UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 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): June 8, 2015
 

POZEN INC.
(Exact name of registrant as specified in its charter)
 
Delaware
000-31719
62-1657552
(State or other jurisdiction of incorporation)
(Commission File Number)
(IRS Employer Identification No.)

1414 Raleigh Road, Suite 400
   
Chapel Hill, North Carolina
 
27517
(Address of principal executive offices)
 
(Zip Code)

Registrant’s telephone number, including area code: (919) 913-1030

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:

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

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

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

 
☐
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
 
On June 8, 2015, POZEN Inc., a Delaware corporation (“ Pozen ”), entered into an Agreement and Plan of Merger and Arrangement (the “ Merger Agreement ”) among Tribute Pharmaceuticals Canada Inc., a corporation incorporated under the laws of the Province of Ontario (“ Tribute ”), Aguono Limited, a private limited company incorporated in Ireland (which, prior to the Merger Effective Time, as defined in the Merger Agreement, shall be renamed Aralez Pharmaceuticals plc) (“ Parent ”), Trafwell Limited, a private limited company incorporated in Ireland (“ Ltd2 ”), ARLZ US Acquisition Corp., a corporation incorporated under the laws of the State of Delaware and a wholly-owned subsidiary of Parent (“ US   Merger Sub ”), and ARLZ CA Acquisition Corp., a corporation incorporated under the laws of the Province of Ontario and a wholly-owned subsidiary of Parent (“ Can Merger Sub ”).
 
The Merger Agreement provides for, among other things, a business combination whereby US Merger Sub will be merged with and into Pozen (the “ Merger ”). As a result of the Merger, the separate corporate existence of US Merger Sub will cease and Pozen will continue as the surviving corporation.  On the date of the closing of the Merger, Pozen will become an indirect wholly owned subsidiary of Parent.  In accordance with the Merger Agreement, Can Merger Sub will offer to and acquire all of the outstanding shares of Tribute in the manner provided for by the Merger Agreement (the “ Arrangement ”).  Upon completion of the Arrangement, Tribute will also become an indirect wholly-owned subsidiary of Parent.  The Boards of Directors of each of Pozen, Tribute, Parent, US Merger Sub, and Can Merger Sub  have unanimously approved the Merger Agreement, determined that the Merger and Arrangement, upon the terms and subject to the conditions set forth in the Merger Agreement, is in the best interests of Pozen, Tribute, Parent, US Merger Sub, or Can Merger Sub, as applicable, and their respective stockholders, and have declared the advisability of the Merger and Arrangement and the execution of the Merger Agreement.
 
Upon consummation of the Merger and Arrangement, each outstanding share of Pozen common stock will be converted into the right to receive from Parent or US Merger Sub one fully paid and non-assessable ordinary share of Parent, $0.001 nominal value per share (each, a “ Parent Share ” and collectively, the “ Parent Shares ”), and each outstanding share of Tribute common stock will be converted into the right to receive from Parent or Can Merger Sub 0.1455 fully paid and non-assessable Parent Shares.
 
Upon completion of the Merger and Arrangement, Pozen stockholders will own approximately 66% of the outstanding Parent Shares, and current Tribute stockholders will own approximately 34% of the outstanding Parent Shares before giving effect to (i) any exercise of outstanding options and warrants or the vesting and delivery of shares underlying restricted stock units of either company and (ii) the ordinary shares of Parent to be issued to new investors pursuant to the Subscription Agreement (defined below) and the ordinary shares of Parent issuable upon conversion of the Convertible Notes to be issued pursuant to the Facility Agreement (defined below).
 
The completion of the Merger and Arrangement is subject to the approval of stockholders of each of Pozen and Tribute. In addition, the Merger and the Arrangement are subject to other customary closing conditions, including, among others, (i) the expiration or termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the obtaining of approval under Canada’s Competition Act (to the extent required under applicable law), (ii) the declaration by the Securities and Exchange Commission (“ SEC ”) of the effectiveness of the Registration Statement on Form S-4 to be filed with the SEC registering the Parent Shares to be issued in connection with the Merger and Arrangement, (iii) the approval of the listing on the NASDAQ Stock Market LLC and the Toronto Stock Exchange of the Parent Shares to be issued in connection with the Merger and Arrangement, and (iv) the conditions to closing the equity and debt financings described below having been met or waived. 
 
The obligation of each party to the Merger Agreement to close the Merger and Arrangement is also subject to the continued (i) accuracy of the representations and warranties made and (ii) compliance with the covenants agreed to by the other party to the Merger Agreement, in each case, subject to certain materiality standards as set forth in the Merger Agreement. Furthermore, each party’s obligation to close the Merger and Arrangement is subject to the absence of certain legal restraints and the absence of any Material Adverse Effect (as defined in the Merger Agreement) on the other party since the date of the Merger Agreement.
 
The parties’ obligation to close the Merger and Arrangement is also subject to additional closing conditions, including (i) receipt by Pozen of an opinion addressed to Pozen and Parent dated as of the Closing Date to the effect that Section 7874 of the Code (or any other U.S. Tax law), existing regulations promulgated thereunder, and official interpretation thereof as set forth in published guidance should not apply so as to cause Parent to be treated as a domestic corporation for U.S. federal income tax purposes from and after the Closing Date, and (ii) there shall have been no change in applicable Law (whether or not such change in Law is yet effective) with respect to Section 7874 of the Code (or any other U.S. Tax Law), or official interpretation thereof as set forth in published guidance by the IRS (other than News Releases) (whether or not such change in official interpretation is yet effective), and there shall have been no bills that would implement such a change passed by the United States House of Representatives and the United States Senate and for which the time period for the President of the United States to sign or veto such bills has not yet elapsed, in each case, that, once effective, in the opinion of nationally recognized U.S. tax counsel, would cause Parent to be treated as a United States domestic corporation for U.S. federal income tax purposes.
 
Pozen and Tribute have each agreed to customary representations, warranties and covenants in the Merger Agreement. Among them, both Pozen and Tribute have agreed (i) to conduct their respective businesses in the ordinary course during the period between the execution of the Merger Agreement and the closing of the Merger and Arrangement and (ii) not to solicit alternative transactions or, except in limited circumstances to permit Pozen’s and Tribute’s respective Boards of Directors to comply with their respective fiduciary duties, participate in any discussions or negotiations or furnish to third parties any information with respect thereto.
 
The Merger Agreement contains certain termination rights for both Pozen and Tribute, including in the event that the Merger and Arrangement is not consummated by January 31, 2016, or if the requisite stockholder approvals are not received. The Merger Agreement further provides that, upon termination of the Merger Agreement under specified circumstances, including termination of the Merger Agreement by Pozen or Tribute as a result of an adverse change in the recommendation of the other party’s Board of Directors, Pozen may be required to pay Tribute a termination fee of $3.5 million or Tribute may be required to pay Pozen a termination fee of $3.5 million, as applicable. The Merger Agreement provides for the payment of a reduced termination fee of $1.75 million from Pozen to Tribute in the event that the Merger Agreement is terminated by Tribute due to a change in applicable tax law that would have a Material Adverse Effect on Pozen.
 
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 does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement. Capitalized terms used above without definition have the meanings given such terms in the Merger Agreement.
 
The Merger Agreement and the above description have been included to provide information regarding the terms of such document. They are not intended to provide any other factual information about the parties to the Merger Agreement or their respective subsidiaries, affiliates or equity holders. The Merger Agreement contains representations and warranties by each of the parties to the Merger Agreement, which were made only for purposes of that agreement and as of specified dates. The representations, warranties and covenants in the Merger Agreement were made solely for the benefit of the parties to the Merger Agreement; may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk among the parties to the Merger Agreement instead of establishing these matters as facts; and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of such documents, as applicable, which subsequent information may or may not be fully reflected in public disclosures by Pozen.  Accordingly, investors and stockholders should read the representations and warranties in such documents not in isolation but only in conjunction with the other information about Pozen that it includes in reports, statements and other filings it makes with the SEC.
 
Voting Agreements
 
Pozen.  As previously reported under the Pozen’s Current Report on From 8-K filed with the SEC on June 3, 2015, John R. Plachetka, Pharm.D., the former Chairman of the Board of Directors of Pozen (the “ Pozen Board ”), Chief Executive Officer and President retired on May 31, 2015, and also resigned from the Pozen Board effective the same day.  In connection with his retirement and resignation, Dr. Plachetka entered into a Voting Agreement with Pozen (the “ Plachetka Voting Agreement ”), pursuant to which, among other matters, he granted to Pozen an irrevocable proxy with respect to all the shares directly and indirectly owned by him for a term of three years. With respect to a possible merger, sale or other transfer, directly or indirectly and whether in one or a series of transactions, of all or a significant portion of the assets or securities of Pozen or any extraordinary corporate transaction, regardless of the form or structure of such transaction, in each case if and to the extent adopted or approved by the Pozen Board and recommended to Pozen’s stockholders for adoption or approval, Dr. Plachetka and his affiliates agreed to (i) appear at such meeting or otherwise cause the Shares to be counted as present thereat for purposes of calculating a quorum; and (ii) vote (or cause to be voted) or deliver a written consent (or cause a written consent to be delivered) covering all of the Shares that such Stockholder shall be entitled to so vote in favor of adoption and approval of the Potential Transaction.  The Voting Agreement applies to all shares of Pozen’s common stock directly and indirectly owned or beneficially held by Dr. Plachetka, as well as additional shares of Pozen’s common stock acquired by him during its term.  Dr. Plachetka is also subject to certain restrictions on the shares of Pozen’s common stock directly and indirectly owned by him.
 
The foregoing descriptions of the Plachetka Voting Agreement is qualified in its entirety to the full text of the Plachetka Voting Agreement, which was filed as Exhibit 10.2 to Pozen’s Current Report on Form 8-K filed with the SEC on June 3, 2015.
 
Tribute.  Certain shareholders of Tribute (the “ Specified Shareholders ”) holding, in the aggregate, approximately 25.26% of the outstanding shares of Tribute common stock have entered into Voting Agreements with Parent (the “ Tribute Voting Agreements ”) concurrently with the execution of the Merger Agreement, providing that the Specified Shareholders, upon the terms and subject to the conditions set forth therein, (a) will vote their shares of Tribute common stock in favor of the issuance of shares of Tribute common stock in the Merger and Arrangement and against any competing transaction that may be proposed and (b) will not sell or otherwise transfer their shares, except in connection with the Merger and Arrangement.
 
Debt Facility Agreement
 
On June 8, 2015, Pozen executed a Debt Facility Agreement (the “ Facility Agreement ”) among the Parent (or a wholly-owned subsidiary of the Parent, depending on whether certain conditions of the Facility Agreement occur) (the “ Borrower ”), Tribute, Deerfield Private Design Fund III, L.P. (“ Deerfield Private Design ”), Deerfield International Master Fund, L.P. (“ Deerfield International ”), and Deerfield Partners, L.P. (“ Deerfield Partners ”), and the other lender parties thereto (together with Deerfield Private Design, Deerfield International, and Deerfield Partners, the “ Lenders ”).
 
Pursuant to the Facility Agreement, the Borrower shall borrow from the Lenders up to an aggregate principle amount of $275 million, of which (i) $75 million will be in the form of a 2.5% senior secured convertible promissory note due six years from issuance and convertible into Parent Shares at a conversion price of $9.54 per share (the “ Convertible Notes ”), issued and sold by Borrower to Deerfield Private Design or its registered assigns, upon the terms and conditions of the Facility Agreement, and (ii) up to an aggregate principal amount of $200 million, which will be made available for Permitted Acquisitions (as defined in the Facility Agreement), will be in the form of Secured Promissory Notes issued and sold by the Borrower to the Lenders (the “ Acquisition Notes ”), evidencing the Acquisition Loans, upon the terms and conditions and subject to the limitations set forth in the Acquisition Notes, all subject to the terms and conditions of the Facility Agreement. 
 
A copy of the Facility Agreement, including the form of Convertible Note, is attached hereto as Exhibit 10.1 and is incorporated herein by reference. The foregoing description of the Facility Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Facility Agreement. Capitalized terms used above without definition have the meanings given such terms in the Facility Agreement.
 
Registration Rights Agreement
 
In connection with the Facility Agreement, on June 8, 2015, the Lenders and Parent entered into a Registration Rights Agreement (the “ Registration Rights Agreement ”).  Pursuant to the Registration Rights Agreement, Parent has agreed to prepare and file with the SEC a Registration Statement on Form S-3, or other such form as required to effect a registration of the Parent Shares issued or issuable upon conversion of or pursuant to the Convertible Notes (the “ Registerable Securities ”), covering the resale of the Registerable Securities and such indeterminate number of additional Common Shares as may become issuable upon conversion of or otherwise pursuant to the Convertible Notes to prevent dilution resulting from certain corporate actions.  Such Registration Statement must be filed within 45 calendar days following the date of issuance of the Convertible Notes.  In the event the SEC does not permit all of the Registerable Securities to be included in the Registration Statement or if the Registerable Securities are not otherwise included in a Registration Statement filed under the Registration Rights Agreement, the Parent has agreed to file an additional Registration Statement by no later than the Additional Filing Deadline covering the resale of all Registerable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 of the Securities Act of 1933, as amended (the “ Securities Act ”).  The Registration Rights Agreement also provides for piggy-back registration, subject to the terms and conditions of the Registration Rights Agreement.
 
A copy of 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 does not purport to be complete and is qualified in its entirety by reference to the full text of the Registration Rights Agreement  Capitalized terms used above without definition have the meanings given such terms in the Registration Rights Agreement .
 
Share Subscription Agreement
 
On June 8, 2015, Pozen executed a Share Subscription Agreement (the “ Subscription Agreement ”) among QLT Inc., a corporation existing under the laws of the Province of British Columbia, Canada (“ Purchaser ”), Tribute, Parent, and the following investors thereto: Deerfield Private Design; Deerfield International; Deerfield Partners; EcoR1 Capital Fund, L.P.; EcoR1 Capital Fund Qualified, L.P.;  Broadfin Healthcare Master Fund, Ltd; JW Partners, LP; and JW Opportunities Fund, LLC  (each, an “ Investor ” and together, the “ Investors ”).  Pursuant to the Subscription Agreement, Parent will sell to Purchaser and the Investors up to $75 million of the Parent Shares in a private placement at a purchase price of $7.20 per Parent Share.  The Subscription Agreement provides that Pozen shall prepare and cause to be filed with the SEC two registration statements on Form S-3 or such form as may be required to effect a registration of the Parent Shares issued under the Subscription Agreement within 60 days of the date of the signing of the Subscription Agreement and for certain other registration rights for each of Purchaser and the Investors under the Securities Act and the rules and regulations thereunder, or any similar successor statute, and applicable state securities laws.
 
A copy of the Subscription Agreement is attached hereto as Exhibit 10.3 and is incorporated herein by reference. The foregoing description of the Subscription Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Subscription Agreement. Capitalized terms used above without definition have the meanings given such terms in the Subscription Agreement.
 
Transaction Committee Compensation
 
On June 6, 2015, the Pozen Board approved certain one-time payments of compensation to the independent members of the Pozen Board who served on the Transaction Committee of the Pozen Board (the “ Transaction Committee ”).  The Transaction Committee was formed for the purpose of providing oversight on behalf of the full Pozen Board in connection with the negotiation and execution of the Merger Agreement as well as the strategic direction of Pozen.  For their extraordinary service on the Transaction Committee, Arthur S. Kirsch is to receive a one-time cash payment in the amount of $100,000, and Mr. Lee is to receive a one-time cash payment in the amount of $75,000.  
 
Item 5.02
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
 
As a result of the Merger and Arrangement, individuals who are executive officers or directors of Pozen and subject to the reporting requirements of Section 16(a) of the Securities Exchange Act of 1934, as amended, during the six months before the consummation of the Merger and Arrangement (or executive officers and directors of Parent during the six months after the consummation of the Merger and Arrangement ) will be subject to an excise tax under Section 4985 of the Internal Revenue Code of 1986 on the value of certain stock compensation (as defined by Section 4985) held at any time during the same period by such individuals with respect to which income, loss or gain recognition has not occurred. Parent agreed to provide certain individuals, including   Messrs. Adams and Koven and other officers and directors with a payment with respect to such excise tax, to the extent applicable, so that, on a net after-tax basis, they would be in the same position as if no such excise tax had been applied.  Pozen currently anticipates that such payments (including applicable gross-up payments) will be approximately $13 million in the aggregate.   
 
Item 7.01
Regulation FD Disclosure
 
In connection with the Merger and Arrangement, on June 8, 2015, Pozen and Tribute issued a joint press release announcing the Merger Agreement (the “ Press Release ”). The full text of the Press Release is attached hereto as Exhibit 99.1 and incorporated by reference herein.
 
In accordance with General Instruction B.2 of Form 8-K, the information contained in this Item 7.01 in this Form 8-K, including Exhibit 99.1, is to be considered “furnished” pursuant to Item 7.01 of Form 8-K and shall not be deemed to be “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 Section 11 and 12(a)(2) of the Securities Act, nor shall it be deemed incorporated by reference in any filing or report with the SEC, whether made before or after the date hereof, regardless of any general incorporation language in such filing, except as shall be expressly set forth by specific reference in such a filing or report.
 
