations on liability set forth in this Article VII by seeking damages for breach of contract, tort or pursuant to any other theory of liability and, except in the case of fraud (in which case a claim for fraud may only be asserted against the Person(s) that committed such fraud), the Purchaser, for itself and the other Purchaser Parties, hereby waives, from and after the Closing, to the fullest extent permitted under applicable Law, any and all rights, claims and causes of action it may have against the Seller Parties relating (directly or indirectly) to the subject matter of this Agreement arising under or based upon any Law or otherwise. Notwithstanding anything to the contrary contained in this Agreement, the Purchaser shall have no right to indemnification hereunder with respect to any Loss or alleged Loss to the extent such Loss or alleged Loss is included in the determination of the Final Merger Consideration and in such case, solely to the extent of such inclusion therein.

(e) All payments made from the Escrow Account shall be treated by the parties as an adjustment to the proceeds received by the Sellers pursuant to Article III hereof.

(f) (i) Except for the Purchaser pursuant to Section 3.02(c) , no Person (including any Seller Party) shall have any obligation to fund the Escrow Account and (ii) other than with respect to any amounts in the Escrow Account which may be used to satisfy indemnification claims outstanding on such date (which amounts shall remain in the Escrow Account until such matters are finally resolved even if such matters are resolved following

September 30, 2014), the Escrow Agent shall transfer the balance of the Escrow Account to the Sellers (pro rata according to each Seller’s Residual Percentage) on September 30, 2014, subject to and in accordance with the terms of the Escrow Agreement.

7.03 Indemnification by the Purchaser for the Benefit of the Sellers . From and after the Closing (but subject to the provisions of this Article VII ), the Representative, on behalf of the Seller Parties, shall be entitled to assert, as the Seller Parties’ sole and exclusive remedy for any action relating (directly or indirectly) to this Agreement and the transactions contemplated hereby, other than with respect to claims for fraud (in which case a claim for fraud may only be asserted against the Person(s) that committed such fraud) or the right to specific performance or other equitable relief in accordance with the terms of this Agreement, and only in accordance with the terms of this Article VII , claims in respect of any Losses that the Representative determined in good faith may be suffered or incurred by the Seller Parties or any of them to the extent arising or resulting from:

(a) any breach of any representation or warranty set forth herein by the Purchaser or the Merger Sub or in any Exhibit, Schedule or certificate delivered hereunder (it being understood and agreed that the existence of any such breach of any representation or warranty referred to in this clause (a) and any resulting Losses shall be determined without regard to any qualification or exception contained therein relating to materiality, material adverse effect or any similar qualification standard);

(b) any nonfulfillment or breach of any covenant or agreement set forth herein by the Purchaser or the Merger Sub or in any Exhibit, Schedule or certificate delivered hereunder;

(c) any claim or suit brought against any of the Seller Parties at any time on or after the Closing Date relating to actions taken by the Purchaser, the Surviving Company or their respective Subsidiaries on or after the Closing Date other than any claim or action by the Purchaser pursuant to Section 7.02 ; or

(d) any claim or suit pursuant to any obligations set forth on the Guarantees Schedule , but in each case only if a claim has not been made against such guarantee as of the Closing Date.

Any indemnification pursuant to this Section 7.03 shall be delivered to the applicable Seller Parties by wire transfer of immediately available funds to the account or accounts designated by the Representative within fifteen (15) days after the Final Determination thereof. Notwithstanding the foregoing, other than with respect to claims for fraud (in which case a claim for fraud may only be asserted against the Person(s) that committed such fraud), no claims by the Representative on behalf of the Seller Parties arising from indemnification claims made pursuant to Section 7.03(a) shall be asserted unless and until the aggregate amount of Losses that would otherwise be payable hereunder by the Purchaser in respect of its indemnification obligations hereunder exceeds, on a cumulative basis, an amount equal to the Deductible, and then only to the extent such Losses exceed the Deductible; provided that, the Deductible shall not apply to any claims by the Representative on behalf of the Seller Parties (A) to the extent based upon or arising or resulting from any breach of any of the Fundamental Representations or (B) made

pursuant to Section 7.03(b) , Section 7.03(c) or Section 7.03(d) . In addition, other than with respect to claims for fraud (in which case a claim for fraud may only be asserted against the Person(s) that committed such fraud), (i) no individual claim by the Representative shall be so asserted unless and until the aggregate amount of Losses that would be payable pursuant to such claim exceeds an amount equal to the Mini-Basket (it being understood that any such individual claims for amounts less than the Mini-Basket shall be disregarded in determining whether the Deductible has been exceeded and thereafter); provided that, the Mini-Basket shall not apply to any claims by the Representative on behalf of the Seller Parties (A) to the extent based upon or arising or resulting from any breach of any of the Fundamental Representations or (B) made pursuant to Section 7.03(b) , Section 7.03(c) or Section 7.03(d) ; and (ii) the aggregate amount of all payments received by the Seller Parties in satisfaction of claims for indemnification pursuant to this Section 7.03 shall not exceed $43,875,000. For the avoidance of doubt, the Seller Parties shall only be entitled to receive indemnification payments pursuant to this Section 7.03 with respect to Losses that have actually been suffered or incurred by the Seller Parties. Notwithstanding anything to the contrary herein, this Section 7.03 shall not limit any rights or remedies of the Seller Parties arising pursuant to or in connection with the Warrant or Registration Rights Agreement.

7.04 Procedures .

(a) Any Person making a claim for indemnification under this Article VII or under Section 8.03 (an “ Indemnitee ,” it being understood and agreed that only the Representative shall have the right to make a claim for indemnification under this Article VII on behalf of the Seller Parties and only the Purchaser shall have the right to make a claim for indemnification under this Article VII or Section 8.03 on behalf of the Purchaser Parties) shall notify the Purchaser (in the case of a claim by the Representative on behalf of the Seller Parties) or the Representative (in the case of a claim by the Purchaser on behalf of the Purchaser Parties) (in such context, the Purchaser or the Representative being referred to herein as an “ Indemnitor ”) of the claim in writing promptly after receiving written notice of any pending or threatened action, lawsuit, proceeding, investigation or other claim against it (if by a third party) or discovering the liability, obligation, or facts giving rise to such claim for indemnification, describing the claim, the amount thereof (if known and quantifiable) and the basis thereof (it being understood that such Indemnitee may assert a claim for indemnification hereunder by sending written notice to the Indemnitor pursuant to the terms of this Agreement, and shall not be required to file an actual claim for indemnification with a Governmental Entity in order to properly deliver a notice of a claim hereunder); provided that (i) subject to Section 7.01 , the failure to so notify the Indemnitor shall not relieve the Indemnitor of its obligations hereunder except to the extent, and only to the extent, the Indemnitor shall have been prejudiced as a result of such failure, and (ii) references to payment obligations or similar references of the Indemnitor when the Indemnitor is the Representative shall only be satisfied out of the funds then remaining and available in the Escrow Account pursuant to Section 7.02 and the Escrow Agreement and the right of set-off pursuant to Section 7.02(c) . In that regard, if any action, lawsuit, proceeding, investigation, or other claim shall be brought or asserted by any third party which, if adversely determined, would entitle the Indemnitee to indemnity pursuant to this Article VII or under Section 8.03 , the Indemnitee shall promptly notify the Indemnitor of the same in writing, specifying in detail the basis of such claim and the facts pertaining thereto, but, subject to Section 7.01 , failure to provide such notification shall not affect the rights of the Indemnitee hereunder except to the

extent set forth in clause (i) to the proviso to the preceding sentence. Any Indemnitor shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and at its option shall be entitled to assume the defense thereof with reputable counsel reasonably acceptable to the Indemnitee; provided that any Indemnitor shall continue to be entitled to assert any limitation on any claims contained herein; and provided further that the Indemnitor shall not have the right to assume control of such defense and shall pay the fees and expenses of reputable counsel retained by the Indemnitee and reasonably acceptable to the Indemnitor, if the claim which the Indemnitor seeks to control (t) involves a claim that is reasonably likely to have a material adverse effect on the Indemnitee’s reputation, customer or supplier relations or future business prospects, (u) seeks equitable or injunctive relief, except where equitable or injunctive relief is incidental to a primary claim or claims for monetary damages, (v) is brought by a Governmental Entity, except as provided in Section 8.03(j) , (w) involves criminal allegations, (x) would reasonably be expected to result in greater liability to the Indemnitee than the Indemnitor, taking into account the Deductible, the Indemnification Cap and other limitations on indemnification herein; (y) is one in which the Indemnitor is also a party and joint representation would be inappropriate or there may be legal defenses available to the Indemnitee that are different from or additional to those available to the Indemnitor, or (z) involves a claim which, upon petition by the Indemnitee, the appropriate court rules that the Indemnitor failed or is failing to vigorously prosecute or defend (each of clauses (t) through (z) , a “ Litigation Condition ”). Notwithstanding anything herein to the contrary, the Purchaser and the Surviving Company shall be entitled to control the defense of the Hartley Matter; provided that, the Purchaser and the Surviving Company shall permit the Representative, at its own expense, to participate in the defense of the Hartley Matter.

(b) If the Indemnitor is permitted to assume and control the defense and elects to do so, the Indemnitee shall have the right to employ counsel separate from counsel employed by the Indemnitor in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnitee that are incurred after the Indemnitor’s assumption and control of the defense shall be at the expense of the Indemnitee unless the employment thereof has been specifically authorized by the Indemnitor in writing.

(c) If the Indemnitor shall control the defense of any such claim then the Indemnitor shall be entitled to settle such claim; provided , that, the Indemnitor shall obtain the prior written consent of the Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim or ceasing to defend such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all liabilities and obligations with respect to such claim without prejudice. If the Indemnitee shall control the defense of any such claim due to (i) the Indemnitor’s election not to assume control of the defense of such claim or (ii) is unable to assume control of the defense of such claim due to the existence of one or more Litigation Conditions, the Indemnitee shall not pay or settle any such claim without the prior written consent of the Indemnitor, which consent may not be unreasonably withheld, conditioned or delayed; provided , however , that the prior written consent of the Indemnitor shall not be required if (i) the terms of such settlement obligate the Indemnitee to pay the full amount of damages in connection with such claim (including amounts covered by the then-remaining Deductible) and

(ii) such settlement expressly and unconditionally releases the Indemnitor from all liabilities and obligations with respect to such claim without prejudice. If the Purchaser is asserting a claim for indemnification under Section 7.02 or Section 8.03 hereof, the Representative and/or Sellers shall have the rights of the Indemnitor hereunder and the reasonable and documented out-of-pocket expenses of the Representative and/or the Sellers incurred in defending a claim (or any participation in a claim that could result in a disbursement to the Purchaser from the Escrow Account) shall be reimbursed, when and as incurred, from the funds remaining in the Escrow Account.

7.05 Determination of Loss Amount . The amount of any Loss subject to indemnification under Section 7.02 or 7.03 shall be calculated net of (i) any Tax benefit actually realized by the Indemnitee or its Affiliates on account of such Loss on or before the second anniversary of the end of the taxable year in which the Loss occurs and (ii) any insurance proceeds or any indemnity, contribution or other similar payment actually recovered (net of any deductible payable with respect to the applicable insurance policy, indemnity contribution or similar payment borne and any related cost of collection, in each case by a Purchaser Party or Seller Party) by the Indemnitee from any third party with respect thereto (including pursuant to any indemnities from prior acquisitions by the Surviving Company and its Subsidiaries and to any representation and warranty insurance policies). A Tax benefit shall be realized upon the receipt of a refund of Taxes paid or the filing of a Tax Return, including an estimated Tax Return, showing a Tax benefit (or, if earlier, the date when such a Tax Return should have been timely filed, including properly obtained extensions) calculated on a “with and without” basis with respect to Tax benefits arising as a result of such Loss. The Indemnitee shall seek, as its first recourse, full recovery under all indemnities (other than this Agreement) and insurance policies (including pursuant to any indemnities from prior acquisitions by the Surviving Company and its Subsidiaries and to any representation and warranty insurance policies) covering any Loss to the same extent as it would if such Loss were not subject to indemnification hereunder; provided , that the Indemnitee shall be permitted to make a claim for indemnification following the submission of any claim under any other indemnity or insurance policy (including any representation and warranty insurance policy); provided , further , that, for the avoidance of doubt, the preceding proviso shall not change the priority of recourse set forth in this sentence. In the event that an insurance or other recovery specified in the first sentence of this Section 7.05 is made by any Indemnitee with respect to any Loss for which any such Person has been indemnified hereunder, then a refund equal to the aggregate amount of the recovery (less the cost of collection of such recovery and any portion of the Loss paid by the Indemnitee or any Affiliate thereof (and not indemnified hereunder) due to the limitation on liability provisions (including the Deductible or any deductible under any representation or warranty insurance policy) that may be applicable to such recovery) shall be made promptly to the Indemnitor. Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses.

7.06 Acknowledgment of the Parties (a).

(a) Each of the Purchaser and the Merger Sub acknowledges that it has conducted to its satisfaction an independent investigation and verification of the financial condition, results of operations, assets, liabilities, properties and projected operations of the Company and its Subsidiaries and, in making its determination to proceed with the transactions

contemplated by this Agreement, the Purchaser and the Merger Sub have relied on the results of their own independent investigation and verification and the representations and warranties of the Company expressly and specifically set forth in Article IV , as qualified by the Disclosure Schedules. THE PURCHASER AND THE MERGER SUB UNDERSTAND, ACKNOWLEDGE AND AGREE THAT ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE EXPRESSED OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, ANY RELATING TO THE FUTURE OR HISTORICAL FINANCIAL CONDITION, RESULTS OF OPERATIONS, PROJECTIONS OR FORECASTS WITH RESPECT TO THE REVENUES, ASSETS OR LIABILITIES OF THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR THE QUALITY, QUANTITY OR CONDITION OF THE COMPANY’S OR ITS SUBSIDIARIES’ ASSETS) ARE SPECIFICALLY DISCLAIMED BY THE COMPANY, THE SELLERS AND THE REPRESENTATIVE AND SHALL NOT (EXCEPT AS OTHERWISE EXPRESSLY REPRESENTED AND WARRANTED TO IN THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT) FORM THE BASIS OF ANY CLAIM AGAINST THE COMPANY, ITS SUBSIDIARIES OR ANY OF ITS ADVISORS, AFFILIATES OR THE SELLERS, THE REPRESENTATIVE, OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES WITH RESPECT THERETO OR WITH RESPECT TO ANY RELATED MATTER. NONE OF THE COMPANY, THE REPRESENTATIVE OR THE SELLERS MAKES OR PROVIDES, AND THE PURCHASER AND THE MERGER SUB HEREBY WAIVE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE COMPANY’S OR ITS SUBSIDIARIES’ ASSETS OR ANY PART THEREOF, IN EACH CASE EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS. With respect to any projection or forecast delivered by or on behalf of the Company and its Subsidiaries to the Purchaser or the Merger Sub, each of the Purchaser and the Merger Sub acknowledges that (w) there are uncertainties inherent in attempting to make such projections and forecasts, (x) the accuracy and correctness of such projections and forecasts may be affected by information which may become available through discovery or otherwise after the date of such projections and forecasts, (y) it is familiar with each of the foregoing and (z) none of the Company, the Sellers or the Representative is making any representation or warranty with respect to such projections or forecasts, including the reasonableness of the assumptions underlying such projections or forecasts.

(b) The Representative, on behalf of the Sellers, acknowledges that it has conducted to its satisfaction an independent investigation and verification of the financial condition, results of operations, assets, liabilities, properties and projected operations of the Purchaser and its Subsidiaries and, in making its determination to proceed with the transactions contemplated by this Agreement, including the issuance of the Warrant, the Representative, on behalf of the Sellers, relied on the results of their own independent investigation and verification and the representations and warranties of the Purchaser and Merger Sub expressly and specifically set forth in Article V , as qualified by the Disclosure Schedules. THE REPRESENTATIVE UNDERSTANDS, AND ON BEHALF OF ITSELF AND THE SELLERS, ACKNOWLEDGES AND AGREES, THAT ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE EXPRESSED OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, ANY RELATING TO THE FUTURE OR

HISTORICAL FINANCIAL CONDITION, RESULTS OF OPERATIONS, PROJECTIONS OR FORECASTS WITH RESPECT TO THE REVENUES, ASSETS OR LIABILITIES OF THE PURCHASER OR ANY OF ITS SUBSIDIARIES, OR THE QUALITY, QUANTITY OR CONDITION OF THE PURCHASER’S OR ITS SUBSIDIARIES’ ASSETS) ARE SPECIFICALLY DISCLAIMED BY THE PURCHASER AND SHALL NOT (EXCEPT AS OTHERWISE EXPRESSLY REPRESENTED AND WARRANTED TO IN THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT) FORM THE BASIS OF ANY CLAIM AGAINST THE PURCHASER, ITS SUBSIDIARIES OR ANY OF ITS ADVISORS OR AFFILIATES, OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES WITH RESPECT THERETO OR WITH RESPECT TO ANY RELATED MATTER. THE PURCHASER DOES NOT MAKE OR PROVIDE, AND THE REPRESENTATIVE, ON BEHALF OF THE SELLERS, HEREBY WAIVES, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE PURCHASER’S OR ITS SUBSIDIARIES’ ASSETS OR ANY PART THEREOF, IN EACH CASE EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS. With respect to any projection or forecast delivered by or on behalf of the Purchaser and its Subsidiaries to the Sellers or the Company, the Representative, on behalf of the Sellers, acknowledges that (w) there are uncertainties inherent in attempting to make such projections and forecasts, (x) the accuracy and correctness of such projections and forecasts may be affected by information which may become available through discovery or otherwise after the date of such projections and forecasts, (y) it is familiar with each of the foregoing and (z) neither the Purchaser nor Merger Sub is making any representation or warranty with respect to such projections or forecasts, including the reasonableness of the assumptions underlying such projections or forecasts.

7.07 Other Indemnification Provisions . Notwithstanding the foregoing, the rights and remedies of any party in respect of any inaccuracy or breach of any representation, warranty, covenant or agreement set forth herein shall in no way be limited by the fact that the act, omission, occurrence or other state of facts or circumstances upon which any claim of any such inaccuracy or breach is based may also be the subject matter of any other representation, warranty, covenant or agreement as to which there is no inaccuracy or breach. The Seller Parties’ and the Purchaser Parties’ respective rights to indemnification with respect to the representations and warranties of the Company, the Purchaser and the Merger Sub set forth herein, and the covenants of the parties hereto shall not be affected or deemed waived by reason of any investigation made by or on behalf of such Seller Party or Purchaser Party (including by any of its advisors, consultants or representatives) or by reason of the fact that the Company or the Purchaser, or any of their respective advisors, consultants or representatives, knew or should have known that any such representation or warranty is, was or might be inaccurate.

ARTICLE VIII

ADDITIONAL COVENANTS

8.01 Disclosure Generally . All Disclosure Schedules and exhibits attached hereto are incorporated herein and expressly made a part of this Agreement as though completely

set forth herein. Without modifying or limiting the introductory language to Article IV or Article V , all references to this Agreement herein or in any of the Disclosure Schedules or exhibits shall be deemed to refer to this entire Agreement, including all Disclosure Schedules and exhibits.

8.02 Provision Respecting Legal Representation . Each of the Purchaser, the Merger Sub, the Company and their respective Subsidiaries hereby agrees, on its own behalf and on behalf of its directors, equityholders, members, partners, officers, employees and Affiliates, that, in the event that a dispute arises after the Closing between the Purchaser, the Surviving Company and/or their respective Subsidiaries, on the one hand, and the Representative, the Sellers and/or their respective Affiliates, Kirkland & Ellis LLP (“ K&E ”) may represent the Representative, the Sellers or any of their respective directors, managers, equityholders, members, partners, officers, employees or Affiliates in such dispute even though the interests of such Persons may be directly adverse to the Purchaser, the Surviving Company or any of their respective Subsidiaries, and even though K&E may have represented the Company or any of the Company’s Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for the Purchaser, the Company or any of their respective Subsidiaries. The Purchaser and the Merger Sub further agree that, as to all communications among K&E, the Company, any of the Company’s Subsidiaries, the Representative, the Sellers and/or any of their respective Affiliates that relate in any way to the transactions contemplated by this Agreement, the attorney-client privilege and the expectation of client confidence belongs to the Representative (on behalf of the Sellers) and may be controlled by the Representative and shall not pass to or be claimed by the Purchaser, the Surviving Company or any of their respective Subsidiaries. Notwithstanding the foregoing, in the event that a dispute arises between the Purchaser, the Surviving Company or any of their respective Subsidiaries and a third party (other than a party to this Agreement or any of their respective Affiliates) after the Closing, the Surviving Company or any of the Surviving Company’s Subsidiaries may assert the attorney-client privilege to prevent disclosure of confidential communications by K&E to such third party; provided , however , that neither the Surviving Company nor any of the Surviving Company’s Subsidiaries may waive such privilege without the prior written consent of the Representative, on behalf of the Sellers.

8.03 Tax Matters .

(a) Tax Indemnity . Subject to the provisions of Article VII , the Purchaser and its Affiliates shall be indemnified from the Escrow Account and pursuant to the right of set-off pursuant to Section 7.02(c) from and against (i) all Taxes (or the non-payment thereof) of the Company and its Subsidiaries and the Blocker Corp for all taxable periods or portions thereof ending on or before the Closing Date, (ii) any and all Taxes of any member of an affiliated, consolidated, combined, or unitary group of which the Company or any of its Subsidiaries or the Blocker Corp (or any predecessor of any of the foregoing) is or was a member on or prior to the Closing, including pursuant to Treasury Regulations Section 1.1502-6 or any analogous or similar state, local, or foreign law or regulation, and (iii) any and all Taxes of any Person imposed on the Company or any of its Subsidiaries or the Blocker Corp as a transferee or successor, by contract (other than (x) any such customary agreements with customers, vendors, lenders, lessors or the like entered into in the Ordinary Course of Business, (y) property Taxes payable with respect to leased property and (z) any other agreements for which Taxes are not the

principal subject matter) or pursuant to any law, rule or regulation, which Taxes are imposed on the Company or any of its Subsidiaries or the Blocker Corp as a result of an event or transaction occurring on or prior to the Closing, but, in each case, excluding (1) any Taxes to the extent taken into account in determining the Final Merger Consideration, (2) any Taxes that are attributable to an election under Section 338 of the Code (or any similar provision of state, local or foreign Law) by the Purchaser, the Company or any of their Affiliates, (3) any Taxes attributable to any events occurring after the Closing on the Closing Date outside the Ordinary Course of Business and undertaken by the Purchaser or its Affiliates, and (4) any Taxes attributable to a breach by the Purchaser (or, after the Closing, the Company and its Subsidiaries or the Blocker Corp) of any of the covenants made by such parties herein. For the avoidance of doubt, Taxes described in clause (i) of the preceding sentence shall be determined in a manner reflecting the provisions of Section 8.03(e) . In the case of any Taxes that are imposed on a periodic basis and are payable for a Tax period that includes (but does not end on) the Closing Date, the portion of such Tax related to the portion of such Tax period ending on and including the Closing Date shall (x) in the case of any Taxes other than gross receipts, payments, sales, use or withholding Taxes and Taxes based upon or related to income, be deemed to be the amount of such Tax for the entire Tax period multiplied by a fraction, the numerator of which is the number of days in the Tax period ending on and including the Closing Date, and the denominator of which is the number of days in the entire Tax period, and (y) in the case of any Tax based upon or related to income and any gross receipts, payments, sales or use Tax, be deemed equal to the amount which would be payable if the relevant Tax period ended on and included the Closing Date (and for such purpose, the Taxable period of any partnership or other pass-through entity in which the Company holds a beneficial interest shall be deemed to terminate at such time).

(b) Responsibility for Filing Tax Returns . The Sellers shall prepare or cause to be prepared and file or cause to be filed (with the cooperation of the Purchaser) any (i) partnership income Tax Returns for the Company or its Subsidiaries and (ii) any income Tax Returns for the Blocker Corp, in each case, with respect to taxable periods ending on or before the Closing Date. For the purpose of preparing the Tax Returns described in the preceding sentence, (x) the parties agree that the 2012 partnership income Tax Returns for the Company and Actient Therapeutics LLC shall be prepared in a manner consistent with the final Schedules K-1 distributed with respect thereto and (y) for any partnership or other flow-through entity in which the Company or its Subsidiaries own an interest (directly, or through other partnerships or flow-through entities) whose taxable year does not end on the Closing Date, the Purchaser shall prepare or caused to be prepared, at the Sellers’ sole cost and expense, pro forma income Tax Returns reflecting a “closing of the books” for such partnership or flow-through entity as of the end of the Closing Date and provide such pro forma Tax Returns to the Representative at least thirty (30) days prior to the date any Tax Returns described in the preceding sentence are required to be filed; provided , that the parties hereto agree that the pro forma Tax Return for Actient Therapeutics LLC will reflect an adjustment to reverse any overallocation of items of income to Slate Pharmaceuticals, Inc. for 2012 (and corresponding underallocation to Actient Holdings LLC). The Representative shall be entitled to review and comment on any such pro forma Tax Return and the Purchaser shall accept and reflect on such pro forma Tax Return any reasonable comments provided by the Representative and any Tax Returns filed or caused to be filed by the Purchaser pursuant to this Section 8.03(b) shall be consistent with the pro forma Tax Returns reflecting the reasonable comments of the Representative. The Purchaser shall prepare or cause to be prepared and timely file or cause to

be timely filed all other Tax Returns for the Company and its Subsidiaries and the Blocker Corp for all periods (or portions thereof) ending prior to or including the Closing Date the due date of which (including extensions) is after the Closing Date. Each such Tax Return shall be prepared and timely filed in a manner consistent with past practice, except as otherwise required by a change in applicable Law. At least thirty (30) days prior to the date on which each such Tax Return is required to be filed, the Purchaser shall submit such Tax Return to the Representative for the Representative’s review and approval as provided in the third-to-last sentence of this Section 8.03(b) . The Purchaser shall accept and reflect on such Tax Return any reasonable comments provided by the Representative. No Tax Return described in this Section 8.03(b) shall be filed without the written consent of Representative, which consent may not be unreasonably withheld, conditioned or delayed. If the parties are unable to resolve any dispute arising under this Section 8.03(b) within fifteen (15) days for the final due date of filing an applicable Tax Return (including available automatic extensions), the parties shall submit the dispute to the Valuation Firm, which will promptly determine those matters in dispute (based on presentations from the parties and not based on its independent review) and will render a written report as to the disputed matters. The costs and expenses of the Valuation Firm will be split evenly by the Purchaser and the Representative.

(c) Amendment of Tax Returns . Without the prior written consent of the Representative, which consent may not be unreasonably withheld, conditioned or delayed, the Purchaser will not (i) except for Tax Returns that are filed in accordance with Section 8.03(b) , file or amend or permit the Surviving Company or any of its Subsidiaries or the Blocker Corp to file or amend any Tax Return relating to a taxable period (or portion thereof) ending on or prior to the Closing Date (a “ Pre-Closing Tax Period ”), (ii) with respect to Tax Returns filed pursuant to Section 8.03(b) , after the date such Tax Returns are filed pursuant to Section 8.03(b) , amend or permit any of the Surviving Company or any of its Subsidiaries or the Blocker Corp to amend any such Tax Return, (iii) extend or waive, or cause to be extended or waived, or permit the Surviving Company or any of its Subsidiaries or the Blocker Corp to extend or waive, any statute of limitations or other period for the assessment of any Tax or deficiency related to a Pre-Closing Tax Period or (iv) make or change any election or change any method of accounting with respect to Taxes with retroactive effect to a Pre-Closing Tax Period for any of the Company or any of its Subsidiaries or the Blocker Corp . For purposes of the preceding sentence, the Representative’s failure to consent to an amendment of any Tax Return described in clause (i) or (ii) of the preceding sentence that would affect the amount of any items shown on any Schedule K-1 (or corresponding state or local schedule) previously received by any Seller shall be treated as reasonable.

(d) Transfer Taxes . The Purchaser will pay, and will indemnify and hold the Sellers harmless against, any transfer, documentary, sales, use, registration and real property transfer or gains tax, stamp tax, excise tax, equity transfer tax, or other similar Tax imposed on the Blocker Corp, the Company, the Surviving Company, any of its Subsidiaries or the Sellers as a result of the transactions contemplated by this Agreement (collectively, “ Transfer Taxes ”), and any penalties or interest with respect to the Transfer Taxes. The Representative agrees to cooperate with the Purchaser in the filing of any returns with respect to the Transfer Taxes, including by promptly supplying any information in its possession that is reasonably necessary to complete such returns.

(e) Determinations Concerning Pre-Closing Taxes . In connection with the preparation of Tax Returns under Section 8.03(b) , the Purchaser and the Sellers agree that all Tax deductions and credits related to (i) the payment of any transaction-related fees and/or bonuses (or similar amounts) or any Indebtedness or Transaction Expenses or to the deduction of any deferred financing costs, in each case, arising out of the sale of the Blocker Corp, the Company and its Subsidiaries to the Purchaser (and any transactions related thereto) shall be treated as properly allocable to a Pre-Closing Tax Period ending on the Closing Date and (ii) the exercise or cancellation of any Options outstanding as of March 18, 2013 as a result of the consummation of the Transaction shall be treated as properly allocable to a Tax Period beginning after the Closing Date, in each case to the extent permitted by applicable Law. The parties shall apply the safe harbor election set forth in Internal Revenue Service Revenue Procedure 2011-29 to determine the amount of any success-based fees that are deductible in a Pre-Closing Tax Period. The Purchaser and the Sellers agree that the U.S. federal income tax year of the Blocker Corp will end as of the end of the Closing Date. The Purchaser and the Sellers agree to prepare all Tax Returns with respect to the Blocker Corp, the Company and its Subsidiaries consistent with this Section 8.03(e) , whether or not such Tax Return is described in Section 8.03(b) . For the avoidance of doubt, in the event that any taxing authority re-allocates any items described in this Section 8.03(e) in an alternate manner than that described in this Section 8.03(e) , no party hereto shall be entitled to a payment from any other party for the consequences of such re-allocation.

(f) Tax Refunds . The Sellers shall be entitled to any Tax refunds or credits that are received by the Purchaser, the Surviving Company or its Subsidiaries or the Blocker Corp attributable to Taxes paid by the Sellers, the Company or its Subsidiaries or the Blocker Corp with respect to any Pre-Closing Tax Period (or portion thereof) (including any Tax refunds attributable to the carryback of items other than items arising after the Closing Date), and the Purchaser shall pay (net of any reasonable collection costs) to the Paying Agent for further payment to the Sellers by wire transfer of immediately available funds to the account or accounts designated by the Representative any such refund or the amount of any such credit within fifteen (15) days after actual receipt of such refund or credit against Taxes. After the Closing, the Purchaser shall cause the Surviving Company and its Subsidiaries and the Blocker Corp to continue to work in good faith and use their commercially reasonable efforts to diligently prosecute any Tax refund claims in order to legally maximize and obtain any such Tax refunds or credits. Notwithstanding anything to the contrary in this Section 8.03(f) , promptly upon the receipt of any income Tax refunds attributable to Slate Pharmaceuticals, Inc. with respect to the taxable year that ends on the Closing Date, and in no event later than fifteen (15) days after the actual receipt of such Tax refund, the Purchaser shall, or shall cause its Subsidiaries to, deliver and pay to the Escrow Agent, by wire transfer of immediately available funds, the amount of such Tax refund (net of reasonable collection costs) or, if less, an amount equal to the estimated amount of income Tax liability of the Blocker Corp for the taxable year that ends on the Closing Date, determined by the Purchaser and the Representative in good faith, at which time such amount shall be deemed to constitute a part of the Escrow Amount for all purposes under this Agreement. Any amount paid to the Escrow Agent pursuant to the immediately preceding sentence that is not actually used to pay income Tax liability of the Blocker Corp for the taxable year that ends on the Closing Date shall be released to the Sellers by the Escrow Agent promptly after the filing of the U.S. federal income Tax return for the Blocker Corp for the taxable year that ends on the Closing Date. The portion of any income Tax refunds attributable to Slate

Pharmaceuticals, Inc. with respect to the taxable year that ends on the Closing Date that is not paid to the Escrow Agent pursuant to the second immediately preceding sentence shall be paid to the Sellers in accordance with the first sentence of this Section 8.03(f) .

(g) Request for Tax Returns . At the request of the Representative, the Purchaser shall deliver to the Representative copies of all Tax Returns relating to the tax periods (or portions thereof) ending on or prior to the Closing.

(h) Tax Sharing Agreements . Any and all existing Tax sharing or similar agreements between the Company or any of its Subsidiaries, on the one hand, and any Affiliate of the Company other than one of its Subsidiaries, on the other hand, shall be terminated and all payables and receivables arising thereunder shall be settled, in each case prior to the Closing Date. After the Closing Date, neither the Surviving Company nor any of its Subsidiaries shall have any further rights or liabilities thereunder or under any payables or receivables arising thereunder.

(i) Cooperation on Tax Matters . The Purchaser and the Representative shall cooperate fully, as and to the extent reasonably requested by the other party, in connection with the preparation and filing of any Tax Return and any audit, litigation or other proceeding with respect to Tax Returns or Taxes of the Company and its Subsidiaries or the Blocker Corp. Such cooperation shall include the retention and (upon the other party’s request) the provision of records and information which are reasonably relevant to any such Tax Return, audit, litigation or other proceeding or any tax planning, and making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder.

(j) Audits of Tax Returns . At its election, the Representative, on behalf of the Sellers, will have the responsibility for, and the right to control, the audit (i) of any Tax Return of the Company or any of its Subsidiaries or the Blocker Corp relating to a taxable period ending on or prior to the Closing Date and (ii) any Tax Return of the Surviving Company or any of its Subsidiaries or the Blocker Corp relating to a taxable period that includes (but does not end on) the Closing Date if the Sellers have more at stake in such audit than the Purchaser does (as reasonably determined by the Representative and the Purchaser, taking into account Taxes that would be directly payable by the Sellers and any Taxes of the Purchaser or the Company or its Subsidiaries or the Blocker Corp that would be indemnifiable by the Sellers hereunder), including any disposition of such audit; provided , however , that the Purchaser and the Surviving Company will have the right, directly or through its designated representatives, to review in advance and comment upon all submissions made in the course of audits of such Tax Returns (including any administrative appeals thereof). With respect to all other Tax Returns, the Purchaser and the Surviving Company will have the responsibility for, and the right to control the audit of, such Tax Returns, but, in respect of obligations under Section 8.03(a) , with respect to any Tax Return that relates in whole or in part to any period (or portion of a period) prior to the Closing, the Representative, on behalf of the Sellers, shall have the right, directly or through its designated representatives, to review in advance and comment upon all submissions made in the course of audits of such Tax Returns (including any administrative appeals thereof), and the Surviving Company shall not dispose of any audit of any such Tax Return without the consent of the Representative, which consent shall not be unreasonably withheld, conditioned or delayed.

(k) Purchase Price Allocation . The Sellers and the Purchaser agree that an election under Section 754 of the Code (and any analogous state or local provision) (the “ Section 754 Election ”) shall be made for the Company and that the Company and the Surviving Company’s Tax Returns shall be prepared in a manner consistent with such election. For purposes of determining (i) the adjustments to tax basis of the Company’s assets under Section 743(b) of the Code resulting from the Section 754 Election and (ii) the portion of the gain or loss recognized by the Sellers upon the sale and purchase of the Units pursuant to this Agreement that is attributable to the Company’s “unrealized receivables” and “inventory items” (as such terms are defined in Section 751 of the Code), the Purchaser, the Sellers and the Representative agree that the Final Merger Consideration (excluding any amounts attributable to the acquisition of the Shares, but plus other relevant items required under the Code, including the Purchaser’s share of the liabilities of the Company as determined under Section 752 of the Code) will be allocated among the Company’s assets in accordance with Code Section 755 and the regulations thereunder and consistent with their fair market values as determined by the Purchaser and the Representative and in accordance with the methodology set forth on Exhibit L . The Representative will deliver its calculation of such allocation to the Company within 90 days after the Closing Date (the “ Sellers’ Allocation ”). In the event that the Purchaser objects to the Sellers’ Allocation, the Purchaser shall notify the Representative of its objection to such allocation within fifteen (15) days of the receipt of the Sellers’ Allocation, and the parties will endeavor in good faith over the next fifteen (15) days to resolve such dispute. If the parties are unable to resolve such dispute within said fifteen (15)-day period, the parties shall submit the dispute to the Valuation Firm, which will promptly determine those matters in dispute (based on presentations from the parties and not based on its independent review) and will render a written report as to the disputed matters (the matters determined by such valuation firm, together with those matters that were agreed by the parties, the “ Agreed Allocation ”). The costs and expenses of the Valuation Firm will be split evenly by the Purchaser and the Representative (on behalf of the Sellers). The Purchaser, the Company and its Subsidiaries, the Blocker Corp and the Representative will file any Tax Returns and any other governmental filings on a basis consistent with such allocation of fair market value. Neither the Purchaser nor the Representative nor any of their Affiliates will take any position (whether in audits, tax returns or otherwise) that is inconsistent with such allocation unless required to do so by applicable law.

(l) Blocker Corp Liabilities and Refunds . For the avoidance of doubt and notwithstanding the foregoing, as between the Blocker Seller and the Sellers other than the Blocker Seller, any liability for Taxes of the Blocker Corp for which indemnification is provided under this Section 8.03 will be borne solely by the Blocker Seller and any refunds of Taxes paid by or attributable to the Blocker Corp described in Section 8.03(f) shall exclusively be for the account of the Blocker Seller, in each case as determined by the Representative in its good faith discretion.

(m) No Intermediary Transaction Tax Shelter . Neither the Purchaser nor the Merger Sub nor their Affiliates shall take any action with respect to the Company or its Subsidiaries or the Blocker Corp that would cause the transactions contemplated by this Agreement to constitute part of a transaction that is the same as, or substantially similar to, the “Intermediary Transaction Tax Shelter” described in Internal Revenue Service Notices 2001-16 and 2008-111.

8.04 Blocker Seller Release . Effective as of the Closing, the Blocker Seller hereby irrevocably and unconditionally releases the Company and its Affiliates, from any and all claims, actions, causes of action, suits, damages, judgments, expenses, demands and other obligations or liabilities, of any nature whatsoever, in law or in equity, in each case, whether absolute or contingent, liquidated or unliquidated, known or unknown, and whether arising under any agreement or understanding taking place on or prior to the Closing Date (collectively, “ Claims ”); provided , that the foregoing shall not apply to Claims (a) arising under the terms of this Agreement or any other Transaction Document or the transactions contemplated hereby or thereby or (b) unrelated in any way to the Company, any of its Subsidiaries or any of their respective businesses.

ARTICLE IX

DEFINITIONS

9.01 Definitions . For purposes hereof, the following terms when used herein shall have the respective meanings set forth below:

“ Additional Merger Consideration ” means, as of any date of determination, without duplication, the sum of: (i) the portion of the Escrow Amount or Management Holdback Escrow Amount paid or payable to the Sellers pursuant to this Agreement and the Escrow Agreement, plus (ii) any consideration paid or payable to the Sellers pursuant to Section 2.02 , plus (iii) any Earn-Out Amounts payable to the Sellers pursuant to Section 2.03 , plus (iv) any Warrant Shares issuable upon any exercise of the Warrant, in the case of each of clauses (i) through (iv) , pro rata in accordance with each Seller’s Residual Percentage.

“ Affiliate ” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, contract or otherwise.

“ Allocable Portion of the Closing Merger Consideration ” means, with respect to any Unit outstanding immediately prior to the Effective Time (which for this purpose shall include all Units issuable upon exercise of all Options), that portion of the Closing Merger Consideration that is distributable in respect of such Unit as set forth on the Allocation Schedule . The amounts set forth on the Allocation Schedule to be distributed to the holders of Incentive Units marked with an asterisk on the Allocation Schedule and to the holders of Options shall be paid net of any applicable withholding Taxes.

“ Business Day ” means any day other than a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in Chicago, Illinois or New York, New York.

“ Cash ” means, with respect to the Company and its Subsidiaries and the Blocker Corp, as of the open of business on the Closing Date, (a) all cash, cash equivalents (with maturities of 90 days or less) and marketable securities (with maturities of 90 days or less) held by the Company or its Subsidiaries or the Blocker Corp at such time (excluding any cash, cash

equivalents or marketable securities held by the Company or its Subsidiaries at such time that represent deposits or security for payment or other obligations of another Person), plus (b) the aggregate amount of any checks, drafts and wires issued to or received by the Company or any Subsidiary or the Blocker Corp thereof that have not cleared at such time, minus (c) the aggregate amount of checks, drafts or wires written or issued by the Company or any Subsidiary thereof that have not cleared at such time, plus (d) the aggregate amount of any credit card charges that are in process but for which funds have not yet been credited in a bank account of the Company or its Subsidiaries.

“ Divestiture Measurement Date ” means the month-end immediately prior to a sale of assets.

“ Earn-Out Amount ” means any of the Base Earn-Out Amount, the Twelve-Month Earn-Out Amount and the Twenty-Four-Month Earn-Out Amount.

“ Earn-Out Period ” means either the Twelve-Month Earn-Out Period or the Twenty-Four-Month Earn-Out Period, as the case may be.

“ Environmental Claim ” means any claim, action, cause of action, investigation or written notice by any Person or entity alleging potential liability (including without limitation, potential liability for investigatory costs, cleanup costs, governmental response costs, natural resources damages, property damages, personal injuries, or penalties) arising out of, based on or resulting from (a) the presence, Release or threatened Release of any Hazardous Materials at any location, whether or not owned or operated by the Company, or (b) circumstances forming the basis of any violation, or alleged violation, of any Environmental Requirement.

“ Environmental Requirements ” means all applicable Laws relating to pollution or protection of human health (as it relates to exposure to Hazardous Materials) or the protection of the environment as such Laws were enacted prior to and in effect as of the Closing Date, including without limitation, laws relating to the exposure to, or Releases or threatened Releases of, Hazardous Materials or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, Release, transport or handling of Hazardous Materials and all laws and regulations with regard to recordkeeping, notification, disclosure and reporting requirements respecting Hazardous Materials.

“ FDA ” means the United States Food and Drug Administration.

“ FDA Laws ” means all applicable laws, ordinances, statutes, rules, regulations, guidance and policies relating to the development, clinical and non-clinical evaluation, product clearance, manufacture, production, analysis, distribution, use, handling, quality, sale, labeling, promotion, or postmarket requirements of any product subject to regulation under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. et seq.).

“ Federal Health Care Laws ” means all applicable laws, statutes, ordinances, rules, regulations, guidance and policies relating to pricing, marketing, promotion, sale, distribution, coverage, or reimbursement of a drug, biological or medical device, including Title XI, Title XVIII and Title XIX of the Social Security Act, including, but not limited to, Sections 1128, 1128A, 1128B, 1128C or 1877 of the Social Security Act (42 U.S.C. §§ 1320a-7, 1320a-7a,

1320a-7b, 1320a-7c and 1395nn); the federal TRICARE statute (10 U.S.C. § 1071 et seq .); the False Claims Act (31 U.S.C. § 3729 et seq .), the False Statements Accountability Act (18 U.S.C. § 1001); the Program Fraud Civil Remedies Act (31 U.S.C. § 3801 et seq .); 18 U.S.C. § 287; and the anti-fraud and related provisions of the Health Insurance Portability and Accountability Act of 1996 ( e.g ., 18 U.S.C. §§ 1035 and 1347), together with any rules or regulations promulgated thereunder.

“ Federal Health Care Program ” has the meaning specified in Section 1128B(f) of the Social Security Act and includes the Medicare, Medicaid and TRICARE programs.

“ Fundamental Representations ” means the representations and warranties set forth in Section 4.01 (Organization and Organizational Power), Section 4.02 (Subsidiaries), Section 4.03(a) (Authorization), Section 4.03(c) (Valid and Binding Agreement), Section 4.04 (Capitalization), Section 4.23 (Affiliated Transactions), Section 4.26 (Brokerage), Section 4.27 (The Blocker Seller), Section 4.28 (The Blocker Corp), Section 5.01 (Organization and Organizational Power), Section 5.02 (Authorization), Section 5.06 (Brokerage) and Section 5.11 (The Warrant and Warrant Shares).

“ GAAP ” means United States generally accepted accounting principles applied in a manner consistent with those used in preparing the Audited Financial Statements as of and for the twelve-month period ended December 31, 2012.

“ Governmental Entity ” means any federal, national, state, foreign, provincial, local or other government or any governmental, regulatory, administrative or self-regulatory authority, agency, bureau, board, commission, court, judicial or arbitral body, department, political subdivision, tribunal or other instrumentality thereof.

“ Hartley Matter ” means any current or future claims filed or made against the Company, the Surviving Company, the Purchaser, or any of their respective Subsidiaries in connection with the matter described in the civil lawsuit filed on September 1, 2011 in the Circuit Court of Jefferson County, Alabama by Connie Hartley, as administrator to the estate of Charley Hartley against Nova Law, M.D. and the other defendants named thereto.

“ Hazardous Materials ” means all substances defined as Hazardous Substances, Oils, Pollutants or Contaminants in the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. § 300.5, or defined as such by any Environmental Requirement.

“ Health Information Laws ” means all state Laws regulating individually identifiable health information or other personal information applicable to the business of the Company or its Subsidiaries, together with any rules or regulations promulgated thereunder.

“ HIPAA ” means the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended.

“ HIPAA Regulations ” means the regulations promulgated by the Secretary of the U.S. Department of Health and Human Services to implement the administrative simplification provisions of Title II, Subtitle F of HIPAA.

“ Incentive Unit ” means any Unit that is subject to vesting as of the date hereof.

“ Indebtedness ” means, as of any particular time, without duplication, (a) all obligations (including all obligations in respect of principal, accrued interest, accreted value, penalties, fees, premiums (prepayment, redemption or otherwise) and other monetary obligations) of the Company, the Blocker Corp and their respective Subsidiaries (i) for borrowed money, (ii) in respect of capitalized leases of the Company as determined in accordance with GAAP, (iii) evidenced by notes, bonds, debentures or similar contracts or agreements, (iv) in respect of letters of credit and bankers’ acceptances, in each case, to the extent drawn or funded, (v) for break fees or other breakage costs for contracts or agreements relating to interest rate protection, swap agreements and collar agreements, (vi) pursuant to any surety bond, performance bond or other guarantee of contractual obligations, to the extent a claim has been made against such bond obligation or guarantee as of such time, (vii) for change-of-control payments (including phantom equity payments), transaction bonuses, retention bonuses and similar payment obligations, in each case, if payable in connection with or as a result of the transactions contemplated hereby (and excluding, for avoidance of doubt, any severance or similar obligations) and (viii) those obligations set forth on the Indebtedness Schedule ; and (b) all obligations of the type described in clauses (a)(i) through (a)(viii) for which the Company, the Blocker Corp or their respective Subsidiaries are otherwise responsible or liable, directly or indirectly, as obligor, guarantor, surety, or otherwise. For the avoidance of doubt, Indebtedness shall not include any royalty or earn-out obligations (including, for the avoidance of doubt, the portion of the Option Consideration (as defined in, and payable pursuant to Section 4.7 of, the UCB Agreement) payable on the first anniversary of the Option Closing Date (as defined in the UCB Agreement)) or any amounts owed (i) by the Company or the Blocker Corp to any of their respective Subsidiaries, (ii) to the Company or the Blocker Corp by any of their respective Subsidiaries or (iii) by one Subsidiary of the Company or the Blocker Corp to another Subsidiary of the Company or the Blocker Corp, as applicable. For purposes of Article I of this Agreement, Indebtedness shall mean Indebtedness, as defined above, outstanding as of the open of business on the Closing Date.

“ Intellectual Property ” means any or all of the following: (i) copyrights and registrations and applications for registration thereof; (ii) trade names, trademarks, service marks, and trade dress, and registrations and applications for registration thereof; (iii) patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof; (iv) internet uniform resource locators and domain names; and (v) inventions, know-how, trade secrets, and proprietary information.

“ Law ” means any law, rule, regulation, judgment, injunction, order, ordinance, statute or decree of any court or other Governmental Entity.

“ Leased Real Property ” means all land, buildings, fixtures or other real property in which the Company or any of its Subsidiaries has a leasehold, subleasehold, license, concession or other real property right or interest under the Real Property Leases.

“ Liens ” means any encumbrance, hypothecation, infringement, lien, deed of trust, mortgage, easement, encroachment, pledge, restriction, security interest, option, title retention or

other security arrangement, or any other adverse right or interest, charge or claim of a similar nature in or on any asset, property or property interest.

“ Losses ” means damages, penalties, fines, costs, amounts paid in settlement, liabilities, Taxes, losses, expenses and fees, including court costs and reasonable attorneys’ and other professionals’ fees and expenses and any other costs of enforcing an Indemnitee’s rights under this Agreement, but excluding any of the foregoing to the extent speculative, remote or not reasonably foreseeable and excluding, for the avoidance of doubt, any reduction in Tax net operating losses or other non-cash Tax attribute; provided , however , that any of the foregoing required to be paid by an Indemnitee to a third party shall be deemed reasonably foreseeable for purposes hereof; provided , further , that in no event shall Losses include punitive damages, except to the extent awarded to a third party.

“ Material Adverse Effect ” means any change, effect, circumstance, fact, event, occurrence or development that, individually or in the aggregate, is, or would reasonably be expected to be, materially adverse to (a) the assets, properties, results of operations, liabilities, business or financial condition of the Company and its Subsidiaries taken as a whole or (b) the ability of the Company to consummate the transactions contemplated by this Agreement; provided , however , that with respect to the foregoing clause (a) , none of the following shall be deemed in themselves, either alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Material Adverse Effect: any change, effect, circumstance, fact, event, occurrence or development attributable to (i) the announcement or execution of this Agreement ( provided , however , that this clause (i) shall not be deemed to apply to Section 4.03(b) ); (ii) conditions generally affecting the industries in which the Company and its Subsidiaries participate, the U.S. economy as a whole or the capital markets in general (including currency fluctuation) or the markets in which the Company and its Subsidiaries operate; (iii) any change in applicable Laws or the interpretation thereof; (iv) actions required to be taken under applicable Laws or this Agreement by the Company or any Subsidiary thereof; (v) any change in GAAP or other accounting requirements or principles or the interpretation thereof; (vi) the failure of the Company or its Subsidiaries to meet or achieve the results set forth in any projection or forecast (provided, that this clause (vi) shall not prevent a determination that any change or effect underlying such failure to meet projections or forecasts has resulted in a Material Adverse Effect (to the extent such change or effect is not otherwise excluded from this definition of Material Adverse Effect)); or (vii) the commencement, continuation or escalation of a war, material armed hostilities or other material international or national calamity or act of terrorism; provided that, in the case of clauses (ii) , (iii) , (iv) and (v) above, if such change, effect, circumstance, fact, event, occurrence or development disproportionately affects the Company and its Subsidiaries as compared to other Persons or businesses that operate in the industry in which the Company and its Subsidiaries operate, then the disproportionate aspect of such change, effect, circumstance, fact, event, occurrence or development may be taken into account in determining whether a Material Adverse Effect has or will occur.

“ Net Sales ” means, with respect to any Urology Product, the consideration invoiced by the Company, by any of its Affiliates or by a third party (which has been granted licensing, sublicensing or marketing rights to commercialize such Urology Product) with respect to: (a) the sale of such Urology Product, less the following deductions actually provided:

(i) quantity, credit card and early pay discounts, rebates and charge-backs, (ii) sales credits, refunds, returns and allowances, (iii) price deductions for amounts reimbursed by Medicare, (iv) wholesalers’ distribution fees, (v) rebates for co-payment cards and patient rebate coupons and (vi) Urology Products provided to customers free of charge (other than any Urology Product samples), calculated in accordance with GAAP, and (b) any milestone payment, upfront payment, or any similar payment made in consideration for any license or sub-license or other marketing right in or to such Urology Product, except to the extent any of the foregoing relate to any disposed assets addressed pursuant to Section 2.03(g) .

“ Net Working Capital ” means (i) current assets (excluding Cash, accrued income Tax receivables or refunds or any deferred or other income tax assets, which exclusion, for the avoidance of doubt, shall include any income tax assets, deductions or benefits arising in connection with or as a result of the execution and delivery of this Agreement and the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby) of the Company, the Blocker Corp and their respective Subsidiaries as of the open of business on the Closing Date, minus (ii) current liabilities (excluding Indebtedness, the matters set forth on the Specific Indemnity Schedule , accrued and/or deferred income tax liabilities, which exclusion, for the avoidance of doubt, shall include any income tax liabilities arising in connection with or as a result of the execution and delivery of this Agreement and the other Transaction Documents or the consummation of the transaction contemplated hereby or thereby, Transaction Expenses and any royalty or earn-out obligations) of the Company, the Blocker Corp and their respective Subsidiaries as of the open of business on the Closing Date, in each of the immediately preceding clauses (i) and (ii) , to the extent such current assets and current liabilities are designated as such on Exhibit D attached hereto; provided , however , that Net Working Capital shall not include any severance payments made to employees who are terminated on or after the Closing Date. Exhibit D attached hereto sets forth an example of the calculation of the Net Working Capital as of March 31, 2013. Such calculation is included for reference purposes only, and the Company does not make any representation or warranty, and will not incur any liability, in respect thereof.

“ Optionholder ” means a holder of Options.

“ Options ” means options to acquire the Company’s Common Units.

“ Ordinary Course of Business ” means the ordinary course of business, including with regard to nature, frequency and magnitude, and otherwise consistent with past practice.

“ Owned Real Property ” means all land, together with all buildings, structures, improvements, and fixtures located thereon, including all electrical, mechanical, plumbing and other building systems, fire protection, security and surveillance systems, telecommunications, wiring, and cable installations, utility installations, water distribution systems, and landscaping, together with all easements and other rights and interests appurtenant thereto, owned by the Company or its Subsidiaries.

“ Permitted Liens ” means (i) statutory Liens for current Taxes or other governmental charges not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings by the Company and/or its Subsidiaries and

for which adequate accruals or reserves have been established on the Company’s books and records in accordance with GAAP; (ii) mechanics’, carriers’, workers’, repairers’ and similar statutory Liens arising or incurred in the Ordinary Course of Business which are not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings by the Company and/or its Subsidiaries and for which adequate accruals or reserves have been established on the Company’s books and records in accordance with GAAP; (iii) zoning, entitlement, building and other land use regulations imposed by governmental agencies having jurisdiction over the Leased Real Property or the Owned Real Property which are not violated by the current use and operation of the Leased Real Property or the Owned Real Property, as applicable; (iv) covenants, conditions, restrictions, easements and other similar matters of record affecting title to the Leased Real Property or the Owned Real Property which do not materially impair (a) the occupancy or use of the Leased Real Property or the Owned Real Property, as applicable for the purposes for which it is currently used in connection with the Company’s and its Subsidiaries’ businesses or (b) the value of the Leased Real Property or the Owned Real Property; (v) title to any portion of the Owned Real Property or Leased Real Property lying within the right of way or boundary of any public road or private road which, individually or in the aggregate, do not materially adversely affect the value or the continued use of such Owned Real Property or Leased Real Property; (vi) matters which would be disclosed by an inspection or accurate survey of each parcel of real property which, individually or in the aggregate, do not materially adversely affect Owned Real Property; (vii) Liens arising under worker’s compensation, unemployment insurance, social security, retirement and similar legislation; (viii) Liens on goods in transit incurred pursuant to documentary letters of credit; (ix) purchase money Liens securing Indebtedness of less than $150,000 in the aggregate and Liens securing rental payments under capital lease arrangements set forth on the Leased Real Property Schedule and (x) Liens set forth on the Permitted Liens Schedule ; other than, in each of clause (i) through (x) those which would adversely impact the operation of the business of the Company and its Subsidiaries as currently conducted.

“ Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a Governmental Entity or any department, agency or political subdivision thereof.

“ Plan ” means each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), and each other employee compensation and benefit plan, policy, program, arrangement or payroll practice, including multiemployer plans within the meaning of Section 3(37) of ERISA, and each other stock purchase, stock option, restricted stock, severance, retention, employment, individual consulting, change-of-control, collective bargaining, bonus, incentive, deferred compensation, fringe benefit and other benefit plan, agreement, program, policy, or other arrangement, whether or not subject to ERISA in each case, that is maintained, sponsored, contributed to, or required to be contributed to, by the Company or any of its Subsidiaries or under which the Company or any of its Subsidiaries has any current or potential liability.

“ Privacy Commitments ” means all contractual commitments of the Company and its Subsidiaries relating to privacy and security of Protected Health Information.

“ Protected Health Information ” shall have the meaning assigned to that term in 45 C.F.R. § 160.103.

“ Real Property Leases ” means all leases, subleases, licenses, concessions and other agreements (written or oral), including, without limitation, all amendments, extensions, renewals, guaranties and other agreements with respect thereto, together with all security deposits thereunder, held by the Company or its Subsidiaries for the use and occupancy of any real property or interests therein.

“ Release ” means any unpermitted release, spill, emission, discharge, leaking, pumping, injection, deposit, disposal, dispersal, leaching or migration into the environment (including, without limitation, ambient air, surface water, groundwater and surface or subsurface strata) or into or out of any property, including the migration of Hazardous Materials through or in the air, soil, surface water, or groundwater.

“ Residual Percentage ” means the percentage set forth next to each Seller’s name on the Sellers Schedule .

“ Subsidiary ” means, with respect to any Person, any corporation of which a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or any partnership, limited liability company, association or other business entity of which a majority of the partnership, limited liability company or other similar ownership interest is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof. For purposes of this definition, a Person is deemed to have a majority ownership interest in a partnership, limited liability company, association or other business entity if such Person is allocated a majority of the gains or losses of such partnership, limited liability company, association or other business entity or is or controls the managing director or general partner of such partnership, limited liability company, association or other business entity.

“ Target Net Working Capital Amount ” means $15,600,000.

“ Tax ” or “ Taxes ” means any federal, state, local or foreign income, gross receipts, franchise, alternative minimum, sales, use, transfer, value added, excise, stamp, customs, duties, real property, personal property, capital stock, social security, unemployment, or other tax including any interest, penalties or additions to tax.

“ Tax Returns ” means any return, report, information return or other document (including schedules or any related or supporting information) required to be filed with any Governmental Entity charged with the determination, assessment or collection of any Tax.

“ Transaction Documents ” mean this Agreement, the Escrow Agreement, the Paying Agent Agreement, the Warrant, the Registration Rights Agreement and all other agreements, instruments and certificates expressly contemplated by this Agreement to be executed and delivered by any party in connection with the consummation of the transactions contemplated by this Agreement.

“ Transaction Expenses ” shall mean, except to the extent included in Indebtedness, all fees, costs and expenses payable by the Company, any Subsidiary thereof and/or the Representative (and/or any of their respective Affiliates) as of the open of business on the Closing Date in connection with the transactions contemplated by this Agreement and the other Transaction Documents, including any of the foregoing that are payable in connection with the negotiation, documentation and execution of this Agreement and the other Transaction Documents or the consummation of the transactions contemplated hereby or thereby (including any of the foregoing payable to counsel, investment bankers or other representatives or advisors of the Company, any Subsidiary thereof and/or the Representative (and/or any of their respective Affiliates), in each case to the extent unpaid as of the open of business on the Closing Date; provided , however , that Transaction Expenses shall not include any severance payments made to employees who are terminated on or after the Closing Date or any fees, costs and expenses payable by the Purchaser or the Merger Sub or any of their respective Affiliates pursuant to the terms of this Agreement, including the purchase of the Tail D&O Policy, all filing fees under the HSR Act and other antitrust laws and all other Laws or regulations.

“ UCB Agreement ” means that certain License and Asset Purchase Agreement, dated as of June 30, 2010, by and among UCB, Inc., Schwarz Pharma, Inc., Schwarz Pharma Manufacturing, Inc., SRZ Properties, Inc. and Actient Pharmaceuticals, LLC.

“ Unitholder ” means a holder of Units.

“ Units ” means the Company’s Class A Preferred Units, Class B Preferred Units and Common Units.

“ Urology Products ” means all urology products owned, licensed, developed, manufactured, sold, marketed, promoted, distributed or under development by the Company or its Subsidiaries on or prior to the Closing Date (including Testopel, Edex and Striant, and any other products of Timm Medical Technologies, Inc. or Slate Pharmaceuticals, Inc.).

“ Warrant ” means a warrant in the form of Exhibit K hereto, exercisable for 1,250,000 shares of Purchaser Common Stock.

9.02 Other Definitional Provisions .

(a) Accounting Terms . Accounting terms which are not otherwise defined in this Agreement have the meanings given to them under GAAP. To the extent that the definition of an accounting term defined in this Agreement is inconsistent with the meaning of such term under GAAP, the definition set forth in this Agreement will control.

(b) Successor Laws . Any reference to any particular Code section or any Law will be interpreted to include any revision of or successor to that section regardless of how it is numbered or classified.

9.03 Index of Defined Terms .

		Page
Accounts Receivable		24
Additional Merger Consideration		67

Affiliate		67
Agreed Allocation		66
Agreement		6
Allocable Portion of the Closing Merger Consideration		67
Applicable Limitation Date		51
Assumptions		47
Audited Financial Statements		23
Authorized Action		78
Base Consideration		8
Base Earn-Out Amount		14
Blocker Corp		6
Blocker Seller		6
Business Day		67
Cash		67
Certificate of Merger		7
Claiming Party		85
Claims		67
Class A Preferred Units		22
Class B Preferred Units		22
Closing		17
Closing Balance Sheet		12
Closing Date		17
Closing Merger Consideration		8
Closing Option Consideration		10
Code		32
Common Units		22
Company		6
Company Unitholder Approval		42
Continuing Employee		50
DEA		35
Deductible		53
Defending Party		85
Delaware LLC Law		6
Disclosure Schedules		20
Divestiture Measurement Date		68
Earn-Out Amount		68
Earn-Out Objections Statement		16
Earn-Out Period		68
Effective Time		7
Environmental Claim		68
Environmental Requirements		68
ERISA		73
Escrow Account		18
Escrow Agent		18
Escrow Agreement		18
Escrow Amount		18
Estimated Cash		8
Estimated Indebtedness		8
Estimated Net Working Capital Amount		8
Estimated Transaction Expenses		8
Exchange Act		48
FDA		68
FDA Laws		68
Federal Health Care Laws		68
Federal Health Care Program		69
Final Determination		54
Final Merger Consideration		9
Financial Statements		23
Former Seller		78
Fundamental Representations		69
GAAP		69
Governmental Entity		69
Grant Date		23
Hartley Matter		69
Hazardous Materials		69
Health Information Laws		69
HIPAA		69
HIPAA Regulations		69
HSR Act		32
Incentive Unit		70
Indebtedness		70
Indemnification Cap		53
Indemnitee		56
Indemnitor		56
Initial Report		92
Intellectual Property		70
IRS		32
K&E		61
Latest Balance Sheet		23
Latest Statement of Income and Cash Flows		23
Law		70
Leased Real Property		70
Letter of Transmittal		9
Liens		70
Litigation Condition		57
Losses		71
Management Holdback Escrow		7
Management Holdback Escrow Account		18
Material Adverse Effect		71
Merger		6

Merger Sub		6
Merger Sub Interest		8
Mini-Basket		53
Net Sales		71
Net Working Capital		72
Objections Statement		13
Optionholder		72
Options		72
Ordinary Course of Business		72
Owned Intellectual Property		30
Owned Real Property		72
Paying Agent		9
Paying Agent Agreement		19
Permits		34
Permitted Liens		72
Person		73
Plan		73
Pre-Closing Statement		8
Pre-Closing Tax Period		63
Preliminary Earn-Out Statement		16
Preliminary Statement		13
Privacy Commitments		73
Proceeding		85
Protected Health Information		74
Purchaser		6
Purchaser Benefit Plans		50
Purchaser Common Stock		48
Purchaser Parties		53
Real Property Leases		74
Rebuttal Report		93
Registration Rights Agreement		18
Release		74
Representative		6
Representative Expenses		12
Representative Holdback Amount		11
Residual Percentage		74
Schedule		20
Section 754 Election		66
Securities Act		47
Seller Parties		53
Sellers		6
Sellers’ Allocation		66
Shares		6
Shrink-Wrap Licenses		31
Stock Purchase		6
Subsidiary		74
Successor Seller		78
Surviving Company		7
Surviving Company LLC Agreement		11
Tail D&O Policy		19
Target Net Working Capital Amount		74
Tax		74
Tax Returns		74
Taxes		74
Transaction		6
Transaction Documents		74
Transaction Expenses		75
Transfer Taxes		63
Twelve-Month Earn-Out Amount		15
Twelve-Month Earn-Out Period		14
Twenty-Four-Month Earn-Out Amount		15
Twenty-Four-Month Earn-Out Period		15
UCB Agreement		75
Unaudited Financial Statements		23
Unitholder		75
Units		75
Urology Products		75
Valuation Firm		13
Warrant		75
Warrant Shares		48
Written Consent		18

ARTICLE X

MISCELLANEOUS

10.01 Representative .

(a) Authority . By the approval of this Agreement pursuant to the Delaware LLC Law, the Sellers hereby irrevocably constitute and appoint the Representative as the

representative, agent, proxy, and attorney-in-fact for each of the Sellers for all purposes authorized under this Agreement, including the full power and authority on the Sellers’ behalf (i) to consummate the transactions contemplated herein; (ii) to pay such Seller’s expenses incurred in connection with the negotiation and performance of this Agreement (whether incurred on or after the date hereof), including by using funds from the Representative Holdback Amount; (iii) to hold the Warrant on behalf of the Sellers; (iv) to disburse any funds (including dividends and distributions on the Warrant) or Warrant Shares received hereunder to such Seller and each other Seller; (v) to endorse and deliver any certificates or instruments representing the Units and execute such further instruments of assignment as the Purchaser or the Merger Sub shall reasonably request; (vi) to execute and deliver on behalf of such Seller any amendment or waiver hereto; (vii) (A) to dispute or refrain from disputing, or to deliver instructions, on behalf of such Seller relative to any amounts to be received by such Seller under any Transaction Document or any other agreement contemplated hereby or thereby, any claim made by the Purchaser under any Transaction Document or any other agreement contemplated hereby or thereby, (B) to negotiate and compromise, on behalf of such Seller, any dispute that may arise under, and exercise or refrain from exercising any remedies available under, the Transaction Documents or any other agreement contemplated hereby or thereby, and (C) to execute, on behalf of such Seller, any settlement agreement, release or other document with respect to such dispute or remedy; (viii) to engage attorneys, accountants, agents or consultants on behalf of the Sellers in connection with the Transaction Documents or any other agreement contemplated hereby or thereby and paying any fees related thereto; (ix) to take all other actions to be taken by or on behalf of such Seller in connection herewith; (x) to retain the Representative Holdback Amount and pay amounts therefrom in accordance with this Agreement; and (xi) to do each and every act and exercise any and all rights which such Seller or the Sellers collectively are permitted or required to do or exercise under this Agreement or any other Transaction Document; provided , however , that, notwithstanding the foregoing, the Representative shall not have the authority to agree to any amendment of this Agreement or enter into any agreement or take any of the foregoing actions that would (x) result in any Seller having indemnification obligations in excess of his, her or its proceeds from the Merger or (y) treat any holder of a class of Units differently than other holders of such class of Units. Each of the Sellers agrees that such agency and proxy are coupled with an interest, are therefore irrevocable without the consent of the Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Seller. If any Seller dies or becomes incapacitated, disabled or incompetent (such deceased, incapacitated, disabled or incompetent Seller being a “ Former Seller ”) and, as a result, the agency and power of attorney conferred by this Section 10.01 is revoked by operation of law, it shall not be a breach by such Former Seller under this Agreement if the heirs, beneficiaries, estate, administrator, executor, guardian, conservator or other legal representative of such Former Seller (each a “ Successor Seller ”) confirms the appointment of the Representative as agent and attorney-in-fact for such Successor Seller. All decisions and actions by the Representative (to the extent authorized by this Agreement) shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, protest or otherwise contest the same.

(b) Authority; Indemnification. Each Seller agrees that the Purchaser, the Merger Sub and the Surviving Company shall be entitled to rely on any action taken by the Representative, on behalf of such Seller, pursuant to Section 10.01(a) above (an “ Authorized Action ”), and that each Authorized Action shall be binding on each Seller as fully as if such Seller had taken such Authorized Action. The Purchaser and the Merger Sub agree that the

Representative, as the Representative, shall have no liability to the Purchaser and the Merger Sub for any Authorized Action, except to the extent that such Authorized Action is found by a court of competent jurisdiction to have constituted fraud or willful misconduct. Each Seller hereby severally (based on such Seller’s Residual Percentage), for itself only and not jointly and severally, agrees to indemnify and hold harmless the Representative against all fees, costs and expenses (including reasonable attorneys’ fees), judgments, fines and amounts incurred by the Representative in connection with any action, suit or proceeding to which the Representative is made a party by reason of the fact it is or was acting as the Representative pursuant to the terms of this Agreement.

(c) Exculpation . The Representative shall not have by reason of this Agreement a fiduciary relationship in respect of any Seller, except in respect of amounts received on behalf of such Seller. The Representative shall not be liable to any Seller for any action taken or omitted by it or any agent employed by it hereunder or under any other document entered into in connection herewith, except that the Representative shall not be relieved of any liability imposed by law for willful misconduct. The Representative shall not be liable to the Sellers for any apportionment or distribution of payments made by the Representative in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error the sole recourse of any Seller to whom payment was due, but not made, shall be to recover from other Sellers any payment in excess of the amount to which they are determined to have been entitled. The Representative shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement. Neither the Representative nor any agent employed by it shall incur any liability to any Seller by virtue of the failure or refusal of the Representative for any reason to consummate the transactions contemplated hereby or relating to the performance of its other duties hereunder, except for actions or omissions constituting fraud or bad faith.

(d) Representative Holdback Amount . Upon the final Applicable Limitation Date, if there are no open claims to be resolved with respect to the merger consideration adjustments as set forth in Article II , and no outstanding claims to be resolved pursuant to Article VII or Section 8.03 , the Representative will within five (5) Business Days of such date obtain reimbursement for any outstanding Representative Expenses for which it is due reimbursement under this Agreement and for which it has not been reimbursed prior to such time and distribute any remaining portion of the Representative Holdback Amount to the Sellers on a pro rata basis according to each Seller’s Residual Percentage, it being understood and agreed that such distribution(s) shall be the responsibility of the Representative only and that neither the Purchaser nor the Surviving Company shall have any obligation to ensure that such distribution is, or distributions are, made. If there are open claims that remain unresolved with respect to the merger consideration adjustments as set forth in Article II or outstanding claims to be resolved pursuant to Article VII or Section 8.03 on the final Applicable Limitation Date, the Representative will within five (5) Business Days after the date of resolution of such claims obtain reimbursement pursuant to this Agreement and for which it has not been reimbursed prior to such time and distribute any remaining portion of the Representative Holdback Amount to the Sellers on a pro rata basis according to each Seller’s Residual Percentage, it being understood and agreed that such distribution(s) shall be the responsibility of the Representative only and that neither the Purchaser nor the Surviving Company shall have any obligation to ensure that such distribution is, or distributions are, made. If the Representative Holdback Amount is insufficient

to reimburse the Representative in full, the Representative may instruct the Purchaser or the Escrow Agent, as the case may be, when making any payments to the Sellers, to direct to the Representative sufficient funds from such payments to the Sellers to pay the amount of any such shortfall to the Representative. Such payment to the Representative shall be deducted from the funds otherwise being directed to the Sellers, and allocated among the Sellers on a pro rata basis according to each Seller’s Residual Percentage.

(e) Blocker Corp Assets and Liabilities . For the avoidance of doubt and notwithstanding anything to the contrary herein, as between the Blocker Seller and the Sellers other than the Blocker Seller, any liabilities of the Sellers in respect of the Blocker Corp will be borne solely by the Blocker Seller and any assets of the Sellers in respect of, or increase in the Merger Consideration attributable to, the Blocker Corp (including any Cash held by the Blocker Corp) shall be for the account of the Blocker Seller, in each case as determined by the Representative in its good faith discretion.

10.02 Press Releases and Communications . No press release or public announcement related to this Agreement or the transactions contemplated herein, shall be issued or made by any party hereto (or any Affiliate to a party hereto) without the joint approval of the Purchaser and the Representative, unless required by Law (in the reasonable advice of counsel) in which case the Purchaser and the Representative shall, to the extent reasonably practicable, have the right to review such press release, announcement or communication prior to issuance, distribution or publication, it being acknowledged and agreed that the Purchaser is a publicly traded corporation and therefore will be required to publicly disclose the execution and delivery of this Agreement and the transactions contemplated hereby, including on a Current Report on Form 8-K and, in connection therewith, will be required to attach as an exhibit thereto a copy of this Agreement.

10.03 Expenses . Except as otherwise expressly provided herein, the Company and the Representative, on the one hand, and the Purchaser and the Merger Sub, on the other hand, shall pay all of their own expenses (including attorneys’ and accountants’ fees and expenses) in connection with the negotiation of this Agreement, the performance of their obligations hereunder and the consummation of the transactions contemplated by this Agreement; provided that the Purchaser shall pay the Transaction Expenses on behalf of the Company and its Subsidiaries as provided in Section 3.02(k) .

10.04 Knowledge Defined . For purposes of this Agreement, “the Company’s knowledge” and “knowledge of the Company” as used herein shall mean the actual knowledge of Christopher Curtin, Edward Donovan, Edward J. Fiorentino, Edmund Orme, Vicky Papoutsis, Steven R. Pollock, Bryan Reiners, Mark Tatro and Charles Tobler, and “the Purchaser’s knowledge” as used herein shall mean the actual knowledge of Adrian Adams, Jim Fickenscher and Andrew Koven.

10.05 Notices . All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (a) when personally delivered, (b) when transmitted via facsimile device to the number set out below if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), (c) the day following

the day (except if not a Business Day then the next Business Day) on which the same has been delivered prepaid to a reputable national overnight air courier service or (d) the third Business Day following the day on which the same is sent by certified or registered mail, postage prepaid. Notices, demands and communications, in each case to the respective parties, shall be sent to the applicable address set forth below, unless another address has been previously specified in writing:

Notices to the Purchaser, the Merger Sub and, after the Closing, the Surviving Company :

Auxilium Pharmaceuticals, Inc.

640 Lee Road

Chesterbrook, PA 19087

Attn: Adrian Adams

Facsimile No.: (484) 321-5996

with copies to (which shall not constitute notice) :

Auxilium Pharmaceuticals, Inc.

640 Lee Road

Chesterbrook, PA 19087

Attn: Andrew I. Koven

Facsimile No.: (484) 321-5996

and

Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
Attn: Adam M. Turteltaub
Facsimile No.: (212) 728-8111

Notices to the Representative :

GTCR Fund IX/A, L.P.

c/o GTCR LLC

300 North LaSalle Street, Suite 5600
Chicago, Illinois 60654

Attn: Constantine S. Mihas

Facsimile No.: (312) 382-2201

with copies to (which shall not constitute notice) :

Kirkland & Ellis LLP
300 North LaSalle Street
Chicago, Illinois 60654
Attn: Sanford E. Perl, P.C.
Michael H. Weed, P.C.
Facsimile No.: (312) 862-2200

or to such other address with respect to a party as such party notifies the other in writing as above provided.