Item 9.01
Financial Statements and Exhibits
 
(d)
Exhibits
 
2.1
 
Agreement and Plan of Merger and Arrangement, dated as of June 8, 2015, among Pozen, Tribute, Parent, Ltd2, US Merger Sub and Can Merger Sub.*
10.1
 
Facility Agreement, dated as of June 8, 2015, among the Borrower, Pozen, Tribute and the Lenders.
10.2
 
Registration Rights Agreement, dated as of June 8, 2015, among Parent and the Lenders.
10.3
 
Share Subscription Agreement, dated as of June 8, 2015, among Pozen, Purchaser, Tribute, Parent and the Investors.
99.1
 
Joint Press Release of Pozen and Tribute, issued on June 8, 2015.
 
*Certain disclosure schedules to the Merger Agreement have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Pozen hereby agrees to furnish supplementally a copy of any omitted schedule to the SEC.
 
No Offer or Solicitation
 
This communication is not intended to and does not constitute an offer to sell or the solicitation of an offer to subscribe for or buy or an invitation to purchase or subscribe for any securities or the solicitation of any vote or approval in any jurisdiction pursuant to the acquisition or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
 
Additional Information
 
In connection with the proposed transaction, Parent plans to file with the SEC a registration statement on Form S-4 that will include the joint proxy statement/prospectus of Parent and Pozen that also constitutes a prospectus of Parent. Pozen plans to mail the joint proxy statement/prospectus to its stockholders in connection with the transaction. INVESTORS ARE URGED TO READ THE JOINT PROXY STATEMENT/PROSPECTUS WHEN IT BECOMES AVAILABLE BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION. Pozen stockholders will be able to obtain the joint proxy statement/prospectus, as well as other filings containing information about Pozen and Parent, free of charge, at the website maintained by the SEC at www.sec.gov. Pozen stockholders may also obtain these documents, free of charge, from Pozen’s website (www.pozen.com) under the heading “Investors—SEC Filings” or by directing a request to made to Pozen at POZEN Inc., 1414 Raleigh Road, Suite 400, Chapel Hill, North Carolina 27517. 
 
Participants in the Solicitation
 
The directors and executive officers of Parent and Pozen and other persons may be deemed to be participants in the solicitation of proxies in respect of the transactions contemplated by the joint proxy statement/prospectus. Information regarding Pozen’s directors and executive officers is available in its definitive proxy statement filed with the SEC by Pozen on April 27, 2015. This document can be obtained free of charge from the sources indicated above. Other information regarding the interests of the participants in the proxy solicitation will be included in the joint proxy statement/prospectus and other relevant materials to be filed with the SEC when they become available.
 
Caution Regarding Forward-Looking Information and “Safe Harbor” Statement
 
To the extent any statements made in this document contain information that is not historical, these statements are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, as amended, Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, and may be forward-looking information as defined under applicable Canadian securities legislation (collectively, “forward-looking statements”). Forward-looking statements can generally be identified by the use of words such as “believe”, “anticipate”, “expect”, “estimate”, “intend”, “continue”, “plan”, “project”, “will”, “may”, “should”, “could”, “would”, “target”, “potential” and other similar expressions. In addition, any statements that refer to expectations, projections or other characterizations of future events or circumstances are forward-looking statements. Although certain of these statements set out herein are indicated above, all of the statements herein that contain forward-looking statements are qualified by these cautionary statements. Although Pozen believes that the expectations reflected in such forward-looking statements are reasonable, such statements involve risks and uncertainties, and undue reliance should not be placed on such statements. Actual results may differ materially from those expressed or implied in such statements. Important factors that could cause actual results to differ materially from these expectations include, among other things, the following: Pozen’s growth profile; whether the transactions described in this Current Report enable Pozen to create a more competitive and efficient platform, diversifies Pozen’s offerings, or  positions Pozen to deliver value for its shareholders; whether the combined company’s profitability will significantly increase; and whether or when the transaction will be accretive; the inability of Pozen to further license YOSPRALA product candidates on terms and timing acceptable to Pozen; costs and delays in the development and/or FDA approval of the Pozen product candidates, including YOSPRALA, as a result of the need to conduct additional studies or due to issues with third-party manufacturers, or the failure to obtain such approval of Pozen’s product candidates for all expected indications, including as a result of changes in regulatory standards or the regulatory environment during the development period of any of Pozen’s product candidates; uncertainties in clinical trial results or the timing of such trials, resulting in, among other things, an extension in the period over which Pozen recognizes deferred revenue or Pozen’s failure to achieve milestones that would have provided Pozen with revenue; inability to maintain or enter into, and the risks resulting from Pozen’s dependence upon, collaboration or contractual arrangements necessary for the development, manufacture, commercialization, marketing, sales and distribution of any products, including Pozen’s dependence on AstraZeneca and Horizon for the sales and marketing of VIMOVO®, Pozen’s dependence on Patheon and its active ingredient suppliers for the manufacture of YOSPRALA 81/40 and YOSPRALA 325/40; competitive factors; Pozen’s inability to protect its patents or proprietary rights and obtain necessary rights to third party patents and intellectual property to operate its business; Pozen’s inability to operate its business without infringing the patents and proprietary rights of others; general economic conditions; the failure of any products to gain market acceptance; Pozen’s inability to obtain any additional required financing; technological changes; government regulation; changes in industry practice; and one-time events, including those discussed herein and as detailed from time to time in each of Pozen’s reports filed with the SEC. There can be no assurance that the proposed merger will in fact be consummated.
 
Additional information about these factors and about the material factors or assumptions underlying such forward-looking statements may be found in the body of this document, as well as under Item 1.A. in Pozen’s Annual Reports on Form 10-K for the fiscal year ended December 31, 2014, and Item 1.A in Pozen’s most recent Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2015. Pozen cautions that the foregoing list of important factors that may affect future results is not exhaustive. When relying on forward-looking statements to make decisions with respect to Pozen, investors and others should carefully consider the foregoing factors and other uncertainties and potential events. Pozen does not undertake any obligation to update or revise any forward-looking statement, except as may be required by law.
 
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.

Date: June 11, 2015
POZEN INC.
     
 
By:
/s/ William L. Hodges
   
William L. Hodges
   
Chief Financial Officer

EXHIBIT INDEX
 
Exhibit
Number
 
Description
 
 
Agreement and Plan of Merger and Arrangement, dated as of June 8, 2015, among Pozen, Tribute, Parent, Ltd2, US Merger Sub and Can Merger Sub.*
 
Facility Agreement, dated as of June 8, 2015, among the Borrower, Pozen, Tribute and the Lenders.
 
Registration Rights Agreement, dated as of June 8, 2015, among Parent and the Lenders.
 
Share Subscription Agreement, dated as of June 8, 2015, among Pozen, Purchaser, Tribute, Parent and the Investors.
 
Joint Press Release of Pozen and Tribute, issued on June 8, 2015.
 
*Certain disclosure schedules to the Merger Agreement have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Pozen hereby agrees to furnish supplementally a copy of any omitted schedule to the SEC.
 
 
Exhibit 2.1
 
Execution Copy

 
AGREEMENT AND PLAN OF MERGER AND ARRANGEMENT

AMONG

TRIBUTE PHARMACEUTICALS CANADA INC.,

AGUONO LIMITED,

TRAFWELL LIMITED,

ARLZ US ACQUISITION CORP.,

ARLZ CA ACQUISITION CORP.,

AND

POZEN INC.

June 8, 2015
 
 
TABLE OF CONTENTS

     
Page
       
ARTICLE 1
INTERPRETATION
1
       
 
1.1
Definitions
1
 
1.2
Currency
14
 
1.3
Interpretation Not Affected by Headings
14
 
1.4
Knowledge and Disclosure
14
 
1.5
Extended Meanings, Etc
15
 
1.6
Date of Any Action
15
 
1.7
Schedules
15
       
ARTICLE 2
THE MERGER AND ARRANGEMENT
15
       
 
2.1
The Merger
15
 
2.2
The Arrangement
18
 
2.3
The Closing
20
 
2.4
Preparation of Tribute Circular, Pozen Proxy Statement and Registration Statements
21
 
2.5
Pozen Stockholder Meeting
22
 
2.6
Tribute Shareholder Meeting
22
       
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
23
       
 
3.1
Representations and Warranties of Pozen
23
 
3.2
Representations and Warranties of Tribute
34
 
3.3
Representations and Warranties of Parent
45
 
3.4
Survival of Representations and Warranties
48
       
ARTICLE 4
COVENANTS REGARDING THE CONDUCT OF BUSINESS
48
       
 
4.1
Covenants of Pozen
48
 
4.2
Covenants of Tribute
50
 
4.3
Covenants of Parent
52
       
ARTICLE 5
ADDITIONAL COVENANTS
53
       
 
5.1
Access to Information; Cooperation
53
 
5.2
Consents and Approvals
54
 
5.3
Covenants of Pozen Regarding the Arrangement and the Merger
55
 
5.4
Covenants of Tribute Regarding the Arrangement and the Merger
55
 
5.5
Covenants of Parent Regarding the Arrangement and the Merger
55
 
5.6
Indemnification and Insurance
56
 
5.7
Rule 16b-3 Actions
56
 
5.8
Stock Exchange Listings
57
 
5.9
Takeover Statutes
57
 
5.10
Employee Matters
57
 
5.11
Insurance
57
 
5.12
Creation of Distributable Reserves
57
 
5.13
Certain Parent Shareholder Resolutions
58
 
5.14
Parent Board of Directors
58
       
ARTICLE 6
ACQUISITION PROPOSALS
58
       
 
6.1
Pozen Non-Solicitation
58
 
6.2
Pozen Change of Recommendation
60
 
6.3
Tribute Non-Solicitation
60
 
6.4
Tribute Change of Recommendation
62
       
ARTICLE 7
TERMINATION
63
       
 
7.1
Termination
63
 
7.2
Termination Fee
64
 
i
TABLE OF CONTENTS
(continued)

     
Page
       
 
7.3
Reduced Termination Fee
65
 
7.4
Effect of Termination
65
       
ARTICLE 8
CONDITIONS PRECEDENT
65
       
 
8.1
Mutual Conditions Precedent
65
 
8.2
Additional Conditions Precedent to the Obligations of Pozen
67
 
8.3
Additional Conditions Precedent to the Obligations of Tribute
67
 
8.4
Notice Provisions
68
       
ARTICLE 9
GENERAL
68
       
 
9.1
Notices
68
 
9.2
Expenses
70
 
9.3
No Assignment
70
 
9.4
Benefit of Agreement
70
 
9.5
Public Announcements
70
 
9.6
Governing Law; Attornment; Service of Process; Waiver of Jury
71
 
9.7
Entire Agreement
71
 
9.8
Third Party Beneficiaries
71
 
9.9
Amendment
71
 
9.10
Waiver and Modifications
71
 
9.11
Severability
72
 
9.12
Further Assurances
72
 
9.13
Injunctive Relief
72
 
9.14
No Recourse
72
 
9.15
Counterparts
72
 
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AGREEMENT AND PLAN OF MERGER AND ARRANGEMENT

THIS AGREEMENT is made as of June 8, 2015 among Tribute Pharmaceuticals Canada Inc., a corporation incorporated under the laws of the Province of Ontario (“ Tribute ”), Aguono Limited, a private limited company incorporated in Ireland with registered number 561617 having its registered office at 25-28 North Wall Quay, Dublin 1, Ireland (“ Parent ”), Trafwell Limited, a private limited company incorporated in Ireland with registered number 561618 having its registered office at 25-28 North Wall Quay, Dublin 1, Ireland (“ Ltd2 ”), ARLZ US Acquisition Corp., a corporation incorporated under the laws of the State of Delaware and a wholly-owned indirect subsidiary of Parent (“ US Merger Sub ”), ARLZ CA Acquisition Corp., a corporation incorporated under the laws of the Province of Ontario and a wholly-owned indirect subsidiary of Parent (“ Can Merger Sub ”) and POZEN Inc., a corporation incorporated under the laws of the State of Delaware (“ Pozen ”).

WHEREAS , Parent proposes, upon the terms and subject to the conditions set forth in this Agreement (as defined below), to cause Can Merger Sub to offer to and to acquire all of the outstanding shares of Tribute in the manner provided for by this Agreement and the Plan of Arrangement.

WHEREAS , Parent proposes, upon the terms and subject to the conditions set forth in this Agreement to cause US Merger Sub to offer to and to acquire all of the outstanding shares of Pozen pursuant to and in the manner provided for by this Agreement and to cause US Merger Sub to merge with and into Pozen, with Pozen being the surviving corporation in the manner provided for by this Agreement (the “ Merger ”).

WHEREAS , upon the terms and subject to the conditions set forth in this Agreement, US Merger Sub hereby offers to acquire all of the outstanding shares of Pozen.

WHEREAS , upon the terms and subject to the conditions set forth in this Agreement, Can Merger Sub hereby offers to acquire all of the outstanding shares of Tribute pursuant to and in the manner provided for by the Arrangement.

WHEREAS , Tribute’s board of directors has unanimously (i) approved and declared advisable this Agreement and the transactions contemplated by this Agreement upon the terms and subject to the conditions set forth in this Agreement, (ii) determined that this Agreement and such transactions are fair to, and in the best interests of, Tribute and the Tribute Shareholders and (iii) resolved to recommend that Tribute Shareholders approve the Arrangement.

WHEREAS , Pozen’s board of directors has unanimously (i) approved and declared advisable this Agreement and the transactions contemplated by this Agreement upon the terms and subject to the conditions set forth in this Agreement, (ii) determined that this Agreement and such transactions are fair to, and in the best interests of, Pozen and the Pozen Stockholders and (iii) resolved to recommend that Pozen Stockholders adopt this Agreement and approve the Merger.

WHEREAS , a Pozen Stockholder (the “ Specified Pozen Stockholder ”) has entered into a voting agreement providing that, among other things, the Specified Pozen Stockholder will support the Merger and the other transactions contemplated by this Agreement, including by voting in favor of the Merger (each, a “ US   Voting Agreement ”).

WHEREAS , Tribute, Can Merger Sub and certain Tribute Shareholders (the “ Specified Tribute Shareholders ”) intend to enter into voting agreements concurrently with the execution of this Agreement, providing that, among other things, the Specified Tribute Shareholders will support the Arrangement and the other transactions contemplated by this Agreement, including by voting in favor of the Arrangement (each, a “ Canadian   Voting Agreement ”) (the US Voting Agreement and the Canadian Voting Agreements are collectively, the “ Voting Agreements ”).

WHEREAS , prior to the Merger Effective Time, as defined in Section 1.1, Parent shall re-register as a public limited company incorporated in Ireland and be renamed as Aralez Pharmaceuticals plc.

NOW , THEREFORE , in consideration of the premises and the covenants and agreements contained herein, the Parties agree as follows:

ARTICLE 1

INTERPRETATION

1.1          Definitions

In this Agreement, unless otherwise defined or expressly stated herein or something in the subject matter or the context is clearly inconsistent therewith:

“ 1933 Securities Act ” means the United States Securities Act of 1933, as amended.

“ 1934 Exchange Act ” means the United States Securities Exchange Act of 1934, as amended.
 
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“ Affiliate ” shall have the meaning ascribed to it in Rule 405 promulgated under the 1933 Securities Act.

“ Agreement ” means this Agreement and Plan of Merger and Arrangement (including the Schedules attached hereto), as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms hereof.

“ Arrangement ” means an arrangement of Tribute under section 182 of the OBCA on the terms and subject to the conditions set forth in the Plan of Arrangement as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with its terms and the terms of this Agreement or the Plan of Arrangement or made at the direction of the Canadian Court in the Final Order with the consent of Pozen and Tribute.

“ Arrangement Consideration ” means, in respect of each Tribute Common Share subject to the Arrangement, 0.1455 Parent Shares to be issued to the applicable Tribute Shareholders in accordance with the Plan of Arrangement.

“ Arrangement   Effective Date ” means the date upon which all of the conditions to the completion of the Arrangement as set out in Article 8 have been satisfied or waived (subject to applicable Laws) in accordance with the provisions of this Agreement and all documents agreed to be delivered thereunder have been delivered to the satisfaction of the recipient, acting reasonably, and the Arrangement becomes effective in accordance with the OBCA and the Final Order.

“ Arrangement   Effective Time" shall have the meaning ascribed to it in Section 1.1 of the Plan of Arrangement.

“ Arrangement Exchange Agent ” means the bank or trust company, reasonably acceptable to Tribute, appointed by Pozen, prior to the Effective Time, to act as exchange agent for the payment and delivery of the Arrangement Consideration.

“ Arrangement Resolution ” means the special resolution of Tribute Shareholders to be considered and, if thought fit, passed by the Tribute Shareholders at the Tribute Meeting held to approve the Arrangement, to be substantially in the form and content of Schedule B hereto.