10.06 Assignment . This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, except that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by the Purchaser or the Merger Sub without the prior written consent of the Company and the Representative; provided , however , without the prior written consent of the Company and the Representative, (i) the Purchaser may assign this Agreement or any of its rights or interests hereunder to any of its lenders as collateral security and (ii) the Purchaser may assign this Agreement or any of its rights, interests or obligations hereunder to any of its Affiliates, or any successors by operation of Law, or to any Person in connection with a reorganization, merger, acquisition, consolidation, sale of assets or other similar transaction. No assignment of any obligations hereunder shall relieve the parties of any of their obligations pursuant to this Agreement.

10.07 Severability . Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable Law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

10.08 References . The table of contents and the section and other headings and subheadings contained in this Agreement and the Exhibits hereto are solely for the purpose of reference, are not part of the agreement of the parties hereto, and shall not in any way affect the meaning or interpretation of this Agreement or any Exhibit hereto. All references to days or months shall be deemed references to calendar days or months. All references to “$” shall be deemed references to United States dollars. Unless the context otherwise requires, any reference to a “Section,” “Exhibit,” “Disclosure Schedule” or “Schedule” shall be deemed to refer to a section of this Agreement, exhibit to this Agreement or a schedule to this Agreement, as applicable. Capitalized terms used in the Disclosure Schedules and not otherwise defined therein have the meanings given to them in this Agreement. The words “hereof,” “herein” and “hereunder” and words of similar import referring to this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. Unless the context otherwise clearly indicates, each defined term used in this Agreement shall have a comparable meaning when used in its plural or singular form.

10.09 Construction . The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any Person. The specification of any dollar amount or the inclusion of any item in the representations and warranties contained in this Agreement or the Disclosure Schedules or Exhibits attached hereto is not intended to imply that the amounts, or higher or lower amounts, or the items so included, or other items, are or are not required to be disclosed (including whether such amounts or items are required to be disclosed as material or threatened) or are within or outside of the Ordinary Course of Business, and no party shall use the fact of the setting of the amounts or the fact of the inclusion of any item in this Agreement or the Disclosure Schedules or Exhibits in any dispute or controversy between the parties as to whether any obligation, item or matter not described or included in this Agreement or in any Schedule or Exhibit is or is not required to be disclosed (including whether the amount or items are required to be disclosed as material or threatened) or is within or outside of the Ordinary Course of Business. The information contained in this Agreement and in the Disclosure Schedules and Exhibits hereto is disclosed solely for purposes of this Agreement, and no information contained herein or therein shall be deemed to be an admission by any party hereto to any third party of any matter whatsoever (including any violation of Law or breach of contract). For purposes of this Agreement, any document posted by the Company or a Person acting on its behalf to the online data room hosted on behalf of the Company and located at https://datasite.merrillcorp.com on or before 6:00 P.M. New York time on April 2, 2013 shall be deemed to have been “delivered,” “furnished” or “made available” (or any phrase of similar import) to the Purchaser by the Company.

10.10 Amendment and Waiver . Any provision of this Agreement or the Disclosure Schedules or Exhibits hereto may be amended or waived only in a writing signed by the Purchaser, the Merger Sub, the Company and the Representative. No waiver of any provision hereunder or any breach or default thereof shall extend to or affect in any way any other provision or prior or subsequent breach or default.

10.11 Complete Agreement . This Agreement and the documents referred to herein (including the other Transaction Documents and the Confidentiality Agreement) contain the complete agreement between the parties hereto and supersede any prior understandings, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way.

10.12 Third-Party Beneficiaries . Section 6.02 shall be enforceable by the current and former officers, directors and similar functionaries of the Company and/or its Subsidiaries and his or her heirs and representatives. Except as otherwise expressly provided herein, nothing expressed or referred to in this Agreement will be construed to give any Person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement.

10.13 Waiver of Trial by Jury . EACH PARTY TO THIS AGREEMENT HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT, THE ESCROW AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS OR (B) IN ANY WAY CONNECTED WITH OR RELATED

OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO (INCLUDING THE FINANCING), IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. EACH PARTY TO THIS AGREEMENT HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

10.14 Purchaser and Merger Sub Deliveries . Each of the Purchaser and the Merger Sub agrees and acknowledges that all documents or other items delivered or made available to the Purchaser’s authorized representatives shall be deemed to be delivered or made available, as the case may be, to the Purchaser and the Merger Sub for all purposes hereunder.

10.15 Delivery by Electronic Transmission . This Agreement and any signed agreement entered into in connection herewith or contemplated hereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such contract, each other party hereto or thereto shall re—execute original forms thereof and deliver them to all other parties. No party hereto or to any such contract shall raise the use of a facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail to deliver a signature or the fact that any signature or contract was transmitted or communicated through the use of facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail as a defense to the formation of a contract and each such party forever waives any such defense.

10.16 Counterparts . This Agreement may be executed in multiple counterparts, any one of which need not contain the signature of more than one party, but all such counterparts taken together shall constitute one and the same instrument.

10.17 Governing Law . All issues and questions concerning the construction, validity, interpretation and enforceability of this Agreement and the Exhibits and Schedules hereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

10.18 Jurisdiction . Except as otherwise expressly provided in this Agreement, any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby may be brought in the United States District Court for the District of Delaware, the Delaware Court of Chancery of the State of Delaware or any other court of the State of Delaware, and each of the parties hereto hereby consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the

fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an 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 such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 10.05 shall be deemed effective service of process on such party.

10.19 Specific Performance . The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by the Purchaser, the Merger Sub, the Company or the Representative, as applicable, in accordance with their specific terms or were otherwise breached by the Purchaser, the Merger Sub, the Company or the Representative, as applicable. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement by any of the Purchaser, the Merger Sub, the Company or the Representative, as applicable, and to enforce specifically the terms and provisions hereof against the Purchaser, the Merger Sub, the Company or the Representative, as applicable, in any court having jurisdiction, this being in addition to any other remedy to which the parties hereto are entitled at law or in equity.

10.20 Prevailing Party . In the event any litigation or other court action, arbitration or similar adjudicatory proceeding (a “ Proceeding ”) is commenced or threatened by any party (the “ Claiming Party ”) hereto to enforce its rights under this Agreement against any other party (the “ Defending Party ”), if the Defending Party is the prevailing party in such Proceeding, all fees, costs and expenses, including reasonable attorneys’ fees and court costs, incurred by the Defending Party in such Proceeding shall be reimbursed by the Claiming Party; provided , that if the Defending Party prevails in part, and loses in part, in such Proceeding, the court, arbitrator or other adjudicator presiding over such Proceeding shall award a reimbursement of the fees, costs and expenses incurred by the Defending Party on an equitable basis. For purposes hereof, and without limitation, the Defending Party shall be deemed to have prevailed in any Proceeding described in the immediately preceding sentence if the Claiming Party commences or threatens any such Proceeding and (i) such underlying claim(s) are subsequently dropped or voluntarily dismissed and/or (ii) the Defending Party defeats any such claim(s).

* * * *

IN WITNESS WHEREOF, the parties hereto have executed this Agreement and Plan of Merger on the date first above written.

Company:	ACTIENT HOLDINGS LLC


	By:	/s/ Edward J. Fiorentino
		Name:	Edward J. Fiorentino
		Title:	Chief Executive Officer


Purchaser:	AUXILIUM PHARMACEUTICALS, INC.


	By:	/s/ Adrian Adams
		Name:	Adrian Adams
		Title:	Chief Executive Officer & President


Merger Sub:	OPAL ACQUISITION, LLC


	By:	/s/ James E. Fickenscher
		Name:	James E. Fickenscher
		Title:	Treasurer



Blocker Seller:	GTCR FUND IX/B, L.P.

	By:	GTCR Partners IX, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner II, L.L.C.
	Its:	General Partner


	By:	/s/ Constantine S. Mihas
		Name:	Constantine S. Mihas
		Title:	Principal

Signature Page to Agreement and Plan of Merger


Representative:	GTCR FUND IX/A, L.P.

	By:	GTCR Partners IX, L.P.
	Its:	General Partner

	By:	GTCR Golder Rauner II, L.L.C.
	Its:	General Partner


	By:	/s/ Constantine S. Mihas
		Name:	Constantine S. Mihas
		Title:	Principal

Signature Page to Agreement and Plan of Merger (cont’d)

Exhibit A

Certificate of Merger

Exhibit B

Form of Letter of Transmittal

Exhibit C

Surviving Company LLC Agreement

Exhibit D

Calculation of Net Working Capital as of March 31, 2013 ($ in 000’s)

Exhibit E

Rules of Engagement for Valuation Firm

If a Valuation Firm is engaged pursuant to Article II , the parties will instruct the Valuation Firm to analyze and resolve the parties’ dispute in accordance with the following guidelines (which guidelines and relevant portions of this Agreement the Valuation Firm will be required to review and commit to acting in accordance with):

Retainer and Fees

The fees, costs and expenses of the Valuation Firm shall be borne by the parties in inverse proportion to the relative success of the parties relating to the disputed items submitted to the Valuation Firm, with such determination of relative success made by the Valuation Firm, or if the Valuation Firm is unwilling to make such a determination, then such fees, costs and expenses shall be borne 50% by the Purchaser and 50% by the Sellers.

To the extent the Valuation Firm requires a retainer or payment of expenses prior to its final determination, the Purchaser and the Sellers will each pay 50% of any retainer and, during the engagement, the Valuation Firm will bill 50% of the total charges to the Purchaser and 50% of the total charges to the Sellers. Such fees, costs and expenses of the Valuation Firm shall be adjusted, if necessary, pursuant to the first paragraph of this “Retainer and Fees” section.

Parameters of Arbitration

Except as permitted herein in order to clarify or understand any position or argument made by a party in its written submission, the Valuation Firm’s determination of the Net Working Capital, the Indebtedness of the Company and its Subsidiaries outstanding at the Closing, the Transaction Expenses unpaid and outstanding as of the Closing Date, and the amount of Cash held by the Company and its Subsidiaries as of the Closing and the resulting Final Merger Consideration shall be based solely on written presentations submitted by the Purchaser and the Representative which are in accordance with the guidelines and procedures (including the definitions of Cash, Indebtedness, Transaction Expenses and Net Working Capital, and the calculations set forth on Exhibit D ) set forth in this Agreement ( i.e. , not on the basis of an independent review). The Valuation Firm shall consider only the disputed matters that were included in the Objections Statement and the Valuation Firm may not assign a value to any item in dispute greater than the greatest value assigned by the Purchaser in the Preliminary Statement, on the one hand, or the Representative in the Objections Statement, on the other hand, or less than the smallest value for such item assigned by the Purchaser in the Preliminary Statement, on the one hand, or the Representative in the Objections Statement, on the other hand.

The timetable for these proceedings will be governed by the following procedures:

· Within thirty (30) calendar days of retaining the Valuation Firm, each of the Purchaser and the Representative shall submit to the Valuation Firm a memorandum (which may include supporting exhibits) setting forth their respective positions of all unresolved disputed items in accordance with Article II of this Agreement (the “ Initial Report ”).

· Within one (1) Business Day upon receipt of both the Purchaser’s and the Representative’s Initial Reports, the Valuation Firm will distribute a copy of each Initial Report to the other party.

· Within fourteen (14) calendar days of receiving the other party’s Initial Report from the Valuation Firm, each of the Purchaser and the Representative may (but shall not be required to) submit to the Valuation Firm a memorandum responding to the Initial Report submitted to the Valuation Firm by the other party (the “ Rebuttal Report ”). The Rebuttal Report is to be responsive solely to the arguments raised, and information submitted, by the other party in its Initial Report and no party may introduce new arguments or rely on new information in the Rebuttal Report that was not part of such party’s Initial Report or which are not directly responsive to an argument raised by the other party’s Initial Report, except to the extent such new arguments or new information are used in direct response to arguments raised and information submitted by the other party in its Initial Report.

· Within one (1) Business Day upon receipt of the Rebuttal Reports from the Purchaser and the Representative, the Valuation Firm will distribute a copy of each Rebuttal Report to the other party.

· At any time before or within fifteen (15) calendar days after the submission of the Initial Reports or any Rebuttal Reports by the Purchaser and the Representative, the Valuation Firm may submit written questions to either party following the procedures set forth below in the Section titled “Submission of Questions by the Valuation Firm.”

· Upon receipt of the Rebuttal Report or notice waiving the right to file such report from both the Purchaser and the Representative and receipt of all responses to any written questions submitted by the Valuation Firm (and responses thereto), the Valuation Firm will endeavor to issue a report containing its findings within fifteen (15) calendar days after the later of (i) receiving both the Purchaser’s and the Representative’s Rebuttal Reports or notice waiving the right to file such report, as applicable, or (ii) any responses (if any) to any written questions submitted by the Valuation Firm to either party following the procedures set forth below in the Section titled “Submission of Questions by the Valuation Firm.”

· Unless requested by the Valuation Firm in writing pursuant to the terms of the Section titled “Submission of Questions by the Valuation Firm”, neither the Purchaser nor the Representative may present any additional information or arguments to the Valuation Firm, either orally or in writing.

· The Valuation Firm shall render its decision without conducting a hearing.

Submission of Questions by the Valuation Firm

After receiving both Initial Reports and Rebuttal Reports, if any, the Valuation Firm may submit written questions to the parties for written responses or may direct requests for additional information, calculations, or supporting documentation to the parties reasonably needed by the Valuation Firm in order to clarify or understand any position or argument made by a party in its written submission, in which case the parties agree to cooperate with such requests (including, without limitation, by ensuring that the Valuation Firm is provided copies of all relevant records

of the business in accordance with Article II of this Agreement) in the manner and procedural timing described in this paragraph. If any such questions are addressed to only one party, the Valuation Firm shall submit the questions to that party, with a copy to the other parties. Once received, the party (or parties) to whom the questions are addressed shall have five (5) Business Days to answer the Valuation Firm’s questions, and shall provide a copy of its written answers to the other party at the time they are provided to the Valuation Firm. In response thereto, the other party may, within five (5) Business Days, submit a response to such answer(s) to the Valuation Firm and shall provide a copy of a response to the other party at the time it is provided to the Valuation Firm. If any such questions are addressed to both parties, each party shall have five (5) Business Days from the date of receipt to respond to the Valuation Firm and shall provide a copy of its written answers to the other parties at the time they are provided to the Valuation Firm. In response thereto, each party may, within five (5) Business Days, submit a response to the other party’s answer(s) to the Valuation Firm and shall provide a copy to the other party at the time it is provided to the Valuation Firm.

Adjustment of Time Periods

If the due date for any written submissions to be submitted to the Valuation Firm falls on a day that is not a Business Day, the written submission shall take place on the next Business Day.

Communication between the Valuation Firm and the Parties

The parties agree not to engage in any ex parte communication with the Valuation Firm.

The Valuation Firm will be required to include a representation in its engagement letter that it has not discussed the substance of the disputed matter with either party prior to its joint retention by the parties, and to include a covenant in its engagement letter not to engage in ex parte communications with either party throughout the course of the engagement.

The engagement letter will specifically require the Valuation Firm to review Article II of this Agreement, as well as any other provisions of this Agreement deemed relevant by any of the Purchaser, the Seller or the Valuation Firm.

Nature of Review by Valuation Firm

The Valuation Firm will make its determination in an objective, impartial manner based on inquiry, investigation, and other procedures as it, in its sole discretion may deem necessary, but in all cases consistent with the terms of this Agreement and this Exhibit E .

The Valuation Firm shall agree that between the time the Representative delivered the Objections Statement to the Purchaser and the date hereof, the Purchaser and the Representative may have exchanged certain proposals relating to the disputed items that were intended solely for purposes of facilitating settlement discussions and such proposals were confidential and were provided solely on the condition and understanding that such proposals would not be permitted to be disclosed in any court or arbitration hearing, including with respect to the Valuation Firm’s engagement in the dispute. The Valuation Firm will be instructed to disregard any evidence of such settlement proposals and negotiations in its consideration of the disputed matter.

Confidentiality

With respect to any information supplied in connection with the Valuation Firm’s engagement and designated by either party as confidential, or which either party should reasonably believe is confidential based on the subject matter or the circumstances of its disclosure, the other party agrees to protect such confidential information in a reasonable and appropriate manner, and use confidential information only to perform its obligations under this Agreement and for no other purpose. This will not apply to information which is: (i) publicly known, (ii) already known to the recipient, (iii) lawfully disclosed by a third party, (iv) independently developed or (v) disclosed pursuant to legal requirement or order. Notwithstanding the foregoing, no information (whether or not designated as confidential) may be provided to the Valuation Firm without being made available to all parties in accordance with the requirements of this Agreement and this Exhibit E . The Valuation Firm shall not publicly disclose that it has been retained to resolve any dispute relating to this Agreement or that it is involved in the dispute, or any information relating to the dispute.

At the conclusion of the engagement contemplated hereby, confidential information made available hereunder, including copies thereof, shall be returned or destroyed upon request by the disclosing party.

Other Procedural Matters

Procedural matters for the conduct of the dispute resolution, other than as specified herein, will be determined by the Valuation Firm in consultation with the Purchaser and the Representative; provided , however, that any such procedural matters shall in all cases be consistent with the terms of this Agreement and this Exhibit E .

Conflicts of Interest

Except in connection with the dispute being resolved with respect to this Agreement, during the term of this engagement, neither the Valuation Firm nor any member of the Valuation Firm’s team may work on any matters related to the Purchaser, the Representative, the Sellers or any of their respective Affiliates (or such Affiliates’ portfolio companies) or Subsidiaries or otherwise perform services to any entity or individual that may present a conflict of interest that could reasonably affect the Valuation Firm’s services or the unbiased performance of services by any member of the Valuation Firm’s team. The foregoing restrictions on the Valuation Firm will not apply to employees of the Valuation Firm not assigned to work on this engagement.

Exhibit F

Calculation of Net Sales of the Urology Products for the twelve months ended December 31, 2012 and the three months ended March 31, 2013 ($ in 000’s)

Exhibit G

Form of Escrow Agreement

Exhibit H

Form of Registration Rights Agreement

Exhibit I

Form of Resignation

Exhibit J

Form of Release, Confidentiality and Non-Interference Agreement

Exhibit K

Form of Warrant

Exhibit L

Allocation Methodology

The Final Merger Consideration (excluding any amounts attributable to the acquisition of the Shares, but including other relevant items required under the Code (including the Purchaser’s share of the liabilities of the Company as determined under Section 752 of the Code)) (such adjusted amount, the “ Purchase Price ”) shall be deemed allocated among the assets of the Company for purposes of §§743(b) and 751(a) of the Code in accordance with Code §§755 and 1060 in the order stated as follows (and amounts allocable to the Company’s interest in a partnership that has a Code Section 754 election in effect shall be allocable among the assets of such underlying partnership in accordance with similar rules):

1. Class I (cash and cash equivalents): the actual dollar amount of assets in Class I;

2. Class II (investments): the actual dollar value of assets in Class II;

3. Class III (accounts receivable): the amount of accounts receivable, taking into account a reasonable reserve;

4. Class IV (inventory): with respect to finished goods inventory, the reasonably estimated selling price of such inventory in a bulk sale, reduced by estimated associated selling costs and by estimated carrying costs to which a buyer would be subject, and with respect to raw materials and work-in-process, fair market value;

5. Class V (property, plant and equipment, prepaid expenses, and other assets not in any other class): the fair market value of such assets in Class V;

6. Class VI (section 197 intangibles other than goodwill and going concern value): the fair market value of assets in Class VI determined in accordance with GAAP; and

7. Class VII (goodwill and going concern value): the remaining amount of the Purchase Price shall be allocated to assets in Class VII.

Exhibit M

Paying Agent Agreement

Exhibit 4.1

EXECUTION

The security represented by this certificate was originally issued on April 26, 2013, and has not been registered under the Securities Act of 1933, as amended.

AUXILIUM PHARMACEUTICALS, INC.

STOCK PURCHASE WARRANT

Date of Issuance: April 26, 2013

Certificate No. WA-1

FOR VALUE RECEIVED, Auxilium Pharmaceuticals, Inc., a Delaware corporation (the “ Company ”), hereby grants to GTCR Fund X/A, L.P., as representative for the Sellers, or its registered assigns (the “ Registered Holder ”) the right to purchase from the Company 1,250,000 shares of Warrant Stock at a price per share of $17.80 (as adjusted from time to time in accordance herewith, the “ Exercise Price ”). This Warrant is issued pursuant to the terms of the Agreement and Plan of Merger, dated as of the date hereof (the “ Merger Agreement ”), by and among Actient Holdings LLC, the Company, Opal Acquisition, LLC, a Delaware limited liability company and wholly owned subsidiary of the Company, GTCR Fund IX/B, L.P., a Delaware limited partnership, and GTCR Fund IX/A, L.P., a Delaware limited partnership, solely in its capacity as representative for the Company’s unitholders and optionholders. Certain capitalized terms used herein are defined in Section 5 hereof. The amount and kind of securities obtainable pursuant to the rights granted hereunder and the purchase price for such securities are subject to adjustment pursuant to the provisions contained in this Warrant.

This Warrant is subject to the following provisions:

Section 1. Exercise or Exchange of Warrant .

1A. Exercise Period . The Registered Holder may exercise, in whole or in part (but not as to a fractional share of Warrant Stock), the purchase rights represented by this Warrant at any time and from time to time after the Date of Issuance to and including April 26, 2023 (the “ Exercise Period ”).

1B. Exercise or Exchange of Procedure .

(i) This Warrant shall be deemed to have been exercised when the Company has received all of the following items (the “ Exercise Time ”):

(a) a completed Exercise Agreement, as described in Section 1C , executed by the Person exercising all or part of the purchase rights represented by this Warrant (the “ Purchaser ”);

(b) this Warrant;

(c) if this Warrant is not registered in the name of the Purchaser, an Assignment or Assignments in the form set forth in Exhibit II hereto evidencing the assignment of this Warrant to the Purchaser, in which case the Registered Holder shall have complied with the provisions set forth in Section 8 ; and

(d) either (1) a check payable to the Company in an amount equal to the product of the Exercise Price multiplied by the number of shares of Warrant Stock being purchased upon such exercise (the “ Aggregate Exercise Price ”) or (2) the surrender to the Company of debt or equity securities of the Company or any of its wholly owned Subsidiaries having a Market Price equal to the Aggregate Exercise Price of the Warrant Stock being purchased upon such exercise ( provided that for purposes of this Section 1B(i)(d) , the Market Price of any note or other debt security or any preferred stock shall be deemed to be equal to the aggregate outstanding principal amount or liquidation value thereof plus all accrued and unpaid interest thereon or accrued or declared and unpaid dividends thereon, and provided further , that such surrender of debt or equity securities of the Company would not cause the Company to violate any applicable law, rule or regulation).

(ii) As an alternative to the exercise of this Warrant as provided in Section 1B(i) , the holder of this Warrant may exchange all or part of the purchase rights represented by this Warrant by surrendering this Warrant to the Company, together with a written notice to the Company that the holder is exchanging the Warrant (or a portion thereof) for an aggregate number of shares of Warrant Stock specified in the notice, from which the Company shall withhold and not issue to the holder a number of shares of Warrant Stock with an aggregate Market Price equal to the Aggregate Exercise Price of the number of shares of Warrant Stock specified in such notice (and such withheld shares shall no longer be issuable under this Warrant).

(iii) Certificates for shares of Warrant Stock purchased upon exercise of this Warrant shall be delivered by the Company to the Purchaser within five business days after the date of the Exercise Time. Unless this Warrant has expired or all of the purchase rights represented hereby have been exercised, the Company shall prepare a new Warrant, substantially identical hereto, representing the rights formerly represented by this Warrant which have not expired or been exercised and shall, within such five-business day period, deliver such new Warrant to the Person designated for delivery in the Exercise Agreement.

(iv) The Warrant Stock issuable upon the exercise of this Warrant shall be deemed to have been issued to the Purchaser at the Exercise Time, and the Purchaser shall be deemed for all purposes to have become the record holder of such Warrant Stock at the Exercise Time.

(v) The issuance of certificates for shares of Warrant Stock upon exercise of this Warrant shall be made without charge to the Registered Holder or the Purchaser for any issuance tax in respect thereof or other cost incurred by the Company in connection with such exercise and the related issuance of shares of Warrant Stock. Each share of Warrant Stock

issuable upon exercise of this Warrant shall, upon payment of the Exercise Price therefor, be fully paid and nonassessable and free from all liens and charges with respect to the issuance thereof.

(vi) The Company shall not close its books against the transfer of this Warrant or of any share of Warrant Stock issued or issuable upon the exercise of this Warrant in any manner which interferes with the timely exercise of this Warrant. The Company shall from time to time take all such action as may be necessary to assure that the par value per share of the unissued Warrant Stock acquirable upon exercise of this Warrant is at all times equal to or less than the Exercise Price then in effect.

(vii) The Company shall assist and cooperate with any Registered Holder or Purchaser required to make any governmental filings or obtain any governmental approvals prior to or in connection with any exercise of this Warrant (including, without limitation, making any filings required to be made by the Company).

(viii) Subject to the rights of the Company to “cash out” the Warrant in the event of a Change of Control pursuant to Section 2D(i) , if an exercise of any portion of this Warrant is to be made in connection with a registered public offering or an Organic Change, the exercise of any portion of this Warrant may, at the election of the holder hereof, (a) in the case of a registered public offering, be conditioned upon the consummation of the public offering, or (b) in the case of an Organic Change, be conditioned upon the consummation of the Organic Change, and in each such case such exercise shall not be deemed to be effective until immediately prior to the consummation of such transaction.

(ix) The Company shall at all times reserve and keep available out of its authorized but unissued shares of Warrant Stock solely for the purpose of issuance upon the exercise of the Warrants, such number of shares of Warrant Stock issuable upon the exercise of all outstanding Warrants. All shares of Warrant Stock which are so issuable shall, when issued, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges. The Company shall take all such actions as may be necessary to assure that all such shares of Warrant Stock may be so issued by the Company without violation by the Company of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which shall be immediately delivered by the Company upon each such issuance). The Company shall not take any action which would cause the number of authorized but unissued shares of Warrant Stock to be less than the number of such shares required to be reserved hereunder for issuance upon exercise of the Warrant.

(x) If the shares of Warrant Stock issuable by reason of exercise of this Warrant are convertible into or exchangeable for any other stock or securities of the Company, the Company shall, at the Purchaser’s option and upon surrender of this Warrant by such Purchaser as provided above together with any notice, statement or payment required to effect such conversion or exchange of Warrant Stock, deliver to such Purchaser (or as otherwise specified by such Purchaser) a certificate or certificates representing the stock or securities into which the shares of Warrant Stock issuable by reason of such conversion are convertible or

exchangeable, registered in such name or names and in such denomination or denominations as specified in the Exercise Agreement.

1C. Exercise Agreement . Upon any exercise of this Warrant, the Exercise Agreement shall be substantially in the form set forth in Exhibit I hereto, except that if the shares of Warrant Stock are not to be issued in the name of the Person in whose name this Warrant is registered, the Exercise Agreement shall also state the name of the Person to whom the certificates for the shares of Warrant Stock are to be issued, and if the number of shares of Warrant Stock to be issued does not include all the shares of Warrant Stock purchasable hereunder, it shall also state the name of the Person to whom a new Warrant for the unexercised portion of the rights hereunder is to be delivered. Such Exercise Agreement shall be dated the actual date of execution thereof.

1D. Fractional Shares . If a fractional share of Warrant Stock would, but for the provisions of Section 1A , be issuable upon exercise of the rights represented by this Warrant, the Company shall, within five business days after the date of the Exercise Time, deliver to the Purchaser a check payable to the Purchaser in lieu of such fractional share in an amount equal to the difference between the Market Price of such fractional share as of the date of the Exercise Time and the Exercise Price of such fractional share.

Section 2. Adjustment of Exercise Price and Number of Shares . In order to prevent dilution of the rights granted under this Warrant, the Exercise Price shall be subject to adjustment from time to time as provided in this Section 2 , and the number of shares of Warrant Stock obtainable upon exercise of this Warrant shall be subject to adjustment from time to time as provided in this Section 2 .

2A. Adjustment of Exercise Price and Number of Shares upon Issuance of Common Stock .

(i) Other than in the case of the grant, sale or issuance of Exempted Securities, if and whenever the Company issues or sells, or in accordance with Section 2B is deemed to have issued or sold, any shares of Common Stock for a consideration per share less than the Adjustment Threshold Amount in effect immediately prior to such time, then immediately upon such issue or sale the Adjustment Threshold Amount shall be reduced to the Adjustment Threshold Amount determined by dividing:

(A) the sum of (x) the product derived by multiplying (1) the Adjustment Threshold Amount in effect immediately prior to such issue or sale by (2) the number of shares of Common Stock Deemed Outstanding immediately prior to such issue or sale, plus (y) the consideration, if any, received by the Company upon such issue or sale, by

(B) the number of shares of Common Stock Deemed Outstanding immediately after such issue or sale.

(ii) Immediately upon any reduction to the Adjustment Threshold Amount, the Exercise Price shall be reduced to an amount equal to the product of (A) the adjusted Adjustment Threshold Amount, multiplied by (B) 105%.

(iii) Upon each such adjustment of the Exercise Price hereunder, the number of shares of Warrant Stock acquirable upon exercise of this Warrant shall be adjusted to the number of shares determined by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of shares of Warrant Stock acquirable upon exercise of this Warrant immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment.

2B. Effect on Adjustment Threshold Amount of Certain Events . For purposes of determining the adjusted Adjustment Threshold Amount under Section 2A , the following shall be applicable:

(i) Issuance of Rights or Options . Other than in the case of the grant, sale or issuance of Exempted Securities, if the Company in any manner grants or sells any Options and the price per share for which Common Stock is issuable upon the exercise of such Options, or upon conversion or exchange of any Convertible Securities issuable upon exercise of such Options, is less than the Adjustment Threshold Amount in effect immediately prior to the time of the granting or sale of such Options, then the total maximum number of shares of Common Stock issuable upon the exercise of such Options, or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options, shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting or sale of such Options for such price per share. For purposes of this Section 2B(i) , the “price per share for which Common Stock is issuable upon exercise of such Options or upon conversion or exchange of such Convertible Securities” is determined by dividing (A) the total amount, if any, received or receivable by the Company as consideration for the granting or sale of such Options, plus the minimum aggregate amount of additional consideration payable to the Company upon the exercise of all such Options, plus in the case of such Options which relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable to the Company upon the issuance or sale of such Convertible Securities and the conversion or exchange thereof, by (B) the total maximum number of shares of Common Stock issuable upon exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options if such securities were issued on the date any such Options were sold by the Company. No further adjustment of the Exercise Price or Adjustment Threshold Amount shall be made upon the actual issuance of such Common Stock or of such Convertible Securities upon the exercise of such Options or upon the actual issuance of such Common Stock upon conversion or exchange of such Convertible Securities.

(ii) Issuance of Convertible Securities . Other than in the case of the grant, sale or issuance of Exempted Securities, if the Company in any manner issues or sells any Convertible Securities and the price per share for which Common Stock is issuable upon conversion or exchange thereof is less than the Adjustment Threshold Amount in effect immediately prior to the time of such issue or sale, then the maximum number of shares of Common Stock issuable upon conversion or exchange of such Convertible Securities shall be

deemed to be outstanding and to have been issued and sold by the Company at the time of the issue or sale of such Convertible Securities for such price per share. For the purposes of this Section 2B(ii) , the “price per share for which Common Stock is issuable upon conversion or exchange thereof” is determined by dividing (A) the total amount received or receivable by the Company as consideration for the issue or sale of such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to the Company upon the conversion or exchange thereof, by (B) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities if such securities were converted on the date any such Convertible Securities were sold by the Company. No further adjustment of the Exercise Price or Adjustment Threshold Amount shall be made upon the actual issue of such Common Stock upon conversion or exchange of such Convertible Securities, and if any such issue or sale of such Convertible Securities is made upon exercise of any Options for which adjustments of the Adjustment Threshold Amount had been or are to be made pursuant to other provisions of this Section 2B , no further adjustment of the Adjustment Threshold Amount shall be made by reason of such issue or sale.

(iii) Change in Option Price or Conversion Rate . Other than in the case of the grant, sale or issuance of Exempted Securities, if the purchase price provided for in any Options, the additional consideration, if any, payable upon the issue, conversion or exchange of any Convertible Securities, or the rate at which any Convertible Securities are convertible into or exchangeable for Common Stock changes at any time, the Adjustment Threshold Amount in effect at the time of such change shall be adjusted immediately to the Adjustment Threshold Amount which would have been in effect at such time had such Options or Convertible Securities still outstanding provided for such changed purchase price, additional consideration or changed conversion rate, as the case may be, at the time initially granted, issued or sold and the number of shares of Warrant Stock issuable hereunder shall be correspondingly adjusted; provided that if such adjustment would result in an increase of the Exercise Price then in effect, such adjustment shall not be effective until 10 days after written notice thereof has been given by the Company to all holders of the Warrants. For purposes of this Section 2B , if the terms of any Option or Convertible Security which was outstanding as of the date of issuance of this Warrant are changed in the manner described in the immediately preceding sentence, then any such change shall not increase or decrease the Adjustment Threshold Amount.

(iv) Treatment of Expired Options and Unexercised Convertible Securities . Other than in the case of the grant, sale or issuance of Exempted Securities, upon the expiration of any Option or the termination of any right to convert or exchange any Convertible Securities that has caused the Adjustment Threshold Amount to be adjusted without the exercise of such Option or right, the Adjustment Threshold Amount then in effect and the number of shares of Warrant Stock acquirable hereunder shall be adjusted immediately to the Adjustment Threshold Amount and the number of shares which would have been in effect at the time of such expiration or termination had such Option or Convertible Securities, to the extent outstanding immediately prior to such expiration or termination, never been issued; provided that if such expiration or termination would result in an increase in the Exercise Price then in effect, such increase shall not be effective until 10 days after written notice thereof has been given to all holders of the Warrants. For purposes of this Section 2B , the expiration or termination of any Option or Convertible Security which was outstanding as of the date of issuance of this Warrant shall not cause the Adjustment Threshold Amount hereunder to be adjusted.

(v) Calculation of Consideration Received . If any Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor shall be deemed to be the gross amount paid by the purchaser thereof. In case any Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of the consideration other than cash paid by the purchaser thereof shall be the fair value of such consideration, except where such consideration consists of securities, in which case the amount of consideration paid by the purchaser thereof shall be the Market Price thereof as of the date of receipt. In case any Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity the amount of consideration therefor shall be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such Common Stock, Options or Convertible Securities, as the case may be. The fair value of any consideration other than cash or securities shall be determined jointly by the Company and the Registered Holders of Warrants representing a majority of the shares of Warrant Stock obtainable upon exercise of such Warrants. If such parties are unable to reach agreement within a reasonable period of time, such fair value shall be determined by an appraiser jointly selected by the Company and the Registered Holders of Warrants representing a majority of the shares of Warrant Stock obtainable upon exercise of such Warrants. The determination of such appraiser shall be final and binding on the Company and the Registered Holders of the Warrants, and the fees and expenses of such appraiser shall be paid by the Company.

(vi) Integrated Transactions . In case any Option other than an Exempted Security is issued in connection with the issue or sale of other securities of the Company, together comprising one integrated transaction in which no specific consideration is allocated to such Options by the parties thereto, the Options shall be deemed to have been issued without consideration.

(vii) Treasury Shares . The number of shares of Common Stock outstanding at any given time does not include shares owned or held by or for the account of the Company or any Subsidiary, and the disposition of any shares so owned or held shall be considered an issue or sale of Common Stock.

(viii) Record Date . If the Company takes a record of the holders of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.

2C. Subdivision or Combination of Common Stock . If the Company at any time subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding shares of Common Stock into a greater number of shares, the Adjustment Threshold Amount in effect immediately prior to such subdivision shall be proportionately reduced and the number of shares of Warrant Stock obtainable upon exercise of this Warrant shall be proportionately increased. If the Company at any time combines (by

reverse stock split or otherwise) one or more classes of its outstanding shares of Common Stock into a smaller number of shares, the Adjustment Threshold Amount in effect immediately prior to such combination shall be proportionately increased and the number of shares of Warrant Stock obtainable upon exercise of this Warrant shall be proportionately decreased.

2D. Reorganization, Reclassification, Consolidation, Merger or Sale . Any recapitalization, reorganization, reclassification, consolidation, merger, sale of all or substantially all of the Company’s assets or other transaction, in each case which is effected in such a way that the holders of Common Stock are entitled to receive (either directly or upon subsequent liquidation) cash, stock, securities or assets with respect to or in exchange for Common Stock is referred to herein as “ Organic Change .”

(i) Prior to the consummation of any Organic Change that is also a Change of Control, the Company shall, at its election, (a) comply with the provisions of Section 2D(ii) applicable to an Organic Change that is not a Change of Control or (b) insure that each of the Registered Holders of the Warrants shall receive, in lieu of the shares of Warrant Stock immediately theretofore acquirable and receivable upon the exercise of such holder’s Warrant had such Warrant been exercised pursuant to the provisions of Section 1B(ii) , such shares of cash, stock, securities or assets as would have been issued or payable in such Organic Change (if the holder had exercised this Warrant immediately prior to such Organic Change) with respect to or in exchange for the net shares of Warrant Stock immediately theretofore acquirable and receivable upon exercise of such holder’s Warrant pursuant to Section 1B(ii) had such Organic Change not taken place.

(ii) Prior to the consummation of any Organic Change that is not a Change of Control, the Company shall make appropriate provision (in form and substance satisfactory to the Registered Holders of the Warrants representing a majority of the Warrant Stock obtainable upon exercise of all Warrants then outstanding) to insure that each of the Registered Holders of the Warrants shall thereafter have the right to acquire and receive, in lieu of or addition to (as the case may be) the shares of Warrant Stock immediately theretofore acquirable and receivable upon the exercise of such holder’s Warrant, such shares of stock, securities or assets as would have been issued or payable in such Organic Change (if the holder had exercised this Warrant immediately prior to such Organic Change) with respect to or in exchange for the shares of Warrant Stock immediately theretofore acquirable and receivable upon exercise of such holder’s Warrant had such Organic Change not taken place. In any such case, the Company shall make appropriate provision (in form and substance satisfactory to the Registered Holders of the Warrants representing a majority of the Warrant Stock obtainable upon exercise of all Warrants then outstanding) with respect to such holders’ rights and interests to insure that the provisions of this Section 2 and Section 3 shall thereafter be applicable to the Warrants (including, in the case of any such consolidation, merger or sale in which the successor entity or purchasing entity is other than the Company, an immediate adjustment of the Adjustment Threshold Amount to the value for the Common Stock reflected by the terms of such consolidation, merger or sale, and a corresponding immediate adjustment in the number of shares of Warrant Stock acquirable and receivable upon exercise of the Warrants, if the value so reflected is less than the Adjustment Threshold Amount in effect immediately prior to such consolidation, merger or sale). The Company shall not effect any such consolidation, merger or sale, unless prior to the consummation thereof, the successor entity (if other than the Company) resulting from

consolidation or merger or the entity purchasing such assets assumes by written instrument (in form and substance satisfactory to the Registered Holders of Warrants representing a majority of the Warrant Stock obtainable upon exercise of all of the Warrants then outstanding), the obligation to deliver to each such holder such shares of stock, securities or assets as, in accordance with the foregoing provisions, such holder may be entitled to acquire.

2E. Certain Events . If any event occurs of the type contemplated by the provisions of this Section 2 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company’s board of directors shall make an appropriate adjustment in the Adjustment Threshold Amount and the number of shares of Warrant Stock obtainable upon exercise of this Warrant so as to protect the rights of the holders of the Warrants; provided that no such adjustment shall increase the Adjustment Threshold Amount or decrease the number of shares of Warrant Stock obtainable as otherwise determined pursuant to this Section 2 .

2F. Notices .

(i) Promptly upon any adjustment of the Exercise Price, the Company shall give written notice thereof to the Registered Holder, setting forth in reasonable detail and certifying the calculation of such adjustment.

(ii) The Company shall give written notice to the Registered Holder at least 20 days prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon the Common Stock, (B) with respect to any pro rata subscription offer to holders of Common Stock or (C) for determining rights to vote with respect to any Organic Change, dissolution or liquidation.

(iii) The Company shall also give written notice to the Registered Holders at least 20 days prior to the date on which any Organic Change, dissolution or liquidation shall take place.

Section 3. Dividends . If the Company declares or pays a dividend upon the Common Stock (whether payable in cash, evidence of its indebtedness, assets or otherwise, but excluding a stock dividend payable in shares of Common Stock) (a “ Dividend ”), then the Company shall pay to the Registered Holder of this Warrant (or any Person designated by the Registered Holder) at the time of payment thereof the Dividend which would have been paid to such Registered Holder on the Common Stock had this Warrant been fully exercised immediately prior to the date on which a record is taken for such Dividend, or, if no record is taken, the date as of which the record holders of Common Stock entitled to such dividends are to be determined; provided that if the Dividends consist of voting securities, the Company shall make available to the Registered Holder of this Warrant, at such holder’s request, Dividends consisting of non-voting securities (except as otherwise required by law) which are otherwise identical to the Dividends consisting of voting securities and which non-voting securities are convertible into such voting securities

Section 4. Purchase Rights . If at any time the Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities or other

property pro rata to the record holders of any class of Common Stock (the “ Purchase Rights ”), then the Registered Holder of this Warrant shall be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which such holder could have acquired if such holder had held the number of shares of Warrant Stock acquirable upon complete exercise of this Warrant immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights; provided that if the Purchase Rights involve voting securities, the Company shall make available to the Registered Holder of this Warrant, at such holder’s request, Purchase Rights involving non-voting securities (except as otherwise required by law) which are otherwise identical to the Purchase Rights involving voting securities and which non-voting securities are convertible or exchangeable into such voting securities.

Section 5. Definitions . The following terms have meanings set forth below:

“ Adjustment Threshold Amount ” means $16.95 (as adjusted from time to time in accordance herewith).

“ Change of Control ” means any transaction or series of transactions pursuant to which any Person or group of related Persons in the aggregate acquire(s) (i) equity securities of the Company possessing the voting power (other than voting rights accruing only in the event of a default, breach or event of noncompliance) to elect a majority of the Board or (ii) all or substantially all of the Company’s assets determined on a consolidated basis.

“ Common Stock ” means the Company’s Common Stock, par value $0.01 per share, and any capital stock of any class of the Company hereafter authorized which is not limited to a fixed sum or percentage of par or stated value in respect to the rights of the holders thereof to participate in dividends or in the distribution of assets upon any liquidation, dissolution or winding up of the Company.

“ Common Stock Deemed Outstanding ” means, at any given time, the number of shares of Common Stock actually outstanding at such time, plus (i) the number of shares of Common Stock deemed to be outstanding pursuant to Sections 2B(i) and 2B(ii) regardless of whether the Options or Convertible Securities are actually exercisable at such time, but excluding any shares of Common Stock issuable upon exercise of the Warrants, plus (ii) the number of shares of any Common Stock issuable pursuant to clause (iii) of the definition of Exempted Security.

“ Convertible Securities ” means any stock or securities (directly or indirectly) convertible into or exchangeable for Common Stock.

“ Exempted Security ” means any:

(i) shares of Common Stock, Options or Convertible Securities issued as a dividend or distribution on the Warrant Shares;

(ii) shares of Common Stock, Options or Convertible Securities issued by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock that is covered by Section 2C , 2D , 3 or 4 ;

(iii) shares of Common Stock or Options issued to employees or directors of, or consultants or advisors to, the Corporation or any of its subsidiaries pursuant to a plan, agreement or arrangement that has been approved by the Company’s Board of Directors or shareholders, as the case may be (such shares of Common Stock or Options, “ Incentive Equity ”);

(iv) shares of Common Stock, Options or Convertible Securities issued to banks or other financial institutions pursuant to a debt financing; or

(v) shares of Common Stock or Convertible Securities actually issued upon the exercise of Options or shares of Common Stock actually issued upon the conversion or exchange of Convertible Securities, in each case provided such issuance is pursuant to the terms of such Option or Convertible Security.

“ Market Price ” means as to any security as of any date, the price equal to the aggregate volume weighted-average per share price, rounded to two decimal points, of such security on The NASDAQ Stock Market (or any successor licensed national exchange), as reported by Bloomberg LP, for the 30 consecutive trading days immediately preceding such date, or, if on any day such security is not so listed, the average of the highest bid and lowest asked prices on such day in the domestic over-the-counter market as reported by OTC Markets Group Inc., or any similar successor organization, averaged over the 30 consecutive trading days immediately preceding such date. If at any time such security is not listed on any licensed national exchange or quoted in the domestic over-the-counter market, the “Market Price” shall be the fair value thereof determined jointly by the Company and the Registered Holders of Warrants representing a majority of the Warrant Stock purchasable upon exercise of all the Warrants then outstanding (without applying any marketability, minority or other discounts); provided that if such parties are unable to reach agreement within a reasonable period of time, such fair value shall be determined (without applying any marketability, minority or other discounts) by an appraiser jointly selected by the Company and the Registered Holders of Warrants representing a majority of the Warrant Stock purchasable upon exercise of all the Warrants then outstanding. The determination of such appraiser shall be final and binding on the Company and the Registered Holders of the Warrants, and the fees and expenses of such appraiser shall be paid by the Company.

“ Options ” means any rights or options to subscribe for or purchase Common Stock or Convertible Securities.

“ Person ” means an individual, a partnership, a joint venture, a corporation, a limited liability company, a trust, an unincorporated organization and a government or any department or agency thereof.

“ Warrant Stock ” means shares of the Company’s Common Stock; provided that if there is a change such that the securities issuable upon exercise of the Warrants are issued by an entity other than the Company or there is a change in the type or class of securities so issuable,

then the term “Warrant Stock” shall mean one share of the security issuable upon exercise of the Warrants if such security is issuable in shares, or shall mean the smallest unit in which such security is issuable if such security is not issuable in shares.

Other capitalized terms used in this Warrant but not defined herein shall have the meanings set forth in the Merger Agreement.

Section 6. No Voting Rights; Limitations of Liability . This Warrant shall not entitle the holder hereof to any voting rights or other rights as a stockholder of the Company. No provision hereof, in the absence of affirmative action by the Registered Holder to purchase Warrant Stock, and no enumeration herein of the rights or privileges of the Registered Holder shall give rise to any liability of such holder for the Exercise Price of Warrant Stock acquirable by exercise hereof or as a stockholder of the Company.

Section 7. No Impairment . The Company shall not by any action, including through any amendment to its certificate of incorporation, through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in carrying out all such actions as may reasonably be necessary or appropriate to protect the rights of the Registered Holder against impairment.

Section 8. Warrant Transferable . Subject to the transfer conditions referred to in the legend endorsed hereon, this Warrant and all rights hereunder are transferable, in whole or in part, without charge to the Registered Holder, upon surrender of this Warrant with a duly and properly executed Assignment (in the form of Exhibit II hereto) at the principal office of the Company.

Section 9. Warrant Exchangeable for Different Denominations . This Warrant is exchangeable, upon the surrender hereof by the Registered Holder at the principal office of the Company, for new Warrants of like tenor representing in the aggregate the purchase rights hereunder, and each of such new Warrants shall represent such portion of such rights as is designated by the Registered Holder at the time of such surrender. At the Registered Holder’s request, any such new Warrant may be exercisable for non-voting Common Stock; provided , that such new Warrant shall otherwise be identical to this Warrant. The date the Company initially issues this Warrant shall be deemed to be the “ Date of Issuance ” hereof regardless of the number of times new certificates representing the unexpired and unexercised rights formerly represented by this Warrant shall be issued. All Warrants representing portions of the rights hereunder are referred to herein as the “ Warrants .”

Section 10. Replacement . Upon receipt of evidence reasonably satisfactory to the Company (an affidavit of the Registered Holder shall be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing this Warrant, and in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably satisfactory to the Company ( provided that if the holder is a financial institution or other institutional investor its own agreement shall be satisfactory), or, in the case of any such mutilation upon surrender of such certificate, the Company shall (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the same rights represented by such lost, stolen,

destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate.

Section 11. Registered Holder’s Investment Representations . The Registered Holder hereby represents that (a) it is an “accredited investor” as such term is defined under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, (b) it is acquiring this Warrant, on behalf of the Sellers, with the present intention of holding this Warrant for purposes of investment and (c) it has no intention of selling such securities in a public distribution in violation of the federal securities laws or any applicable state securities laws; provided that nothing contained herein shall prevent the Registered Holder and subsequent holders of this Warrant from transferring this Warrant in compliance with the provisions of Section 8 hereof

Section 12. Representative . This Warrant is being issued to the Representative on behalf of the Sellers pursuant to, and subject to the limitations set forth in, Section 10.01 of the Merger Agreement. The Representative will disburse, or cause to be disbursed, any net cash proceeds (including in respect of dividends and distributions) of this Warrant to each Seller, pro rata in accordance with each Seller’s Residual Percentage.

Section 13. Notices . All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Warrant shall be in writing and shall be deemed to have been given (a) when personally delivered, (b) when transmitted via facsimile device to the applicable facsimile number if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), (c) the day following the day (except if not a Business Day then the next Business Day) on which the same has been delivered prepaid to a reputable national overnight air courier service or (d) the third Business Day following the day on which the same is sent by certified or registered mail, postage prepaid. Notices, demands and communications to the Company shall be sent to its principal executive offices. Notices, demands and communications to the Registered Holder shall be sent to the address set forth on Exhibit III hereto, unless another address has been previously specified in writing by the Registered Holder.

Section 14. Amendment and Waiver . Except as otherwise provided herein, the provisions of the Warrants may be amended and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of the Registered Holder.

Section 15. Descriptive Headings . The descriptive headings of the several Sections of this Warrant are inserted for convenience only and do not constitute a part of this Warrant.

Section 16. Governing Law . All issues and questions concerning the construction, validity, interpretation and enforceability of this Warrant shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

* * * *

IN WITNESS WHEREOF, the Company has caused this Warrant to be signed and attested by its duly authorized officers and to be dated the Date of Issuance hereof.

	AUXILIUM PHARMACEUTICALS, INC.


	By	/s/ James E. Fickenscher

	Its	Chief Financial Officer


Attest:


/s/ Andrew I. Koven
Secretary

EXHIBIT I

EXERCISE AGREEMENT

The undersigned is the Holder of Warrant No. (the “ Warrant ”) issued by Auxilium Pharmaceuticals Inc., a Delaware corporation (the “ Company ”). Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Warrant.

1. The undersigned Holder hereby exercises its right to purchase Warrant Shares pursuant to the Warrant.

2. The Holder intends that payment of the Exercise Price shall be made as (check one):

o “Cash Exercise” under clause (1) of Section 1B(i)(d) of the Warrant

o “Cashless Exercise” under clause (2) of Section 1B(i)(d) or Section 1B(ii) of the Warrant

3. Pursuant to this exercise, the Company shall deliver to the Holder Warrant Shares in accordance with the terms of the Warrant. Delivery shall be made to the Holder, or for its benefit, to:

Name:

Social Security or other identifying Number:

Street Address:

City, State Zip Code:

[ Additional Sheets to be Annexed if Required]

4. By its delivery of this Exercise Notice, the undersigned represents and warrants to the Company that:

a. the undersigned has the requisite power and authority to execute and deliver this instrument, and perform the transactions contemplated hereby to be performed by it;

b. this agreement has been duly executed and delivered by the undersigned and constitutes a valid and binding obligation of the undersigned; and

c. none of the Warrant or the undersigned’s rights to receive the Warrant Shares have been sold, assigned, transferred, donated, pledged, or hypothecated, nor has the undersigned create a security interest in, placed in trust or otherwise voluntarily or involuntarily disposed of the Warrant or the undersigned’s rights to receive the Warrant Shares other than pursuant to a duly and properly executed Assignment Agreement

5. Following this exercise, the Warrant shall be exercisable to purchase a total of Warrant Shares.

Dated:	,	Name of Holder:

		(Print)

		By:

		Name:

		Title:

		(Signature must conform in all respects to name of holder as specified on the face of the Warrant)

ACKNOWLEDGED AND AGREED TO:

this	day of	, 20

Auxilium Pharmaceuticals, Inc.


By:
Name:
Title:

EXHIBIT II

ASSIGNMENT

FOR VALUE RECEIVED, the undersigned holder of Warrant No. (the “ Warrant ”) issued by Auxilium Pharmaceuticals, Inc., a Delaware company (the “ Company ”) hereby sells, assigns and transfers unto the following individuals or entities (in each case, a “ Transferee ”) the right represented by the Warrant to purchase the following Warrant Shares:

Names of Assignee		No. of Shares

and appoints the Company’s Secretary and Assistant Secretary as the undersigned’s attorney-in-fact to transfer said right on the books of the Company with full power of substitution in the premises. Capitalized terms used and not otherwise defined herein, shall have the meanings ascribed to such terms in the Warrant. Each of the undersigned and Transferee hereby represent, warrant, covenant and agree to and with the Company that:

(a)		the undersigned has not offered to sell the Warrant by any form of general solicitation or general advertising, including, but not limited to, any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, and any seminar or meeting whose attendees have been invited by any general solicitation or general advertising;

(b)		the Transferee is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with the requisite corporate, partnership or other power and authority to enter into and to consummate this assignment and the transactions contemplated by this assignment to which it is deemed to be a party and otherwise to carry out its obligations hereunder and thereunder;

(c)		this assignment has been duly executed and delivered by each of the undersigned and the Transferee and constitutes the valid and binding obligation of each of them, enforceable against them in accordance with its terms;

(d)		the Transferee is (i) acquiring the Warrant, and (ii) upon exercise of the Warrant will acquire the Warrant Shares issuable upon exercise thereof, in the ordinary course of business for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered under the Securities Act of 1933, as amended (the “ Securities Act ”), or under an exemption from such registration and in compliance with applicable federal and state securities laws, and the Transferee does not have a present arrangement to effect any distribution of the Warrant or the Warrant Shares to or through any person or entity; provided , however , that by making the representations herein, the Transferee does not agree to hold any of the

		Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act; and

(e)		the execution, delivery and performance by the Transferee of this assignment and the consummation by the Transferee of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of the Transferee or (ii) conflict with, 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 or cancellation of, any agreement, indenture or instrument to which the Transferee is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to the Transferee, except in the case of clauses (ii) and (iii) above, for such that are not material and do not otherwise affect the ability of the Transferee to consummate the transactions contemplated hereby.

Dated: ,	Name of Holder:

	(Print)

	By:

	Name:
	Title:
	(Signature must conform in all respects to name of holder as specified on the face of the Warrant)

ACKNOWLEDGED AND AGREED TO
this day of , 20 , by the Transferee.

	Name of Transferee:
	(Print)

	By:

	Name:
	Title:

	Social Security or other identifying Number:

	Street Address:

	City, State Zip Code:

In the presence of:

[Signature Page to be Completed for Each Individual Transferee]

ACKNOWLEDGED AND AGREED TO this
day of , 20

Auxilium Pharmaceuticals, Inc.


By:
Name:
Title:

EXHIBIT III

Notices to the Registered Holder :

GTCR Fund IX/A, L.P.
c/o GTCR LLC
300 North LaSalle Street, Suite 5600
Chicago, Illinois 60654
Attn: Constantine S. Mihas
Facsimile No.: (312) 382-2201

with copies to (which shall not constitute notice) :

Kirkland & Ellis LLP
300 North LaSalle Street
Chicago, Illinois 60654
Attn:	Sanford E. Perl, P.C.
	Michael H. Weed, P.C.
Facsimile No.: (312) 862-2200

Exhibit 10.1

Execution Version

CREDIT AGREEMENT

among

AUXILIUM PHARMACEUTICALS, INC.,

as Borrower,

the Lenders
from Time to Time Party Hereto,

MORGAN STANLEY SENIOR FUNDING, INC.,
as Administrative Agent, Collateral Agent
and as Syndication Agent

and

MORGAN STANLEY SENIOR FUNDING, INC.,
as Sole Lead Arranger and Sole Bookrunner

Dated as of April 26, 2013

TABLE OF CONTENTS

			Page

SECTION 1.		DEFINITIONS	1

1.1	Defined Terms		1
1.2	Other Definitional Provisions		41

SECTION 2.		AMOUNT AND TERMS OF COMMITMENTS	42

2.1	Term Commitments		42
2.2	Procedure for Term Loan Borrowing		43
2.3	Repayment of Term Loans		43
2.4	Incremental Facilities		43
2.5	Fees		45

SECTION 3.		GENERAL PROVISIONS APPLICABLE TO LOANS	45

3.1	Optional Prepayments		45
3.2	Mandatory Prepayments; Prepayment Premium		46
3.3	Conversion and Continuation Options		47
3.4	Limitations on LIBOR Tranches		48
3.5	Interest Rates and Payment Dates		48
3.6	Computation of Interest and Fees		49
3.7	Inability to Determine Interest Rate		49
3.8	Pro Rata Treatment; Application of Payments; Payments		50
3.9	Requirements of Law		51
3.10	Taxes		52
3.11	Indemnity		56
3.12	Change of Lending Office		56
3.13	Replacement of Lenders		56
3.14	Evidence of Debt		57
3.15	Illegality		57
3.16	Extension Offers		58

SECTION 4.		REPRESENTATIONS AND WARRANTIES	59

4.1	Financial Condition		59
4.2	No Change		60
4.3	Corporate Existence; Compliance with Law		60
4.4	Power; Authorization; Enforceable Obligations		60
4.5	No Legal Bar		61
4.6	Litigation and Adverse Proceedings		61
4.7	Ownership of Property; Liens		61
4.8	Intellectual Property		62
4.9	Taxes		62
4.10	Federal Reserve Regulations		62

4.11	Labor Matters		63
4.12	ERISA		63
4.13	Investment Company Act; Other Regulations		63
4.14	Capital Stock and Ownership Interests of Subsidiaries		64
4.15	Use of Proceeds		64
4.16	Environmental Matters		64
4.17	Accuracy of Information, etc.		65
4.18	Security Documents		65
4.19	Solvency		66
4.20	Senior Indebtedness		66
4.21	No Default		66
4.22	Anti-Terrorism Laws		66
4.23	Insurance		67

SECTION 5.		CONDITIONS PRECEDENT	68

5.1	Conditions to Initial Extension of Credit		68
5.2	Conditions to Each Incremental Term Loan		72

SECTION 6.		AFFIRMATIVE COVENANTS	72

6.1	Financial Statements		72
6.2	Certificates; Other Information; ERISA		74
6.3	Taxes		76
6.4	Maintenance of Existence; Compliance		76
6.5	Maintenance of Property; Insurance		76
6.6	Inspection of Property; Books and Records; Discussions		77
6.7	Notices		77
6.8	Environmental Laws		78
6.9	Post-Closing; Additional Collateral, etc .		78
6.10	Further Assurances		81
6.11	Rated Credit Facility; Corporate Ratings		81
6.12	Use of Proceeds		81
6.13	Intellectual Property		81
6.14	Designation of Subsidiaries; Unrestricted Subsidiaries		81
6.15	Post-Closing Deliveries		82

SECTION 7.		NEGATIVE COVENANTS	83

7.1	Indebtedness		83
7.2	Liens		86
7.3	Fundamental Changes		89
7.4	Disposition of Property		90
7.5	Restricted Payments		92
7.6	Investments		94
7.7	Optional Payments and Modifications of Certain Debt Instruments		97
7.8	Transactions with Affiliates		97

7.9	Changes in Fiscal Periods; Accounting Changes; Issuance of Disqualified Capital Stock		98
7.10	Negative Pledge Clauses		98
7.11	Clauses Restricting Subsidiary Distributions		99
7.12	Lines of Business		100
7.13	Partnerships		100

SECTION 8.		EVENTS OF DEFAULT	100

Events of Default			100

SECTION 9.		THE AGENTS	103

9.1	Appointment		103
9.2	Delegation of Duties		104
9.3	Exculpatory Provisions		104
9.4	Reliance by Agents		105
9.5	Notice of Default		105
9.6	Non-Reliance on Agents and Other Lenders		106
9.7	Indemnification		106
9.8	Agent in Its Individual Capacity		106
9.9	Successor Administrative Agent		107
9.10	Agents Generally		108
9.11	Lender Action		108
9.12	Withholding Tax		108
9.13	Administrative Agent May File Proof of Claims		108
9.14	Appointment of Supplemental Collateral Agents		109

SECTION 10.		MISCELLANEOUS	110

10.1	Amendments and Waivers		110
10.2	Notices		112
10.3	No Waiver; Cumulative Remedies		114
10.4	Survival of Representations and Warranties		114
10.5	Payment of Expenses and Taxes; Indemnity		114
10.6	Successors and Assigns; Participations and Assignments		117
10.7	Sharing of Payments; Set-off		122
10.8	Counterparts		123
10.9	Severability		123
10.10	Integration		123
10.11	GOVERNING LAW		124
10.12	Submission to Jurisdiction; Waivers		124
10.13	Acknowledgments		124
10.14	Releases of Guarantees and Liens		125
10.15	Confidentiality		126
10.16	WAIVERS OF JURY TRIAL		126
10.17	Patriot Act Notice		127

iii

10.18

Intercreditor Agreements

127

SCHEDULES:

1.1		Commitments
4.7(b)		Owned Real Property
4.7(c)		Leased Real Property
4.14		Subsidiaries
4.18(a)		UCC Filing Jurisdictions
6.15		Post-Closing Deliveries
7.1		Existing Indebtedness
7.2		Existing Liens
7.6		Existing Investments
7.10		Clauses Restricting Negative Pledges
7.11		Clauses Restricting Subsidiary Distributions

EXHIBITS:

A		Form of Assignment and Assumption
B		Form of Borrowing Notice
C		Form of Guarantee and Collateral Agreement
D-1		Form of Tax Status Certificate ( For Non U.S. Lenders That Are Not Partnerships for U.S. Federal Income Tax Purposes)
D-2		Form of Tax Status Certificate (For Non U.S. Lenders That Are Partnerships for U.S. Federal Income Tax Purposes)
D-3		Form of Tax Status Certificate (For Non U.S. Participants That Are Not Partnerships for U.S. Federal Income Tax Purposes)
D-4		Form of Tax Status Certificate (For Non U.S. Participants That Are Partnerships for U.S. Federal Income Tax Purposes)
E		Form of Term Note
F		[Reserved]
G		[Reserved]
H		Form of Intellectual Property Security Agreement
I		Form of Intercompany Note
J		Form of Solvency Certificate
K-1		Form of Perfection Certificate
K-2		Form of Perfection Certificate Supplement

THIS CREDIT AGREEMENT, dated as of April 26, 2013, among AUXILIUM PHARMACEUTICALS, INC., a Delaware corporation (the “ Borrower ”), the financial institutions or entities from time to time parties to this Agreement as lenders (the “ Lenders ”), MORGAN STANLEY SENIOR FUNDING, INC., as administrative agent (in such capacity, and together with its successors and assigns in such capacity, the “ Administrative Agent ”) and MORGAN STANLEY SENIOR FUNDING, INC., as collateral agent (in such capacity, and together with its successors and assigns in such capacity, the “ Collateral Agent ”).

WHEREAS, pursuant to the Merger Agreement, Opal Acquisition, LLC, a Delaware limited liability company (“ Merger Sub ”), a wholly owned direct Subsidiary of the Borrower will merge (the “ Merger ”) with and into Actient Holdings LLC, a Delaware limited liability company (the “ Target ”) with the Target surviving as a wholly owned direct Subsidiary of the Borrower and GTCR/Actient Holdings/B Corp., a Delaware corporation (the “ Blocker Corp. ”), the shares of which will also be acquired by the Borrower, each as more fully set forth in the Merger Agreement (it being understood and agreed that, on the Closing Date, Blocker Corp. will be merged with and into the Borrower and with the Borrower as the surviving corporation);

WHEREAS, in connection with the transactions contemplated by the Merger Agreement, the Borrower has requested that the Lenders make available the Term Commitments and the Term Loans on the Closing Date to finance the Merger, to pay and redeem all existing Indebtedness under the Existing Credit Agreements and release all security interests with respect thereto (the “ Refinancing Transaction ”) and to pay related fees and expenses; and

WHEREAS, the Lenders are willing to make available the Term Commitments for such purposes on the terms and subject to the conditions set forth in this Agreement.

NOW THEREFORE, in consideration of the premises and the agreements, provisions and covenants contained herein, the parties hereto agree as follows:

SECTION 1. DEFINITIONS

1.1 Defined Terms . As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1 .

“ ABR ”: a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of (a) the rate of interest published by the Wall Street Journal, from time to time, as the “ U.S. Prime Rate ,” (b) ½ of 1% per annum above the Federal Funds Effective Rate and (c) the LIBOR Rate for an Interest Period of one month as of the beginning of such day plus 1.00%, as adjusted to conform to changes as of the opening of business on the date of any such change of the LIBOR Rate.

“ ABR Loans ”: Term Loans the rate of interest applicable to which is based upon the ABR.

“ Acquired Business ” the Target and its Affiliates and Subsidiaries acquired in connection with the Merger.

“ Administrative Agent ”: as defined in the preamble to this Agreement.

“ Administrative Agent Parties ”: as defined in Section 10.2(c) .

“ Affected Lender ”: as defined in Section 3.13 .

“ Affiliate ”: as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the possession, direct or indirect, of the power to direct or cause the direction of management or policies of a Person, whether through ownership of securities, by contract or otherwise; provided , however, that, for purposes of Section 7.8 , the term “Affiliate” shall also include (i) any person that directly or indirectly owns more than 10% of any class of Capital Stock of the person specified or (ii) any person that is an officer or director of the person specified.

“ Agent Related Parties ”: the Administrative Agent, the Collateral Agent, and any of their respective Affiliates, officers, directors, employees, agents, advisors or representatives.

“ Agents ”: the collective reference to the Administrative Agent, the Collateral Agent, the Lead Arranger and the Syndication Agent.

“ Agreement ”: this Credit Agreement.

“ Anti-Terrorism Laws ”: Executive Order No. 13224, the Patriot Act, the laws comprising or implementing the Bank Secrecy Act and the laws administered by the United States Treasury Department’s Office of Foreign Asset Control (each as from time to time in effect).

“ Applicable Margin ”: 3.75% for LIBOR Rate Loans and 2.75% for ABR Loans.

“ Approved Fund ”: with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans, or similar extensions of credit in the ordinary course and is administered or managed by (a) such Lender, (b) an Affiliate of such Lender, or (c) an entity or an Affiliate of an entity that administers or manages such Lender.

“ Asset Sale ”: any Disposition of Property or series of related Dispositions of Property, including, without limitation, any issuance of Capital Stock of any Subsidiary of the Borrower to a Person other than to any Group Member (excluding in any case any such Disposition permitted by Section 7.4 ) that yields gross proceeds to any Group Member (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $2,500,000.

“ Assignee ”: as defined in Section 10.6(b) .

“ Assignment and Assumption ”: an assignment and assumption entered into by a Lender and an Eligible Assignee and accepted by the Administrative Agent, and, if applicable,

the Borrower, substantially in the form of Exhibit A .

“ Assignment Effective Date ”: as defined in Section 10.6(d) .

“ Attributable Indebtedness ”: when used with respect to any Sale and Leaseback Transaction, as at the time of determination, the present value (discounted at a rate equivalent to the Borrower’s then-current weighted average cost of funds for borrowed money as at the time of determination, compounded on a semi-annual basis) of the total obligations of the lessee for rental payments during the remaining term of the lease included in any such Sale and Leaseback Transaction.

“ Available Amount ”: at any time after the Closing Date (the “ Reference Date ”), an amount, to the extent Not Otherwise Applied, not less than zero in the aggregate, determined on a cumulative basis equal to, without duplication:

(a) $30,000,000; plus

(b) the aggregate amount of Net Cash Proceeds of any capital contributions (that is converted or exchanged for Qualified Capital Stock) or issuances of Qualified Capital Stock (or for Qualified Capital Stock issued upon conversion of debt securities) received or made by the Borrower (other than Section 7.5(d) ) since the Closing Date and on or prior to the Reference Date; plus

(c) (x) the cumulative amount of Excess Cash Flow for all fiscal years of the Borrower commencing with the Borrower’s fiscal year ending December 31, 2013 (inclusive of Excess Cash Flow for the Excess Cash Flow Payment Period from the Closing Date to December 31, 2013)after the Closing Date minus (y) the portion of such Excess Cash Flow that has been (or will be) after the Closing Date and on or prior to the Reference Date applied to the prepayment or repayment of Loans in accordance with Section 3.2 ; plus

(d) an amount equal to any returns in cash and Cash Equivalents (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received by the Borrower or any Restricted Subsidiary in respect of any Investments made by the Borrower or any Restricted Subsidiary since the Closing Date pursuant to Section 7.6(s) ; plus

(e) the net reduction in Investments in any Person (other than the Borrower or any Restricted Subsidiary) resulting from dividends, repayments of loans or advances or other transfers of assets subsequent to the Closing Date, in each case to the Borrower or any Restricted Subsidiary from such Person; plus

(f) in the event that any Unrestricted Subsidiary has been re-designated as a Restricted Subsidiary or has been merged, consolidated or amalgamated with or into, or transfers or conveys its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary, the fair market value of the Investments of the Borrower and the Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable) so long as

such Investments were originally made pursuant to Section 7.6(s) ; plus

(g) without duplication of any amounts that otherwise increased the amount available for Investments pursuant to Section 7.6(s) and to the extent not included in clause (b) above, 100% of the aggregate amount received by the Borrower or any Restricted Subsidiary in cash and Cash Equivalents from:

(A) the sale (other than to the Borrower or any Restricted Subsidiary) of any Equity Interests of an Unrestricted Subsidiary or any minority Investments, or

(B) any dividend or other distribution (including any interest, returns of principal, repayments and similar payments) by an Unrestricted Subsidiary or received in respect of any minority Investments; less

(h) any usage of such Available Amount pursuant to Sections 7.5(f) , 7.6(s) and 7.7(a)(i) prior to or on the Reference Date.

“ Available Amount Condition ”: after giving effect to any usage of the Available Amount, the Total Leverage Ratio, on a Pro Forma Basis, as of the last day of the period of four (4) fiscal quarters most recently completed for which financial statements were required to have been delivered pursuant to Section 6.1 shall be no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then last ended fiscal quarter occurring prior to the Closing Date).

“ Benefited Lender ”: as defined in Section 10.7(a) .

“ Blocked Person ”: as defined in Section 4.22(c) .

“ Blocker Corp. ”: as defined in the recitals to this Agreement.

“ Board ”: the Board of Governors of the Federal Reserve System of the United States (or any successor).

“ Borrower ”: as defined in the preamble to this Agreement.

“ Borrowing Date ”: any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.

“ Business Day ”: a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close; provided , that with respect to notices and determinations in connection with, and payments of principal and interest on, LIBOR Rate Loans, such day is also a day for trading by and between banks in Dollar deposits in the interbank eurodollar market.

“ Capital Expenditures ”: for any period, with respect to any Person, the aggregate of all expenditures by such Person and its Subsidiaries for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including replacements,

capitalized repairs and improvements during such period) that should be capitalized under GAAP on a consolidated balance sheet of such Person and its Subsidiaries, excluding expenditures financed with any Reinvestment Deferred Amount to the extent otherwise not taken into account in determining Consolidated Net Income.

“ Capital Lease Obligations ”: as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.

“ Capital Stock ”: any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing; provided that Capital Stock shall not include any debt securities that are convertible into or exchangeable for any of the foregoing Capital Stock.

“ Cash Collateralize ”: in respect of an obligation, provide and pledge cash collateral in Dollars, or provide a letter of credit issued by a person reasonably satisfactory to the Administrative Agent, pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent (and “ Cash Collateralization ” has a corresponding meaning).

“ Cash Equivalents ”:

(a) Dollars (and such other currency that is approved by the Administrative Agent) held in the ordinary course of business of the relevant Person;

(b) marketable direct obligations issued by, or unconditionally guaranteed by, the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one (1) year from the date of acquisition;

(c) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of one (1) year or less from the date of acquisition issued by any commercial bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $500,000,000;

(d) commercial paper of an issuer rated at least A-1 by S&P or P-1 by Moody’s, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within one (1) year from the date of acquisition;

(e) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than thirty (30) days, with respect to securities issued or fully guaranteed or insured by the United States government;

(f) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody’s;

(g) securities with maturities of one (1) year or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition; or

(h) shares of money market mutual or similar funds which have portfolios consisting of substantially all assets satisfying the requirements of clauses (a) through (f) of this definition or money market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, as amended and (ii) are rated AAA by S&P and Aaa by Moody’s.

“ Certain Funds Paragraph ”: as defined in Section 5.1 .

“ CFC ”: any Subsidiary of the Borrower that is a “controlled foreign corporation” within the meaning of Section 957 of the Code, is owned by a “controlled foreign corporation” within the meaning of Section 957 of the Code or substantially all of the assets of which constitute stock of one or more “controlled foreign corporations” within the meaning of Section 957 of the Code.

“ Change in Control ”: an event or series of events by which:

(a) at any time, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person or its Subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, directly or indirectly, of thirty-five percent (35%) or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis; or

(b) at any time after the Closing Date, during any period of twelve (12) consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election, nomination or appointment to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or

(c) any change of control (or similar event, however denominated) with respect to any Loan Party shall occur under and as defined in the Convertible Notes Documents or any indenture or agreement with respect to any other outstanding Indebtedness to which any Loan Party is a party the principal amount of which exceeds $50,000,000.

“ Closing Date ”: the date on which the conditions precedent set forth in Section 5.1 shall have been satisfied and the initial funding occurs.

“ Closing Date Material Adverse Effect ”: any change, effect, circumstance, fact, event, occurrence or development that, individually or in the aggregate, is, or would reasonably be expected to be, materially adverse to (a) the assets, properties, results of operations, liabilities, business or financial condition of the Target and its Subsidiaries taken as a whole or (b) the ability of the Target to consummate the transactions contemplated by the Merger Agreement; provided , however , that with respect to the foregoing clause (a) , none of the following shall be deemed in themselves, either alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Closing Date Material Adverse Effect: any change, effect, circumstance, fact, event, occurrence or development attributable to (i) the announcement or execution of the Merger Agreement ( provided , however , that this clause (i) shall not be deemed to apply to Section 4.03(b) Error! Reference source not found. of the Merger Agreement); (ii) conditions generally affecting the industries in which the Target and its Subsidiaries participate, the U.S. economy as a whole or the capital markets in general (including currency fluctuation) or the markets in which the Target and its Subsidiaries operate; (iii) any change in applicable Laws (as defined in the Merger Agreement) or the interpretation thereof; (iv) actions required to be taken under applicable Laws (as defined in the Merger Agreement) or the Merger Agreement by the Target or any Subsidiary thereof; (v) any change in GAAP (as defined in the Merger Agreement) or other accounting requirements or principles or the interpretation thereof; (vi) the failure of the Target or its Subsidiaries to meet or achieve the results set forth in any projection or forecast (provided, that this clause (vi) shall not prevent a determination that any change or effect underlying such failure to meet projections or forecasts has resulted in a Closing Date Material Adverse Effect (to the extent such change or effect is not otherwise excluded from this definition of Closing Date Material Adverse Effect)); or (vii) the commencement, continuation or escalation of a war, material armed hostilities or other material international or national calamity or act of terrorism; provided that, in the case of clauses (ii) , (iii) , (iv) and (v) above, if such change, effect, circumstance, fact, event, occurrence or development disproportionately affects the Target and its Subsidiaries as compared to other Persons or businesses that operate in the industry in which the Target and its Subsidiaries operate, then the disproportionate aspect of such change, effect, circumstance, fact, event, occurrence or development may be taken into account in determining whether a Closing Date Material Adverse Effect has or will occur.

“ Code ”: the Internal Revenue Code of 1986, and the regulations promulgated and rulings issued under it, all as may be amended from time to time.

“ Collateral ”: all property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document.

“ Collateral Agent ”: as defined in the preamble to this Agreement.

“ Commitment ”: the Term Commitment of any Lender.

“ Communications ”: as defined in Section 10.2(b) .

“ Commodity Exchange Act ”: the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“ Confidential Information Memorandum ”: the Confidential Information Memorandum to be furnished to the Lenders in connection with the syndication of the Term Facility no later than May 15, 2013.

“ Consolidated Current Assets ”: at any date, all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Loan Parties at such date.

“ Consolidated Current Liabilities ”: at any date, all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Loan Parties at such date, but excluding the current portion of any Funded Debt, the current portion of interest expense (other than interest expense that is due and unpaid), the current portion of current and deferred Taxes based upon income or profits of the Loan Parties, accruals of any costs or expenses related to restructuring reserves and deferred revenue.

“ Consolidated EBITDA ”: for any period, is the sum of (a) the Consolidated Net Income of the Borrower and its Restricted Subsidiaries, calculated on a consolidated basis for such period, without duplication, plus (b) the following, in each case, to the extent deducted (and not added back) in calculating such Consolidated Net Income:

(i) provisions for Taxes based on income or profits or capital, plus franchise or similar taxes and foreign withholding taxes;

(ii) interest expense, amortization or write-off of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness (including the Term Loans) for such period;

(iii) depreciation and amortization expense (including deferred financing fees and costs and amortization in relation to intangible assets);

(iv) non-cash stock-based compensation expense for such period;

(v) all extraordinary, unusual or nonrecurring cash expenses, losses and charges for such period (including, without limitation, any severance costs, integration costs, relocation costs, and curtailments or modifications to pension and post-retirement employee benefit plans);

(vi) non-cash purchase accounting adjustments;

(vii) costs and expenses incurred in connection with the Transactions;

(viii) all customary costs and expenses incurred or paid in connection with Investments (including Permitted Acquisitions) whether or not such Investment is consummated;

(ix) the amount of any minority interest expense (or income (loss) allocable to noncontrolling interests) consisting of Subsidiary income attributable to minority equity interests of third parties in any non-wholly-owned Restricted Subsidiary of the Borrower;

(x) all customary costs and expenses incurred in connection with the issuance, prepayment or amendment or refinancing of Indebtedness permitted hereunder or issuance of Capital Stock;

(xi) other expenses reducing such Consolidated Net Income which do not represent a cash item in such period (but excluding any such charge which requires an accrual of, or a cash reserve for, anticipated cash charges in any future period);

(xii) the aggregate net loss on the Disposition of property (other than accounts (as defined in the Uniform Commercial Code) and inventory) outside the ordinary course of business;

(xiii) the amount of net cost savings and synergies projected by the Borrower in good faith as a result of actions taken or committed to be taken (including pursuant to internal procedures) no later than twelve (12) months following the end of such period (calculated on a Pro Forma Basis as though such cost savings and synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings and synergies are reasonably identifiable and factually supportable, (B) no cost savings shall be added pursuant to this clause (xiii) to the extent duplicative of any such expenses, costs or charges that are included in clauses (v), (xi) and (xii) above and clause (xv) below with respect to such period, and (C) the benefits resulting therefrom are anticipated by the Borrower to be realized commencing not later than twelve (12) months of such actions having been taken, or having been committed to be taken ; provided , further , that the net cost savings and synergies realized in connection with the Transactions shall in no event exceed $20,000,000 ;

(xiv) any expenses or charge for such period to the extent covered by, and actually reimbursed by, the insurer within 180 days with respect to any business interruption insurance or similar insurance of the Borrower or any Restricted Subsidiary in respect thereof;

(xv) the actual amount of any restructuring charges, integration and facilities opening costs or other business optimization expenses (including cost and expenses relating to business optimization programs and new systems design and implementation costs) and project start-up costs; provided that no such charges, expenses and costs shall

be added pursuant to this clause (xv), to the extent they are duplicative of any such expenses, costs or charges that are included in clauses (v), (xi), (xii) and (xiii) above;

(xvi) in each case, solely to the extent that the applicable Hedge Agreement is permitted under this Agreement: (i) any net unrealized loss (after any offset) resulting in such period from obligations under any Hedge Agreements and the application of Statement of Financial Accounting Standards No. 133; and (ii) any net unrealized loss (after any offset) resulting in such period from currency translation gains or losses including those (x) related to currency remeasurements of Indebtedness and (y) resulting from Hedge Agreements for currency exchange risk;

(xvii) costs and expenses in connection with the termination of the Pfizer-Xiapex agreement; and

(xviii) any after-tax effect of income (loss) from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned or discontinued operations;

less (c) the following to the extent added in calculating such Consolidated Net Income of the Loan Parties:

(A) all interest income for such period,

(B) all Tax benefits for such period to the extent not netted in determining the amount for clause (b)(i) above,

(D) (i) the aggregate net gain from the Disposition of property (other than accounts (as defined in the Uniform Commercial Code) and inventory) outside the ordinary course of business, (ii) all extraordinary, unusual or nonrecurring gains for such period, and (iii) all non-cash items increasing Consolidated Net Income which do not represent a cash item in such period or any future period (but excluding any such items (x) in respect of which cash was received in a prior period or will be received in a future period or (y) which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period);

(E) the amount of minority interest income (or income (loss) allocable to noncontrolling interests) consisting of Subsidiary loss attributable to minority equity interests of third parties in any non-wholly owned Restricted Subsidiary of the Borrower; and

(F) in each case, solely to the extent that the applicable Hedge Agreement is permitted under this Agreement: (i) any net unrealized gain (after any offset) resulting in such period from obligations under any Hedge Agreements and the application of Statement of Financial Accounting Standards No. 133; and (ii) any net unrealized gain (after any offset) resulting in such period from currency translation gains or losses including those (x) related to currency remeasurements of Indebtedness and (y) resulting

from Hedge Agreements for currency exchange risk.

For the purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal quarters (each, a “ Reference Period ”) pursuant to any determination hereunder, (x) if at any time during such Reference Period any Group Member shall have made any Asset Sale, the Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Asset Sale for such Reference Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period, in each case assuming the repayment of Indebtedness in connection therewith occurred as of the first day of such Reference Period and (y) if during such Reference Period any Group Member shall have made a Material Acquisition, Consolidated EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto as if such Material Acquisition occurred on the first day of such Reference Period. For purposes of determining Consolidated EBITDA under this Agreement, Consolidated EBITDA shall be deemed to be $16,441,000, $27,164,000, $14,371,000 and $29,142,000 for the fiscal quarters ended March 31, 2012, June 30, 2012, September 30, 2012 and December 31, 2012, respectively.

As used in this definition only, “ Material Acquisition ” means the Acquisition (if consummated) and any other acquisition of property or series of related acquisitions of property that constitutes assets comprising all or substantially all of an operating unit of a business or constitutes all or substantially all of the common stock of a Person.

“ Consolidated Funded Debt ”: at any date, Funded Debt of the Borrower and the Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP.

“ Consolidated Net Income ”: for any period, the consolidated net income (or loss) of the Borrower and the Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided , that: (a) the undistributed earnings of any Subsidiary of the Borrower that is not a Loan Party or a direct or indirect parent entity of the Borrower to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document), its Organizational Documents or Requirement of Law applicable to such Subsidiary shall be excluded provided that, notwithstanding this clause (a), the amount of dividends or distributions or other payments that are actually paid in cash or Cash Equivalents (or to the extent subsequently converted into cash or Cash Equivalents) to the Borrower or a Restricted Subsidiary thereof in respect of such period shall be included; (b) the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such period shall be excluded; (c) effects of adjustments in the inventory, property and equipment, software, goodwill, other intangible assets, in-process research and development, deferred revenue and debt line items in consolidated financial statements pursuant to GAAP resulting from the application of purchase accounting in relation to the Transaction, net of taxes, shall be excluded provided that this clause (c) shall not include the recognition of deferred revenue for any period subsequent to the Closing Date; (d) any after-tax effect of income (loss) from the early extinguishment of (i) Indebtedness, (ii) obligations under any Hedge Agreements or (iii) other derivative instruments, in each case, solely to the extent permitted under this Agreement shall be excluded; (e) any fees, expenses or charges incurred

during such period, or any amortization thereof for such period, in connection with any Permitted Acquisition, Investment, Disposition, incurrence or repayment of Indebtedness (including such fees, expenses or charges related to the Term Loans), issuance of Qualified Capital Stock, refinancing transaction or amendment or modification of any debt instrument (including any amendment or other modification of the Term Loans and any credit facilities) and including, in each case, any such transaction undertaken but not completed, and any charges or non-recurring merger costs incurred during such period as a result of any such transaction, in each case whether or not successful, in each case, solely to the extent permitted under this Agreement, shall be excluded; (f) the income (or deficit) of any Permitted Joint Venture, except to the extent that any such income is actually received by the Borrower or any Subsidiary Guarantor in the form of dividends or other distributions in respect of equity and (g) the amount of net cash proceeds received by the Borrower and the Restricted Subsidiaries of any business interruption insurance shall be included.

“ Consolidated Total Assets ”: as of the date of any determination thereof, total assets of the Borrower and the Restricted Subsidiaries calculated in accordance with GAAP on a consolidated basis as of such date.

“ Consolidated Working Capital ”: at any date, the excess of Consolidated Current Assets on such date over Consolidated Current Liabilities on such date.

“ Contractual Obligation ”: as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“ Control Agreement ”: shall have the meaning assigned to such term in the Guarantee and Collateral Agreement.

“ Convertible Notes ”: the Borrower’s 1.50% Convertible Senior Notes due July 15, 2018.

“ Convertible Notes Documents ”: the Indenture, dated as of January 30, 2012 (as amended, amended and restated, supplemented or otherwise modified through the Closing Date), among the Borrower and the Trustee (as defined therein), pursuant to which the Convertible Notes were issued and the other agreements and documents governing (including, without limitation, the additional call option transactions, ISDA master agreements, hedge confirmations and warrants entered into in connection with) the Convertible Notes.

“ Corporate Family Rating ”: an opinion issued by Moody’s of a corporate family’s ability to honor all of its financial obligations that is assigned to a corporate family as if it had a single class of debt and a single consolidated legal entity structure.

“ Corporate Rating ”: an opinion issued by S&P of an obligor’s overall financial capacity (its creditworthiness) to pay its financial obligations.

“ Default ”: any of the events specified in Section 8 , whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

“ Defaulting Lender ”: at any time, any Lender (a) that has failed to comply with its obligations under Section 2.1 of this Agreement (a “ funding obligation ”), (b) that has notified the Administrative Agent or the Borrower, or has stated publicly, that it will not comply with any such funding obligation hereunder, (c) that has failed to confirm in writing to the Administrative Agent, in response to a written request of the Administrative Agent, that it will comply with its funding obligations hereunder, or (d) with respect to which a Lender Insolvency Event has occurred and is continuing; provided that (i) the Administrative Agent and the Borrower may declare (A) by joint notice to the Lenders that a Defaulting Lender is no longer a “ Defaulting Lender ” or (B) that a Lender is not a Defaulting Lender if in the case of both clauses (a) and (b) the Administrative Agent and the Borrower each determines, in its reasonable discretion, that (x) the circumstances that resulted in such Lender becoming a “ Defaulting Lender ” no longer apply or (y) it is satisfied that such Lender will continue to perform its funding obligations hereunder and (ii) a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of voting stock or any other equity interest in such Lender or a parent company thereof by a Governmental Authority or an instrumentality thereof unless such ownership or acquisition results in or provides such Lender with immunity from the jurisdiction of the courts within the United States from the enforcement of judgments, writs of attachment on its assets or permits such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Lender. The Administrative Agent will promptly send to all parties hereto a notice when it becomes aware that a Lender is a Defaulting Lender.

“ Disposition ”: with respect to any Property, any sale, lease, Exclusive License, Sale and Leaseback Transaction, assignment, conveyance, transfer or other disposition thereof. The terms “ Dispose ” and “ Disposed of ” shall have correlative meanings.

“ Disqualified Capital Stock ”: any Capital Stock that is not Qualified Capital Stock.

“ Dollars ” and “ $ ”: dollars in lawful currency of the United States.

“ Domestic Subsidiary ”: any Subsidiary that is a “United States Person,” as defined in the Code, other than a CFC.

“ Earn-Out Obligations ”: those certain unsecured obligations of the Borrower or any Restricted Subsidiary arising in connection with any acquisition of assets or businesses permitted under Section 7.6 to the seller of such assets or businesses and the payment of which is dependent on the future earnings or performance of such assets or businesses and contained in the agreement relating to such acquisition or in an employment agreement delivered in connection therewith.

“ ECF Percentage ”: 50%; provided that, with respect to each fiscal year of the Borrower, commencing with the fiscal year of the Borrower ending December 31, 2013, the ECF Percentage shall be reduced to (a) 25% if the Total Leverage Ratio as of the last day of such fiscal year is less than 4.00 to 1.00 but greater than or equal to 3.00 to 1.00 and (b) 0% if the Total Leverage Ratio as of the last day of such fiscal year is less than 3.00 to 1.00.

“ Effective Yield ”: as to any tranche of term loans or the Term Loans hereunder or

under the Loan Documents, the effective yield on such tranche of term loans or the Term Loans, as the case may be, in each case as reasonably determined by the Administrative Agent, taking into account the applicable interest rate margins, interest rate benchmark floors and all fees, including recurring, up-front or similar fees or original issue discount (amortized over the shorter of (x) four years or (y) the weighted average life to maturity of such term loans) payable generally to Lenders making such tranche of term loans or the Term Loans, as the case may be, but excluding any arrangement, structuring or other fees payable in connection therewith that are not generally shared with the lenders thereunder.

“ Eligible Assignee ”: any Assignee permitted by and consented to in accordance with Section 10.6(b) .

“ Engagement Letter ”: that certain Engagement Letter, dated as of the date hereof, between the Borrower and Morgan Stanley Senior Funding, Inc.

“ Environment ”: ambient air, indoor air, surface water, groundwater, drinking water, land surface and subsurface strata, and natural resources such as wetlands, flora and fauna.

“ Environmental Laws ”: any and all applicable foreign, federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning pollution or protection of the Environment, including those relating to use, generation, storage, treatment, transport, Release or threat of Release of Materials of Environmental Concern, or to the protection of human or animal health or safety (including to exposure to Materials of Environmental Concern), as now or may at any time hereafter be in effect.

“ ERISA ”: the Employee Retirement Income Security Act of 1974, and the regulations promulgated and rulings issued under it, as all may be amended from time to time.

“ ERISA Affiliate ”: any Person that for purposes of Title IV of ERISA is a member of the controlled group of any Group Member, or under common control with any Group Member, within the meaning of Section 414 of the Code.

“ ERISA Event ”: (a)(i) the occurrence of a Reportable Event with respect to any Plan; or (ii) the requirements of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following 30 days; (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of any Group Member or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by any Group Member or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan; (g) a

determination that any Plan is in “at risk” status (within the meaning of Section 303 of ERISA); or (h) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan.

“ Eurocurrency Reserve Requirements ”: for any day as applied to a LIBOR Rate Loan, the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve requirements in effect on such day (including basic, supplemental, marginal and emergency reserves under any regulations of the Board or other Governmental Authority having jurisdiction with respect thereto) dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as “ Eurocurrency Liabilities ” in Regulation D of the Board) maintained by a member bank of the Federal Reserve System.

“ Event of Default ”: any of the events specified in Section 8 ; provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

“ Excess Cash Flow ”: for any fiscal year of the Borrower, the excess, if any, of:

(a) the sum, without duplication, of:

(i) Consolidated Net Income for such fiscal year;

(ii) the amount of all non-cash charges (including depreciation and amortization) deducted in arriving at such Consolidated Net Income;

(iii) decreases in Consolidated Working Capital for such fiscal year (excluding any changes in working capital due to the effects of purchase accounting adjustments); minus

(b) the sum, without duplication, of:

(i) the amount of all non-cash credits included in arriving at such Consolidated Net Income and cash charges included in clauses (a) though (f) of the definition of Consolidated Net Income;

(ii) the aggregate amount actually paid by the Borrower and the Restricted Subsidiaries in cash during such fiscal year on account of Capital Expenditures and permitted Investments (including Permitted Acquisitions) to the extent permitted by this Agreement and not financed with the proceeds of Indebtedness;

(iii) (x) the aggregate amount of all principal payments of Consolidated Funded Debt (including the Term Loans) and (y) all mandatory prepayments of Loans pursuant to Section 3.2 , in each case, of the Borrower and the Restricted Subsidiaries made in cash during such fiscal year to the extent not made in connection with a refinancing of all or any portion of such Indebtedness;

(iv) increases in Consolidated Working Capital for such fiscal year;

(v) cash payments by the Borrower and the Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness, except to the extent that such payments were financed by the issuance or incurrence of long-term Indebtedness by, or the issuance of Capital Stock by, or the making of capital contributions to, the Borrower or any of its Restricted Subsidiaries or using the proceeds of any Disposition outside the ordinary course of business;

(vi) Restricted Payments made by the Borrower in cash to holders of its common equity from Internally Generated Cash;

(vii) the amount of cash income Taxes actually paid in such period to the extent they exceed the amount of Tax expense deducted in determining Consolidated Net Income for such period;

(viii) fees, expenses or charges paid in cash related to any permitted Investments (including Permitted Acquisitions), the issuance, payment, amendment or refinancing of Indebtedness permitted under Section 7.1 hereof (including any premium paid in cash during such period in connection with the prepayment, redemption, purchase, defeasance or other satisfaction prior to scheduled maturity of Indebtedness) and the issuance of Capital Stock and Dispositions permitted under Section 7.4 hereof;

(ix) Net Cash Proceeds of Intellectual Property Out-Licensing Events for such period with regard to which a Specified Reinvestment Notice has been delivered, for the related Excess Cash Flow Payment Period; provided that, notwithstanding the foregoing, on each Specified Reinvestment Prepayment Date, an amount equal to the Specified Reinvestment Prepayment Amount with respect to the relevant Specified Reinvestment Event shall be added back to Excess Cash Flow for such period ; and

(x) without duplication of amounts deducted in prior periods (A) the aggregate consideration required to be paid in cash by a Group Member pursuant to binding contracts (the “ Contract Consideration ”) entered into prior to or during such period relating to Permitted Acquisitions or (B) any planned cash expenditures by the Borrower or any of the Restricted Subsidiaries relating to Capital Expenditures or acquisitions of intellectual property or restructuring charges, expenses and payments required to be made (the “ Planned Expenditures ”), in each case to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period; provided that, to the extent the aggregate amount of such Permitted Acquisitions, Capital Expenditures or acquisitions of intellectual property actually made during such period of four consecutive fiscal quarters is less than the Contract Consideration and the Planned Expenditures, as applicable, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such

period of four consecutive fiscal quarters;

provided that the amounts referenced in clauses (ii), (iii)(y), (v) and (viii) of this paragraph (b) shall not be included in this paragraph (b) and have the effect of reducing Excess Cash Flow to the extent such amounts were funded out of proceeds of Funded Debt.

“ Excess Cash Flow Application Date ”: as defined in Section 3.2(c) .

“ Excess Cash Flow Payment Period ”: (a) with respect to the prepayment required on the first Excess Cash Flow Application Date, the period from the Closing Date to December 31, 2013 (taken as one accounting period) and (b) with respect to the prepayment required on each successive Excess Cash Flow Application Date, the immediately preceding fiscal year of the Borrower.

“ Exchange Act ”: the Securities Exchange Act of 1934, as amended.

“ Excluded Indebtedness ”: all Indebtedness permitted by Section 7.1 .

“ Excluded Swap Obligation ” with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.

“ Excluded Taxes ”: with respect to any Agent or any Lender on account of any payment to be made by or on account of any obligation of any Loan Party under any Loan Document, (a) Taxes imposed on or measured by its net income or net profits (however denominated), franchise Taxes imposed on it in lieu of net income Taxes and branch profits Taxes, in each case, (i) imposed on it by any jurisdiction (or any political subdivision thereof) (i) as a result of the recipient being organized or having its principal office or, in the case of any Lender, its applicable lending office in such jurisdiction, or (ii) that are Other Connection Taxes or (b) any U.S. federal withholding Tax that is imposed on amounts payable to a Lender under any laws in effect at the time such Lender becomes a party hereto (other than pursuant to an assignment request by any Loan Party under Section 3.13 ) or designates a new lending office, except to the extent that, in the case where a Lender designated a new lending office, such Lender, or in the case of an assignment, the assignor, was entitled, immediately prior to the time of designation of a new lending office or assignment as the case may be, to receive additional amounts from the Borrower with respect to such Tax pursuant to Section 3.10 ; (c) any Taxes attributable to such Lender’s failure to comply with Section 3.10(e) and (f) ; and (d) any United States federal withholding Tax that is imposed pursuant to FATCA.

“ Exclusive License ”: any license by a Person of its owned Intellectual Property to a third party for a term greater than two (2) years and which provides such licensee exclusive rights to exploit such Intellectual Property.

“ Existing Credit Agreements ”: the GE Credit Agreement and the Fifth Street Credit Agreement.

“ Extension ”: as defined in Section 3.16 .

“ Extension Loan ”: as defined in Section 3.16 .

“ Extension Offer ”: as defined in Section 3.16 .

“ FATCA ”: Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

“ Federal Funds Effective Rate ”: for any day, the rate per annum equal to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to the Administrative Agent on such day on such transactions as determined by the Administrative Agent in a commercially reasonable manner.

“ Fee Letter ”: that certain Fee Letter, dated as of the date hereof, among the Borrower and Morgan Stanley Senior Funding, Inc.

“ FEMA ”: the Federal Emergency Management Agency, a component of the U.S. Department of Homeland Security that administers the National Flood Insurance Program.

“ Fifth Street Credit Agreement ”: that certain Senior Subordinated Term Loan Agreement, dated as of December 29, 2011, among Slate Pharmaceuticals, Inc., a Delaware corporation, as the borrower, the financial institutions party thereto as lenders, and Fifth Street Finance Corp., acting in its capacity as administrative agent for the lenders.

“ First Lien Secured Leverage Ratio ”: at any date, the ratio of (a) Consolidated Funded Debt secured by a first priority Lien on all or any portion of the Collateral or any other assets of any of the Loan Parties as of such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters ended on such date.

“ Flood Insurance Laws ”: collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto and (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or

any successor statute thereto.

“ Foreign Lender ”: any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.

“ Foreign Subsidiary ”: any Subsidiary of the Borrower that is not a Domestic Subsidiary.

“ Funded Debt ”: as to any Person, without duplication, all Indebtedness of the type described in the definition thereof, except in the case of (A) clause (b), only to the extent of Earn-Out Obligations and other similar obligations, (B) clause (f), only to the extent of any unreimbursed drawings thereunder and (C) clause (g), only Indebtedness that matures more than one (1) year from the date of its creation or matures within one (1) year from such date but is renewable or extendible, at the option of such Person, to a date more than one (1) year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one (1) year from such date, including all current maturities and current sinking fund payments in respect of such Indebtedness whether or not required to be paid within one year from the date of its creation and, in the case of the Borrower, Indebtedness in respect of the Term Loans.

“ Funding Office ”: the office of the Administrative Agent specified in Section 10.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders.

“ GAAP ”: generally accepted accounting principles in the United States as in effect from time to time subject to Section 1.2(e) .

“ GE Credit Agreement ”: that certain Amended and Restated Credit Agreement, dated as of December 29, 2011, among Actient Pharmaceuticals LLC, a Delaware limited liability company, Timm Medical Technologies, Inc., a Delaware corporation, and Slate Pharmaceuticals, Inc. (f/k/a Slate Pharmaceuticals Acquisition Corp.), a Delaware corporation, as the borrowers, the financial institutions party thereto as lenders and General Electric Capital Corporation, acting in its capacity as administrative agent for the lenders.

“ Governmental Authority ”: any nation or government, any state or other political subdivision thereof, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government (including any supranational bodies such as the European Union or the European Central Bank) and any securities exchange.

“ Governmental Authorization ”: all laws, rules, regulations, authorizations, consents, decrees, permits, licenses, waivers, privileges, approvals from and filings with all Governmental Authorities necessary in connection with any Group Member’s business.

“ Group Members ”: the collective reference to the Borrower and the Restricted Subsidiaries.

“ Group Member Properties ”: as defined in Section 4.16(a) .

“ Guarantee and Collateral Agreement ”: the Guarantee and Collateral Agreement to be executed and delivered by the Borrower and each other Loan Party that is a party thereto, substantially in the form of Exhibit C .

“ Guarantee Obligation ”: as to any Person (the “ guaranteeing person ”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “ primary obligations ”) of any other third Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided , however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business or any Excluded Swap Obligation. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

“ Health Care Laws ”: any and all applicable current and future treaties, laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by the Food and Drug Administration, the Center for Medicare and Medicaid Services, the Department of Health and Human Services (“ HHS ”), the Office of Inspector General of HHS, the Drug Enforcement Administration or any other Governmental Authority (including any professional licensing laws, certificate of need laws and state reimbursement laws), relating in any way to the manufacture, distribution, marketing, sale, supply or other disposition of any product or service of the Borrower or any of its Restricted Subsidiaries, the conduct of the business of the Borrower or any of its Restricted Subsidiaries, the provision of health care services generally, or to any relationship among the Borrower and its Restricted Subsidiaries, on the one hand, and their suppliers and customers and patients and other end-users of their products and services, on the other hand.

“ Hedge Agreements ”: any agreement with respect to any cap, swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom

stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a Hedge Agreement.

“ Immaterial Subsidiary ”: any Subsidiary of the Borrower that, as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) , that has total assets calculated in accordance with GAAP of less than $5,000,000.

“ Increase Effective Date ”: as defined in Section 2.4(a) .

“ Incremental Facilities ”: as defined in Section 2.4(a) .

“ Incremental Lender ”: any Person that makes a Term Loan pursuant to Section 2.4 or has a commitment to make an Incremental Term Loan pursuant to Section 2.4 .

“ Incremental Revolving Loan Commitment ”: as defined in Section 2.4(a) .

“ Incremental Term Loan Commitment ”: as defined in Section 2.4(a) .

“ Incremental Term Loans ”: as defined in Section 2.4(c) .

“ Indebtedness ”: of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (including Earn-Out Obligations (with respect to (x) Earn-Out Obligations existing on the Closing Date and (y) Earn-Out Obligations entered into or incurred after the Closing Date, in an aggregate amount not to exceed $10,000,000 at any one time outstanding, in each case, solely to the extent due and unpaid pursuant to the terms of the underlying agreements documenting such Earn-Out Obligations) but excluding current trade payables and payroll liabilities incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments , (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit, surety bonds or similar arrangements, limited to the amount of such obligations after giving effect to drawings which have been reimbursed, (g) the liquidation value of all Disqualified Capital Stock of such Person, (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, (j) Attributable Indebtedness and (k) for the purposes of Sections 7.1 and 8(e) only, all obligations of such Person in respect of Hedge Agreements. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness

expressly provide that such Person is not liable therefor. For purposes of clause (j) above (including as such clause applies to Section 8(e) ), the principal amount of Indebtedness in respect of Hedge Agreements shall equal the amount that would be payable (giving effect to netting) at such time if such Hedge Agreement were terminated. For the avoidance of doubt, the accrual of interest is not an incurrence of Indebtedness.

“ Indemnified Liabilities ”: as defined in Section 10.5(b) .

“ Indemnified Taxes ”: (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and, (b) to the extent not otherwise described in subsection (a), Other Taxes.

“ Indemnitee ”: as defined in Section 10.5(b) .

“ Insolvency ”: with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.

“ Insolvent ”: pertaining to a condition of Insolvency.

“ Insufficiency ”: with respect to any Plan, the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.

“ Intellectual Property ”: collectively, all United States and foreign (a) patents, patent applications, certificates of inventions, industrial designs, together with any and all inventions described and claimed therein, and reissues, divisions, continuations, extensions and continuations-in-part thereof and amendments thereto; (b) trademarks, service marks, certification marks, trade names, slogans, logos, trade dress, Internet Domain Names, and other source identifiers, whether statutory or common law, whether registered or unregistered, and whether established or registered in the United States or any other country or any political subdivision thereof, together with any and all registrations and applications for any of the foregoing, goodwill connected with the use thereof and symbolized thereby, and extensions and renewals thereof and amendments thereto; (c) copyrights (whether statutory or common law, and whether published or unpublished), copyrightable subject matter, and all mask works (as such term is defined in 17 U.S.C. Section 901, et seq .), together with any and all registrations and applications therefor, and renewals and extensions thereof and amendments thereto; (d) rights in computer programs (whether in source code, object code, or other form), algorithms, databases, compilations and data, technology supporting the foregoing, and all documentation, including user manuals and training materials, related to any of the foregoing (“ Software ”); (e) trade secrets and proprietary or confidential information, data and databases, know-how and proprietary processes, designs, inventions, and any other similar intangible rights, to the extent not covered by the foregoing, whether statutory or common law, whether registered or unregistered; (f) income, fees, royalties, damages and payments now and hereafter due and/or payable under or with respect to any of the foregoing, including, without limitation, damages, claims and payments for past, present or future infringements, misappropriations or other violations thereof; (g) rights and remedies to sue for past, present and future infringements, misappropriations and other violations of any of the foregoing; and (h) rights, priorities, and privileges corresponding to any of the foregoing or other similar intangible assets throughout the

world.

“ Intellectual Property Out-Licensing Event ”: (i) any payment received by a Loan Party from the out-licensing of Xiapex in Europe and Eurasia and (ii) any payment received by a Loan Party resulting from any other out-licensing transaction in relation to Intellectual Property of any Group Member in any territory.

“ Intellectual Property Security Agreements ”: an intellectual property security agreement or such other agreement, as applicable, pursuant to which each Loan Party which owns any Intellectual Property which is the subject of a registration or application with the United States Patent and Trademark Office or the United States Copyright Office grants to the Collateral Agent, for the benefit of the Secured Parties a security interest in such Intellectual Property attached hereto as Exhibit H .

“ Intercompany Note ”: the Intercompany Note to be executed and delivered by each Subsidiary of the Borrower that is not a Loan Party, substantially in the form attached hereto as Exhibit I .

“ Interest Payment Date ”: (a) as to any ABR Loan, the last day of each March, June, September and December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any LIBOR Rate Loan having an Interest Period of three (3) months or less, the last day of such Interest Period, and (c) as to any LIBOR Rate Loan having an Interest Period longer than three (3) months, each day that is three (3) months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period.

“ Interest Period ”: as to any LIBOR Rate Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such LIBOR Rate Loan and ending one, two, three or six months (or if consented to by all Lenders, nine or twelve months) thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such LIBOR Rate Loan and ending one, two, three or six months (or if consented to by all Lenders, nine or twelve months) thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent no later than 12:00 Noon, New York City time, on the date that is three (3) Business Days prior to the last day of the then current Interest Period with respect thereto; provided that until the completion of the primary syndication of the Term Loans, LIBOR Rate Loans shall only be available in one month Interest Periods; provided, further , all of the foregoing provisions relating to Interest Periods are subject to the following:

(i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;

(ii) the Borrower may not select an Interest Period that would extend beyond

the Term Loan Maturity Date; and

(iii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month.

“ Internally Generated Cash ”: with respect to any period, any cash of the Borrower or any Subsidiary Guarantor generated during such period, excluding Net Cash Proceeds and any cash constituting proceeds from an incurrence of Indebtedness, an issuance of Capital Stock or a capital contribution, in each case, except to the extent such proceeds are included as income in calculating Consolidated Net Income for such period.

“ Internet Domain Names ”: all Internet domain names and associated URL addresses.

“ Investments ”: as defined in Section 7.6 .

“ IRS ”: the United States Internal Revenue Service.

“ Junior Financing ”: any Junior Indebtedness or any other Indebtedness of the Borrower or any Subsidiary that is, or that is required to be, contractually subordinated in payment or lien priority to the Obligations.

“ Junior Financing Documentation ”: any documentation governing any Junior Financing.

“ Junior Indebtedness ”: Indebtedness of any Person so long as (a) such Indebtedness shall not require any amortization prior to the date that is ninety-one (91) days following the Term Loan Maturity Date; (b) the weighted average maturity of such Indebtedness shall occur after the date that is ninety-one (91) days following the Term Loan Maturity Date; (c) the mandatory prepayment provisions, affirmative and negative covenants and financial covenants shall be no more restrictive, taken as a whole, than the provisions set forth in the Loan Documents, as determined in good faith and certified in writing to the Administrative Agent by a Responsible Officer of the Borrower; (d) such Indebtedness is either unsecured or secured but subordinated to the Liens of the Collateral Agent in a manner, and pursuant to an intercreditor agreement, reasonably satisfactory to the Collateral Agent and the Administrative Agent; (e) if such Indebtedness is Subordinated Indebtedness, the other terms and conditions thereof shall be satisfied; (f) if such Indebtedness is incurred by a Subsidiary that is not a Loan Party, (i) such Subsidiary shall have also provided a guarantee of the Obligations substantially on the terms set forth in the Guarantee and Collateral Agreement and (ii) if the Indebtedness being guaranteed, is subordinated to the Obligations, such guarantee, shall be subordinated to the guarantee of the Obligations on terms at least as favorable, taken as a whole, to the Lenders as those contained in the subordination of such Indebtedness; and (g) if such Indebtedness is incurred by a Subsidiary that is not a Loan Party, subject to Section 7.6(g) , such Indebtedness may be guaranteed by another Group Member.

“ Lead Arranger ”: Morgan Stanley Senior Funding, Inc. in its capacity as sole

lead arranger under this Agreement.

“ Leased Properties ”: as defined in Section 4.7(c) .

“ Lender Insolvency Event ”: (a) a Lender or its Parent Company is adjudicated by a Governmental Authority to be insolvent, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, or (b) such Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has indicating its consent to or acquiescence in any such proceeding or appointment.

“ Lenders ”: each Term Lender and Incremental Lender.

“ LIBOR ”: with respect to each day during each Interest Period pertaining to a LIBOR Rate Loan, the rate per annum offered for deposits of Dollars for the applicable Interest Period that appears on Reuters Screen LIBOR01 Page as of 11:00 A.M., London, England time, two (2) Business Days prior to the first day of such Interest Period or (b) if no such offered rate exists, such rate will be the rate of interest per annum as determined by the Administrative Agent (rounded upwards, if necessary, to the nearest 1/100 of 1%) at which deposits of Dollars in immediately available funds are offered at 11:00 A.M., London, England time, two (2) Business Days prior to the first day in the applicable Interest Period by major financial institutions reasonably satisfactory to the Administrative Agent in the London interbank market for such interest period and for an amount equal or comparable to the principal amount of the Term Loans to be borrowed, converted or continued as LIBOR Rate Loans on such date of determination.

“ LIBOR Rate ”: with respect to each day during each Interest Period pertaining to a LIBOR Rate Loan, the rate per annum equal to the greater of (a) 1.25% and (b) for each Interest Period following the initial Interest Period, the rate per annum determined by the Administrative Agent (rounded upward to the nearest 1/100th of 1%) by dividing (i) LIBOR for such Interest Period by (ii) 1.00 minus Eurocurrency Reserve Requirements. The LIBOR Rate shall be adjusted on and as of the effective date of any change in the Eurocurrency Reserve Requirements.

“ LIBOR Rate Loans ”: loans the rate of interest applicable to which is based upon the LIBOR Rate.

“ LIBOR Tranche ”: the collective reference to LIBOR Rate Loans under a particular loan facility the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day).

“ Lien ”: with respect to any property or asset, (a) any mortgage, deed of trust, lien (statutory or otherwise), pledge, hypothecation, encumbrance, charge or security interest in, on, of or with respect to such property or asset, (b) any right, title or interest of any Person (including any vendor or lessor) under any conditional sale agreement, capital lease or title retention agreement (or any capital or financing lease having substantially the same economic effect as any of the foregoing) relating to such property or asset and (c) in the case of securities (debt or

equity), any purchase option, call, put or similar right of any Person with respect to such securities.

“ Loan Documents ”: this Agreement, the Security Documents, the Notes and the Fee Letter.

“ Loan Party ”: each of the Borrower and the Subsidiary Guarantors.

“ Margin Stock ”: as defined in Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof.

“ Material Adverse Effect ”: (a) a material adverse effect upon, the business, assets, liabilities, operations or condition (financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole and (b) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.

“ Material Indebtedness ”: of any Person at any date, Indebtedness the outstanding principal amount of which exceeds in the aggregate $20,000,000.

“ Materials of Environmental Concern ”: any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum byproducts or distillates, or any chemicals, constituents, substances, materials, wastes, pollutants or contaminants in any form regulated under any Environmental Law, including asbestos and asbestos-containing materials, polychlorinated biphenyls, radon gas, radiation, explosive or radioactive substances, biological material, and electromagnetic or radio frequency emissions.

“ Material Properties ”: On any date of determination, all Owned Properties with a gross book value of greater than or equal to $5,000,000. The Material Properties existing as of the Closing Date are indicated by an asterisk and set forth on Schedule 4.7(b) .

“ Maximum Rate ”: as defined in Section 3.5(e) .

“ Merger ”: as defined in the recitals to this Agreement.

“ Merger Agreement ”: the Agreement and Plan of Merger, dated as of the date hereof, by and among the Borrower, Merger Sub, the Target and GTCR Fund IX/A, L.P., solely in its capacity as representative for the Target’s Unitholders and Optionholders (each as defined in the Merger Agreement).

“ Merger Documentation ”: collectively, the Merger Agreement, the Transaction Documents (as defined in the Merger Agreement) and all schedules, exhibits and annexes thereto and all side letters and agreements affecting the terms thereof or entered into in connection therewith.

“ Merger Sub ”: as defined in the recitals to this Agreement.

“ Moody’s ”: Moody’s Investors Service, Inc.

“ Mortgaged Properties ”: the real properties as to which the Collateral Agent for the benefit of the Secured Parties shall be granted a Lien pursuant to the Mortgages pursuant to Section 6.9 .

“ Mortgages ”: any mortgages and deeds of trust or any other documents creating and evidencing Liens on Mortgaged Properties made by any Loan Party in favor of, or for the benefit of, the Collateral Agent for the benefit of the Secured Parties, which shall be in a form reasonably satisfactory to the Administrative Agent and the Collateral Agent.

“ Multiemployer Plan ”: a plan that is a “multiemployer” plan as defined in Section 4001(a)(3) of ERISA, to which any Group Member or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.

“ Multiple Employer Plan ”: a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Group Member or any ERISA Affiliate and at least one Person other than a Group Member or an ERISA Affiliate or (b) was so maintained and in respect of which any Group Member or an ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

“ Net Cash Proceeds ”:

(a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or held in escrow or purchase price adjustment receivable or by the Disposition of any non-cash consideration received in connection therewith or otherwise, but only as and when received and net of costs, amounts and taxes set forth below), net of:

(i) attorneys’ fees, accountants’ fees, investment banking fees and other professional and transactional fees actually incurred in connection therewith;

(ii) amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document);

(iii) other fees and expenses actually incurred in connection therewith;

(iv) taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements);

(v) amounts provided as a reserve in accordance with GAAP against any liabilities associated with the assets disposed of in an Asset Sale (including, without limitation, pension and other post-employment benefit liabilities and

liabilities related to environmental matters or against any indemnification obligations associated with such Asset Sale); provided that such amounts shall be considered Net Cash Proceeds upon release of such reserve;

(b) in connection with any Exclusive License, the proceeds thereof in the form of cash and Cash Equivalents constituting Upfront Payments, net of:

(i) attorneys’ fees, accountants’ fees, investment banking fees and other professional and transactional fees actually incurred in connection therewith;

(ii) other fees and expenses actually incurred in connection therewith;

(iii) taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements);

(iv) amounts provided as a reserve in accordance with GAAP against any liabilities associated with such Exclusive License (including, without limitation, against any indemnification obligations associated with such Exclusive License); provided that such amounts shall be considered Net Cash Proceeds upon release of such reserve; and

(c) in connection with any issuance or sale of Capital Stock, any capital contribution or any incurrence of Indebtedness, the cash proceeds received from such issuance, contribution or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.

“ Non-Consenting Lenders ”: as defined in Section 10.1.

“ Non-Defaulting Lender ”: at any time, a Lender that is not a Defaulting Lender.

“ Non-Recourse Indebtedness ”: Indebtedness for borrowed money of a Permitted Joint Venture, provided that (a) such Indebtedness is not, in whole or in part, Indebtedness of any Loan Party other than such Permitted Joint Venture and its Subsidiaries and for which no holder thereof has or could have upon the occurrence of any contingency, any recourse against any Loan Party or any property or assets thereof other than such Permitted Joint Venture and its Subsidiaries (including, for the avoidance of doubt any Equity Interests in such Permitted Joint Venture), (b) such Indebtedness is owing only to unaffiliated third parties (which, for the avoidance of doubt, does not include any Loan Party or any Affiliate thereof or any current or former officer or director of any Loan Party), (c) the source of repayment for such Indebtedness is expressly limited to the assets or cash flows of such Permitted Joint Venture and its Subsidiaries and (d) no Loan Party (other than such Permitted Joint Venture and its Subsidiaries) provides credit support, directly or indirectly, of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) or is directly or indirectly liable as a guarantor, surety or otherwise (but excluding a customary “bad boy” keep well guaranty or other similar back-stop arrangement) in respect of such Indebtedness or in respect of the business or

operations of the applicable Permitted Joint Venture and its Subsidiaries that are direct or indirect obligors under such Non-Recourse Indebtedness in the case of clauses (a), (c) and (d) above, as reasonably determined by the Administrative Agent.

“ Non-U.S. Pension Plan ”: any plan, fund or other similar program established or maintained outside the United States by a Group Member primarily for the benefit of employees of Group Members residing outside the United States, which plan, fund or other similar program provides for retirement income of such employees or a deferral of income from such employees in contemplation of retirement and is not subject to ERISA or the Code.

“ Not Otherwise Applied ”: with reference to any amount of proceeds of any transaction, that (a) was not required to be applied to prepay the Term Loans pursuant to Section 3.2(c) and (b) was not previously applied in determining the permissibility of a transaction under the Loan Documents where such permissibility was (or may have been) contingent on receipt of such amount or utilization of such amount for a specified purpose.

“ Notes ”: the collective reference to any promissory note evidencing Loans.

“ Obligations ”: the unpaid principal of and interest on (including interest accruing after the maturity of the Term Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any Insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Term Loans and all other obligations and liabilities of the Loan Parties to any Agent or to any Lender (or, in the case of Specified Hedge Agreements, any Qualified Counterparty), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, any Specified Hedge Agreement (other than any Excluded Swap Obligation) or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to any Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise.

“ OFAC ”: as defined in Section 4.22(a) .

“ Offer ”: as defined in Section 10.6(b) .

“ Offer Loans ”: as defined in Section 10.6(b) .

“ Offer Process ”: as defined in Section 10.6(h) .

“ Organizational Documents ”: as to any Person, the Certificate of Incorporation, Certificate of Formation, By-Laws, Limited Liability Company Agreement, Memorandum and Articles of Association, Partnership Agreement or other similar organizational or governing documents of such Person.

“ Other Connection Taxes ”: with respect to any Agent or any Lender, Taxes imposed as a result of a present or former connection between such Agent or Lender and the

jurisdiction imposing such Taxes (other than a connection arising from such Agent or Lender having executed, delivered, enforced, become a party to, performed its obligations under, received or perfected a security interest under, or engaged in any other transaction pursuant to, or enforced, any Loan Document, or sold or assigned an interest in any Loan Document).

“ Other Taxes ”: any and all present or future stamp, court, documentary intangible, mortgage recording, filing or similar excise or property Taxes, arising from any payment made hereunder or from the execution, delivery, performance, registration or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement, or any other Loan Document, except any Taxes that are Other Connection Taxes imposed with respect to a sale or assignment (other than an assignment under Section 3.13 ).

“ Owned Properties ”: as defined in Section 4.7(b) .

“ Parent Company ”: with respect to a Lender, the bank holding company (as defined in Board Regulation Y), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.

“ Participant ”: as defined in Section 10.6(e) .

“ Patriot Act ”: the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001).

“ PBGC ”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor entity performing similar functions).

“ Perfection Certificate ”: a perfection certificate in the form of Exhibit K-1 or any other form approved by the Collateral Agent, as the same shall be supplemented from time to time by a Perfection Certificate Supplement or otherwise.

“ Perfection Certificate Supplement ”: a perfection certificate supplement in the form of Exhibit K-2 or any other form approved by the Collateral Agent.

“ Permitted Acquisition ”: (i) the Merger, and (ii) any acquisition, whether by purchase, merger or otherwise, of (x) all or substantially all of the assets of, all or a majority of the Capital Stock of, or a business line or unit or a division of, or (y) any product or product line, of any Person; provided :

(a) immediately prior to, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom;

(b) all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable laws and in conformity with all applicable Governmental Authorizations;

(c) in the case of the acquisition of Capital Stock, such Capital Stock shall become subject to a security interest in favor of the Collateral Agent for the benefit of the

Secured Parties and the issuer of such Capital Stock shall become a Loan Party, in each case, in accordance with Section 6.9 and 6.10 ;

(d) the Total Leverage Ratio, in each case, calculated on a Pro Forma Basis after giving effect to such acquisition as if such acquisition had occurred on the first day of the most recent period of four (4) consecutive fiscal quarters of the Borrower for which financial statements are available shall be no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then last ended fiscal quarter occurring prior to the Closing Date);

(e) the Borrower shall have delivered to the Administrative Agent at least five (5) Business Days prior to such proposed acquisition, a certificate of a Responsible Officer of the Borrower evidencing compliance with clause (d) above and compliance with clause (f) below, together with all relevant financial information with respect to such acquired assets, including, in the event the Consolidated EBITDA (calculated on a Pro Forma Basis) of the assets and property subject to such acquisition is greater than 25% of the Consolidated EBITDA (calculated on a Pro Forma Basis) of the Borrower , appropriate revisions to the Projections included in the Confidential Information Memorandum, or, if Projections have been provided pursuant to Section 6.2(b) , appropriate revisions to such Projections, in each case after giving effect to such proposed acquisition (such revised projections or Projections to be accompanied by a certificate of a Responsible Officer of the Borrower stating that such revised projections or Projections are based on estimates, information and assumptions set forth therein and otherwise believed by such Responsible Officer of the Borrower to be reasonable at such time (it being recognized that such revised projections or Projections relate to future events and are not to be viewed as fact and that actual results during the period covered thereby may differ from such revised projections or Projections by a material amount)); and

(f) any Person or assets or division as acquired in accordance herewith shall be in substantially the same business or lines of business in which the Borrower and/or its Subsidiaries are engaged, or are permitted to be engaged, as provided in Section 7.12 , as of the time of such acquisition.

“ Permitted Convertible Notes Refinancing ”: as to the Convertible Notes, the incurrence of other unsecured Indebtedness to refinance, extend, renew, defease, restructure, replace or refund (collectively, “ refinance ”) such Convertible Notes; provided that, (a) the refinancing Indebtedness does not mature, or contain any provision permitting the holders thereof to require the redemption, repurchase or prepayment thereof, prior to (i) in the case of maturity, the later of (x) the maturity date of the Convertible Notes and (y) the date that is ninety-one (91) days after the Term Loan Maturity Date and (ii) in the case of any provision permitting the holders thereof to require the redemption, repurchase or prepayment of the refinancing Indebtedness, the first date the holders thereof could require the redemption, repurchase or prepayment of the Convertible Notes, (b) the Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) , after giving pro forma effect to the consummation of such Permitted Convertible Notes Refinancing and the incurrence of any Indebtedness in connection therewith) is no greater than the Total Leverage

Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter) and a Responsible Officer of the Borrower shall have certified to the Administrative Agent to such compliance in writing and (c) the respective obligor or obligors shall be the same on the refinancing Indebtedness as on the Indebtedness being refinanced .

“ Permitted Joint Venture ”: one or more joint ventures entered into after the Closing Date (which may be in the form of a limited liability company or other Person) relating to assets that are not owned by, or licensed to, any Loan Party as of the Closing Date, in which the Borrower or any of its Subsidiaries holds equity interests or otherwise participates or invests; provided that (a) the applicable joint venture shall be engaged in substantially the same business as the Loan Parties or in a related business , (b) the Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) , after giving pro forma effect to the consummation of such joint venture and the incurrence of any Indebtedness in connection therewith) is no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter) and a Responsible Officer of the Borrower shall have certified to such compliance, (c) no Loan Party shall, pursuant to such joint venture, be under any Contractual Obligation to make Investments or incur Indebtedness or contingent liabilities that would be in violation of any provision of this Agreement and (d) immediately prior, and after giving effect, to the consummation of such joint venture, no Default or Event of Default shall have occurred and be continuing.

“ Permitted Refinancing ”: as to any Indebtedness, the incurrence of other Indebtedness to refinance, extend, renew, defease, restructure, replace or refund (collectively, “ refinance ”) such existing Indebtedness; provided that, in the case of such other Indebtedness, the following conditions are satisfied: (a) the weighted average life to maturity of such refinancing Indebtedness (other than purchase money security interests and Capital Lease Obligations) shall be greater than or equal to the weighted average life to maturity of the Indebtedness (other than purchase money security interests and Capital Lease Obligations) being refinanced; (b) the principal amount of such refinancing Indebtedness shall be less than or equal to the principal amount (including any accreted or capitalized amount) then outstanding of the Indebtedness being refinanced, plus any required premiums and other amounts paid, and fees and expenses incurred, in connection with such modification, refinancing, refunding, renewal or extension and by any amount equal to any existing commitments unutilized thereunder; (c) the respective obligor or obligors shall be the same on the refinancing Indebtedness as on the Indebtedness being refinanced; (d) the security, if any, for the refinancing Indebtedness shall be substantially the same as that for the Indebtedness being refinanced (except to the extent that less security is granted to holders of refinancing Indebtedness); and (e) the refinancing Indebtedness is subordinated to the Obligations on terms that are at least as favorable, taken as a whole, as the Indebtedness being refinanced (as determined in good faith and certified in writing to the Administrative Agent by a Responsible Officer of the Borrower) and the holders of such refinancing Indebtedness have entered into any subordination or intercreditor agreements reasonably requested by the Administrative Agent evidencing such subordination, but only to the extent that the Indebtedness being refinanced was so subordinated.

“ Person ”: an individual, partnership, corporation, limited liability company,

business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

“ Plan ”: a Single Employer Plan or a Multiple Employer Plan.

“ Platform ”: as defined in Section 6.1 .

“ Pledged Company ”: any Subsidiary of the Borrower the Capital Stock of which is pledged to the Collateral Agent pursuant to any Security Document.

“ Pledged Equity Interests ”: as defined in the Guarantee and Collateral Agreement.

“ Portfolio Interest Exemption ”: as defined in Section 3.10 .

“ Private Siders ”: Lenders’ employees and representatives who have declared that they are authorized to receive material non-public information.

“ Pro Forma Basis ”: with respect to compliance with any test or covenant hereunder, compliance with such covenant or test after giving effect to (a) the Transactions, (b) any Permitted Acquisition (to the extent not subsequently disposed of during such period), (c) the borrowing of any Incremental Facilities, (d) any Asset Sale or (e) any restructurings of the business of the Borrower or any of its Subsidiaries that the Borrower or any of its Subsidiaries has made and/or has determined to make during the applicable period or subsequent to such applicable period and on or prior to or simultaneously with the date of calculation of Consolidated EBITDA and are expected to have a continuing impact and are factually supportable, which would include cost savings resulting from head count reduction, closure of facilities and similar operational and other cost savings, which adjustments the Borrower determines are reasonable as set forth in a certificate of an officer of the Borrower (the foregoing (a) through (e), together with any transactions related thereto or in connection therewith, the “relevant transactions”), as if the relevant transaction had been consummated or occurred during the applicable period had been consummated and occurred at the beginning of such period. For purposes of this definition, if any Indebtedness to be so incurred bears interest at a floating rate and is being given pro forma effect, the interest on such Indebtedness will be calculated as if the rate in effect on the date of incurrence had been the applicable rate for the entire period (taking into account any applicable interest rate Hedge Agreements).

“ Pro Forma Financial Statements ”: as defined in Section 6.1(d) .

“ Projections ”: as defined in Section 6.2(b) .

“ Property ”: any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Capital Stock.

“ Purchased Interests ”: has the meaning set forth in the Merger Agreement.

“ Qualified Capital Stock ”: any Capital Stock (other than warrants, rights or

options referenced in the definition thereof) that either (a) does not have a maturity and is not mandatorily redeemable, or (b) by its terms (or by the terms of any employee stock option, incentive stock or other equity-based plan or arrangement under which it is issued or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (x) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (excluding any mandatory redemption resulting from an asset sale or change in control so long as no payments in respect thereof are due or owing, or otherwise required to be made, until all Obligations have been paid in full in cash), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, or requires the payment of any cash dividend or any other scheduled payment constituting a return of capital, in each case, at any time on or after the ninety-first day following the Term Loan Maturity Date, or (y) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Capital Stock referred to in clause (x) above, in each case, at any time on or after the ninety-first day following the Term Loan Maturity Date.

“ Qualified Counterparty ”: with respect to any Hedge Agreement, any counterparty thereto that is, or that at the time such Hedge Agreement was entered into, was a Lender, an Affiliate of a Lender, an Agent or an Affiliate of an Agent (or, in the case of any such Hedge Agreement entered into prior to the Closing Date, any counterparty that was a Lender, an Affiliate of a Lender, an Agent or an Affiliate of an Agent on the Closing Date) or any other counterparty reasonably acceptable to the Administrative Agent; provided that, in the event a counterparty to a Hedge Agreement at the time such Hedge Agreement was entered into (or, in the case of any Hedge Agreement entered into prior to the Closing Date, on the Closing Date) was a Qualified Counterparty, such counterparty shall constitute a Qualified Counterparty hereunder and under the other Loan Documents.

“ Quarterly Payment Date ”: March 31, June 30, September 30 and December 31 of each year.

“ Recovery Event ”: any settlement of or payment in excess of $5,000,000 in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of any Group Member.

“ Refinanced Term Loans ”: as defined in Section 10.1 .

“ Refinancing Transaction ”: as defined in the recitals hereto.

“ Register ”: as defined in Section 10.6(d) .

“ Regulation S-X ”: Regulation S-X promulgated under the Securities Act.

“ Regulation T ”: Regulation T of the Board as in effect from time to time.

“ Regulation U ”: Regulation U of the Board as in effect from time to time.

“ Regulation X ”: Regulation X of the Board as in effect from time to time.

“ Reinvestment Deferred Amount ”: with respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by any Group Member in connection therewith that are not applied to prepay the Term Loans pursuant to Section 3.2(b) as a result of the delivery of a Reinvestment Notice.

“ Reinvestment Event ”: any Asset Sale (other than any Intellectual Property Out-Licensing Event) or Recovery Event in respect of which the Borrower has delivered a Reinvestment Notice.

“ Reinvestment Notice ”: a written notice executed by a Responsible Officer stating that no Event of Default has occurred and is continuing and that the Borrower (directly or indirectly through a Restricted Subsidiary) intends and expects to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire or repair fixed or capital assets or Intellectual Property useful in its business (including by making Permitted Acquisitions).

“ Reinvestment Prepayment Amount ”: with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to acquire or repair fixed or capital assets or Intellectual Property useful in the Borrower’s or the Restricted Subsidiaries’ businesses (including by making Permitted Acquisitions) in accordance with the applicable Reinvestment Notice.

“ Reinvestment Prepayment Date ”: with respect to any Reinvestment Event, the earlier of (a) the date occurring twelve (12) months (or if the Borrower or a Restricted Subsidiary, as the case may be has entered into a legally binding commitment to reinvest such Reinvestment Deferred Amount during such twelve (12) month period, eighteen (18) months) after such Reinvestment Event and (b) the date on which the Borrower shall have determined not to, or shall have otherwise ceased to, acquire or repair fixed or capital assets or Intellectual Property useful in the Borrower’s or the Restricted Subsidiaries’ businesses with all or any portion of the relevant Reinvestment Deferred Amount.

“ Related Indemnified Person ”: of an indemnified person means (a) any controlling person or controlled affiliate of such indemnified person, (b) the respective directors, officers, or employees of such indemnified person or any of its controlling persons or controlled affiliates and (c) the respective agents of such indemnified person or any of its controlling persons or controlled affiliates, in the case of this clause (c), acting at the instructions of such indemnified person, controlling person or such controlled affiliate; provided that each reference to a controlled affiliate or controlling person in this sentence pertains to a controlled affiliate or controlling person involved in the negotiation or syndication of this Agreement and the Term Loans.

“ Related Party Register ”: as defined in Section 10.6(d) .

“ Release ”: any release, spill, emission, discharge, deposit, disposal, leaking, emanating, pumping, pouring, dumping, emptying, injection, seepage, migration, or leaching in, into, upon, onto or through the Environment, or into or from any building or facility.

“ Reorganization ”: with respect to any Multiemployer Plan, the condition that

such plan is in reorganization within the meaning of Section 4241 of ERISA.

“ Replacement Term Loans ”: as defined in Section 10.1 .

“ Reportable Event ”: any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty (30) day notice period is waived pursuant to PBGC Reg. § 4043 with respect to a Plan (other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code).

“ Repricing Transaction ”: (i) any prepayment, repayment, refinancing, substitution, purchase, buy-back or replacement of any amount of the Term Loans with the proceeds of, or any conversion of Term Loans into, any new or replacement tranche of term loans (whether under the Loan Documents or otherwise) bearing interest at an Effective Yield (as defined below) less than the Effective Yield of the Term Loans, or (ii) any amendment (including pursuant to any replacement term loans contemplated in the Loan Documents ) to any Loan Documents , or to the Term Loans or any tranche or portion thereof, that reduces the Effective Yield applicable to any Term Loans (in each case, as such comparative yields are reasonably determined by the Agent), in each case other than a Repricing Transaction that occurs in connection with a Change in Control or a Permitted Acquisition the fair market value (as reasonably determined by the Board of Directors (or a committee thereof) of the Borrower) of which is no less than $150,000,000. Any such determination by the Administrative Agent as contemplated by the preceding sentence shall be binding on the Lenders, absent manifest error .

“ Required Lenders ”: at any time, the holders of more than 50% of the sum of (a) the aggregate unpaid principal amount of the Term Loans then outstanding and (b) the Total Term Commitments then in effect.

“ Requirement of Law ”: as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject, including, in each case, any applicable Health Care Laws.

“ Respiratory Business ”: the respiratory business of the Target and its Subsidiaries.

“ Responsible Officer ”: the chief executive officer, president, chief financial officer, treasurer or assistant treasurer of the Borrower (unless otherwise specified), but in any event, with respect to financial matters, the chief financial officer, treasurer or assistant treasurer of the Borrower.

“ Restricted Payments ”: as defined in Section 7.5 .

“ Restricted Subsidiary ”: any Subsidiary that is not an Unrestricted Subsidiary.

“ S&P ”: Standard & Poor’s Ratings Services.

“ Sale and Leaseback Transaction ”: any arrangement, directly or indirectly, with

any person whereby it shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property which it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

“ SEC ”: the Securities and Exchange Commission, any successor thereto and any analogous Governmental Authority.

“ Secured Parties ”: the collective reference to the Lenders, the Agents, and the Qualified Counterparties, and each of their successors and assigns.

“ Securities Act ”: the Securities Act of 1933, as amended.

“ Security Documents ”: the collective reference to the Guarantee and Collateral Agreement, the Mortgages (if any), the Control Agreements, the Intellectual Property Security Agreements and all other security documents hereafter delivered to the Administrative Agent or the Collateral Agent granting a Lien on any property of any Person to secure the Obligations of any Loan Party under any Loan Document or any Specified Hedge Agreement.

“ Single Employer Plan ”: a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Group Member or any ERISA Affiliate and no Person other than the Group Member and the ERISA Affiliates or (b) was so maintained and in respect of which the Group Member or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

“ Software ”: as defined in the definition of Intellectual Property.

“ Solvent ”: as to any Person at any time, that (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person; (b) the present fair salable value of the assets of such Person is greater than the amount that will be required to pay the probable liability of such Person on the sum of its debts and other liabilities, including contingent liabilities; (c) such Person has not, does not intend to, and does not believe (nor should it reasonably believe) that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they become due (whether at maturity or otherwise); (d) such Person does not have unreasonably small capital with which to conduct the businesses in which it is engaged as such businesses are now conducted and are proposed to be conducted following the Closing Date and (e) it is not unable to pay its debts as they fall due.

“ Special Flood Hazard Area ”: an area that FEMA’s current flood maps indicate has at least a one percent (1%) chance of a flood equal to or exceeding the base flood elevation (a 100-year flood) in any given year.

“ Specified Hedge Agreement ”: any Hedge Agreement entered into by (a) any Loan Party and (b) any Qualified Counterparty, as counterparty; provided , that any release of Collateral or Subsidiary Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations under Specified Hedge Agreements; provided , however, that notwithstanding such release, nothing herein shall limit the contractual rights of

any such Qualified Counterparty set forth in such Specified Hedge Agreement.

“ Specified Reinvestment Deferred Amount ”: with respect to any Specified Reinvestment Event, the aggregate Net Cash Proceeds received by any Group Member in connection therewith that are not applied to prepay the Term Loans pursuant to Section 3.2(c) as a result of the delivery of a Specified Reinvestment Notice.

“ Specified Reinvestment Event ”: any Intellectual Property Out-Licensing Event in respect of which the Borrower has delivered a Specified Reinvestment Notice.

“ Specified Reinvestment Notice ”: a written notice executed by a Responsible Officer and delivered to the Administrative Agent stating that no Event of Default has occurred and is continuing and that the Borrower (directly or indirectly through a Restricted Subsidiary) intends and expects to use all or a specified portion of the Net Cash Proceeds of an Intellectual Property Out-Licensing Event to acquire or repair fixed or capital assets or Intellectual Property useful in its business (including by making Permitted Acquisitions).

“ Specified Reinvestment Prepayment Amount ”: with respect to any Intellectual Property Out-Licensing Event, the Specified Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Specified Reinvestment Prepayment Date to acquire or repair fixed or capital assets or Intellectual Property useful in the Borrower’s or the Restricted Subsidiaries’ businesses (including by making Permitted Acquisitions) in accordance with the applicable Specified Reinvestment Notice.

“ Specified Reinvestment Prepayment Date ”: with respect to any Specified Reinvestment Event, the earlier of (a) the date occurring twelve (12) months (or if the Borrower or a Restricted Subsidiary, as the case may be has entered into a legally binding commitment to reinvest such Specified Reinvestment Deferred Amount during such twelve (12) month period, eighteen (18) months) after such Specified Reinvestment Event and (b) the date on which the Borrower shall have determined not to, or shall have otherwise ceased to, acquire or repair fixed or capital assets or Intellectual Property useful in the Borrower’s or the Restricted Subsidiaries’ businesses with all or any portion of the relevant Specified Reinvestment Deferred Amount.

“ Stock Certificates ”: Collateral consisting of certificates representing Capital Stock of any Subsidiary of the Borrower for which a security interest can be perfected by delivering such certificates.

“ Subordinated Indebtedness ”: any unsecured Junior Indebtedness of the Borrower or a Subsidiary Guarantor the payment of principal and interest of which and other obligations of the Borrower or such Subsidiary Guarantor in respect thereof are subordinated to the prior payment in full of the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent.

“ Subsidiary ”: as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the

management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.

“ Subsidiary Guarantor ”: each Subsidiary of the Borrower that guarantees the Obligations pursuant to a Loan Document or pursuant to Section 6.9 .

“ Survey ”: a survey of any Mortgaged Property (and all improvements thereon) which is (a) (i) prepared by a surveyor or engineer licensed to perform surveys in the jurisdiction where such Mortgaged Property is located, (ii) dated (or redated) not earlier than six months prior to the date of delivery thereof unless there shall have occurred within six months prior to such date of delivery any exterior construction on the site of such Mortgaged Property or any easement, right of way or other interest in the Mortgaged Property has been granted or become effective through operation of law or otherwise with respect to such Mortgaged Property which, in either case, can be depicted on a survey, in which events, as applicable, such survey shall be dated (or redated) after the completion of such construction or if such construction shall not have been completed as of such date of delivery, not earlier than 20 days prior to such date of delivery, or after the grant or effectiveness of any such easement, right of way or other interest in the Mortgaged Property, provided that the Borrower shall have a reasonable amount of time to deliver such redated survey, (iii) certified by the surveyor (in a manner reasonably acceptable to the Administrative Agent) to the Administrative Agent, the Collateral Agent and the Title Company, (iv) complying in all respects with the minimum detail requirements of the American Land Title Association as such requirements are in effect on the date of preparation of such survey and (v) sufficient for the Title Company to remove all standard survey exceptions from the title insurance policy (or commitment) relating to such Mortgaged Property and issue customary endorsements or (b) otherwise reasonably acceptable to the Collateral Agent.

“ Swap Obligation ”: with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

“ Syndication Agent ”: Morgan Stanley Senior Funding, Inc. in its capacity as sole syndication agent under this Agreement.

“ Taxes ”: all present or future taxes, levies, imposts, duties, charges, fees, deductions, withholdings (including backup withholding) or assessments imposed by any Governmental Authority, and any interest, penalties or additions to tax imposed with respect thereto.

“ Tax Status Certificate ”: as defined in Section 3.10 .

“ Term Commitment ”: as to any Lender, the obligation of such Lender, if any, to make a Term Loan to the Borrower hereunder in a principal amount not to exceed the amount set forth on Schedule 1.1 or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The original aggregate amount of the Term Commitments is $225,000,000.

“ Term Facility ”: the Term Commitments and the Term Loans made thereunder.

“ Term Lender ”: each Lender that has a Term Commitment or that holds a Term Loan.

“ Term Loan ”: as defined in Section 2.1 , together with any Incremental Term Loans, if applicable.

“ Term Loan Maturity Date ”: April 15, 2018.

“ Term Note ”: a promissory note of the Borrower payable to the order of any Lender in substantially the form of Exhibit E hereto, evidencing the indebtedness of the Borrower to such Lender resulting from the Term Advance owing to such Lender, as amended.

“ Term Percentage ”: as to any Lender at any time, the percentage which such Lender’s Term Commitment then constitutes of the aggregate Term Commitments (or, at any time after the Closing Date, the percentage which the aggregate principal amount of such Lender’s Term Loans then outstanding constitutes the aggregate principal amount of the Term Loans then outstanding).

“ Title Company ”: any title insurance company as shall be retained by Borrower and reasonably acceptable to the Administrative Agent.

“ Total Consolidated EBITDA ”: Consolidated EBTIDA, calculated for any period, for the Borrower and all of its Subsidiaries on a consolidated basis for such period.

“ Total Leverage Ratio ”: at any date of determination, the ratio of (a) Consolidated Funded Debt as of such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters ended on such date.

“ Total Term Commitments ”: at any time, the aggregate amount of the Term Commitments then in effect.

“ Transactions ”: collectively, (a) the consummation of the Merger, (b) the borrowing of the Term Loans on the Closing Date and (c) the other transactions contemplated by the Loan Documents.

“ Transferee ”: any Assignee or Participant.

“ Type ”: as to any Term Loan, its nature as an ABR Loan or a LIBOR Rate Loan.

“ UCC Filing Collateral ”: Collateral consisting solely of assets for which a security interest can be perfected by filing a Uniform Commercial Code financing statement.

“ Upfront Payment ”: for any Exclusive License, the aggregate cash payment paid to any Group Member on or prior to the consummation of the Exclusive License (and which, for the avoidance of doubt, shall not include any royalty, earnout, milestone payment, contingent payment or any other deferred payment that may be payable thereafter.)

“ Unasserted Contingent Obligations ”: as defined in the Guarantee and Collateral Agreement.

“ United States ”: the United States of America.

“ Unrestricted Subsidiary ”: any Subsidiary designated by the board of directors of the Borrower as an Unrestricted Subsidiary pursuant to Section 6.14 , in each case, until such Person ceases to be an Unrestricted Subsidiary in accordance with Section 6.14 or ceases to be a Subsidiary.

“ U.S. GAAP ”: generally accepted accounting principles in effect from time to time in the United States.

“ Voluntary Prepayment ”: a prepayment of the Term Loans.

“ Weighted Average Life to Maturity ”: when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

“ Wholly Owned Subsidiary ”: as to any Person, any other Person, all of the Capital Stock of which (other than directors’ qualifying shares required by law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries.

“ Withdrawal Liability ”: any withdrawal liability incurred pursuant to Part I of Subtitle E of Title IV of ERISA.

1.2 Other Definitional Provisions .

(a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.

(b) As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1 , to the extent not defined, shall have the respective meanings given to them under GAAP, (ii) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation,” (iii) the word “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (iv) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Capital Stock, securities, revenues, accounts, leasehold interests and contract rights, (v) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as

amended, supplemented, restated or otherwise modified from time to time (subject to any applicable restrictions hereunder), (vi) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time and (vii) any references herein to any Person shall be construed to include such Person’s successors and assigns.

(c) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

(e) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP in effect as of the date hereof; provided that, (i) if either the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then the Administrative Agent, the Borrower and the Lenders shall negotiate in good faith to amend such provision to preserve the original intent in light of the change in GAAP; provided that such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; and (ii) non-cash gains, losses, income and expenses resulting from fair value accounting required by the applicable standard under GAAP and related interpretations shall be excluded . For purposes of calculations made pursuant to the terms of this Agreement, GAAP will be deemed to treat operating leases and Capital Lease Obligations in a manner consistent with their treatment under generally accepted accounting principles as in effect on the Closing Date, notwithstanding any modifications or interpretive changes thereto that may occur thereafter.

(f) When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, with respect to any payment of interest on or principal of LIBOR Rate Loans, if such extension would cause any such payment to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.

SECTION 2. AMOUNT AND TERMS OF COMMITMENTS

2.1 Term Commitments . Subject to the terms and conditions hereof, each Lender severally agrees to make a term loan (a “ Term Loan ”) to the Borrower on the Closing Date in an amount not to exceed the amount of the Term Commitment of such Lender. The

Term Loans may from time to time be LIBOR Rate Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 3.3 .

2.2 Procedure for Term Loan Borrowing . The Borrower shall give the Administrative Agent irrevocable notice in the form annexed hereto as Exhibit B (which notice must be received by the Administrative Agent prior to 2:00 p.m., New York City time, on the anticipated Closing Date or such later time as may be acceptable to the Administrative Agent) requesting that the applicable Lenders make the Term Loans on the Closing Date and specifying the amount to be borrowed. Upon receipt of such notice the Administrative Agent shall promptly notify each applicable Lender thereof. Not later than 12:00 Noon, New York City time, on the Closing Date, each Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Term Loan or Term Loans to be made by such Lender. The Administrative Agent shall make the proceeds of such Term Loan or Term Loans available to the Borrower on such Borrowing Date by wire transfer in immediately available funds to a bank account designated in writing by the Borrower to the Administrative Agent.

2.3 Repayment of Term Loans . On each Quarterly Payment Date, the Borrower shall repay to the Administrative Agent for the ratable account of the Lenders the principal amount of Term Loans then outstanding in an amount equal to 0.25% of the aggregate initial principal amounts of all Term Loans theretofore borrowed by the Borrower pursuant to Section 2.1 in accordance with the order of priority set forth in Section 3.8 . The remaining unpaid principal amount of the Term Loans and all other Obligations under or in respect of the Term Loans shall be due and payable in full, if not earlier in accordance with this Agreement, on the Term Loan Maturity Date.

2.4 Incremental Facilities .

(a) Borrower Request . The Borrower may at any time and from time to time after the Closing Date by written notice to the Administrative Agent elect to request the establishment of one or more new term loan facilities with term loan commitments (each, an “ Incremental Term Loan Commitment ”) or one or more new revolving credit facilities with revolving credit commitments (each, an “ Incremental Revolving Loan Commitment ” and together with any Incremental Term Loan Commitment, the “ Incremental Facilities ”)), in each case, either pari passu with, or junior to, the existing Term Loan Facility, in an aggregate amount not to exceed $100,000,000; provided , that the Borrower may incur unlimited additional Incremental Facilities so long as, on a Pro Forma Basis (assuming that any such Incremental Revolving Loan Commitments are drawn in full and excluding the cash proceeds of any such Incremental Term Loans or Incremental Revolving Loan Commitments) and after giving effect to any acquisitions or Dispositions or repayment of Indebtedness after the beginning of the relevant determination period but prior to or simultaneous with the borrowing under such Incremental Facility, the First Lien Secured Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) ) shall not exceed the First Lien Secured Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter). Each such notice shall specify (i) the date (each, an “ Increase Effective Date ”) on which the Borrower proposes that the Incremental Facilities shall be effective, which shall be a

date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Person (which, if not a Lender, an Approved Fund or an Affiliate of a Lender, shall be reasonably satisfactory to the Administrative Agent) to whom the Borrower proposes any portion of such Incremental Facility be allocated and the amounts of such allocations (it being understood that the Borrower shall first seek commitments in respect of Incremental Facilities from existing Lenders, but no existing Lender will have an obligation to make a portion of any Incremental Facility).

(b) Conditions . An Incremental Facility shall become effective, as of such Increase Effective Date; provided that:

(i) each of the conditions set forth in Section 5.2 shall be satisfied;

(ii) no Default or Event of Default shall have occurred or be continuing or would result from the borrowings to be made on the Increase Effective Date; and

(iii) the Borrower shall deliver or cause to be delivered any amendments to the Loan Documents, customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.

(c) Terms of Incremental Term Loans and Incremental Term Loan Commitments . The terms and provisions of the Incremental Term Loans made pursuant to the Incremental Term Loan Commitments shall be as follows:

(i) terms and provisions of Loans made pursuant to Incremental Term Loan Commitments (the “ Incremental Term Loans ”) shall be on terms consistent with the existing Term Loans (except as otherwise set forth herein) and, to the extent not consistent with such existing Term Loans, on terms reasonably acceptable to the Administrative Agent (except as otherwise set forth herein) (it being understood that Incremental Term Loans may be part of the existing tranche of Term Loans or may comprise one or more new tranches of Term Loans);

(ii) the weighted average life to maturity of all new Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the existing Term Loans;

(iii) the maturity date of Incremental Term Loans shall not be earlier than the Term Loan Maturity Date;

(iv) until the date that is two (2) years from the Closing Date, the LIBOR Rate or ABR “floors” applicable to Incremental Term Loans shall be no higher than the LIBOR Rate or ABR “floors” applicable to the existing Term Loans;

(v) the applicable yield for the Incremental Term Loans shall be determined by the Borrower and the applicable new Lenders; provided , however , that until the date that is two (2) years from the Closing Date, the applicable yield (which, for such purposes only, shall be deemed to include all upfront or similar fees, original issue discount (with original issue discount being equated to interest based on an assumed four-

year life to maturity) payable to all Lenders providing Incremental Term Loans, but shall exclude customary arrangement fees payable to any arranger in connection with the Incremental Term Loans) for any Incremental Term Loans shall not be greater than the highest applicable yield that may, under any circumstances, be payable with respect to Term Loans plus 50 basis points, except to the extent that the applicable yield applicable to the Term Loans is increased to the extent necessary to achieve the foregoing; and

(vi) Incremental Term Loan Facilities shall be on terms and pursuant to documentation to be determined provided that, to the extent such terms and documentation are not consistent with the existing Term Loans (except to the extent permitted by clauses (iii) and (v) above), they shall be reasonably satisfactory to the Administrative Agent.