“ Articles of Arrangement ” means the articles of arrangement of Tribute in respect of the Arrangement to be filed with the Director after the Final Order is made, which shall be in form and substance satisfactory to Pozen and Tribute, each acting reasonably.

“ Assumed Employees ” shall have the meaning ascribed to it in Section 5.10(b).

“ Business Day ” means a day other than a Saturday, a Sunday or any other day on which major commercial banking institutions in any of Toronto, Ontario, Dublin, Ireland or New York, New York are closed for business.

“ Can Merger Sub ” shall have the meaning ascribed to it in the Recitals.

“ Canadian Court ” means the Ontario Superior Court of Justice (Commercial List).

“ Canadian Securities Act ” means the Securities Act (Ontario) and the rules, regulations and published policies thereunder.

“ Canadian Securities Laws ” means the Canadian Securities Act and all other applicable Canadian provincial securities Laws and, in each case, the rules, regulations and published policies made thereunder as now in effect and as they may be promulgated from time to time.

 “ Certificate of Merger ” means the certificate of merger relating to the Merger.

“ CFDA ” shall have the meaning ascribed to it in Section 3.1(s)(i).

“ Chancery Court ” shall have the meaning ascribed to it in Section 9.6(a).

“ Closing ” shall have the meaning ascribed to it in Section 2.3.

“ Closing Date ” shall have the meaning ascribed to it in Section 2.3.

“ Code ” means the United States Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.

“ Compliant ” means, with respect to the Required Information that such Required Information does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained in such Required Information, in the light of the circumstances under which they were made, not misleading.

“ Competition Act ” means the Competition Act (Canada), as amended.
 
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“ Contract ” means, with respect to any Person, any legally binding contract, agreement, indenture, note, instrument, license, franchise, lease, arrangement, commitment, understanding or other right or obligation (whether written or oral) to which such Person or any of its Subsidiaries is a party or by which such Person or any of its Subsidiaries is bound or affected or to which any of their respective properties or assets is subject.

“ DGCL ” means the General Corporation Law of the State of Delaware.

“ EDGAR ” shall have the meaning ascribed to it under “Pozen Public Disclosure Record” in this Section 1.1.

“ Director ” means the Director appointed pursuant to section 278 of the OBCA.

“ Environment ” means the natural or man-made environment (including soil, land surface or subsurface strata, surface water, groundwater, sediment, ambient air (including all layers of the atmosphere), organic and inorganic matter, living organisms and any other environmental-related medium or resource, natural or otherwise).

 “ Environmental Claims ” means any claim, action, cause of action, suit, proceeding, investigation, order, demand or notice (written or oral) by any person or entity alleging actual or potential liability (including, without limitation, actual or potential liability for investigatory costs, clean-up costs, governmental response costs, natural resources damages, property damages, personal injuries, attorneys’ fees or penalties) arising out of, based on, resulting from or relating to the presence, or Release or threatened Release into the Environment, of, or exposure to, any Hazardous Substances at any location, whether or not owned or operated by Pozen, Tribute or any of their respective Subsidiaries, as applicable, now or in the past.

“ Environmental Laws ” means any Laws governing or relating to pollution or protection of human health or safety or the Environment, including, without limitation, Laws relating to (a) emissions, discharges, Releases or threatened Releases of, or exposure to, Hazardous Substances, (b) the manufacture, processing, distribution, use, treatment, generation, control, storage, containment (whether above ground or underground), disposal, transport or handling of Hazardous Substances, (c) recordkeeping, notification, disclosure and reporting requirements regarding Hazardous Substances, (d) endangered or threatened species of fish, wildlife and plants and the management or use of natural resources, (e) reclamation or restoration of property, or the preservation of the environment or mitigation of adverse effects on or to human health or the Environment, or (f) emissions or control of greenhouse gases.

“ ERISA ” means the United States Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.

“ ERISA Affiliate ” means, with respect to any Person, all trades or businesses (whether or not incorporated) that would be treated together with such Person as a “single employer” within the meaning of Section 414(b), (c), (m), (o) or (t) of the Code.

“ FDA ” means the United States Food and Drug Administration or any successor entity.

“ FDCA ” shall have the meaning ascribed to it in Section 3.1(s)(i).

“ Final Order ” means the order of the Canadian Court in a form acceptable to Tribute and Pozen, each acting reasonably, approving the Arrangement under section 182(5) of the OBCA, as such order may be affirmed, amended, modified, supplemented or varied by the Canadian Court (with the consent of both Tribute and Pozen, each acting reasonably) at any time prior to the Arrangement Effective Date or, if appealed, then, unless such appeal is withdrawn, abandoned or denied, as affirmed or amended (provided that any such amendment is acceptable to both Tribute and Pozen, each acting reasonably) on appeal.

“ Form S-4 ” shall have the meaning ascribed to it in Section 2.4(a).

“ Form S-8 ” shall have the meaning ascribed to it in Section 2.4(i).

“ Governmental Authority ” means any international, multinational, federal, provincial, territorial, state, regional, municipal, local or other government or governmental body and any ministry, department, division, bureau, agent, official, agency, commission, board or authority of any government, governmental body, quasi-governmental or private body (including the TSXV, the TSX, the NASDAQ or any other applicable stock exchange), domestic or foreign, exercising any statutory, regulatory, expropriation or taxing authority under the authority of any of the foregoing and any domestic, foreign or international judicial, quasi-judicial or administrative court, tribunal, commission, board, panel, arbitrator or arbitral body acting under the authority of any of the foregoing.

“ Hazardous Substances ” means any chemicals, pollutants, contaminants, wastes, toxic or hazardous substances, materials or wastes, petroleum and petroleum derivatives or products, or synthetic or alternate substitutes therefor, greenhouse gases, asbestos or asbestos-containing materials or products, polychlorinated biphenyls, hydrogen sulfide, arsenic, cadmium, mercury, lead or lead-based paints or materials, radon, fungus, mold, mycotoxins, urea-formaldehyde or other substances that may have an adverse effect on human health or the environment, and including any other substance that is prohibited, listed, defined, designated or classified as dangerous, hazardous, radioactive, corrosive, explosive, infectious, carcinogenic, mutation or toxic or a pollutant or a contaminant under or pursuant to, or that could result in liability under, any Law relating to pollution, waste, human health or the Environment, or may impair the Environment, the health of any Person, property or plant or animal life.
 
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“ Health Canada ” shall mean the Department of Health Canada dealing with drugs and medical devices.

“ HIPAA ” shall have the meaning ascribed to it in Section 3.1(s)(i).

“ Holdco ” means Impetro Unlimited, an unlimited liability company incorporated under the laws of Jersey with company number 118471.

“ HSR Act ” means the United States Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

“ Indemnified Party ” and “ Indemnified Parties ” have the meanings ascribed thereto in Section 5.6(a).

“ Intellectual Property ” means all intellectual property and industrial property rights and rights in confidential information of every kind and description throughout the world, including all United States, Canadian and foreign (a) patents, patent applications, invention disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions and extensions thereof (“ Patents ”), (b) registered or unregistered trademarks, service marks, names, corporate names, trade names, domain names, logos, slogans, trade dress, design rights, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing (“ Trademarks ”), (c) copyrights and copyrightable subject matter (“ Copyrights ”), (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 all other confidential information, ideas, know-how, inventions, proprietary processes, formulae, models, and methodologies, (f) rights of publicity, privacy, and rights to personal information, (g) moral rights and rights of attribution and integrity, (h) all rights in the foregoing and in other similar intangible assets and (i) all applications and registrations for the foregoing.

“ Interim Order ” means the interim order of the Canadian Court in a form acceptable to Tribute and Pozen, each acting reasonably, to be issued following the application therefor contemplated by Section 2.2(c)(i) providing for, among other things, the calling and holding of the Tribute Meeting, as such order may be amended, modified, supplemented or varied by the Canadian Court with the consent of both Tribute and Pozen, each acting reasonably.

“ Irish High Court Application ” shall have the meaning ascribed to it in Section 5.12(c)(i).

“ IRS ” means U.S. Internal Revenue Service.

“ Joint Venture ” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership, contractual or other legal form, in which Tribute, Parent, Pozen or any of their respective Subsidiaries holds voting shares, equity interests or other rights of participation, but which is not a Subsidiary of Tribute, Parent or Pozen, and any Subsidiary or downstream Affiliate of any such entity.

“ Laws ” means any and all laws, statutes, codes, ordinances (including zoning), approvals, rules, regulations, instruments, by-laws, notices, policies, protocols, guidelines, guidance, manuals, treaties or other requirements of any Governmental Authority having the force of law and any legal requirements arising under the common law or principles of law or equity.

“ Liens ” means any pledge, lien, charge, option, hypothecation, mortgage, security interest, adverse right, prior assignment, license, sublicense or any other encumbrance of any kind or nature whatsoever, whether contingent or absolute, or any agreement, option, right or privilege (whether by Law, contract or otherwise) capable of becoming any of the foregoing.

“ Material Adverse Effect ,” when used in connection with Pozen, Tribute or Parent, means any result, fact, change, effect, event, circumstance, occurrence or development that, individually or in the aggregate with all other adverse results, facts, changes, effects, events, circumstances, occurrences or developments, has or would reasonably be expected to have, a material and adverse effect on (i) the business, operations, results of operations or condition (financial or otherwise) of such Party and its Subsidiaries, taken as a whole, or (ii) the ability of Pozen, Tribute, Parent or any such Party’s Subsidiaries to perform their covenants or obligations under this Agreement or to consummate the transactions contemplated by this Agreement; provided , however , that, subject to the immediately succeeding proviso, any result, fact, change, effect, event, circumstance, occurrence or development shall not be deemed to constitute, and shall not be taken into account in determining whether there has been, a Material Adverse Effect to the extent that such result, fact, change, effect, event, circumstance, occurrence or development arises out of or results from:

(a)           changes, developments or conditions in or relating to general international, political, economic or financial or capital market conditions or political, economic or financial or capital market conditions in any jurisdiction in which such Party or any of its Subsidiaries operates or carries on business;
 
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(b)           changes, developments or conditions resulting from any act of sabotage or terrorism or any outbreak of hostilities or declared or undeclared war, or any escalation or worsening of such acts of sabotage, terrorism, hostilities or war;

(c)           any natural disaster;

(d)           changes or developments in or relating to currency exchange or interest rates;

(e)           changes or developments affecting the pharmaceutical industry in general;

(f)            any adoption, implementation, promulgation, repeal, modification, reinterpretation, proposal or other change after the date of this Agreement in applicable United States or foreign, federal, state or local Law (other than Orders against a Party or a Subsidiary thereof) or U.S. GAAP or interpretations thereof, including (x) the rules, regulations and administrative policies of the FDA or interpretations thereof and (y) any health reform statutes, rules or regulations or interpretations thereof;

(g)           except for purposes of Sections 3.1(c), 3.1(d), 3.2(c), 3.2(d), 3.3(c) and 3.3(d) changes resulting from compliance with the terms and conditions of this Agreement or from the announcement or pendency of the transactions contemplated by this Agreement;

(h)           any actions taken (or omitted to be taken) by a Parent Party, Tribute or Pozen upon the express written request of the other;

(i)            (A) any changes in the share price or trading volume of Pozen Common Shares or Tribute Common Shares, as applicable, or in any analyst’s recommendation with respect to Pozen or Tribute, as applicable, or (B) any failure of Pozen or Tribute, as applicable, to meet projections, guidance, milestones, forecasts or published financial or operating predictions or measures (it being agreed that the facts and circumstances giving rise to any of the foregoing events or failures, unless expressly excluded by another clause of this definition, may constitute and/or may be taken into account in determining whether a Material Adverse Effect has occurred or is reasonably likely to occur);

(j)            any litigation arising from or relating to the Merger or the other transactions contemplated by this Agreement;

(k)           with respect to Pozen, to the extent described in the Pozen Disclosure Letter; or

(l)            with respect to Tribute, to the extent described in the Tribute Disclosure Letter;

provided , however , that the effect of the changes or developments described in clauses (a) through (f) above shall not be excluded to the extent that any of the changes or developments referred to therein disproportionately adversely affect such Party and its Subsidiaries, taken as a whole, in comparison to other Persons who operate in the same industry as such Party and its Subsidiaries.

“ Merger ” shall have the meaning ascribed to it in the Recitals.

“ Merger Consideration ” shall have the meaning ascribed to it in Section 2.1(h).

“ Merger Effective Time ” means the time at which the Merger becomes effective in accordance with Section 2.1(c) and the DGCL.

“ Merger   Exchange Agent ” shall have the meaning ascribed to it in Section 2.1(j)(i).

“ NASDAQ ” means the NASDAQ Stock Market LLC.

“ New Pozen Employees ” means Adrian Adams, Andrew Koven and any other Pozen employee to whom Pozen Options or Pozen restricted stock units are granted subsequent to the date hereof.

“ Non-Disclosure Agreement ” means the non-disclosure agreement dated as of February 11, 2015 between Tribute and Pozen, as it may be amended, restated, supplemented or otherwise modified from time to time.

“ OBCA ” means the Business Corporations Act (Ontario) and all regulations made thereunder.

“ Order ” means all judicial, arbitral, administrative, ministerial, departmental or regulatory judgments, injunctions, orders, decisions, rulings, determinations, awards, decrees or similar actions taken by, or applied by, any Governmental Authority (in each case, whether temporary, preliminary or permanent).

“ ordinary course of business ,” or any similar reference, means, with respect to an action taken or to be taken by any Person, that such action is consistent with the past practices of such Person and is taken in the ordinary course of the normal day-to-day business and operations of such Person.
 
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“ Other Pozen Stock-Based Awards ” shall have the meaning ascribed to it in Section 2.1(n)(iii).

“ Outside Date ” means January 31, 2016 or such later date as may be agreed to in writing by the Parties.

“ Parent ” shall have the meaning ascribed to it in the Recitals.

“ Parent Board of Directors ” means the board of directors of Parent.

“ Parent Financing ” shall mean, collectively, (i) the senior secured credit facility of up to $200,000,000 secured by the assets of Parent and each of its Subsidiaries; (ii) the convertible debentures of Parent of up to $75,000,000 secured by the assets of Parent and each of its Subsidiaries and; (iii) the $75,000,000 equity financing of Parent as contemplated by the Share Subscription Agreement between Parent, Pozen, Tribute and certain investors dated even date herewith.

“ Parent Disclosure Letter ” means the disclosure letter dated the date hereof regarding this Agreement that has been delivered by Parent to Pozen and Tribute concurrently with the execution of this Agreement.

“ Parent Distributable Reserves Proposals ” shall have the meaning ascribed to it in Section 5.12(a).

“ Parent Material Subsidiary ” means each Parent Subsidiary set forth in Section 1.1 of the Parent Disclosure Letter, including without limitation US Merger Sub and Can Merger Sub.

“ Parent Parties ” means, collectively, Parent, US Merger Sub and Can Merger Sub and “ Parent Party ” means any one of them.

“ Parent Options ” means options to purchase Parent Shares.

“ Parent Senior Management ” means the individuals set forth in Section 1.4 of the Parent Disclosure Letter.

“ Parent Shares ” means the ordinary shares of $0.001 nominal value per share of Parent.

“ Parent Subscriber Share” means the one Parent Share in issue at the date of this Agreement.

“ Parent Subsidiary ” means a Subsidiary of Parent.

“ Parent Warrants ” means the ordinary share purchase warrants of Parent.

“ Parties ” means the parties to this Agreement and “ Party ” means any one of them.

“ Performance-Based Option ” means the performance-based option issued to John R. Plachetka pursuant to his separation agreement dated May 29, 2015.

“ Permit ” means any lease, license, permit, certificate, consent, order, grant, approval, classification, registration or other authorization of or from any Governmental Authority.

“ Permitted Liens ” means, for any Person or any of its Subsidiaries, as the context requires: (a) any Liens for Taxes not yet due and payable or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in conformity with U.S. GAAP; (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar Liens; (c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation; (d) easements, rights-of-way, covenants, restrictions and other encumbrances incurred in the ordinary course of business that, in the aggregate, are not material in amount and that do not, in any case, materially detract from the value or the use of the property subject thereto; (e) statutory landlords’ Liens and Liens granted to landlords under any lease, (f) licenses of non-material Intellectual Property in the ordinary course of business; (g) any purchase money security interests, equipment leases or similar financing arrangements; (h) any Liens which are disclosed on the most recent consolidated balance sheet of such Person or the notes thereto; (i) any Liens incurred in the ordinary course of business that shall have been released as of the Merger Effective Time and the Arrangement Effective Time and any Liens permitted pursuant to Tribute’s existing credit facilities; and (j) any Liens incurred in the ordinary course of business (and not in connection with the incurrence with indebtedness) that are not material to such Person, its Subsidiaries and their businesses, taken as a whole.

“ Person ” includes an individual, sole proprietorship, corporation, body corporate, incorporated or unincorporated association, syndicate or organization, partnership, limited partnership, limited liability company, unlimited liability company, joint venture, joint stock company, trust, natural person in his or her capacity as trustee, executor, administrator or other legal representative, a government or Governmental Authority or other entity, whether or not having legal status.