(d) Making of Incremental Term Loans . On any Increase Effective Date on which Incremental Term Loan Commitments are effective, subject to the satisfaction of the foregoing terms and conditions, each Incremental Lender of such Incremental Term Loan Commitment shall make an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment.

(e) Terms of Incremental Revolving Loan Commitments . The terms and provisions of the Incremental Revolving Loan Commitments shall be mutually satisfactory to the Borrower and the Administrative Agent.

(f) Equal and Ratable Benefit . The Incremental Term Loans and Incremental Revolving Loan Commitments established pursuant to this Section 2.4 shall constitute loans and commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the security interests created by the Security Documents and the guarantees of the Subsidiary Guarantors. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the establishment of any Incremental Facilities.

2.5 Fees . The Borrower shall pay to the Agents such fees as shall have been separately agreed upon in writing in the amounts and at times specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as expressly agreed between the Borrower and the applicable Agent).

SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS

3.1 Optional Prepayments . The Borrower may at any time and from time to time prepay the Term Loans, in whole or in part, without premium or penalty (other than as set forth in Section 3.2(g) below), upon irrevocable notice delivered to the Administrative Agent no later than 2:00 p.m., New York City time, three (3) Business Days prior thereto, in the case of LIBOR Rate Loans, and no later than 2:00 p.m., New York City time, one (1) Business Day prior thereto, in the case of ABR Loans, which notice shall specify the date and amount of prepayment, whether the prepayment is of LIBOR Rate Loans or ABR Loans and the manner in which such prepayment is to be applied to the Term Loans; provided , that if a LIBOR Rate Loan

is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 3.11 ; provided further , that the Borrower may provide revocable notice (pursuant to customary arrangements to be reasonably approved by the Administrative Agent) of such prepayment if the source of the repayment is intended to be a refinancing facility. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with accrued interest to such date on the amount prepaid. Partial prepayments of LIBOR Rate Loans shall be in an aggregate principal amount of $500,000 or integral multiples of $100,000 in excess thereof. Partial prepayments of ABR Loans shall be in an aggregate principal amount of $250,000 or integral multiples of $100,000 in excess thereof. Notwithstanding the foregoing, a notice of prepayment delivered by the Borrower in accordance with this Section 3.1 may expressly state that such notice is conditioned upon the effectiveness of new credit facilities or other sources of refinancing and which effectiveness will result in the immediate payment in full in cash of all Obligations, in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the time on which the Term Loans would have been repaid in accordance with such notice of prepayment) if such condition is not satisfied or not reasonably likely to be satisfied and the Borrower shall pay any amounts due under Section 3.9 , if any, in connection with any such revocation.

3.2 Mandatory Prepayments; Prepayment Premium .

(a) If any Indebtedness or Disqualified Capital Stock shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 3.2(e) .

(b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale (other than an Intellectual Property Out-Licensing Event) or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 3.2(e) ; provided , that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 3.2(e) .

(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period toward the prepayment of the Term Loans as set forth in Section 3.2(e) . Except as provided below, each such prepayment and commitment reduction shall be made on a date (an “ Excess Cash Flow Application Date ”) no later than ten (10) days after the date on which the financial statements referred to in Section 6.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders (commencing with the fiscal year of the Borrower ending December 31, 2013). The Borrower shall, on each Specified Reinvestment Prepayment Date, apply the ECF Percentage of any Specified Reinvestment Prepayment Amount toward the prepayment of the Term Loans as set forth in

Section 3.2(e).

(d) If on any date any Group Member shall receive Net Cash Proceeds from a Disposition of all, or substantially all, of the Respiratory Business then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 60% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 3.2(e) ; provided , that, notwithstanding the foregoing, on the Reinvestment Prepayment Date with respect to such Disposition, an amount equal to the Reinvestment Prepayment Amount with respect to such Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 3.2(e) .

(e) Amounts to be applied in connection with prepayments made pursuant to this Section 3.2 shall be applied to the prepayment of the Term Loans in accordance with Section 3.8 . The application of any prepayment pursuant to this Section 3.2 shall be made, first, to ABR Loans and, second, to LIBOR Rate Loans. Each prepayment of the Term Loans under this Section 3.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.

(f) The Total Term Commitment (and the Term Commitments of each Lender) shall terminate in its entirety on the Closing Date.

(g) Prepayment Premium . In the event that, on or prior to the first anniversary of the Closing Date, the Borrower (x) makes any prepayment of Term Loans in connection with any Repricing Transaction or (y) effects any amendment of this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each applicable Lender, (i) in the case of clause (x), a prepayment premium of 1% of the amount of the Term Loans being prepaid and (ii) in the case of clause (y), a payment equal to 1% of the aggregate amount of the applicable Term Loans outstanding immediately prior to such amendment.

3.3 Conversion and Continuation Options .

(a) The Borrower may elect from time to time to convert LIBOR Rate Loans to ABR Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 2:00 p.m., New York City time, on the Business Day preceding the proposed conversion date; provided that any such conversion of LIBOR Rate Loans may only be made on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert ABR Loans to LIBOR Rate Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 2:00 p.m., New York City time, on the third Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefor); provided that no ABR Loan may be converted into a LIBOR Rate Loan when any Event of Default has occurred and is continuing and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such conversions. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

(b) Any LIBOR Rate Loan may be continued as such upon the expiration of

the then current Interest Period with respect thereto by the Borrower giving irrevocable notice to the Administrative Agent, in accordance with the applicable provisions of the term Interest Period set forth in Section 1.1 , of the length of the next Interest Period to be applicable to such Loans; provided that no LIBOR Rate Loan may be continued as such when any Event of Default has occurred and is continuing and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuations; and provided , further, that if the Borrower shall fail to give any required notice as described above in this paragraph or if such continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

3.4 Limitations on LIBOR Tranches . Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions and continuations of LIBOR Rate Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate principal amount of the LIBOR Rate Loans comprising each LIBOR Tranche shall be equal to $500,000 or integral multiples of $100,000 in excess thereof and (b) no more than seven (7) LIBOR Tranches shall be outstanding at any one time.

3.5 Interest Rates and Payment Dates .

(a) Each LIBOR Rate Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the LIBOR Rate determined for such day plus the Applicable Margin.

(b) Each ABR Loan shall bear interest at a rate per annum equal to the ABR plus the Applicable Margin.

(c) During the occurrence of any (x) Default or Event of Default with regard to Section 8(a) or (f) or (y) any other Event of Default, upon request written to the Administrative Agent by the Required Lenders, in each case, the Borrower shall pay interest on outstanding Obligations at a rate per annum equal to (i) in the case of Term Loans, the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section 3.5 plus 2%, and (ii) in the case of other Obligations, the non-default rate then applicable to ABR Loans plus 2%.

(d) Interest shall be payable in arrears on each Interest Payment Date; provided that interest accruing pursuant to paragraph (c) of this Section 3.5 shall be payable from time to time on demand.

(e) Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable law (the “ Maximum Rate ”). If any Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Term Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged,

or received by an Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable law, (i) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (ii) exclude voluntary prepayments and the effects thereof, and (iii) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

3.6 Computation of Interest and Fees .

(a) Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to ABR Loans the rate of interest on which is calculated on the basis of clause (a) or (b) of the definition of ABR, the interest thereon shall be calculated on the basis of a 365-day (or 366-day, as the case may be) year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of a LIBOR Rate. Any change in the interest rate on a Loan resulting from a change in the ABR or the Eurocurrency Reserve Requirements shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate.

(b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower, promptly deliver to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 3.6(a) .

3.7 Inability to Determine Interest Rate . If prior to the first day of any Interest Period:

(a) the Administrative Agent shall have reasonably determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the LIBOR Rate for such Interest Period, or

(b) the Administrative Agent shall have received notice from the Required Lenders that the LIBOR Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as reasonably determined and conclusively certified by such Lenders) of making or maintaining their affected Loans during such Interest Period,

the Administrative Agent shall give written notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter but at least two (2) Business Days prior to the first day of such Interest Period. If such notice is given (x) any Term Loans that were to have been converted on the first day of such Interest Period to LIBOR Rate Loans shall be continued as ABR Loans and (y) any outstanding LIBOR Rate Loans shall be converted, on the last day of the then-current Interest Period, to ABR Loans. Until such notice has been withdrawn by the Administrative Agent (which notice the Administrative Agent agrees to withdraw promptly upon

a determination that the condition or situation which gave rise to such notice no longer exists), no further LIBOR Rate Loans shall be made or continued as such, nor shall the Borrower have the right to convert Loans to LIBOR Rate Loans.

3.8 Pro Rata Treatment; Application of Payments; Payments .

(a) Each borrowing by the Borrower from the Lenders hereunder, each payment by the Borrower on account of any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Term Percentages of the relevant Lenders.

(b) Each payment (including each prepayment) on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans of the relevant tranche, if any, then held by the Lenders. The amount of each principal prepayment of the Term Loans shall be applied to reduce the next four scheduled amortization payments of the Term Loans and then to the remaining installments as specified by the Borrower in the applicable notice of prepayment. Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.

(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 p.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the LIBOR Rate Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a LIBOR Rate Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.

(d) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may (but shall not be required to), in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.

(e) Notwithstanding anything to the contrary contained herein, the provisions

of this Section 3.8 shall be subject to the express provisions of this Agreement which require or permit differing payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.

3.9 Requirements of Law .

(a) If the adoption of, taking effect of or any change in any Requirement of Law or in the administration, interpretation or application thereof or compliance by any Lender with any request, guideline or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof (and, for purposes of this Agreement (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, guidelines or directives in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, pursuant to Basel III, in each case, are deemed to have gone into effect and adopted subsequent to the date hereof):

(i) shall subject any Lender or Agent to any Tax of any kind whatsoever (other than Excluded Taxes, Indemnified Taxes and Other Taxes), with respect to its loans (including this Agreement and any other Loan Document), loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender that is not otherwise included in the determination of the LIBOR Rate hereunder; or

(iii) shall impose on such Lender or the London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Rate Loans made by such Lender;

and the result of any of the foregoing is to increase the cost to such Lender of making, converting into, continuing or maintaining LIBOR Rate Loans or, with respect to Taxes under clause (i) above, any Term Loan, or to reduce any amount receivable hereunder in respect thereof (whether of principal, interest or any other amount), then, in any such case, the Borrower shall promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable. If any Lender becomes entitled to claim any additional amounts pursuant to this paragraph, it shall notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled and setting forth in reasonable detail such increased costs.

(b) If any Lender shall have determined that the adoption of, taking effect of or any change in any Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy or liquidity

requirements (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof (and, for purposes of this Agreement (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, guidelines or directives in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, pursuant to Basel III, in each case, are deemed to have gone into effect and adopted subsequent to the date hereof) shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy or liquidity requirements), then from time to time, after submission by such Lender to the Borrower (with a copy to the Administrative Agent) of a written request therefor setting forth in reasonable detail the charge and the calculation of such reduced rate of return, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction.

(c) A certificate as to any additional amounts payable pursuant to this Section 3.9 submitted by any Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive in the absence of manifest error. Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.9 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section 3.9 for any amounts incurred more than one hundred and eighty (180) days prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation therefor; provided that, if the circumstances giving rise to such claim have a retroactive effect, then such one hundred and eighty (180) day period shall be extended to include the period of such retroactive effect. The obligations of the Borrower pursuant to this Section 3.9 shall survive the termination of this Agreement and the payment of the Term Loans and all other amounts payable hereunder. The Borrower shall pay the Lender the amount shown as due on any certificate referred to above within ten (10) days after receipt thereof.

3.10 Taxes .

(a) Payments Free of Indemnified Taxes and Other Taxes . Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction or withholding for any Taxes, provided that if any applicable withholding agent shall be required by applicable law to deduct or withhold any Taxes from such payments, then (i) the applicable withholding agent shall make such deductions or withholdings, (ii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and (iii) if such Tax is an Indemnified Tax, the sum payable by the applicable Loan Party shall be increased as necessary so that after all required deductions or withholdings have been made (including deductions or withholdings applicable to additional sums payable under this Section 3.10(a) ) the applicable Agent or Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made.

(b) Payment of Other Taxes by the Borrower . Without limiting or duplication of the provisions of subsection (a) above, the Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(c) Indemnification by the Borrower . Without duplication of Section 3.10(a) , the Borrower shall indemnify each Agent and Lender, within 10 Business Days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed on or attributable to amounts payable under this Section 3.10 ) imposed on, paid or payable by, or required to be withheld or deducted from a payment to, such Agent or Lender, as the case may be, with respect to this Agreement or any other Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth the amount of such payment or liability (together with a copy of any applicable documents from the IRS or other Governmental Authority that asserts such claim) delivered to the Borrower by a Lender (with a copy to the relevant Agent), or by an Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(d) Evidence of Payments . As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 3.10 , the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(e) Status of Lenders . Each Lender shall deliver to the Borrower and to the Administrative Agent, whenever reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable laws and such other reasonably requested information as will permit the Borrower or the Administrative Agent, as the case may be, (A) to determine whether or not payments made hereunder or under any other Loan Document are subject to Taxes, (B) to determine, if applicable, the required rate of withholding or deduction and (C) to establish such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of any payments to be made to such Lender pursuant to any Loan Document or otherwise to establish such Lender’s status for withholding tax purposes in an applicable jurisdiction. If any form, certification or other documentation provided by a Lender pursuant to this Section 3.10(e) (including any of the specific documentation described below) expires or becomes obsolete or inaccurate in any respect, such Lender shall promptly notify the Borrower and the Administrative Agent in writing and shall promptly update or otherwise correct the affected documentation or promptly notify the Borrower and the Administrative Agent in writing that such Lender is not legally eligible to do so. Notwithstanding anything to the contrary in this Section 3.10 , the completion, execution and submission of documentation (other than documentation set forth in Section 3.10(f)(A) , (f)(B)(i) through (iv) and (g) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(f) Without limiting the generality of the foregoing,

(A) any Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent duly completed and executed originals of IRS Form W-9 or such other documentation or information prescribed by applicable laws (in such number of signed originals as shall be reasonably requested by the recipient) on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent) as will enable the Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to U.S. federal backup withholding or information reporting requirements; and

(B) each Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of U.S. federal withholding tax with respect to any payments hereunder or under any other Loan Document shall deliver duly completed and executed copies of whichever of the following is applicable to the Borrower and the Administrative Agent (in such number of signed originals as shall be reasonably requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement:

(i) IRS Form W-8BEN (or any successor thereto) claiming eligibility for benefits of an income tax treaty to which the United States is a party;

(ii) IRS Form W-8ECI (or any successor thereto) claiming that specified payments (as applicable) under this Agreement or any other Loan Documents (as applicable) constitute income that is effectively connected with such Foreign Lender’s conduct of a trade or business in the United States;

(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Sections 881(c) or 871(h) of the Code (the “ Portfolio Interest Exemption ”), (x) a certificate, substantially in the form of Exhibit D-1 , D-2 , D-3 or D-4 , as applicable (a “ Tax Status Certificate ”), to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower, within the meaning of Section 881(c)(3)(B) of the Code or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and that no interest to be received is effectively connected with a U.S. trade or business and (y) IRS Form W-8BEN (or any successor thereto);

(iv) where such Lender is a partnership (for U.S. federal income tax purposes) or otherwise not a beneficial owner ( e. g., where such Lender has sold a participation), IRS Form W-8IMY (or any successor thereto) and all required supporting documentation (including, where one or more of the underlying beneficial owner(s) is claiming the benefits of the Portfolio Interest Exemption, a Tax Status Certificate of such beneficial owner(s) ( provided that, if the Foreign Lender is a partnership and not a participating Lender, the Tax Status Certificate from the beneficial owner(s) may be provided by the Foreign Lender

on behalf of the beneficial owner(s)); or

(v) any other form prescribed by applicable laws as a basis for claiming exemption from or a reduction in United States federal withholding tax together with such supplementary documentation as may be prescribed by applicable Requirements of Laws to permit the Borrower or the Agent to determine the withholding or deduction required to be made; and

Notwithstanding anything to the contrary in this Section 3.10(f) , no Lender shall be required to deliver any documentation pursuant to this Section 3.10(f) that it is not legally eligible to provide.

(g) FATCA . If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA, such Lender shall use commercially reasonable efforts to deliver to the Borrower and the Administrative Agent, at the time or times prescribed by applicable law and otherwise at such times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary to comply with FATCA obligations and to avoid the imposition of withholding obligations under FATCA with respect to such Lender. Solely for purposes of this subsection (g), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(h) Refunds . If any Agent or Lender determines, in its good faith discretion, that it has received a refund of any Indemnified Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.10 , it shall pay to the Borrower an amount, net of all expenses of such Agent or Lender (including any Taxes), as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund) as would leave the Loan Party in the same economic position as it would have been if no such Indemnified Taxes or Other Taxes had been imposed; provided that the Borrower, upon the request of such Agent or Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or Lender in the event such Agent or Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection (h), in no event will the Agent or Lender be required to pay any amount to a Loan Party pursuant to this subsection (h) the payment of which would place the Agent or Lender in a less favorable net after-Tax position than the Agent or Lender would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any Agent or Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.

(i) Survival . The obligations of the Loan Parties under this Section 3.10 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights

by, or the replacement of, a Lender, the termination of the Commitments or this Agreement and the repayment, satisfaction or discharge of all obligations under any Loan Document.

3.11 Indemnity . The Borrower agrees to indemnify each Lender and to hold each Lender harmless from any loss, cost or expense that such Lender may sustain or incur as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of LIBOR Rate Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from LIBOR Rate Loans after the Borrower has given a notice thereof in accordance with the provisions of this Agreement, (c) the making of a prepayment of, or a conversion from, LIBOR Rate Loans on a day that is not the last day of an Interest Period with respect thereto or (d) any other default by the Borrower in the repayment of such LIBOR Rate Loans when and as required pursuant to the terms of this Agreement; provided , that the Borrower’s indemnification obligations shall not include any Lender’s loss of profit. A certificate setting forth in reasonable detail the basis for requesting such amount actually incurred as to any amounts payable pursuant to this Section 3.11 submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. This covenant shall survive the termination of this Agreement and the payment of the Term Loans and all other amounts payable hereunder.

3.12 Change of Lending Office . Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 3.9 or 3.10(a) , (b) or (c) with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Term Loans affected by such event with the object of avoiding the consequences of such event; provided , that such designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory disadvantage or any unreimbursed costs or expenses; and provided , further, that nothing in this Section shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 3.9 or 3.10(a) , (b) or (c) . The Borrower hereby agrees to pay all reasonable, documented costs and expenses incurred by any Lender in connection with any such designation.

3.13 Replacement of Lenders . The Borrower shall be permitted to replace any Lender that (a) requests reimbursement for amounts owing pursuant to Section 3.9 or 3.10(a) (such Lender, an “ Affected Lender ”), (b) is a Non-Consenting Lender or (c) is a Defaulting Lender, with a replacement financial institution or other entity; provided that (i) such replacement does not conflict with any Requirement of Law, (ii) in the case of an Affected Lender, prior to any such replacement, such Lender shall have taken no action under Section 3.12 that have actually eliminated the continued need for payment of amounts owing pursuant to Section 3.9 or 3.10(a) , (iii) the replacement financial institution or entity shall purchase, at par, all Loans and other amounts owing to such replaced Lender on or prior to the date of replacement, (iv) the Borrower shall be liable to such replaced Lender under Section 3.11 if any LIBOR Rate Loan owing to such replaced Lender shall be purchased other than on the last day of the Interest Period relating thereto, (v) the replacement financial institution or entity shall be an Eligible Assignee, (vi) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 10.6 ( provided that, except in the case of clause (c) hereof, the Borrower shall be obligated to pay the registration and processing fee referred to

therein), (vii) until such time as such replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required pursuant to Section 3.9 or 3.10(a) , as the case may be, (viii) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender, and (ix) in the case of a Non-Consenting Lender, (A) the replacement financial institution or entity shall consent at the time of such assignment to each matter in respect of which the replaced Lender was a Non-Consenting Lender and (B) to the extent applicable, the Borrower shall pay any amounts due to such Non-Consenting Lender pursuant to Section 3.2(e) .

3.14 Evidence of Debt .

(a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing Indebtedness of the Borrower to such Lender resulting from each Term Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

(b) The Administrative Agent, on behalf of the Borrower (or, in the case of an assignment not required to be recorded in the Register in accordance with the provisions of Section 10.6(d) , the assigning Lender, acting solely for this purpose as a non-fiduciary agent of the Borrower), shall maintain the Register (or, in the case of an assignment not required to be recorded in the Register in accordance with the provisions of Section 10.6(d) , a Related Party Register), in each case pursuant to Section 10.6(d) , and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Term Loan made hereunder and any Note evidencing such Term Loan, the Type of such Term Loan and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) both the amount of any sum received by the Administrative Agent (or, in the case of an assignment not required to be recorded in the Register in accordance with the provisions of Section 10.6(d) , the assigning Lender) hereunder from the Borrower and each Lender’s share thereof.

(c) The entries made in the Register and the accounts of each Lender maintained pursuant to Section 3.14(a) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded (absent manifest error); provided , however, that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Term Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.

(d) The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the Borrower will execute and deliver to such Lender a promissory note of the Borrower evidencing any Term Loans, of such Lender, substantially in the form of Exhibit E , with appropriate insertions as to date and principal amount.

3.15 Illegality . Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Lender to make or maintain LIBOR Rate Loans as contemplated by this Agreement, (a) the commitment of such Lender hereunder to make LIBOR Rate Loans, continue

LIBOR Rate Loans as such and convert ABR Loans to LIBOR Rate Loans shall forthwith be canceled and (b) such Lender’s Term Loans then outstanding as LIBOR Rate Loans, if any, shall be converted automatically to ABR Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a LIBOR Rate Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.11 .

3.16 Extension Offers .

(a) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “ Extension Offer ”) made from time to time by the Borrower to all Lenders, on a pro rata basis (based on the aggregate outstanding principal amount of the Term Loans) and on the same terms to each such Lender, the Borrower may from time to time extend the maturity date and availability period of the Term Loans, and otherwise modify the terms of the Term Loans, pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate or fees payable in respect of the Loans (and related outstandings) (each, an “ Extension ”, and each group of Term Loans as so extended, as well as the original Term Loans (in each case not so extended), being a “tranche”; any Extension Loans shall constitute a separate tranche of Term Loans from the tranche of Term Loans from which such Term Loans were converted, so long as the following terms are satisfied: (i) no Default or Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders and no Event of Default shall exist immediately after the effectiveness of any Extension Loan, (ii) except as to interest rates, fees, final maturity date and premium, which shall, subject to immediately succeeding clauses (iii), (iv) and (v), be determined by the Borrower and set forth in the relevant Extension Offer), the Term Loans of any Lender extended pursuant to any Extension (“ Extension Loans ”) shall have the same terms (save for any terms that apply solely after the latest maturity date of the Term Loans hereunder prior to giving effect to such Extension) as the tranche of Term Loans subject to such Extension Offer, (iii) the final maturity date of any Extension Loans shall be no earlier than the then latest maturity date of Term Loans hereunder, (iv) the Weighted Average to Life Maturity of the Extension Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans extended thereby, (v) the amortization schedule applicable to the Extension Loans pursuant to Section 2.3 for the periods prior to the maturity date of the Term Loans hereunder shall not be increased, (vi) any Extension Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder, in each case as specified in the respective Extension Offer, (vii) if the aggregate principal amount of Term Loans (calculated on the face amount thereof), in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term Loans offered to be extended by the Borrower pursuant to such Extension Offer, then the Term Loans of such Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Extension Offer, (viii) all documentation in respect of such Extension shall be consistent with the foregoing, and (ix) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower. For the avoidance of doubt, no Lender shall be required to participate in any Extension.

(b) With respect to all Extensions consummated by the Borrower pursuant to this Section 3.16 , the Extension Offer shall specify a minimum aggregate principal amount of Term Loans to be tendered (which shall not be less than $50,000,000) as a condition to the consummation of such Extension Offer (a “ Minimum Extension Condition ”). The Administrative Agent and the Lenders hereby consent to the Extensions and the other transactions contemplated by this Section 3.16 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extension Loans on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 3.16 .

(c) No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Term Loans (or a portion thereof). The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to establish new tranches or sub-tranches in respect of the Term Loan so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrowers in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 3.16 .

(d) In connection with any Extension, the Borrower shall provide the Administrative Agent at least five (5) Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 3.16 .

(e) The conversion of any Term Loans hereunder into Extension Loans in accordance with this Section 3.16 shall not constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.

SECTION 4. REPRESENTATIONS AND WARRANTIES

To induce the Agents and the Lenders to enter into this Agreement and to make the Term Loans, the Borrower hereby represents and warrants on the Closing Date that:

4.1 Financial Condition . The (i) (x) GAAP audited consolidated balance sheet and related statements of income, stockholders’ equity and cash flows of the Borrower and (y) GAAP audited consolidated balance sheet and related statements of income, members’ equity and cash flows of the Target, in each case, for each of the fiscal years ended December 31, 2010, 2011 and 2012, (ii) as soon as available and in any event within 45 days after the end of each fiscal quarter of the 2013 fiscal year ending at least 45 days prior to the Closing Date, unaudited consolidated balance sheets and related statements of income and cash flows of each of the Borrower and the Target for such fiscal quarter, for the period elapsed from the beginning of the 2013 fiscal year to the end of such fiscal quarter and for the comparable periods of the preceding fiscal year (with respect to which independent auditors shall have performed an SAS 100 review), and (iii) forecasts of the financial performance of the Borrower and its Subsidiaries

(giving pro forma effect to the Transactions) on an annual basis, through December 31, 2017, present fairly in all material respects the consolidated financial condition of the Borrower as at such time periods, and the consolidated results of its operations and its cash flows for such fiscal periods. The forecasts referenced in clause (iii) in the immediately preceding sentence have been prepared in good faith based on the assumptions set forth therein, which the Borrower believed to be reasonable assumptions at the time such forecasts were prepared, and present fairly in all material respects on a Pro Forma Basis the estimated financial position of the Borrower and its consolidated Subsidiaries as at and for each of the dates and periods set forth above, assuming that the events specified in the preceding sentence had actually occurred at such date or beginning of such period.

4.2 No Change . Since December 31, 2012, there has been no development or event that has had or could reasonably be expected to have a Material Adverse Effect.

4.3 Corporate Existence; Compliance with Law . Except as permitted under Section 7.3 , each Group Member (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, to the extent such concept is recognized in its jurisdiction of incorporation, (b) has the organizational power and authority and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a foreign entity and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, (d) is in compliance with the terms of its Organizational Documents and (e) is in compliance with the terms of all Requirements of Law (including Health Care Laws) and all Governmental Authorizations, except in case of clauses (b), (c) and (e), to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.

4.4 Power; Authorization; Enforceable Obligations . (a) Each Loan Party has the organizational power and authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to obtain extensions of credit hereunder. (b) Each Loan Party has taken all necessary organizational and other action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, to authorize the extensions of credit on the terms and conditions of this Agreement. (c) Subject to the Certain Funds Paragraph, no consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the Transactions or with the execution, delivery, performance, validity or enforceability of this Agreement or any of the Loan Documents, except those actions specified on Schedule 6.15 and except the filings referred to in Section 4.18 which filings have been, or will be, obtained or made and are in full force and effect on or before the Closing Date, and all applicable waiting periods shall have expired, in each case without any action being taken by any Governmental Authority that would restrain, prevent or otherwise impose adverse conditions on the Transactions, other than any such consent, authorizations, filings and notices the absence of which could not reasonably be expected to have a Material Adverse Effect. (d) Each Loan Document has been duly executed and delivered on behalf of each Loan Party party thereto. (e) This Agreement constitutes, and each other Loan Document upon execution will constitute, a legal, valid and binding obligation of each Loan Party party thereto, enforceable against each such Loan Party in accordance with its terms, except as

enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (whether enforcement is sought by proceedings in equity or at law).

4.5 No Legal Bar . The execution, delivery and performance of this Agreement and the other Loan Documents, the borrowings hereunder and the use of the proceeds thereof will not violate (a) the Organizational Documents of any Loan Party, (b) any Requirement of Law (including any Health Care Laws), Governmental Authorization or any Contractual Obligation of any Group Member and (c) will not result in, or require, the creation or imposition of any Lien on any Group Member’s respective properties or revenues pursuant to its Organizational Documents, any Requirement of Law or any such Contractual Obligation (other than the Liens created by the Security Documents and the Liens permitted under Sections 7.2(f) and (n) ), except for any violation set forth in clause (b) or (c) which could not reasonably be expected to have a Material Adverse Effect.

4.6 Litigation and Adverse Proceedings . No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower, threatened in writing by or against any Group Member or against any of their respective properties or revenues (a) with respect to any of the Loan Documents, which would in any respect impair the enforceability of the Loan Documents, taken as a whole or (b) that could reasonably be expected to have a Material Adverse Effect, except litigation disclosed on the Borrower’s SEC filings prior to the Closing Date and set forth on Schedule XIV to the Perfection Certificate.

4.7 Ownership of Property; Liens .

(a) Each Group Member has title in fee simple (or local law equivalent) to all of its owned real property, a valid leasehold interest in all its leased real property, and good title to, or a valid leasehold interest in, license to, or right to use, all its other tangible Property material to its business, in all material respects, and no such Property is subject to any Lien except as permitted by Section 7.2 , except, in each case, where the failure to have such title or other interest could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(b) Set forth on Schedule 4.7(b) hereto is a complete and accurate list of all Real Property owned in fee by any Loan Party (together with any fee owned property acquired directly or indirectly by any Loan Party thereof after the Closing Date, the “ Owned Properties ”), showing as of the date hereof, and as of each other date such Schedule 4.7(b) is required to be supplemented hereunder, the street address, state, record owner and gross book value thereof. Each such Loan Party has good, marketable and insurable fee simple title to such Real Property, free and clear of all Liens, other than Permitted Liens.

(c) Set forth on Schedule 4.7(c) is a complete and accurate list of all leases of real property under which any Loan Party is the lessee (the “ Leased Properties ”), showing as of the date hereof the street address, county or other relevant jurisdiction, state, lessor, and lessee thereof. Except as set forth on Schedule 4.7(c) , the Leased Property leases are valid, binding, enforceable and in full force and effect, and the Borrower or other applicable Loan Party holds a

valid and existing leasehold interest under each such lease, subject to proper authorization and execution of such lease by the other party and the application of any bankruptcy or creditor’s rights laws.

4.8 Intellectual Property . All Intellectual Property owned by the Group Members is owned free and clear of all Liens other than (i) as permitted by Section 7.2 , Section 7.4 or the Security Documents, (ii) licenses granted in the ordinary course of business (including, without limitation, in connection with the sale or provision by Group Members of products or services or the grant of rights to licensees to manufacture, use, sell, offer to sell or import products or to use, sell or offer to sell processes or services) in existence as of the date hereof and any amendment, renewal or extension thereof or thereto, and (iii) as could not reasonably be expected to have a Material Adverse Effect. Except as could not reasonably be expected to have a Material Adverse Effect: (a) to the knowledge of the Borrower, the conduct of, and the use of Intellectual Property in, the business of the Group Members as currently conducted (including the products and services of the Group Members) does not infringe, misappropriate, or otherwise violate the Intellectual Property rights of any other Person; (b) there is no such outstanding claim asserted in writing (including in the form of offers or invitations to obtain a license), threatened in writing or pending before any Governmental Authority against any Group Member; (c) to the knowledge of the Borrower, no Person is infringing, misappropriating, or otherwise violating any Intellectual Property of any Group Member, and there has been no such claim asserted or threatened against any third party by any Group Member or any Loan Party or any other Person, except claims disclosed on the Borrower’s SEC filings prior to the Closing Date and set forth on Schedule XIV to the Perfection Certificate; (d) each Group Member has taken all formal or procedural actions (including payment of fees) necessary to maintain the Intellectual Property owned by it; and (e) each Group Member has complied in all material respects with all applicable laws, as well as its own rules, policies, and procedures, relating to privacy, data protection, and the collection and use of personal information collected, used, or held for use by such Group Member.

4.9 Taxes . Each Loan Party has filed or caused to be filed all federal, state and other material tax returns that are required to be filed by it and all such tax returns are true, correct, and complete in all material respects; each Loan Party has paid all federal, state and other taxes and any assessments made in writing against it or any of its property by any Governmental Authority (other than any which are not yet due or the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the relevant Loan Party); no tax Lien has been filed (other than for taxes not yet due or the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the relevant Loan Party); and no Loan Party is aware of any proposed or pending tax assessments, deficiencies or audits with respect to such Loan Party that could be reasonably expected to, individually or in the aggregate, result in a Material Adverse Effect.

4.10 Federal Reserve Regulations . No Group Member is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock. No part of the proceeds of any extension of credit under this Agreement will be used for any purpose that violates or would be inconsistent with the

provisions of Regulation T, U or X of the Board. If requested by any Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation U.

4.11 Labor Matters . Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against any Group Member pending or, to the knowledge of the Borrower, threatened; (b) hours worked by and payment made to employees of each Group Member have not been in violation of the Fair Labor Standards Act, as amended, or any other applicable Requirement of Law dealing with such matters; and (c) all payments due from any Group Member on account of employee health and welfare insurance or other similar employee taxes have been paid or accrued as a liability on the books of the relevant Group Member.

4.12 ERISA .

(a) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan, and each Plan is in compliance in all respects with the applicable provisions of ERISA and the Code, except for such failures to comply, in the aggregate for all such failures, that could not reasonably be expected to have a Material Adverse Effect. Schedule SB, (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan (if any), copies of which have been filed with the United States Department of Labor and furnished to the Lenders, is complete and accurate and fairly presents the funding status of such Plan, except as could not reasonably be expected to have a Material Adverse Effect, and since the date of such Schedule SB there has been no material adverse change in such funding status. The present value of all accrued benefits under each Single Employer Plan (based on those assumptions used to fund such Plans), if any, did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits by more than $25,000,000. Neither any Group Member nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan. Neither any Group Member nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in Reorganization, Insolvent or has been determined to be in “endangered” or “critical” status within the meaning of Section 432 of the Code or Section 305 of ERISA, and no such Multiemployer Plan is reasonably expected to be in Reorganization, Insolvent or in “endangered” or “critical” status.

(b) All Non-U.S. Pension Plans have been established, operated, administered and maintained in compliance with all laws, regulations and orders applicable thereto except for such failures to comply, in the aggregate for all such failures, that could not reasonably be expected to have a Material Adverse Effect. All premiums, contributions, and any other amounts required by applicable Non-U.S. Pension Plan documents or applicable laws have been paid or accrued as required, except for premiums, contributions and amounts that, in the aggregate for all such obligations, could not reasonably be expected to have a Material Adverse Effect.

4.13 Investment Company Act; Other Regulations . No Loan Party is an “investment company,” or a company “controlled” by an “investment company,” within the

meaning of the Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any Requirement of Law (other than Regulation X of the Board, as amended) that limits its ability to incur Indebtedness.

4.14 Capital Stock and Ownership Interests of Subsidiaries . Schedule 4.14 sets forth the name and jurisdiction of formation or incorporation of each Group Member and, as to each such Group Member other than the Borrower, states the authorized and issued capitalization of such Group Member, the beneficial and record owners thereof and the percentage of each class of Capital Stock owned by any Loan Party. Except as listed on Schedule 4.14 , as of the Closing Date, no Group Member owns any interests in any joint venture, partnership or similar arrangements with any Person.

4.15 Use of Proceeds . The proceeds of the Term Loans shall be used to finance a portion of the Merger consideration and to pay fees and expenses related to the Transactions.

4.16 Environmental Matters . Except as, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect:

(a) the facilities and properties currently or formerly owned, leased or operated by any Group Member (the “ Group Member Properties ”) do not contain any Materials of Environmental Concern in amounts or concentrations or under circumstances that constitute or constituted a violation of, or could reasonably be expected to give rise to liability under, any Environmental Law;

(b) no Group Member has received nor is aware of any claim, demand, notice of violation, noncompliance, or actual or potential liability with respect to any Environmental Laws with regard to any of the Properties or relating to any Group Member, nor does the Borrower have knowledge or reason to believe that any such claim, demand or notice will be received or is being threatened;

(c) Materials of Environmental Concern have not been transported or disposed of from the Properties by any Group Member or, to the Borrower’s knowledge, by any other person in violation of, or in a manner or to a location that could reasonably be expected to give rise to liability under, any Environmental Law, nor have any Materials of Environmental Concern been generated, treated, stored or disposed of at, on or under any of the Properties in violation of, or in a manner that could reasonably be expected to give rise to liability under, any applicable Environmental Law;

(d) no judicial proceeding or governmental or administrative action is pending or, to the knowledge of the Borrower, threatened, under any Environmental Law to which any Group Member is or, to the Borrower’s knowledge, will be named as a party, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or relating to any Group Member;

(e) there has been no Release or threat of Release of Materials of Environmental Concern at, on, under or from the Properties, or arising from or related to the operations of any Group Member in connection with the Properties or otherwise, in

violation of or in amounts or in a manner that could reasonably be expected to give rise to liability under Environmental Laws;

(f) each Group Member, the Properties and all operations at the Properties are in compliance, and, to the Borrower’s knowledge, have been in compliance, with all applicable Environmental Laws; and

(g) no Group Member has assumed any liability of any other Person under Environmental Laws, nor is any Group Member paying for or conducting , in whole or in part, any response or other corrective action to address any Materials of Environmental Concern at any location pursuant to any Environmental Law.

4.17 Accuracy of Information, etc. No written statement contained in any document, certificate or statement furnished by any Loan Party to the Administrative Agent or the Lenders, or any of them, for use in connection with the transactions contemplated by this Agreement or the other Loan Documents (including the Confidential Information Memorandum), when taken as a whole, contained as of the date such statement, information, document or certificate was furnished, any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained herein or therein not misleading in the light of the circumstances under which such statements were made; provided , however, that with respect to projections, the Borrower represents only that the same were prepared in good faith and are based upon assumptions believed by management of the Borrower to be reasonable at the time made, it being recognized by the Lenders that such financial information as it relates to future events is not to be viewed as fact, is by its nature inherently uncertain and that actual results during the period or periods covered by such financial information may differ from the projected results set forth therein by a material amount; it being understood that for purposes of this Section 4.17 such information shall not include information of a general economic or industry-specific nature contained in the materials referenced above.

4.18 Security Documents . The Guarantee and Collateral Agreement and each other Security Document is, or upon execution, will be, effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid first priority security interest in the Collateral described therein (to the extent a security interest can be created therein under the Uniform Commercial Code, where applicable. In the case of the Pledged Equity Interests described in the Guarantee and Collateral Agreement, when stock or interest certificates representing such Pledged Equity Interests (along with properly completed stock or interest powers and, where applicable, stock transfer forms, in each case, endorsing the Pledged Equity Interest and executed by the owner of such shares or interests) are delivered to the Collateral Agent, and in the case of the other Collateral described in the Guarantee and Collateral Agreement or any other Security Document (other than deposit accounts), when financing statements and other filings specified on Schedule 4.18 in appropriate form are filed in the offices specified on Schedule 4.18(a) , the Collateral Agent, for the benefit of the Secured Parties, shall, under New York law, have a fully perfected first priority Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral to the extent perfection can be obtained by filing a UCC financing statement or subject to any customary reservations and qualifications contained in customary legal opinions rendered under the laws of the applicable jurisdiction, perfection can be obtained by the appropriate filing under such other applicable law,

as security for the Obligations, in each case prior and superior in right to any other Person (except Liens permitted by Section 7.2 ) subject in the case of the Intellectual Property that is the subject of any application or registration in the United States Patent and Trademark Office or the United States Copyright Office (other than intent to use Trademark applications), to the recordation of appropriate evidence of the Collateral Agent’s Lien in the United States Patent and Trademark Office and/or United States Copyright Office, as appropriate, and the taking of actions and making of filings necessary under the applicable Requirements of Law to obtain the equivalent of perfection. In the case of Collateral that consists of deposit accounts, securities accounts and/or commodity accounts, each of which are listed in Schedules I and II of the Perfection Certificate with appropriate identifying information, when a Control Agreement is executed and delivered by all parties thereto with respect to such accounts, the Collateral Agent, for the benefit of the Secured Parties, shall have a fully perfected first priority Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations, prior and superior to any other Person except as provided under the applicable Control Agreement with respect to the financial institution party thereto.

4.19 Solvency . The Borrower and its Subsidiaries (on a consolidated basis), after giving effect to the Transactions and the incurrence of all Indebtedness and obligations being incurred in connection herewith and therewith, will be Solvent.

4.20 Senior Indebtedness . The Obligations constitute “senior debt,” “senior indebtedness,” “designated senior debt,” “guarantor senior debt” or “senior secured financing” (or any comparable term) of each Loan Party under and as defined in any documentation relating to Subordinated Indebtedness.

4.21 No Default . No Default or Event of Default is continuing or has or could reasonably be expected to result from the making of the Term Loans or the entry into, performance of, or any transaction contemplated by, any Loan Document .

4.22 Anti-Terrorism Laws .

(a) None of the Loan Parties, nor any Subsidiary of the Borrower or any director, officer or employee thereof, nor, to the Borrower’s knowledge, any agent or representative of the Borrower acting or benefiting in any capacity in connection with the Term Loans or other transactions hereunder or any of its Subsidiaries, is, or is owned or controlled by any of the following (each a “ Blocked Person ”):

(i) a Person that is currently subject to any U.S. sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department (“ OFAC ”);

(ii) a Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224;

(iii) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;

(iv) a Person that is located, organized or resident in a country or territory that is the subject of U.S. sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan and Syria);

(v) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224;

(vi) a Person that is named as a “specially designated national” on the most current list published by the United States Treasury Department’s Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list; or

(vii) a Person who is affiliated or associated with a person listed above.

(b) No Loan Party, or, to the knowledge of any Loan Party, any of its Subsidiaries, is in violation of any Anti-Terrorism Law or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

(c) No Loan Party, or to the knowledge of any Loan Party, any of its agents acting in any capacity in connection with the Term Loans or other transactions hereunder (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Blocked Person or (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224.

(d) The Borrower will not, directly or indirectly, use the proceeds of the Term Loans or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person for the purpose of funding or financing the activities of any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of any U.S. sanctions administered by OFAC, or in any other manner that will result in a violation of Anti-Terrorism Laws by any Person.

(e) To the extent applicable, each of the Borrower and its Subsidiaries is in compliance, in all material respects, with (a) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (b) the Patriot Act. No part of the proceeds of the Term Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended (“ FCPA ”) and the Borrower and its Subsidiaries and affiliates have conducted their businesses in compliance in all material respects with the FCPA and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with the FCPA in all material respects and this Section 4.22 .

4.23 Insurance . Schedule XV of the Perfection Certificate sets forth a true,

complete and correct description of all material property and general liability insurance maintained by or on behalf of each Loan Party as of the Closing Date. As of such date, such insurance is in full force and effect.

SECTION 5. CONDITIONS PRECEDENT

5.1 Conditions to Initial Extension of Credit . The agreement of each Lender to make the initial extension of credit requested to be made by it is subject to the satisfaction or waiver, prior to or concurrently with the making of such extension of credit on the Closing Date of the following conditions precedent:

(a) Loan Documents . The Administrative Agent shall have received (i) this Agreement, executed and delivered by each of the Administrative Agent, the Collateral Agent, the Borrower and each other Loan Party that is a party hereto and each Person that is a Lender as of the Closing Date, (ii) the Guarantee and Collateral Agreement, executed and delivered by the Borrower and each other Loan Party that is a party thereto, (iii) a Perfection Certificate executed and delivered by the Borrower, (iv) a Note executed by the Borrower in favor of each Lender that has requested a Note and (v) the Engagement Letter, executed and delivered by the Borrower and the Lead Arranger.

(b) Transactions . The following transactions shall have been or shall concurrently be consummated, in each case on terms and conditions reasonably satisfactory to each Agent and each Lender:

(i) the Merger shall be consummated prior to the initial funding of the Term Loans in accordance with the Merger Documentation;

(ii) the Administrative Agent shall have received reasonably satisfactory evidence that Merger Sub shall have merged with and into the Borrower; and

(iii) the Refinancing Transaction shall have been consummated in full to the reasonable satisfaction of the Lenders with all Liens in favor of the existing lenders thereunder being unconditionally released; the Administrative Agent shall have received executed “pay-off” letters in form and substance reasonably satisfactory to the Administrative Agent with respect to the Existing Credit Agreements and the Administrative Agent shall have received such UCC termination statements together with any other release documentation reasonably requested by the Administrative Agent; provided that, to the extent the Indebtedness outstanding pursuant to the Fifth Street Credit Agreement is set forth on Schedule 7.1 , the Administrative Agent shall receive written confirmation of the repayment in full of all such Indebtedness from the lenders thereunder no later than 12:00 Noon, New York City time, on April 29, 2013.

(c) Financial Statements . The Lead Arranger and the Administrative Agent shall have received prior to the Closing Date the financial statements described in Section 4.1 .

(d) Lien Searches . The Administrative Agent shall have received the results of a recent lien search in each of the jurisdictions where the Loan Parties are located, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.2 or discharged on or prior to the Closing Date pursuant to documentation reasonably satisfactory to the Administrative Agent.

(e) Fees . The Borrower and its Subsidiaries shall have paid all fees then payable under, the Fee Letter. The Lenders, the Lead Arranger and the Agents shall have received payment for all reasonable and documented costs and expenses required to be paid (including without limitation reasonable fees and disbursements of counsel) on or prior to such date under the terms of the Loan Documents to the extent invoiced one Business Day prior to the Closing Date.

(f) Closing Certificates . The Administrative Agent shall have received (i) a certificate of each Loan Party, dated the Closing Date, certifying (A) that attached thereto is a true and complete copy of each Organizational Document of such Loan Party certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its organization, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrower, the incurrence of the Term Loans hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect as of the Closing Date, (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party (together with a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate required by this clause (i)) and (D) a certificate as to the good standing of each Loan Party (in so-called “long-form” if available) as of a recent date, from the Secretary of State of the state of its organization and (ii) a certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, confirming compliance with the conditions precedent set forth in this Section 5.1(f) .

(g) Legal Opinions . The Administrative Agent shall have received the legal opinion of Morgan, Lewis & Bockius LLP, New York counsel to the Borrower and its Subsidiaries, in form reasonably acceptable to the Administrative Agent and addressed to the Agents and the Lenders.

(h) Pledged Equity Interests; Stock Powers; Pledged Notes . The Collateral Agent shall have received (i) the certificates representing the shares of Capital Stock pledged pursuant to the Guarantee and Collateral Agreement, if applicable, together with an undated stock power or, if applicable, blank stock transfer, for each such certificate executed in blank by a duly authorized officer of the pledgor thereof and (ii) each promissory note (if any) pledged to the Administrative Agent pursuant to the Guarantee and Collateral Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.

(i) Filings, Registrations and Recordings . Subject in each case to the Certain

Funds Paragraph, each document (including any Uniform Commercial Code financing statement and any Intellectual Property Security Agreement, and other than except those documents specified on Schedule 6.15 ) required by the Guarantee and Collateral Agreement or under law or reasonably requested by the Collateral Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 7.2 ), shall be in proper form for filing, registration or recordation; notwithstanding the foregoing, in no event shall any filing, registration or recordation outside the United States be required to perfect a Lien against a Domestic Subsidiary’s Collateral that is located outside the United States.

(j) Solvency Certificate . The Administrative Agent shall have received a solvency certificate in the form of Exhibit J , executed as of the Closing Date by the chief financial officer of the Borrower.

(k) No Legal Bar . The borrowings and the use of the proceeds thereof on the Closing Date do not violate (a) the Organizational Documents of any Loan Party, (b) any Requirement of Law (including any Health Care Laws), Governmental Authorization or any Contractual Obligation of any Group Member and (c) will not result in, or require, the creation or imposition of any Lien on any Group Member’s respective properties or revenues pursuant to its Organizational Documents, any Requirement of Law or any such Contractual Obligation (other than the Liens created by the Security Documents and the Liens permitted under Sections 7.2(f) and (n) ), except for any violation set forth in clause (b) or (c) which could not reasonably be expected to have a Material Adverse Effect.

(l) Patriot Act, Etc . The Lenders shall have received, no later than 3 Business Days in advance of the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, as reasonably requested in writing by the Administrative Agent at least 10 days prior to the Closing Date.

(m) Closing Date Material Adverse Effect . Except as set forth in the disclosure schedules accompanying the Merger Agreement ( provided that, any information set forth in any such schedule or incorporated in any section of the Merger Agreement shall be considered to have been set forth in each other schedule to the Merger Agreement and shall be deemed to modify this clause (m), in each case, if the relevance of the disclosure set forth in such schedule to another schedule or this clause (m) is reasonably apparent on the face of such disclosure schedules to the Merger Agreement), since December 31, 2012, there shall not have occurred a Closing Date Material Adverse Effect.

(n) Representations and Warranties . Each of the representations and warranties made by any Loan Party in or pursuant to Sections 4.3(a) and (b) , 4.4(a) , (b) and (d) , 4.10 , 4.13 , 4.18 , 4.19 and 4.22 shall be true and correct in all material respects (or in all respects where qualified by materiality or Material Adverse Effect) on and as of

such date as if made on and as of such date (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects (or in all respects where qualified by materiality or Material Adverse Effect) on and as of such specific date).

(o) Merger Agreement Representations and Warranties . Except as set forth in the schedules to the Merger Agreement, each of the representations and warranties made by the Target in the Merger Agreement that are material to the interests of the Lenders shall be true and correct as of such date as if made on and as of such date, but only to the extent the Borrower or one of its Subsidiaries has the right to terminate its obligations under the Merger Agreement or no longer has any obligation to close the Merger as a result of a breach or inaccuracy of any such representation or warranty in the Merger Agreement.

(p) Notices . The Borrower shall have delivered to the Administrative Agent the notice of borrowing for such extension of credit in accordance with this Agreement.

In determining the satisfaction of the conditions specified in this Section 5.1 , (x) to the extent any item is required to be satisfactory to any Lender, such item shall be deemed satisfactory to each Lender which has not notified the Administrative Agent in writing prior to the occurrence of the Closing Date that the respective item or matter does not meet its satisfaction and (y) in determining whether any Lender is aware of any fact, condition or event that has occurred and which could reasonably be expected to have a Material Adverse Effect, each Lender which has not notified the Administrative Agent in writing prior to the occurrence of the Closing Date of such fact, condition or event shall be deemed not to be aware of any such fact, condition or event on the Closing Date. Upon the Administrative Agent’s good faith determination that the conditions specified in this Section 5.1 have been met (after giving effect to the preceding sentence), then the Closing Date shall have been deemed to have occurred, regardless of any subsequent determination that one or more of the conditions thereto had not been met (although the occurrence of the Closing Date shall not release Borrower or any Loan Party (or any of their respective Affiliates) from any liability for failure to satisfy one or more of the applicable conditions contained in this Article V ).

Notwithstanding anything to the contrary contained above in this Section 5.1 , to the extent any Collateral is not provided (or any related required actions under this Section 5.1 are not taken) on the Closing Date after the Loan Parties’ use of commercially reasonable efforts to do so, the delivery of such Collateral (and the taking of the related required actions) (including, without limitation, delivery of insurance certificates with respect thereto) shall not constitute a condition precedent to the extensions of credit under this Agreement on the Closing Date but shall instead be required to be delivered (or taken) after the Closing Date in accordance with the requirements of Section 6.9 , but in no event later than 90 days after the Closing Date (as such period may be extended by the Administrative Agent in its reasonable discretion), except that (A) with respect to the perfection of security interests in UCC Filing Collateral, each Loan Party shall be obligated to deliver or cause to be delivered necessary Uniform Commercial Code financing statements to the Collateral Agent in proper form for filing and to irrevocably authorize and to cause the applicable Loan Parties to irrevocably authorize, the Collateral Agent to file necessary Uniform Commercial Code financing statements, (B) with respect to perfection

of security interests in Stock Certificates representing Capital Stock, each such Loan Party shall be obligated to deliver to the Collateral Agent Stock Certificates together with undated stock powers in blank and (C) with respect to the perfection of security interests in Intellectual Property, each Loan Party shall be obligated to deliver a short form security agreement for filing with the United States Patent and Trademark Office and the United States Copyright Office (which need only include factual information with respect to such Intellectual Property to the extent such information is provided by the Sellers (as defined in the Merger Agreement) under the Merger Agreement) (this paragraph, the “ Certain Funds Paragraph ”).

5.2 Conditions to Each Incremental Term Loan . The agreement of each Incremental Lender to make any Incremental Term Loan is subject to the satisfaction of the following conditions precedent:

(a) Representations and Warranties . Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects where qualified by materiality or Material Adverse Effect) on and as of such date as if made on and as of such date (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects (or in all respects where qualified by materiality or Material Adverse Effect) on and as of such specific date).

(b) No Default . No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.

(c) Notices . The Borrower shall have delivered to the Administrative Agent, the notice of borrowing or application, as the case may be, for such extension of credit in accordance with this Agreement.

(d) No Legal Bar . The borrowing of Incremental Term Loans and the use of the proceeds thereof do not violate (a) the Organizational Documents of any Loan Party, (b) any Requirement of Law (including any Health Care Laws), Governmental Authorization or any Contractual Obligation of any Group Member and (c) will not result in, or require, the creation or imposition of any Lien on any Group Member’s respective properties or revenues pursuant to its Organizational Documents, any Requirement of Law or any such Contractual Obligation (other than the Liens created by the Security Documents and the Liens permitted under Sections 7.2(f) and (n) ), except for any violation set forth in clause (b) or (c) which could not reasonably be expected to have a Material Adverse Effect

SECTION 6. AFFIRMATIVE COVENANTS

The Borrower hereby agrees that, so long as the Commitments remain in effect, or any Term Loan or other amount is owing to any Lender or Agent hereunder (other than unasserted contingent indemnification obligations), the Borrower shall and shall cause each of its Restricted Subsidiaries to:

6.1 Financial Statements . Furnish to the Administrative Agent for prompt

further distribution to each Lender:

(a) as soon as available, but in any event within ninety (90) days after the end of each fiscal year of the Borrower, (i) a copy of the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such year and the related audited consolidated statements of income or operations, stockholders’ equity and cash flows for such year, setting forth in each case in comparative form the figures for the previous year, reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, by PricewaterhouseCoopers LLP or other independent certified public accountants of nationally recognized standing and (ii) a narrative report and management’s discussion and analysis, in customary form, of the financial condition and results of operations of the Borrower for such fiscal year, as compared to amounts for the previous fiscal year;

(b) as soon as available, but in any event on the date forty-five (45) days after the end of each of the first three quarterly periods of each fiscal year of the Borrower, (i) the unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such quarter, the related unaudited consolidated statements of income or operations, for such quarter and cash flows for the portion of the fiscal year through the end of such quarter, setting forth in each case in comparative form the figures for the previous year, certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operation, stockholders’ equity and cash flows of the Borrower in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) and (ii) a narrative report and management’s discussion and analysis, in customary form, of the financial condition and results of operations for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year; and

(c) if the Borrower has been de-listed from the NASDAQ Stock Market, at such time as reasonably determined by the Administrative Agent, after the financial statements of the Borrower and its consolidated Subsidiaries are required to be delivered pursuant to Sections 6.1(a) and (b) , the Borrower shall participate in a conference call to discuss results of operations of the Borrower and its consolidated Subsidiaries with the Lenders.

(d) as soon as they are available after the Closing Date, pro forma consolidated and consolidating balance sheet and related statements of income and cash flows for the Borrower (the “ Pro Forma Financial Statements ”), as well as pro forma Consolidated EBITDA calculation, for the last fiscal year covered by the financial statements referenced by Section 4.1(i) and for the latest twelve-month period ended with the latest period covered by the unaudited financial statements required by Section 4.1(ii), promptly after the historical financial statements for such periods are available, in each case after giving effect to the Transactions. The Pro Forma Financial Statements referenced in the immediately preceding sentence shall be prepared in good faith based on the assumptions set forth therein, which the Borrower believed to be reasonable assumptions at the time such Pro Forma Financial Statements were prepared, and shall present fairly in all material respects on a Pro Forma Basis the estimated financial

position of the Borrower and its consolidated Subsidiaries as at and for each of the dates and periods set forth above, assuming that the events specified in the preceding sentence had actually occurred at such date or beginning of such period.

All such financial statements shall be in accordance with GAAP applied consistently throughout the periods reflected therein and other than as disclosed therein with prior periods.

Documents required to be delivered pursuant to Section 6.1(a) or (b) or Section 6.2(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent) (the “Platform”); provided that, (x) to the extent the Administrative Agent or any Lender so requests, the Borrower shall deliver paper copies of such documents to the Administrative Agent or such Lender until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (y) the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to herein, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

6.2 Certificates; Other Information; ERISA . Furnish to the Administrative Agent and the Collateral Agent (as applicable) (or, in the case of clause (e), to the relevant Lender):

(a) concurrently with the delivery of any financial statements pursuant to Section 6.1 , (i) a certificate of a Responsible Officer of the Borrower stating that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate and setting forth information and calculations necessary for determining the First Lien Secured Leverage Ratio and the Total Leverage Ratio in effect as of the date of such certificate, and (ii) a Perfection Certificate Supplement, together with a certification that all Intellectual Property listed thereon as acquired or created during the period covered thereby is subject to valid, enforceable, perfected first priority Liens (subject to Liens permitted by Section 7.2 ) as required by Section 6.9 and the Security Documents;

(b) as soon as available, and in any event no later than ninety (90) days after the end of each fiscal year of the Borrower, projections for the following fiscal year shown on a quarterly basis (including consolidated statements of projected cash flow and projected income and a description of the underlying assumptions applicable thereto) (collectively, the “ Projections ”), which Projections shall in each case be accompanied by a certificate of a Responsible Officer of the Borrower stating that such Projections are based on estimates, information and assumption believed by such Responsible Officer to be reasonable at the time prepared, it being understood that actual results may vary from

such projections and that such variations may be material;

(c) promptly after the same are sent, copies of all financial statements, reports and material notices that the Borrower sends to the holders of any class of its Indebtedness or public equity securities and, promptly after the same are filed, copies of all annual, regular or periodic and special reports and registration statements which the Loan Parties may file or be required to file with the SEC and not otherwise required to be delivered to the Administrative Agent pursuant hereto, and, promptly, and in any event within ten (10) Business Days, after receipt thereof by the Borrower or any Subsidiary thereof, copies of each written notice or other correspondence received from the SEC or comparable agency in any applicable foreign jurisdiction concerning any investigation or potential investigation or other inquiry by such agency regarding the financial or other operational results of the Borrower or any Subsidiary thereof;

(d) promptly, after any request by the Administrative Agent, any final “management” letter submitted by such accountants to the board of directors of the Borrower in connection with their annual audit;

(e) promptly, such additional financial and other information regarding the business, financial or corporate affairs of the Borrower or any of its Restricted Subsidiaries as the Administrative Agent (for itself or on behalf of any Lender) may from time to time reasonably request, including, without limitation, other information with respect to the Patriot Act; provided , that (other than with respect to the Patriot Act or where waiver of such privilege will not be adverse to the Borrower in the good faith opinion of the Borrower’s counsel) if the disclosure of any requested information would compromise any attorney-client privilege, that has not been or will not be waived, the Borrower shall make available redacted versions of requested documents or portions of documents that are the subject of such attorney-client privilege or, if unable to do so consistent with the preservation of such attorney-client privilege, shall endeavor in good faith otherwise to disclose information responsive to the Administrative Agent’s requests in a manner that will protect such attorney-client privilege;

(f) (i) promptly, and in any event within ten (10) Business Days after any Group Member or any ERISA Affiliate knows or has reason to know that any ERISA Event has occurred, a statement of the Chief Financial Officer of the Group Member describing such ERISA Event and the action, if any, that such Group Member or such ERISA Affiliate has taken and proposes to take with respect thereto and (ii) promptly, and in any event within ten (10) Business Days after the date any records, documents or other information must be furnished to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and information;

(g) promptly, and in any event within ten (10) Business Days after receipt thereof by any Group Member or any ERISA Affiliate, copies of each notice from the PBGC stating its intention to terminate any Plan or to have a trustee appointed to administer any Plan;

(h) promptly, and in any event within thirty (30) days after the filing thereof

with the United States Department of Labor, copies of each Schedule SB (Actuarial Information) to the annual report (Form 5500 Series) with respect to each Plan; and

(i) promptly, and in any event within ten (10) Business Days after receipt thereof by any Group Member or any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each notice concerning (i) the imposition of Withdrawal Liability by any such Multiemployer Plan, or (ii) such Multiemployer Plan is in Reorganization, Insolvent or a determination has been made that the Multiemployer Plan is in “endangered” or “critical” status within the meaning of Section 432 of the Code or Section 305 of ERISA and (iii) the amount of liability incurred, or that may be incurred, by such Group Member or any ERISA Affiliate in connection with any event described in clause (i) or (ii).

6.3 Taxes . (a) Completely and correctly file or cause to be filed all federal, state and other material tax returns that are required to be filed by any Group Member; and (b) pay all federal, state and other taxes, assessments, fees or other charges imposed on it or any of its property by any Governmental Authority before they become delinquent, except (i) where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of the relevant Group Member or (ii) where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

6.4 Maintenance of Existence; Compliance .

(a) (i) Preserve, renew and keep in full force and effect its organizational existence except as permitted hereunder and (ii) take all reasonable action to maintain all rights, privileges, franchises and permits necessary or desirable in the normal conduct of its business, including, without limitation, all necessary Governmental Authorizations, except, in each case, as otherwise permitted by Section 7.3 and except, in the case of clause (ii) above, to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and

(b) comply with all Contractual Obligations, Organizational Documents and Requirements of Law (including, without limitation, and as applicable, Health Care Laws, ERISA, OFAC, FCPA and the Code) except to the extent that failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

6.5 Maintenance of Property; Insurance . (a) Except as permitted by Section 7.4 , keep all material Property useful and necessary in its business in good working order and condition, ordinary wear and tear and obsolescence excepted, except if failure to do so could not reasonably be expected to have a Material Adverse Effect, (b) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by similarly situated companies engaged in the same or similar business operating in the same or similar locations. Within a reasonable time after the Closing Date, the umbrella liability insurance and property insurance of the Group Members shall (i) name the Administrative Agent, on behalf of Secured Parties as an additional insured thereunder as its interests may appear and (ii) in the case of each casualty insurance policy, contain a loss payable clause or endorsement, reasonably satisfactory in form and substance to

the Administrative Agent, that names Collateral Agent, on behalf of Lenders as the loss payee thereunder and provides for at least thirty days prior written notice to Collateral Agent of any cancellation of such policy and (c) if any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), then the Borrower shall, or shall cause each Loan Party to (i) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Administrative Agent evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent.

6.6 Inspection of Property; Books and Records; Discussions . (a) Keep proper books of records and account in which full, true and correct in all material respects entries in conformity with GAAP and all Requirements of Law shall be made of all material dealings and transactions in relation to its business and activities and (b) subject to the Borrower’s and each Restricted Subsidiary’s internal policies for the protection and preservation of Intellectual Property or other non-financial proprietary information, permit representatives of the Administrative Agent who may be accompanied by any Lender to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time during normal business hours and upon reasonable advance notice to the Borrower and to discuss the business, operations, properties and financial and other condition of the Group Members with the officers of the Group Members and with their independent certified public accountants ( provided that the Borrower or its Subsidiaries may, at their option, have one or more employees or representatives present at any discussion with such accountants); provided that unless an Event of Default has occurred or is continuing, only one (1) such visit in any calendar year shall be conducted at the Borrower’s expense and provided , further, that if the disclosure of any requested information would compromise any attorney-client privilege (other than where waiver of such privilege will not be adverse to the Borrower in the good faith opinion of the Borrower’s counsel), that has not been or will not be waived or waiver thereof will be materially adverse to the Borrower, the Borrower shall make available redacted versions of requested documents or portions of documents that are the subject of such attorney-client privilege or, if unable to do so consistent with the preservation of such attorney-client privilege, shall endeavor in good faith otherwise to disclose information responsive to the Administrative Agent’s requests in a manner that will protect such attorney-client privilege.

6.7 Notices . Give notice to the Administrative Agent promptly after any Loan Party obtains knowledge of:

(a) the occurrence of any Default or Event of Default;

(b) any litigation, investigation or proceeding that may exist at any time between any Group Member and any Governmental Authority, which (if adversely determined) could reasonably be expected to have a Material Adverse Effect;

(c) any litigation or proceeding affecting any Group Member (i) which (if adversely determined) could reasonably be expected to have a Material Adverse Effect or

(ii) which relates to any Loan Document;

(d) the following events, as soon as possible and in any event within thirty (30) days after a Responsible Officer of the Borrower obtains actual knowledge thereof: (i) the occurrence of any Reportable Event with respect to any Single Employer Plan, a failure to make any required contribution to any Single Employer Plan or Multiemployer Plan, the creation of any Lien against the Borrower or any Commonly Controlled Entity in favor of the PBGC or a Single Employer Plan or Multiemployer Plan or any withdrawal from, or the termination, Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or the taking of any other action by the PBGC or the Borrower or any Commonly Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or the termination, Reorganization or Insolvency of, any Single Employer Plan or Multiemployer Plan; and

(e) any other development or event that has had or could reasonably be expected to have a Material Adverse Effect.

Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action the Borrower or the relevant Subsidiary proposes to take with respect thereto.

6.8 Environmental Laws .

(a) Comply with, and use commercially reasonable efforts to ensure compliance in all material respects by all tenants, subtenants, and other persons using or occupying the Properties, if any, with, all applicable Environmental Laws, and obtain and comply with and maintain, and use commercially reasonable efforts to ensure that all tenants and subtenants obtain and comply in all material respects with and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable Environmental Laws, except, in each case, to the extent the failure to do so could not reasonably be expected to result in a Material Adverse Effect.

(b) Conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws, and promptly comply with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws, except to the extent the failure to do so could not reasonably be expected to result in a Material Adverse Effect.

6.9 Post-Closing; Additional Collateral, etc .

(a) With respect to any property acquired after the Closing Date by any Loan Party as to which the Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien (other than (x) any property described in paragraph (b), (c), (d) or (f) below, (y) property that is not required to become subject to Liens in favor of the Collateral Agent pursuant to the Loan Documents and (z) solely with respect to the following clauses (ii) and (iii), any non U.S. property of a Domestic Subsidiary (for the avoidance of doubt, a Domestic Subsidiary shall be required to grant a security interest in all Collateral wherever located)), (i) execute and deliver to the Collateral Agent such amendments to the applicable Security Document or such other

documents as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a security interest in such property, (ii) take all actions necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in such property, including, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the applicable Security Document or by law and, in the case of Intellectual Property subject to a United States federal registration or federal application, as promptly as practicable, the delivery for filing of an Intellectual Property Security Agreement suitable for recordation in the United States Patent and Trademark Office, the United States Copyright Office, or such other instrument in form and substance reasonably acceptable to the Administrative Agent, or as may be reasonably requested by the Collateral Agent and (iii) if reasonably requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be customary in form and substance reasonably satisfactory to the Collateral Agent.

(b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $5,000,000 owned or acquired on or after the Closing Date by any Loan Party (other than any such real property subject to a Lien expressly permitted by Section 7.2(g) ), promptly (but in any event within 60 days, or as such later date the Administrative Agent may agree) (i) execute and deliver a first priority Mortgage subject to Liens permitted under clause (i) of Section 7.2 hereof, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such real property, (ii) provide the Secured Parties with (x) (in the case of real property located outside the U.S. only if customary in the relevant non-U.S. jurisdiction) a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably acceptable to the Collateral Agent, provided that in jurisdictions that impose mortgage recording taxes, the Security Documents shall not secure indebtedness in an amount exceeding 105% of the fair market value of the Mortgaged Property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to Collateral Agent), as well as a Survey thereof (except that a new Survey will not be required except to the extent necessary to delete the so called “survey exceptions” in any such policy of title insurance) and (y) any consents or estoppels deemed necessary or reasonably advisable by the Collateral Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent, (iii) deliver to the Collateral Agent legal opinions relating to, among other things, the enforceability, perfection, due authorization, execution and delivery of the applicable Mortgage, which opinions shall be in customary form and substance reasonably satisfactory to the Collateral Agent and (iv) for real property located in the United States deliver to the Administrative Agent a “Life-of-Loan” Federal Emergency Standard Flood Hazard Determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto), and if such Mortgaged Property is located in a special flood hazard area, evidence of flood insurance confirming that such insurance has been obtained, which certificate shall be in a form and substance reasonably satisfactory to the Administrative Agent, and any and all other documents as the Collateral Agent may reasonably request, in each case, in form and substance reasonably satisfactory to the Collateral Agent.

(c) With respect to any new Restricted Subsidiary created or acquired after the Closing Date by any Loan Party (including any such Subsidiary that ceases to an Unrestricted Subsidiary), within sixty (60) days after such acquisition or formation, in the case of any Domestic Subsidiary (or such later date as the Administrative Agent may agree) (i) execute and deliver to the Collateral Agent, such Security Documents as the Administrative Agent deems necessary or reasonably advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Restricted Subsidiary that is owned by any Loan Party, (ii) deliver to the Collateral Agent the certificates, if any, representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Group Member, (iii) cause such new Subsidiary that is a Wholly Owned Subsidiary or is acquired in a Permitted Acquisition (A) to become a party to the applicable Security Documents, (B) to take such actions necessary or advisable to grant to the Collateral Agent for the benefit of the Secured Parties a perfected first priority security interest (subject to Liens permitted by Section 7.2 hereof) in all or substantially all, or any portion of the property of such new Subsidiary that is required to become subject to a Lien in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Loan Documents as the Administrative Agent shall determine, in its reasonable discretion, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Collateral Agent and (C) to deliver to the Collateral Agent a customary secretary’s certificate of such Subsidiary substantially in the same form delivered on the Closing Date and reasonably satisfactory to the Administrative Agent with appropriate attachments, and (iv) if reasonably requested by the Collateral Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in customary form and substance reasonably satisfactory to the Collateral Agent; provided however, that in no event shall any such Subsidiary that is a CFC be required to pledge any property.

(d) With respect to any new Foreign Subsidiary that is a Wholly Owned Subsidiary (other than an Unrestricted Subsidiary) created or acquired after the Closing Date (including any such Subsidiary that ceases to be an Unrestricted Subsidiary, by any Loan Party, within ninety (90) days of such formation or acquisition (or such later date as the Administrative Agent may agree), (A) execute and deliver to the Collateral Agent such Security Documents as the Collateral Agent deems necessary or reasonably advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by any such Loan Party ( provided that in no event shall more than 66% of the total common stock of any such new Subsidiary that is a CFC be required to be so pledged; and, provided further, that no Foreign Subsidiary shall be required to pledge any Capital Stock that it owns, (B) deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Loan Party, as the case may be, and take such other action as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the Collateral Agent’s security interest therein, and (C) if reasonably requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in customary form and substance reasonably satisfactory to the Collateral Agent.

(e) Within thirty (30) days after the Closing Date (or such later date as the

Administrative Agent may agree), the Administrative Agent shall have received executed Intellectual Property Security Agreements.

(f) Notwithstanding anything to the contrary in this Section 6.9 , none of the following entities shall be required to become Subsidiary Guarantors: (x) any Unrestricted Subsidiary; (y) any subsidiary that is prohibited by law or regulation from becoming a Subsidiary Guarantor or (z) any CFC, in each case, so long as such status is applicable to such entity.

6.10 Further Assurances . From time to time execute and deliver, or cause to be executed and delivered, such additional instruments, certificates or documents, and take all such actions, as the Administrative Agent or the Collateral Agent may reasonably request for the purposes of implementing or effectuating the provisions of this Agreement and the other Loan Documents, or of more fully perfecting or renewing the rights of the Administrative Agent, the Collateral Agent and the Secured Parties with respect to the Collateral (or with respect to any additions thereto or replacements or proceeds thereof or with respect to any other property or assets hereafter acquired by any Loan Party which may be deemed to be part of the Collateral) pursuant hereto or thereto. Upon the reasonable exercise by the Administrative Agent, the Collateral Agent or any Secured Party of any power, right, privilege or remedy pursuant to this Agreement or the other Loan Documents which requires any consent, approval, recording qualification or authorization of any Governmental Authority, the Borrower will execute and deliver, or will cause the execution and delivery of, all applications, certifications, instruments and other documents and papers that the Administrative Agent, the Collateral Agent or such Secured Party reasonably may be required to obtain from any Loan Party for such governmental consent, approval, recording, qualification or authorization.

6.11 Rated Credit Facility; Corporate Ratings . Use commercially reasonable efforts to (a) cause the Term Loans to be continuously rated by S&P and Moody’s and (b) cause the Borrower to continuously receive a Corporate Family Rating and Corporate Rating.

6.12 Use of Proceeds . The Borrower shall use the proceeds of the Term Loans, solely as set forth in Section 4.15 .

6.13 Intellectual Property . Each Loan Party shall (and the Borrower shall procure that each Group Member will): (a) take commercially reasonable efforts to preserve and maintain the subsistence and validity of the Intellectual Property necessary and material to the business of the relevant Group Member; (b) take commercially reasonable steps to prevent and defend against any infringement of such Intellectual Property, including, without limitation, settling such litigation when in such Group Member’s good faith belief it is commercially reasonable to do so except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) make registrations and pay all registration fees and taxes necessary, as applicable, to maintain such Intellectual Property in full force and effect and record its interest in such Intellectual Property except as could not reasonably be expected to have a Material Adverse Effect.

6.14 Designation of Subsidiaries; Unrestricted Subsidiaries . (a) The board of directors of the Borrower may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that

(i) immediately before and after such designation, no Default shall have occurred and be continuing, (ii) immediately before and after such designation, the Loan Parties are in compliance with Section 6.14(b) and the Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) , after giving pro forma effect to such designation) is no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter), (iii) no Subsidiary may be designated as an Unrestricted Subsidiary if, after such designation, it would be a “Restricted Subsidiary” for the purpose of the Convertible Notes pursuant to the Convertible Notes Documents or any Junior Financing or any other Indebtedness of any Loan Party and (iv) no Permitted Joint Venture may be designated as a Restricted Subsidiary if previously designated as an Unrestricted Subsidiary. The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Borrower therein at the date of designation in an amount equal to the fair market value of the assets of such Subsidiary (less the amount of the Indebtedness of such Subsidiary on the date of such designation) that is allocated to the ownership interest of the relevant Group Member in such Subsidiary. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence, at the time of designation, of Indebtedness or Liens in such Subsidiary (equal to the amounts then owed by such Subsidiary) and a return on any Investment by the Borrower in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value of the assets of such Subsidiary (less the amount of the Indebtedness of such Subsidiary on the date of such re-designation) that is allocated to the ownership interest of the relevant Group Member in such Subsidiary.

(b) The portion of (x) Total Consolidated EBITDA for the period of four consecutive fiscal quarters last ended as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) that is attributable to all Unrestricted Subsidiaries (on a consolidated basis) shall not at any time exceed 10.0% and (y) the total assets of the Borrower and all of its Subsidiaries calculated in accordance with GAAP on a consolidated basis as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) that is attributable to all Unrestricted Subsidiaries (on a consolidated basis) shall not at any time exceed 10.0%.

6.15 Post-Closing Deliveries . The Borrower hereby agrees to deliver to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent, the items described on Schedule 6.15 hereof on or before the dates specified with respect to such items, or such later dates as may be agreed to by the Administrative Agent in its sole discretion. All representations and warranties contained in this Agreement and the other Loan Documents shall be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the actions described above within the time periods required above and in Schedule 6.15 , rather than as elsewhere provided in the Loan Documents); provided that (x) to the extent any representation and warranty would not be true because the foregoing actions were not taken on the Closing Date, the respective representation and warranty shall be required to be true and correct in all material respects at the time the respective action is taken (or was required to be taken) in accordance with the foregoing provisions of this Section 6.15 (and Schedule 6.15 ) and (y) all representations and warranties relating to the Security Documents shall be required to be true in all material respects immediately after the actions required to be taken under this Section 6.15 (and Schedule 6.15 ) have been taken (or were required to be taken), except to the

extent any such representations and warranties expressly relate to an earlier date in which case such representations and warranties shall be true and correct in all material respects as of such earlier date.

6.16 Post-Closing Pay-Off . To the extent the Indebtedness outstanding pursuant to the Fifth Street Credit Agreement is not repaid in full on the Closing Date in accordance with Section 5.1(b)(iii) , (i) such repayment in full of all such Indebtedness (together with the release of all Liens, if any, securing such Indebtedness) shall occur no later than 12:00 Noon, New York City time, on April 29, 2013, and (ii) the Administrative Agent shall receive written confirmation of the repayment in full of all such Indebtedness, together with any other payoff documentation reasonably requested by the Administrative Agent, from the lenders (and any agent therefor) under the Fifth Street Credit Agreement no later than 12:00 Noon, New York City time, on April 29, 2013.

SECTION 7. NEGATIVE COVENANTS

The Borrower hereby agrees that, so long as the Commitments remain in effect or any Term Loan or other amount is owing to any Lender or Agent hereunder (other than unasserted contingent indemnification obligations), the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to:

7.1 Indebtedness . Create, issue, incur, assume, become liable in respect of or suffer to exist any Indebtedness, except:

(a) Indebtedness of any Loan Party pursuant to any Loan Document;

(b) (i) Indebtedness of any Loan Party owed to any other Loan Party; (ii) unsecured Indebtedness of any Loan Party owed to any Group Member that is not a Loan Party; (iii) Indebtedness of any Group Member that is not a Loan Party owed to any other Group Member that is not a Loan Party; and (iv) subject to Section 7.6(g) , Indebtedness of any Group Member that is not a Loan Party owed to a Loan Party; provided , that (x) in the case of clause (iv), such Indebtedness is evidenced by, and subject to the provisions of, an Intercompany Note and (y) in the case of any such Indebtedness of a Loan Party owed to a Group Member that is not a Loan Party, such Indebtedness shall be subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent;

(c) Guarantee Obligations incurred by (i) any Group Member that is a Loan Party of obligations of any other Loan Party and, subject to Section 7.6(g) , of any Group Member that is not a Loan Party and (ii) any Group Member that is not a Loan Party of obligations of any Loan Party or any other Group Member;

(d) Indebtedness outstanding on the date hereof and listed on Schedule 7.1 and any Permitted Refinancing thereof; provided that, notwithstanding the foregoing, to the extent the Indebtedness outstanding pursuant to the Fifth Street Credit Agreement is included on Schedule 7.1 , such Indebtedness shall only be permitted pursuant to this clause (d) until the earlier of (x) 12:00 Noon, New York City time, on April 29, 2013 and (y) the date on which the repayment in full of the Indebtedness pursuant to the Fifth

Street Credit Agreement, together with the release of all Liens (if any) with respect thereto, occurs;

(e) Indebtedness incurred to finance the acquisition, construction, improvement or repair of fixed or capital assets (including, without limitation, Capital Lease Obligations) of the Borrower or any Subsidiary secured by Liens permitted by Section 7.2(g) in an aggregate principal amount not to exceed $30,000,000 at any one time outstanding and any Permitted Refinancing thereof; provided that such Indebtedness is incurred prior to or within 270 days after such acquisition or the completion of such construction or improvement ;

(f) Indebtedness in respect of Hedge Agreements designed to hedge against interest rates, foreign exchange rates or commodities pricing risks and not for speculative purposes and Guarantee Obligations thereof;

(g) Indebtedness of the Borrower or any Subsidiary in respect of performance, bid, surety, indemnity, appeal bonds, completion guarantees and other obligations of like nature and guarantees and/or obligations as an account party in respect of the face amount of letters of credit in respect thereof, in each case securing obligations not constituting Indebtedness for borrowed money (including worker’s compensation claims, environmental remediation and other environmental matters and obligations in connection with insurance or similar requirements) provided in the ordinary course of business;

(h) Indebtedness arising from the endorsement of instruments in the ordinary course of business;

(i) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary (such Person, an “ Acquired Person ”), together with all Indebtedness incurred or assumed by the Borrower or any of the Restricted Subsidiaries in connection with any acquisition permitted under Section 7.6 , but only to the extent that (i) such Indebtedness was not created or incurred in contemplation of such Person becoming a Subsidiary of such Loan Party or such acquisition (except that the Borrower and any of the Restricted Subsidiaries may incur Junior Indebtedness, to the extent incurrence thereof is permitted under clause (j) below, in connection with such Person becoming a Restricted Subsidiary), (ii) any Liens securing such Indebtedness, incurred in connection with such Person becoming a Restricted Subsidiary, attach only to the assets of the Acquired Person (and in case of any Junior Indebtedness shall be subject to a subordination agreement), (iii) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (iv) the Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) , after giving pro forma effect to the acquisition and the incurrence of any Indebtedness in connection therewith) is no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter); provided , that to the extent any such Acquired Person does not become a Loan Party (within 60 days of such person becoming an Acquired Person), the aggregate amount of such

Indebtedness for all such Acquired Persons shall not exceed $12,500,000;

(j) Junior Indebtedness of any Loan Party; provided that, (i) after giving pro forma effect to the incurrence of such Indebtedness, the Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) is no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter) and (ii) no Default or Event of Default shall have occurred and be continuing or would result therefrom;

(k) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided , however, that such Indebtedness is extinguished within ten (10) Business Days of incurrence;

(l) Indebtedness of the Borrower or any Subsidiary that may be deemed to exist in connection with agreements providing for indemnification, purchase price adjustments, Earn-Out Obligations and similar obligations in connection with Permitted Acquisitions or other acquisitions or sales of assets and/or businesses;

(m) Indebtedness arising from judgments or decrees not constituting an Event of Default under Section 8(h) ;

(n) Guarantee Obligations incurred by any Loan Party in respect of Indebtedness otherwise permitted by this Section 7.1 ;

(o) other Indebtedness of the Group Members in an aggregate principal amount (for all Group Members) not in excess of $25,000,000 at any time outstanding;

(p) Indebtedness consisting of promissory notes issued to current or former officers, directors, managers, consultants and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Capital Stock of any Group Member permitted by Section 7.5 ;

(q) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such Person in connection with any Permitted Acquisitions or any other Investment permitted hereunder;

(r) Indebtedness consisting of (a) the financing of insurance premiums in respect of unearned premiums payable on insurance policies maintained by the Group Members or (b) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;

(s) unsecured Guarantee Obligations incurred in the ordinary course of business (and consistent with past practice) in respect of obligations to suppliers, customers, franchisees, lessors and licensees;

(t) unsecured Indebtedness incurred in the ordinary course of business (and consistent with past practice) in respect of obligations of the Borrower or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services;

(u) Indebtedness of the Loan Parties under the Convertible Notes (or any Permitted Refinancing thereof) pursuant to the Convertible Notes Documents in an aggregate principal amount not to exceed $350,000,000 at any one time outstanding ; provided, that, such aggregate dollar cap shall not apply to any Permitted Convertible Notes Refinancing as long as such Permitted Convertible Notes Refinancing complies with the requirements set forth in the definition thereof;

(v) Indebtedness in connection with any acquisition permitted under Section 7.6 ;

(w) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed at any time outstanding $25,000,000;

(x) Non-Recourse Indebtedness for Permitted Joint Ventures in an aggregate principal amount not to exceed at any time outstanding $20,000,000 ; and

(y) Attributable Indebtedness in connection with a Sale and Leaseback Transaction permitted pursuant to Section 7.4(x) .

7.2 Liens . Create, incur, assume or suffer to exist any Lien upon any of its property, whether now owned or hereafter acquired, except for:

(a) Liens for taxes, assessments, charges or other governmental levies not yet delinquent for a period of more than thirty (30) days or that are being contested in good faith by appropriate proceedings; provided that adequate reserves with respect thereto are maintained on the books of the Group Members, as the case may be, in conformity with GAAP;

(b) Liens imposed by law, including, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business that are not overdue for a period of more than sixty (60) days (or, if more than sixty (60) days overdue, no action has been taken to enforce such Lien) or are being contested in good faith and by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP;

(c) (i) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation, or letters of credit or guarantees issued in respect thereof, other than any Lien imposed by ERISA with respect to a Single Employer Plan or Multiemployer Plan and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Restricted Subsidiary;

(d) pledges or deposits to secure the performance of bids, government contracts and trade contracts (other than for borrowed money), leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations) incurred in the ordinary course of business or letters of credit or guarantees issued in respect thereof;

(e) easements, rights-of-way, restrictions (including zoning restrictions), encroachments, protrusions and other similar encumbrances and minor title defects or other irregularities that were not incurred in the ordinary course of business and do not secure debt, affecting real property that, in the aggregate, do not materially and adversely affect the use of the property thereby for the intended purposes, taken as a whole, and any exception on the title policies issued in connection with the Mortgaged Property;

(f) Liens in existence on the date hereof listed on Schedule 7.2 and any renewals or extensions of any of the foregoing; provided , that no such Lien is spread to cover any additional property after the Closing Date except as otherwise permitted hereunder;

(g) Liens securing permitted Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction, improvement or repair of fixed or capital assets and any Permitted Refinancings thereof; provided that (i) such Liens shall be created substantially simultaneously (or within two hundred seventy (270) days of) with the acquisition, construction, improvement or repair of such fixed or capital assets, (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and additions, accessions and the proceeds of sale thereof and (iii) the amount of Indebtedness secured thereby is not increased;

(h) Liens created pursuant to the Security Documents or any other Loan Document;

(i) Liens that are exceptions to the commitments for policies of title insurance being issued in connection with the Mortgages reasonably acceptable to the Collateral Agent in its sole discretion;

(j) any interest or title of a lessor or licensee under any lease, sublease or license entered into by the Borrower or any Restricted Subsidiary in the ordinary course of its business and covering only the assets so leased, subleased or licensed;

(k) Liens securing judgments not constituting an Event of Default under Section 8(h) or securing appeal or other surety bonds related to such judgments;

(l) the filing of UCC financing statements solely as a precautionary measure in connection with operating leases and consignment arrangements;

(m) Liens existing on property acquired by the Borrower or any Subsidiary at the time such property is so acquired or existing on the property of any Person at the time such Person becomes a Restricted Subsidiary after the date hereof (whether or not the

Indebtedness secured thereby shall have been assumed); provided that (i) such Lien is not created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary; (ii) such Lien does not extend to any other property (other than proceeds or products or after-acquired property) of any Group Member following such acquisition or such Person becoming a Restricted Subsidiary; and (iii) the Indebtedness secured by such Liens is permitted under Section 7.1(f) , (g) and (i) ;

(n) Liens (i) of a collecting bank arising under Section 4-210 of the Uniform Commercial Code on the items in the course of collection and (ii) in favor of a banking or other financial institution arising as a matter of law or contract encumbering deposits or other funds or assets maintained with a financial institution (including the right of set off) and that are within the general parameters customary in the banking industry, including, without limitation, customary liens for customary fees and expenses relating to the operation and maintenance of such deposits;

(o) Liens in favor of customs and revenue authorities arising as a matter of law and in the ordinary course of business to secure payment of customs duties in connection with the importation of goods;

(p) statutory and common law landlords’ liens under leases to which the Borrower or any of the Restricted Subsidiaries is a party;

(q) Liens not otherwise permitted by this Section 7.2 so long as the aggregate outstanding principal amount of the obligations secured thereby do not exceed $15,000,000 at any one time;

(r) Liens on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 7.6(i) or Section 7.6(t) to be applied against the purchase price for such Investment;

(s) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business of the Borrower;

(t) Liens deemed to exist in connection with Investments in repurchase agreements under Section 7.6 and reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts maintained in the ordinary course of business and not for speculative purposes;

(u) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks or other financial institutions not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or any Restricted Subsidiary or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any Restricted Subsidiary in the ordinary course of business;

(v) Liens solely on any cash earnest money deposits made by the Borrower or any Subsidiary in connection with any letter of intent or purchase agreement permitted hereunder;

(w) (i) Liens on the Capital Stock of any Subsidiary acquired pursuant to a Permitted Acquisition to secure Indebtedness incurred or assumed pursuant to Section 7.1(i) in connection with such Permitted Acquisition and (ii) Liens on the assets of such Subsidiary to secure Indebtedness (or to secure a Guarantee Obligation of such Indebtedness) incurred or assumed pursuant to Section 7.1(i) in connection with such Permitted Acquisition;

(x) Liens in respect of unearned premiums on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

(y) Liens on specific items of inventory or other goods and the proceeds thereof securing such Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods;

(z) Liens constituting Dispositions permitted by Section 7.4 ;

(aa) Liens securing Indebtedness permitted by Section 7.1 (w) ;

(bb) Liens securing Non-Recourse Indebtedness permitted under Section 7.1 (x) , provided that such Liens shall extend only to the assets of (and Capital Stock or other ownership interests in) the applicable Permitted Joint Venture that is the borrower of such Non-Recourse Indebtedness;

(cc) ground leases in respect of real property on which facilities owned or leased by the Borrower or any Restricted Subsidiaries are located; and

(dd) Liens securing Junior Indebtedness permitted by Section 7.1(j) .

7.3 Fundamental Changes . Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of, all or substantially all of its property or business, except that:

(a) any Restricted Subsidiary may be merged, consolidated or be amalgamated (i) with or into the Borrower ( provided that the Borrower shall be the continuing or surviving corporation), (ii) with or into the Borrower or any other Restricted Subsidiary ( provided that if only one party to such transaction is a Subsidiary Guarantor, the Subsidiary Guarantor shall be the continuing or surviving corporation) or (iii) subject to Section 7.6(g) , with or into any other Group Member;

(b) any Group Member may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Loan Party or, subject to Section 7.6(g) (to the extent applicable), any other Group Member;

(c) any Restricted Subsidiary that is not a Loan Party may (i) merge or consolidate with or into any Restricted Subsidiary that is not a Loan Party or (ii) dispose of all or substantially all of its assets (including any Disposition that is in the nature of a voluntary liquidation) to (x) another Restricted Subsidiary that is not a Loan Party or (y) to a Loan Party;

(d) any Subsidiary may enter into any merger, consolidation or similar transaction with another Person to effect a transaction permitted under Section 7.6 ;

(e) the Borrower may enter into any merger, consolidation or similar transaction in connection with the consummation of the Transactions in accordance with the Merger Agreement;

(f) transactions permitted under Section 7.4 shall be permitted; and

(g) in connection with a Permitted Joint Venture, any Person that is the subject of such Permitted Joint Venture (other than any Permitted Joint Venture that has obligations owing in respect of any Non-Recourse Indebtedness) may be merged or consolidated with or into the Borrower or any Subsidiary of the Borrower ( provided that (i) the Borrower, or the applicable Subsidiary, shall be the continuing or surviving corporation and (ii) the Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) , after giving pro forma effect to the consummation of such merger or consolidation) is no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter)).

7.4 Disposition of Property . Dispose of any of its property, whether now owned or hereafter acquired, or, in the case of the Borrower or any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:

(a) Dispositions of obsolete, damaged, uneconomic or worn out machinery, parts, property or equipment, or property or equipment no longer used or useful, in the conduct of its business, whether now owned or hereafter acquired;

(b) the sale of inventory and owned or leased vehicles, each in the ordinary course of business;

(d) so long as no Change in Control shall occur therefrom, the sale or issuance of any Group Member’s Capital Stock to any other Group Member (except that a Loan Party may issue Capital Stock only to another Loan Party or to the shareholders of the Borrower);

(e) any Group Member may Dispose of any of its assets to a Loan Party or, subject to Section 7.6(g) (to the extent applicable), any other Group Member, and any Group Member that is not a Loan Party may Dispose of any assets, or issue or sell Capital

Stock, to any other Group Member that is not a Loan Party;

(f) Dispositions of cash or Cash Equivalents in transactions not otherwise prohibited by this Agreement;

(g) licenses granted by Group Members with respect to Intellectual Property, or leases or subleases, granted to third parties in the ordinary course of business;

(h) the issuance or sale of shares of any Subsidiary’s Capital Stock to qualified directors if required by applicable law;

(i) Dispositions or exchanges of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;

(j) Dispositions of leases entered into in the ordinary course of business, to the extent that they do not materially and adversely affect the use of the property encumbered thereby for the intended purposes, taken as a whole;

(k) the lapse, abandonment or other Disposition of Intellectual Property that is, in the reasonable judgment of the Borrower, (i) no longer used or useful in the business, or (ii) no longer economically practicable to maintain and not material to the conduct of the business of the Borrower and the Restricted Subsidiaries, taken as a whole;

(l) the Disposition of Property which constitutes a Recovery Event;

(m) Dispositions consisting of the sale, transfer, assignment or other Disposition of accounts receivable in connection with the collection, compromise or settlement thereof in the ordinary course of business and not as part of a financing transaction;

(n) Dispositions constituting Restricted Payments permitted by Sections 7.5 , Investments permitted by Section 7.6 and Liens permitted by Section 7.2 ;

(o) leases, subleases, licenses or sublicenses with respect to real or personal property (other than Intellectual Property), in each case in the ordinary course of business and which do not materially and adversely affect the use of the property encumbered thereby for intended purposes including leases of unimproved real property encumbered by a Mortgage, on which real property the lessee may make improvements;

(p) so long as the proceeds thereof are applied pursuant to Section 3.2 , Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in the joint venture arrangements and similar binding arrangements;

(q) any issuance or sale of Capital Stock in, or Indebtedness or other securities

of an Unrestricted Subsidiary;

(r) as long as no Default is continuing or would result therefrom, any Disposition of property of, or issuance or sale of Capital Stock by, any Group Member; provided that (x) the aggregate amount of all such Dispositions or issuances shall not exceed in any fiscal year 5% of Consolidated Total Assets (as calculated as at the end of the immediately preceding fiscal year of the Borrower); provided that, in the event that the aggregate amount of Dispositions, issuances or sales pursuant to this clause (r) in any fiscal year is less than 5% of Consolidated Total Assets, such difference in amount may be carried forward solely into the succeeding fiscal year to increase the limit of Dispositions, issuances or sales pursuant to this clause (r) permitted during such succeeding fiscal year by the amount of such difference, and (y) such Dispositions or issuances are made for fair market value and on an arm’s-length commercial basis;

(s) Dispositions of Property related to compensation paid or to be paid, or benefits provided or to be provided, in the ordinary course of business;

(t) Dispositions of the Respiratory Business so long as no Default or Event of Default has occurred and is then continuing (both before and after giving effect to such Disposition;

(u) any swap of assets in exchange for services or other assets in the ordinary course of business of comparable or greater value to the business of the Borrower and its Subsidiaries as a whole, in an amount of up to $5,000,000 and as determined in good faith by the management of the Borrower;

(v) the unwinding of any Hedge Agreement; and

(w) Dispositions or sales of Disqualified Capital Stock of the Borrower with a liquidation value not to exceed $10,000,000 at any time outstanding; and

(x) Sale and Leaseback Transactions in an aggregate amount of Attributable Indebtedness not to exceed $5,000,000 at any one time outstanding.

7.5 Restricted Payments . Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of any Group Member, in each case, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary (collectively, “ Restricted Payments ”), except that:

(a) any Subsidiary may make Restricted Payments to the Borrower or any Subsidiary Guarantor or any other Person that owns a direct equity interest in such Subsidiary in proportion to such Person’s ownership interest in such Subsidiary;

(b) each Subsidiary may make Restricted Payments to the Borrower and to Wholly Owned Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly

Owned Subsidiary, to the Borrower and any Subsidiary and to each other owner of Capital Stock or other equity interests of such Subsidiary on a pro rata basis based on their relative ownership interests);

(c) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common equity interests of such Person;

(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower may purchase, redeem or otherwise acquire shares of its common stock or other common equity interests or warrants or options to acquire any such shares, in each case, to the extent consideration therefor consists of the proceeds received from the substantially concurrent issue of new shares of its common stock or other common equity interests;

(e) the Borrower and each Restricted Subsidiary may make payments in connection with equity interests related to compensation paid or to be paid, or benefits provided or to be provided, in the ordinary course of business to officers, directors, employees or former officers, directors or employees of the Borrower and its Subsidiaries; provided that the aggregate amount of cash payments under this clause (e) shall not exceed, in any period of 12 consecutive months, $5,000,000;

(f) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Available Amount Condition has been met, the Borrower may make Restricted Payments in an aggregate amount not to exceed the then Available Amount;

(g) in addition to any other Restricted Payments permitted under this Section 7.5 , the Borrower and the Restricted Subsidiaries may make Restricted Payments in an aggregate amount such that all such Restricted Payments since the Closing Date made pursuant to this clause (g) shall not exceed $20,000,000;

(h) the Borrower and the Restricted Subsidiaries may make any payments in connection with the consummation of the Transactions;

(i) purchases by any Loan Party of the equity interests of any Permitted Joint Venture from any Person that is not a Loan Party in an aggregate amount not to exceed $25,000,000 from and after the Closing Date ( provided that (i) Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) , after giving pro forma effect to the consummation of such joint venture and the incurrence of any Indebtedness in connection therewith) is no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter), (ii) the amount paid by the Borrower and its Subsidiaries from and after the Closing Date in connection with the exercise of any “call” or similar right by any of them shall not exceed $25,000,000 in the aggregate and (iii) the aggregate amount set forth above in this clause (i) shall be reduced on a dollar-for-dollar basis by

the aggregate amount of any Restricted Payments made pursuant to Section 7.6(g); and

(j) the Borrower or any Restricted Subsidiary may pay cash in lieu of the fractional Capital Stock in connection with any dividend, split or combination thereof, or any Permitted Acquisition or any vesting of Capital Stock.

7.6 Investments . Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting a business line or unit of, or a division of any Person (all of the foregoing, “ Investments ”), except:

(a) extensions of trade credit in the ordinary course of business;

(b) Investments in Cash Equivalents;

(d) loans and advances to officers, directors and employees of any Group Member in the ordinary course of business (including for travel, entertainment, relocation and similar expenses) in an aggregate amount for all Group Members not to exceed $2,500,000 at any time outstanding;

(e) the Merger;

(f) intercompany Investments by (i) any Group Member in any Loan Party; provided that all such intercompany Investments to the extent such Investment is a loan or advance owed to a Loan Party by a Group Member that is not a Loan Party are evidenced by the Intercompany Note and (ii) any Group Member that is not a Loan Party to any other Group Member that is not a Loan Party;

(g) intercompany Investments (i) by any Loan Party in another Group Member (including a Person that becomes a Restricted Subsidiary as a result of such Investments), that, after giving effect to such Investment, is not a Loan Party (including, without limitation, Guarantee Obligations with respect to obligations of any such Subsidiary, loans made to any such Subsidiary and Investments resulting from mergers with or sales of assets to any such Subsidiary) in an aggregate amount (valued at fair market value) not to exceed $30,000,000 at any time outstanding ( provided that the foregoing aggregate amount set forth above in this clause (g) shall be reduced on a dollar-for-dollar basis by the aggregate amount of equity purchases made pursuant to Section 7.5(i)) and (ii) intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) of the Borrower or any Restricted Subsidiary;

(h) Investments in the ordinary course of business consisting of endorsements for collection or deposit or lease, utility and other similar deposits and deposits with suppliers in the ordinary course of business;

(i) Investments in connection with Permitted Acquisitions;

(j) Investments consisting of Hedge Agreements permitted by Section 7.1 ;

(k) Investments (i) existing on the date hereof or made pursuant to legally binding written contracts in existence on the date hereof or (ii) contemplated on the date hereof and set forth on Schedule 7.6 , and in each case any modification, replacement, renewal, reinvestment or extension thereof; provided that the amount of any such Investment is not increased at the time of such extension or renewal;

(l) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors or other Persons to the extent reasonably necessary in order to prevent or limit loss or in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, suppliers or customers arising in the ordinary course of business;

(m) Investments received as consideration in connection with Dispositions permitted under Section 7.4 ;

(n) advances of payroll payments to employees in the ordinary course of business;

(o) Investments of a Restricted Subsidiary acquired after the Closing Date or of a Person merged into or consolidated with the Borrower or merged into or consolidated with a Restricted Subsidiary in accordance with Section 7.3 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;

(p) Guarantee Obligations of the Group Members of leases (other than Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;

(q) (x) Investments consisting of purchases and acquisitions of assets or services in the ordinary course of business and consistent with past practices and (y) Investments made in the ordinary course of business in connection with obtaining, maintaining or renewing client contracts and loans and advances made to distributors in the ordinary course of business in an aggregate amount not to exceed $5,000,000 at any time outstanding;

(r) Investments made by any Restricted Subsidiary that is not a Loan Party to the extent such Investments are financed with the proceeds received by such Restricted Subsidiary from an Investment made pursuant to this Section 7.6 ;

(s) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Available Amount Condition has been met, in addition to Investments otherwise expressly permitted by this Section, Investments in an aggregate amount not to exceed the then Available Amount;

(t) other Investments by Group Members in an aggregate amount at any time outstanding of all such Investments since the Closing Date not to exceed $30,000,000 ( provided the aggregate amount specified in this clause (t) shall be reduced on a dollar-for-dollar basis by the aggregate amount of any Investments made pursuant to Section 7.6(u)) ;

(u) purchases by any Loan Party of the equity interests of any Permitted Joint Venture from any Person that is not a Permitted Joint Venture in an aggregate amount not to exceed $25,000,000 from and after the Closing Date ( provided that (i) Total Leverage Ratio (as of the date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) , after giving pro forma effect to the consummation of such joint venture and the incurrence of any Indebtedness in connection therewith) is no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then most recent financial statements of the then last ended fiscal quarter), (ii) the amount paid by the Borrower and its Subsidiaries from and after the Closing Date in connection with the exercise of any “call” or similar right by any of them shall not exceed $25,000,000 in the aggregate and (iii) the aggregate amount specified above in this clause (u) shall be reduced on a dollar-for-dollar basis by the aggregate amount of any Investments made pursuant to Section 7.6(t) ;

(v) Investments to the extent that payment for such Investments is made solely with the Capital Stock of the Borrower provided that (i) immediately prior to, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (ii) all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable laws and in conformity with all applicable Governmental Authorizations, (iii) in the case of the acquisition of Capital Stock, such Capital Stock shall become subject to a security interest in favor of the Collateral Agent for the benefit of the Secured Parties and the issuer of such Capital Stock shall become a Loan Party, in each case, in accordance with Section 6.9 and 6.10 , (iv) the Total Leverage Ratio, in each case, calculated on a Pro Forma Basis after giving effect to such Investment as if such Investment had occurred on the first day of the most recent period of four (4) consecutive fiscal quarters of the Borrower for which financial statements are available shall be no greater than the Total Leverage Ratio as in effect on the Closing Date (as calculated, on a Pro Forma Basis for the Transactions, as of the date of the then last ended fiscal quarter occurring prior to the Closing Date) and (v) any Person or assets or division as acquired in accordance herewith shall be in substantially the same business or lines of business in which the Borrower and/or its Subsidiaries are engaged, or are permitted to be engaged, as provided in Section 7.12 , as of the time of such acquisition; and

(w) Acquisitions of Term Loans by the Borrower pursuant to Section 10.6(h).

The amount of any Investment, other than a Guarantee Obligation, shall be (i) the amount actually invested, as determined at the time of each such Investment, without adjustment for subsequent increases or decreases in the value of such Investment, minus (ii) the amount of dividends or distributions actually received in connection with such Investment and any return of

capital and any payment of principal received in respect of such Investment that in each case is received in cash or Cash Equivalents (not in excess of the amount of Investments originally made).

7.7 Optional Payments and Modifications of Certain Debt Instruments .

(a) (i) Make any optional or voluntary payment, prepayment, repurchase or redemption of or otherwise optionally or voluntarily defease the Convertible Notes, in accordance with the Convertible Notes Documents, or any Junior Financing except for (x) payments in the aggregate pursuant to this clause (i) not to exceed the Available Amount during the term of this Agreement, (y) the refinancing thereof with the Net Cash Proceeds of any Permitted Refinancing of any of the foregoing or any Indebtedness (other than Indebtedness that is owed to the Borrower or any Restricted Subsidiary) or Permitted Convertible Notes Refinancing and (z) the conversion of the Convertible Notes, in accordance with the Convertible Notes Documents to Qualified Capital Stock, or the conversion of any Junior Financing to Qualified Capital Stock; provided that, in the case of (x), no Default or Event of Default shall have occurred and be continuing or would result therefrom and the Available Amount Condition has been met; and (ii) amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of the Convertible Notes Documents or any Junior Financing (other than (x) any amendment, modification, waiver or other change that is not materially adverse to interests of the Lenders and (y) in all events, any such amendment, modification, waiver or other change that in the case of the Convertible Notes Documents or any Junior Indebtedness, would, exclusively, extend the maturity or reduce the amount of any payment of principal thereof or reduce the rate or extend any date for payment of interest thereon).

(b) Amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of any Organizational Document of any Loan Party or any Pledged Company if such amendment, modification, waiver or change could reasonably be expected to have a material and adverse impact on the interests of the Lenders.

7.8 Transactions with Affiliates . Enter into any transaction of any kind with any Affiliate of the Borrower, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to the Borrower or such Restricted Subsidiary as would be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate, except:

(a) transactions between or among (i) Loan Parties or (ii) Group Members ( provided that (x) transactions between any Loan Party, on one hand, and a Group Member that is not a Loan Party, on one other hand, shall be on commercially reasonable terms and shall be limited to transactions not otherwise prohibited by this Agreement and (y) transactions between a Permitted Joint Venture and a Group Member that is not a Permitted Joint Venture, on one other hand, shall be on commercially reasonable terms and shall be limited to transactions not otherwise prohibited by this Agreement);

(b) transactions related to compensation paid or to be paid, or benefits

provided or to be provided, in the ordinary course of business of any Loan Party;

(d) the Transaction.

7.9 Changes in Fiscal Periods; Accounting Changes; Issuance of Disqualified Capital Stock .

(a) Permit any change in the fiscal year or fiscal quarter of the Borrower.

(b) Change independent accountants other than to any nationally recognized firm or such other firm reasonably acceptable to the Administrative Agent.

7.10 Negative Pledge Clauses . Enter into or suffer to exist or become effective any agreement that prohibits, limits or imposes any condition upon the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any of its property or revenues, whether now owned or hereafter acquired for the benefit of the Lenders with respect to the Obligations other than (a) this Agreement and the other Loan Documents, (b) any agreements governing any purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in which case, any prohibition or limitation shall only be effective against the assets financed thereby), (c) any restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into in connection with the Disposition of all or substantially all of the Capital Stock or assets of such Subsidiary, (d) customary provisions in leases, licenses and other contracts restricting the assignment thereof, (e) any other agreement that does not restrict in any manner (directly or indirectly) Liens created pursuant to the Loan Documents or any Collateral securing the Obligations and does not require the direct or indirect granting of any Lien securing any Indebtedness or other obligation by virtue of the granting of Liens on or pledge of Property of any Loan Party to secure the Obligations, (f) agreements by a Permitted Joint Venture to limit Liens on its assets under the terms of any Non-Recourse Indebtedness of such Permitted Joint Venture or the organizational documents with respect to such Permitted Joint Venture and (g) any prohibition or limitation that (i) exists pursuant to applicable Requirements of Law, (ii) consists of customary restrictions and conditions contained in any agreement relating to any Liens permitted under Section 7.2 , transaction permitted under Section 7.3 or the sale of any property permitted under Section 7.4 , (iii) restricts subletting or assignment of leasehold interests contained in any lease governing a leasehold interest of a Group Member, (iv) exists in any agreement in effect at the time such Subsidiary becomes a Restricted Subsidiary, so long as such agreement was not entered into in contemplation of such Person becoming a Subsidiary, (v) exists in any instrument governing Indebtedness assumed in connection with any Permitted Acquisition, which encumbrance or restriction is not applicable to any Person, or the Properties or assets of any Person, other than the Person or the Properties or assets of the Person so acquired, (vi) exists on the Closing Date and are listed on Schedule 7.10 , (vii) are customary provisions in joint venture agreements and other similar agreements applicable to joint ventures to the extent permitted under this Agreement, or (viii) is imposed by any amendments or

refinancings that are otherwise permitted by the Loan Documents or the contracts, instruments or obligations referred to in this Section 7.10 ; provided , that such amendments and refinancings are no more materially restrictive with respect to such prohibitions and limitations than those in effect prior to such amendment or refinancing (as determined in good faith and certified in writing to the Administrative Agent by a Responsible Officer of the Borrower).

7.11 Clauses Restricting Subsidiary Distributions . Enter into or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of the Borrower that is not a Loan Party to (a) make Restricted Payments in respect of any Capital Stock of such Restricted Subsidiary held by, or pay any Indebtedness owed to, the Borrower or any other Restricted Subsidiary of the Borrower, (b) make loans or advances to, or other Investments in, the Borrower or any other Restricted Subsidiary of the Borrower or (c) transfer any of its assets to the Borrower or any other Restricted Subsidiary of the Borrower, except for such encumbrances or restrictions existing under or by reason of:

(i) any restrictions existing under the Loan Documents;

(ii) any restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into in connection with the Disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary as permitted by Section 7.4 ;

(iii) any restrictions set forth in the Convertible Notes Documents or any agreement governing Junior Indebtedness so long as the restrictions set forth therein are not materially more restrictive than the corresponding provisions in the Loan Documents;

(iv) any agreements governing any purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in which case, any prohibition or limitation shall only be effective against the assets financed thereby);

(v) restrictions and conditions existing on the date hereof identified on Schedule 7.11 (but not to any amendment or modification expanding the scope or duration of any such restriction or condition);

(vi) restrictions or conditions imposed by any agreement relating to Liens permitted by this Agreement but solely to the extent that such restrictions or conditions apply only to the property or assets subject to such permitted Lien;

(vii) customary provisions in leases, licenses and other contracts entered into in the ordinary course of business restricting the assignment thereof;

(viii) customary restrictions in joint venture agreements and other similar agreements applicable to joint ventures permitted hereunder and applicable solely to such joint venture;

(ix) any agreement or arrangement already binding on a Person when it becomes a Restricted Subsidiary so long as such agreement or arrangement was not created in anticipation of such acquisition;

(x) any agreement of a Foreign Subsidiary governing Indebtedness permitted to be incurred or permitted to exist under Section 7.1 ;

(xi) Requirements of Law;

(xii) customary restrictions and conditions contained in any agreement relating to any transaction permitted under Section 7.3 or the sale of any property permitted under Section 7.4 pending the consummation of such transaction or sale;

(xiii) any instrument governing Indebtedness assumed in connection with any Permitted Acquisition, which encumbrance or restriction is not applicable to any Person, or the Properties or assets of any Person, other than the Person or the Properties or assets of the Person so acquired;

(xiv) any encumbrances or restrictions imposed by any amendments or refinancings that are otherwise permitted by the Loan Documents or the contracts, instruments or obligations referred to in this Section 7.11 ; provided that such amendments or refinancings are no more materially restrictive with respect to such encumbrances and restrictions than those in effect prior to such amendment or refinancing (as determined in good faith and certified in writing to the Administrative Agent by a Responsible Officer of the Borrower); or

(xv) restrictions imposed on any Permitted Joint Venture under the terms of any Non-Recourse Indebtedness.

7.12 Lines of Business . Enter into any business, either directly or through any Restricted Subsidiary, except for those businesses in which the Borrower and its Subsidiaries are engaged on the date of this Agreement (after giving effect to the Transaction) or that are reasonably related, incidental, ancillary or complementary thereto.

7.13 Partnerships . Become a general partner in any general or limited partnership, or permit any of its Subsidiaries to do so, other than any Subsidiary the sole assets of which consist of its interest in such partnership.

SECTION 8. EVENTS OF DEFAULT

Events of Default . If any of the following events shall occur and be continuing:

(a) the Borrower shall fail to pay any principal of any Term Loan when due in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Term Loan, or any other amount payable hereunder or under any other Loan Document, within five (5) Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or

(b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document shall prove to have been untrue in any

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material respect on or as of the date made or deemed made; or

(c) any Loan Party shall default in the observance or performance of any agreement contained in Section 6.4(a) (with respect to the Borrower only) or Section 7 of this Agreement; or

(d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8 ), and such default shall continue unremedied for a period of thirty (30) days after receipt by the Borrower of written notice thereof from the Administrative Agent; or

(e) any Group Member (other than any Unrestricted Subsidiary or Immaterial Subsidiary) (i) defaults in making any payment of any principal of any Material Indebtedness (including any Guarantee Obligation or Hedge Agreement that constitutes Material Indebtedness, but excluding the Term Loans) on the scheduled or original due date with respect thereto; or (ii) defaults in making any payment of any interest on any such Material Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (iii) defaults in the observance or performance of any other agreement or condition relating to any such Material Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Material Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Material Indebtedness to become due prior to its stated maturity or to become subject to a mandatory offer to purchase by the obligor thereunder; provided that such failure is unremedied and is not waived by the holders of such Indebtedness; provided further that this clause (e)(iii) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness; provided further that, to the extent the Indebtedness outstanding pursuant to the Fifth Street Credit Agreement is included on Schedule 7.1 , defaults or events of default the Fifth Street Credit Agreement shall not be subject to this clause (e) until the earlier of (x) 12:00 Noon, New York City time, on April 29, 2013 and (y) the date on which the repayment in full of the Indebtedness pursuant to the Fifth Street Credit Agreement, together with the release of all Liens (if any) with respect thereto, occurs;

(f) (i) any Group Member (other than any Unrestricted Subsidiary or Immaterial Subsidiary) shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, examinership or relief of debtors (a “Bankruptcy Law”), seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, examinership, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator, liquidator, examiner or other similar official for it or for all or any substantial part of its assets under

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a Bankruptcy Law, or any Group Member shall make a general assignment, composition, compromise, or arrangement with or for the benefit of its creditors; or (ii) there shall be commenced against any Group Member (other than any Unrestricted Subsidiary or Immaterial Subsidiary) any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or other relief with respect to it or its debts or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distress, distraint or similar process against all or any substantial part of the assets of the Group Members (other than any Unrestricted Subsidiary or Immaterial Subsidiary), taken as a whole, that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) any Group Member (other than any Unrestricted Subsidiary or Immaterial Subsidiary) shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Group Member, other than any Unrestricted Subsidiary or Immaterial Subsidiary, shall generally not, or shall be unable to, or shall under applicable law be deemed to be unable to, or shall admit in writing its inability to, pay its debts as they become due; or

(g) (i) any ERISA Event shall have occurred with respect to a Plan; (ii) any Group Member or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan; (iii) any Group Member or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan; (iv) any Group Member or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in Reorganization, Insolvent or has been determined to be in “endangered” or “critical” status within the meaning of Section 432 of the Code or Section 305 of ERISA; and in each case in clauses (i) through (iv) above, such event or condition, together with all other such events or conditions, if any, could reasonably be expected to have a Material Adverse Effect; or

(h) one or more judgments or decrees shall be entered against (i) any Group Member, other than any Unrestricted Subsidiary or Immaterial Subsidiary, and the same shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof and any such judgments or decrees is for the payment of money, individually or in the aggregate (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage), of $15,000,000 or more or (ii) any Group Member for injunctive relief which could reasonably be expected to have a Material Adverse Effect; or

(i) any Security Documents relating to material assets of the Group Members, taken as a whole, shall cease, for any reason, to be in full force and effect, or any Loan Party or any Subsidiary of any Loan Party shall so assert, or any Lien created by any of the Security Documents relating to material assets of the Group Members, taken as a whole, shall cease to be enforceable and of the same effect and priority purported to be

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created thereby (other than because of any action by the Collateral Agent, the Administrative Agent or any Lender); or any Loan Party or any Subsidiary of any Loan Party shall so assert; or

(j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party or any Subsidiary of any Loan Party shall so assert; or

(k) a Change in Control occurs; or

(l) the common Capital Stock of the Borrower ceases to be listed or quoted on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or any of their respective successors); or

(m) (i) any of the Obligations of the Loan Parties under the Loan Documents for any reason shall cease to be “senior debt,” “senior indebtedness,” “designated senior debt,” “guarantor senior debt” or “senior secured financing” (or any comparable term) under, and as defined in, any Junior Financing Documentation evidencing Material Indebtedness, (ii) the intercreditor or subordination provisions set forth in any Junior Financing Documentation evidencing Material Indebtedness shall, in whole or in part, cease to be effective or cease to be legally valid, binding and enforceable against the holders of such Junior Financing, if applicable or (iii) any Loan Party, any Subsidiary of any Loan Party shall assert any of the foregoing;

then, and in any such event, (A) if such event is an Event of Default specified in paragraph (f) above with respect to the Borrower, automatically the Commitments shall immediately terminate and the Term Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents shall immediately become due and payable, and (B) if such event is any other Event of Default, either or both of the following actions may be taken: with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Term Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents to be due and payable forthwith, whereupon the same shall immediately become due and payable. Except as expressly provided above in this Section 8 , presentment, demand, protest and all other notices of any kind are hereby expressly waived by the Borrower.

SECTION 9. THE AGENTS

9.1 Appointment .

(a) Each Lender (and, if applicable, each other Secured Party) hereby irrevocably designates and appoints each Agent as the agent of such Lender (and, if applicable, each other Secured Party) under this Agreement and the other Loan Documents, and each such Lender (and, if applicable, each other Secured Party) irrevocably authorizes such Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to such Agent by the terms of this Agreement and the other Loan Documents, together with such

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other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, no Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender or other Secured Party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent.

(b) Each of the Secured Parties hereby irrevocable designates and appoints Morgan Stanley Senior Funding, Inc. as collateral agent of such Secured Party under this Agreement and the other Loan Documents, and each such Secured Party irrevocably authorizes the Collateral Agent, in such capacity, to take such action on its behalf as are necessary or advisable with respect to the Collateral under this Agreement or any of the other Loan Documents, together with such powers as are reasonably incidental thereto. The Collateral Agent hereby accepts such appointment.

9.2 Delegation of Duties . Each Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The exculpatory provisions of Section 9.3 shall apply to any such agent or attorneys-in-fact and shall apply to their respective activities in connection with the syndication of the Loans as well as activities as Administrative Agent. No Agent shall be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.

9.3 Exculpatory Provisions . The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:

(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;

(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law;

(iii) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity;

(iv) shall not be liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a final and nonappealable decision of a court

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of competent jurisdiction to have resulted from its or such Person’s own gross negligence or willful misconduct);

(v) shall not be responsible in any manner to any of the Lenders or any other Secured Party for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or any Specified Hedge Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Agents under or in connection with, this Agreement or any other Loan Document or any Specified Hedge Agreement or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or any Specified Hedge Agreement or for any failure of any Loan Party a party thereto to perform its obligations hereunder or thereunder; and

(vi) shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document or any Specified Hedge Agreement, or to inspect the properties, books or records of any Loan Party.

9.4 Reliance by Agents . Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to the Borrower), independent accountants and other experts selected by such Agent. The Administrative Agent shall deem and treat the Lender specified in the Register with respect to any amount owing hereunder as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. Each Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Agents shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Term Loans and all other Secured Parties.

9.5 Notice of Default . No Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless such Agent has received notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all Lenders or any other instructing group of Lenders specified by this Agreement); provided that unless and until the Administrative Agent shall have received such

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directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Secured Parties.

9.6 Non-Reliance on Agents and Other Lenders . Each Lender (and, if applicable, each other Secured Party) expressly acknowledges that neither the Agents nor any of their respective officers, directors, employees, agents, attorneys-in-fact or affiliates have made any representations or warranties to it and that no act by any Agent hereafter taken, including any review of the affairs of a Loan Party or any affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any Lender or any other Secured Party. Each Lender (and, if applicable, each other Secured Party) represents to the Agents that it has, independently and without reliance upon any Agent or any other Lender or any other Secured Party, and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their affiliates and made its own decision to make its Loans hereunder and enter into this Agreement or any Specified Hedge Agreement. Each Lender (and, if applicable, each other Secured Party) also represents that it will, independently and without reliance upon any Agent or any other Lender or any other Secured Party, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents or any Specified Hedge Agreement, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender or any other Secured Party with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.

9.7 Indemnification . To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under Section 10.5 to be paid by it to any Agent Related Party (or any sub-agent thereof), each Lender severally agrees to pay to such Agent Related Party (or any such sub-agent thereof) such Lender’s Term Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that (a) the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against any Agent Related Party (or any such sub-agent thereof) and (b) no Lender shall be liable for the payment of any portion of such unreimbursed expense or indemnified loss, claim, damage, liability or related expense that is found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent’s gross negligence or willful misconduct. The agreements in this Section 9.7 shall survive the payment of the Term Loans and all other amounts payable hereunder.

9.8 Agent in Its Individual Capacity . Each Agent and its affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Loan Party

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as though such Agent were not an Agent. With respect to its Loans made or renewed by it, each Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not an Agent, and the terms “Lender,” “Lenders,” “Secured Party” and “Secured Parties” shall include each Agent in its individual capacity.

9.9 Successor Administrative Agent .

(a) The Administrative Agent and the Collateral Agent may resign as Administrative Agent and Collateral Agent, respectively, upon ten (10) days’ notice to the Lenders and the Borrower. If the Administrative Agent or Collateral Agent, as applicable, shall resign as Administrative Agent or Collateral Agent, as applicable, under this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall (unless an Event of Default under Section 8(a) or Section 8(f) with respect to the Borrower shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent or Collateral Agent, as applicable, and the term “Administrative Agent” or “Collateral Agent,” as applicable, shall mean such successor agent effective upon such appointment and approval, and the former Administrative Agent’s or Collateral Agent’s, as applicable, rights, powers and duties as Administrative Agent or Collateral Agent, as applicable, shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or Collateral Agent, as applicable, or any of the parties to this Agreement or any holders of the Term Loans. If no successor agent has accepted appointment as Administrative Agent or Collateral Agent, as applicable, by the date that is ten (10) days following a retiring Administrative Agent’s or Collateral Agent’s, as applicable, notice of resignation, the retiring Administrative Agent’s or Collateral Agent’s, as applicable, resignation shall nevertheless thereupon become effective and the Lenders shall assume and perform all of the duties of the Administrative Agent or Collateral Agent, as applicable, hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. After any retiring Administrative Agent’s or Collateral Agent’s, as applicable, resignation as Administrative Agent or retiring Collateral Agent’s resignation as Collateral Agent, as applicable, the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent or Collateral Agent, as applicable, under this Agreement and the other Loan Documents.

(b) Anything herein to the contrary notwithstanding, if at any time the Required Lenders determine that the Person serving as Administrative Agent is a Defaulting Lender, either (i) the Required Lenders (determined after giving effect to the final paragraph of Section 10.1 ) may by notice to the Borrower and such Person or (ii) the Borrower may by notice to the Required Lenders and such Person, with the prior written consent of the Required Lenders, remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a replacement Administrative Agent hereunder. Such removal will, to the fullest extent permitted by applicable law, be effective on the earlier of (i) the date a replacement Administrative Agent is appointed and (ii) the date ten (10) Business Days after the giving of such notice by the Required Lenders or the Borrower, as applicable (regardless of whether a replacement Administrative Agent has been appointed).

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9.10 Agents Generally . Except as expressly set forth herein, no Agent shall have any duties or responsibilities hereunder in its capacity as such.

9.11 Lender Action . Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy against any Loan Party or any other obligor under any of the Loan Documents, the Specified Hedge Agreements, or institute any actions or proceeds, or otherwise commence any remedial procedures, with respect to any Collateral or any other property of any such Loan Party, without the prior written consent of the Administrative Agent; provided that the foregoing shall not prohibit any Lender from filing proofs of claim during the pendency of a proceeding relative to any Loan Party under any bankruptcy or other debtor relief law.

9.12 Withholding Tax . To the extent required by any applicable law, an Agent shall withhold from any payment to any Lender an amount equal to any applicable withholding Tax. If the IRS or any other Governmental Authority asserts a claim that the Agent did not properly withhold Tax from any amount paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed, or because such Lender failed to notify the Agent of a change in circumstances that rendered the exemption from, or reduction of, withholding Tax ineffective), such Lender shall indemnify and hold harmless the Agent, within 10 days after demand therefor (to the extent that the Agent has not already been reimbursed by the Borrower and without limiting or expanding the obligation of the Borrower to do so), for all amounts paid, directly or indirectly, by the Agent as tax or otherwise, including any penalties, additions to Tax or interest thereon, together with all expenses incurred, including legal expenses and any expenses, whether or not such Tax was correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Agent under this Section 9.12 . The agreements in this Section 9.12 shall survive the resignation and/or replacement of the Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Term Loans and the repayment, satisfaction or discharge of all obligations under this Agreement. Unless required by applicable laws, at no time shall the Agent have any obligation to file for or otherwise pursue on behalf of a Lender any refund of Taxes withheld or deducted from funds paid for the account of such Lender.

9.13 Administrative Agent May File Proof of Claims . In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent shall be entitled and empowered, by intervention in such proceeding or otherwise:

(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Secured Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Secured Parties and the Administrative Agent (including any claim for the compensation, expenses, disbursements and advances of the Secured Parties and their respective

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agents and counsel and all other amounts due the Secured Parties under the Loan Documents) allowed in such judicial proceeding; and

(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Secured Parties, to pay to the Administrative Agent any amount due for the compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due the Administrative Agent under the Loan Documents.

9.14 Appointment of Supplemental Collateral Agents .

(a) It is the purpose of this Agreement and the other Loan Documents that there shall be no violation of any law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as agent or trustee in such jurisdiction. It is recognized that in case of litigation under this Agreement or any of the other Loan Documents, and in particular in case of the enforcement of any of the Loan Documents, or in case the Collateral Agent deems that by reason of any present or future law of any jurisdiction it may not exercise any of the rights, powers or remedies granted herein or in any of the other Loan Documents or take any other action which may be desirable or necessary in connection therewith, it may be necessary that the Collateral Agent appoint an additional individual or institution as a separate trustee, co-trustee, collateral agent, collateral sub-agent or collateral co-agent (any such additional individual or institution being referred to herein as a “Supplemental Collateral Agent”).

(b) In the event that the Collateral Agent appoints a Supplemental Collateral Agent with respect to any Collateral (i) each and every right, power, privilege or duty expressed or intended by this Agreement or any of the other Loan Documents to be exercised by or vested in or conveyed to the Collateral Agent with respect to such Collateral shall be exercisable by and vest in such Supplemental Collateral Agent to the extent, and only to the extent, necessary to enable such Supplemental Collateral Agent to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Loan Documents and necessary to the exercise of performance thereof by such Supplemental Collateral Agent shall run to and be enforceable by either the Collateral Agent or such Supplemental Collateral Agent, and (ii) the provisions of Section 9 and of Section 10.5 that refer to the Collateral Agent shall inure to the benefit of such Supplemental Collateral Agent and all references therein to the Collateral Agent shall be deemed to be references to the Collateral Agent and/or such Supplemental Collateral Agent, as the context may require.

(c) Should any instrument in writing from any Loan Party be required by any supplemental Collateral Agent so appointed by the Collateral Agent for more fully and certainly vesting in and confirming to him or it such rights, powers, privileges and duties, such Loan Party shall execute, acknowledge and deliver any and all such instruments promptly upon request by the Collateral Agent. In case any Supplemental Collateral Agent, or a successor thereto, shall die,

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become incapable of acting, resign or be removed, all the rights, powers, privileges and duties of such Supplemental Collateral Agent, to the extent permitted by law, shall vest in and be exercised by the Collateral Agent until the appointment of a new Supplemental Collateral Agent.

SECTION 10. MISCELLANEOUS

10.1 Amendments and Waivers . Neither this Agreement, any other Loan Document, nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this Section 10.1 . The Required Lenders and each Loan Party party to the relevant Loan Document may, or, with the written consent of the Required Lenders, the Administrative Agent and each Loan Party party to the relevant Loan Document may, from time to time, (a) enter into written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided , however, that no such waiver and no such amendment, supplement or modification shall:

(i) forgive the principal amount or extend the final scheduled date of maturity of any Term Loan, extend the scheduled date of any amortization payment in respect of any Term Loan, reduce the stated rate of any interest or forgive or reduce any interest or fee payable hereunder (except in connection with the waiver of applicability of any post-default increase in interest rates, which waiver shall be effective with the consent of the Required Lenders), extend the scheduled date of any payment thereof, or increase the amount or extend the expiration date of any Lender’s Commitment or release all or substantially all of the Collateral or release the Borrower or all or substantially all of the Subsidiary Guarantors from their obligations under the Guarantee and Collateral Agreement, in each case without the written consent of each Lender directly affected thereby; provided that neither any amendment, modification or waiver of a mandatory prepayment required hereunder, nor any amendment of Section 3.2 or any related definitions including Asset Sale, Excess Cash Flow, or Recovery Event, shall constitute a reduction of the amount of, or an extension of the scheduled date of, any principal installment of any Term Loan or Note or other amendment, modification or supplement to which this clause (i) is applicable;

(ii) reduce any percentage specified in the definition of Required Lenders, consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, in each case without the written consent of all Lenders;

(iii) amend, modify or waive any provision of Section 3.8(a) or 10.7(a) of this Agreement or Section 6.5 of the Guarantee and Collateral Agreement, in each case without the written consent of all Lenders;

(iv) amend, modify or waive any provision of Section 9 without the

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written consent of each Agent adversely affected thereby;

(v) amend, modify or waive any provision of Section 10.6 to further restrict any Lender’s ability to assign or otherwise transfer its obligations hereunder without the written consent of all Lenders adversely affected thereby; and

(vi) amend, modify or waive (A) any provision of any Loan Document so as to alter the ratable sharing of payments required thereby or (B) the definition of “Qualified Counterparty,” “Specified Hedge Agreement,” or “Obligations,” in each case in a manner adverse to any Qualified Counterparty with Obligations then outstanding without the written consent of any such Qualified Counterparty.

Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the Agents and all future holders of the Term Loans.

In the case of any waiver, the Loan Parties, the Lenders and the Agents shall be restored to their former position and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.

In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“ Refinanced Term Loans ”) with a replacement term loan tranche hereunder (“ Replacement Term Loans ”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans plus accrued interest, fees and expenses related thereto, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the applicable Term Loans) and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.

If, in connection with any proposed amendment, modification, waiver or termination requiring the consent of all Lenders, the consent of the Required Lenders is obtained, but the consent of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained being referred to as a “ Non-Consenting Lender ”), then, so long as the Administrative Agent is not a Non-Consenting Lender, the Administrative Agent or a Person reasonably acceptable to the Administrative Agent shall have the right but not the obligation to purchase at par from such Non-Consenting Lenders, and such Non-Consenting Lenders agree

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that they shall, upon the Administrative Agent’s request, sell and assign to the Administrative Agent or such Person, all of the Term Loans of such Non-Consenting Lenders for an amount equal to the principal balance of all such Term Loans held by such Non-Consenting Lenders and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment and Assumption. In addition to the foregoing, the Borrower may replace any Non-Consenting Lender pursuant to Section 3.13 .

Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and restated), modified or supplemented with the written consent of the Administrative Agent and the Borrower (a) to cure any ambiguity, omission, defect or inconsistency, so long as such amendment, modification or supplement does not adversely affect the rights of any Lender, (b) to add one or more additional credit facilities with respect to Incremental Term Loans to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans, as applicable, and the accrued interest and fees in respect thereof and (c) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders; provided , that the conditions set forth in Section 2.4 are satisfied.

Anything herein to the contrary notwithstanding, during such period as a Lender is a Defaulting Lender, to the fullest extent permitted by applicable law, such Lender will not be entitled to vote in respect of amendments and waivers hereunder and the Commitment and the outstanding Loans or other extensions of credit of such Lender hereunder will not be taken into account in determining whether the Required Lenders or all of the Lenders, as required, have approved any such amendment or waiver (and the definition of “Required Lenders” will automatically be deemed modified accordingly for the duration of such period); provided that, subject to the limitations set forth in the first paragraph of this Section 10.1 , any such amendment or waiver that would increase or extend the term of the Commitment of such Defaulting Lender, extend the date fixed for the payment of principal or interest owing to such Defaulting Lender hereunder, reduce the principal amount of any obligation owing to such Defaulting Lender, reduce the amount of or the rate or amount of interest on any amount owing to such Defaulting Lender or of any fee payable to such Defaulting Lender hereunder, or alter the terms of this proviso, will require the consent of such Defaulting Lender.

10.2 Notices .

(a) All notices and other communications provided for hereunder shall be either (x) in writing (including telecopy or e-mail communication) and mailed, telecopied or delivered or (y) as and to the extent set forth in Section 10.2(b) as follows:

(i) if to the Borrower, at its address at 640 Lee Road, Chesterbrook, Pennsylvania, 19087, Attention: Chief Financial Officer and General Counsel, E-mail Addresses: jfickenscher@auxilium.com and akoven@auxilium.com, with a copy to Morgan, Lewis & Bockius LLP, at its address at 101 Park Avenue, New York, New York 10178, Attention: Patricia F. Brennan, E-mail Address: pbrennan@morganlewis.com;

(ii) if to the Collateral Agent or the Administrative Agent, at its address

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at 1585 Broadway, New York, New York 10036, Attention: MS Agency, E-mail Address: msagency@morganstanley.com; or

(iii) as to any party, at such other address as shall be designated by such party in a written notice to the other parties;

provided , however, that materials and information described in Section 10.2(b) shall be delivered to the Administrative Agent in accordance with the provisions thereof or as otherwise specified to the Borrower by the Administrative Agent. Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given or made upon the earlier of (i) actual receipt by the relevant party hereto, (ii) if delivered by hand or courier, when signed for by or on behalf of the relevant party hereto, and (iii) four days after having been mailed; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that notices and communications to any Agent pursuant to Sections 2 and 9 shall not be effective until received by such Agent). Delivery by telecopier of an executed counterpart of a signature page to any amendment or waiver of any provision of this Agreement or the Notes or of any Exhibit hereto to be executed and delivered hereunder shall be effective as delivery of an original executed counterpart thereof.

(b) The Borrower hereby agrees that it will provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Loan Documents, including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (i) relates to a request for a new, or a conversion of an existing, borrowing or other extension of credit (including any election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (iii) provides notice of any default or event of default under this Agreement or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any borrowing or other extension of credit hereunder (all such non-excluded communications being referred to herein collectively as “ Communications ”), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Administrative Agent to an electronic address specified by the Administrative Agent to the Borrower. In addition, the Borrower agrees to continue to provide the Communications to the Agents in the manner specified in the Loan Documents but only to the extent requested by the Administrative Agent.

(c) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE ADMINISTRATIVE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS, EXCEPT TO THE EXTENT THE LIABILITY OF SUCH PERSON IS FOUND IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR

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FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, “ ADMINISTRATIVE AGENT PARTIES ”) HAVE ANY LIABILITY TO THE BORROWER, ANY LENDER PARTY OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET.

The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees that notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees (i) to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such e-mail address. Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.

10.3 No Waiver; Cumulative Remedies . No failure to exercise and no delay in exercising, on the part of any Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

10.4 Survival of Representations and Warranties . All representations and warranties made hereunder, in the other Loan Documents and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Term Loans and other extensions of credit hereunder and shall continue in full force and effect as long as any Term Loan or any other Obligation hereunder shall remain unpaid or unsatisfied and so long as the Commitments of any Lender have not been terminated.

10.5 Payment of Expenses and Taxes; Indemnity .

(a) The Borrower agrees (i) to pay or reimburse each Agent for all its reasonable and documented costs and expenses incurred in connection with the preparation, negotiation, execution and delivery, and any amendment, supplement or modification to, this

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Agreement and the other Loan Documents, any security arrangements in connection therewith and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable invoiced fees and disbursements of counsel to such parties (limited to primary outside counsel and one outside counsel for each local jurisdiction and if reasonably necessary (as determined by such Age nt ) regulatory and specialist counsel and if reasonably necessary (as determined by such by such Agent) and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower prior to the Closing Date (in the case of amounts to be paid on the Closing Date) and from time to time thereafter as such parties shall deem appropriate and (ii) to pay or reimburse each Lender and Agent for all its documented costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any such other documents, including the reasonable and invoiced fees and disbursements of counsel to such parties and any documented costs and expenses incurred during any workout or restructuring.

(b) The Borrower agrees (i) to pay, indemnify, and hold each Lender and each Agent and their respective affiliates (including, without limitation, controlling persons) and each member, partner, director, officer, employee, advisor, agent, affiliate, successor, partner, member, representative and assign of each of the forgoing (each, an “ Indemnitee ”) harmless from, any and all recording and filing fees, if any, that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such other documents, and (ii) to pay, indemnify, and hold each Indemnitee harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, documented out-of-pocket costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents (regardless of whether any Loan Party or equity holder of any Loan Party is or is not a party to any such actions or suits) and any such other documents, including any of the foregoing relating to the use of proceeds of the Term Loans, or violation of, noncompliance with or liability under, any Environmental Law relating to any Group Member or any of the Properties, including the presence, Release or threat of Releases of or exposure to any Materials of Environmental Concern, and the reasonable and documented fees and expenses of legal counsel (limited to primary outside counsel and one outside counsel for each local jurisdiction and if reasonably necessary (as determined by such Age nt, Lender or affiliate ) regulatory and specialist counsel and if reasonably necessary (as determined by such by such Age nt, Lender or affiliate ) in connection with claims, actions or proceedings by any Indemnitee against any Loan Party under any Loan Document (all the foregoing in this clause (ii), collectively, the “ Indemnified Liabilities ”); provided, that the Borrower shall not have any obligation hereunder to any Indemnitee with respect to Indemnified Liabilities (x) to the extent such Indemnified Liabilities are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee or its Related Indemnified Persons, (y) that do not involve an act or omission by the Borrower or any of its affiliates and that is brought by an indemnified person against any other indemnified person (other than any action, proceeding or other matter against Morgan Stanley Senior Funding, Inc. solely in its capacity or in fulfilling its role as an Agent or Lead Arranger or similar role under the Term Loan Facility) or (z) in relation to any settlement effected by any

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Indemnitee without the Borrower’s consent . Without limiting the foregoing, and to the extent permitted by applicable law, the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries to waive, all rights for contribution or any other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee except to the extent found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee or its Related Indemnified Persons. Statements payable by the Borrower pursuant to this Section 10.5 shall be submitted to the Chief Financial Officer, at the address of the Borrower set forth in Section 10.2 , or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent. The agreements in this Section 10.5 shall survive repayment of the Term Loans and all other amounts payable hereunder.

(c) To the fullest extent permitted by applicable law, neither the Borrower nor any Indemnitee shall assert, and each of the Borrower and each Indemnitee does hereby waive, any claim against any party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Term Loan or the use of the proceeds thereof; provided that the foregoing shall not limit the indemnification obligations of the Borrower under clause (b) above to the extent they arise from claims of third parties against an Indemnitee for such special, indirect, consequential or punitive damages. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

(d) The Borrower shall not, without the prior written consent of the Indemnitee, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnitee is a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of each Indemnitee from all liability arising out of such proceeding and (ii) does not include a statement as to, or an admission of, fault, culpability, or a failure to act by or on behalf of such Indemnitee.

(e) The Borrower will not be liable under this Agreement for any amount paid by an Indemnitee to settle any claims or actions if the settlement is entered into without the Borrower’s consent (which consent shall not be unreasonably withheld or delayed); provided , that this Section 10.5(e) shall not apply to those settlements where the Borrower was offered the ability to assume the defense of the action that directly and specifically related to the subject matter of such settlement and elected not to assume such defense.

(f) All amounts due under this Section 10.5 shall be payable not later than ten (10) days after demand therefor.

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10.6 Successors and Assigns; Participations and Assignments .

(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except (x) to an assignee in accordance with the provisions of paragraph (b) of this Section 10.6 , (y) by way of participation in accordance with the provisions of paragraph (e) of this Section 10.6 or (z) by way of pledge or assignment of a security interest subject to the restrictions of paragraph (g) of this Section 10.6 (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, express or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors as assigns permitted hereby, Participants to the extent provided in paragraph (e) of this Section 10.6 and, to the extent expressly contemplated hereby, the Affiliates of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) Any Lender may assign to one or more assignees (each, an “ Assignee ”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Term Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:

(i) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, an assignment effected by the Administrative Agent in connection with the primary syndication of the Term Loans an assignment of the entire remaining amount of the assigning Lender’s Commitments or Term Loans, the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $1,000,000 unless each of the Borrower and the Administrative Agent otherwise consent (such consent not to be unreasonably withheld or delayed); provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;

(ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Term Loan or the Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate tranches of Loans (if any) on a non-pro rata basis;

(iii) upon its receipt of an Assignment and Assumption executed by an assigning Lender and an assignee, together with any Term Note or Term Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit A hereto: (i) accept such Assignment and Assumption, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in

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exchange for the surrendered Term Note or Term Notes (which shall be “Amended and Restated”), an amended and restated Term Note to the order of such Eligible Assignee in an amount equal to the Term Advances assumed by it under the Term Facility pursuant to such Assignment and Assumption and, if any assigning Lender has retained a Term Advance hereunder under the Term Facility, a Term Note to the order of such assigning Lender in an amount equal to the Commitment retained by it hereunder. Such an amended and restated Term Note or Term Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Term Note or Term Notes, shall be dated the effective date of such Assignment and Assumption, as the case may be;

(iv) no consent shall be required for any assignment except to the extent required by paragraph (b)(i) of this Section 10.6 and, in addition, the consent of:

(A) the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default under Section 8(a) or (f) has occurred and is continuing at the time of such assignment, (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received a draft of the relevant Assignment and Assumption or such assignment is made during the primary syndication of the Term Loans; and

(B) the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of the Term Facility if such assignment is to an Assignee that is not a Lender, an Affiliate of a Lender or an Approved Fund;

(v) except in the case of assignments pursuant to paragraph (c) below, the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 (it being understood that payment of only one processing fee shall be required in connection with simultaneous assignments to two or more Approved Funds); provided that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment; and the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire;

(vi) No such assignment shall be made to (A) the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural Person; and

(vii) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment,

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purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent and each Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

Except as otherwise provided in paragraph (c) below, subject to acceptance and recording thereof pursuant to paragraph (d) below, from and after the effective date specified in each Assignment and Assumption the Eligible Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.9 , 3.10 , 3.11 and 10.5 ; provided , with respect to such Section 3.10 , that such Lender continues to comply with the requirements of Sections 3.10 and 3.10(e) . Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.6 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (e) of this Section 10.6 .

(c) Notwithstanding anything in this Section 10.6 to the contrary, a Lender may assign any or all of its rights hereunder to an Affiliate of such Lender or an Approved Fund of such Lender without (a) providing any notice (including, without limitation, any administrative questionnaire) to the Administrative Agent or any other Person or (b) delivering an executed Assignment and Assumption to the Administrative Agent; provided that (A) such assigning Lender shall remain solely responsible to the other parties hereto for the performance of its obligations under this Agreement, (B) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such assigning Lender in connection with such assigning Lender’s rights and obligations under this Agreement until an Assignment and Assumption and an administrative questionnaire have been delivered to the Administrative Agent, (C) the failure of such assigning Lender to deliver an Assignment and Assumption or administrative questionnaire to the Administrative Agent or any other Person shall not affect the legality, validity or binding effect of such assignment and (D) an Assignment and Assumption between an assigning Lender and its Affiliate or Approved Fund shall be effective as of the date specified in such Assignment and Assumption.

(d) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Assumption delivered to it and a register for the recordation of the

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names and addresses of the Lenders, and the Commitments of, and principal amount of and interest owing with respect to the Term Loans owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). Subject to the penultimate sentence of this paragraph (d), the entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. In the case of an assignment to an Affiliate of a Lender or an Approved Fund pursuant to paragraph (c), as to which an Assignment and Assumption and an administrative questionnaire are not delivered to the Administrative Agent, the assigning Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register (a “ Related Party Register ”) comparable to the Register on behalf of the Borrower. The Register or Related Party Register shall be available for inspection by the Borrower and any Lender at the Administrative Agent’s office at any reasonable time and from time to time upon reasonable prior notice. Except as otherwise provided in paragraph (c) above, upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b)(iv) of this Section 10.6 and any written consent to such assignment required by paragraph (b) of this Section 10.6 , the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. Except as otherwise provided in paragraph (c) above, no assignment shall be effective for purposes of this Agreement unless and until it has been recorded in the Register (or, in the case of an assignment pursuant to paragraph (c) above, the applicable Related Party Register) as provided in this paragraph (d). The date of such recordation of a transfer shall be referred to herein as the “ Assignment Effective Date .”

(e) Any Lender may, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to one or more banks or other entities (a “ Participant ”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Term Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (D) no participation shall be permitted to be made to the Borrower or any of its Subsidiaries or Affiliates, nor any officer or director of any such Person. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that requires the consent of each Lender directly affected thereby pursuant to the proviso to the second sentence of Section 10.1 . Subject to paragraph (f) of this Section 10.6 , the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.9 , 3.10 and 3.11 to the same extent as if it were a Lender (subject to the requirements and obligations of those sections including the documentary requirements in Section 3.10(e) , (f) and (g) (it being understood that the documentation required by Section 3.10 shall be delivered to the participating lender)) and had acquired its interest by assignment pursuant to paragraph (b) of

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this Section 10.6 . To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.7(b) as though it were a Lender; provided such Participant shall be subject to Section 10.7(a) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower and solely for tax purposes, maintain a register complying with the requirements of Section 163(f), 871(h) and 881(c)(2) of the Code and the Treasury regulations issued thereunder relating to the exemption from withholding for portfolio interest on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Term Loans or other obligations under this Agreement (the “Participant Register”); provided , that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other obligations under this Agreement) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Unless otherwise required by the IRS, any disclosure required by the foregoing sentence shall be made by the relevant Lender directly and solely to the IRS. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(f) A Participant shall not be entitled to receive any greater payment under Section 3.9 , 3.10 or 3.11 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant had no such participation been transferred to such Participant, unless the entitlement to a greater payment results from a change in any Requirement of Law after the date such Participant became a Participant.

(g) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section 10.6 shall not apply to any such pledge or assignment of a security interest or to any such sale or securitization; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto.

(h) Notwithstanding anything to the contrary contained in this Section 10.6 or any other provision of this Agreement, each Lender shall have the right at any time to sell, assign or transfer all or a portion of its Term Loans owing to it to Borrower on a non- pro rata basis (provided, however, that each assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any applicable Term Loan), subject to the following limitations:

(i) no Default or Event of Default has occurred and is then continuing, or would immediately result therefrom;

(ii) Borrower shall repurchase such Term Loans through conducting one

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or more modified Dutch auctions or other buy-back offer processes (each, an “ Offer Process ”) with a third party financial institution as auction agent to repurchase all or any portion of the Term Loans provided that, (A) notice of such Offer Process shall be made to all Term Lenders and (B) such Offer Process is conducted pursuant to procedures established by the Administrative Agent which are consistent with this Section 10.6(h) and are otherwise reasonably acceptable to Borrower and the Administrative Agent;

(iii) with respect to all repurchases made by Borrower pursuant to this Section 10.6(h) , (1) Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer stating that (x) the Borrower is not in possession of any information regarding its Subsidiaries or its Affiliates, or their assets, Borrower’s ability to perform its Obligations or any other matter that may be material to a decision by any Lender to participate in any offer or enter into any Assignment and Assumption or any of the transactions contemplated thereby that has not previously been disclosed to the Administrative Agent and Private Siders, (y) no Default or Event of Default has occurred and is continuing or would result from such repurchase and (z) the assigning Lender and Borrower shall execute and deliver to the Administrative Agent an Assignment and Assumption in form and substance reasonably satisfactory to the Administrative Agent; and

(iv) following repurchase by Borrower pursuant to this Section, the Term Loans so repurchased shall, without further action by any Person, be deemed cancelled for all purposes and no longer outstanding (and may not be resold by Borrower), for all purposes of this Agreement and all other Loan Documents, including, but not limited to (1) the making of, or the application of, any payments to the Lenders under this Agreement or any other Loan Document, (2) the making of any request, demand, authorization, direction, notice, consent or waiver under this Agreement or any other Loan Document or (3) the determination of Required Lenders, or for any similar or related purpose, under this Agreement or any other Loan Document and the Borrower shall neither obtain nor have any rights as a Lender hereunder or under the other Loan Documents by virtue of such repurchase (without limiting the foregoing, in all events, such Term Loans may not be resold or otherwise assigned, or subject to any participation, or otherwise transferred by the Borrower. In connection with any Term Loans repurchased and cancelled pursuant to this Section 10.6(h) the Administrative Agent is authorized to make appropriate entries in the Register to reflect any such cancellation.

10.7 Sharing of Payments; Set-off .

(a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender, if any Lender (a “ Benefited Lender ”) shall, at any time after the Term Loans and other amounts payable hereunder shall become due and payable pursuant to Section 8 , receive any payment of all or part of the Obligations owing to it, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(f) , or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the Obligations owing to such other Lender, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the Obligations owing to each

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such other Lender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided , however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a director creditor of each Loan Party in the amount of such participation to the extent provided in clause (b) of this Section 10.7 .

(b) In addition to any rights and remedies of the Lenders provided by law, subject to Section 9.11 , each Lender shall have the right, without prior notice to the Borrower, any such notice being expressly waived by the Borrower, and to the extent permitted by applicable law, upon the occurrence of any Event of Default which is continuing, upon any amount becoming due and payable by the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application.

(c) Notwithstanding anything to the contrary contained herein, the provisions of this Section 10.7 shall be subject to the express provisions of this Agreement which require or permit differing payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.

10.8 Counterparts . This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile transmission or electronic mail (in “.pdf” or similar format) shall be effective as delivery of a manually executed counterpart hereof.

10.9 Severability . Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

10.10 Integration . This Agreement and the other Loan Documents represent the entire agreement of the Borrower, the Agents and the Lenders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by any Agent or any Lender relative to subject matter hereof not expressly set forth or referred to herein

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or in the other Loan Documents.

10.11 GOVERNING LAW . THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK; PROVIDED , THAT, THE INTERPRETATION OF THE DEFINITION OF “CLOSING DATE MATERIAL ADVERSE EFFECT” (AND THE DEFINITION OF “MATERIAL ADVERSE EFFECT” AS DEFINED IN THE MERGER AGREEMENT) (AND WHETHER OR NOT A CLOSING DATE MATERIAL ADVERSE EFFECT HAS OCCURRED) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.