“ PHIPA ” shall have the meaning ascribed to it in Section 3.1(s)(i).
 
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“ PIPEDA ” shall have the meaning ascribed to it in Section 3.1(s)(i).

“ Plan of Arrangement ” means the plan of arrangement substantially in the form and content set out in Schedule II hereto, as the same may be amended, supplemented or varied from time to time in accordance with Article 5 of the Plan of Arrangement or at the direction of the Court in the Final Order with the prior written consent of Tribute and Pozen, each acting reasonably.

“ PMPRB ” shall have the meaning ascribed to it in Section 3.1(s)(i).

“ Pozen ” shall have the meaning ascribed to it in the Recitals.

“ Pozen Acquisition Agreement ” means any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, transaction agreement, implementation agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other agreement, arrangement or undertaking, in all cases constituting or related to, or that would reasonably be expected to lead to, a Pozen Acquisition Proposal; provided that a confidentiality agreement entered into in accordance with the terms of Section 6.1(e)(ii)(A) shall not be deemed a Pozen Acquisition Agreement hereunder.

“ Pozen Acquisition Proposal ” means, at any time, whether or not in writing, any proposal or offer with respect to:

(a)           the direct or indirect acquisition or purchase by any Person or group of Persons acting jointly or in concert of any capital stock or other voting securities, or securities convertible into or exercisable or exchangeable for any Pozen Common Shares or other voting securities of Pozen or any of its Subsidiaries, representing twenty percent (20%) or more of the outstanding voting securities of Pozen or such Subsidiary;

(b)           the direct or indirect acquisition or purchase by any Person or group of Persons acting jointly or in concert of any assets of Pozen and/or one or more of its Subsidiaries (including equity interests of any Subsidiary of Pozen), which assets individually or in the aggregate contribute twenty percent (20%) or more of the consolidated revenue or represent twenty percent (20%) or more of the total asset value of Pozen and its Subsidiaries taken as a whole (in each case based on the consolidated financial statements of Pozen most recently filed prior to such time as part of the Pozen Public Disclosure Record) (or any lease, license, royalty, long-term supply agreement or other arrangement having a similar economic effect); or

(c)           a merger, consolidation, recapitalization, reorganization, or other business combination (including by way of plan of arrangement) involving Pozen or any of its Subsidiaries,

for each of (a) through (c) above, whether in a single transaction or a series of related transactions, in each case excluding the Merger and Arrangement and the other transactions contemplated by this Agreement and excluding any transaction between only Pozen and/or one or more of its Subsidiaries.

“ Pozen Annual Financial Statements ” means the annual audited consolidated financial statements of Pozen as of and for the years ended December 31, 2014, 2013 and 2012, together with the notes thereto.

“ Pozen Board of Directors ” means the board of directors of Pozen.

“ Pozen   Certificate ” shall have the meaning ascribed to it in Section 2.1(h).

“ Pozen Change of Recommendation ” means any of the following:

(a)           the Pozen Board of Directors withholds, withdraws, modifies, changes or qualifies in a manner adverse to Tribute the Pozen Recommendation;

(b)           the Pozen Board of Directors approves or recommends any Pozen Acquisition Proposal;

(c)           Pozen enters into a Pozen Acquisition Agreement; or

(d)           Pozen or the Pozen Board of Directors publicly proposes or announces its intention to do any of the foregoing.

“ Pozen Change of Recommendation Notice ” means a written notice provided by Pozen to Tribute delivered promptly (and in any event, within twenty-four (24) hours) after the determination by the Pozen Board of Directors that (a) a Pozen Intervening Event has occurred, advising Tribute that the Pozen Board of Directors has determined that a Pozen Intervening Event has occurred and, as a result thereof, the Pozen Board of Directors intends to effect a Pozen Change of Recommendation, which written notice shall set forth in the reasonable detail the facts and circumstances related to such Pozen Intervening Event, or (b) a Pozen Superior Proposal exists, advising Tribute that Pozen has received a Pozen Superior Proposal and including written notice of the determination of the Pozen Board of Directors that such Pozen Acquisition Proposal constitutes a Pozen Superior Proposal.

“ Pozen Common Share ” means a share of common stock, par value $0.001 per share, of Pozen.
 
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“ Pozen Disclosure Letter ” means the disclosure letter dated the date hereof regarding this Agreement that has been delivered by Pozen to Tribute prior to the execution of this Agreement.

“ Pozen Distributable Reserves Resolution ” shall have the meaning ascribed to it in Section 5.12(a)(i).

“ Pozen Employment Agreement ” shall have the meaning ascribed to it in Section 3.1(p)(i).

“ Pozen Fairness Opinions ” means the opinions of each of the Pozen Financial Advisors to the effect that, based upon and subject to the assumptions, limitations, qualifications and conditions set forth therein, as of the date of such opinion, taking into account the Merger, the Exchange Ratio was fair, from a financial point of view, to the Pozen Stockholders (excluding Parent, Tribute and their respective Affiliates).

“ Pozen Financial Advisors ” means collectively, Guggenheim Securities, LLC and Deutsche Bank Securities Inc.

“ Pozen Financial Statements ” means the Pozen Annual Financial Statements and the Pozen Interim Financial Statements.

“ Pozen Intellectual Property ” shall have the meaning ascribed to it in Section 3.1(r)(i).

“ Pozen Interim Financial Statements ” means the unaudited consolidated financial statements of Pozen as of and for the three (3) months ended March 31, 2015, together with the notes thereto.

“ Pozen Intervening Event ” means a material change, effect, development, circumstance, condition, state of facts, event or occurrence occurring or arising after the date of this Agreement (a) that was not known to the Pozen Board of Directors or the individuals listed in Section 1.1 of the Pozen Disclosure Letter, or the material consequences of which (based on facts known to the Pozen Board of Directors or the individuals listed in Section 1.1 of the Pozen Disclosure Letter, as of the date of this Agreement) were not reasonably foreseeable, as of the date of this Agreement and (b) that does not relate to or involve any Pozen Acquisition Proposal.

“ Pozen Letter of Transmittal ” shall have the meaning ascribed to it in Section 2.1(j)(ii).

“ Pozen Material Contract ” has the meaning ascribed to it in Section 3.1(n)(i).

“ Pozen Meeting ” means the special meeting of Pozen Stockholders, including any adjournment or postponement thereof, to be called and held in accordance with this Agreement for the purpose of obtaining the Pozen Stockholder Approval.

“ Pozen Option ” means an option issued by Pozen to purchase Pozen Common Shares.

“ Pozen Owned Real Property ” shall have the meaning ascribed to it in Section 3.1(m).

“ Pozen Plan ” means each employee benefit and compensation plan, agreement, program or arrangement, whether written or unwritten, including, without limitation, any “employee benefit plan” within the meaning of Section 3(3) of ERISA (whether or not subject to ERISA), any option, restricted share unit, deferred share unit, stock purchase, or other stock or stock-based incentive plan, cash bonus or incentive compensation arrangement, retirement or deferred compensation plan, profit sharing plan, unemployment, change in control or severance compensation plan or fringe benefit, cafeteria, health and welfare plan, or Pozen Employment Agreement, or other benefit plan, policy, agreement or amendment with respect to which Pozen or any of its Subsidiaries participates in, is a party or contributes to, or with respect to which Pozen or any of its Subsidiaries has or may have any liability (contingent or otherwise), including as a result of any ERISA Affiliate.

“ Pozen Product ” shall have the meaning ascribed to it in Section 3.1(s)(ix).

“ Pozen Proxy Statement ” shall have the meaning ascribed to it in Section 2.4(a).

“ Pozen Public Disclosure Record ” means all documents filed by or on behalf of Pozen on the EDGAR system in the period from December 31, 2012 to the date hereof.

“ Pozen Real Property Leases ” shall have the meaning ascribed to it in Section 3.1(m).

“ Pozen Recommendation ” means the unanimous recommendation of the Pozen Board of Directors that Pozen Stockholders approve this Agreement.

“ Pozen Senior Management ” means the individuals set forth in Section 1.4 of the Pozen Disclosure Letter.

“ Pozen Severance Plan ” shall have the meaning ascribed to it in Section 5.10(b).

“ Pozen Share Awards ” shall have the meaning ascribed to it in Section 2.1(n)(iii).
 
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“ Pozen Share Plan ” means the 2010 Equity Compensation Plan of Pozen, as amended and restated, and any predecessor plans.

“ Pozen Stockholder ” means a holder of one or more Pozen Common Shares.

“ Pozen Stockholder Approval ” means adoption of this Agreement by affirmative vote or consent of Pozen Stockholders holding a majority of the Pozen Common Shares outstanding and entitled to vote.

“ Pozen Subsidiary ” means a Subsidiary of Pozen.

“ Pozen Superior Proposal ” means an unsolicited bona fide written Pozen Acquisition Proposal ( provided , however , that, for the purposes of this definition, all references to “twenty percent (20%)” in the definition of “Pozen Acquisition Proposal” as it relates to securities of Pozen shall be changed to “fifty percent (50%)” and references to “twenty percent (20%),” as regards the assets of Pozen, shall be changed to “fifty percent (50%)”) made by a Person or Persons acting jointly or in concert (other than Parent, Tribute, Pozen and any of their respective Affiliates) and which, or in respect of which:

(a)           the Pozen Board of Directors has determined in good faith, after consultation with its financial advisors and outside legal counsel:

(i)            would, if consummated, taking into account all of the terms and conditions of such Pozen Acquisition Proposal (but not assuming any risk of non-completion), result in a transaction which is more favorable to Pozen Stockholders from a financial point of view than the Merger and Arrangement;

(ii)           is reasonably capable of being completed in accordance with its terms, without undue delay, taking into account all legal, financial, regulatory and other aspects of such Pozen Acquisition Proposal and the Person or Persons making such Pozen Acquisition Proposal; and

(iii)          that funds, securities or other consideration necessary for the Pozen Acquisition Proposal are or are reasonably likely to be available; and

(b)           in the case of a Pozen Acquisition Proposal involving Pozen Common Shares, is made available to all of the Pozen Stockholders on the same terms and conditions.

“ Pozen Termination Fee ” shall have the meaning ascribed to it in Section 7.2(a).

“ Pozen Termination Fee Event ” shall have the meaning ascribed to that term in Section 7.2(b).

“ Proceeding ” means a court, administrative, regulatory or similar proceeding (whether civil, quasi-criminal or criminal), arbitration or other dispute settlement procedure, investigation or inquiry before or by any Governmental Authority or any action, suit, demand, arbitration, charge, indictment, hearing or other similar civil, quasi-criminal or criminal, administrative or investigative matter or proceeding.

“ Reduced Pozen Termination Fee ” shall have the meaning ascribed to it in Section 7.3(a).

“ Reduced Pozen Termination Fee Event ” shall have the meaning ascribed to it in Section 7.3(b).

“ Regulatory Authority ” means the FDA, Health Canada and any other federal, state, provincial, local or foreign Governmental Authority with jurisdiction over the authorization, approval, marketing, advertising, sale, pricing, storage, distribution, use, handling and control, safety, efficacy, reliability or manufacturing of pharmaceutical products, including, but not limited to, human drugs, biologics and drug combination products.

“ Regulatory Authorization ” means any registration, authorization, approval, clearance, license, permit, certificate or exemption issued by any Regulatory Authority or Governmental Authority (including new drug applications, new drug submissions, investigational new drug applications, clinical trial applications, manufacturing approvals and authorizations, pricing and reimbursement approvals, labeling approvals, registration notifications or their foreign equivalent, including but not limited to Canadian notices of compliance, drug identification numbers, new drug submissions, abbreviated new drug submissions, supplemental new drug submissions, drug establishment license applications and licenses, medical device establishment, site license and investigational testing applications and resulting licenses) that are required for the research, development, manufacture, distribution, marketing, storage, transportation, use and sale of the products of Pozen, Tribute and their respective Subsidiaries.

“ Regulatory Guidelines ” means applicable rules, guidance, manuals, protocols, codes, guidelines, treaties, policies, notices, directions, decrees, judgments, awards or requirements, in each case, of any Regulatory Authority, to the extent that the foregoing do not have the force of law.
 
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“ Release ” means any release, spill, leak, pumping, addition, pouring, emission, emptying, discharge, migration, injection, escape, leaching, disposal, dumping, deposit, spraying, burial, abandonment, seepage, placement or introduction of a Hazardous Substance, whether accidental or intentional, or sudden, intermittent, inadvertent or gradual, into, onto, through, above or under the Environment.

“ Relevant Competition Laws ” shall have the meaning ascribed to it in Section 5.2(b).

“ Representatives ” means, collectively, with respect to a Person, any officers, directors, employees, consultants, advisors, agents or other representatives (including legal counsel, accountants, investment bankers and financial advisors) of that Person or any Subsidiary of that Person.

“ Required Information ” means for each of Pozen and Tribute (a) audited annual consolidated financial statements for the three (3) fiscal years most recently ended at least sixty (60) days prior to the Closing Date, (b) quarterly interim unaudited consolidated financial statements for each fiscal quarter (subsequent to the audited annual consolidated financial statements for the most recently ended fiscal year) ended at least forty (40) days prior to the Closing Date, in the case of clauses (a) and (b), with comparative financial information for the equivalent period of the prior year, (c) the pro forma financial statements to be included in the definitive Pozen Proxy Statement and Registration Statement on Form S-4 that is mailed to Pozen Stockholders and the Tribute Circular to be mailed to Tribute Shareholders, provided that if any financial statements are required to be delivered pursuant to clauses (a) or (b) for periods subsequent to the financial statements included in such Pozen Proxy Statement and Registration Statement on Form S-4, the Required Information shall include information regarding Pozen, Tribute and their respective Subsidiaries required for Parent to prepare pro forma financial statements for such subsequent periods and the twelve-month period ending on the last day of the most recent such period and (d) information regarding Pozen and Tribute that is both (i) customarily included regarding an acquired company in information memoranda and other syndication materials for senior secured term loan facilities, and (ii) required to have been provided in Pozen’s or Tribute’s annual, quarterly or current reports filed pursuant to the terms of the 1934 Exchange Act or Canadian Securities Laws.

“ Required Regulatory Approvals ” means those certificates, no-action letters, notices, sanctions, rulings, consents, orders, exemptions, permits, licenses, waivers, early termination authorizations, clearances, written confirmations of no intention to initiate legal proceedings and other approvals (including the lapse, without objection, of a prescribed time under a statute or regulation that states that a transaction may be implemented if a prescribed time lapses following the giving of notice without an objection being made) of Governmental Authorities as set forth in Schedule I hereto.

“ Restraint ” shall have the meaning ascribed to it in Section 5.2(e).

“ Restricted Pozen Share ” shall have the meaning ascribed to it in Section 2.1(n)(ii).

“ SEC ” means the United States Securities and Exchange Commission or any successor entity.

“Section 409A RSUs ” shall have the meaning ascribed to it in Section 2.1(n)(iii).

“ SEDAR ” means the System for Electronic Document Analysis Retrieval.

“ Subsidiary ” means, with respect to a specified entity, any:

(a)           corporation of which issued and outstanding voting securities of such corporation to which are attached more than fifty percent (50%) of the votes that may be cast to elect directors of the corporation (whether or not shares of any other class or classes will or might be entitled to vote upon the happening of any event or contingency) are at all times owned by such specified entity;

(b)           partnership, unlimited liability company, joint venture or other similar entity in which such specified entity has more than fifty percent (50%) of the equity interests and the power to direct the policies, management and affairs thereof; and

(c)           Subsidiary (as defined in clauses (a) and (b) above) of any Subsidiary (as so defined) of such specified entity.

 “ US Surviving Company ” shall have the meaning ascribed to it in Section 2.1(b).

“ Tax ” or “ Taxes ” means all taxes, dues, duties, rates, imposts, fees, levies, other assessments, tariffs, charges or obligations of the same or similar nature, however denominated, imposed, assessed or collected by any Governmental Authority, including (a) all income taxes, including any tax on or based on net income, gross income, income as specifically defined, earnings, gross receipts, capital, capital gains, profits, business royalty or selected items of income, earnings or profits, and specifically including any federal, provincial, state, territorial, county, municipal, local or foreign taxes, state profit share taxes, windfall or excess profit taxes, capital taxes, royalty taxes, production taxes, payroll taxes, health taxes, employment taxes, withholding taxes (including all withholdings on amounts paid to or by the relevant Person), sales taxes, use taxes, goods and services taxes, custom duties, value added taxes, ad valorem taxes, excise taxes, alternative or add-on minimum taxes, franchise taxes, gross receipts taxes, license taxes, occupation taxes, real and personal property taxes, land transfer taxes, severance taxes, capital stock taxes, stamp taxes, anti-dumping taxes, countervailing taxes, occupation taxes, environment taxes, transfer taxes, and employment or unemployment insurance premiums, social insurance premiums and worker’s compensation premiums and pension (including Canada Pension Plan) payments, surtaxes, harmonized sales tax, abandoned or unclaimed property liabilities (escheat) and other taxes, fees, imposts, assessments or charges of any kind whatsoever; (b) any tax imposed, assessed, collected or payable pursuant to any tax-sharing agreement or any other contract relating to the sharing or payment of any such tax, levy, assessment, tariff, duty, deficiency or fee; and (c) any liability for any of the foregoing of a transferee, successor, guarantor, or by contract, or by operation of law, and in each of clauses (a)-(c), together with any interest, penalties, additional taxes, fines and other charges and additions that may become payable in respect thereof.
 