10.12 Submission to Jurisdiction; Waivers . Each of the parties hereto hereby irrevocably and unconditionally:

(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of New York sitting in the Borough of Manhattan, the courts of the United States for the Southern District of New York, and appellate courts from any thereof;

(b) consents that any such action or proceeding shall be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;

(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the address set forth in Section 10.2 or on the signature pages hereof, as the case may be, or at such other address of which the Administrative Agent shall have been notified pursuant thereto; and

(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction.

10.13 Acknowledgments . The Borrower hereby acknowledges that:

(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents;

(b) each Agent, each Lender and their Affiliates (collectively, solely for

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purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Loan Parties, their stockholders and/or their affiliates. Each Loan Party agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and such Loan Party, its stockholders or its affiliates, on the other. The Loan Parties acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Loan Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Loan Party, its stockholders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Loan Party, its stockholders or its Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of any Loan Party, its management, stockholders, creditors or any other Person. Each Loan Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each Loan Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Loan Party, in connection with such transaction or the process leading thereto; and

(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lenders or among the Borrower and the Lenders.

10.14 Releases of Guarantees and Liens .

(a) Notwithstanding anything to the contrary contained herein or in any other Loan Document, each of the Administrative Agent and the Collateral Agent is hereby irrevocably authorized by each Secured Party (without requirement of notice to or consent of any Secured Party except as expressly required by Section 10.1 ) to take any action requested by the Borrower having the effect of releasing any Collateral or guarantee obligations (i) to the extent necessary to permit consummation of any transaction not prohibited by any Loan Document (including, without limitation, (x) the release of any Subsidiary Guarantor from its obligations under the Loan Documents if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted hereunder, (y) the release from the Collateral of any assets disposed to a Person other than a Loan Party in accordance with this Agreement and (z) the release from the Collateral of any assets of any Person that ceases to be a Subsidiary Guarantor in accordance with this Agreement ) or that has been consented to in accordance with Section 10.1 ; provided that no such release shall occur if (x) such Subsidiary Guarantor continues to be a guarantor in respect of any Junior Financing or (y) such Collateral continues to secure any Junior Financing or (ii) under the circumstances described in paragraph (b) below.

(b) At such time as (i) the Term Loans and the other Obligations (other than

125

Unasserted Contingent Obligations shall have been paid in full or Cash Collateralized and (ii) the Commitments have been terminated, the Collateral shall be released from the Liens created by the Security Documents, and the Security Documents and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent, the Collateral Agent and each Loan Party under the Security Documents shall terminate, all without delivery of any instrument or performance of any act by any Person. At such time, the Collateral Agent shall take such actions as are reasonably necessary, at the cost of the Borrower, to effect each release described in this Section 10.14 in accordance with the relevant provisions of the Security Documents.

10.15 Confidentiality . Each Agent and each Lender agrees to keep confidential all non-public information provided to it by any Loan Party pursuant to this Agreement that is designated by such Loan Party as confidential in accordance with its customary procedures; provided that nothing herein shall prevent any Agent or any Lender from disclosing any such information (a) to any Agent, any other Lender, any Affiliate of a Lender or any Approved Fund (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) subject to an agreement to comply with confidentiality provisions at least as restrictive as the provisions of this Section 10.15 , to any actual or prospective Transferee or any direct or indirect counterparty to any Hedge Agreement (or any professional advisor to such counterparty), (c) to its employees, directors, members, partners, agents, attorneys, accountants and other professional advisors or those of any of its affiliates (it being understood that the Person to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (d) upon the request or demand of any Governmental Authority, (e) in response to any order of any court or other Governmental Authority or as may otherwise be required pursuant to any Requirement of Law, (f) if requested or required to do so in connection with any litigation or similar proceeding, (g) that has been publicly disclosed (other than as a result of a disclosure in violation of this Section 10.15 ), (h) to the National Association of Insurance Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, or (i) in connection with the exercise of any remedy hereunder or under any other Loan Document; provided that, unless specifically prohibited by applicable law or court order, each Lender shall notify the Borrower of any request by any Governmental Authority or representative thereof (other than any such request in connection with any examination of the financial condition or other routine examination of such Lender by such Governmental Authority) for disclosure of any such non-public information prior to disclosure of such information.

10.16 WAIVERS OF JURY TRIAL . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH

126

OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

10.17 Patriot Act Notice . Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it may be required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Loan Party in accordance with the Patriot Act.

10.18 Intercreditor Agreements . Each Lender hereby agrees that the Administrative Agent may enter into any intercreditor agreement pursuant to the terms hereof (including with respect to Junior Indebtedness) on its behalf and agrees to be bound by the terms thereof and consents and agrees to the appointment of Morgan Stanley Senior Funding, Inc. (or its affiliated designee) on its behalf as collateral agent thereunder.

[ Remainder of Page Intentionally Left Blank ]

127

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.

AUXILIUM PHARMACEUTICALS, INC.,
as Borrower


By:	/s/ Adrian Adams
	Name:	Adrian Adams
	Title:	CEO and President

Signature Page to

Credit Agreement

MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent and Collateral Agent


By:	/s/ Nathan Speicher
	Name:	Nathan Speicher
	Title:	Authorized Signatory

Signature Page to

Credit Agreement

MORGAN STANLEY SENIOR FUNDING, INC.,
as a Term Lender


By:	/s/ Nathan Speicher
	Name:	Nathan Speicher
	Title:	Authorized Signatory

Signature Page to

Credit Agreement

SCHEDULE 1.1

Commitments

Lender	Amount of Term Loan Commitment		Percentage of Term Loan Commitment
Morgan Stanley Senior Funding, Inc.	$	225,000,000	100	%
Total	$	225,000,000	100	%

SCHEDULE 4.7(b)

Owned Real Property

Record Owner	Address	Gross Book Value
Actient Pharmaceuticals LLC	70 High Street, Rye City, New York	$	1,318,978

SCHEDULE 4.7(c)

Leased Real Property

Lessor	Lessee	Address
Chesterbrook Partners LLP	Auxilium Pharmaceuticals, Inc.	640 Lee Road, Chesterbrook, Chester County, PA
Liberty Property Limited Partnership	Auxilium Pharmaceuticals, Inc.	40 Valley Stream Parkway, Malvern, Chester County, PA
Liberty Property Limited Partnership	Auxilium Pharmaceuticals, Inc.	102 Rock Road, Horsham, Montgomery County, PA
ARE-PA REGION NO. 6, LLC	Auxilium Pharmaceuticals, Inc.	102 Witmer Road, Horsham, Montgomery County, PA
Heffernan & Partners	Auxilium Pharmaceuticals, Inc.	420 Babylon Road, Suite F, Horsham, Montgomery County, PA
Duke/Kane, LLC	Slate Pharmaceuticals, Inc.	Suite 1022, 10th Floor, 4208 Six Forks Road, Raleigh, Wake County, NC(1)
Keystone Technology Park Two LLC and Slate Pharmaceuticals, Inc.	Slate Pharmaceuticals, Inc.	Suite 100, Building IX, 633 Davis Drive, Durham, Durham County, NC
FR National Life, LLC	Timm Medical Technologies, Inc.	Suite T, 9600 West 76th Street, Eden Prairie, Hennipin County, MN
ICON Clinical Research, Inc.	Actient Pharmaceuticals LLC	150 South Saunders Road, Lake Forest, Lake County, IL
KGL Property Development LLC	70 Maple Avenue, LLC	70 Maple Ave, Rye City, Westchester County, NY

(1) Currently subject to a sublease to Sprout Pharmaceuticals, Inc.

SCHEDULE 4.14

Subsidiaries

Group Member	Jurisdiction of Incorporation/ Formation	Authorized Shares	Issued Shares	Certificate No.	Owner/Percentage
Auxilium Pharmaceuticals, Inc.	Delaware	n/a	n/a	n/a	n/a
Auxilium International Holdings, Inc.	Delaware	1,000	100	1	Auxilium Pharmaceuticals, Inc. — 100% common
Auxilium US Holdings, LLC	Delaware	1	1	1	Auxilium Pharmaceuticals, Inc. — 100% membership interest
GTCR/Actient Holdings/B Corp.	Delaware	1,000	n/a	n/a	Auxilium Pharmaceuticals, Inc. — 100% common
Actient Holdings LLC	Delaware	n/a	n/a	n/a	Auxilium Pharmaceuticals, Inc. — 84% membership interest GTCR/Actient Holdings/B Corp. — 16% membership interest
Actient Pharmaceuticals LLC	Delaware	100	100	C-1	Actient Holdings LLC — 100% membership interest
Slate Pharmaceuticals, Inc.	Delaware	10,000,000	1,000	C-132	Actient Pharmaceuticals LLC — 100% membership interest
Actient Therapeutics LLC	Delaware	100 common 100 preferred	100 common 100 preferred	C-1, C-2 C-3, P-1	Actient Pharmaceuticals LLC — 95% common Slate Pharmaceuticals, Inc. — 5% common; 100% Preferred
70 Maple Avenue, LLC	Delaware	10	10	1	Actient Pharmaceuticals LLC — 100% membership interest
Timm Medical	Delaware	10	10	1	Actient

Holdings, LLC										Pharmaceuticals LLC — 100% membership interest
Timm Medical Technologies, Inc.		Delaware		1,000		1,000		2		Timm Medical Holdings, LLC — 100% common

SCHEDULE 4.18(a)

UCC Filing Jurisdictions

Group Member		UCC Filing Jurisdiction
Auxilium Pharmaceuticals, Inc.		Delaware
Auxilium International Holdings, Inc.		Delaware
Auxilium US Holdings, LLC		Delaware
GTCR/Actient Holdings/B Corp.		Delaware
Actient Holdings LLC		Delaware
Actient Pharmaceuticals LLC		Delaware
Slate Pharmaceuticals, Inc.		Delaware
Actient Therapeutics LLC		Delaware
70 Maple Avenue, LLC		Delaware

Timm Medical Holdings, LLC		Delaware
Timm Medical Technologies, Inc.		Delaware

SCHEDULE 6.15

Post-Closing Deliveries

90 days (or such longer period as may be agreed by the Administrative Agent), the Loan Parties shall: (i) with respect to all lockboxes and deposit accounts and bank or securities accounts of each Loan Party (other than Excluded Accounts (as defined in the Guarantee and Collateral Agreement)), obtain and deliver to the Administrative Agent, account control agreements in form and substance reasonably satisfactory to the Administrative Agent and (ii) with respect to each location set forth on Schedule 4.7(c), use commercially reasonable efforts to enter into a landlord access agreement or bailee letter, as applicable.

SCHEDULE 7.1

Existing Indebtedness

The Indebtedness outstanding pursuant to the Fifth Street Credit Agreement.

Letter agreement regarding severance, dated as of March 19, 2013, by and between Actient Pharmaceuticals LLC and Chris Curtin (as it relates to the change-of-control payment contemplated thereby).

Transition Agreement, dated as of February 27, 2013, by and among the Actient Holdings LLC, Actient Pharmaceuticals LLC and Edmund Orme.

All fees and expenses related to the termination of the Manufacturing Services Agreement, dated as of December 21, 2010, by and between Elan Pharma International Limited and Actient Pharmaceuticals LLC.

All outstanding costs related to the closure of Timm Medical Technologies, Inc.’s Eden Prairie facility reflected on the Timm Medical Technologies, Inc. restructuring severance worksheet attached as Exhibit 2 hereto (including pursuant to the Employment Agreement, dated May 23, 2007, between Timm Medical Technologies, Inc. and Robert Martin, as amended on January 20, 2011 and January 28, 2013).

SCHEDULE 7.2

Existing Liens

	Entity	Secured Party	Date of Filing and Filing #	Jurisdiction of Filing	Collateral Description

1.	Timm Medical Technologies, Inc.	U.S. Bancorp	February 24, 2010 Filing # - 2010 0628515	Delaware	Office equipment. Serial numbers: 1 C452 A0P2011002048COLOR 1 C452 A0P2011002048BW 1 C552 A0P1011003187COLOR 1 C552 A0P1011003187BW 1 1330 MNS06618BW

2.	Auxilium Pharmaceuticals, Inc.	Ikon Financial Svcs	February 6, 2010 Filing # - 2010 0418479	DE	Protective filing against leased equipment in connection with a Master Agreement between IOS Capital, LLC, as lessor, and Auxilium Pharmaceuticals, Inc., as lessee.

3.	Auxilium Pharmaceuticals, Inc.	Canon Financial Services	January 11, 2012 Filing # - 2012 0201428	DE	All equipment now or hereafter leased, sold, or financed by Canon Financial Services, Inc. and all general intangibles and accounts receivable with respect to said equipment, and all replacements of, additions to, substitutions for and proceeds of the foregoing.

4.	Auxilium Pharmaceuticals, Inc.	Canon Financial Services	February 29, 2012 Filing # - 2012 0793242	DE	All equipment now or hereafter leased, sold, or financed by Canon Financial Services, Inc. and all general intangibles and accounts receivable with respect to said equipment, and all replacements of, additions to, substitutions for and proceeds of the foregoing.

5.	Auxilium Pharmaceuticals, Inc.	General Electric Capital Corporation	December 28, 2004 Filing #- 4366126 3 Amendment (continue) #- 2009 2107230	DE	(92) Dell 28726 PC-P Latitude D505 Laptops

	Entity	Secured Party	Date of Filing and Filing #	Jurisdiction of Filing	Collateral Description

6.	Auxilium Pharmaceuticals, Inc.	TimePayment Corporation	July 21, 2010 Filing #- 2010072107461	PA	Wellsys water purification systems.

7.	Actient Pharmaceuticals LLC	n/a	n/a	n/a	The real property located at 70 High Street, Rye City, New York and owned by Actient Pharmaceuticals LLC is subject to zoning restrictions noted in the Zoning Board of Appeals decision dated December 28, 1966, attached to the Bock and Clark Zoning Report, dated June 7, 2012.

SCHEDULE 7.6

Existing Investments

Intercompany Contribution Agreement, dated as of April 1, 2012, by and among Actient Pharmaceuticals LLC, Actient Therapeutics LLC, and Slate Pharmaceuticals, Inc.

SCHEDULE 7.10

Clauses Restricting Negative Pledges

None.

SCHEDULE 7.11

Clauses Restricting Subsidiary Distributions

Convertible Notes Documents, as defined in the Credit Agreement.

Ex. A-1

Exhibit A to
Credit Agreement

FORM OF ASSIGNMENT AND ASSUMPTION

[ , 20[_]]

Reference is made to the Credit Agreement, dated as of April 26, 2013, (as amended, restated, amended and restated, supplemented, replaced or otherwise modified from time to time, the “ Credit Agreement ”), among AUXILIUM PHARMACEUTICALS, INC., a Delaware corporation (the “ Borrower ”), [ ], a Delaware limited liability company (“ Merger Sub ”), the financial institutions or entities from time to time parties to the Credit Agreement as lenders (the “ Lenders ”), MORGAN STANLEY SENIOR FUNDING, INC., as administrative agent (in such capacity, and together with its successors and assigns in such capacity, the “ Administrative Agent ”), and MORGAN STANLEY SENIOR FUNDING, INC., as collateral agent (in such capacity, and together with its successors and assigns in such capacity, the “ Collateral Agent ”). Capitalized terms used herein that are not defined herein shall have the meanings given to them in the Credit Agreement.

In accordance with the terms and conditions of Section 10.6 to the Credit Agreement, the Assignor identified on Schedule l hereto (the “ Assignor ”) and the Assignee identified on Schedule 1 hereto (the “ Assignee ”) agree as follows:

1. The Assignor hereby irrevocably sells and assigns to the Assignee without recourse to the Assignor, and the Assignee hereby irrevocably purchases and assumes from the Assignor without recourse to the Assignor, as of the Assignment Effective Date (as defined below), the interest described in Schedule 1 hereto (the “ Assigned Interest ”) in and to the Assignor’s rights and obligations under the Credit Agreement with respect to the Term Facility or Incremental Facilities (collectively, the “ Facilities ”) contained in the Credit Agreement as are set forth on Schedule 1 hereto, in the principal amount for the Facilities as set forth on Schedule 1 hereto.

2. The Assignor (a) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or with respect to the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, any other Loan Document or any other instrument or document furnished pursuant thereto, other than that (i) the Assignor is the legal and beneficial owner of the Assigned Interest, (ii) the Assignor has full organizational power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iii) the interest being assigned by the Assignor hereunder is free and clear of any lien, encumbrance or other adverse claim; (b) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower, any of its respective Subsidiaries or any other obligor or the performance or observance by the Borrower, any of its respective Subsidiaries or any other obligor of any of their respective obligations under the Credit Agreement or any other Loan Document or any other instrument or document furnished pursuant hereto or thereto; and (c) attaches any Notes held by it evidencing the Facilities and (i) requests that the Administrative Agent, upon request by the Assignee, exchange the attached Notes, if any, for a new Note or Notes payable to the Assignee and (ii) if the Assignor has retained any interest in the Facilities, requests that the Administrative Agent exchange the attached Notes, if any, for a new Note or Notes payable to the Assignor, in each case in amounts which reflect the assignment

Ex. A-2

being made hereby (and after giving effect to any other assignments which have become effective on the Assignment Effective Date).

3. The Assignee (a) represents and warrants that it is legally authorized to enter into this Assignment and Assumption and has full organizational power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; (b) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements delivered pursuant to Section 6.1 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption; (c) agrees that it will, independently and without reliance upon the Assignor, the Agents or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; (d) appoints and authorizes the Agents to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement, the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto as are delegated to the Agents by the terms thereof, together with such powers as are incidental thereto; (e) agrees that it will be bound by the provisions of the Credit Agreement and will perform in accordance with its terms all the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender including, if it is organized under the laws of a jurisdiction outside the United States, its obligations pursuant to Section 3.10(e) and (f) of the Credit Agreement; (f) confirms that it satisfies the requirements set forth in Section 10.6(b) of the Credit Agreement; (g) represents and warrants that it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type; and (h) if it is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to Sections 3.10(f) and 10.6 of the Credit Agreement, duly completed and executed by such Assignee.

4. The effective date of this Assignment and Assumption shall be the Effective Date of Assignment and Assumption or the Trade Date described in Schedule 1 hereto (the “ Assignment Effective Date ”). Following the execution of this Assignment and Assumption, it will be delivered to the Administrative Agent for acceptance by it and recording by the Administrative Agent pursuant to the Credit Agreement, effective as of the Assignment Effective Date (which shall not, unless otherwise agreed to by the Administrative Agent, be earlier than five (5) Business Days after the date of such acceptance and recording by the Administrative Agent).

5. Upon such acceptance and recording, from and after the Assignment Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Assignment Effective Date and to the Assignee for amounts which have accrued from and after the Assignment Effective Date.

6. From and after the Assignment Effective Date, (a) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Assumption, have the rights and obligations of a Lender thereunder and under the other Loan Documents and shall be bound by the provisions thereof and (b) the Assignor shall, to the extent provided in this Assignment and Assumption, relinquish its rights and be released from its obligations under the

Ex. A-3

Credit Agreement, (and, to the extent this Assignment and Assumption covers all of the Assignor’s rights and obligations under the Credit Agreement, the Assignor shall cease to be a party to the Credit Agreement but shall continue to be entitled to the benefits of Sections 3.9, 3.10, 3.11 and 10.5 of the Credit Agreement; provided, to the extent applicable, that the Assignor continues to comply with the requirements of Sections 3.10(e) and (f) of the Credit Agreement).

This Assignment and Assumption shall be governed by and construed in accordance with the laws of the State of New York.

IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption to be executed as of the date first above written by their respective duly authorized officers on Schedule 1 hereto.

Ex. A-4

Schedule 1 to
Assignment and Assumption

Name of Assignor:

Name of Assignee:

[Effective Date of Assignment and Assumption] [Trade Date] (2) :

Facility Assigned	Aggregate Amount of Commitment/Loans for all Lenders
[Term Facility]
[Incremental Facilities]
	$	[	]

Principal Amount Assigned		Commitment/Loans Percentage Assigned (3)
$		.	%

[Name of Assignee]		[Name of Assignor]


By:		By:
	Name:		Name:
	Title:		Title:

(2) To be completed if Assignor and Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.

(3) Calculate the Commitment/Loans Percentage that is assigned to at least 15 decimal places and show as a percentage of the aggregate Commitments/Loans of all Lenders.

Ex. A-5

Accepted:

MORGAN STANLEY SENIOR FUNDING, INC.,
as Administrative Agent

By:
	Name:
	Title:

Consented To: (4)

[AUXILIUM PHARMACEUTICALS, INC.,
as Borrower]

By:
	Name:
	Title:

[MORGAN STANLEY SENIOR FUNDING, INC.,
as Administrative Agent]

By:
	Name:
	Title:

(4) See Section 10.6 of the Credit Agreement to determine whether the consent of the Borrower and/or Administrative Agent is required.

Ex. A-6

Exhibit B to
Credit Agreement

FORM OF BORROWING NOTICE

MORGAN STANLEY SENIOR FUNDING, INC.
as Administrative Agent under the
Credit Agreement referred to below

Attention:

Re: Auxilium Pharmaceuticals, Inc.

The Borrower hereby gives you irrevocable notice, pursuant to Section 2.2 of the Credit Agreement of its request of a borrowing (the “ Proposed Borrowing ”) under the Credit Agreement and, in that connection, sets forth the following information:

The date of the Proposed Borrowing is , (the “ Funding Date ”).

The aggregate principal amount of Term Loan is $ , of which $ consists of ABR Loans and $ consists of LIBOR Rate Loans having an initial Interest Period of months.

The undersigned hereby represents and warrants to the Administrative Agent and the Lenders that as of the Funding Date, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or in all respects where qualified by materiality or Material Adverse Effect), except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects (or in all respects where qualified by materiality or Material Adverse Effect) on and as of such specific date, and no Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.

	AUXILIUM PHARMACEUTICALS, INC.


	By:
		Name:
		Title:

Exhibit C to
Credit Agreement

FORM OF GUARANTEE AND COLLATERAL AGREEMENT

made by

AUXILIUM PHARMACEUTICALS , INC.

and the other signatories hereto

in favor of

MORGAN STANLEY SENIOR FUNDING, INC.,
as Collateral Agent

and

MORGAN STANLEY SENIOR FUNDING, INC.,
as Administrative Agent

Dated as of April 26, 2013

TABLE OF CONTENTS

		Page

SECTION 1.	DEFINED TERMS

1.1	DEFINITIONS	2
1.2	OTHER DEFINITIONAL PROVISIONS	7

SECTION 2.	GUARANTEE

2.1	GUARANTEE	8
2.2	REIMBURSEMENT, CONTRIBUTION AND SUBROGATION	9
2.3	AMENDMENTS, ETC. WITH RESPECT TO THE BORROWER OBLIGATIONS	10
2.4	GUARANTEE ABSOLUTE AND UNCONDITIONAL	11
2.5	REINSTATEMENT	11
2.6	PAYMENTS	12
2.7	RELEASE OF GUARANTEES	12
2.8	KEEPWELL	12

SECTION 3.	GRANT OF SECURITY INTEREST

SECTION 4.	REPRESENTATIONS AND WARRANTIES

4.1	REPRESENTATIONS IN CREDIT AGREEMENT	14
4.2	TITLE; NO OTHER LIENS	14
4.3	PERFECTED FIRST PRIORITY LIENS	15
4.4	JURISDICTION OF ORGANIZATION; CHIEF EXECUTIVE OFFICE	15
4.5	INVENTORY AND EQUIPMENT	16
4.6	FARM PRODUCTS	16
4.7	INVESTMENT RELATED PROPERTY AND DEPOSIT ACCOUNTS	16
4.8	RECEIVABLES	17
4.9	INTELLECTUAL PROPERTY	17
4.10	LETTER-OF-CREDIT RIGHTS	17
4.11	COMMERCIAL TORT CLAIMS	17
4.12	TRADE NAMES; ETC.	17

SECTION 5.	COVENANTS

5.1	COVENANTS IN CREDIT AGREEMENT	18
5.2	DELIVERY AND CONTROL OF INSTRUMENTS, CHATTEL PAPER, NEGOTIABLE DOCUMENTS, INVESTMENT PROPERTY AND LETTER-OF-CREDIT RIGHTS	18
5.3	MAINTENANCE OF INSURANCE	18
5.4	PAYMENT OF OBLIGATIONS	19
5.5	MAINTENANCE OF PERFECTED SECURITY INTEREST; FURTHER DOCUMENTATION	19
5.6	CHANGES IN LOCATIONS, NAME, ETC.	19
5.7	NOTICES	20

5.8	INVESTMENT PROPERTY, PLEDGED EQUITY INTERESTS, SECURITIES ACCOUNTS AND DEPOSIT ACCOUNTS	20
5.9	RECEIVABLES	22
5.10	INTELLECTUAL PROPERTY	22
5.11	LIMITATION ON LIENS ON COLLATERAL	23
5.12	LIMITATIONS ON DISPOSITIONS OF COLLATERAL	23
5.13	LETTER-OF-CREDIT RIGHTS	23
5.14	COMMERCIAL TORT CLAIMS	23
5.15	COLLATERAL IN THE POSSESSION OF A BAILEE	23

SECTION 6.	REMEDIAL PROVISIONS

6.1	CERTAIN MATTERS RELATING TO RECEIVABLES	24
6.2	COMMUNICATIONS WITH OBLIGORS; GRANTORS REMAIN LIABLE	24
6.3	INVESTMENT PROPERTY	25
6.4	PROCEEDS TO BE TURNED OVER TO COLLATERAL AGENT	25
6.5	APPLICATION OF PROCEEDS	26
6.6	CODE AND OTHER REMEDIES	26
6.7	REGISTRATION RIGHTS	27
6.8	DEFICIENCY	28
6.9	INTELLECTUAL PROPERTY	28

SECTION 7.	THE COLLATERAL AGENT

7.1	COLLATERAL AGENT’S APPOINTMENT AS ATTORNEY-IN-FACT, ETC.	28
7.2	DUTY OF COLLATERAL AGENT	30
7.3	FINANCING STATEMENTS	30
7.4	AUTHORITY, IMMUNITIES AND INDEMNITIES OF COLLATERAL AGENT	30
7.5	INTELLECTUAL PROPERTY FILINGS	31

SECTION 8.	MISCELLANEOUS

8.1	AMENDMENTS IN WRITING	31
8.2	NOTICES	31
8.3	NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE REMEDIES	31
8.4	ENFORCEMENT EXPENSES; INDEMNIFICATION	32
8.5	SUCCESSORS AND ASSIGNS	32
8.6	SET-OFF	32
8.7	COUNTERPARTS	33
8.8	SEVERABILITY	33
8.9	SECTION HEADINGS	33
8.10	INTEGRATION	33
8.11	GOVERNING LAW	33
8.12	SUBMISSION TO JURISDICTION; WAIVERS	33
8.13	ACKNOWLEDGMENTS	34
8.14	ADDITIONAL GRANTORS	34
8.15	RELEASES	34
8.16	WAIVER OF JURY TRIAL	35

SCHEDULES

Schedule 1	Notice Addresses
Schedule 2	Investment Property
Schedule 3	Jurisdictions of Organization and Chief Executive Offices
Schedule 4	Filings and Other Actions Required for Perfection
Schedule 5	Trade Names

ANNEXES

Annex I	Form of Assumption Agreement
Annex II-A	Form of Copyright Security Agreement
Annex II-B	Form of Patent Security Agreement
Annex II-C	Form of Trademark Security Agreement
Annex III	Form of Pledge Supplement

iii

THIS GUARANTEE AND COLLATERAL AGREEMENT (this “ Agreement ”), dated as of April 26, 2013, made by AUXILIUM PHARMACEUTICALS, INC., a Delaware corporation (the “ Borrower ”) , OPAL ACQUISITION, LLC, a Delaware limited liability company (“ Merger Sub ”), each of the subsidiaries of the Borrower signatory hereto (collectively with the Borrower and Merger Sub, and together with any other entity that may become a party hereto as provided herein, the “ Grantors ”), in favor of MORGAN STANLEY SENIOR FUNDING, INC., as collateral agent (in such capacity, and together with its successors and assigns in such capacity, the “ Collateral Agent ”) and MORGAN STANLEY SENIOR FUNDING, INC., as administrative agent (in such capacity, and together with its successors and assigns in such capacity, the “ Administrative Agent ”), for the Secured Parties (as defined in the Credit Agreement referred to below) . Capitalized terms used in this Agreement have the meanings assigned to them in Section 1 below.

RECITALS

A. Pursuant to the Credit Agreement, dated as of the date hereof (as amended, restated, amended and restated, supplemented, replaced or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, the several banks and other financial institutions or entities from time to time parties thereto as lenders (the “ Lenders ”), Morgan Stanley Senior Funding, Inc., as Administrative Agent and Collateral Agent, the Lenders have severally agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein ;

B. The Borrower and Merger Sub are members of an affiliated group of companies that includes each other Grantor;

C. The proceeds of the extensions of credit under the Credit Agreement and, to the extent applicable, the financial accommodations under the Specified Hedge Agreements will be used in part to enable the Borrower to finance the Merger Consideration, to pay related fees and expenses, for working capital requirements and for general corporate purposes of the Borrower and its Subsidiaries;

D. The Borrower and the other Grantors are engaged in related businesses, and each Grantor will derive substantial direct and indirect benefit from the making of the extensions of credit under the Credit Agreement and, to the extent applicable, the providing of financial accommodation under the Specified Hedge Agreements; and

E. It is a condition precedent to the obligation of the Lenders to make their respective extensions of credit to the Borrower under the Credit Agreement and, to the extent applicable, of the Qualified Counterparties to provide financial accommodation under the Specified Hedge Agreements that the Grantors shall have executed and delivered this Agreement to the Collateral Agent for the benefit of the Secured Parties.

NOW, THEREFORE, in consideration of the premises and to induce the Agents and the Lenders to enter into the Credit Agreement and to induce the Lenders to make their respective extensions of credit to the Borrower thereunder and to induce the Qualified Counterparties to enter into the Specified Hedge Agreements and provide financial accommodation, each Grantor hereby agrees with the Collateral Agent, for the benefit of the Secured Parties, as follows:

SECTION 11. DEFINED TERMS

11.1 Definitions .

(a) Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement, and the following terms are used herein as defined in the New York UCC (and if defined in more than one Article of the New York UCC, shall have the meaning given in Article 8 or 9 thereof): Accounts, Chattel Paper, Commercial Tort Claims, Commodity Accounts, Documents, Electronic Chattel Paper, Equipment, Farm Products, Fixtures, General Intangibles, Goods, Instruments, Inventory, Letter-of-Credit Rights, Money, Negotiable Documents, Securities Accounts, Securities Entitlements, Supporting Obligations, Tangible Chattel Paper and Uncertificated Security.

(b) The following terms shall have the following meanings:

“ Administrative Agent ”: as defined in the preamble to this Agreement.

“ Agreement ”: as defined in the preamble to this Agreement.

“ Borrower ”: as defined in the preamble to this Agreement.

“ Borrower Obligations ”: the collective reference to the “Obligations” (as such term is defined in the Credit Agreement) of the Borrower.

“ Collateral ”: as defined in Section 3 .

“ Collateral Account ”: any collateral account established by the Collateral Agent as provided in Section 6.1 or 6.4 .

“ Collateral Agent ”: as defined in the preamble to this Agreement.

“ Contracts ”: all contracts, leases and other agreements entered into by any Grantor pursuant to which such Grantor has the right (i) to receive moneys due and to become due to it thereunder or in connection therewith, (ii) to damages arising thereunder and (iii) to exercise all remedies thereunder.

“ Control Agreements ” means a control agreement in a form as shall be reasonably satisfactory to the Collateral Agent pursuant to which the Collateral Agent shall have “control” (within the meaning of the UCC) over an account.

“ Copyright Licenses ”: all written agreements entered into by any Grantor pursuant to which such Grantor grants or obtains any right with respect to any Copyright including, without limitation, any rights to print, publish, copy, distribute, create derivative works, or otherwise exploit and sell copyrighted materials, and the right to prepare for sale, sell and advertise for sale, all Inventory now or hereafter covered by such Copyrights, together with any and all (i) amendments, modifications, renewals, extensions, and supplements thereof, (ii) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto, including, without limitation, damages and payments for past, present and future breaches or other violations with respect thereto and (iii) rights to sue for past, present and future breaches or violations thereof.

“ Copyright Security Agreement ”: an agreement substantially in the form of Annex II-A hereto.

“ Copyrights ”: collectively, copyrights (whether registered or unregistered) in the United States or similar multinational Governmental Authority or any other country or any political subdivision thereof) and all mask works (as such term is defined in 17 U.S.C. Section 901, et seq.), including, without limitation, each registered copyright identified on Schedule III to the Perfection Certificate, together with any and all (i) registrations and applications therefor, (ii) rights and privileges arising under applicable law with respect to such copyrights, (iii) renewals and extensions thereof and amendments thereto, (iv) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto, including, without limitation, damages, claims and payments for past, present and future infringements, misappropriations or other violations thereof and the right to receive all proceeds and damages therefrom, (v) rights to sue or otherwise recover for past, present and future infringements, misappropriations or other violations thereof and (iv) rights corresponding thereto throughout the world.

“ Deposit Accounts ” shall mean, collectively, with respect to each Grantor, (i) all “deposit accounts” as such term is defined in the UCC and all accounts and sub-accounts relating to the foregoing accounts and (ii) all cash, funds, checks, notes and instruments from time to time on deposit in any of the accounts or sub-accounts described in clause (i) of this definition.

“ Discharge of Guaranteed Obligations ”: as defined in Section 2.7(a)

“ Excluded Deposit Accounts ”: collectively, (a) Deposit Accounts established and maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, workman’s compensation and other compensation and benefits to employees and (b) Zero Balance Accounts .

“ Excluded Equity Interests ”: collectively, (i) all shares of stock, partnership interests, limited liability interests, and all other equity interests in any Person (other than a Wholly Owned Subsidiary or a Subsidiary controlled by the Borrower or any Wholly Owned Subsidiary) to the extent a security interest granted thereon is not permitted by the terms of such Person’s organizational or joint venture documents to the extent such interests cannot be pledged without third-party consent (except to the extent such prohibition is rendered ineffective by applicable law (including under Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC) or is otherwise unenforceable) and (ii) common stock in excess of 66% of the common stock of any CFC and (iii) the common stock of GTCR/Actient Holdings/B Corp .

“ Grantor ”: as defined in the preamble to this Agreement.

“ Guarantor ”: means the collective reference to each Grantor other than the Borrower.

“ Guarantor Obligations ”: with respect to any Guarantor, all obligations and liabilities of such Guarantor with respect to the Term Facility which may arise under or in connection with this Agreement (including Section 2 ) or any other Loan Document or Specified Hedge Agreements to which such Guarantor is a party, in each case whether on account of guarantee obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, reasonable and documented attorney’s fees and legal expenses) as expressly provided for in the foregoing documents (including all expense reimbursement and indemnity obligations arising or incurred as provided in the Loan Documents or any Specified Hedge Agreement after the commencement of any bankruptcy case or insolvency, reorganization, liquidation or like proceeding, whether or not a claim for such obligations is allowed in such case or proceeding).

“ Immaterial Deposit Accounts ”: Any Deposit Account with amounts on deposit that does not exceed $1,000,000 for more than three consecutive Business Days in any calendar month and

when aggregated with the amounts on deposit in all such Deposit Accounts for which control agreements have not been obtained (other than Excluded Deposit Accounts), such amounts do not exceed $2,500,000 in the aggregate for more than three consecutive Business Days in any calendar month.

“ Immaterial Securities Accounts ”: Any Securities Account holding assets or property not to exceed a value of $1,000,000 for more than three consecutive Business Days in any calendar month and when aggregated with the value of the assets or property held in all Securities Accounts for which control agreements have not been obtained do not exceed $2,500,000 for three consecutive Business Days in any calendar month.

“ Instruction ”: with respect to a Deposit Account, any and all instructions relating to any funds or other assets held from time to time in such Deposit Account, including, without limitation directing the disposition of funds or other assets held in such Deposit Account collectively for all Grantors.

“ Intellectual Property ”: the collective reference to all rights, priorities and privileges with respect to intellectual property whether arising under the United States or similar multinational Governmental Authority or any other country or political subdivision thereof, including, without limitation, Copyrights, Patents, Trademarks, Intellectual Property Licenses and Trade Secrets, and, in each case, the goodwill associated therewith.

“ Intellectual Property Licenses ”: the collective reference to the Copyright Licenses, Patent Licenses, Trademark Licenses, and Trade Secret Licenses.

“ Intercompany Note ”: any promissory note evidencing loans or other monetary obligations owing to any Grantor by any Group Member that is not a Loan Party.

“ Investment Property ”: the collective reference to (i) all “investment property” as such term is defined in Section 9-102(a)(49) of the New York UCC (other than Excluded Equity Interests) and (ii) whether or not constituting “investment property” as so defined, all Pledged Notes and all Pledged Equity Interests.

“ Issuers ”: the collective reference to each issuer of any Investment Property or Pledged Equity Interests purported to be pledged hereunder.

“ New York UCC ”: the Uniform Commercial Code as from time to time in effect in the State of New York.

“ Patent License ”: all written agreements pursuant to which a Grantor grants or obtains any right to any Patent, including, without limitation, any rights to manufacture, have manufactured, use, import, export, distribute, offer for sale or sell any invention covered by a Patent, and the right to prepare for sale, sell and advertise for sale, all Inventory now or hereafter covered by such Patents, together with any and all (i) amendments, modifications, renewals, extensions, and supplements thereof, (ii) income, fees, royalties, damages, and payments now and hereafter due and/or payable under and with respect to any of the foregoing, including, without limitation, damages, claims and payments for past, present and future breaches and other violations thereof and (iii) rights and remedies to sue for past, present and future breaches and other violations of any of the foregoing.

“ Patent Security Agreement ”: an agreement substantially in the form of Annex II-B hereto.

“ Patents ”: collectively, patents, patent applications, letters of patents, certificates of inventions, industrial designs (whether issued or applied-for in the United States or multinational Governmental Authority or any other country or any political subdivision thereof), including, without limitation, each issued patent and patent application identified on Schedule III to the Perfection Certificate, together with any and all (i) inventions and improvements described and claimed therein, (ii) reissues, divisions, continuations, extensions and continuations-in-part thereof and amendments thereto, (iii) income, fees, royalties, damages, and payments now and hereafter due and/or payable under or with respect to any of the foregoing, including, without limitation, damages, claims and payments for past, present and future infringements, misappropriations and other violations thereof, (iv) rights and remedies to sue for past, present and future infringements, misappropriations and other violations of any of the foregoing and the right to receive all proceeds and damages therefrom and (v) rights, priorities, and privileges corresponding to any of the foregoing throughout the world.

“ Pledged Alternative Equity Interests ”: all participation or other interests in any equity or profits of any business entity and the certificates, if any, representing such interests, all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such interests and any other warrant, right or option to acquire any of the foregoing; provided , however , that Pledged Alternative Equity Interests shall not include any Pledged Notes, Pledged Stock, Pledged Partnership Interests, and Pledged LLC Interests or Excluded Equity Interests.

“ Pledged Equity Interests ”: all Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and Pledged Alternative Equity Interests.

“ Pledged LLC Interests ”: all interests owned, directly or indirectly, by any Grantor in any limited liability company (including those listed on Schedule 2 ) and the certificates, if any, representing such limited liability company interests and any interest of any Grantor on the books and records of such limited liability company or on the books and records of any securities intermediary pertaining to such interest, and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such limited liability company interests and any other warrant, right or option to acquire any of the foregoing; provided that in no event shall Pledged LLC Interests include a pledge of Excluded Equity Interests.

“ Pledged Notes ”: all promissory notes at any time issued to or owned, held or acquired by any Grantor, including, without limitation, all Intercompany Notes at any time issued to any Grantor (including those listed on Schedule 2 ).

“ Pledged Partnership Interests ”: all interests owned, directly or indirectly, by any Grantor in any general partnership, limited partnership, limited liability partnership or other partnership (including those listed on Schedule 2 ) and the certificates, if any, representing such partnership interests and any interest of any Grantor on the books and records of such partnership or on the books and records of any securities intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such partnership interests and any other warrant, right or option to acquire any of the foregoing; provided that in no event shall Pledged Partnership Interests include a pledge of Excluded Equity Interests.

“ Pledged Stock ”: all shares, stock certificates, options, interests or rights of any nature whatsoever in respect of the Capital Stock of any Person (including those listed on Schedule 2 ) at any

time issued or granted to or owned, held or acquired by any Grantor, and the certificates, if any, representing such shares and any interest of such Grantor in the entries on the books of the issuer of such shares or on the books and records of any securities intermediary pertaining to such shares, and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares and any other warrant, right or option to acquire any of the foregoing; provided that in no event shall Pledged Stock include a pledge of Excluded Equity Interests.

“ PTO ”: the United States Patent and Trademark Office and any substitute or successor agency.

“ Proceeds ”: all “proceeds” as such term is defined in Section 9-102(a)(64) of the New York UCC, including, in any event, all dividends, returns of capital and other distributions and income from Investment Property and all collections thereon and payments with respect thereto.

“ Qualified ECP Guarantor ” shall mean, in respect of any Swap Obligation, each Grantor that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

“ Receivable ”: any right to payment for goods sold or leased or for services rendered, whether or not such right is evidenced by an Instrument or Chattel Paper and whether or not it has been earned by performance (including all Accounts).

“ Secured Obligations ”: the Borrower Obligations and the Guarantor Obligations.

“ Securities Act ”: the Securities Act of 1933, as amended.

“ Swap Obligations ” shall mean, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

“ Trade Secret License ”: with respect to any Grantor, any written agreement pursuant to which such Grantor grants or obtains any right to use any Trade Secret and the right to prepare for sale, sell and advertise for sale, all Inventory now or hereafter covered by such Trade Secrets, together with all (i) amendments, modifications, renewals, extensions, and supplements thereof, (ii) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto, including, without limitation, damages and payments for past, present and future breaches or other violations with respect thereto and (iii) rights to sue for past, present and future breaches or violations thereof.

“ Trade Secrets ”: (i) all trade secrets, confidential information, know-how and proprietary processes, designs, inventions, technology, and proprietary methodologies, algorithms, and information, (ii) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto, including, without limitation, damages and payments for past, present and future infringements, misappropriations or other violations with respect thereto and (iii) rights to sue for past, present and future infringements, misappropriations or violations thereof.

“ Trademark License ”: any written agreement pursuant to which a Grantor grants or obtains any right to use any Trademark, and the right to prepare for sale, sell and advertise for sale, all Inventory now or hereafter covered by such Trademarks, together with all (i) amendments, modifications, renewals, extensions, and supplements thereof, (ii) income, fees, royalties, damages and payments now and hereafter due and/or payable under or with respect to any of the foregoing, including, without limitation, damages, claims and payments for past, present and future breaches or other violations thereof and (iii) rights, priorities, and privileges and remedies to sue for past, present and future breaches and other violations of any of the foregoing.

“ Trademark Security Agreement ”: an agreement substantially in the form of Annex II-C hereto.

“ Trademarks ”: collectively, all trademarks, service marks, certification marks, tradenames, corporate names, company names, business names, slogans, logos, trade dress, Internet domain names, and other source identifiers, whether registered or unregistered, common law or otherwise, in the United States or Governmental Authority or any other country or any political subdivision thereof, together with any and all (i) registrations and applications for any of the foregoing, (ii) goodwill connected with the use thereof and symbolized thereby, (iii) rights and privileges arising under applicable law with respect to the use of any of the foregoing, (iv) extensions and renewals thereof and amendments thereto, (v) income, fees, royalties, damages and payments now and hereafter due and/or payable under or with respect to any of the foregoing, including, without limitation, damages, claims and payments for past, present or future infringements, misappropriations or other violations thereof, (vi) rights and remedies to sue for past, present and future infringements, misappropriations and other violations of any of the foregoing and the right to receive all proceeds and damages therefrom and (vii) rights, priorities, and privileges corresponding to any of the foregoing throughout the world.

“ UCC ”: the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction.

“ Unasserted Contingent Obligations ”: at any time, Obligations for indemnifications, reimbursements, damages and other liabilities (excluding (a) Obligations in respect of the principal of, and interest and premium (if any) on, and fees and expenses relating to, any Obligation and (b) contingent payments that may be payable upon termination of a Specified Hedge Agreement) in respect of which no claim or demand for payment has been made (or, in the case of Obligations for indemnification, no notice for indemnification has been issued by the Indemnitee) at such time.

“ Zero Balance Account ”: any Deposit Account that at the end of any given Business Day contains a balance of zero due to automatic transfers of amounts held in such Deposit Account into other Deposit Accounts subject to a Control Agreement.

11.2 Other Definitional Provisions .

(a) As used herein and in any certificate or other document made or delivered pursuant hereto, (i) accounting terms relating to any Group Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1 , to the extent not defined, shall have the respective meanings given to them under GAAP, (ii) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (iii) the word “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (iv) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties of every type

and nature (including Cash, Capital Stock, securities, revenues, accounts, leasehold interests and contract rights) and (v) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time (subject to any applicable restrictions hereunder).

(b) The words “hereof”, “herein”, “hereto” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section and Schedule references are to this Agreement unless otherwise specified.

(c) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

(d) Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.

(e) The expressions “payment in full”, “paid in full” and any other similar terms or phrases when used herein with respect to any Obligation shall mean (A) the payment in full of such Obligation in cash in immediately available funds and (B) with respect to obligations under any Specified Hedge Agreements with any Qualified Counterparty, such obligations are secured by a collateral arrangement reasonably satisfactory to the Qualified Counterparty in its sole discretion.

SECTION 12. GUARANTEE

12.1 Guarantee .

(a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably, guarantees as primary obligors and not as sureties to the Administrative Agent, for the benefit of the Secured Parties and their respective successors and assigns, the prompt and complete payment and performance in full when due and payable (whether at the stated maturity, by acceleration, required prepayment, declaration, demand or otherwise) of each and all of the Borrower Obligations from time to time owing to the Secured Parties by any Loan Party. The Guarantors hereby jointly and severally agree that if the Borrower or other Guarantor(s) shall fail to pay in full when due and payable (whether at stated maturity, by acceleration, required prepayment, declaration, demand or otherwise) any of the Secured Obligations, the Guarantors will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Secured Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration, required prepayment, declaration, demand or otherwise) in accordance with the terms of such extension or renewal.

(b) Each Guarantor shall be liable under its guarantee set forth in Section 2.1(a) , without any limitation as to amount, for all present and future Borrower Obligations, including specifically all future increases in the outstanding amount of the Term Loans under the Credit Agreement and other future increases in the Borrower Obligations, whether or not any such increase is committed, contemplated or provided for by the Loan Documents or other applicable documents governing such Borrower Obligations on the date hereof; provided that (i) enforcement of such guarantee against such Guarantor will be limited as necessary to limit the recovery under such guarantee to the maximum amount which may be recovered without causing such enforcement or recovery to constitute a fraudulent transfer or fraudulent conveyance under any applicable law, including any applicable federal or state fraudulent transfer or fraudulent conveyance law (after giving effect, to the fullest extent permitted by law, to the reimbursement and contribution rights set forth in Section 2.2 ) and (ii) to the fullest extent permitted by applicable law, the foregoing clause (i) shall be for the benefit solely of creditors and representatives of creditors of each

Guarantor and not for the benefit of such Guarantor or the holders of any Capital Stock in such Guarantor. For the avoidance of doubt, the application of the provisions of this Section 2.1(b) or any similar provisions in any other Loan Document: (x) is automatic to the extent applicable, (y) is not an amendment or modification of this Agreement, any other Loan Document or any other applicable document governing Borrower Obligations and (z) does not require the consent or approval of any Person.

(c) No payment made by the Borrower, any of the Guarantors, any other guarantor or any other Person or received or collected by any Secured Party from the Borrower, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder in respect of any other Borrower Obligations then outstanding or thereafter incurred.

12.2 Reimbursement, Contribution and Subrogation . In case any payment is made on account of the Borrower Obligations by any Grantor or is received or collected on account of the Borrower Obligations from any Grantor or its property:

(a) If such payment is made by the Borrower or from its property, the Borrower shall not be entitled (i) to demand or enforce reimbursement or contribution in respect of such payment from any other Grantor or (ii) to be subrogated (except on a subordinated basis) to any claim, interest, right or remedy of any Secured Party against any other Person, including any other Grantor or its property.

(b) If such payment is made by the Borrower or from its property or if any payment is made by the Borrower or from its property in satisfaction of the reimbursement right of any Guarantor set forth in Section 2.2(c) , the Borrower shall not be entitled (i) to demand or enforce reimbursement or contribution in respect of such payment from any other Grantor or (ii) to be subrogated (except on a subordinated basis) to any claim, interest, right or remedy of any Secured Party against any other Person, including any other Grantor or its property.

(c) If and whenever any right of reimbursement or contribution becomes enforceable by any Guarantor against any other Guarantor under Section 2.2(c) , such Guarantor shall be entitled, subject to and upon payment in full of all outstanding Secured Obligations (other than Unasserted Contingent Obligations) and termination of all commitments to extend credit under the Loan Documents to be subrogated (equally and ratably with all other Guarantors entitled to reimbursement or contribution from any other Guarantor under Section 2.2(c) ) to any security interest that may then be held by the Collateral Agent upon any Collateral granted to it in this Agreement. To the fullest extent permitted under applicable law, such right of subrogation shall be enforceable solely against the Borrower and the Guarantors, and not against the Secured Parties, and neither the Administrative Agent nor any other Secured Party shall have any duty whatsoever to warrant, ensure or protect any such right of subrogation or to obtain, perfect, maintain, hold, enforce or retain any Collateral for any purpose related to any such right of subrogation. If subrogation is demanded in writing by any Guarantor, then (subject to and upon payment in full of all outstanding Secured Obligations (other than Unasserted Contingent Obligations), and termination of all commitments to extend credit under the Loan Documents) the Administrative Agent shall deliver to the Guarantors making such demand, or to a representative of such Guarantors or of the Guarantors generally, an instrument reasonably satisfactory to the Administrative Agent transferring, on a quitclaim basis without (to the fullest extent permitted under applicable law) any recourse, representation, warranty or obligation whatsoever, whatever

security interest the Administrative Agent then may hold in whatever Collateral may then exist that was not previously released or disposed of by the Administrative Agent.

(d) All rights and claims arising under this Section 2.2 or based upon or relating to any other right of reimbursement, indemnification, contribution or subrogation that may at any time arise or exist in favor of the Borrower or any Guarantor as to any payment on account of the Secured Obligations made by it or received or collected from its property shall be fully subordinated in all respects to the prior payment in full of all of the Secured Obligations (other than Unasserted Contingent Obligations). Until payment in full of the Secured Obligations (other than Unasserted Contingent Obligations) and termination of all commitments to extend credit under the Loan Documents, no Guarantor shall demand or receive any collateral security, payment or distribution whatsoever (whether in cash, property or securities or otherwise) on account of any such right or claim. If any such payment or distribution is made or becomes available to any Guarantor, such payment or distribution shall be delivered by the person making such payment or distribution directly to the Administrative Agent, for application to the payment of the Secured Obligations in accordance with Section 6.5 . If any such payment or distribution is received by any Guarantor, it shall be held by such Guarantor in trust, as trustee of an express trust for the benefit of the Secured Parties, and shall forthwith be transferred and delivered by such Guarantor to the Administrative Agent, substantially in the form received and, if necessary, duly endorsed.

(e) The obligations of the Guarantors under the Loan Documents and any Specified Hedge Agreements, including their liability for the Secured Obligations and the enforceability of the security interests granted thereby, are not contingent upon the validity, legality, enforceability, collectibility or sufficiency of any right of reimbursement, contribution or subrogation arising under this Section 2.2 . To the fullest extent permitted under applicable law, the invalidity, insufficiency, unenforceability or uncollectibility of any such right shall not in any respect diminish, affect or impair any such obligation or any other claim, interest, right or remedy at any time held by any Secured Party against any Guarantor or its property. The Secured Parties make no representations or warranties in respect of any such right and shall, to the fullest extent permitted under applicable law, have no duty to assure, protect, enforce or ensure any such right or otherwise relating to any such right.

(f) Each Guarantor reserves any and all other rights of reimbursement, contribution or subrogation at any time available to it as against any other Guarantor, but (i) the exercise and enforcement of such rights shall be subject to this Section 2.2 and (ii) to the fullest extent permitted by applicable law, neither the Administrative Agent nor any other Secured Party shall ever have any duty or liability whatsoever in respect of any such right.

12.3 Amendments, etc. with respect to the Borrower Obligations . To the fullest extent permitted by applicable law, each Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against any Guarantor and without notice to or further assent by any Guarantor, any demand for payment of any of the Borrower Obligations made by any Secured Party may be rescinded by such Secured Party and any of the Borrower Obligations continued, and the Borrower Obligations, or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by any Secured Party, and the Credit Agreement and the other Loan Documents or any Specified Hedge Agreements, and any other documents executed and delivered in connection therewith may be amended, amended and restated, supplemented, replaced, refinanced, otherwise modified or terminated, in whole or

in part, as the Administrative Agent (or the requisite Secured Parties) may deem reasonably advisable from time to time, and any collateral security, guarantee or right of offset at any time held by any Secured Party for the payment of the Borrower Obligations may be sold, exchanged, waived, surrendered or released. No Secured Party shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Borrower Obligations or for the guarantee contained in this Section 2 or any property subject thereto, except to the extent required by applicable law.

12.4 Guarantee Absolute and Unconditional . To the fullest extent permitted by applicable law, each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Borrower Obligations and notice of or proof of reliance by any Secured Party upon the guarantee contained in this Section 2 or acceptance of the guarantee contained in this Section 2 . The Borrower Obligations, and each of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Section 2 . All dealings between the Borrower and any of the Guarantors, on the one hand, and the Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Section 2 . To the fullest extent permitted by applicable law, each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or any of the Guarantors with respect to the Borrower Obligations. Each Guarantor understands and agrees that the guarantee contained in this Section 2 shall be construed, to the fullest extent permitted by applicable law, as a continuing, absolute and unconditional guarantee of payment and performance (and not collection) without regard to (a) the validity or enforceability of the Credit Agreement or any other Loan Document, any Specified Hedge Agreement, any of the Borrower Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by any Secured Party, (b) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against any Secured Party, or (c) any other circumstance whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Borrower Obligations or of such Guarantor under the guarantee contained in this Section 2 , in bankruptcy or in any other instance. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, any Secured Party may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Borrower Obligations or any right of offset with respect thereto, and any failure by any Secured Party to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Secured Party against any Guarantor. For the purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.

12.5 Reinstatement . The guarantee contained in this Section 2 and the security interests created hereunder shall be reinstated and shall remain in all respects enforceable to the extent that, at any time, any payment of any of the Borrower Obligations is set aside, avoided or rescinded or must otherwise be restored or returned by any Secured Party upon the insolvency, bankruptcy, dissolution, liquidation, examinership or reorganization of the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or examiner or similar officer for, the Borrower or any Guarantor or any substantial part of its property, or otherwise, in whole or in part, and

such reinstatement and enforceability shall, to the fullest extent permitted by applicable law, be effective as fully as if such payment had not been made.

12.6 Payments . Each Guarantor hereby agrees to pay all amounts due and payable by it under this Section 2 to the Administrative Agent without set-off or counterclaim at the place and in the manner specified in the Credit Agreement.

12.7 Release of Guarantees.

(a) All of the guarantees contained in Section 2.1 will be released when the Loans and all Secured Obligations (other than Unasserted Contingent Obligations) and obligations (other than Unasserted Contingent Obligations) under or in respect of the Specified Hedge Agreements have been paid in full and all commitments to extend credit under the Loan Documents have terminated (the “ Discharge of Guaranteed Obligations ”).

(b) So long as no Default or Event of Default has occurred or would occur as a result thereof, if all the capital stock of a Subsidiary Guarantor or all the assets of a Subsidiary Guarantor are sold to a Person other than the Borrower or one of its Subsidiaries in a transaction permitted by the Credit Agreement (any such sale, a “Sale of Subsidiary Guarantor”) or upon a Subsidiary Guarantor becoming an Unrestricted Subsidiary in accordance with Section 6.14 of the Credit Agreement (any such event, an “Unrestricted Subsidiary Designation”), the Collateral Agent shall release such Subsidiary Guarantor from the guarantee granted hereunder.

(c) In addition to any release permitted by subsection (b), the Collateral Agent may release any guarantee granted hereunder with the prior written consent of the Required Lenders in accordance with Section 10.1 of the Credit Agreement; provided that any release of all or substantially all the guarantees granted hereunder shall require the consent of all the Lenders.

12.8 Keepwell . Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Grantor to honor all of its obligations under this Agreement in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 2.8 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 2.8 , or otherwise under this Agreement, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section 2.8 shall remain in full force and effect until a Discharge of Guaranteed Obligations. Each Qualified ECP Guarantor intends that this Section 2.8 constitute, and this Section 2.8 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

SECTION 13. GRANT OF SECURITY INTEREST

Each Grantor hereby grants to the Collateral Agent, for the benefit of the Secured Parties, a security interest in all of the following property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “ Collateral ”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of all Secured Obligations:

(a) all Accounts;

(b) all Chattel Paper;

(d) all Deposit Accounts;

(e) all Documents;

(f) all General Intangibles, including, without limitation, all Intellectual Property;

(g) all Goods, including, without limitation, all Equipment, Fixtures and Inventory;

(h) all Instruments;

(i) all Investment Property;

(j) all Money;

(k) all Pledged Equity Interests;

(l) all Commercial Tort Claims, including, without limitation, the Commercial Tort Claims described on Schedule IV to the Perfection Certificate hereto;

(m) all Letter-of-Credit Rights;

(n) all Securities Accounts and Securities Entitlements;

(o) all Receivables;

(p) all other personal property not otherwise described above;

(q) all Supporting Obligations and products of any and all of the foregoing and all security interests or other liens on personal or real property securing any of the foregoing;

(r) all books and records (regardless of medium) pertaining to any of the foregoing; and

(s) all Proceeds of or in respect of any of the foregoing;

provided , that this Agreement shall not constitute a grant of a security interest in and the term Collateral shall not include: (A) any property to the extent that and for as long as such grant of a security interest is prohibited by any applicable law, rule or regulation except to the extent that such law, rule or regulation is ineffective under applicable law or principles of equity or would be ineffective under Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC to prevent the attachment of the security interest granted hereunder, (B) any property to the extent that and for as long as such grant of a security interest requires consent pursuant to any applicable law, rule or regulation that has not been obtained, except to the extent that such law, rule or regulation is ineffective under applicable law or principles of equity or would be ineffective under Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC to prevent the attachment of the security interest granted hereunder, (C) any leasehold real property interest, license, lease or other

agreement or any property subject to a purchase money security interest or similar arrangement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money arrangement or create a right of termination in favor of any other party thereto except to the extent that any such violation, invalidation or termination is ineffective under applicable law or principles of equity or would be ineffective under Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC to prevent the attachment of the security interest granted hereunder, (D) any applications for trademarks or service marks filed in the PTO pursuant to 15 U.S.C. §1051 Section 1(b) unless and until evidence of use of the mark in interstate commerce is submitted to and accepted by the PTO pursuant to 15 U.S.C. §1051 Section 1(c) or Section 1(d), (E) any United States intent-to-use trademark applications to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law, (F) motor vehicles or other assets in which a security interest may be perfected only through compliance with a certificate of title statute, (G) any Commercial Tort Claim as to which a pleading has been filed in a competent jurisdiction having a fair market value of less than $500,000, (H) any Letter-of-Credit Rights that are (a) not otherwise Supporting Obligations with a value less than $500,000 or (b) Supporting Obligations with a duration of less than one year, (I) any Capital Stock (a) that is an Excluded Equity Interest or (b) in any Person that is not a Wholly Owned Subsidiary, where the grant of a security interest in the Capital Stock thereof would constitute a material violation of a valid and enforceable restriction in favor of a third party, so long as such Capital Stock cannot be pledged without the consent of one or more third parties (except to the extent such prohibition is rendered ineffective by applicable law (including under Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC) or is otherwise unenforceable or is no longer in effect), and (J) items of de minimis value that are not capable of being perfected by the filing or financing statements under the UCC or similar filings; and provided , further , that the security interest granted hereby (A) shall attach at all times to all proceeds of such property (other than any proceeds subject to any condition described in the immediately foregoing proviso) or any defined term therein), (B) shall attach to such property immediately and automatically (without need for any further grant or act) at such time as any applicable condition described in the immediately foregoing proviso) or any applicable defined term therein ceases to exist and (C) to the extent severable, shall in any event attach to all rights in respect of such property that are not subject to such applicable condition described in the immediately foregoing proviso) or any applicable defined term therein and (iii) in no event shall any CFC be required to pledge any property that it owns.

SECTION 14. REPRESENTATIONS AND WARRANTIES

Each Grantor hereby represents and warrants to each Secured Party that:

14.1 Representations in Credit Agreement . In the case of each Guarantor, the representations and warranties set forth in Section 4 of the Credit Agreement as they relate to such Guarantor or to the Loan Documents to which such Guarantor is a party, each of which is hereby incorporated herein by reference, are true and correct in all material respects, and each Secured Party shall be entitled to rely on each of them as if they were fully set forth herein; provided that each reference in each such representation and warranty to the Borrower’s or any Loan Party’s knowledge shall, for the purposes of this Section 4.1 , be deemed a reference to such Guarantor’s knowledge.

14.2 Title; No Other Liens . Except for the security interest granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the Loan Documents and the Liens permitted to exist on such Grantor’s Collateral under the Loan Documents, such Grantor owns each item of Collateral material to its business, in all material respects, granted by it free and clear of any Liens. No effective financing statement or other public notice with respect to all or any part of the Collateral is on file or of record in any public office, except such as have been filed in favor of the Collateral Agent, for the benefit of the

Secured Parties, pursuant to the Loan Documents or in respect of Liens that are permitted by the Loan Documents or for which termination statements or releases authorized by the appropriate parties will be filed on the Closing Date or with respect to releases of Liens in Intellectual Property recorded in the PTO or United States Copyright Office, delivered to the Collateral Agent for filing.

14.3 Perfected First Priority Liens

(a) The security interests granted pursuant to this Agreement upon completion of the filings and other actions specified on Schedule 4 (which, in the case of all filings and other documents referred to on such Schedule, have been delivered to the Collateral Agent in completed and, where required, duly executed form) and the obtaining and maintenance of “control” (within the meanings of Section 8-106 and 9-104 of the UCC) by the Collateral Agent of all Deposit Accounts (other than Excluded Deposit Accounts), will constitute valid perfected security interests in all of the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, as collateral security for the Secured Obligations, enforceable in accordance with the terms hereof (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law)) against all creditors of such Grantor and are and will be prior to all other Liens on such Collateral except for Liens which have priority as permitted by the Credit Agreement and the other Loan Documents; provided that additional filings with the PTO and United States Copyright Office may be required with respect to the perfection of the Collateral Agent’s Lien on registered and applied-for United States Patents, Trademarks, and Copyrights, as applicable, acquired by Grantors after the Closing Date and the perfection of the Collateral Agent’s Lien on Intellectual Property established under the laws of jurisdictions outside the United States may be subject to additional filings and registrations. Without limiting the foregoing and except as otherwise permitted or provided in Section 5 hereof or in the Credit Agreement (including without limitation, as provided in Schedule 6.15 thereto), each Grantor has taken all actions necessary or desirable to: (i) establish the Collateral Agent’s “control” (within the meanings of Sections 8-106 and 9-106 of the UCC) over any portion of the Investment Property constituting Certificated Securities, Uncertificated Securities, Securities Accounts, Securities Entitlements or Commodity Accounts (each as defined in the UCC), (ii) establish the Collateral Agent’s “control” (within the meaning of Section 9-104 of the UCC) over all Deposit Accounts (other than Excluded Deposit Accounts) of such Grantor, (iii) establish the Collateral Agent’s “control” (within the meaning of Section 9-105 of the UCC) over all Electronic Chattel Paper of such Grantor and (iv) establish the Collateral Agent’s “control” (as defined in UETA) over all “transferable records” (as defined in UETA) of such Grantor.

(b) Each Grantor consents to the grant by each other Grantor of the security interests granted hereby and the re-registration of any Capital Stock or Investment Property to the Collateral Agent or its designee upon the occurrence and during the continuance of an Event of Default and to the substitution of the Collateral Agent or its designee or the purchaser upon any foreclosure sale as the holder and beneficial owner of the interest represented thereby.

14.4 Jurisdiction of Organization; Chief Executive Office . On the date hereof, such Grantor’s exact legal name, jurisdiction of organization, organizational identification number from the jurisdiction of organization (if any), and the location of such Grantor’s chief executive office or sole place of business, as the case may be, are specified on Schedule 3 . On the date hereof, such Grantor is organized solely under the law of the jurisdiction so specified and has not filed any certificates of domestication, transfer or continuance in any other jurisdiction. On the date hereof and other than this Agreement, such Grantor has not within the last five years become bound (whether as a result of merger or otherwise) as

grantor under a security agreement entered into by another person, which (x) has not heretofore been terminated or (y) is in respect of a Lien that is not permitted by the Credit Agreement.

14.5 Inventory and Equipment .

(a) On the date hereof, Schedule VII to the Perfection Certificate sets forth all locations owned or leased by the Grantors where any Inventory and Equipment (other than goods in transit) of the Grantors constituting Collateral worth more than an aggregate fair market value of $2,500,000 is kept, excluding products and materials for use in clinical studies that, in each case, are accorded zero value on the relevant Grantor’s balance sheet and are not for sale.

(b) Except as specifically indicated on Schedule IX to the Perfection Certificate, as of the date hereof, none of the Inventory or Equipment of such Grantor is in possession of an issuer of a negotiable document (as defined in Section 7-104 of the New York UCC) therefor (other than goods in transit) or in the possession of a bailee or a warehouseman, except for Inventory and Equipment in the possession of such issuer, bailee or warehouseman having a fair market value in excess of $2,500,000 or $5,000,000 when aggregated with the fair market value of such Inventory or Equipment owned by all Grantors in the possession of all bailees or warehousemen not listed on Schedule IX to the Perfection Certificate excluding products and materials for use in clinical studies that, in each case, are accorded zero value on the relevant Grantor’s balance sheet and are not for sale.

14.6 Farm Products . None of the Collateral constitutes, or is the Proceeds of, Farm Products.

14.7 Investment Related Property and Deposit Accounts .

(a) Schedule 2 hereto (as such Schedule may be amended or supplemented from time to time) sets forth under the heading “Pledged Equity Interests” all of the Pledged Stock, Pledged LLC Interests and Pledged Partnership Interests, respectively, owned and pledged hereunder by any Grantor other than any Pledged Stock, Pledged LLC Interests or Pledged Partnership Interests held in a Securities Account and the number and percentage of issued and outstanding shares of stock, membership interests, partnership interests or beneficial interest in the respective issuers of such Pledged Equity Interests. Schedule 2 hereto (as such Schedule may be amended or supplemented from time to time) sets forth under the heading “Pledged Notes” all of the Pledged Notes owned and pledged hereunder by any Grantor other than any Pledged Notes credited to a Securities Account and all of such Pledged Notes issued by an Affiliate of a Grantor have been duly authorized, authenticated or issued, and delivered, and are the legal, valid and binding obligations of the issuers thereof subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law and constitute all of the issued and outstanding inter-company indebtedness evidenced by an instrument owing to such Grantor that is required to be pledged to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the terms hereof and the other Loan Documents. Schedule I to the Perfection Certificate (as such Schedule may be amended or supplemented from time to time) sets forth all of the Securities Accounts and Commodities Accounts in which each Grantor has an interest pledged hereunder and Schedule II to the Perfection Certificate (as such Schedule may be amended or supplemented from time to time) sets forth all of the Deposit Accounts in which each Grantor has an interest pledged hereunder, other than Excluded Deposit Accounts. Each Grantor is the sole entitlement holder or customer of each such account, and no Grantor has consented to or is otherwise aware of any person having “control” (within the meanings of Sections 8-106, 9-106 and 9-104 of the UCC) over, or any other interest in, any such Securities Account, Commodity Account or Deposit Account (other than Excluded Deposit Accounts listed in clause (b) of such defined term), in each case in which such Grantor has an interest, or

any securities, commodities or other property credited thereto other than Liens permitted to exist on the Collateral under the Loan Documents.

(b) Except as provided in the following sentence, the shares of Pledged Equity Interests not credited to a Securities Account pledged by such Grantor hereunder constitute all of the issued and outstanding shares of all classes of Capital Stock in each Issuer owned by such Grantor. In the case of an Issuer that is a CFC, the shares of Pledged Equity Interests pledged hereunder shall be an amount such that, in the aggregate, no more than 66% of the outstanding common stock of each CFC is pledged.

(c) The terms of any Pledged LLC Interests and Pledged Partnership Interests pledged hereunder do not require, in the related operating or partnership agreement, as applicable, that certificates be issued representing such Pledged LLC Interests or Pledged Partnership Interests, as applicable, and such Pledged LLC Interests and Pledged Partnership Interests are not represented by certificates or that they are securities governed by the Uniform Commercial Code of any jurisdiction.

14.8 Receivables .

(a) No amount payable to such Grantor under or in connection with any Receivable in excess of $2,500,000 in the aggregate is evidenced by any Instrument (other than checks to be deposited in the ordinary course of business) or Chattel Paper which has not been delivered to the Collateral Agent or constitutes Electronic Chattel Paper that has not been subjected to the “control” (within the meaning of Section 9-105 of the UCC) of the Collateral Agent.

(b) As of the date hereof, none of the Receivables of any Grantor with a value exceeding $2,500,000 if owed to such Grantor by Governmental Authority obligors and the aggregate of all Receivables collectively owed to all Grantors by Governmental Authority obligors does not exceed $5,000,000 in the aggregate.

14.9 Intellectual Property . As of the date hereof, Schedule III to the Perfection Certificate sets forth a true and accurate list of all registrations of and applications for Patents, Trademarks, and Copyrights owned or co-owned by any Grantor that are registered or applied for in the PTO or United States Copyright Office or registered or applied for outside the United States.

14.10 Letter-of-Credit Rights . As of the date hereof, such Grantor is not a beneficiary or assignee under any letter of credit that is not a Supporting Obligation with a value in excess of $500,000 other than the letters of credit described on Schedule VIII to the Perfection Certificate.

14.11 Commercial Tort Claims . As of the date hereof, such Grantor has no Commercial Tort Claims as to which a pleading has been filed in a competent jurisdiction seeking damages in excess of $500,000 individually in value, other than those described on Schedule IV to the Perfection Certificate.

14.12 Trade Names; Etc . Such Grantor does not have or operate in any jurisdiction under, or in the preceding five (5) years has not had, used on any filing with the Internal Revenue Service any trade name, fictitious names or other names except its legal name as specified in Schedule 3 and such other trade or fictitious names as are listed on Schedule 5 for such Grantor.

SECTION 15. COVENANTS

Each Grantor covenants and agrees with the Secured Parties that, from and after the date of this Agreement until the Collateral is released pursuant to Section 8.15(a) :

15.1 Covenants in Credit Agreement . Such Grantor shall take, or refrain from taking, as the case may be, each action that is necessary to be taken or not taken, so that no breach of the covenants in the Credit Agreement pertaining to actions to be taken, or not taken, by such Grantor will result.

15.2 Delivery and Control of Instruments, Chattel Paper, Negotiable Documents, Investment Property and Letter-of-Credit Rights .

(a) Subject to the Certain Funds Paragraph, if any of the Collateral of such Grantor is or shall become evidenced or represented by any Instrument (other than checks to be deposited in the ordinary course of business), Negotiable Document or Tangible Chattel Paper, in each case having a face amount of $2,500,000 in any instance or $5,000,000 in the aggregate, such Instrument, Negotiable Document or Tangible Chattel Paper shall be promptly delivered to the Collateral Agent, duly indorsed in a manner reasonably satisfactory to the Collateral Agent, to be held as Collateral pursuant to this Agreement and all of such property owned by any Grantor as of the Closing Date shall be delivered on the Closing Date .

(b) If any item of Collateral of such Grantor is or shall become evidenced or represented by an Uncertificated Security issued by an entity and that is not held in a Securities Account, such Grantor shall promptly notify the Collateral Agent thereof, and upon the reasonable request of the Collateral Agent shall use commercially reasonable efforts to cause the issuer thereof to register the Collateral Agent as the registered owner of such Uncertificated Security, upon original issue or registration of transfer.

(c) Subject to the Certain Funds Paragraph, in addition to and not in lieu of the foregoing, if any issuer, of any Investment Property that constitutes Collateral hereunder is organized under the law of, or has its chief executive office in, a jurisdiction outside of the United States, each Grantor shall use commercially reasonable efforts to take such additional actions, including causing the issuer to register the pledge on its books and records, as may be reasonably requested by the Collateral Agent, if (i) such action is necessary or desirable under the laws of such jurisdiction to insure the validity, perfection and priority of the security interest of the Collateral Agent and (ii) the cost of obtaining a security interest in such Investment Property is not excessive in relation to the value afforded thereby in the Collateral Agent’s reasonable discretion; provided that in no event shall any filing, registration, recordation or control outside the United States be required under the Loan Documents to perfect a Lien against a Domestic Subsidiary’s Collateral that is located outside the United States ;

(d) Subject to the Certain Funds Paragraph, in the case of any Letter-of-Credit Rights in any letter of credit that is Collateral of such Grantor that is not a Supporting Obligation exceeding $1,000,000 individually in value, such Grantor shall promptly notify the Collateral Agent thereof and, upon the reasonable request of the Collateral Agent, use commercially reasonable efforts to obtain the consent of the issuer thereof and any nominated person thereon to the assignment of the proceeds of the related letter of credit in accordance with Section 5-114(c) of the UCC, pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent. No Grantor will consent to any person having “control” (within the meaning of Section 9-107 of the UCC) over, or any other interest in, any Letter-of-Credit Rights in which such Grantor has an interest, other than the Collateral Agent .

15.3 Maintenance of Insurance .

(a) Such Grantor will maintain, with financially sound and reputable insurance companies, insurance policies (i) insuring the Collateral in at least such amounts and against at least such risk consistent with past practices of such Grantor, or other risks as may be required by the Credit Agreement

and (ii) naming the Collateral Agent on behalf of the Secured Parties as additional insureds under liability insurance policies.

(b) All such insurance shall (i) provide that no cancellation of such insurance shall be effective until at least thirty (30) days after receipt by the Collateral Agent of written notice thereof and (ii) name the Collateral Agent as additional insured party and/or loss payee.

15.4 Payment of Obligations . Such Grantor will completely and correctly file or cause to be filed all tax returns that are required to be filed and pay and discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all taxes, fees and other assessments and governmental charges or levies imposed upon such Grantor’s Collateral or in respect of income or profits therefrom, as well as all claims of any kind (including claims for labor, materials and supplies) against or with respect to such Grantor’s Collateral, except in each case, as could not reasonably be expected to result in a Material Adverse Effect.

15.5 Maintenance of Perfected Security Interest; Further Documentation .

(a) Such Grantor shall maintain the security interest created by this Agreement in such Grantor’s Collateral as a security interest having at least the perfection and priority described in the Credit Agreement .

(b) Such Grantor shall comply with Section 6.6 of the Credit Agreement. The Collateral Agent and the other Secured Parties, if accompanied by the Collateral Agent, and their respective representatives shall upon reasonable prior notice and during normal business hours also have the right, pursuant to and in accordance with Section 6.6 of the Credit Agreement, to enter into and upon any premises where any of the Inventory or Equipment is located for the purpose of examining, inspecting or auditing the same, or otherwise protecting their interests therein; provided that if the such premises are owned or leased by a third party, consent of such third party has been given; and, provided further that, in each case, unless an Event of Default has occurred or is continuing, only one (1) such visit in any calendar year shall be conducted at the Borrower’s expense .