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“ Tax Act (Canada) ” means the Income Tax Act (Canada), as the same may be amended, including the regulations promulgated thereunder.

“ Tax   Returns ” means all reports, forms, elections, designations, schedules, statements, estimates, declarations of estimated tax, information statements and returns relating to, or required to be filed with any Governmental Authority in connection with, any sales, excise, income or franchise Taxes.

“ Termination Fee ” means the Pozen Termination Fee or the Tribute Termination Fee, as applicable.

“ Tribute ” shall have the meaning ascribed to it in the Recitals.

“ Tribute Acquisition Agreement ” means any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, transaction agreement, implementation agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other agreement, arrangement or undertaking, in all cases constituting or related to, or that would reasonably be expected to lead to, a Tribute Acquisition Proposal; provided that a confidentiality agreement entered into in accordance with the terms of Section 6.3(e)(ii) shall not be deemed a Tribute Acquisition Agreement hereunder.

“ Tribute Acquisition Proposal ” means, at any time, whether or not in writing, any proposal or offer with respect to:

(a)           the direct or indirect acquisition or purchase by any Person or group of Persons acting jointly or in concert of any capital stock or other voting securities, or securities convertible into or exercisable or exchangeable for any Tribute Common Shares or other voting securities of Tribute or any of its Subsidiaries, representing twenty percent (20%) or more of the outstanding voting securities of Tribute or such Subsidiary;

(b)           the direct or indirect acquisition or purchase by any Person or group of Persons acting jointly or in concert of any assets of Tribute and/or one or more of its Subsidiaries (including equity interests of any Subsidiary of Tribute), which assets individually or in the aggregate contribute twenty percent (20%) or more of the consolidated revenue or represent twenty percent (20%) or more of the total asset value of Tribute and its Subsidiaries taken as a whole (in each case based on the consolidated financial statements of Tribute most recently filed prior to such time as part of the Tribute Public Disclosure Record) (or any lease, license, royalty, long-term supply agreement or other arrangement having a similar economic effect); or

(c)           a merger, consolidation, recapitalization, reorganization, or other business combination (including by way of plan of arrangement) involving Tribute or any of its Subsidiaries,

for each of (a) through (c) above, whether in a single transaction or a series of related transactions, in each case excluding the Merger and Arrangement and the other transactions contemplated by this Agreement and excluding any transaction between only Tribute and/or one or more of its Subsidiaries.

“ Tribute Annual Financial Statements ” means the audited annual consolidated financial statements of Tribute as of and for the years ended December 31, 2014, 2013 and 2012, together with the notes thereto.

“ Tribute Board of Directors ” means the board of directors of Tribute.

“ Tribute Broker Warrants ” means the Tribute Common Share purchase warrants issued in certificated form expiring on May 21, 2017.

“ Tribute Change of Recommendation ” means any of the following:

(a)           the Tribute Board of Directors withholds, withdraws, modifies, changes or qualifies in a manner adverse to Pozen the Tribute Recommendation;

(b)           the Tribute Board of Directors approves or recommends any Tribute Acquisition Proposal;

(c)           Tribute enters into a Tribute Acquisition Agreement; or
 
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(d)           Tribute or the Tribute Board of Directors publicly proposes or announces its intention to do any of the foregoing.

“ Tribute Change of Recommendation Notice ” means a written notice provided by Tribute to Pozen delivered promptly (and in any event, within twenty-four (24) hours) after the determination by the Tribute Board of Directors that (a) a Tribute Intervening Event has occurred, advising Pozen that the Tribute Board of Directors has determined that a Tribute Intervening Event has occurred and, as a result thereof, the Tribute Board of Directors intends to effect a Tribute Change of Recommendation, which written notice shall set forth in the reasonable detail the facts and circumstances related to such Tribute Intervening Event, or (b) a Tribute Superior Proposal exists, advising Pozen that Tribute has received a Tribute Superior Proposal and including written notice of the determination of the Tribute Board of Directors that such Tribute Acquisition Proposal constitutes a Tribute Superior Proposal.

“ Tribute   Circular ” means the notice of meeting and accompanying information circular (including all schedules, appendices and exhibits thereto) to be sent to the Tribute Shareholders in connection with the Tribute Meeting, including any amendments or supplements thereto.

“ Tribute Common Shares ” means the common shares without par value in the capital of Tribute.

“ Tribute Compensation Options ” means the compensation options of Tribute which expire on July 16, 2016, each of which is exercisable into one (1) Tribute Common Share and one-half (1/2) of one (1) Tribute Indenture Warrant.

“ Tribute Compensation Optionholders ” means the holders from time to time of the Tribute Compensation Options.

“ Tribute Disclosure Letter ” means the disclosure letter dated the date hereof regarding this Agreement that has been delivered by Tribute to Pozen prior to the execution of this Agreement.

“ Tribute Dissent Rights ” shall have the meaning ascribed thereto in Section 2.2(b).

“ Tribute Dissenting Shareholders ” shall have the meaning ascribed thereto in the Plan of Arrangement.

“ Tribute Distributable Reserves Resolution ” shall have the meaning ascribed thereto in Section 5.12(a)(ii).

“ Tribute Employment Agreement ” shall have the meaning ascribed to it in Section 3.2(p)(i).

“ Tribute   Indenture Warrants ” means, collectively, the Tribute Common Share purchase warrants expiring on July 15, 2016 issued or, in the case of the Tribute Indenture Warrants to be issued on exercise of the Tribute Compensation Options, issuable, pursuant to the Tribute Warrant Indenture.

“ Tribute Intellectual Property ” shall have the meaning ascribed to it in Section 3.2(r)(i).

“ Tribute Fairness Opinion ” means the opinion of Bloom Burton & Co. to the effect that, as of the date of such opinion and based upon and subject to the assumptions, procedures, factors, limitations and qualifications set forth therein, the consideration to be received by the Tribute Shareholders under the Arrangement is fair, from a financial point of view, to such Tribute Shareholders.

“ Tribute Financial Advisors ” means, collectively, Bloom Burton & Co. and KES 7 Capital Inc.

“ Tribute Financial Statements ” means collectively, the Tribute Annual Financial Statements and the Tribute Interim Financial Statements.

“ Tribute Interim Financial Statements ” means the unaudited interim financial statements of Tribute for the three (3) month period ended March 31, 2015, together with the notes thereto.

“ Tribute Intervening Event ” means a material change, effect, development, circumstance, condition, state of facts, event or occurrence occurring or arising after the date of this Agreement (a) that was not known to the Tribute Board of Directors or the individuals listed in Section 1.1 of the Tribute Disclosure Letter, or the material consequences of which (based on facts known to the Tribute Board of Directors or the individuals listed in Section 1.1 of the Tribute Disclosure Letter, as of the date of this Agreement) were not reasonably foreseeable, as of the date of this Agreement and (b) that does not relate to or involve any Tribute Acquisition Proposal.

“ Tribute Material Contract ” has the meaning ascribed to it in Section 3.2(n)(i).

“ Tribute Meeting ” means the special meeting of the Tribute Shareholders, including any adjournment or postponement thereof, to be called and held in accordance with this Agreement and the Interim Order for the purpose of considering and, if thought fit, approving the Arrangement Resolution.

“ Tribute Option Consideration ” shall have the meaning ascribed to it in the Plan of Arrangement.
 
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“Tribute Optionholder” means a holder of one or more Tribute Options.

“ Tribute Options ” means, at any time, rights to acquire Tribute Common Shares granted pursuant to the Tribute Stock Option Plan which are, at such time, outstanding and unexercised, whether or not vested.

“ Tribute Owned Real Property ” shall have the meaning ascribed to it in Section 3.2(m).

“ Tribute Plan ” means each employee benefit and compensation plan, agreement, program or arrangement, whether written or unwritten, including, without limitation, any “employee benefit plan” within the meaning of Section 3(3) of ERISA (whether or not subject to ERISA), any option, restricted share unit, deferred share unit, stock purchase, or other stock or stock-based incentive plan, cash bonus or incentive compensation arrangement, retirement or deferred compensation plan, profit sharing plan, unemployment, change in control or severance compensation plan or fringe benefit, cafeteria, health and welfare plan, or Tribute Employment Agreement, or other benefit plan, policy, agreement or amendment with respect to which Tribute or any of its Subsidiaries participates in, is a party or contributes to, or with respect to which Tribute or any of its Subsidiaries has or may have any liability (contingent or otherwise), including as a result of any ERISA Affiliate.

“ Tribute Public Disclosure Record ” means all documents filed by or on behalf of Tribute on SEDAR or EDGAR in the period from December 31, 2012 to the date hereof.

“ Tribute Product ” shall have the meaning ascribed to it in Section 3.2(s)(ix).

“ Tribute Real Property Leases ” shall have the meaning ascribed to it in Section 3.2(m).

“ Tribute Recommendation ” means the unanimous recommendation of the Tribute Board of Directors that Tribute Shareholders vote in favour of the Arrangement Resolution.

“ Tribute Senior Management ” means the individuals set forth in Section 1.4 of the Tribute Disclosure Letter.

“ Tribute   Series B Warrants ” means, collectively, the Tribute Common Share purchase warrants issued in certificated form and expiring on February 27, 2018, March 5, 2018 and March 11, 2018, as applicable.

“ Tribute   Series K Warrants ” means, collectively, the Tribute Common Share purchase warrants issued in certificated form and expiring on September 20, 2018.

“ Tribute   Series M Warrants ” means, collectively, the Tribute Common Share purchase warrants issued in certificated form and expiring on May 11, 2017.

“ Tribute   Series S Warrants ” means collectively, the Tribute Common Share purchase warrants issued in certificated form and expiring on August 8, 2018, February 4, 2021 and October 1, 2021, as applicable.

“ Tribute Severance Plan ” shall have the meaning ascribed to it in Section 5.10(b).

“ Tribute Shareholder ” means a holder of one or more Tribute Common Shares.

“ Tribute Shareholder Approval ” means the affirmative vote of at least 66 2/3% of the votes cast on the Arrangement Resolution by Tribute Shareholders present in person or represented by proxy at the Tribute Meeting.

“ Tribute Stock Option Plan ” means the stock option plan approved and ratified by the Tribute Shareholders on June 20, 2014, as amended from time to time.

“ Tribute Superior Proposal ” means an unsolicited bona fide written Tribute Acquisition Proposal ( provided , however , that, for the purposes of this definition, all references to “twenty percent (20%)” in the definition of “Tribute Acquisition Proposal” as it relates to securities of Tribute shall be changed to “fifty percent (50%)” and references to “twenty percent (20%),” as regards the assets of Tribute, shall be changed to “fifty percent (50%)”) made by a Person or Persons acting jointly or in concert (other than Parent, Tribute, Pozen and any of their respective Affiliates) and which, or in respect of which:

(a)           the Tribute Board of Directors has determined in good faith, after consultation with its financial advisors and outside legal counsel:

(i)            would, if consummated, taking into account all of the terms and conditions of such Tribute Acquisition Proposal (but not assuming any risk of non-completion), result in a transaction which is more favorable to Tribute Shareholders from a financial point of view than the Merger and the Arrangement;
 
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(ii)           is reasonably capable of being completed in accordance with its terms, without undue delay, taking into account all legal, financial, regulatory and other aspects of such Tribute Acquisition Proposal and the Person or Persons making such Tribute Acquisition Proposal; and

(iii)          that funds, securities or other consideration necessary for the Tribute Acquisition Proposal are or are reasonably likely to be available; and

(b)           in the case of a Tribute Acquisition Proposal involving Tribute Common Shares, is made available to all of the Tribute Shareholders on the same terms and conditions.

“ Tribute Termination Fee ” shall have the meaning ascribed to that term in Section 7.2(a).

“ Tribute Termination Fee Event ” shall have the meaning ascribed to that term in Section 7.2(c).

“Tribute Warrantholder” means a holder of one or more Tribute Warrants.

“ Tribute Warrant Indenture ” means the warrant indenture dated July 15, 2014 between Tribute and Equity Financial Trust Company providing for the issuance of Tribute Indenture Warrants .

“ Tribute Warrants ” means collectively, (i) the Tribute Indenture Warrants outstanding as of the Arrangement Effective Time and those issuable pursuant to the Tribute Compensation Options; (ii) the Tribute Series B Warrants outstanding as of the Arrangement Effective Time; (iii) the Tribute Series K Warrants outstanding as of the Arrangement Effective Time; (iv) the Tribute Series M Warrants outstanding as of the Arrangement Effective Time; (v) the Tribute Series S Warrants outstanding as of the Tribute Effective Time; and (vi) the Tribute Broker Warrants outstanding as of the Arrangement Effective Time.

 “ TSX ” means the Toronto Stock Exchange.

“ TSXV ” means the TSX Venture Exchange.

“ U.S. GAAP ” means accounting principles generally accepted in the United States, consistently applied.

“ U.S. Securities Laws ” means the 1933 Securities Act, the 1934 Exchange Act and all other state and federal securities Laws and the rules, regulations and published policies made thereunder.

“ US Merger Sub ” shall have the meaning ascribed to it in the Recitals.

“ Voting Agreements ” shall have the meaning ascribed to it in the Recitals.

1.2           Currency

Except where otherwise specified, all references to currency herein are to lawful money of the United States of America and “$” refers to U.S. dollars.

1.3           Interpretation Not Affected by Headings

The division of this Agreement into Articles and sections and the insertion of a table of contents and headings are for convenience of reference only and do not affect the construction or interpretation of this Agreement. The terms “this Agreement,” “hereof,” “herein,” “hereunder” and similar expressions refer to this Agreement, including the Schedules hereto, and not to any particular Article, section or other portion hereof. Unless something in the subject matter or context is clearly inconsistent therewith, references herein to an Article, section or schedule by number or letter or both are to that Article, section or schedule in this Agreement.

1.4           Knowledge and Disclosure

Any reference in this Agreement to the “knowledge” or the “awareness” of Tribute means the actual knowledge, information and belief of the Tribute Senior Management, in their capacities as officers or directors of Tribute and not in their personal capacities or in any other capacity, after making reasonable inquiry regarding the relevant matter, and does not include any knowledge or awareness of any other individual. Any reference in this Agreement to the “knowledge” or the “awareness” of Parent means the actual knowledge, information and belief of the Parent Senior Management, in their capacities as officers or directors of Parent and not in their personal capacities or in any other capacity, after making reasonable inquiry regarding the relevant matter, and does not include any knowledge or awareness of any other individual. Any reference in this Agreement to the “knowledge” or the “awareness” of Pozen means the actual knowledge, information and belief of Pozen Senior Management, in their capacities as officers or directors of Pozen and not in their personal capacities or in any other capacity, after making reasonable inquiry regarding the relevant matter, and does not include any knowledge or awareness of any other individual.
 
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1.5           Extended Meanings, Etc.

Unless the context otherwise requires, words implying only the singular number also include the plural and vice versa; words importing any gender include all genders. The terms “including” or “includes” and similar terms of inclusion, unless expressly modified by the words “only” or “solely,” mean “including without limiting the generality of the foregoing” and “includes without limiting the generality of the foregoing.” Unless something in the subject matter or context is clearly inconsistent therewith, any Contract, instrument, Law or Order defined or referred to herein means such Contract, instrument, Law or Order as from time to time amended, restated, supplemented or otherwise modified, including, in the case of Contracts or instruments, by waiver or consent and, in the case of Laws, by succession of comparable successor Laws, and all attachments thereto and instruments incorporated therein and, in the case of statutory Laws, all rules and regulations made thereunder.

1.6           Date of Any Action

If the date on which any action is required to be taken hereunder by any of the Parties is not a Business Day, then such action will be required to be taken on the next succeeding day which is a Business Day.

1.7           Schedules

The following are the Schedules to this Agreement and are hereby incorporated by reference into this Agreement and form an integral part hereof:

Schedule I – Required Regulatory Approvals
Schedule II – Plan of Arrangement
Schedule III – Form of Arrangement Resolutions
Schedule IV – Form of Voting Agreement

ARTICLE 2

THE MERGER AND ARRANGEMENT

2.1           The Merger

(a)           Parent, Ltd2, US Merger Sub, Pozen, Can Merger Sub, and Tribute agree that the Merger shall be implemented in accordance with and subject to the terms and conditions contained in this Agreement.

(b)           On the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, on the Closing Date, US Merger Sub shall be merged with and into Pozen. At the Merger Effective Time, the separate corporate existence of US Merger Sub shall cease and Pozen shall continue as the surviving company in the Merger (the “ US   Surviving Company ”).