(c) At any time and from time to time, upon the written request of the Collateral Agent, and at the sole expense of such Grantor, such Grantor will promptly and duly execute and deliver, and have recorded, such further instruments and documents, including, without limitation, a completed pledge supplement, substantially in the form of Annex III attached hereto, and take such further actions necessary or as the Collateral Agent may reasonably request consistent with this Agreement and the Credit Agreement for the purpose of creating, perfecting, ensuring the priority of, protecting or enforcing the Collateral Agent’s security interest in the Collateral or otherwise conferring or preserving the full benefits of this Agreement and of the interests, rights and powers herein granted; provided that, in no event shall any filing, registration, recordation or control outside the United States be required to perfect a Lien against a Domestic Subsidiary’s Collateral that is located outside the United States .

15.6 Changes in Locations, Name, etc . Such Grantor will not, except upon not less than five (5) days’ prior written notice to the Collateral Agent (or such shorter amount of time reasonably acceptable to the Collateral Agent) and delivery to the Collateral Agent of (a) all additional financing statements and other documents (executed where appropriate) reasonably requested by the Collateral Agent to maintain the validity, perfection and priority of the security interests provided for herein and (b) if applicable, a written supplement to Schedule VII to the Perfection Certificate showing any additional location at which Inventory or Equipment shall be kept:

(i) change its jurisdiction of organization or the location of its chief executive office from that referred to in Section 4.4 ; or

(ii) change its (x) name or (y) identity or corporate structure to such an extent that any financing statement filed by the Collateral Agent in connection with this Agreement would become misleading.

15.7 Notices . Such Grantor will advise the Collateral Agent promptly, in reasonable detail, of:

(a) any Lien (other than security interests created hereby or Liens permitted under the Loan Documents) on any of the Collateral which would adversely affect the ability of the Collateral Agent to exercise any of its remedies hereunder; and

(b) the occurrence of any other event which could reasonably be expected to have a Material Adverse Effect on the aggregate value of the Collateral or on the security interests created hereby.

15.8 Investment Property, Pledged Equity Interests, Securities Accounts and Deposit Accounts .

(a) If such Grantor shall become entitled to receive or shall receive any certificate (including any certificate representing a stock dividend or a distribution in connection with any reclassification, increase or reduction of capital, any certificate issued in connection with any reorganization, or any certificate representing Pledged LLC Interests issued by any Subsidiary and pledged hereunder after the date hereof), option or rights in respect of the Pledged Equity Interests pledged hereunder, whether in addition to, in substitution of, as a conversion of, or in exchange for, any Pledged Equity Interests pledged hereunder, or otherwise in respect thereof, such Grantor shall accept the same as the agent of the Secured Parties, hold the same in trust for the Secured Parties and deliver the same forthwith to the Collateral Agent substantially in the form received, duly indorsed by such Grantor to the Collateral Agent, if required, together with an undated stock power or equivalents covering such certificate duly executed in blank by such Grantor, to be held by the Collateral Agent, subject to the terms hereof, as additional collateral security for the Secured Obligations. Any sums paid upon or in respect of the Investment Property or Pledged Equity Interests pledged hereunder upon the liquidation or dissolution of any issuer thereof shall be held by it hereunder as additional collateral security for the Secured Obligations, and in case any distribution of capital shall be made on or in respect of the Investment Property or Pledged Equity Interests pledged hereunder or any property shall be distributed upon or with respect to the Investment Property or Pledged Equity Interests pledged hereunder pursuant to the recapitalization or reclassification of the capital of any Issuer or pursuant to the reorganization thereof, the property so distributed shall, unless otherwise subject to a perfected security interest in favor of the Collateral Agent, as provided hereunder, be delivered to the Collateral Agent to be held by it hereunder as additional collateral security for the Secured Obligations. If any sums of money or property so paid or distributed in respect of the Investment Property or Pledged Equity Interests pledged hereunder shall be received by such Grantor and if such sums are required to be delivered to the Collateral Agent hereunder or under the Credit Agreement, such Grantor shall hold such money or property in trust for the Secured Parties, segregated from other funds of such Grantor, as additional collateral security for the Obligations.

(b) Grantor agrees that, with respect to any Investment Property consisting of Securities Accounts (excluding Immaterial Securities Accounts) or Securities Entitlements, it shall use commercially reasonable efforts to cause the securities intermediary maintaining such Securities Account or Securities Entitlement to enter into an agreement in form and substance reasonably satisfactory to the

Collateral Agent pursuant to which it shall agree to comply with the Collateral Agent’s “entitlement orders” without further consent by such Grantor and shall establish that the Collateral Agent shall have “control” (within the meaning of Section 8-106 of the UCC) over such Securities Accounts or Securities Entitlements. Such Grantor further agrees that, if Investment Property (or any portion thereof) ceases to constitute an Immaterial Securities Account (because, at any time, either the contents of such account individually exceed a value of $1,000,000 for more than three consecutive Business Days in any calendar month or the contents of such account together with the contents of each other such account exceed a value of $2,500,000 for more than three consecutive Business Days in any calendar month), it shall cause one or more of the securities intermediaries maintaining such Securities Account(s) (or any applicable portion thereof) to enter into an agreement in form and substance reasonably satisfactory to the Collateral Agent pursuant to which it shall agree to comply with the Collateral Agent’s “entitlement orders” without further consent by such Grantor and shall establish that the Collateral Agent shall have “control” (within the meaning of Section 8-106 of the UCC) over such Securities Account(s) (such that after giving effect to such agreement, at any time, the contents of such account individually shall not exceed a value of $1,000,000 for more than three consecutive Business Days in any calendar month and the contents of such account together with the contents of each other such account shall not exceed a value of $2,500,000 for more than three consecutive Business Days in any calendar month). With respect to any Collateral that is a Deposit Account (other than Excluded Deposit Accounts or Immaterial Deposit Accounts), it shall use commercially reasonable efforts to cause the depositary institution maintaining such account to enter into an agreement in form and substance reasonably satisfactory to the Collateral Agent pursuant to which the depositary institution shall agree to comply with the Collateral Agent’s instructions upon the occurrence and during the continuance of an Event of Default without further consent by such Grantor and shall establish that the Collateral Agent shall have “control” (within the meaning of Section 9-104 of the UCC) over such Deposit Account. Such Grantor further agrees that, if one or more Deposit Accounts (or any portion thereof) ceases to constitute an Immaterial Deposit Account (because, either the amount on deposit in such account individually exceeds $1,000,000 for more than three consecutive Business Days in any calendar month or the amount on deposit in such account together with the amount on deposit in each other such account at such time exceeds $2,500,000 for more than three Consecutive Business Days in any calendar month), it shall use commercially reasonable efforts to cause one or more depositary institutions maintaining such accounts to enter into an agreement in form and substance reasonably satisfactory to the Collateral Agent pursuant to which the depositary institution shall agree to comply with the Collateral Agent’s instructions without further consent by such Grantor (upon the occurrence and during the continuance of an Event of Default) and shall establish that the Collateral Agent shall have “control” (within the meaning of Section 9-104 of the UCC) over such Deposit Account (such that after giving effect to such agreement, the amount on deposit in such account individually shall not exceed $1,000,000 for more than three consecutive Business Days in any calendar month and the amount on deposit in such account together with the amount on deposit in each other each other such account at such time does not exceeds $2,500,000 for more than three consecutive Business Days in any calendar month). Such Grantor shall have used commercially reasonable efforts to enter into such Control Agreement or agreements with respect to: (i) any Securities Accounts (other than Immaterial Securities Accounts), Securities Entitlements or Deposit Accounts (other than Excluded Deposit Accountsand Immaterial Deposit Accounts) that exist on the Closing Date no later than ninety (90) days after the Closing Date (or such later date as the Collateral Agent may agree in its reasonable discretion) and (ii) any Securities Accounts (other than Immaterial Securities Accounts), Securities Entitlements, Deposit Accounts (other than Excluded Deposit Accounts and Immaterial Deposit Accounts) or Commodity Accounts that are created or acquired after the Closing Date, as of or prior to the deposit or transfer of any such Securities Entitlements or funds, whether constituting moneys or investments, into such Securities Accounts (other than Immaterial Securities Accounts), Deposit Accounts (other than Excluded Deposit Accounts or Immaterial Deposit Accounts) or Commodity Accounts . The Collateral Agent shall not give the securities intermediary or depositary institution, as applicable, any “entitlement orders” or instructions

unless an Event of Default has occurred and is continuing. E ach Grantor agrees that once the Collateral Agent sends an instruction or notice to a securities intermediary or depositary institution exercising its “control” (within the meaning of the UCC, as applicable) over any Deposit Account or Securities Account, such Grantor shall not give any Instructions or entitlement orders with respect to such deposit account or securities account until such notice is withdrawn without the express written consent of the Collateral Agent. T he Collateral Agent shall promptly send a notice to the applicable securities intermediary or depositary institution withdrawing any such instruction or notice exercising its “control” (within the meaning of the UCC, as applicable) over any Securities Account or Deposit Account if the Event of Default triggering such instruction or notice is subsequently cured or waived or is otherwise no longer continuing. No Grantor shall grant “control”(within the meaning of the UCC, as applicable) of any Securities Account or Deposit Account to any person other than the Collateral Agent, other than as expressly permitted under the Loan Documents.

(c) In the case of each Grantor which is an Issuer, such Grantor agrees that (i) it will be bound by the terms of this Agreement relating to the Investment Property or Pledged Equity Interests (that constitutes Collateral hereunder) issued by it and will comply with such terms insofar as such terms are applicable to it and (ii) it will take all actions required or reasonably requested by the Collateral Agent to enable or permit each Grantor to comply with Sections 6.3(c) and 6.7 as to all Investment Property or Pledged Equity Interests issued by it and pledged hereunder.

15.9 Receivables . Upon the occurrence and during the continuance of an Event of Default and the receipt of notice from the Collateral Agent pursuant to this Section 5.9 , except in the ordinary course of business, such Grantor will not (i) grant any extension of the time of payment of any Receivable, (ii) compromise or settle any Receivable for less than the full amount thereof, (iii) release, wholly or partially, any Person liable for the payment of any Receivable, (iv) allow any credit or discount whatsoever on any Receivable or (v) amend, supplement or modify any Receivable in any manner that could materially and adversely affect the value thereof.

15.10 Intellectual Property .

(b) No later than thirty (30) days after the Closing Date (or such later date as the Collateral Agent may agree in its reasonable discretion), each Grantor agrees to execute a Copyright Security Agreement in substantially the form of Annex II-A, a Patent Security Agreement in substantially the form of Annex II-B and a Trademark Security Agreement in substantially the form of Annex II-C, as applicable based on the type of Intellectual Property on Schedule III to the Perfection Certificate, in order to record the security interest granted herein to the Collateral Agent for the benefit of the Secured Parties with the PTO and the United States Copyright Office, as applicable.

(c) If any Grantor shall, at any time after the date hereof, obtain any ownership or other rights in and to any additional Intellectual Property, then the provisions of this Agreement shall automatically apply thereto and any such Intellectual Property shall automatically constitute Collateral and shall be subject to the security interest created by this Agreement, without further action by any party (except as expressly set forth in Section 3 hereof). Furthermore, each Grantor shall comply with the requirements of Section 6.2(a) of the Credit Agreement and each Grantor authorizes the Collateral Agent to modify this Agreement by amending Schedule III to the Perfection Certificate to include any United States applications or registrations for Intellectual Property included in the Collateral (but the failure to so modify such Schedules shall not be deemed to affect the Collateral Agent’s security interest in or Lien upon such Intellectual Property).

(d) Such Grantor agrees to execute a Copyright Security Agreement in substantially the form of Annex II-A , a Patent Security Agreement in substantially the form of Annex II-B and a Trademark Security Agreement in substantially the form of Annex II-C , as applicable based on the type of Intellectual Property on Schedule III to the Perfection Certificate, in order to record the security interest granted herein to the Collateral Agent for the benefit of the Secured Parties with the PTO and the United States Copyright Office, as applicable.

(e) Upon the reasonable request of the Collateral Agent, such Grantor shall execute and deliver, and use its commercially reasonable efforts to cause to be filed, registered or recorded with the PTO or the United States Copyright Office, as applicable, any and all agreements, instruments, documents, and papers which the Collateral Agent may reasonably request to evidence, create, record, preserve, protect or perfect the Collateral Agent’s security interest in any Intellectual Property included in the Collateral.

15.11 Limitation on Liens on Collateral . Such Grantor shall not create, incur or permit to exist, will defend the Collateral against, and will take such other action as is necessary to remove, any Lien or claim on or to the Collateral, other than Liens permitted pursuant to the Credit Agreement and the other Loan Documents, and will make commercially reasonable efforts to defend the right, title and interest of the Collateral Agent and the other Secured Parties and the other holders of the Secured Obligations in and to any of the Collateral against the claims and demands of all Persons whomsoever.

15.12 Limitations on Dispositions of Collateral . Such Grantor shall not sell, transfer, lease or otherwise dispose of any of the Collateral, or attempt, offer or contract to do so except as permitted pursuant to the Credit Agreement and the other Loan Documents.

15.13 Letter-of-Credit Rights . Upon the occurrence and during the continuance of an Event of Default, upon the direction of the Collateral Agent, such Grantor shall instruct all issuers and nominated persons under letters of credit that are not Supporting Obligations for an amount in excess of $500,000 under which the Grantor is the beneficiary or assignee (including the letters of credit described on Schedule VIII to the Perfection Certificate to make all payments thereunder to the Collateral Account.

15.14 Commercial Tort Claims . With respect to any Commercial Tort Claims as to which pleadings have been filed in competent jurisdictions seeking damages individually in excess of $500,000, it shall deliver to the Collateral Agent a completed pledge supplement, substantially in the form of Annex III attached hereto.

15.15 Collateral in the Possession of a Bailee . If any Grantor’s Inventory or other Goods are at any time in the possession of a bailee in a location other than those specified in Schedule IX to the Perfection Certificate and other than inventory or goods in transit, and the fair market value of such Inventory or Goods in the possession of such bailee exceeds $2,500,000 individually and $5,000,000 when aggregated with the fair market value of such Inventory or Goods in the possession of all bailees not listed on Schedule IX to the Perfection Certificate excluding products and materials for use in clinical studies that, in each case, are accorded zero value on the relevant Grantor’s balance sheet and are not for sale , such Grantor shall promptly notify the Collateral Agent thereof. The Collateral Agent agrees with such Grantor that the Collateral Agent shall not give any instructions to any bailee unless an Event of Default has occurred and is continuing.

SECTION 16. REMEDIAL PROVISIONS

16.1 Certain Matters Relating to Receivables .

(a) At any time and from time to time during the continuance of an Event of Default, the Collateral Agent may collect each Grantor’s Receivables and exercise each right such Grantor may have under any Receivable at such Grantor’s own expense and may, upon delivery of written notice to such Grantor, curtail or terminate any Grantor’s authority to exercise rights with respect to any Grantor’s Receivables. If required by the Collateral Agent at any time after the occurrence and during the continuance of an Event of Default, any payments of Receivables, when collected by any Grantor, (i) shall be forthwith (and, in any event, within three (3) Business Days of receipt by such Grantor) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Collateral Agent if required, in a Collateral Account maintained under the sole dominion and control of the Collateral Agent, subject to withdrawal by the Collateral Agent for the account of the Secured Parties only as provided in Section 6.5 and (ii) until so turned over, shall be held by such Grantor in trust for the Collateral Agent and the Secured Parties segregated from other funds of such Grantor .

(b) Upon the occurrence and during the continuance of an Event of Default, upon the written request of the Collateral Agent, each Grantor shall deliver to the Collateral Agent all original and other documents evidencing, and relating to, the agreements and transactions which gave rise to the Receivables, including without limitation all original orders, invoices and shipping receipts.

16.2 Communications with Obligors; Grantors Remain Liable .

(a) The Collateral Agent may at any time after the occurrence and during the continuance of an Event of Default communicate with obligors under the Receivables and parties to the Contracts to verify to the Collateral Agent’s satisfaction the existence, amount and terms of any Receivables or Contracts.

(b) At any time after the occurrence and during the continuance of an Event of Default, the Collateral Agent may (and each Grantor at the request of the Collateral Agent shall) notify obligors on the Receivables and parties to the Contracts that the Receivables and the Contracts have been assigned to the Collateral Agent for the benefit of the Secured Parties and that payments in respect thereof shall be made directly to the Collateral Agent.

(c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each of such Grantor’s Receivables and Contracts to observe and perform in all material respects the conditions and obligations to be observed and performed by it thereunder, in accordance with the terms of any written agreement giving rise thereto. No Secured Party shall have any obligation or liability under any Receivable (or any agreement giving rise thereto) or Contract by reason of or arising out of this Agreement or the receipt by any Secured Party of any payment relating thereto, nor shall any Secured Party be obligated in any manner to perform any of the obligations of any Grantor under or pursuant to any Receivable (or any agreement giving rise thereto) or Contract, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party thereunder, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.

16.3 Investment Property .

(a) Unless an Event of Default has occurred and is continuing and the Collateral Agent has given (to the extent notice is required under the terms of this Agreement or the Credit Agreement) notice to the relevant Grantor of the Collateral Agent’s intent to exercise its rights pursuant to Section 6.3(b) , each Grantor may receive all cash dividends paid in respect of the Pledged Stock pledged hereunder and all payments made in respect of the Pledged Notes pledged hereunder to the extent permitted in the Credit Agreement, and may exercise all voting and corporate or other organizational rights with respect to Investment Property for all purposes not inconsistent with the Loan Documents.

(b) If an Event of Default shall occur and be continuing and the Collateral Agent has given notice of its intent to exercise such rights to the relevant Grantor or Grantors, all rights of each Grantor to exercise or refrain from exercising the voting and other consensual rights which it would otherwise be entitled to exercise pursuant hereto shall cease and all such rights shall become vested in the Collateral Agent who thereupon shall have the sole right, but shall be under no obligation to, (i) receive any and all cash dividends, payments or other Proceeds paid in respect of the Investment Property and make application thereof to the Secured Obligations in the order set forth in Section 6.5 and (ii) have any or all of the Investment Property registered in the name of the Collateral Agent or its nominee, and the Collateral Agent or its nominee may thereafter exercise (A) all voting, corporate and other rights pertaining to such Investment Property at any meeting of shareholders of the relevant Issuer or Issuers or otherwise and (B) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to such Investment Property as if it were the absolute owner thereof (including the right to exchange, at its discretion, any and all of the Investment Property upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate or other organizational structure of any Issuer, or upon the exercise by any Grantor or the Collateral Agent of any right, privilege or option pertaining to such Investment Property, and in connection therewith, the right to deposit and deliver any and all of the Investment Property with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Collateral Agent may determine), all without liability except to account for property actually received by it, but the Collateral Agent shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing.

(c) Each Grantor hereby authorizes and instructs each Issuer of any Investment Property pledged by such Grantor hereunder to, and any such Issuer party hereto agrees to, (i) comply with any instruction received by it from the Collateral Agent in writing consistent with the terms of this Agreement and the Credit Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that each Issuer shall be fully protected in so complying and (ii) after receipt by an Issuer or obligor of any instructions pursuant to Section 6.3(c)(i) hereof, pay any dividends or other payments with respect to the Investment Property directly to the Collateral Agent.

16.4 Proceeds to be Turned Over to Collateral Agent . In addition to the rights of the Secured Parties specified in Section 6.1 with respect to payments of Receivables, if an Event of Default shall occur and be continuing and the Collateral Agent has instructed any Grantor to do so, all Proceeds received by such Grantor consisting of cash, checks and other near-cash items shall be held by such Grantor in trust for the Secured Parties, segregated from other funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to the Collateral Agent substantially in the form received by such Grantor (duly indorsed by such Grantor to the Collateral Agent, if required). All Proceeds received by the Collateral Agent hereunder shall be held by the Collateral Agent in a Collateral Account maintained under its sole dominion and control. All Proceeds while held by the Collateral Agent in a Collateral Account (or by such Grantor in trust for the Collateral Agent and the Secured Parties) shall

continue to be held as collateral security for all the Secured Obligations and shall not constitute payment thereof until applied as provided in Section 6.5 .

16.5 Application of Proceeds . At such intervals as may be agreed upon by the Borrower and the Collateral Agent, or, if and whenever any Event of Default has occurred and is continuing, the Collateral Agent shall apply all or any part of Proceeds constituting Collateral, whether or not held in any Collateral Account, any Securities Account or any Deposit Account, and any proceeds of the guarantee set forth in Section 2 , in payment of the Secured Obligations in the following order (it being understood that any application of such Proceeds constituting Collateral by the Collateral Agent towards the payment of the Secured Obligations shall be made in the following order): first , to unpaid and unreimbursed costs, expenses and fees of the Administrative Agent and the Collateral Agent (including to reimburse ratably any other Secured Parties which have advanced any of the same to the Collateral Agent) and second , to the Administrative Agent, for application by it toward payment of all amounts then due and owing and remaining unpaid in respect of the Secured Obligations, pro rata among the Secured Parties according to the amount of the Secured Obligations then due and owing and remaining unpaid to the Secured Parties. Any balance of such Proceeds remaining after the Secured Obligations (other than Unasserted Contingent Obligations) have been paid in full, except as otherwise agreed by the affected Qualified Counterparties pursuant to the applicable Specified Hedge Agreements, any Specified Hedge Agreements have been Cash Collateralized or paid in full and all commitments to extend credit under the Loan Documents have terminated shall be paid over to the Borrower or to whomsoever may be lawfully entitled to receive the same. For purposes of this Section 6.5 , to the extent that any Obligation is unmatured, unliquidated or contingent (other than Unasserted Contingent Obligations) at the time any distribution is to be made pursuant to the second clause above, the Collateral Agent shall allocate a portion of the amount to be distributed pursuant to such clause for the benefit of the Secured Parties holding such Secured Obligations and shall hold such amounts for the benefit of such Secured Parties until such time as such Secured Obligations become matured, liquidated and/or payable at which time such amounts shall be distributed to the holders of such Secured Obligations to the extent necessary to pay such Secured Obligations in full (with any excess to be distributed in accordance with this Section 6.5 as if distributed at such time). In making determinations and allocations required by this Section 6.5 , the Collateral Agent may conclusively rely, absent manifest error, upon information provided to it by the holder of the relevant Secured Obligations and shall not be required to, or be responsible for, ascertaining the existence of or amount of any Secured Obligations.

16.6 Code and Other Remedies . If an Event of Default shall occur and be continuing, the Collateral Agent may exercise, on behalf of the Secured Parties, in addition to all other rights and remedies granted to it in this Agreement and in any other Loan Document, all rights and remedies of a secured party under the New York UCC or any other applicable law or in equity. Without limiting the generality of the foregoing, to the fullest extent permitted by applicable law and after the occurrence and during the continuance of an Event of Default, the Collateral Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by this Agreement or required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any Agent or any Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best (subject to any and all mandatory legal requirements), for cash or on credit or for future delivery without assumption of any credit risk. Any Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to

purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Grantor, which right or equity is hereby waived and released . Each Grantor further agrees, at the Collateral Agent’s request, to assemble the Collateral and make it available to the Collateral Agent at places which the Collateral Agent shall reasonably select, whether at such Grantor’s premises or elsewhere. The Collateral Agent shall have the right to enter onto the property where any Collateral is located and take possession thereof with or without judicial process. The Collateral Agent shall apply the net proceeds of any action taken by it pursuant to this Section 6.6 , after deducting all reasonable costs and expenses incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Collateral Agent and the Secured Parties hereunder, including reasonable and documented attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in such order as set forth in Section 6.5 , and only after such application and after the payment by the Collateral Agent of any other amount required by any provision of law, including Section 9-615(a)(3) of the UCC, need the Collateral Agent account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any Secured Party arising out of the exercise of any rights hereunder other than any such claims, damages and demands found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Secured Party. If any notice of a proposed sale or other disposition of Collateral is required by law, such notice shall be deemed reasonable and proper if given at least ten (10) days before such sale or other disposition.

In the event of any disposition of any of the Intellectual Property in accordance with the foregoing, the goodwill of the business connected with and symbolized by any Trademarks subject to such disposition shall be included, and the applicable Grantor shall supply the Collateral Agent or its designee with such Grantor’s know-how and expertise, and with documents and things embodying the same, relating to the manufacture, distribution, advertising and sale of products or the provision of services relating to any Intellectual Property subject to such disposition, and such Grantor’s customer lists and other records and documents relating to such Intellectual Property and to the manufacture, distribution, advertising and sale of such products and services.

16.7 Registration Rights .

(a) Each Grantor recognizes that the Collateral Agent may be unable to effect a public sale of any or all the Pledged Stock after the occurrence and during the continuance of an Event of Default, by reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and agrees that any such private sale shall not, solely as a result of such circumstances, be deemed to have been made in a commercially unreasonable manner. The Collateral Agent shall be under no obligation to delay a sale of any of the Pledged Stock pledged hereunder for the period of time necessary to permit the Issuer thereof to register such securities for public sale under the Securities Act, or under applicable state securities laws, even if such Issuer would agree to do so.

(b) Each Grantor agrees to use its best efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of all or any portion of the Pledged Stock pledged hereunder after the occurrence and during the continuance of an Event of Default pursuant to this Section 6.7 valid and binding and in compliance with any and all other applicable Requirements of Law. Each Grantor

further agrees that a breach of any of the covenants contained in this Section 6.7 will cause irreparable injury to the Secured Parties, that the Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 6.7 shall be specifically enforceable against such Grantor, and to the fullest extent permitted by applicable law, such Grantor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no Event of Default has occurred or is continuing under the Credit Agreement.

16.8 Deficiency . Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay its Secured Obligations and the fees and disbursements of any attorneys employed by the Collateral Agent or any Secured Party to collect such deficiency.

16.9 Intellectual Property .

(a) Upon the occurrence and during the continuance of any Event of Default, the Collateral Agent shall have the right, but shall in no way be obligated, to file applications for protection of the Intellectual Property included in the Collateral and/or bring suit in the name of any Grantor, the Collateral Agent or the Secured Parties, to enforce the Intellectual Property included in the Collateral. Solely for the purpose of enabling the Collateral Agent to exercise rights and remedies hereunder, at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies upon the occurrence and during the continuance of any Event of Default, each Grantor hereby grants to the Collateral Agent a non-exclusive license and sublicense (in each case, exercisable without payment of royalties or other compensation to such Grantor) to make, have made, use, sell, copy, distribute, perform, make derivative works, publish, and exploit in any other manner for which an authorization from the owner of such Intellectual Property would be required under applicable Requirements of Law, with rights of sublicense, any of the Intellectual Property included in the Collateral now or hereafter owned by or licensed to such Grantor, wherever the same may be located; provided that (i) the applicable Grantor shall have such rights of quality control and inspection which are reasonably necessary under applicable Requirements of Law to maintain the validity and enforceability of such Trademarks, (ii) with respect to such Intellectual Property, any licenses granted prior to the Closing Date and those granted after the Closing Date that are Permitted Liens and any sublicenses duly granted by Collateral Agent under this license grant shall survive in accordance with their terms as direct licenses of the Grantor, in the event of the subsequent cure of any Event of Default that gave rise to the exercise of the Collateral Agent’s rights and remedies, and (iii) the license granted hereunder shall be irrevocable until the termination of the Credit Agreement, or as to Collateral as to which the Lien is released under Section 8.15(b) , at such time as the sale, transfer or disposal occurs. The foregoing license shall include access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout hereof. Any use of Trademarks under the foregoing license shall be consistent with the historical use of such Trademarks by the Grantors and shall meet the Grantors’ standards of quality in all material respects. At the Grantors’ reasonable request, the Collateral Agent shall provide samples of any goods to be sold under a Grantor Trademark.

SECTION 17. THE COLLATERAL AGENT

17.1 Collateral Agent’s Appointment as Attorney-in-Fact, etc .

(a) Each Grantor hereby irrevocably constitutes and appoints the Collateral Agent and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or

in its own name, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate actions and to execute any and all documents and instruments which may be necessary or reasonably desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, each Grantor hereby gives the Collateral Agent the power and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following:

(i) in the name of such Grantor or its own name, or otherwise, take possession of and indorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable or contract of such Grantor or with respect to any other Collateral of such Grantor and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Collateral Agent for the purpose of collecting any and all such moneys due under any Receivable or contract of such Grantor or with respect to any other Collateral of such Grantor whenever payable;

(ii) in the case of any Intellectual Property, execute and deliver, and have recorded, any and all agreements, instruments, documents and papers as the Collateral Agent may reasonably request to evidence the Secured Parties’ security interest in such Intellectual Property and the goodwill connected with the use thereof or symbolized thereby and the general intangibles of such Grantor represented thereby;

(iii) file or cause to be filed all tax returns that are required to be filed and pay or discharge all taxes, assessments, fees or other charges and Liens levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof;

(iv) execute, in connection with any sale provided for in Section 6.6 or 6.7 , any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and

(v) (A) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Collateral Agent or as the Collateral Agent shall direct; (B) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral of such Grantor; (C) sign and indorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral of such Grantor; (D) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral of such Grantor; (E) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (F) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Collateral Agent may deem appropriate; (G) subject to any permitted licenses and reserved rights permitted under the Loan Documents, assign any Copyright, Patent or Trademark (along with the goodwill of the business connected with the use of or symbolized by any Trademark), throughout the world for such term or terms, on such conditions, and in such manner, as the Collateral Agent shall in its sole discretion determine; and (H) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral of such Grantor as fully and completely as though the Collateral Agent were the absolute owner thereof for all purposes, and do, at the Collateral Agent’s option and such Grantor’s expense, at any time, or from time to time, all acts and things which the Collateral

Agent deems necessary to protect, preserve or realize upon the Collateral of such Grantor and the Secured Parties’ security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.

The Collateral Agent agrees that it will not exercise any rights under the power of attorney provided for in this Section 7.1(a) unless an Event of Default has occurred and is continuing.

(b) If any Grantor fails to perform or comply with any of its agreements contained herein, the Collateral Agent, at its option, but without any obligation so to do, may perform or comply with, or cause performance or compliance with, such agreement.

(c) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable as to each Grantor until this Agreement is terminated and all security interests created hereby with respect to the Collateral of such Grantor are released.

17.2 Duty of Collateral Agent . The Collateral Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession, under Section 9-207 of the New York UCC or otherwise, shall be to deal with it in the same manner as the Collateral Agent deals with similar property for its own account. Neither the Collateral Agent, any Secured Party nor any of their respective officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the Secured Parties hereunder are solely to protect the Secured Parties’ interests in the Collateral and shall not impose any duty upon any Secured Parties to exercise any such powers. The Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except to the extent that any such act or failure to act is found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from their own gross negligence or willful misconduct in breach of a duty owed to such Grantor.

17.3 Financing Statements . Each Grantor hereby authorizes the filing of any financing statements or continuation statements, and amendments to financing statements, or any similar document in any jurisdictions and with any filing offices as the Collateral Agent may reasonably determine, in its sole discretion, are necessary or advisable to perfect or otherwise protect the security interest granted to the Collateral Agent herein. Such financing statements may describe the Collateral in the same manner as described herein or may contain an indication or description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine, in its sole discretion, is necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral granted to the Collateral Agent herein, including describing such property as “all assets” or “all personal property” or using words of similar import and may add thereto “whether now owned or hereafter acquired”. Each Grantor hereby ratifies and authorizes the filing by the Collateral Agent of any financing statement with respect to the Collateral made prior to the date hereof.

17.4 Authority, Immunities and Indemnities of Collateral Agent . Each Grantor acknowledges, and, by acceptance of the benefits hereof, each Secured Party agrees, that the rights and responsibilities of the Collateral Agent under this Agreement with respect to any action taken by the Collateral Agent or the exercise or non-exercise by the Collateral Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as among the

Secured Parties, be governed by the Credit Agreement and that the Collateral Agent shall have, in respect thereof, all rights, remedies, immunities and indemnities granted to it in the Credit Agreement. By acceptance of the benefits hereof, each Secured Party that is not a Lender agrees to be bound by the provisions of the Credit Agreement applicable to the Collateral Agent, including Section 10 thereof, as fully as if such Secured Party were a Lender. The Collateral Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.

17.5 Intellectual Property Filings . Each Grantor hereby authorizes the Collateral Agent to execute and/or submit filings with the PTO or United States Copyright Office (or any successor office or any similar office in any state or political subdivision), as applicable, including the Copyright Security Agreement, the Patent Security Agreement, and the Trademark Security Agreement, or other comparable documents, and to take such other actions as may be required under applicable law for the purpose of perfecting, recording, confirming, continuing, enforcing or protecting the security interest granted by such Grantor hereunder, as applicable, naming such Grantor, as debtor, and the Collateral Agent, as secured party.

SECTION 18. MISCELLANEOUS

18.1 Amendments in Writing . None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with Section 10.1 of the Credit Agreement; provided that no such waiver amendment, supplement or modification shall require the consent of any Qualified Counterparty except as expressly provided in Section 10.1 of the Credit Agreement.

18.2 Notices . All notices, requests and demands to or upon the Collateral Agent or any Grantor hereunder shall be effected in the manner provided for in Section 10.2 of the Credit Agreement; provided that any such notice, request or demand to or upon any Grantor shall be addressed to such Grantor at its notice address set forth on Schedule 1 or to such other address as such Grantor may notify the Collateral Agent in writing; provided further that notices to the Collateral Agent shall be addressed as follows, or to such other address as may be hereafter notified by the Collateral Agent:

Morgan Stanley Senior Funding, Inc.
1585 Broadway
New York, NY 10036
Attention: MSAgency
Email: msagency@morganstanley.com

18.3 No Waiver by Course of Conduct; Cumulative Remedies . No Secured Party shall by any act (except by a written instrument pursuant to Section 8.1 ), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which such Secured Party would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.

18.4 Enforcement Expenses; Indemnification .

(a) Each Grantor agrees to pay, or reimburse each Secured Party for, all its documented costs and expenses incurred in connection with collecting against such Grantor under the guarantee contained in Section 2 or otherwise enforcing or preserving any rights under this Agreement and the other Loan Documents to which such Grantor is a party, including the reasonable and invoiced fees and disbursements of counsel to the Collateral Agent and counsel to the each Secured Party, on the terms set forth in Section 10.5(a) of the Credit Agreement.

(b) Each Grantor agrees to pay, and to save the Secured Parties harmless from, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, court, documentary, intangible, recording, filing, sales or other similar taxes which may be payable or determined to be payable with respect to any of the Collateral or in connection with any of the transactions contemplated by this Agreement.

(c) Each Grantor agrees to pay, and to save the Secured Parties harmless from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement on the terms set forth in Section 10.5 of the Credit Agreement.

(d) The agreements in this Section 8.4 shall survive repayment of the Secured Obligations and all other amounts payable under the Credit Agreement and the other Loan Documents.

18.5 Successors and Assigns . This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of the Secured Parties and their successors and assigns; provided that no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Collateral Agent and, unless so consented to, each such assignment, transfer or delegation by any Grantor shall be void.

18.6 Set-Off . Each Grantor hereby irrevocably authorizes each Secured Party at any time and from time to time while an Event of Default shall have occurred and be continuing, without notice to such Grantor or any other Grantor and to the extent permitted by applicable law, upon any amount becoming due and payable by such Grantor hereunder (whether at the stated maturity, by acceleration or otherwise), any such notice being expressly waived by each Grantor, to set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent (other than Unasserted Contingent Obligations), matured or unmatured, at any time held or owing by such Secured Party to or for the credit or the account of such Grantor, or any part thereof in such amounts as such Secured Party may elect, against and on account of the obligations and liabilities of such Grantor to such Secured Party hereunder and claims of every nature and description of such Secured Party against such Grantor, in any currency, whether arising hereunder, under the Credit Agreement, any other Loan Document, any Specified Hedge Agreement or otherwise, as such Secured Party may elect. Each Secured Party shall notify such Grantor promptly of any such set-off and the application made by such Secured Party of the proceeds thereof, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Secured Party under this Section 8.5 are in addition to other rights and remedies (including other rights of set-off) which such Secured Party may have.

18.7 Counterparts . This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile transmission or electronic transmission (in PDF format) shall be effective as delivery of a manually executed counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower, the Administrative Agent and the Collateral Agent.

18.8 Severability . Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

18.9 Section Headings . The Section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.

18.10 Integration . This Agreement and the other Loan Documents represent the entire integrated agreement of the Grantors and the Secured Parties with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by any Secured Party relative to subject matter hereof and thereof not expressly set forth or referred to herein or in the other Loan Documents. This Agreement was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof. All of the rights and remedies of the Secured Parties with respect to the Collateral, whether established hereby or by any other agreements, instruments or documents or by law shall be cumulative and may be exercised singly or concurrently.

18.11 GOVERNING LAW . THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

18.12 Submission To Jurisdiction; Waivers . Each of the parties hereto hereby irrevocably and unconditionally:

(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of the Courts of the State of New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof;

(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;

(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the address referred to on Schedule 1 hereof or on the signature pages of the Credit Agreement, as applicable, or at such other address of which the other parties hereto shall have been notified pursuant thereto;

(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and

(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section 8.12 any special, exemplary, punitive or consequential damages.

18.13 Acknowledgments . Each Grantor hereby acknowledges that:

(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party;

(b) no Secured Party has any fiduciary relationship with or duty to any Grantor arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Grantors, on the one hand, and the Secured Parties, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and

(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Secured Parties or among the Grantors and the Secured Parties.

18.14 Additional Grantors . Each Subsidiary of the Borrower that is required to become a party to this Agreement pursuant to Section 6.9 of the Credit Agreement shall become a Grantor for all purposes of this Agreement upon execution and delivery by such Subsidiary of an assumption agreement in the form of Annex I hereto. The execution and delivery of such assumption agreement shall not require the consent of any Grantor hereunder. The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Agreement .

18.15 Releases .

(a) At such time as the Loans and all other Secured Obligations (other than Unasserted Contingent Obligations) and obligations (other than Unasserted Contingent Obligations) under or in respect of Specified Hedge Agreements have been paid in full and all commitments to extend credit under the Loan Documents have terminated, the Collateral shall automatically be released from the Liens created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of the Collateral Agent and each Grantor hereunder shall automatically terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall automatically revert to the Grantors. At the request and sole expense of any Grantor following any such termination, the Collateral Agent shall deliver to such Grantor any Collateral held by the Collateral Agent hereunder, execute and deliver to such Grantor such documents (in form and substance reasonably satisfactory to the Collateral Agent) and take such further actions as such Grantor may reasonably request to evidence such termination.

(b) If any of the Collateral is sold, transferred or otherwise disposed of by any Grantor (other than to another Grantor) in a transaction permitted by the Credit Agreement, then the Lien created pursuant to this Agreement in such Collateral shall be released, and the Collateral Agent, at the request and sole expense of such Grantor, shall promptly execute and deliver to such Grantor all releases or other documents reasonably necessary or desirable and in form reasonably satisfactory to the Collateral Agent and take such further actions for the release of such Collateral (not including Proceeds thereof) from the security interests created hereby; provided that the Borrower and applicable Grantor shall have delivered

to the Collateral Agent, at least three (3) Business Days (or such shorter period of time acceptable to the Collateral Agent) prior to the date of the proposed release, a certificate of a Responsible Officer with request for release identifying the relevant Collateral and certifying that such transaction is in compliance with the Credit Agreement and the other Loan Documents. At the request and sole expense of the Borrower, a Guarantor shall be released from its obligations hereunder in the event that all the Capital Stock of such Guarantor shall be sold, transferred or otherwise disposed of in a transaction permitted by the Credit Agreement; provided that the Borrower shall have delivered to the Collateral Agent, at least three (3) Business Days (or such shorter period of time acceptable to the Collateral Agent) prior to the date of the proposed release, a certificate of a Responsible Officer of the Borrower with request for release identifying the relevant Guarantor and certifying that such transaction is in compliance with the Credit Agreement and the other Loan Documents.

18.16 WAIVER OF JURY TRIAL . EACH GRANTOR AND, BY ACCEPTANCE OF THE BENEFITS HEREOF, THE COLLATERAL AGENT AND EACH OTHER SECURED PARTY, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN .

IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and Collateral Agreement to be duly executed and delivered as of the date first above written.

AUXILIUM PHARMACEUTICALS, INC.,
as Borrower


By:
	Name:
	Title:

		OPAL ACQUISITION, LLC


		By:
	Name:
	Title:

		AUXILIUM INTERNATIONAL HOLDINGS, INC.


		By:
	Name:
	Title:

		AUXILIUM US HOLDINGS, LLC


		By:
	Name:
	Title:

		GTCR/ACTIENT HOLDINGS/B CORP.


		By:
	Name:
	Title:

		ACTIENT HOLDINGS LLC


		By:
	Name:
	Title:

			ACTIENT PHARMACEUTICALS LLC


			By:
		Name:
		Title:

			SLATE PHARMACEUTICALS, INC.


			By:
		Name:
		Title:

			ACTIENT THERAPEUTICS LLC


			By:
		Name:
		Title:

			70 MAPLE AVENUE, LLC


			By:
		Name:
		Title:

			TIMM MEDICAL HOLDINGS, LLC


			By:
		Name:
		Title:

			TIMM MEDICAL TECHNOLOGIES, INC.


			By:
		Name:
		Title:

Agreed and Accepted:

MORGAN STANLEY SENIOR FUNDING, INC.,
as Collateral Agent

By:
	Name:
	Title:

Schedule 1

NOTICE ADDRESS FOR EACH GRANTOR

Schedule 2

DESCRIPTION OF INVESTMENT PROPERTY

Pledged Equity Interests:

Name of
Grantor

Issuer

Class of
Stock

Certificated
(Y/N)

Certificate
No.

Par
Value

No. of
Shares

% of
Outstanding
Stock of the
Stock Issuer

Pledged Notes:

Name of Grantor	Issuer	Original Principal Amount	Issue Date	Maturity Date

Schedule 3

EXACT LEGAL NAME; LOCATION OF JURISDICTION OF ORGANIZATION;

CHIEF EXECUTIVE OFFICE

Schedule 4

FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS

Uniform Commercial Code Filings

Entity		Jurisdiction of Filing

[List all filings for each Grantor]

Actions with respect to Pledged Stock

Delivery of all certificates listed on Schedule 2.

Schedule 5

TRADE NAMES

Annex I to
Guarantee and Collateral Agreement

This ASSUMPTION AGREEMENT (this “ Assumption Agreement ”), dated as of [ ], 20[ ], is made by [ ], a [ ] (the “ Additional Grantor ”), in favor of MORGAN STANLEY SENIOR FUNDING, INC., as collateral agent (in such capacity, the “ Collateral Agent ”) and MORGAN STANLEY SENIOR FUNDING, INC., as administrative agent (in such capacity, the “ Administrative Agent ”), for the benefit of the Secured Parties (as defined in the Credit Agreement referred to below). All capitalized terms not defined herein shall have the meaning ascribed to them in such Credit Agreement.

RECITALS

A. WHEREAS, Auxilium Pharmaceuticals, Inc. , a corporation organized under the laws of the State of Delaware (the “ Borrower ”), Opal Acquisition, LLC, a Delaware limited liability company (“ Merger Sub ”), the Lenders, Morgan Stanley Senior Funding, Inc., as Administrative Agent and Collateral Agent, have entered into a Credit Agreement, dated as of April 26, 2013 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”);

B. WHEREAS, in connection with the Credit Agreement, the Borrower, Merger Sub and certain other Subsidiaries (other than the Additional Grantor) have entered into the Guarantee and Collateral Agreement, dated as of April 26, 2013 (as amended, supplemented or otherwise modified from time to time, the “ Guarantee and Collateral Agreement ”) in favor of the Collateral Agent and the Administrative Agent for the benefit of the Secured Parties;

C. WHEREAS, the Credit Agreement requires the Additional Grantor to become a party to the Guarantee and Collateral Agreement; and

D. WHEREAS, the Additional Grantor has agreed to execute and deliver this Assumption Agreement in order to become a party to the Guarantee and Collateral Agreement;

NOW, THEREFORE, IT IS AGREED:

1. Collateral Agreement . By executing and delivering this Assumption Agreement, the Additional Grantor, as provided in Section 8.14 of the Guarantee and Collateral Agreement, hereby becomes a party to the Guarantee and Collateral Agreement as a Grantor thereunder with the same force and effect as if originally named therein as a Grantor and, without limiting the generality of the foregoing, hereby expressly guarantees the Secured Obligations as set forth in Section 2 thereof, grants the Collateral Agent, for the benefit of the Secured Parties, a security interest in all of its right, title and interest in the Collateral (as defined in the Guarantee and Collateral Agreement) as collateral security for the complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of all Secured Obligations as set forth in Section 3 thereof, and assumes all other obligations and liabilities of a Grantor set forth therein. The information set forth in Annex I-A hereto is hereby added to the information set forth in Schedules [ ](5) to the Guarantee and Collateral Agreement. The Additional Grantor hereby represents and warrants that each of the representations and warranties

(5) Refer to each Schedule which needs to be supplemented.

contained in Section 4 of the Guarantee and Collateral Agreement is true and correct in all material respects on and as the date hereof (after giving effect to this Assumption Agreement) as if made on and as of such date (except to the extent made on a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date).

2. Financing Statements . The Additional Grantor hereby authorizes the filing of any financing statements or continuation statements, and amendments to financing statements, or any similar document in any jurisdictions and with any filing offices as the Collateral Agent may determine, in its sole discretion, are necessary or advisable to perfect or otherwise protect the security interest granted to the Collateral Agent herein in accordance with the terms of the Guarantee and Collateral Agreement. Such financing statements may describe the Collateral in the same manner as described herein or may contain an indication or description of collateral that describes such property in any other manner as the Collateral Agent may determine, in its sole discretion, is necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral granted to the Collateral Agent herein, including describing such property as “all assets” or “all personal property” and may add thereto “whether now owned or hereafter acquired.” The Additional Grantor hereby ratifies and authorizes the filing by the Collateral Agent of any financing statement with respect to the Collateral made prior to the date hereof.

3. Intellectual Property Filings . The Additional Grantor hereby authorizes the Collateral Agent to execute and/or submit filings with the PTO or United States Copyright Office (or any successor office or any similar office in any state or political subdivision), as applicable, including this Agreement, a Copyright Security Agreement, a Patent Security Agreement, and/or a Trademark Security Agreement based on the nature of the Intellectual Property owned by such Additional Grantor, or other comparable documents, and to take such other actions as may be required under applicable law for the purpose of perfecting, recording, confirming, continuing, enforcing or protecting the security interest granted by the Additional Grantor hereunder, naming the Additional Grantor, as debtor, and the Collateral Agent, as secured party.

4. GOVERNING LAW . THIS ASSUMPTION AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. THE PROVISIONS OF SECTIONS 8.1, 8.3, 8.4, 8.5, 8.7, 8.8, 8.9, 8.10, 8.12 AND 8.13 OF THE GUARANTEE AND COLLATERAL AGREEMENT SHALL APPLY WITH LIKE EFFECT TO THIS ASSUMPTION AGREEMENT, AS FULLY AS IF SET FORTH AT LENGTH HEREIN.

IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed and delivered as of the date first above written.

		[ADDITIONAL GRANTOR]


		By:
			Name:
			Title:


Agreed and Accepted:

MORGAN STANLEY SENIOR FUNDING,
INC., as Collateral Agent


By:
	Name:
	Title:

Annex II-A to
Guarantee and Collateral Agreement

FORM OF COPYRIGHT SECURITY AGREEMENT

This COPYRIGHT SECURITY AGREEMENT, dated as of [ ], 2013 (“ Copyright Security Agreement ”), made by , a , located at [ADD FOR EACH OF THE SIGNATORIES HERETO] (the “ Grantors ”), is in favor of MORGAN STANLEY SENIOR FUNDING, INC., as collateral agent (in such capacity, the “ Collateral Agent ”) for the Secured Parties.

W I T N E S S E T H :

WHEREAS, the Grantors are party to a Guarantee and Collateral Agreement dated as of April 26, 2013 (the “ Guarantee and Collateral Agreement ”) in favor of the Collateral Agent and MORGAN STANLEY SENIOR FUNDING, INC., as administrative agent (in such capacity, the “ Administrative Agent ”) pursuant to which the Grantors are required to execute and deliver this Copyright Security Agreement (capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Guarantee and Collateral Agreement);

WHEREAS, pursuant to the terms of the Guarantee and Collateral Agreement, each Grantor has created in favor of the Collateral Agent a security interest in the Copyright Collateral (as defined below);

NOW, THEREFORE, in consideration of the premises and to induce the Agents and the Lenders to enter into the Credit Agreement and to induce Lenders to make their respective extensions of credit to the Borrower thereunder and to induce the Qualified Counterparties to enter into the Specified Hedge Agreements and provide financial accommodation, each Grantor hereby agrees with the Collateral Agent, for the benefit of the Secured Parties, as follows:

Each Grantor hereby grants to the Collateral Agent, for the benefit of the Secured Parties, a security interest in all of the following property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “ Copyright Collateral ”), as collateral security for the complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of all Secured Obligations:

(a) all copyrights (whether registered or unregistered in the United States or any other country or any political subdivision thereof) and all mask works (as such term is defined in 17 U.S.C. § 901, et seq.), including, without limitation, each registered copyright identified on Schedule 1 attached hereto, together with any and all (i) registrations and applications therefor, (ii) rights and privileges arising under applicable law with respect to such copyrights, (iii) renewals and extensions thereof and amendments thereto, (iv) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto, including, without limitation, damages, claims and payments for past, present and future infringements, misappropriations or other violations thereof, (v) rights to sue or otherwise recover for past, present and future infringements, misappropriations and other violations thereof and (iv) rights corresponding thereto throughout the world (“ Copyrights ”) of such Grantor,

including, without limitation, the registered and applied-for Copyrights of such Grantor listed on Schedule 1 attached hereto; and

(b) all Proceeds of any of the foregoing;

provided , that (i) this Copyright Security Agreement shall not constitute a grant of a security interest in any property to the extent that and for as long as such grant of a security interest would be prohibited by the terms of the Guarantee and Collateral Agreement; and (ii) the security interest granted hereby (A) shall attach at all times to all proceeds of such property, (B) shall attach to such property immediately and automatically (without need for any further grant or act) at such time as the condition described in clause (i) ceases to exist and (C) to the extent severable, shall, in any event, attach to all rights in respect of such property that are not subject to the applicable condition described in clause (i) .

The security interest granted pursuant to this Copyright Security Agreement is granted concurrently and in conjunction with security interest granted to the Collateral Agent pursuant to the Guarantee and Collateral Agreement and Grantors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Copyrights made and granted hereby are more fully set forth in the Guarantee and Collateral Agreement. In the event that any provision of this Copyright Security Agreement is deemed to conflict with the Guarantee and Collateral Agreement, the provisions of the Guarantee and Collateral Agreement shall govern.

The term of this Copyright Security Agreement shall be co-terminus with the Guarantee and Collateral Agreement.

Each Grantor hereby authorizes and requests that with respect to the Intellectual Property listed on Schedule 1 , the United States Copyright Office record this Copyright Security Agreement.

THIS COPYRIGHT SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS COPYRIGHT SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

This Copyright Security Agreement may be executed by one or more of the parties to this Copyright Security Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Copyright Security Agreement by facsimile transmission or electronic transmission (in PDF format) shall be effective as delivery of a manually executed counterpart hereof. A set of the copies of this Copyright Security Agreement signed by all the parties shall be lodged with the Borrower, the Administrative Agent and the Collateral Agent.

[Remainder of This Page Intentionally Left Blank.]

IN WITNESS WHEREOF, each Grantor has caused this COPYRIGHT SECURITY AGREEMENT to be executed and delivered by its duly authorized officer as of the date first above written.

		[ASSIGNOR]


		By:
			Name:
			Title:

Accepted and Agreed:

MORGAN STANLEY SENIOR FUNDING,
INC., as Collateral Agent


By:
	Name:
	Title:

Schedule 1

COPYRIGHTS

Title of Work	Reg. No.	Reg. Date	Owner

Annex II-B to
Guarantee and Collateral Agreement

FORM OF PATENT SECURITY AGREEMENT

This PATENT SECURITY AGREEMENT, dated as of [ ], 2013 (“ Patent Security Agreement ”), made by , a , located at [ADD FOR EACH OF THE SIGNATORIES HERETO] (the “ Grantors ”), is in favor of MORGAN STANLEY SENIOR FUNDING, INC., as collateral agent (in such capacity, the “ Collateral Agent ”) for the Secured Parties.

W I T N E S S E T H :

WHEREAS, the Grantors are party to a Guarantee and Collateral Agreement dated as of April 26, 2013 (the “ Guarantee and Collateral Agreement ”) in favor of the Collateral Agent and MORGAN STANLEY SENIOR FUNDING, INC., as administrative agent (in such capacity, the “ Administrative Agent ”) pursuant to which the Grantors are required to execute and deliver this Patent Security Agreement (capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Guarantee and Collateral Agreement);

WHEREAS, pursuant to the terms of the Guarantee and Collateral Agreement, each Grantor has created in favor of the Collateral Agent a security interest in the Patent Collateral (as defined below);

Each Grantor hereby grants to the Collateral Agent, for the benefit of the Secured Parties, a security interest in all of the following property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “ Patent Collateral ”), as collateral security for the complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of all Secured Obligations:

(a) all patents, patent applications, certificates of inventions, industrial designs (whether issued or applied for in the United States or any other country or any political subdivision thereof), including, without limitation, each issued patent and patent application identified on Schedule 1 attached hereto, together with any and all (i) inventions and improvements described and claimed therein, (ii) reissues, divisions, continuations, extensions and continuations-in-part thereof and amendments thereto, (iii) income, fees, royalties, damages, and payments now and hereafter due and/or payable under or with respect to any of the foregoing, including, without limitation, damages, claims and payments for past, present and future infringements, misappropriations and other violations thereof, (iv) rights and remedies to sue for past, present and future infringements, misappropriations and other violations of any of the foregoing and (v) rights, priorities, and privileges corresponding to any of the foregoing throughout the world (“ Patents ”) of such Grantor, including, without limitation, the

registered and applied for Patents of such Grantor listed on Schedule 1 attached hereto; and

(b) all Proceeds of any of the foregoing;

provided , that (i) this Patent Security Agreement shall not constitute a grant of a security interest in any property to the extent that and for as long as such grant of a security interest would be prohibited by the terms of the Guarantee and Collateral Agreement; and (ii) the security interest granted hereby (A) shall attach at all times to all proceeds of such property, (B) shall attach to such property immediately and automatically (without need for any further grant or act) at such time as the condition described in clause (i) ceases to exist and (C) to the extent severable, shall, in any event, attach to all rights in respect of such property that are not subject to the applicable condition described in clause (i) .

The security interest granted pursuant to this Patent Security Agreement is granted concurrently and in conjunction with security interest granted to the Collateral Agent pursuant to the Guarantee and Collateral Agreement and Grantors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Patents made and granted hereby are more fully set forth in the Guarantee and Collateral Agreement. In the event that any provision of this Patent Security Agreement is deemed to conflict with the Guarantee and Collateral Agreement, the provisions of the Guarantee and Collateral Agreement shall govern.

The term of this Patent Security Agreement shall be co-terminus with the Guarantee and Collateral Agreement.

Each Grantor hereby authorizes and requests that (i) with respect to the Intellectual Property listed on Schedule 1 , the Commissioner of Patents and Trademarks record this record this Patent Security Agreement.

THIS PATENT SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS PATENT SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

This Patent Security Agreement may be executed by one or more of the parties to this Patent Security Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Patent Security Agreement by facsimile transmission or electronic transmission (in PDF format) shall be effective as delivery of a manually executed counterpart hereof. A set of the copies of this Patent Security Agreement signed by all the parties shall be lodged with the Borrower, the Administrative Agent and the Collateral Agent.

[Remainder of This Page Intentionally Left Blank.]

IN WITNESS WHEREOF, each Grantor has caused this PATENT SECURITY AGREEMENT to be executed and delivered by its duly authorized officer as of the date first above written.

		[ASSIGNOR]


		By:
			Name:
			Title:

Accepted and Agreed:

MORGAN STANLEY SENIOR FUNDING,
INC., as Collateral Agent


By:
	Name:
	Title:

Schedule 1

PATENTS

Issued Patent and Patent Applications

Patent	Reg. No. (App. No.)	Reg. Date (App. date)	Owner

Annex II-C to

Guarantee and Collateral Agreement

FORM OF TRADEMARK SECURITY AGREEMENT

This TRADEMARK SECURITY AGREEMENT, dated as of [ ], 2013 (“ Trademark Security Agreement ”), made by , a , located at [ADD FOR EACH OF THE SIGNATORIES HERETO] (“ Grantors ”), is in favor of MORGAN STANLEY SENIOR FUNDING, INC., as collateral agent (in such capacity, the “ Collateral Agent ”) for the Secured Parties.

W I T N E S S E T H :

WHEREAS, the Grantors are party to a Guarantee and Collateral Agreement dated as of April 26, 2013 (the “ Guarantee and Collateral Agreement ”) in favor of the Collateral Agent and MORGAN STANLEY SENIOR FUNDING, INC., as administrative agent (in such capacity, the “ Administrative Agent ”) pursuant to which the Grantors are required to execute and deliver this Trademark Security Agreement (capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Guarantee and Collateral Agreement);

WHEREAS, pursuant to the terms of the Guarantee and Collateral Agreement, each Grantor has created in favor of the Collateral Agent a security interest in the Trademark Collateral (as defined below);

Each Grantor hereby grants to the Collateral Agent, for the benefit of the Secured Parties, a security interest in all of the following property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “ Trademark Collateral ”), as collateral security for the complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of all Secured Obligations:

(a) all trademarks, service marks, certification marks, tradenames, corporate names, company names, business names, slogans, logos, trade dress, Internet domain names, and other source identifiers, whether registered or unregistered in the United States or any other country or any political subdivision thereof, together with any and all (i) registrations and applications for any of the foregoing, including, without limitation, each registration and application identified on Schedule 1 attached hereto, (ii) goodwill connected with the use thereof and symbolized thereby, (iii) rights and privileges arising under applicable law with respect to the use of any of the foregoing, (iv) extensions and renewals thereof and amendments thereto, (v) income, fees, royalties, damages and payments now and hereafter due and/or payable under or with respect to any of the foregoing, including, without limitation, damages, claims and payments for past, present or future infringements, misappropriations or other violations thereof, (vi) rights and

remedies to sue for past, present and future infringements, misappropriations and other violations of any of the foregoing and (vii) rights, priorities, and privileges corresponding to any of the foregoing throughout the world (“ Trademarks ”) of such Grantor, including, without limitation, the registered and applied for Trademarks of such Grantor listed on Schedule 1 attached hereto; and

(b) to the extent not covered by clause (a), all Proceeds of any of the foregoing;

provided , that (i) this Trademark Security Agreement shall not constitute a grant of a security interest or any other interest in any property to the extent that and for as long as such grant of a security interest would be prohibited by the terms of the Guarantee and Collateral Agreement, including in any applications for trademarks or service marks filed in the PTO pursuant to 15 U.S.C. § 1051 Section 1(b) unless and until evidence of use of the mark in interstate commerce is submitted to and accepted by the PTO pursuant to 15 U.S.C. § 1051 Section 1(c) or Section 1(d); and (ii) the security interest granted hereby (A) shall attach at all times to all proceeds of such property, (B) shall attach to such property immediately and automatically (without need for any further grant or act) at such time as the condition described in clause (i) ceases to exist and (C) to the extent severable, shall, in any event, attach to all rights in respect of such property that are not subject to the applicable condition described in clause (i) .

The security interest granted pursuant to this Trademark Security Agreement is granted in conjunction with security interest granted to the Collateral Agent pursuant to the Guarantee and Collateral Agreement and Grantors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Trademarks made and granted hereby are more fully set forth in the Guarantee and Collateral Agreement. In the event that any provision of this Trademark Security Agreement is deemed to conflict with the Guarantee and Collateral Agreement, the provisions of the Guarantee and Collateral Agreement shall govern.

The term of this Trademark Security Agreement shall be co-terminus with the Guarantee and Collateral Agreement.

Each Grantor hereby authorizes and requests that (i) with respect to the Intellectual Property listed on Schedule 1 , the Commissioner of Patents and Trademarks record this Trademark Security Agreement.

THIS TRADEMARK SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS TRADEMARK SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

This Trademark Security Agreement may be executed by one or more of the parties to this Trademark Security Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Trademark Security Agreement by facsimile transmission or electronic transmission (in PDF format) shall be effective as delivery of a manually executed counterpart hereof. A set of the copies of this Trademark Security Agreement signed by all the parties shall be lodged with the Borrower, the Administrative Agent and the Collateral Agent.

[Remainder of This Page Intentionally Left Blank.]

IN WITNESS WHEREOF, each Grantor has caused this TRADEMARK SECURITY AGREEMENT to be executed and delivered by its duly authorized officer as of the date first above written.

		[ASSIGNOR]


		By:
			Name:
			Title:

Accepted and Agreed:

MORGAN STANLEY SENIOR FUNDING,
INC., as Collateral Agent


By:
	Name:
	Title:

Schedule 1

TRADEMARKS

Trademark Registrations and Applications

Trademark	Reg. No. (App. No.)	Reg. Date (App. date)	Owner

Annex III to

Guarantee and Collateral Agreement

This PLEDGE SUPPLEMENT, dated as of [ ] 20[ ] (the “ Pledge Supplement ”), is delivered by [ ], a [ ] (the “ Grantor ”) pursuant to the Guarantee and Collateral Agreement, dated as of April 26, 2013 (as it may be from time to time amended, amended and restated, restated, supplemented, or otherwise modified from time to time, the “ Guarantee and Collateral Agreement ”), made by AUXILIUM PHARMACEUTICALS, INC., a Delaware corporation (“ Borrower ”) , OPAL ACQUISITION, LLC, a Delaware limited liability company ( “ Merger Sub ”), the other Grantors named therein, MORGAN STANLEY SENIOR FUNDING, INC., as the Collateral Agent, and MORGAN STANLEY SENIOR FUNDING, INC., as the Administrative Agent. Capitalized terms used herein not otherwise defined herein shall have the meanings ascribed thereto in the Guarantee and Collateral Agreement.

Grantor hereby confirms the grant to the Collateral Agent set forth in the Guarantee and Collateral Agreement of, and does hereby grant to the Collateral Agent, for the benefit of the Secured Parties, a security interest in all of Grantor’s right, title and interest in and to all Collateral to secure the Secured Obligations, in each case whether now or hereafter existing or in which Grantor now has or hereafter acquires an interest and wherever the same may be located. Grantor represents and warrants that the attached Supplements to Schedules accurately and completely set forth all additional information required pursuant to the Guarantee and Collateral Agreement and hereby agrees that such Supplements to Schedules shall constitute part of the Schedules to the Guarantee and Collateral Agreement.

Grantor hereby authorizes the filing of any financing statements or continuation statements, and amendments to financing statements, or any similar document in any jurisdictions and with any filing offices as the Collateral Agent may determine, in its sole discretion, are necessary or advisable to perfect or otherwise protect the security interest granted to the Collateral Agent, for the benefit of the Secured Parties, herein in accordance with the terms of the Guarantee and Collateral Agreement. Such financing statements may describe the Collateral in the same manner as described herein or may contain an indication or description of collateral that describes such property in any other manner as the Collateral Agent may determine, in its sole discretion, is necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral granted to the Collateral Agent, for the benefit of the Secured Parties, herein, including describing such property as “all assets” or “all personal property” and may add thereto “whether now owned or hereafter acquired.” Grantor hereby ratifies and authorizes the filing by the Collateral Agent of any financing statement with respect to the Collateral made prior to the date hereof.

[Remainder of This Page Intentionally Left Blank.]

Ex. C-1

IN WITNESS WHEREOF, Grantor has caused this Pledge Supplement to be duly executed and delivered by its duly authorized officer as of the date first written above.

	[NAME OF GRANTOR]

	By:
		Name:
		Title:

Ex. C-2

Exhibit D-1 to
Credit Agreement

FORM OF TAX STATUS CERTIFICATE
(For Non U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Pursuant to the provisions of Section 3.10(f)(B)(iii) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Term Loan(s) (as well as any note(s) evidencing such Term Loan(s)) in respect of which it is providing this certificate, (ii) it is not a “ bank ” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, (iv) it is not a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (v) no payments in connection with any Loan Document are effectively connected with a United States trade or business conducted by the undersigned.

The undersigned has furnished the Administrative Agent and the Borrower with two properly completed and duly executed original certifications of its non-U.S. person status on Internal Revenue Service Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent in writing and (2) the undersigned shall furnish the Borrower and the Administrative Agent a properly completed, duly executed and currently effective certificate in either the calendar year in which payment is to be made by the Borrower or the Administrative Agent to the undersigned, or in either of the two calendar years preceding such payment.

[Signature Page Follows]

Ex. D-1-1

	[Lender]


	By:
	Name:
	Title:


	[Address]


Dated: , 20[ ]

Ex. D-1-2

Exhibit D-2 to
Credit Agreement

FORM OF TAX STATUS CERTIFICATE
(For Non U.S. Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

Pursuant to the provisions of Section 3.10(f)(B)(iv) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Term Loan(s) (as well as any note(s) evidencing such Term Loan(s)) in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such Term Loan(s) (as well as any note(s) evidencing such Term Loan(s)), (iii) neither the undersigned nor any of its partners/members is a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, (v) none of its partners/members is a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (vi) no payments in connection with any Loan Document are effectively connected with the a United States trade or business conducted by the undersigned or its partners/members.

The undersigned has furnished the Administrative Agent and the Borrower with Internal Revenue Service Form W-8IMY accompanied by an Internal Revenue Service Form W-8BEN from each of its partners/members claiming the portfolio interest exemption, provided that, for the avoidance of doubt, the foregoing shall not limit the obligation of the Lender to provide, in the case of a partner/ member not claiming the portfolio interest exemption, a Form W-8ECI, Form W-9 or Form W-8IMY (including appropriate underlying certificates from each interest holder of such partner/member), in each case establishing such partner/member’s available exemption from U.S. federal withholding tax. By executing this certificate, the undersigned agrees that (1) if the information provided on any such certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent in writing with a properly completed, duly executed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

[Signature Page Follows]

Ex. D-2-1

	[Lender]


	By:
	Name:
	Title:


	[Address]

Dated: , 20[ ]

Ex. D-2-2

Exhibit D-3 to
Credit Agreement

FORM OF TAX STATUS CERTIFICATE
(For Non U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Pursuant to the provisions of Section 3.10(f)(B)(iii) and Section 10.6(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, (iv) it is not a “ controlled foreign corporation ” described in Section 881(c)(3)(C) of the Code, and (v) no payments in connection with any Loan Document are effectively connected with a United States trade or business conducted by the undersigned.

The undersigned has furnished its participating non-U.S. Lender with a certificate of its non-U.S. person status on Internal Revenue Service Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such non-U.S. Lender in writing, (2) the undersigned shall have at all times furnished such non-U.S. Lender with a properly completed, duly executed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments and (3) the undersigned authorizes the non-U.S. Lender to furnish this certificate and W-8BEN to the Borrower, if required by the Credit Agreement.

[Signature Page Follows]

Ex. D-3-1

	[Participant]


	By:
	Name:
	Title:


	[Address]

Dated: , 20[ ]

Ex. D-3-2

Exhibit D-4 to
Credit Agreement

FORM OF TAX STATUS CERTIFICATE
(For Non U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Pursuant to the provisions of Section 3.10(f)(B)(iv) and Section 10.6(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such participation, (iii) neither the undersigned nor any of its partners/members is a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, (v) none of its partners/members is a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (vi) no payments in connection with any Loan Document are effectively connected with a United States trade or business conducted by the undersigned or its partners/members.

The undersigned has furnished its participating non-U.S. Lender with Internal Revenue Service Form W-8IMY accompanied by an Internal Revenue Service Form W-8BEN from each of its partners/ members claiming the portfolio interest exemption, provided that, for the avoidance of doubt, the foregoing shall not limit the obligation of the undersigned to provide, in the case of a partner/member not claiming the portfolio interest exemption, a Form W-8ECI, Form W-9 or Form W-8IMY (including appropriate underlying certificates from each interest holder of such partner/member), in each case establishing such partner/member’s available exemption from U.S. federal withholding tax. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such non-U.S. Lender in writing, (2) the undersigned shall have at all times furnished such non-U.S. Lender with a properly completed, duly executed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments and (3) the undersigned authorizes the non-U.S. Lender to furnish this certificate, its W-8IMY and all required attachments thereto to the Borrower, if required by the Credit Agreement.

[Signature Page Follows]

Ex. D-4-1

	[Participant]


	By:
	Name:
	Title:


	[Address]

Dated: , 20[ ]

Ex. D-4-2

Exhibit E to
Credit Agreement

FORM OF TERM NOTE

THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.

$	New York, New York
	, 20

FOR VALUE RECEIVED, the undersigned, Auxilium Pharmaceuticals, Inc. a Delaware corporation (the “ Borrower ”), hereby unconditionally promises to pay to [ ] (the “ Lender ”) or its registered assigns at the Funding Office specified in the Credit Agreement (as hereinafter defined) in lawful money of the United States and in immediately available funds, the principal amount of [ ] DOLLARS ([$ ]). The principal amount shall be paid in the amounts and on the dates specified in Section 2.3 of the Credit Agreement. The Borrower further agrees to pay interest in like money at such Funding Office on the unpaid principal amount hereof from time to time outstanding at the rates and on the dates specified in Section 3.5 of the Credit Agreement.

The holder of this Note is authorized to endorse on the schedules annexed hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date, Type and amount of the Term Loan and the date and amount of each payment or prepayment of principal with respect thereto, each conversion of all or a portion thereof to another Type, each continuation of all or a portion thereof as the same Type and, in the case of LIBOR Rate Loans, the length of each Interest Period with respect thereto. Each such endorsement shall constitute prima facie evidence of the accuracy of the information absent manifest error. The failure to make any such endorsement or any error in any such endorsement shall not affect the obligations of the Borrower in respect of the Term Loan.

This Note (a) is one of the Notes referred to in the Credit Agreement, dated as of April 26, 2013, (as amended, restated, amended and restated, supplemented, replaced or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, [ ], a Delaware limited liability company (“ Merger Sub ”), the financial institutions or entities from time to time parties to the Credit Agreement as lenders (the “ Lenders ”), MORGAN STANLEY SENIOR FUNDING, INC., as administrative agent (in such capacity, and together with its successors and assigns in such capacity, the “ Administrative Agent ”), and MORGAN STANLEY SENIOR FUNDING, INC., as collateral agent (in such capacity, and together with its successors and assigns in such capacity, the “ Collateral Agent ”) , (b) is subject to the provisions of the Credit Agreement and (c) is subject to optional and mandatory prepayment in whole or in part as provided in the Credit Agreement. This Note is secured and guaranteed as provided in the Loan Documents. Reference is hereby made to the Loan Documents for a description of the properties and assets in which a security interest has been granted, the nature and extent of the security and the guarantees, the terms and conditions upon which the security interests and each guarantee were granted and the rights of the holder of this Note in respect thereof.

Upon the occurrence and during the continuation of any one or more of the Events of Default, all principal and all accrued interest then remaining unpaid on this Note may become, or may be declared to

Ex. E-1

be, immediately due and payable, all as provided in the Credit Agreement.

All parties now and hereafter liable with respect to this Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of any kind.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 10.6 OF THE CREDIT AGREEMENT.

THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Ex. E-2

IN WITNESS WHEREOF, the undersigned has caused this Note to be executed and delivered by its proper and duly authorized officer as of the date set forth above.

	AUXILIUM PHARMACEUTICALS, INC.,
	as Borrower


	By:
		Name:
		Title:

Ex. E-3

Schedule A
to Term Note

LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS

Date

Amount of
ABR
Loans

Amount
Converted to
ABR
Loans

Amount of
Principal of
Term
Loans
Repaid

Amount of
ABR
Loans
Converted to
LIBOR Rate
Loans

Unpaid
Principal
Balance of
ABR
Loans

Notation
Made By

Ex. E-4

Schedule B
to Term Note

LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF
LIBOR RATE LOANS

Date

Amount of
LIBOR
Rate
Loans

Amount
Converted to
LIBOR Rate
Loans

Interest
Period
and
LIBOR
Rate
with
Respect
Thereto

Amount of
Principal of
LIBOR
Rate
Loans
Repaid

Amount of
LIBOR Rate
Loans
Converted to
ABR
Loans

Unpaid
Principal
Balance of
LIBOR
Rate
Loans

Notation
Made By

Ex. E-5

Exhibit F to
Credit Agreement

[Reserved]

Ex. F-1

Exhibit G to
Credit Agreement

[Reserved]

Ex. G-1-1

Exhibit H to
Credit Agreement

Form of Intellectual Property Security Agreement

Please refer to Annex II to the Guarantee and Collateral Agreement,

attached herein as Exhibit C to this Credit Agreement.

Ex. H-1

Exhibit I to
Credit Agreement

FORM OF INTERCOMPANY NOTE

Dated:

FOR VALUE RECEIVED, each undersigned entity (collectively, the “ Group Members ” and each, a “ Group Member ”) that is a party to this intercompany promissory note (this “ Promissory Note ”) as a Payor (as defined below) promises to pay to such other Group Member that makes loans to such Group Member (each Group Member which borrows money pursuant to this Promissory Note is referred to herein as a “ Payor ” and each Group Member which makes loans and advances pursuant to this Promissory Note is referred to herein as a “ Payee ”), on demand, in lawful money of the United States of America, in immediately available funds and at the appropriate office of the Payee, the aggregate unpaid principal amount of all loans and advances (including trade payables) heretofore and hereafter made by such Payee to such Payor and any other Indebtedness for borrowed money now or hereafter owing by such Payor to such Payee as shown either on Schedule A attached hereto (and any continuation thereof) or in the books and records of such Payee. The failure to show any such Indebtedness or any error in showing such Indebtedness shall not affect the obligations of any Payor hereunder. Capitalized terms used herein but not otherwise defined herein shall have the meanings given such terms in the Credit Agreement, dated as of April 26, 2013, (the “ Credit Agreement ”), among AUXILIUM PHARMACEUTICALS, INC., a Delaware corporation (the “ Borrower ”), [ ], a Delaware limited liability company (“ Merger Sub ”), the financial institutions or entities from time to time parties to the Credit Agreement as lenders (the “ Lenders ”), MORGAN STANLEY SENIOR FUNDING, INC., as administrative agent (in such capacity, and together with its successors and assigns in such capacity, the “ Administrative Agent ”), and MORGAN STANLEY SENIOR FUNDING, INC., as collateral agent (in such capacity, and together with its successors and assigns in such capacity, the “ Collateral Agent ”).

The unpaid principal amount hereof from time to time outstanding shall bear interest at a rate equal to the rate as may be agreed upon in writing from time to time by the Payor and the Payee. Interest shall be due and payable at such times as may be agreed upon in writing from time to time by the Payor and the relevant Payee. Interest shall be paid in lawful money of the United States and in immediately available funds. Unless otherwise specified in writing by the Payor and the Payee, interest shall be computed for the actual number of days elapsed on the basis of a year consisting of 365 or 366 days, as the case may be.