(c)           Subject to the provisions of this Agreement, as soon as practicable on the Closing Date, the parties to the Merger shall file with the Secretary of State of the State of Delaware the Certificate of Merger , executed and acknowledged in accordance with the relevant provisions of the DGCL, and, as soon as practicable on or after the Closing Date, shall make all other filings required under the DGCL or by the Secretary of State of the State of Delaware in connection with the Merger. The Merger shall become effective at the time that the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware, or at such later time as Pozen, US Merger Sub and Tribute shall agree and specify in the Certificate of Merger. At and immediately after the Merger Effective Time, the Merger will have the effects set forth in the Certificate of Merger and the DGCL.

(d)           At the Merger Effective Time, the certificate of incorporation and by-laws of US Merger Sub in effect immediately prior to the Merger Effective Time shall constitute those of the US Surviving Company, until thereafter changed or amended as provided therein or by applicable Law.

(e)           The directors of the US Surviving Company upon completion of the Merger shall, until the earlier of their resignation or removal or until their respective successors are duly appointed, elected and qualified, as the case may be, consist of the directors of US Merger Sub prior to the Merger Effective Time. The officers of US Merger Sub immediately prior to the Merger Effective Time shall be the officers of the US Surviving Company until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified, as the case may be.

(f)            At the Merger Effective Time, the effect of the Merger shall be as provided in § 259 of the DGCL, including any regulations or rules promulgated thereunder. Without limiting the generality of the foregoing, and subject thereto, at the Merger Effective Time, all the property, rights, privileges, immunities, powers and franchises of Pozen and US Merger Sub shall vest in the US Surviving Company, and all debts, liabilities, obligations, restrictions, disabilities and duties of Pozen and US Merger Sub shall become the debts, liabilities, obligations, restrictions, disabilities and duties of the US Surviving Company.
 
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(g)           At the Merger Effective Time, by virtue of the Merger and without any action on the part of the Parties or any of their respective shareholders, all shares of common stock, par value $0.001 per share, of US Merger Sub issued and outstanding immediately prior to the Merger Effective Time, and all rights in respect thereof, shall be cancelled and US Surviving Company shall issue an equivalent number of fully paid shares of common stock, par value $0.001 per share, all of which shares shall be held by Holdco, and which shall constitute the only outstanding shares of capital stock of US Surviving Company.

(h)           At the Merger Effective Time, by virtue of the Merger and without any action on the part of the Parties or any of their respective shareholders, each Pozen Common Share issued and outstanding immediately prior to the Merger Effective Time shall be converted into the right to receive from Parent or US Merger Sub one (1) fully paid and non-assessable Parent Share (the “ Merger Consideration ”). All such Pozen Common Shares, when so converted, shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of a certificate (or evidence of shares in book-entry form) that immediately prior to the Merger Effective Time represented any such Pozen Common Shares (each, a “ Pozen Certificate ”) shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration, including the right to receive, pursuant to Section 2.1(l), cash in lieu of fractional Parent Shares, if any. Notwithstanding the foregoing, if, between the date of this Agreement and the Merger Effective Time, the outstanding Pozen Common Shares or Parent Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend (including any dividend or distribution of securities convertible into Parent Shares), subdivision, reclassification, recapitalization, split, combination or exchange of shares, or any similar event shall have occurred, then any number or amount contained herein which is based upon the number of Pozen Common Shares or Parent Shares, as the case may be, will be appropriately adjusted to provide to Pozen and the holders of Pozen Common Shares the same economic effect as contemplated by this Agreement prior to such event.

(i)            Each Parent Share, as issued and outstanding immediately prior to the Effective Time, shall remain issued and outstanding and shall not be affected by the Merger, except for the Parent Subscriber Share which shall be acquired by Parent immediately following the Effective Time for nil consideration and cancelled.

(j)            The exchange of Pozen Certificates shall be effected as follows:

(i)            Prior to the Merger Effective Time, Pozen shall appoint a bank or trust company reasonably acceptable to Tribute to act as exchange agent (the “ Merger Exchange Agent ”) for the delivery of the Merger Consideration. At or prior to the Merger Effective Time, Parent shall issue, fully paid, the Parent Shares to be delivered as Merger Consideration and deposit with the Merger Exchange Agent, for the benefit of the holders of Pozen Certificates, for exchange in accordance with this ARTICLE 2 through the Merger Exchange Agent, the aggregate cash consideration for fractional shares and certificates representing the Parent Shares to be delivered as Merger Consideration (or, if uncertificated Parent Shares will be delivered, Parent shall make appropriate alternative arrangements).

(ii)           As promptly as reasonably practicable after the Merger Effective Time (and in any event within four (4) Business Days after the Merger Effective Time), Parent shall cause the Merger Exchange Agent to mail to each holder of record of Pozen Common Shares, a form of letter of transmittal (the “ Pozen Letter of Transmittal ”) which shall specify that delivery shall be effected, and risk of loss and title to the Pozen Certificates shall pass, only upon delivery of the Pozen Certificates to the Merger Exchange Agent, shall be in such form and have such other provisions (including customary provisions with respect to delivery of an “agent’s message” with respect to shares held in book-entry form) as Pozen may specify acting reasonably, and shall be prepared prior to the Closing, together with instructions thereto.

(iii)          Upon (A) in the case of Pozen Common Shares represented by a Pozen Certificate, the surrender of such Pozen Certificate for cancellation to the Merger Exchange Agent or (B) in the case of Pozen Common Shares held in book-entry form, the receipt of an “agent’s message” by the Merger Exchange Agent, in each case together with the Pozen Letter of Transmittal, duly, completely and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Merger Exchange Agent, the holder of such Pozen Common Shares shall be entitled to receive in exchange therefor the Merger Consideration into which such Pozen Common Shares have been converted pursuant to Section 2.1(h) (after taking into account all Pozen Common Shares then held by such holder). In the event of a transfer of ownership of Pozen Common Shares that is not registered in the transfer records of Pozen, the applicable Merger Consideration may be delivered to a transferee, if the Pozen Certificate representing such Pozen Common Share (or, if such Pozen Common Share is held in book-entry form, proper evidence of such transfer) is presented to the Merger Exchange Agent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer Taxes have been paid. Until surrendered as contemplated by this Section 2.1(j), each Pozen Common Share or, and any Pozen Certificate with respect thereto, shall be deemed at any time from and after the Merger Effective Time to represent only the right to receive, upon such surrender, the Merger Consideration that the holders of Pozen Common Shares are entitled to receive in respect of such shares pursuant to Section 2.1(h) (after taking into account all Pozen Common Shares then held by such holder).
 
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(iv)          The Merger Consideration delivered and credited as fully paid in accordance with the terms of this ARTICLE 2, upon conversion of any Pozen Common Shares, shall be deemed to have been delivered and paid in full satisfaction of all rights pertaining to such Pozen Common Shares, as applicable. From and after the Merger Effective Time, there shall be no further registration of transfers on the stock transfer books of the US Surviving Company of Pozen Common Shares that were outstanding immediately prior to the Merger Effective Time. If, after the Merger Effective Time, any Pozen Certificates formerly representing Pozen Common Shares (or Pozen Common Shares held in book-entry form) are presented to the US Surviving Company or the Merger Exchange Agent for any reason, they shall be cancelled and exchanged as provided in this ARTICLE 2.

(v)           Any portion of the Merger Consideration that remains undistributed to the holders of Pozen Common Shares for one (1) year after the Merger Effective Time shall be delivered to Parent or its designee, and any holder of Pozen Common Shares who has not theretofore complied with this ARTICLE 2 shall thereafter look only to Parent for its claim for the Merger Consideration deliverable in respect thereof.

(vi)          None of Parent, US Merger Sub, Pozen or the Merger Exchange Agent or any of their respective Affiliates shall be liable to any Person in respect of any portion of the Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

(k)           Each of Parent and the Merger Exchange Agent (without duplication) shall be entitled to deduct and withhold from the consideration otherwise payable to any holder of Pozen Common Shares pursuant to this Agreement such amounts as are required to be deducted and withheld with respect to the making of such payment under applicable Laws. Amounts so withheld and paid over to the appropriate taxing authority shall be treated as having been paid to the holder of Pozen Common Shares in respect of which such deduction or withholding was made.

(l)            Notwithstanding any other provision of this Agreement, no fractional Parent Shares will be issued and any entitlement to Parent Shares for which fractional Parent Share would be issuable but for this Section 2.1(l) shall be rounded down to the nearest whole Parent Share.

(m)          If any Pozen Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Pozen Certificate to be lost, stolen or destroyed and, if required by Parent, the posting by such Person of a bond, in such reasonable and customary amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Pozen Certificate, the Merger Exchange Agent shall, in exchange for such lost, stolen or destroyed Pozen Certificate, issue the Merger Consideration deliverable in respect thereof pursuant to this Agreement.

(n)           As soon as practicable following the date of this Agreement and, in any event, prior to the Closing Date, the Pozen Board of Directors or an appropriate committee thereof shall adopt such resolutions or take such other actions, if any, as may be required to effect and/or procure the following treatment:

(i)            Except for the Pozen Options held by New Pozen Employees and the Performance-Based Option, each Pozen Option that is unvested and outstanding as of immediately prior to the Merger Effective Time, shall, as of immediately prior to the Merger Effective Time, become vested and exercisable. At the Merger Effective Time, each outstanding Pozen Option shall be assumed by Parent. Each Pozen Option so assumed by Parent under this Agreement will continue to have, and be subject to, the same terms and conditions of such options immediately prior to the Merger Effective Time (including, without limitation, any repurchase rights) except that (i) each Pozen Option will be solely exercisable (or will become exercisable in accordance with its terms) for that number of whole Parent Shares equal to the number of Pozen Shares that were issuable upon exercise of such Pozen Option immediately prior to the Merger Effective Time, and (ii) the per share exercise price for the Parent Shares issuable upon exercise of such assumed Pozen Option will be equal to the exercise price per Pozen Share at which such Pozen Option was exercisable immediately prior to the Merger Effective Time. Parent shall take all corporate actions necessary to reserve for issuance a sufficient number of shares of Parent Shares for delivery upon exercise of all Pozen Options pursuant to the terms set forth in this Section 2.1(n)(i). Prior to the Merger Effective Time, Pozen shall take all actions necessary to effect the transactions contemplated by this Section 2.1(n)(i).

(ii)           Except for Pozen Common Shares subject to vesting or other lapse restrictions pursuant to the Pozen Share Plan (a “ Restricted Pozen Share ”) held by New Pozen Employees, each Restricted Pozen Share issued and outstanding immediately prior to the Merger Effective Time shall, as of immediately prior to the Merger Effective Time, be cancelled, and each holder of a Restricted Pozen Share so cancelled pursuant to this Section 2.1(n)(ii) shall become entitled to receive one (1) Parent Share for each such Pozen Share that was issuable upon vesting of such Restricted Pozen Shares immediately prior to the Merger Effective Time, less applicable withholding taxes.

(iii)          Except for the Pozen restricted stock unit awards held by New Pozen Employees, each stock-based award (including any restricted stock unit and deferred stock unit awards), other than a Pozen Option or Restricted Pozen Share (“ Other Pozen Stock-Based Awards ” and together with Restricted Pozen Shares, the “ Pozen Share Awards ”), that is outstanding immediately prior to the Merger Effective Time, shall, whether vested or unvested, as of immediately prior to the Merger Effective Time, become vested and shall entitle each holder of an Other Pozen Share-Based Award to receive one (1) Pozen Common Share, less applicable withholding Taxes, if any, immediately prior to the Merger Effective Time, which shall converted into Merger Consideration pursuant to Section 2.1(h) except with respect to Other Pozen Stock-Based Awards subject to and not exempt from Section 409A of the Code (the “ Section 409A RSUs ”). Each New Pozen Employee and any individual holding Section 409A RSUs shall receive comparable Parent restricted stock unit awards of equal value and vesting on the basis of one Parent restricted stock unit for each Pozen restricted stock unit held immediately prior to the Merger Effective Time.
 
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(iv)          The amounts payable pursuant to this Section 2.1(n) to any current or former employee of Pozen or any of its Affiliates shall be paid through Pozen’s (or its applicable Subsidiary’s) payroll on the next regularly scheduled payment date that occurs not less than three (3) Business Days following the Closing Date. Parent, Pozen and each of their applicable Subsidiaries shall be entitled to deduct and withhold from any consideration otherwise payable to any holder of Pozen Options or Pozen Share Awards, such amounts as Pozen and any applicable Subsidiary are required to deduct and withhold with respect to such payment under applicable Law. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereunder as having been paid to the holder of the Pozen Options or Pozen Share Awards in respect of which such deduction and withholding was made, provided that such withheld amounts are actually remitted to the appropriate taxing authority. To the extent that the amount so required or permitted to be deducted or withheld from any payment to a holder exceeds the cash component of the consideration otherwise payable to the holder, Pozen and its applicable Subsidiary are hereby authorized to sell or otherwise dispose of such portion of the consideration otherwise payable to the holder as is necessary to provide sufficient funds to Pozen and its applicable Subsidiary to enable it to comply with such deduction or withholding requirement, and Pozen or the applicable Subsidiary shall notify the holder thereof and remit the applicable portion of the net proceeds of such sale to the appropriate taxing authority, and shall remit to such holder any unapplied balance of the proceeds of such sale. The amounts payable pursuant to this Section 2.1(n) to any person, other than a current or former employee of Pozen or any of its Affiliates, shall be paid by Parent or any affiliate of Parent (including Pozen and its Subsidiaries) within ten (10) Business Days following the Closing Date.

(o)           It is the intent of the Parties hereto that the treatment of Pozen Share Awards and Pozen Options contemplated herein be in a manner that is consistent with the requirements of Sections 422, 424 and 409A of the Code, including all guidance and regulations issued thereunder.

(p)           Parent shall procure that no stamp duty shall be payable by the Pozen Stockholders in connection with the issue to the Pozen Stockholders of the Parent Shares as part of the Merger Consideration.

2.2           The Arrangement

(a)           Parent, Ltd2, Can Merger Sub, Tribute, US Merger Sub and Pozen agree that the Arrangement will be implemented in accordance with and subject to the terms and conditions contained in this Agreement and the Plan of Arrangement.

(b)           Registered Holders of Tribute Common Shares will be granted rights of dissent with respect to such shares in connection with the Arrangement pursuant to and in the manner set forth in Section 185 of the OBCA, as modified by the Plan of Arrangement (the “ Tribute Dissent Rights ”). Beneficial Holders of Tribute Common Shares and Holders of Tribute Options, Tribute Warrants and Tribute Compensation Options will not have rights of dissent with respect to such securities in connection with the Arrangement. Tribute shall give Pozen (i) prompt notice of any written demands with respect to Tribute Dissent Rights, withdrawals of such demands, and any other instruments served pursuant to the OBCA and received by Tribute, and (ii) the opportunity to participate in all negotiations and proceedings with respect to such rights. Without the prior written consent of Pozen, except as required by applicable law, Tribute shall not make any payment with respect to any such rights or offer to settle or settle any such rights.

(c)           Tribute covenants in favor of Pozen that upon the terms and subject to the conditions of this Agreement, Tribute shall:

(i)            Subject to Parent and Pozen complying with Section 2.4 in respect of those matters which may be completed prior to the application for the Interim Order, as soon as reasonably practicable after the execution of this Agreement, apply to the Canadian Court for the Interim Order in a manner and form acceptable to Pozen, acting reasonably, and thereafter proceed with such application and diligently pursue obtaining the Interim Order;

(ii)           subject to obtaining such approvals as are required by the Interim Order, as soon as reasonably practicable after the Tribute Meeting and, in any event, not later than two (2) Business Days thereafter, apply to the Canadian Court pursuant to section 182(5) of the OBCA for the Final Order in a manner and form reasonably acceptable to Pozen and thereafter proceed with such application and diligently pursue obtaining the Final Order; and

(iii)          subject to obtaining the Final Order and to the satisfaction or waiver (subject to applicable Laws) of each of the conditions set forth in ARTICLE 8 (excluding conditions that by their terms cannot be satisfied until the Arrangement Effective Date, but subject to the satisfaction or, when permitted, waiver of those conditions as of the Arrangement Effective Date), as soon as reasonably practicable thereafter, take all steps and actions including, if applicable, making all filings with Governmental Authorities (including NASDAQ, the TSXV and the TSX (if applicable)) necessary to give effect to the Arrangement and carry out the terms of the Plan of Arrangement applicable to it prior to the Outside Date.
 
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(d)           Subject to the terms of this Agreement, Pozen, the Parent and any applicable Subsidiary of each will cooperate with, assist and consent to Tribute seeking the Interim Order and the Final Order and, subject to Tribute obtaining the Final Order and to the satisfaction or waiver (subject to applicable Laws) of each of the conditions set forth in ARTICLE 8 (excluding conditions that by their terms cannot be satisfied until the Arrangement Effective Date, but subject to the satisfaction or, when permitted, waiver of those conditions as of the Arrangement Effective Date), as soon as reasonably practicable thereafter, take all steps and actions including, if applicable, making all filings with Governmental Authorities (including NASDAQ, the TSXV and the TSX (If applicable)) necessary to give effect to the Arrangement and carry out the terms of the Plan of Arrangement applicable to each of them prior to the Outside Date.

(e)           The application referred to in Section 2.2(c)(i) shall, unless Tribute and Pozen otherwise agree, include a request that the Interim Order provide, among other things:

(i)            for the class of Persons to whom notice is to be provided in respect of the Arrangement and the Tribute Meeting and for the manner in which such notice is to be provided;

(ii)           for the record date for the purposes of determining the Tribute Shareholders entitled to receive notice of and to vote at the Tribute Meeting;

(iii)          that the Tribute Meeting may be adjourned or postponed from time to time by Tribute in accordance with this Agreement without the need for any additional approval by the Court;

(iv)          that the record date for the Tribute Shareholders entitled to receive notice of and to vote at the Tribute Meeting will not change in respect of or as a consequence of any adjournment or postponement of the Tribute Meeting;

(v)           that the requisite and sole approval of the Arrangement Resolution will be the Tribute Shareholder Approval;

(vi)          for the notice requirements with respect to the presentation of the application to the Court for the Final Order;

(vii)         that proxies in respect of the Arrangement Resolution must be delivered to Tribute no later than forty-eight (48) hours (excluding Saturdays, Sundays and statutory holidays)   prior to the date of the Tribute Meeting;

(viii)        that, in all other respects, the terms, restrictions and conditions of the governing documents of Tribute, including quorum requirements and all other matters, shall apply in respect of the Tribute Meeting; and

(ix)           subject to the consent of Tribute (such consent not to be unreasonably withheld or delayed), Tribute shall also include a request that the Interim Order provide for such other matters as Pozen may reasonably require.

(f)            Tribute shall advise the Canadian Court that the Parties intend to rely on the exemption from the registration requirements of the 1933 Securities Act provided by Section 3(a)(10) thereof to issue Parent Shares to Tribute Shareholders in exchange for their Tribute Common Shares and to exchange Tribute Options for Parent Options, as applicable, all pursuant to the Arrangement, based on the Canadian Court’s approval of the Arrangement.

(g)           Tribute will provide legal counsel to Pozen with a reasonable opportunity to review and comment upon drafts of all materials to be filed with the Canadian Court in connection with the Arrangement prior to the service and filing of such materials and will give reasonable consideration to such comments reasonably and promptly proposed by Pozen or its legal counsel. Tribute will ensure that all materials filed with the Canadian Court in connection with the Arrangement are consistent in all material respects with the terms of this Agreement and the Plan of Arrangement. Subject to applicable Laws, Tribute will not file any material with the Canadian Court in connection with the Arrangement or serve any such material, and will not agree to modify or amend materials so filed or served, except as contemplated by this Section, as required by applicable Law or stock exchange rule or with Pozen’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed, provided, however, that nothing herein shall require Pozen or the Parent or any of their respective Subsidiaries to agree or consent to any increase in the consideration payable under the terms of the Plan of Arrangement or any modification or amendment to such filed or served materials that expands or increases the obligations of Pozen and its Subsidiaries set forth in any such filed or served materials or under this Agreement, the Merger or the Arrangement. In addition, Tribute will not object to legal counsel to Pozen making such submissions on the hearing of the application for the Interim Order and the application for the Final Order as such counsel considers appropriate, acting reasonably, provided that Tribute or its legal counsel is advised of the nature of any submissions prior to the hearing and such submissions are consistent with this Agreement and the Plan of Arrangement. Tribute will also provide legal counsel to Pozen on a timely basis with copies of any notice of appearance and evidence or other documents served on Tribute or its legal counsel in respect of the application for the Interim Order or the Final Order or any appeal therefrom and of any notice, whether or not in writing, received by Tribute or its legal counsel indicating any intention to oppose the granting of the Interim Order or the Final Order or to appeal the Interim Order or the Final Order. Tribute will also oppose any proposal from any party that the Final Order contain any provision inconsistent with this Agreement.
 
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(h)           The Articles of Arrangement shall, with such other matters as are necessary to effect the Arrangement and subject to the provisions of the Plan of Arrangement, consummate the Plan of Arrangement. On the Effective Date, the Articles of Arrangement shall be filed with the Director. The Articles of Arrangement shall be in form satisfactory to Pozen and Tribute, each acting reasonably.

(i)            Upon the reasonable request from time to time of Pozen, Tribute will provide Pozen with lists (in both written and electronic form) of the registered Tribute Shareholders, together with their addresses and respective holdings of Tribute Common Shares, lists of the names and addresses and holdings of all Persons having rights issued or granted by Tribute to acquire or otherwise related to Tribute Common Shares (including Tribute Optionholders , Tribute Warrantholders and Tribute Compensation Optionholders) and lists of non-objecting beneficial owners of Tribute Common Shares and participants in book-based nominee registers (such as CDS & Co. and CEDE and Co.), together with their addresses and respective holdings of Tribute Common Shares. Tribute will from time to time require that its registrar and transfer agent furnish Pozen with such additional information, including updated or additional lists of Tribute Shareholders, information regarding beneficial ownership of Tribute Common Shares and lists of holdings and other assistance as Pozen may reasonably request.

(j)            The Tribute Options, the Tribute Warrants, the Tribute Compensation Options and the Tribute Stock Option Plan shall be treated as contemplated by, and in the manner set forth in, the Plan of Arrangement.

(k)           The Arrangement shall be structured and executed such that the issuance of the Parent Shares to Tribute Shareholders in exchange for their Tribute Common Shares and the issuance of Parent Options to Tribute Optionholders in exchange for their Tribute Options, all pursuant to the Arrangement, will not require registration under the 1933 Securities Act in reliance upon Section 3(a)(10) thereof. Each of the Parties agrees to act in good faith, consistent with the intent of the Parties and the intended treatment of the Arrangement as set forth in this Section 2.2.

(l)            Tribute and Pozen agree to cooperate in the preparation of presentations, if any, to Tribute Shareholders or other securityholders regarding the Arrangement, and Tribute agrees to consult with Pozen in connection with any communication or meeting with Tribute Shareholders or other securityholders that it may have, provided, however, that the foregoing shall be subject to Tribute’s overriding obligations to make any disclosure or filing required by applicable Laws or stock exchange rules and, if Tribute is required to make any such disclosure, it shall use its commercially reasonable efforts to give Pozen a reasonable opportunity to review and comment thereon prior to its dissemination.

(m)          Each of Tribute, Pozen, Parent, Can Merger Sub and the Arrangement Exchange Agent (without duplication) shall be entitled to deduct and withhold from any consideration payable to any holder of Tribute Common Shares, Tribute Options, Tribute Warrants or Tribute Compensation Optionholder, such amounts as Tribute, Pozen, Parent, Can Merger Sub or the Arrangement Exchange Agent are required to deduct and withhold with respect to such payment under applicable Law. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes hereunder as having been paid to the holder of Tribute Common Shares, Tribute Options, Tribute Warrants or Tribute Compensation Options in respect of which such deduction and withholding was made, provided that such withheld amounts are actually remitted to the appropriate taxing authority. To the extent that the amount so required or permitted to be deducted or withheld from any payment to a holder exceeds the cash component of the consideration payable to the holder, Tribute, Pozen, Parent, Can Merger Sub and the Arrangement Exchange Agent are hereby authorized to sell or otherwise dispose of such portion of the consideration payable to the holder as is necessary to provide sufficient funds to Tribute, Pozen, Parent, Can Merger Sub or the Arrangement Exchange Agent, as the case may be, to enable it to comply with such deduction or withholding requirement and Tribute, Pozen, Parent, Can Merger Sub or the Arrangement Exchange Agent shall notify the holder thereof and remit the applicable portion of the net proceeds of such sale to the appropriate taxing authority, and shall remit to such holder any unapplied balance of the proceeds of such sale.

2.3           The Closing

The closing (the “ Closing ”) of the Merger and the Arrangement shall take place at the offices of DLA Piper LLP (US), 1251 Avenue of the Americas, New York, New York 10020-1104, at 11:00 a.m., New York City time, on the date (the “ Closing Date ”) which shall be (a) the earlier of: (i) the date that is three (3) Business Days after the satisfaction or waiver (subject to applicable Laws) of the conditions set forth in ARTICLE 8 (other than the satisfaction of those conditions that, by their terms, cannot be satisfied until the Closing Date, but subject to the satisfaction or, where permitted, waiver of those conditions); and (ii) the date that is the day prior to the Outside Date; provided that the conditions set forth in ARTICLE 8 have been satisfied or waived as of such date (other than the satisfaction of those conditions that, by their terms, cannot be satisfied until the Closing Date, but subject to the satisfaction or, where permitted, waiver of those conditions); or (b) such date as mutually agreed in writing by Pozen and Tribute. Subject to the satisfaction or waiver (subject to applicable Laws) of the conditions (excluding conditions that, by their terms, cannot be satisfied until the Closing Date, but subject to the satisfaction or, where permitted, waiver of those conditions as of the Closing Date) set forth in ARTICLE 8, the Merger and the Arrangement shall, from and after the Merger Effective Time and the Arrangement Effective Time (as applicable), have all of the effects provided under applicable Laws.
 
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2.4           Preparation of Tribute Circular, Pozen Proxy Statement and Registration Statements

(a)           As promptly as reasonably practicable following the date hereof, each of the Parties shall cooperate in preparing and shall cause to be filed with the SEC, the Director under the OBCA and the TSXV, as applicable (and, if applicable, any other Governmental Authority) (i) mutually acceptable proxy materials which shall constitute (A) the Tribute Circular (and any amendments or supplements thereto), which shall include the proxy statement relating to the matters to be submitted to the Tribute Shareholders at the Tribute Meeting, together with any other documents required by the OBCA or applicable Laws in connection with the Tribute Meeting and (B) the proxy statement relating to the matters to be submitted to Pozen Stockholders at the Pozen Meeting (such proxy statement, and any amendments or supplements thereto, the “ Pozen Proxy Statement ”) and (ii) a Registration Statement on Form S-4 (the “ Form S-4 ”) (and, if applicable, any other required disclosure document), with respect to the issuance of Parent Shares in respect of the Merger and the Arrangement.

(b)           Each Party will provide legal counsel to the other Party with a reasonable opportunity to review and comment on drafts of the Tribute Circular, Pozen Proxy Statement, Form S-4 and other documents related to the Tribute Meeting, the Pozen Meeting, the issuance of the Parent Shares in respect of the Merger or the Arrangement, prior to filing such documents with applicable Governmental Authorities and mailing such documents to the Tribute Shareholders or the Pozen Stockholders, as applicable. Each Party will include in the Tribute Circular, Pozen Proxy Statement, Form S-4 or such other documents all comments reasonably and promptly proposed by the other Party or its legal counsel; provided , however , that all information relating to a Party included in the Tribute Circular, Pozen Proxy Statement and the Form S-4 shall be in form and content satisfactory to such Party, acting reasonably.

(c)           Each Party shall use its commercially reasonable efforts to have the Pozen Proxy Statement cleared by the SEC (and, if applicable, any other Governmental Authority), to have the Form S-4 declared effective by the SEC (and, if applicable, any other Governmental Authority) as promptly as practicable after such filing and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the Arrangement. As promptly as practicable after such clearance, Parent and Pozen shall, unless otherwise agreed to by the Parties, cause the Pozen Proxy Statement and other documentation required in connection with the Pozen Meeting or the issuance of the Parent Shares in respect of the Merger and the Arrangement to be published and/or sent to each applicable stockholder or shareholder, as required by applicable Laws. Each Party shall, as promptly as practicable after receipt thereof, provide the other Party with copies of any written comments and advise the other Party of any oral comments with respect to the Pozen Proxy Statement or the Form S-4 received from the SEC (or, if applicable, any other Governmental Authority).

(d)           Each Party shall use its commercially reasonable efforts to ensure that the Tribute Circular, the Pozen Proxy Statement and the Form S-4 comply in all material respects with applicable Laws. Each Party shall cooperate and provide the other Party with a reasonable opportunity to review and comment on any amendment or supplement to the Tribute Circular, the Pozen Proxy Statement or the Form S-4 prior to filing such documents with the SEC (or, if applicable, any other Governmental Authority).

(e)           Subject to Section 5.2(e) and Section 6.2, each Party shall use its commercially reasonable efforts to take any action required to be taken by it under any applicable Laws as may be necessary or desirable in order to complete the Merger and the Arrangement, and each Party shall furnish all information concerning it and the holders of its capital stock and other securities as may be reasonably requested in connection with any such action. Parent shall advise the other Parties, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Shares issuable in connection with the Merger or the Arrangement for offering or sale in any jurisdiction, any request by the SEC (or, if applicable, any other Governmental Authority) for amendment of the Tribute Circular, the Pozen Proxy Statement or the Form S-4.

(f)            If, at any time prior to the Closing, any information relating to any of the Parties (including, but not limited to, a discovery of a misstatement or omission of information), or their respective Affiliates, officers or directors, should be discovered by any Party, and such information should be set forth in an amendment or supplement to the Tribute Circular, the Pozen Proxy Statement or the Form S-4 so that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that discovers such information shall promptly notify the other Parties and, to the extent required by Law, an appropriate amendment or supplement describing such information shall be promptly filed by Parent and Pozen with the SEC and by Tribute with any applicable Canadian securities regulators (or, if applicable, any other Governmental Authority) and, to the extent required by Law, disseminated to applicable securityholders as required by Law.

(g)           The Tribute Circular and the Pozen Proxy Statement shall each include, unless Pozen shall have effected a Pozen Change of Recommendation in accordance with the terms of this Agreement, the Pozen Recommendation, the Pozen Fairness Opinions, the rationale for the Pozen Recommendation and a statement that, to the knowledge of Pozen, each director and executive officer of Pozen intends to vote all Pozen Common Shares held by him or her in favor of the Pozen Stockholder Approval at the Pozen Meeting.
 
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(h)           The Tribute Circular and the Pozen Proxy Statement shall each include, unless Tribute shall have effected a Tribute Change of Recommendation in accordance with the terms of this Agreement, the Tribute Recommendation, the Tribute Fairness Opinion, the rationale for the Tribute Recommendation and a statement that, to the knowledge of Tribute, each director and executive officer of Tribute intends to vote all Tribute Common Shares held by him or her in favor of the Tribute Shareholder Approval at the Tribute Meeting.

(i)            Parent covenants and agrees that, promptly following Closing, it shall file with the SEC a Registration Statement on Form S-8 (the “ Form S-8 ”) registering Parent Shares issuable pursuant to the 2015 Aralez Pharmaceuticals Omnibus Equity Plan.

2.5           Pozen Stockholder Meeting

(a)           Pozen shall duly take all lawful action to call, give notice of, convene and hold the Pozen Meeting in accordance with the constituent documents of Pozen and applicable Law as promptly as practicable following the date upon which the Form S-4 becomes effective and the Pozen Proxy Statement has been cleared by the SEC for the purpose of obtaining Pozen Stockholder Approval as required by the DGCL and this Agreement.

(b)           Subject to the terms of this Agreement, unless Pozen shall have effected a Pozen Change of Recommendation in accordance with the terms of this Agreement, Pozen shall use its commercially reasonable efforts to solicit from Pozen Stockholders proxies in favor of the Pozen Stockholder Approval and take all other actions that are reasonably necessary or desirable to obtain the approval of the Merger and the adoption of this Agreement by Pozen Stockholders, including using the services of proxy solicitation agents, and take all other actions reasonably requested by Tribute that are reasonably necessary to obtain Pozen Stockholder Approval and permit Tribute to assist, and consult with Tribute and keep Tribute apprised, with respect to such solicitation and other actions. Unless this Agreement has been terminated in accordance with ARTICLE 7, subject to Section 2.5(a), this Agreement shall be submitted to Pozen Stockholders at the Pozen Meeting for the purpose of obtaining Pozen Stockholder Approval, and nothing contained herein shall be deemed to relieve Pozen of such obligation.

(c)           Unless there has been a Pozen Change of Recommendation in accordance with Section 6.2, neither the Pozen Board of Directors nor any committee thereof shall withdraw (or modify in any manner adverse to Tribute), or propose publicly to withdraw (or modify in any manner adverse to Tribute), the Pozen Recommendation.

(d)           Pozen shall, prior to the Pozen Meeting, keep Tribute reasonably informed of the number of proxy votes received in respect of matters to be acted upon at the Pozen Meeting, and in any event shall provide such number promptly upon the request of Tribute or its Representatives.

(e)           Pozen shall not adjourn, postpone, delay or cancel (or propose for adjournment, postponement, delay or cancellation) the Pozen Meeting without Tribute’s prior written consent, in each case; provided that (i) Pozen shall be permitted to adjourn, delay or postpone convening the Pozen Meeting if in the good faith judgment of the Pozen Board of Directors (after consultation with its outside legal advisors) the failure to adjourn, delay or postpone the Pozen Meeting could be reasonably likely to be inconsistent with the fiduciary duties of the Pozen Board of Directors under applicable Laws or not allow sufficient time under applicable Laws for the distribution of any required or appropriate supplement or amendment to the Pozen Proxy Statement or Form S-4, or (ii) if Pozen shall have provided a written notice as contemplated by Section 7.1(c)(iii) and the thirty (30) day period referenced therein shall not have expired at least three (3) Business Days prior to the scheduled date of the Pozen Meeting, Pozen shall be permitted to adjourn, delay or postpone convening the Pozen Meeting until the third (3rd) Business Day following the expiration of such thirty (30) day period.