The Payor, and any endorser of this Promissory Note hereby, waives presentment, demand, protest and notice of any kind. No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights.

This Promissory Note has been pledged by each Payee to the Collateral Agent, for the benefit of the Secured Parties, as security for such Payee’s obligations, if any, under the Loan Documents to which such Payee is a party. Each Payor acknowledges and agrees that the Collateral Agent and the other Secured Parties may exercise all the rights of each Payee under this Promissory Note and will not be subject to any abatement, reduction, recoupment, defense, setoff or counterclaim available to such Payor.

Notwithstanding any right of any Payee to ask, demand, sue for, take or receive any payment from the Payor, all rights and Liens of such Payee, whether now or hereafter arising and howsoever existing, in any Property of the Payor (whether constituting part of the security or collateral given to any

Ex. I-1

Secured Party to secure payment of all or any part of the Obligations or otherwise) shall be and hereby are subordinated to the rights of the Secured Parties in such Property. Except as expressly permitted by the Loan Documents, the Payees shall have no right to possession of any such Property or to foreclose upon, or exercise any other remedy in respect of, any such Property, whether by judicial action or otherwise, until all of the Obligations (other than Unasserted Contingent Obligations and obligations under or in respect of Hedge Agreements) have been paid in full in immediately available funds or Cash Collateralized and all Commitments have been terminated.

Except as expressly permitted by the Loan Documents, if all or any part of the Property of the Payor, or the proceeds thereof, is subject to any distribution, division or application to the creditors of the Payor, whether partial or complete, voluntary or involuntary, by reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action or proceeding, or if the business of the Payor is dissolved or if all or substantially all of the Property of the Payor is sold, then, and in any such event, any payment or distribution of any kind or character, whether in cash or other property which shall be payable or deliverable upon or with respect to any indebtedness of the Payor to any Payee (“ Payor Indebtedness ”) shall be paid or delivered directly to the Collateral Agent for application to any of the Obligations, due or to become due, until all of the Obligations (other than Unasserted Contingent Obligations and obligations under or in respect of Hedge Agreements) have been paid in full in immediately available funds or Cash Collateralized and all Commitments have been terminated. Each Payee irrevocably authorizes, empowers and appoints the Collateral Agent as such Payee’s attorney-in-fact (which appointment is coupled with an interest and is irrevocable) to demand, sue for, collect and receive every such payment or distribution and give acquittance therefor and to make and present for and on behalf of such Payee such proofs of claim and take such other action, in the Collateral Agent’s own name or in the name of such Payee or otherwise, as the Collateral Agent may deem necessary or advisable for the enforcement of this Promissory Note; provided that the Collateral Agent may not exercise such power of attorney unless an Event of Default has occurred and is continuing. Each Payee also agrees to execute, verify, deliver and file any such proofs of claim in respect of the Payor Indebtedness reasonably requested by the Collateral Agent. The Collateral Agent may vote such proofs of claim in any such proceeding (and the Payee shall to be entitled to withdraw such vote), receive and collect any and all dividends or other payments or disbursements made on Payor Indebtedness in whatever form the same may be paid or issued and apply the same on account of any of the Obligations in accordance with the Credit Agreement. Upon the occurrence and during the continuation of any Event of Default, should any payment, distribution, security or other investment property or instrument or any proceeds thereof be received by any Payee upon or with respect to Payor Indebtedness owing to such Payee prior to such time as the Obligations have been performed and paid in full in cash in immediately available funds and all commitments to extend credit under any Loan Document have expired or been terminated, such Payee shall receive and hold the same in trust, as trustee, for the benefit of the Secured Parties, and shall forthwith deliver the same to the Collateral Agent, for the benefit of the Secured Parties, in precisely the form received (except for the endorsement or assignment of such Payee where necessary or advisable in the Collateral Agent’s judgment), for application to any of the Obligations in accordance with the Credit Agreement and, until so delivered, the same shall be segregated from the other assets of such Payee and held in trust by such Payee as the property of the Collateral Agent, for the benefit of the Secured Parties. If such Payee fails to make any such endorsement or assignment to the Collateral Agent, the Collateral Agent or any of its officers, employees or representatives are hereby irrevocably authorized to make the same.

The Secured Parties shall be third party beneficiaries of the subordination provisions contained herein and shall be entitled to enforce such subordination provisions.

THIS PROMISSORY NOTE AND THE RIGHTS AND OBLIGATIONS OF THE

Ex. I-2

PARTIES UNDER THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

This Promissory Note may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

[Signature page follows]

Ex. I-3

IN WITNESS WHEREOF, the undersigned Payors have caused this Promissory Note to be executed and delivered by its proper and duly authorized officer as of the date set forth above.

	[PAYORS]


	By:
		Name:
		Title:

Ex. I-4

Schedule A to
Intercompany Note

TRANSACTIONS UNDER INTERCOMPANY NOTE

Date	Name of Payee	Amount of Advance This Date	Amount of Principal Paid This Date	Outstanding Principal Balance from Payor to Payee This Date	Notation Made By

Ex. I-5

Schedule B to
Intercompany Note

ENDORSEMENT

FOR VALUE RECEIVED, each of the undersigned does hereby sell, assign and transfer to all of its right, title and interest in and to the Intercompany Note, dated (amended, amended and restated, supplemented, restated, replaced, refinanced or otherwise modified from time to time, the “ Promissory Note ”), made by the Payors signatory thereto, and payable to the undersigned. This endorsement is intended to be attached to the Promissory Note and, when so attached, shall constitute an endorsement thereof.

Dated:

	[PAYEES]


	By:
		Name:
		Title:

Ex. I-6

Exhibit J to
Credit Agreement

FORM OF SOLVENCY CERTIFICATE

[ ], 2013

This Solvency Certificate (this “ Certificate ”) is furnished to the Administrative Agent and the Lenders pursuant to Section 5.1(j) of the Credit Agreement, dated as of April 26, 2013, (as amended, restated, amended and restated, supplemented, replaced or otherwise modified from time to time, the “ Credit Agreement ”), among AUXILIUM PHARMACEUTICALS, INC., a Delaware corporation (the “ Borrower ”), [ ], a Delaware limited liability company (“ Merger Sub ”), the financial institutions or entities from time to time parties to the Credit Agreement as lenders (the “ Lenders ”), MORGAN STANLEY SENIOR FUNDING, INC., as administrative agent (in such capacity, and together with its successors and assigns in such capacity, the “ Administrative Agent ”), and MORGAN STANLEY SENIOR FUNDING, INC., as collateral agent (in such capacity, and together with its successors and assigns in such capacity, the “ Collateral Agent ”) . Unless otherwise defined herein, capitalized terms used in this Certificate shall have the meanings set forth in the Credit Agreement.

I, [ · ], the Chief Financial Officer of the Borrower (after giving effect to the Transactions), in that capacity only and not in my individual capacity (and without any personal liability), DO HEREBY CERTIFY on behalf of the Borrower that as of the date hereof, after giving effect to the consummation of the Transactions (including the execution and delivery of the Merger Agreement and the Credit Agreement, the making of the Term Loans and the use of proceeds of such Term Loans on the date hereof and the making of other extensions of credit on the date hereof and the use of proceeds thereof):

1. The sum of the liabilities (including contingent liabilities) of the Borrower and its subsidiaries, on a consolidated basis, does not exceed the fair value of the present assets of the Borrower and its subsidiaries, on a consolidated basis.

2. The present fair saleable value of the assets of the Borrower and its subsidiaries, on a consolidated basis, is greater than the total amount that will be required to pay the probable liabilities (including contingent liabilities) of the Borrower and its subsidiaries as they become absolute and matured.

3. The capital of the Borrower and its subsidiaries, on a consolidated basis, is not unreasonably small in relation to their business as contemplated on the date hereof.

4. The Borrower and its subsidiaries, on a consolidated basis, have not incurred and do not intend to incur, or believe that they will incur, debts or other liabilities, including current obligations, beyond their ability to pay such debts or other liabilities as they become due (whether at maturity or otherwise).

5. For purposes of this Certificate, the amount of any contingent liability has been computed as the amount that, in light of all of the facts and circumstances existing as of the date hereof, represents the amount that can reasonably be expected to become an actual or matured liability.

6. In reaching the conclusions set forth in this Certificate, the undersigned has (i) reviewed the Credit Agreement and other Loan Documents referred to therein and such other documents deemed

Ex. J-1

relevant, (ii) reviewed the financial statements (including the pro forma financial statements) referred to in Section 6.1 of the Credit Agreement (the “ Financial Statements ”) and (iii) made such other investigations and inquiries as the undersigned has deemed appropriate. The undersigned is familiar with the financial performance and prospects of the Borrower and its Subsidiaries and hereby confirms that the Financial Statements were prepared in good faith and fairly present, in all material respects, on a pro forma basis as of [ · ] (after giving effect to the Transactions), the Borrower’s and its Subsidiaries’ consolidated financial condition.

7. The financial information and assumptions which underlie and form the basis for the representations made in this Certificate were fair and reasonable when made and were made in good faith and continue to be fair and reasonable as of the date hereof.

8. The undersigned confirms and acknowledges that the Administrative Agent and the Lenders are relying on the truth and accuracy of this Certificate in connection with the Commitments and Term Loans under the Credit Agreement .

IN WITNESS WHEREOF, I have executed this Certificate as of the date first written above.

AUXILIUM PHARMACEUTICALS, INC.


By:
	Name:
	Title:	Chief Financial Officer

Ex. J-2

Exhibit K-1 to
Credit Agreement

FORM OF PERFECTION CERTIFICATE

April 26, 2013

In connection with that certain Guarantee and Collateral Agreement ( the “ Guarantee and Collateral Agreement ”), dated as of April 26, 2013, made by AUXILIUM PHARMACEUTICALS, INC., a Delaware corporation (the “ Borrower ”), OPAL ACQUISITION, LLC, a Delaware limited liability company (“ Merger Sub ”), and each of the signatories thereto (together with Borrower and Merger Sub, and together with any other entity that is a party thereto as provided therein, the “ Grantors ”), in favor of MORGAN STANLEY SENIOR FUNDING, INC., as collateral agent (in such capacity, and together with its successors and assigns in such capacity, the “ Collateral Agent ”) and MORGAN STANLEY SENIOR FUNDING, INC., as administrative agent (in such capacity, and together with its successors and assigns in such capacity, the “ Administrative Agent ”) for the Secured Parties (as defined in the Credit Agreement referred to below). Capitalized terms used but not defined herein have the meanings assigned in either the Credit Agreement or the Guarantee and Collateral Agreement, as applicable, and unless otherwise defined in this Perfection Certificate or in the Credit Agreement or the Guarantee and Collateral Agreement, terms defined in Article 8 or 9 of the Uniform Commercial Code as in effect in the State of New York are used in this Perfection Certificate as such terms are defined in such Article 8 or 9.

The undersigned Responsible Officers of each Grantor hereby certify as of the date hereof to the Administrative Agent and each of the Secured Parties as follows:

SECTION 19. Investment Property. Schedule I sets forth a true and correct list of (i) all Pledged Equity Interests owned by such Grantor, required to be pledged to the Collateral Agent under the Guarantee and Collateral Agreement and not credited to a Securities Account in Part I of Schedule I; (ii) all Pledged Notes and indebtedness owed by any other party to such Grantor required to be pledged to the Collateral Agent under the Guarantee and Collateral Agreement and not credited to a Securities Account in Part II of Schedule I, including the issuer thereof, a description thereof, the debt certificate number if applicable, the final maturity and the outstanding principal amount of such indebtedness; (iii) all other investment property required to be pledged by such Grantor under the Guarantee and Collateral Agreement (including (A) securities accounts, (B) commodity contracts and (C) commodity accounts).

SECTION 20. Deposit Accounts. Set forth on Schedule II hereto is a true and correct list of each Deposit Account, other than Excluded Deposit Accounts, in which each Grantor has an interest pledged under the Guarantee and Collateral Agreement.

SECTION 21. Intellectual Property. Set forth on Schedule III hereto is a true and correct list of all registrations and applications for Patents, Trademarks, and Copyrights owned or co-owned by any Grantor that are registered with or applied for in the United States Patent and Trademark Office or the United States Copyright Office or registered with or applied for with a governmental authority outside the United States.

SECTION 22. Commercial Tort Claims. Set forth on Schedule IV hereto is a true and correct description of all commercial tort claims of such Grantor as to which a pleading has been filed in a court of competent jurisdiction seeking damages in excess of $500,000 individually in value.

SECTION 23. Identity, Etc. of Grantors. Set forth on Schedule V hereto is a true and correct list showing such Grantor’s exact legal name (as it appears in its certificate or articles of incorporation, limited liability membership agreement or similar organizational document, in each case as amended to the date hereof) as well as the following:

(a) type of organization;

(b) jurisdiction of organization;

(d) Federal Taxpayer Identification Number;

(e) address of chief executive office or sole place of business, as the case may be; and

(f) address of each other location where such Grantor maintains its books or records relating to any material portion of the Collateral.

SECTION 24. Changes in Name, Etc. Set forth on Schedule VI hereto is a true and correct description of any changes in the name of such Grantor or in any other information as to such Grantor reflected on Schedule V hereto during the five years preceding the date hereof, together with the date of the relevant change.

SECTION 25. Location of Equipment and Inventory. Set forth on Schedule VII hereto is a true and correct list of all locations owned or leased by the Grantors where any Inventory and Equipment (other than goods in transit) of the Grantors constituting Collateral worth more than an aggregate fair market value of $2,500,000 is kept, excluding products and materials for use in clinical studies that, in each case, are accorded zero value on the relevant Grantor’s balance sheet and are not for sale.

SECTION 26. Letters of Credit. Set forth on Schedule VIII hereto is a true and correct list of each letter of credit of which such Grantor is a beneficiary or assignee that is not a Supporting Obligation with a value in excess of $500,000.

SECTION 27. Warehousemen and Bailees. Set forth on Schedule IX hereto is a true and correct list of all warehousemen and bailees that have possession of any Grantor’s Collateral and, if the aggregate fair market value of the Collateral in the possession of such bailee exceeds $2,500,000, showing as to each warehouseman and bailee the assets so held and address, excluding products and materials for use in clinical studies that, in each case, are accorded zero value on the relevant Grantor’s balance sheet and are not for sale .

SECTION 28. Real Property. Set forth on Schedule X hereto is a true and correct list of all real property owned by such Grantor showing as to each such real property the record owner, address, record information (including recording office address, lot, block and other legal description), mortgagee (if any), mortgage description (if any) (including mortgage amount), lessee (if any) and lease description (if any) (including lease expiration date and rent, and whether the underlying lease contains any option to purchase all or any portion of such real property or any interest therein or contains any right of first refusal relating to any sale of such real property or any portion thereof or interest therein, and whether any lease requires the consent of the landlord or tenant thereunder, or other party thereto, to the transactions).

SECTION 29. Leaseholds. Set forth on Schedule XI hereto is a true and correct list of all leasehold interests in real property held by such Grantor as lessee, showing as to each such leasehold the address of the premises leased.

SECTION 30. Government Contracts. Set forth on Schedule XII hereto is a true and correct list of each license from a Governmental Authority which is material to the conduct of the business of each Grantor as conducted on the date hereof or as proposed to be conducted.

SECTION 31. Unusual Transactions. All Accounts have been originated by the Grantors and all Inventory has been acquired by the Grantors in the ordinary course of business.

SECTION 32. Litigation and Adverse Proceedings. Set forth on Schedule XIV hereto is a true and correct list of (i) all litigation, investigations and proceedings of or before any arbitrator or Governmental Authority that are pending or, to the knowledge of the Borrower, threatened in writing by or against any Group Member or against any of their respective properties or revenues (a) with respect to any of the Loan Documents, which would in any respect impair the enforceability of the Loan Documents, taken as a whole or (b) that could reasonably be expected to have a Material Adverse Effect; and (ii) all claims asserted or threatened against any third party by any Group Member or any Loan Party or any other Person, except as could not reasonably be expected to have a Material Adverse Effect.

SECTION 33. Insurance. Set forth on Schedule XV hereto is a true and correct description of all material property and general liability insurance maintained by or on behalf of each Loan Party as of the Closing Date.

[ Signature Page Follows ]

IN WITNESS WHEREOF, the undersigned have caused this Perfection Certificate to be executed by their officers thereunto duly authorized as of the date and year first written above.

	AUXILIUM PHARMACEUTICALS, INC.,
	as Borrower


	By:

	Name:
	Title:

	OPAL ACQUISITION, LLC,
	as Merger Sub


	By:
		Name:
		Title:

	AUXILIUM INTERNATIONAL HOLDINGS, INC.


	By:
		Name:
		Title:

	AUXILIUM US HOLDINGS, LLC


	By:
		Name:
		Title:

	GTCR/ACTIENT HOLDINGS/B CORP.


	By:
	Name:
	Title:

	ACTIENT HOLDINGS LLC


	By:
		Name:
		Title:

	ACTIENT PHARMACEUTICALS LLC


	By:
		Name:
		Title:

	ACTIENT THERAPEUTICS LLC


	By:
		Name:
		Title:

	SLATE PHARMACEUTICALS, INC.


	By:
		Name:
		Title:

	70 MAPLE AVENUE, LLC


	By:
		Name:
		Title:

	TIMM MEDICAL HOLDINGS, LLC


	By:
		Name:
		Title:

	TIMM MEDICAL TECHNOLOGIES, INC.


	By:
		Name:
		Title:

Exhibit K-2 to
Credit Agreement

FORM OF PERFECTION CERTIFICATE SUPPLEMENT

SIGNED AND DELIVERED for and on behalf

of and as the deed of [ ]

by its lawfully appointed attorney

[ INSERT NAME OF ATTORNEY ], acting pursuant

to a Power of Attorney dated [ ], 20[ ]:




Signature of Witness:

Name of Witness:

Address of Witness:

Occupation of Witness:

SIGNED AND DELIVERED for and on behalf

of and as the deed of [ ]

by its lawfully appointed attorney

[ INSERT NAME OF ATTORNEY ], acting pursuant

to a Power of Attorney dated [ ], 20[ ]:




Signature of Witness:

Name of Witness:

Address of Witness:

Occupation of Witness:

Exhibit 10.2

EXECUTION

REGISTRATION RIGHTS AGREEMENT

THIS REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”) is made as of April 26, 2013, by and among Auxilium Pharmaceuticals, Inc., a Delaware corporation, the “ Company ”), and GTCR Fund X/A, L.P., acting as agent on behalf of the Sellers, as the Representative (the “ Investor ”).

WHEREAS, certain of the parties to this Agreement are parties to an Agreement and Plan of Merger, dated as of the date hereof (the “ Merger Agreement ”), pursuant to which, among other things, the Company issued the Warrant to the Investor as the Representative (on behalf of the Sellers);

WHEREAS, in order to induce the Sellers to enter into the Merger Agreement and consummate the transactions contemplated thereby, the Company has agreed to provide the registration rights set forth in this Agreement;

WHEREAS, the execution and delivery of this Agreement is a condition to the Closing under the Merger Agreement; and

WHEREAS, unless otherwise provided in this Agreement, capitalized terms used herein shall have the meanings set forth in Section 9 .

1. Demand Registrations .

(a) Requests for Registration . At any time and from time to time following the date hereof, the holders of a majority of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities on Form S-1 or any similar long-form registration (“ Long-Form Registrations ”) or, if available, on Form S-3 (including a shelf registration pursuant to Rule 415 under the Securities Act) or any similar short-form registration (“ Short-Form Registrations ”) in accordance with Section 1(b) and Section 1(c) . All registrations requested by the holders of Registrable Securities pursuant to this Section 1(a) are referred to herein as “ Demand Registrations .” Each request for a Demand Registration shall specify the approximate number of Registrable Securities requested to be registered and the anticipated per share price range for such offering. Within ten days after receipt of any such request, the Company shall give written notice of such requested registration to all other holders of Registrable Securities and, subject to the terms of Section 1(d) , shall include in such registration (and in all related registrations and qualifications under state blue-sky laws and in compliance with other registration requirements and in any related underwriting) all such Registrable Securities with respect to which the Company has received written requests for inclusion therein within 20 days after the receipt of the Company’s notice.

(b) Long-Form Registration . The holders of a majority of the then outstanding Registrable Securities shall be entitled to request one Long-Form Registration; provided that at least 30% of the then outstanding Registrable Securities are proposed to be

registered in such Long Form Registration. The Company shall pay all Registration Expenses for such Long-Form Registration. A registration shall not count as the permitted Long-Form Registration unless it has become effective and unless the holders of Registrable Securities are able to register and sell at least 90% of the Registrable Securities requested to be included in such registration; provided that in any event the Company shall pay all Registration Expenses in connection with any registration initiated and not subsequently withdrawn by the holders of a majority of the then outstanding Registrable Securities as a Long-Form Registration whether or not it has become effective and whether or not such registration has counted as the permitted Long-Form Registrations hereunder.

(c) Short-Form Registrations . In addition to the Long-Form Registration provided pursuant to Section 1(b) , the holders of a majority of the then outstanding Registrable Securities shall be entitled to request an unlimited number of Short-Form Registrations in which the Company shall pay all Registration Expenses in connection with any registration initiated and not subsequently withdrawn by the holders of a majority of the then outstanding Registrable Securities as a Short-Form Registration whether or not such Short-Form Registration has become effective. The Company shall not be required to commence a Short Form Registration if less than 25% of the then outstanding Registrable Securities are proposed to be registered in such Short Form Registration. Demand Registrations shall be Short-Form Registrations whenever the Company is permitted to use any applicable short form and if the managing underwriters (if any) agree to the use of a Short-Form Registration. The Company shall use its commercially reasonable efforts to make Short-Form Registrations on Form S-3 available for the sale of Registrable Securities.

(d) Priority on Demand Registrations . The Company shall not include in any Demand Registration any securities that are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities included in such registration, which consent shall not be unreasonably withheld, conditioned or delayed. If a Demand Registration is an underwritten offering and the managing underwriters advise the Company in writing that in their opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such offering exceeds the number of Registrable Securities and other securities, if any, which can be sold in an orderly manner in such offering within a price range acceptable to the holders of a majority of the Registrable Securities initially requesting registration, then the Company shall include in such registration only that number of securities which in the opinion of such underwriters can be sold in such offering without adversely affecting the marketability of the offering within such price range, with priority to be included determined as follows: (i) first , the number of Registrable Securities requested to be included which in the opinion of such underwriters can be sold in an orderly manner within the price range of such offering, pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder and (ii) second , any other securities requested to be included in such registration, the inclusion of which the holders of a majority of the Registrable Securities included in such registration have consented in writing, which in the opinion of such underwriters can be sold in an orderly manner within the price range of such offering, pro rata among the respective holders thereof on the basis of the number of securities owned by each such holder.

(e) Restrictions on Demand Registrations .

(i) The Company shall not be obligated to effect any Demand Registration (A) within 90 days after the effective date of a previous Long-Form Registration, (B) that is a Long-Form Registration within 30 days before the Company’s good faith estimate of the date of filing of, and ending on a date that is the later of (x) 90 days after the effective date of a Company-initiated registration and (y) the date upon which the Company could effect a Long-Form Registration without violating the terms of any market stand-off, lock-up or other agreement to which the Company is a party and pursuant to which the Company is not permitted to register or issue securities, (C) that is a Short-Form Registration within 30 days before the Company’s good faith estimate of the date of filing of, and ending on a date that is 90 days after the effective date of, a Company-initiated registration, provided , that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective, or (D) if the Company has effected two Demand Registrations within the 12-month period immediately prior to such request.

(ii) The Company may postpone for up to 90 days the filing or the effectiveness of a registration statement for a Demand Registration if the Company’s Board of Directors reasonably determines in its good faith judgment that such Demand Registration would (A) materially interfere with any proposal or plan by the Company or any of its Subsidiaries to engage in any acquisition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer, reorganization or similar material transaction, (B) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, or (C) render the Company unable to comply with the requirements of the Securities Act or the Exchange Act; provided that in any such event, the holders of Registrable Securities initially requesting such Demand Registration shall be entitled to withdraw such request and, if such request is withdrawn with respect to a Long-Form Registration, such Demand Registration shall not count as the permitted Long-Form Registration hereunder and the Company shall pay all Registration Expenses in connection with such registration. The Company may delay a Demand Registration hereunder only once in any consecutive twelve-month period.

(f) Selection of Underwriters . The Company shall have the right to select the investment banker(s) and manager(s) to administer the offering in connection with any underwritten Demand Registration, subject to the approval of the holders of a majority of the Registrable Securities initially requesting such Demand Registration, such consent not to be unreasonably withheld, conditioned or delayed.

(g) Other Registration Rights . The Company represents and warrants that, except as set forth in the disclosure schedules to the Merger Agreement, it is not a party to, or otherwise subject to, any other agreement granting registration rights to any other Person with respect to any securities of the Company. Except as provided to the Investor in this Agreement, the Company shall not grant to any Persons the right to request the Company to register any equity securities of the Company, or any securities, options or rights convertible or exchangeable into or exercisable for such securities, without the prior written consent of the holders of a

majority of the Registrable Securities then outstanding, such consent not to be unreasonably withheld, conditioned, or delayed; provided that the Company may grant (i) registration rights to the holders of the equity of an entity to be acquired by the Company, and (ii) rights to participate in any Piggyback Registrations so long as such rights are subordinate to the priority rights of the holders of Registrable Securities with respect to Piggyback Registrations as provided in Sections 2(c) and 2(d) .

2. Piggyback Registrations .

(a) Right to Piggyback . Whenever the Company proposes to register any of its equity securities under the Securities Act (other than pursuant to a (i) Demand Registration, (ii) registration relating to the sale of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, or similar plan; (iii) registration relating to transaction conforming with the requirements of Rule 145 promulgated by the SEC under the Securities Act; or (iv) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered (any of the foregoing (ii)-(iv) being referred to herein as an “ Excluded Registration ”) and the registration form to be used may be used for the registration of Registrable Securities (a “ Piggyback Registration ”), the Company shall give prompt written notice to all holders of Registrable Securities of its intention to effect such a registration and, subject to the terms of Sections 2(c) and 2(d) , shall include in such registration (and in all related registrations or qualifications under blue-sky laws and in compliance with other registration requirements and in any related underwriting) all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 20 days after the receipt of the Company’s notice.

(b) Piggyback Expenses . The Registration Expenses of the holders of Registrable Securities shall be paid by the Company in all Piggyback Registrations, whether or not any such registration has become effective.

(c) Priority on Primary Registrations . If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number of securities which can be sold in such offering without adversely affecting the marketability of the offering, then the Company shall include in such registration only that number of securities which in the opinion of such underwriters can be sold in such offering without adversely affecting the marketability of the offering, with priority to be included determined as follows: (i) first , the securities the Company proposes to sell, (ii) second , the Registrable Securities requested to be included in such registration, pro rata among the respective holders thereof on the basis of the number of Registrable Securities owned by each such holder and (iii) third , any other securities requested to be included in such registration, pro rata among the respective holders thereof on the basis of the number of securities owned by each such holder.

(d) Priority on Secondary Registrations . If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company’s securities other than holders of Registrable Securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration

exceeds the number of securities which can be sold in such offering without adversely affecting the marketability of the offering, then the Company shall include in such registration only that number of securities which in the opinion of such underwriters can be sold in such offering without adversely affecting the marketability of the offering, with priority to be included determined as follows: (i) first , the securities requested to be included therein by the holders requesting such registration and the Registrable Securities requested to be included in such registration, pro rata among the holders of such securities on the basis of the number of such securities owned by each such holder and (ii) second , any other securities requested to be included in such registration, pro rata among the respective holders thereof on the basis of the number of securities owned by each such holder.

(e) Selection of Underwriters . If any Piggyback Registration is an underwritten offering, then the selection of investment banker(s) and manager(s) for the offering must be approved by the holders of a majority of the Registrable Securities included in such Piggyback Registration, which approval shall not be unreasonably withheld.

(f) Other Registrations . If the Company has previously filed a registration statement with respect to Registrable Securities pursuant to Section 1 or pursuant to this Section 2 , and if such previous registration has not been withdrawn or abandoned, then the Company shall not file or cause to be effected any other registration of any of its equity securities or securities convertible or exchangeable into or exercisable for its equity securities under the Securities Act (except pursuant to an Excluded Registration or pursuant to registration rights granted by the Company prior to the date of this Agreement), whether on its own behalf or at the request of any holder or holders of such securities, until a period of at least 180 days has elapsed from the effective date of such previous registration.

3. Holdback Agreements .

(a) No holder of Registrable Securities shall effect any public sale or distribution (including sales pursuant to Rule 144) of equity securities of the Company, or any securities convertible into or exchangeable or exercisable for such securities, during the seven days prior to and the 90-day period beginning on the effective date of any underwritten Demand Registration or underwritten Piggyback Registration (the “ Holdback Period ”), except as part of any such underwritten registration, unless the underwriters managing the registered public offering otherwise agree in writing. Notwithstanding the foregoing, this Section 3(a) shall not be applicable to or otherwise be binding on the holders of Registrable Securities unless the Company complies with its obligations under Section 3(b) in connection with any such offering. If (i) the Company issues an earnings release or material news or a material event relating to the Company occurs during the last 17 days of the Holdback Period or (ii) prior to the expiration of the Holdback Period, the Company announces that it will release earnings results during the 16-day period beginning upon the expiration of such period, then to the extent necessary for a managing or co-managing underwriter of a registered offering required hereunder to comply with NASD Rule 2711(f)(4), the Holdback Period will be extended until 18 days after the earnings release or the occurrence of the material news or event, as the case may be. The restriction in the immediately preceding sentence is the “ Holdback Extension .” The Company may impose stop-transfer instructions with respect to the shares of its common stock (or other securities) subject to the foregoing restriction during any Holdback Period or any period of Holdback Extension.

(b) The Company (i) shall not effect any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities, during the Holdback Period (including during any period of Holdback Extension) (except as part of such underwritten registration or pursuant to an Excluded Registration), unless the underwriters managing the registered public offering otherwise agree in writing, and (ii) to the extent not inconsistent with applicable law, shall cause each of its executive officers and directors and holders (other than the Investor) of at least 2% (on a fully diluted basis) of its common stock, or any securities convertible into or exchangeable or exercisable for or having residual economic rights comparable to common stock (other than holders that purchased shares or units solely in a registered public offering), to agree not to effect any public sale or distribution (including sales pursuant to Rule 144 under the Securities Act) of any such securities during such periods (except as part of such underwritten registration, if otherwise permitted), unless the underwriters managing the registered public offering otherwise agree in writing.

4. Registration Procedures . Whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall use its commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:

(a) prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and file with the Securities and Exchange Commission a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to comply with applicable securities laws, with respect to such Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective ( provided that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company shall furnish to counsel selected by the holders of a majority of the Registrable Securities included in such registration copies of all such documents proposed to be filed, which documents shall be subject to the review and reasonable comments of such counsel);

(b) notify in writing each holder of Registrable Securities to be sold thereunder of the effectiveness of each registration statement filed hereunder and prepare and file with the Securities and Exchange Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of either (i) not less than 180 days or, if such registration statement relates to an underwritten offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sales of securities thereunder by any underwriter or dealer or (ii) such shorter period as shall terminate when all of the securities covered by such registration statement have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such registration statement (but in any event not before the expiration of any longer period required under the Securities Act), and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;

(c) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;

(d) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue-sky laws of such jurisdictions as any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(d) , (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction);

(e) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a registration statement has been filed and when any registration or qualification has become effective under a state securities or blue-sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Securities and Exchange Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement (A) contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made or (B) is otherwise not legally available to support sales of Registrable Securities, and, at the request of any such seller, the Company promptly shall prepare, file with the Securities and Exchange Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made;

(f) prepare and file promptly with the Securities and Exchange Commission, and notify such holders of Registrable Securities prior to the filing of, such amendments or supplements to such registration statement or prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, when any event has occurred as the result of which any such prospectus or any other prospectus as then in effect would include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made, and, in case an of such holders of Registrable Securities or any underwriter for any such holders is required to deliver a prospectus at a time when the prospectus then in circulation is not in compliance with the Securities Act or the rules and regulations promulgated thereunder, the

Company shall use its commercially reasonable efforts to prepare promptly upon request of any such holder or underwriter such amendments or supplements to such registration statement and prospectus as may be necessary in order for such prospectus to comply with the requirements of the Securities Act and such rules and regulations;

(g) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed;

(h) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;

(i) enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the holders of a majority of the Registrable Securities included in such registration or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows,” investor presentations and marketing events as the underwriters managing such offering may reasonably request);

(j) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;

(k) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Demand Registration or Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;

(l) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;

(m) permit any holder of Registrable Securities which holder, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Company, to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such holder and its counsel should be included;

(n) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any equity securities included in such registration statement for sale in any jurisdiction, the Company shall use its commercially reasonable efforts promptly to obtain the withdrawal of such order;

(o) use its commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;

(p) obtain a cold comfort letter from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the holders of a majority of the Registrable Securities included in such registration reasonably request; and

(q) if requested by the holders of a majority of the Registrable Securities included in such registration or required by the underwriters managing such offering, provide a legal opinion of the Company’s outside counsel, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature.

It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 4 with respect to the Registrable Securities of any selling holder of Registrable Securities that such holder of Registrable Securities shall furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as is reasonably required by the Company or the underwriters of a registration to effect the registration of such holder of Registrable Securities.

5. Registration Expenses .

(a) All expenses incident to the Company’s performance of or compliance with this Agreement, including all registration, qualification and filing fees, fees and expenses of compliance with securities or blue-sky laws, printing expenses, filing expenses, messenger and delivery expenses, fees and disbursements of custodians, and fees and disbursements of counsel for the Company and all independent certified public accountants, underwriters (excluding discounts and commissions for which the selling holders of Registered Securities) and other Persons retained by the Company (all such expenses being herein called “ Registration Expenses ”), shall be borne by the Company as provided in this Agreement, and the Company also shall pay all of its internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed.

(b) In connection with each Demand Registration and each Piggyback Registration, the Company shall reimburse the holders of Registrable Securities included in such registration up to $50,000 for the reasonable fees and disbursements of one counsel chosen by the holders of a majority of the Registrable Securities included in such registration.

(c) To the extent any expenses relating to a registration hereunder are not required to be paid by the Company, each holder of securities included in any registration hereunder shall pay those expenses allocable to the registration of such holder’s securities so included, and any expenses not so allocable shall be borne by all sellers of securities included in such registration in proportion to the aggregate selling price of the securities to be so registered.

6. Indemnification .

(a) The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law, each holder of Registrable Securities, its officers, directors, members, partners, agents, affiliates and employees, and each Person who controls such holder (within the meaning of the Securities Act or the Exchange Act) against all losses, claims, damages, liabilities, and expenses (or actions or proceedings, whether commenced or threatened, in respect thereof), whether joint and several or several, together with reasonable costs and expenses (including reasonable attorneys’ fees) to which any such indemnified party may become subject under the Securities Act or otherwise (collectively, “ Losses ”) caused by, resulting from, arising out of, based upon, or relating to (i) any untrue or alleged untrue statement of material fact contained in (A) any registration statement, prospectus or preliminary prospectus, or any amendment thereof or supplement thereto or (B) any application or other document or communication (in this Section 7 , collectively called an “ application ”) executed by or on behalf of the Company or based upon written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify any securities covered by such registration under the blue-sky or securities laws thereof, (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading or (iii) any violation or alleged violation by the Company of any rule or regulation promulgated pursuant to any federal, state or common law rule or regulation including the Securities Act, applicable to the Company and relating to action or inaction required of the Company in connection with any such registration hereunder, and the Company will reimburse such holder and each such director, officer, and controlling Person for any legal or any other expenses incurred by them in connection with investigating or defending any such Losses, except insofar as the same are caused by or contained in any information furnished in writing to the Company or any managing underwriter by such holder expressly for use therein; provided that the foregoing indemntiy agreement shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned, or delayed. In connection with an underwritten offering, the Company shall indemnify any underwriters or deemed underwriters, their officers and directors and each Person who controls such underwriters (within the meaning of the Securities Act or the Exchange Act) to the same extent as provided above with respect to the indemnification of the holders of Registrable Securities (or to such lesser extent that may be agreed to between the underwriters and the Company).

(b) In connection with any registration statement in which a holder of Registrable Securities is participating, each such holder shall furnish to the Company and the managing underwriter in writing such information and affidavits as the Company or the managing underwriter reasonably requests for use in connection with any such registration statement or prospectus and, to the extent permitted by law, shall indemnify the Company, its managers, directors and officers and each Person who controls the Company (within the meaning of the Securities Act or the Exchange Act) against any Losses resulting from (i) any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus, or any amendment thereof or supplement thereto or in any application, or (ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is made in such registration statement, any such prospectus or preliminary prospectus or any amendment or supplement thereto, or in any application, in each case, in reliance upon and in conformity with written information prepared and furnished to the Company by such holder expressly for use therein; provided that in the event that a court of competent jurisdiction decides against any such allegations of untrue statements or omissions of a material fact, such holders shall be reimbursed for any amounts previously paid hereunder with respect to such allegations; and provided further that the obligation to indemnify shall be individual, not joint and several, for each holder and shall be limited to the net amount of proceeds received by such holder from the sale of Registrable Securities pursuant to such registration statement.

(c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification ( provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. In such instance, the conflicting indemnified parties shall have a right to retain one separate counsel, chosen by the holders of a majority of the securities included in the registration by such conflicting indemnified parties, at the expense of the indemnifying party. No indemnifying party, in the defense of such claim or litigation, shall, except with the consent of each indemnified party, consent to the entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

(d) Each party hereto agrees that, if for any reason the indemnification provisions contemplated by Sections 6(a) or 6(b) are unavailable to or insufficient to hold

harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6(d) were determined by pro rata allocation (even if the holders or any underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 6(d) . The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses (or actions in respect thereof) referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or, except as provided in Section 6(c) , defending any such action or claim. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The sellers’ obligations in this Section 6(d) to contribute shall be several in proportion to the amount of securities registered by them and not joint and shall be limited to an amount equal to the net proceeds actually received by such seller from the sale of Registrable Securities effected pursuant to such registration.

(e) The indemnification provided for under this Agreement shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract, and shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the transfer of securities.

(f) No indemnifying party shall, except with the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnifying party a release from all liability in respect to such claim or litigation.

7. Participation in Underwritten Registrations . No Person may participate in any registration hereunder which is underwritten unless such Person (a) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements; provided that no holder of Registrable Securities included in any underwritten registration shall be required to make any representations or warranties to the Company or the underwriters in connection with an underwritten registration (other than representations and warranties regarding such holder, such holder’s title to the securities and such holder’s intended method of distribution) or to undertake

any indemnification obligations to the Company or the underwriters with respect thereto, except as otherwise specifically provided in Section 6 , or to agree to any lock-up or holdback restrictions, except as otherwise specifically provided in Section 3(a) .

8. Other Agreements . The Company shall use its commercially reasonable efforts to file all reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Securities and Exchange Commission thereunder and shall take such further action as the Investor may reasonably request, all to the extent required to enable such Persons to sell securities pursuant to (a) Rule 144 adopted by the Securities and Exchange Commission under the Securities Act (as such rule may be amended from time to time) or any similar rule or regulation hereafter adopted by the Securities and Exchange Commission or (b) a registration statement on Form S-3 or any similar registration form hereafter adopted by the Securities and Exchange Commission. Upon reasonable request, the Company shall deliver to the Investor a written statement as to whether it has complied with such requirements. The Company shall at all times use its commercially reasonable efforts to cause the securities so registered to be listed on one or more of The NASDAQ Stock Market and/or the New York Stock Exchange.

9. Definitions .

(a) “ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated from time-to-time thereunder.

(b) “ Free-Writing Prospectus ” means a free-writing prospectus, as defined in Rule 405 of the Securities Act.

(c) “ Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.

(d) “ Registrable Securities ” means (i) any securities issued or issuable directly or indirectly with respect to the Warrant, including by way of any exercise or partial exercise thereof or any dividend, distribution or equity split or in connection with an exchange or a combination of equity interests, recapitalization, reclassification, merger, consolidation or other reorganization, and (ii) any other securities of the Company or its successor held by Persons holding securities that are described in clause (i) above. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when they have been distributed to the public pursuant to an offering registered under the Securities Act or sold to the public through a broker, dealer or market maker in compliance with Rule 144 under the Securities Act (or any similar rule then in force) or repurchased by the Company or any subsidiary. For purposes of this Agreement, a Person shall be deemed to be a holder of Registrable Securities and such Registrable Securities shall be deemed to be in existence whenever such Person has the right to acquire such Registrable Securities (upon conversion or exercise in connection with a transfer of securities or otherwise, but disregarding any restrictions or limitations upon the exercise of such right), including upon exercise of the Warrant, whether

or not such acquisition has actually been effected, and such Person shall be entitled to exercise the rights of a holder of Registrable Securities hereunder.

(e) “ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated from time-to-time thereunder.

(f) Unless otherwise stated, other capitalized terms contained herein have the meanings set forth in the Merger Agreement.

10. Miscellaneous .

(a) Representative . The Investor is acting hereunder as agent on behalf of the Sellers pursuant to, and subject to the limitations set forth in, Section 10.01 of the Merger Agreement. The Investor will disburse, or cause to be disbursed, any net cash proceeds of Registrable Securities held by the Investor to each Seller, pro rata in accordance with each Seller’s Residual Percentage.

(b) No Inconsistent Agreements . The Company shall not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates the rights granted to the holders of Registrable Securities in this Agreement.

(c) Assignment . The rights provided for in this Agreement may be transferred by the Investor to any of (i) a duly appointed successor Representative (as defined in the Merger Agreement) or (ii) the Sellers. Except as set forth in the immediately preceding sentence, the rights provided for in this Agreement may not be transferred by a holder of a Warrant or Warrant Shares or any permitted transferee of such holder, in whole or in part, without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed.

(d) Remedies . Any Person having rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. The parties hereto agree and acknowledge that money damages would not be an adequate remedy for any breach of the provisions of this Agreement and that, in addition to any other rights and remedies existing in its favor, any party shall be entitled to specific performance and/or other injunctive relief from any court of law or equity of competent jurisdiction (without posting any bond or other security) in order to enforce or prevent violation of the provisions of this Agreement. Notwithstanding the foregoing, no holder of Registrable Securities shall have any right to seek or obtain an injunction restraining or otherwise delaying any registration pursuant to this Agreement as the result of any controversy that might arise with respect to the interpretation or implementation.

(e) Amendments . Except as otherwise provided herein, the provisions of this Agreement may be amended or waived only upon the prior written consent of the Company and the holders of a majority of the Registrable Securities then outstanding.

(f) Successors and Assigns . All covenants and agreements in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not. The provisions of this

Agreement which are for the benefit of purchasers or holders of Registrable Securities shall not be assignable to any subsequent holder of Registrable Securities without the prior written consent of the Company, which consent may not be unreasonably withheld, delayed or conditioned.

(g) Severability . Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid, illegal or unenforceable in any respect under any applicable law, such provision shall be ineffective only to the extent of such prohibition, invalidity, illegality or unenforceability, without invalidating the remainder of this Agreement.

(h) Counterparts . This Agreement may be executed and delivered in counterparts (including delivery of signature pages by means of telecopy, facsimile or electronic transmission in portable document format (pdf)), any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Agreement.

(i) Descriptive Headings; Interpretation . The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. The use of the word “including” herein shall mean “including without limitation.”

(j) Governing Law . The law of the applicable state in which the Company is formed shall govern all issues and questions concerning the relative rights and obligations of the Company and its equityholders. All other issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

(k) Waiver of Trial by Jury . EACH PARTY TO THIS AGREEMENT HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. EACH PARTY TO THIS AGREEMENT HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

(l) Notices . All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (i) when personally delivered, (ii) when transmitted via facsimile device to the number set out below if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), (iii) the day following the day (except if not a Business Day then the next Business Day) on which the same has been delivered prepaid to a reputable national overnight air courier service or (iv) the third Business Day following the day on which the same is sent by certified or registered mail, postage prepaid. Such notices, demands and other communications shall be sent to the Investor and any subsequent holder of Registrable Securities at the address indicated on the Schedule of Investors attached hereto and to the Company at the address indicated below:

Auxilium Pharmaceuticals, Inc.
640 Lee Road
Chesterbrook, PA 19087
Attention:	James E. Fickenscher, Chief Financial Officer
Fax:	(484) 321-5996
Telephone:	( 484) 321-5902

with a copy to:

Auxilium Pharmaceuticals, Inc.
640 Lee Road
Chesterbrook, PA 19087
Attention:	Andrew I. Koven, Chief Administrative Officer and General Counsel
Fax:	(484) 321-5996
Telephone:	( 484) 321-5907

or to such other address or to the attention of such other Person as the recipient party has specified by prior written notice to the sending party.

(m) Rights Cumulative; Waiver . The rights and remedies of the Investor and the Company under this Agreement shall be cumulative and not exclusive of any rights or remedies which either would otherwise have hereunder or at law or in equity or by statute, and no failure or delay by either party in exercising any right or remedy shall impair any such right or remedy or operate as a waiver of such right or remedy, nor shall any single or partial exercise of any power or right preclude such party’s other or further exercise or the exercise of any other power or right. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach, and no failure by either party to exercise any right or privilege hereunder shall be deemed a waiver of such party’s rights or privileges hereunder or shall be deemed a waiver of such party’s rights to exercise the same at any subsequent time or times hereunder.

(n) No Strict Construction . The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto,

and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

(o) Delivery by Electronic Transmission . This Agreement and any signed agreement entered into in connection herewith or contemplated hereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such contract, each other party hereto or thereto shall re—execute original forms thereof and deliver them to all other parties. No party hereto or to any such contract shall raise the use of a facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail to deliver a signature or the fact that any signature or contract was transmitted or communicated through the use of facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail as a defense to the formation of a contract and each such party forever waives any such defense.

* * * * *

IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.

	THE COMPANY:

	AUXILIUM PHARMACEUTICALS, INC.


	By:	/s/ James E. Fickenscher
	Name:	James E. Fickenscher
	Its:	Chief Financial Officer


	INVESTOR:

	GTCR FUND IX/A, L.P.

	By: GTCR Partners IX, L.P.
	Its: General Partner

	By: GTCR Golder Rauner II, L.L.C.
	Its: General Partner


	By:	/s/ Constantine S. Mihas
	Name:	Constantine S. Mihas
	Its:	Principal

Signature Page to Registration Rights Agreement

SCHEDULE OF INVESTORS

The Investor :

GTCR Fund IX/A, L.P.
c/o GTCR LLC
300 North LaSalle Street, Suite 5600
Chicago, Illinois 60654
Attn:	Constantine S. Mihas
Facsimile No.: (312) 382-2201

with copies to (which shall not constitute notice) :

Kirkland & Ellis LLP
300 North LaSalle Street
Chicago, Illinois 60654
Attn:	Sanford E. Perl, P.C.
	Michael H. Weed, P.C.
Facsimile No.: (312) 862-2200

Exhibit 99.1

AUXILIUM PHARMACEUTICALS, INC, ANNOUNCES FIRST QUARTER 2013 FINANCIAL RESULTS

— 1Q13 Net Revenues Decreased by 10% from 1Q12 to $66.2 MM —

— Acquisition of Actient Holdings LLC to Create a Leading Urology Franchise with a Diversified Product Portfolio and Strong Growth Profile —

CHESTERBROOK, PA (April 29, 2013) - Auxilium Pharmaceuticals, Inc. (Nasdaq: AUXL), a specialty biopharmaceutical company, today announced financial results for the first quarter ending on March 31, 2013. The Company also highlighted important recent commercial, regulatory and clinical development progress in the first quarter of 2013.

For the quarter ended March 31, 2013, Auxilium reported net revenues of $66.2 million, compared to net revenues of $73.6 million in the first quarter of 2012, a decrease of 10%, and a non-GAAP net loss of $(2.3) million, or $(0.05) per share, compared to a non-GAAP net income of $1.9 million, or $0.04 per share, for the first quarter of 2012. On a U.S. GAAP basis, Auxilium reported net loss of $(8.2) million, or $(0.17) per share, compared to a net loss of $(1.7) million, or $(0.04) per share, for the first quarter of 2012. The foregoing non-GAAP financial measures should not be relied upon as an alternative to GAAP measures. A description of the non-GAAP calculations and reconciliation to the closest comparable GAAP measures, as well as the Company’s rationale for the utility to investors of the non-GAAP measures it has elected to report, are provided in table 1.

“Auxilium faced some unanticipated challenges with our commercial franchises in the first quarter of 2013 resulting in lower than expected revenues. However, we are excited by the expected revenue growth and operating leverage that our acquisition of Actient will bring to the combined Company moving forward,” said Adrian Adams, Chief Executive Officer and President of Auxilium. “For the remainder of 2013 and beyond, we plan to maintain our focus on strengthening Testim and XIAFLEX commercial execution in addition to seamlessly integrating the Actient employees and products into Auxilium. We will also continue to make measured investments in R&D, while preparing for the potential launch of XIAFLEX for the treatment of Peyronie’s disease, if approved by the FDA, in the fourth quarter of 2013.”

First Quarter 2013 and Recent Highlights:

· On March 25, 2013, Auxilium announced positive top-line data from the XIAFLEX (collagenase clostridium histolyticum or CCH) Frozen Shoulder syndrome Phase IIa Study. Statistically significant improvements were seen in range of motion compared to an exercise-only arm and dose response supports progression into placebo-controlled studies, which the Company expects to begin in the second half of 2013.

· On January 30, 2013, the Company announced the closing of its previously announced offering of 1.50% Convertible Senior Notes due 2018 (the “Convertible Notes”). Auxilium issued $350.0 million aggregate principal amount of Convertible Notes in an offering registered under the Securities Act of 1933, as amended.

· On January 7, 2013, Auxilium announced that it exercised its exclusive option under the Second Amended and Restated Development and License Agreement, dated as of August 31, 2011, with BioSpecifics Technologies Corp., Inc. to expand the field of its license for CCH to include the potential treatment of adult patients with edematous fibrosclerotic panniculopathy, commonly known as cellulite.

First Quarter 2013 Financial Details

Total revenues for the three months ended March 31, 2013 were $66.2 million, a decrease of 10% over the $73.6 million recorded in the first quarter of 2012. This decrease in net revenues was due to decreases in U.S. sales of XIAFLEX and Testim. See Table 3 attached for further details on revenues.

Non-GAAP gross margin on net revenues was 78% in the first quarter of 2013, compared to 77% in the first quarter of 2012, as the benefit of the increased amortization of deferred revenues was offset by the decline in XIAFLEX margins from higher costs due to lower production volumes and spending on manufacturing initiatives related to XIAFLEX.

Research and development spending for the quarter ended March 31, 2013 was $11.2 million on a non-GAAP basis, compared to $11.4 million in the comparable 2012 period. This decrease in expense results principally from the lower level of spending in 2013 on the Peyronie’s clinical trials offset by increased spending on Frozen Shoulder syndrome clinical trials.

On a non-GAAP basis, selling, general and administrative costs for the quarter ended March 31, 2013 were $41.3 million, compared to $43.9 million in the comparable 2012 period. This decrease was primarily due to decreased spending for marketing and direct to customer advertising in 2013 on XIAFLEX for Dupuytren’s, partially offset by increased marketing spending in preparation for the Peyronie’s launch and higher legal costs.

The non-GAAP net loss for the first quarter of 2013 was $(2.3) million, or $(0.05) per share, compared to net income of $1.9 million, or $0.04 per share, for the first quarter of 2012.

As of March 31, 2013, Auxilium had $467.8 million in cash, cash equivalents and short-term investments, compared to $157.4 million at December 31, 2012, and outstanding debt of $285.4 million ($350 million at par value) in Convertible Notes.

The foregoing non-GAAP financial measures should not be relied upon as an alternative to GAAP measures. A description of the non-GAAP calculations and reconciliation to the closest comparable GAAP measure, as well as the Company’s rationale for the utility to investors of the non-GAAP measures it has elected to report, is provided in the accompanying table captioned “Reconciliation of GAAP to Non-GAAP Net Income (Loss)”.

Acquisition of Actient

Separately today, Auxilium announced the closing of its acquisition of Actient for $585 million plus certain contingent consideration and warrants to create what we believe will be a leading urology franchise with a diversified product portfolio and strong growth profile. In addition to cash on hand, the Company issued a $225 Million Term Loan to finance the acquisition. The press release detailing the acquisition is available on the investor relations section of the Company’s website.

Revised 2013 Guidance

The Company has updated its guidance for 2013. Please see the presentation that can be found on our website under the “Presentations” tab. This slide deck, which will be used on today’s conference call, will be posted to the web site at approximately 7:00 a.m. ET.

Conference Call

Auxilium will hold a conference call today, April 29, 2013 at 8:30 a.m. ET, to discuss the Actient transaction and first quarter 2013 results. The presentation slides to be used during the call will be available on the “For Investors” section of the Company’s web site under the “Presentations” tab at 7:00 a.m. ET. A question and answer session will follow the presentation. The conference call and the presentation slides will be simultaneously web cast on the “For Investors” section of the Company’s web site under the “Events” tab. The conference call will be archived for future review until July 29, 2013.

Conference call details:

Date:		Monday, April 29, 2013
Time:		8:30 a.m. ET
Dial-in (U.S.):		866-515-2913
Dial-in (International):		617-399-5127
Web cast:		http://www.auxilium.com
Passcode:		AUXILIUM
To access an audio replay of the call:
Access number (U.S.):		888-286-8010
Access number (International):		617-801-6888
Replay Passcode #:		98775073

About Auxilium

Auxilium is a specialty biopharmaceutical company with a focus on developing and marketing products to predominantly specialist audiences. Auxilium markets Testim® 1% (testosterone gel) for the topical treatment of hypogonadism in the U.S. and XIAFLEX® (collagenase clostridium histolyticum or CCH) for the treatment of adult Dupuytren’s contracture patients with a palpable cord in the U.S., and distributes XIAPEX® (the EU tradename for CCH) in the European Union through Pfizer, Inc. under a transition services agreement until the applicable marketing authorizations are fully transferred to Auxilium. GlaxoSmithKline LLC co- promotes Testim with Auxilium in the U.S. Ferring International Center S.A. markets Testim in certain countries of the EU and Paladin Labs Inc. markets Testim in Canada. Asahi Kasei Pharma Corporation has development and commercial rights for XIAFLEX in Japan; and Actelion Pharmaceuticals Ltd has development and commercial rights for XIAFLEX in Canada, Australia, Brazil and Mexico. The sBLA for XIAFLEX for the treatment of Peyronie’s disease was submitted to the FDA on November 6, 2012 and has been accepted for standard review with a PDUFA date of September 6, 2013. Additionally, collagenase clostridium histolyticum (“CCH”) is in phase IIa of development for the treatment of Frozen Shoulder syndrome (adhesive capsulitis) and phase Ib of development for the treatment of cellulite (edematous fibrosclerotic panniculopathy). Auxilium also has rights to pursue additional indications for CCH. Auxilium acquired Actient Holdings, Inc. on April 26, 2013 and an array of men’s health products and certain other products, including Testopel® for testosterone replacement therapy and Edex® for the treatment of erectile dysfunction. For additional information, visit http://www.auxilium.com.

SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995

This news release contains forward-looking statements as defined by the Private Securities Litigation Reform Act of 1995, including statements made with respect to Auxilium’s strategy, expected revenue growth related to the acquisition of Actient, the integration of Actient employees and products, future investments in research and development, a potential launch of XIAFLEX for the treatment of Peyronie’s disease, if approved by the FDA, in the fourth quarter of 2013, and process and timing of development programs and related trials for XIAFLEX Frozen Shoulder syndrome. These statements involve known and unknown risks, uncertainties and other factors that may cause actual results, performance, achievements or prospects to be materially different from any future results, performance, achievements or prospects expressed in or implied by such forward-looking statements. In some cases you can identify forward-looking statements by terminology such as ‘‘may’’, ‘‘will’’, ‘‘should’’, ‘‘would’’, ‘‘expect’’, ‘‘intend’’, ‘‘plan’’, ‘‘anticipate’’, ‘‘believe’’, ‘‘estimate’’, ‘‘predict’’, ‘‘potential’’, ‘‘seem’’, ‘‘seek’’, ‘‘future’’, ‘‘continue’’, or ‘‘appear’’ or the negative of these terms or similar expressions, although not all forward-looking statements contain these identifying words. Our forward-looking statements convey management’s expectations, beliefs, plans and objectives regarding future performance of the Company and are based upon preliminary information and management assumptions. No specific assurances can be given with respect to whether we will: execute successfully on our commercial plans for Testim and XIAFLEX; successfully integrate Actient; continue to make investments in R&D; develop XIAFLEX for the treatment of multiple potential indications. These forward-looking statements are subject to a number of risks and uncertainties, including those discussed under ‘‘Risk Factors’’ in Auxilium’s Annual Report on Form 10-K for the year ended December 31, 2012 filed with the Securities and Exchange Commission (the “SEC”) on January 23, 2013, as update in Item 8.01 of the Current Report on Form 8-K that we filed with the SEC on April 29, 2013. While the Company may elect to update the forward-looking statements made in this news release in the future, the Company specifically disclaims any obligation to do so. Our SEC filings may be accessed electronically by means of the SEC’s home page on the Internet at http://www.sec.gov or by means of the Company’s home page on the Internet at http://www.auxilium.com under the heading “For Investors - SEC Filings.” There may be additional risks that the Company does not presently know or that the Company currently believes are immaterial which could also cause actual results to differ from those contained in the forward-looking statements.

Contacts:

James E. Fickenscher/CFO

Auxilium Pharmaceuticals, Inc.

(484) 321-5900

jfickenscher@auxilium.com

William Q. Sargent Jr./ VP IR

Auxilium Pharmaceuticals, Inc.

(484) 321-5900

wsargent@auxilium.com

-Tables to Follow-

AUXILIUM PHARMACEUTICALS, INC.

Table 1- Reconciliation of GAAP to Non-GAAP Net Income (Loss)

(In millions, except per share amounts)

(Unaudited)

	3 Months Ended March 31, 2013									3 Months Ended March 31, 2012
	GAAP			Adjustments			Non-GAAP			GAAP			Adjustments			Non-GAAP
Net revenues	$	66.2		$	—		$	66.2		$	73.6		$	—		$	73.6
Operating expenses:
Cost of goods sold	15.1			(0.0		)(a)	15.1			16.6			(0.0		)(a)	16.6
Research and development	11.9			(0.7		)(b)	11.2			12.0			(0.6		)(b)	11.4
Selling, general and administrative	44.3			(3.0		)(c)	41.3			46.9			(3.1		)(c)	43.9
Total operating expenses	71.3			(3.7		)	67.5			75.5			(3.7		)	71.9
Income (loss) from operations	(5.1		)	3.7			(1.4		)	(1.9		)	3.7			1.7
Interest income (expense), net	(3.1		)	2.1		(d)	(0.9		)	0.2			—		(d)	0.2
Net income (loss)	$	(8.2	)	$	5.9		$	(2.3	)	$	(1.7	)	$	3.7		$	1.9

Basic and diluted net income (loss) per common share	$	(0.17	)				$	(0.05	)	$	(0.04	)				$	0.04

Weighted average common shares outstanding	49.2						49.2			48.3						48.3

Adjustments to:
(a) Costs of goods sold:
Employee stock-based compensation (1)				$	(0.0	)							$	(0.0	)

(b) Research and development:
Employee stock-based compensation (1)				(0.7		)							(0.6		)

(c) Selling, general and administrative:
Employee stock-based compensation (1)				(3.0		)							(3.1		)

(d) Interest income (expense), net				2.1									0.00
Non cash convertible debt (2)

(1) The effects of employee stock-based compensation are excluded because of varying available valuation methodologies and subjective assumptions. Such exclusion facilitates comparison to peer companies who also provide similar non-GAAP disclosures and is reflective of how Auxilium management internally manages the business.

(2) The effects of non-cash interest related to the convertible senior notes due 2018 are excluded. Such exclusion facilitates an understanding of the effects of the debt service obligations on the Company’s liquidity and comparisons to peer group companies, and is reflective of how Auxilium management internally manages the business.

Table 2- Selected Consolidated Balance Sheet Data

(In millions)

(Unaudited)

	March 31,		December 31,
	2013		2012
Cash and cash equivalents and short term investments	$	467.8	$	157.4
Total assets	642.6		327.4
Senior Convertible Notes	285.4		—
Total stockholders’ equity	232.0		199.9

AUXILIUM PHARMACEUTICALS, INC.

Table 3- 1st Quarter 2013 Net Revenue Details

(In millions, except for percentages)

(Unaudited)

	Three Months Ended March 31,				Increase
	2013		2012		(Decrease)
Testim revenues-
Net U.S. product sales	$	45.3	$	57.9	-22	%
International revenues	0.2		0.8		-78	%
Total Testim revenues	$	45.5	$	58.7	-23	%

XIAFLEX revenues-
Net U.S. product sales	$	12.0	$	12.6	-5	%
International revenues	8.8		2.3		276	%
Total XIAFLEX revenues	$	20.7	$	14.9	39	%
Total net revenues	$	66.2	$	73.6	-10	%

International revenues represent amortization of deferred upfront and milestone payments received on our licensing agreements, together with royalties earned on product sales by licensees.

Exhibit 99.2

AUXILIUM PHARMACEUTICALS COMPLETES ACQUISITION OF ACTIENT HOLDINGS LLC TO CREATE A LEADING UROLOGY FRANCHISE WITH A DIVERSIFIED PRODUCT PORTFOLIO AND STRONG GROWTH PROFILE

—Transaction Expected to be Immediately Accretive to Adjusted Non-GAAP Net Income—

CHESTERBROOK, PA. and Lake Forest, IL. — April 29, 2013 — Auxilium Pharmaceuticals, Inc. (NASDAQ: AUXL), a specialty biopharmaceutical company, today announced that it has completed the acquisition of Actient Holdings LLC (“Actient”), a private urology specialty therapeutics company, for $585 million in upfront cash plus certain contingent consideration and warrants to purchase Auxilium common stock. Auxilium expects to receive a tax benefit, with a net present value of approximately $60 million, as a result of the acquisition of Actient. The transaction is expected to be immediately accretive on a non-GAAP basis to Auxilium’s 2013 adjusted net income.

Actient is a private company primarily focused on urology. Actient’s urology portfolio includes TESTOPEL ® , the only long-acting implantable testosterone replacement therapy (“TRT”), Edex ® , the leading branded non-oral drug for erectile dysfunction, Striant ® , a buccal system for testosterone delivery, and Osbon ErecAid ® , a device for aiding erectile dysfunction. Actient also has a non-promoted respiratory franchise, including Theo-24 ® and Semprex ® -D, along with three other non-promoted products. The company has approximately 165 employees, including 100 sales representatives in two focused field forces.

“The acquisition of Actient is a major step forward in our strategy to expand our specialty therapeutic offerings: we believe that it expands our TRT portfolio, strengthens our commitment to urologists, enhances our growth trajectory, and will create significant value for our shareholders,” said Adrian Adams, Chief Executive Officer and President of Auxilium. “This is a compelling fit from both a strategic and financial standpoint. The transaction creates a leading urology franchise with a diversified product portfolio and sales force leverage that is well positioned for growth of our current portfolio as we pursue the potential expansion of our label for XIAFLEX ® in Peyronie’s disease. From a financial perspective, we expect Actient to be immediately accretive on a non-GAAP basis to our 2013 adjusted net income and to yield a strong return on invested capital. We believe this transaction will help enable us to increasingly drive our future earnings growth.”

Ed Fiorentino, Chief Executive Officer of Actient, commented “We are excited to join the Auxilium team and look forward to what we can accomplish together. As part of a larger company with enhanced capabilities, we will offer our urology customers a wider range of solutions, and our other specialty pharmaceutical products should have greater opportunities to grow. Actient and Auxilium share a culture of innovation and a strong focus on our physician customers and patients. I am confident that this is a winning combination for our customers and the patients we collectively serve as we continue to fulfill our mission of improving patient outcomes.”

Adams concluded, “We are pleased to welcome the Actient team to the Auxilium family. Together we will remain focused on satisfying unmet medical needs to provide the highest quality care to our patients.”

Expected Benefits of the Transaction

· Creates a Leading Urology Franchise. Together, Auxilium and Actient will create a leading urology platform with the widest range of products for TRT, including topical, buccal and long-acting options. Auxilium expects the TRT market will continue to remain a significant opportunity for growth across multiple testosterone delivery options. The combined urology franchise will offer Testim ® , TESTOPEL and Striant for testosterone replacement, Edex, and Osbon ErecAid for erectile dysfunction, and if approved by the U.S. Food and Drug Administration, XIAFLEX for treatment of Peyronie’s disease.

· Strong Growth Profile. As a result of the transaction, Auxilium believes it will be able to generate strong top-line growth over time which will help the combined company achieve greater leverage in its commercial infrastructure, creating the possibility of higher operating margins. In addition, Auxilium expects to realize approximately $20 million of run- rate cost synergies and expects to achieve the majority of these synergies in 2014. Auxilium also believes that there are significant cross-selling opportunities that create potentially meaningful revenue synergies from this transaction.

· Financially Compelling. The transaction is expected to be immediately accretive on a non-GAAP basis to Auxilium’s adjusted net income in 2013 and beyond. As a result of the transaction, Auxilium expects to receive a step-up in basis that will result in tax deductible amortization of goodwill with a net present value of approximately $60 million.

Auxilium believes the transaction creates a sustainable base of high cash flow legacy products, which will enable the combined company to generate strong operating cash flow, which it intends to use to pay down debt and grow the business.

· Enhances Existing Commercial Efforts Through Combined Sales Force. The combined company is expected to be able to leverage its U.S. sales force more efficiently, which together reaches an extensive network of more than 24,000 prescribing physicians within orthopedics, urology, endocrinology and rheumatology, to enhance sales efforts. By joining two experienced sales and marketing teams with expertise in TRT as well as with buy and bill delivery models, we believe we will better serve our TRT physician customers across the spectrum.

· Diversifies and Balances Core Product Portfolio. The combined company will offer 11 products in attractive specialty markets and will have a more diverse revenue stream.

Transaction Details

Auxilium will pay Actient unit holders $585 million in upfront cash a warrant for 1.25 million shares of Auxilium common stock with an exercise price of $17.80 per share and up to $50 million of contingent consideration based upon the achievement of future revenue targets. Auxilium expects to receive a tax benefit, with a net present value of $60 million, as a result of the acquisition of Actient.

Financing

To finance the acquisition, Auxilium is using cash on hand and the proceeds from a new secured loan of $225 million from Morgan Stanley Senior Funding, Inc.

First Quarter 2013 Financial Results

Separately today, Auxilium announced its first quarter 2013 financial results. The press release is available on the investor relations section of the Company’s website.

Revised 2013 Guidance

The Company has updated its guidance for 2013 and this can be seen in the slide presentation that will be used during the Investor Conference call. This slide deck, which will be used on today’s conference call, will be posted to the web site at approximately 7:00 a.m. ET.

Non-GAAP Measures

Auxilium management expects to provide certain financial measures on a non-GAAP basis. Auxilium management will use these non-GAAP financial measures to monitor and evaluate our operating results and trends on an ongoing basis and internally for operating, budgeting and financial planning purposes. We believe the non-GAAP information will be useful for investors by offering them the ability to better identify trends in our business and better understand how management evaluates the business. These non-GAAP financial measures that management will use will be presented in addition to results prepared in accordance with GAAP and should not be relied upon as an alternative to GAAP financial measures. We currently anticipate that the following non-GAAP measures will be presented in future guidance and actual result presentations:

· Operating expenses will exclude stock-based employee compensation expense;

· Imputed interest related to the convertible senior notes due in 2018 will be excluded;

· Non-cash purchase accounting adjustments to the cost of inventory will be excluded;

· Non-cash amortization expense of intangible assets resulting from purchase accounting adjustments will be excluded;

· Costs incurred to complete the transaction, including fees paid to advisors, will be excluded;

· Non-recurring costs to achieve synergies, including severance and asset write offs will be excluded;

· Non-recurring costs associated with completing the integration of Actient into Auxilium will be excluded.

We believe the non-GAAP information will be useful for investors by:

· offering them the ability to better identify trends in our business;

· allowing investors to use the same non-GAAP financial measures to monitor and evaluate our operating results and trends on an ongoing basis as are used by management internally for operating, budgeting and financial planning purposes; and

· providing a useful measure to compare our results period-over-period.

Advisors

Morgan Stanley and Centerview Partners are acting as financial advisors to Auxilium, and Willkie Farr & Gallagher LLP and Morgan, Lewis & Bockius LLP are acting as its legal advisors. Jefferies LLC is acting as financial advisor to Actient and Kirkland & Ellis LLP and Hogan Lovells US LLP are acting as its legal advisors.

Conference Call & Webcast

A conference call to discuss the transaction, including the expected synergies and savings, 2012 Actient revenues, anticipated 2013 revenue targets for the combined company, and other pro-forma and estimated financial information, as well as the Company’s first quarter 2013 financial results is scheduled for today at 8:30 a.m. Eastern Time. The presentation slides to be used during the call will be available on the “For Investors” section of Auxilium’s web site under the “Presentations” tab at 7:00 a.m. ET. A question and answer session will follow the presentation. The conference call and the presentation slides will be simultaneously web cast on the “Investors” section of the Auxilium web site under the “Events” tab. The conference call will be archived for future review until July 29, 2013.

Conference call details:
Date:	Monday, April 29, 2013
Time:	8:30 a.m. ET
Dial-in (U.S.):	866-515-2913
Dial-in (International):	617-399-5127
Web cast:	http://www.auxilium.com
Passcode:	AUXILIUM
To access an audio replay of the call:
Access number (U.S.):	888-286-8010
Access number (International):	617-801-6888
Replay Passcode #:	98775073

About Auxilium

Auxilium Pharmaceuticals, Inc. is a specialty biopharmaceutical company with a focus on developing and marketing products to predominantly specialist audiences. Auxilium markets Testim ® 1% (testosterone gel) for the topical treatment of hypogonadism in the U.S., XIAFLEX ® (collagenase clostridium histolyticum (CCH)) for the treatment of adult Dupuytren’s contracture patients with a palpable cord in the U.S., and distributes XIAPEX ® (the EU tradename for CCH) in the European Union through Pfizer Inc. under a transition services agreement until the applicable marketing authorizations are fully transferred to Auxilium. GlaxoSmithKline LLC co-promotes Testim with Auxilium in the U.S. Ferring International Center S.A. markets Testim in certain countries of the EU and Paladin Labs Inc. markets Testim in Canada. Asahi Kasei Pharma Corporation has development and commercial rights for XIAFLEX in Japan; and Actelion Pharmaceuticals Ltd has development and commercial rights for XIAFLEX in Canada, Australia, Brazil and Mexico. Auxilium has three projects in clinical development. XIAFLEX is in phase III of development for the treatment of Peyronie’s disease. CCH is in phase IIa of development for the treatment of Frozen Shoulder syndrome (adhesive capsulitis) and phase Ib of development for the treatment of cellulite (edematous fibrosclerotic panniculopathy). Auxilium also has rights to pursue additional indications for XIAFLEX. For additional information, visit http://www.auxilium.com.

About Actient

Actient is a specialty products company focused on therapeutics to improve patient outcomes. The company was formed to acquire companies and products with a focus on select physician specialties. For more information, please visit www.actientpharma.com.

AUXILIUM SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995

This news release contains forward-looking statements as defined by the Private Securities Litigation Reform Act of 1995, including statements made with respect to Auxilium’s future business plan or goals, Auxilium’s expected tax benefit and the amount of such benefit as a result of its acquisition of Actient, that the acquisition will be

immediately accretive on a non-GAAP basis to Auxilium’s 2013 adjusted net income; whether the Actient acquisition will provide Auxilium with a return on invested capital; whether Auxilium will receive a step-up in basis resulting in tax deductible amortization of goodwill as a result of the acquisition of Actient; whether the acquisition of Actient will enable Auxilium to drive its future earnings growth, generate strong top-line growth, achieve greater leverage in the commercial infrastructure and potentially higher operating margins; whether Auxilium will realize run-rate cost synergies and the value of such synergies from its acquisition of Actient and in what time frame; whether there are significant cross-selling opportunities that would create revenue synergies from Auxilium’s acquisition of Actient; whether Auxilium’s acquisition of Actient will create a sustainable base of high cash flow legacy products enabling the Auxilium to generate strong operating cash flow; whether the acquisition of Actient will expand Auxilium’s portfolio; the degree to which Auxilium will remain committed to urology and the TRT market; whether the Actient acquisition will enhance Auxilium’s growth trajectory and create significant value for shareholders; whether Actient and Auxilium will benefit from complementary commercial capabilities or an expanded sales force; the ability of Actient to better serve TRT physician customers; whether Auxilium will achieve other expected benefits from its acquisition of Actient; whether the TRT market will remain a significant opportunity for growth across multiple testosterone delivery options; and the degree to which Auxilium’s cash from operations will be available or used for amortizing outstanding indebtedness. These statements involve known and unknown risks, uncertainties and other factors that may cause actual results, performance, achievements or prospects to be materially different from any future results, performance, achievements or prospects expressed in or implied by such forward-looking statements. In some cases you can identify forward-looking statements by terminology such as ‘‘may’’, ‘‘will’’, ‘‘should’’, ‘‘would’’, ‘‘expect’’, ‘‘intend’’, ‘‘plan’’, ‘‘anticipate’’, ‘‘believe’’, ‘‘estimate’’, ‘‘predict’’, ‘‘potential’’, ‘‘seem’’, ‘‘seek’’, ‘‘future’’, ‘‘continue’’, or ‘‘appear’’ or the negative of these terms or similar expressions, although not all forward-looking statements contain these identifying words. Our forward-looking statements convey management’s expectations, beliefs, plans and objectives regarding future performance of Auxilium and are based upon preliminary information and management assumptions. No specific assurances can be given with respect to whether we will realize financial, strategic and other benefits as a result of our acquisition of Actient. These forward-looking statements are subject to a number of risks and uncertainties, including those discussed under ‘‘Risk Factors’’ in Auxilium’s Annual Report on Form 10-K for the year ended December 31, 2012 filed with the Securities and Exchange Commission (the “SEC”) on January 23, 2013 as updated in Item 8.01 of the Current Report on Form 8-K that we filed with the SEC on April 29, 2013. While Auxilium may elect to update the forward-looking statements made in this news release in the future, Auxilium specifically disclaims any obligation to do so. Our SEC filings may be accessed electronically by means of the SEC’s home page on the Internet at http://www.sec.gov or by means of Auxilium’s home page on the Internet at http://www.auxilium.com under the heading “For Investors - SEC Filings.” There may be additional risks that Auxilium does not presently know or that Auxilium currently believes are immaterial which could also cause actual results to differ from those contained in the forward-looking statements.

Testim ® and XIAFLEX ® are registered trademarks of Auxilium Pharmaceuticals, Inc. TESTOPEL ® , Edex ® , Striant ® , Osbon Osbon ErecAid ® , Theo-24 ® and Semprex ® -D are registered trademarks of Actient.

For Auxilium:

James E. Fickenscher

CFO

(484) 321-5900

jfickenscher@auxilium.com

William Q. Sargent, Jr.

V.P., IR

(484) 321-5900

wsargent@auxilium.com

For Actient:

Kellie Kennedy

(312) 933-4903

kelliek@theharbingergroup.com