(f)            Pozen will provide notice to Tribute of the Pozen Meeting, and shall allow Representatives of Tribute and its counsel to attend the meeting and any adjournments thereof.

2.6           Tribute Shareholder Meeting

(a)           Tribute shall duly take all lawful action to call, give notice of, convene and hold the Tribute Meeting in accordance with the constituent documents of Tribute, the Interim Order and applicable Law as soon as reasonably practicable after the Interim Order is issued.

(b)           Subject to the terms of this Agreement, unless Tribute shall have effected a Tribute Change of Recommendation in accordance with the terms of this Agreement, Tribute shall use its commercially reasonable efforts to solicit from Tribute Shareholders proxies in favor of the Tribute Shareholder Approval and take all other actions that are reasonably necessary or desirable to obtain the approval of the Arrangement by Tribute Shareholders, including using the services of proxy solicitation agents, and take all other actions reasonably requested by Pozen that are reasonably necessary to obtain the Tribute Shareholder Approval and permit Pozen to assist, and consult with Pozen and keep Pozen apprised, with respect to such solicitation and other actions. Unless this Agreement has been terminated in accordance with ARTICLE 7, subject to Section 2.6(a), the Arrangement Resolution shall be submitted to the Tribute Shareholders at the Tribute Meeting for the purpose of obtaining the Tribute Shareholder Approval, and nothing contained herein shall be deemed to relieve Tribute of such obligation.
 
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(c)           Unless there has been a Tribute Change of Recommendation in accordance with Section 6.4, neither the Tribute Board of Directors nor any committee thereof shall withdraw (or modify in any manner adverse to Pozen), or propose publicly to withdraw (or modify in any manner adverse to Tribute), the Tribute Recommendation.

(d)           Tribute shall, prior to the Tribute Meeting, keep Pozen reasonably informed of the number of proxy votes received in respect of matters to be acted upon at the Tribute Meeting, and in any event shall provide such number promptly upon the request of Pozen or its Representatives.

(e)           Tribute shall not adjourn, postpone, delay or cancel (or propose for adjournment, postponement, delay or cancellation) the Tribute Meeting without Pozen’s prior written consent, in each case; provided that (i) Tribute shall be permitted to adjourn, delay or postpone convening the Tribute Meeting if in the good faith judgment of the Tribute board of directors (after consultation with its outside legal advisors) the failure to adjourn, delay or postpone the Tribute Meeting could be reasonably likely to be inconsistent with the fiduciary duties of the Tribute board of directors under applicable Laws or not allow sufficient time under applicable Laws for the distribution of any required or appropriate supplement or amendment to the Tribute Circular, Pozen Proxy Statement or Form S-4, or (ii) if Tribute shall have made a written request as contemplated by Section 7.1(d)(iii) and the thirty (30) day period referenced therein shall not have expired at least three (3) Business Days prior to the scheduled date of the Tribute Meeting, Tribute shall be permitted to adjourn, delay or postpone convening the Tribute Meeting until the third (3rd) Business Day following the expiration of such thirty (30) day period.

(f)            Tribute will provide notice to Pozen of the Tribute Meeting, and shall allow Representatives of Pozen and its counsel to attend the meeting and any adjournments thereof.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES

3.1           Representations and Warranties of Pozen

Except as disclosed in the applicable section or subsection of the Pozen Disclosure Letter (it being agreed that disclosure of any item in any section or subsection of the Pozen Disclosure Letter shall be deemed disclosure with respect to any other section or subsection of the Pozen Disclosure Letter only to the extent the relevance of such item to such other section or subsection is reasonably apparent on its face) or the Pozen Public Disclosure Record (other than any disclosure contained under the captions “Risk Factors” or “Forward Looking Statements” or similar captions and any other disclosure contained therein that is predictive, cautionary or forward-looking in nature), Pozen represents and warrants to and in favor of Tribute and Parent as follows and acknowledges that Tribute and Parent are relying upon such representations and warranties in entering into this Agreement:

(a)            Organization and Qualification . Pozen has been duly incorporated, validly exists and is in good standing under the Laws of its jurisdiction of incorporation and has the requisite corporate and legal power and capacity to own its assets as now owned and to carry on its business as it is now being carried on. Each of the Pozen Subsidiaries is a corporation or other entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of incorporation, organization or formation and has the requisite corporate, legal or other power and authority to own its assets as now owned and to carry on its business as it is now being carried on. Pozen and each of the Pozen Subsidiaries is duly qualified to carry on business in each jurisdiction in which the nature or character of the respective properties and assets owned, leased or operated by it, or the nature of its business or activities, makes such qualification necessary, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect on Pozen and the Pozen Subsidiaries, taken as a whole. Pozen has provided to Parent and Tribute true, complete and correct copies of the constituent documents of each of Pozen and Pozen’s Subsidiaries, in each case as amended.

(b)            Authority Relative to this Agreement . Pozen has the requisite corporate power, authority and capacity to enter into this Agreement and (subject to obtaining the Pozen Stockholder Approval and the Required Regulatory Approvals, all as contemplated in this Agreement) to perform its obligations hereunder and to complete the transactions contemplated by this Agreement. The execution and delivery of this Agreement and the completion by Pozen of the transactions contemplated by this Agreement have been duly authorized by the Pozen Board of Directors and no other corporate proceedings on the part of Pozen are necessary to authorize the execution and delivery by it of this Agreement or, subject to obtaining the Pozen Stockholder Approval as contemplated in this Agreement, the completion by Pozen of the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by Pozen and constitutes a legal, valid and binding obligation of Pozen enforceable against Pozen in accordance with its terms, subject to bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and other Laws relating to limitations of actions or affecting the availability of equitable remedies and the enforcement of creditors’ rights generally and general principles of equity.

(c)            Required Approvals . No authorization, license, Permit, certificate, registration, consent or approval of, or filing with, or notification to, any Governmental Authority is necessary for the execution and delivery by Pozen of this Agreement, the performance by Pozen of its obligations hereunder and the completion by Pozen of the Merger or the Arrangement, other than:
 
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(i)            such filings and other actions required under applicable U.S. Securities Laws and the rules and policies of NASDAQ, in each case, as are contemplated by this Agreement;

(ii)           the Required Regulatory Approvals relating to Pozen; and

(iii)          any other authorizations, licenses, Permits, certificates, registrations, consents, approvals and filings and notifications with respect to which the failure to obtain or make the same would not reasonably be expected to have a Material Adverse Effect on Pozen, or could not reasonably be expected to prevent or significantly impede or materially delay the completion of the Merger and the Arrangement.

(d)            No Violation . Subject to obtaining the authorizations, consents and approvals and making the filings referred to in Section 3.1(c) and complying with applicable Laws and Orders, the execution and delivery by Pozen of this Agreement, the performance by Pozen of its obligations hereunder and the completion of the Merger and the Arrangement do not and will not (nor will they with the giving of notice or the lapse of time or both):

(i)            result in a contravention, breach, violation or default under any Law or Order applicable to Pozen or any of the Pozen Subsidiaries or any of its or their respective properties or assets;

(ii)           result in a contravention, conflict, violation, breach or default under the constituent documents of Pozen or any of the Pozen Subsidiaries;

(iii)          result in a contravention, breach or default under or termination of, or acceleration or permit the acceleration of the performance required by, or loss of any material benefit under, any Pozen Material Contract or material Permit to which it or any of the Pozen Subsidiaries is a party or by which it or any of the Pozen Subsidiaries is bound or to which any of its or any of the Pozen Subsidiaries’ properties or assets is subject or give to any Person any interest, benefit or right, including any right of purchase or sale, termination, payment, modification, reimbursement, penalty, cancellation or acceleration, under any such Pozen Material Contract or material Permit; or

(iv)          result in the suspension or alteration in the terms of any material Permit held by Pozen or any of the Pozen Subsidiaries or in the creation of any Lien upon any of their properties or assets;

except, in the case of each of clauses (i), (iii) and (iv) above, as would not reasonably be expected to have a Material Adverse Effect on Pozen or that would reasonably be expected to prevent or significantly impede or materially delay the completion of the Merger or the Arrangement.

(e)            Capitalization of Pozen . The authorized capital of Pozen consists of 10,000,000 shares of preferred stock, par value $0.001 per share, none of which are issued or outstanding, and 90,000,000 Pozen Common Shares. As of the close of business on June 5, 2015, there were (i) 32,420,612 Pozen Common Shares issued and outstanding, all of which have been duly authorized and validly issued and are fully paid and non-assessable, (ii) up to 2,474,430 shares of common stock available for grant under equity compensation plans, and (iii) up to 3,595,849 shares of common stock issuable pursuant to options and restricted stock units granted under equity compensation plans. There is no outstanding contractual obligation of Pozen or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Pozen Common Shares. Except for the Pozen Options and the Pozen Share Awards, as of the date of this Agreement, Pozen has no outstanding agreement, subscription, warrant, option, conversion or exchange privilege, right, arrangement or commitment (nor has it granted any right or privilege (contingent or otherwise) capable of becoming an agreement, subscription, warrant, option, conversion or exchange privilege, right, arrangement or commitment) obligating it to issue or sell any Pozen Common Shares or other securities of Pozen, including any security or obligation of any kind convertible into or exchangeable or exercisable for any Pozen Common Shares or other security of Pozen. Except for the Pozen Options and Pozen Share Awards, neither Pozen nor any of Pozen’s Subsidiaries has outstanding any stock appreciation right, phantom equity, restricted share unit, deferred share unit or similar right, agreement, arrangement or commitment based on the book value, Pozen Share price, income or any other attribute of or related to Pozen or any of its Subsidiaries. The Pozen Common Shares are listed on NASDAQ and, except for such listing, no other securities of Pozen or any of Pozen’s Subsidiaries are listed on any other stock or securities exchange or market or registered under any securities Laws. There are no outstanding bonds, debentures or other evidences of indebtedness of Pozen or any of Pozen’s Subsidiaries having the right to vote (or that are convertible into or exchangeable or exercisable for securities having the right to vote) with the holders of Pozen Common Shares on any matter. Section 3.1(e) of the Pozen Disclosure Letter sets out a true, complete and correct list of all Pozen Options and Pozen Share Awards, the names of the holders of such awards, the type of such award, whether each such holder is a current director of Pozen or current employee of Pozen or any of its Subsidiaries and the grant date and the exercise price (as applicable). A true, correct and complete copy of the Pozen Share Plan has been provided or otherwise made available to Parent and Tribute.

(f)             Pozen Subsidiaries . Section 3.1(f) of the Pozen Disclosure Letter sets forth a true, complete and correct list of each of the Pozen Subsidiaries, its jurisdiction and form of organization. Pozen or a Pozen Subsidiary is the sole registered and beneficial owner of all of the outstanding shares in the capital of or outstanding shares of capital stock or other ownership, equity or voting interests of the Pozen Subsidiaries free and clear of any Liens (other than Permitted Liens), all such shares are validly issued, fully paid and non-assessable, and no other Person has any option, right, entitlement, understanding or commitment (contingent or otherwise) regarding the right to acquire any such share or interest in any of the Pozen Subsidiaries and no Pozen Subsidiary has any outstanding option, warrant, conversion or exchange privilege or other right, agreement, arrangement or commitment obligating any such entity to issue or sell any share or ownership, equity or voting interest of such entity or security or obligation of any kind convertible into or exchangeable or exercisable for any shares or ownership, equity or voting interests of any such entity. Neither Pozen nor any of the Pozen Subsidiaries own any interest or investment (whether equity or debt) in any other Person, other than a Pozen Subsidiary, which interest or investment is material to Pozen and the Pozen Subsidiaries, taken as a whole.
 
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(g)            Securities Laws Matters .

(i)            The Pozen Common Shares are registered pursuant to Section 12(b) of the 1934 Exchange Act and listed on NASDAQ. Neither the SEC nor any state regulatory authority has issued any order preventing or suspending trading of any securities of Pozen, and Pozen is in compliance in all material respects with applicable U.S. Securities Laws.

(ii)           Pozen is in compliance in all material respects with the requirements of the U.S. Securities Laws and NASDAQ for continued listing of the Pozen Common Shares thereon. Except for the transactions contemplated by this Agreement, Pozen has not taken any action designed to terminate, or likely to have the effect of terminating, the registration of the Pozen Common Shares under the 1934 Exchange Act or the listing of such shares on NASDAQ.

(iii)          Trading in Pozen Common Shares on NASDAQ is not currently halted or suspended. No delisting, suspension of trading or cease trading order with respect to any securities of Pozen is pending or, to the knowledge of Pozen, threatened. To the knowledge of Pozen, as of the date of this Agreement, no inquiry, review or investigation (formal or informal) of Pozen by the SEC or similar regulatory authority under applicable U.S. Securities Laws or NASDAQ is in effect or ongoing or expected to be implemented or undertaken.

(iv)          Except as set forth above in this Section 3.1(g), neither Pozen nor any of its Subsidiaries is subject to continuous disclosure or other public reporting requirements under any securities Laws.

(v)           Since December 31, 2012, Pozen has timely filed all forms, reports, statements and documents, including financial statements and management’s discussion and analysis required to be filed by Pozen under applicable U.S. Securities Laws and the rules and policies of NASDAQ. The documents in the Pozen Public Disclosure Record, as at the respective dates filed, were in compliance in all material respects with applicable U.S. Securities Laws and, where applicable, the rules and policies of NASDAQ.

(vi)          None of the documents in the Pozen Public Disclosure Record, as of their respective dates (and, if amended or superseded by a filing prior to the date hereof, then on the date of such filing), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

(h)            Financial Statements .

(i)            The Pozen Financial Statements have been prepared in accordance with U.S. GAAP applied on a basis consistent with those of previous periods and in accordance with applicable Laws, except as otherwise stated in the notes to such statements or in the auditor’s report thereon and subject, in the case of the Pozen Interim Financial Statements, to normal year-end audit adjustments, which are not material to Pozen and the Pozen Subsidiaries, taken as a whole, individually or in the aggregate, and may omit notes which are not material and are not required by applicable Laws or U.S. GAAP. The Pozen Financial Statements present fairly, in all material respects, the consolidated balance sheets and consolidated statements of operations, consolidated statements of stockholders’ equity and consolidated statements of cash flows of Pozen and the Pozen Subsidiaries as of the respective dates thereof and for the respective periods set forth therein. There are no outstanding loans made by Pozen or any of the Pozen Subsidiaries to any director or officer of Pozen. All of such documents in the Pozen Public Disclosure Record (including any financial statements included or incorporated by reference therein), as of their respective dates (and as of the date of any amendment to the respective document in the Pozen Public Disclosure Record), complied as to form in all material respects with the applicable requirements of the 1933 Securities Act and the 1934 Exchange Act.

(ii)           Pozen has designed such disclosure controls and procedures, or caused them to be designed under the supervision of its Chief Executive Officer and Chief Financial Officer, to provide reasonable assurance that material information relating to Pozen is made known to its Chief Executive Officer and Chief Financial Officer by others within Pozen and the Pozen Subsidiaries.

(iii)          Pozen has designed such internal controls over financial reporting, or caused them to be designed under the supervision of the Chief Executive Officer and Chief Financial Officer of Pozen, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. GAAP. To the knowledge of Pozen, since December 31, 2012: (A) except as set forth on Section 3.1(h)(iii) of the Pozen Disclosure Letter, there have been no significant deficiencies in the design or operation of, or material weaknesses in, the internal controls over financial reporting of Pozen that are reasonably likely to adversely affect Pozen’s ability to record, process, summarize and report financial information, and (B) there is and has been no fraud, whether or not material, involving management or any other employees who have a significant role in the internal control over financial reporting of Pozen. To the knowledge of Pozen, since December 31, 2012, Pozen has received no (x) written complaints from any source regarding accounting, internal accounting controls or auditing matters or (y) written reports from employees of Pozen regarding questionable accounting or auditing matters.
 
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(i)             No Undisclosed Liabilities . Except as set forth in Section 3.1(i) of the Pozen Disclosure Letter, Pozen and the Pozen Subsidiaries have no liability or obligation of any nature (whether accrued, absolute, contingent or otherwise) that would be required to be disclosed on a balance sheet (or the footnotes thereto) prepared in accordance with U.S. GAAP, other than (i) liabilities and obligations disclosed in the Pozen Public Disclosure Record, (ii) liabilities and obligations incurred in the ordinary course of business (other than those specifically disclosed in the Pozen Public Disclosure Record) that would not reasonably be expected to be material to Pozen and its Subsidiaries, taken as a whole (other than those disclosed in the Pozen Public Disclosure Record), (iii) liabilities under Contracts (other than any such liability resulting from a breach or default thereunder) and (iv) liabilities and obligations incurred in connection with this Agreement and the transactions contemplated by this Agreement. Without limiting anything set forth herein, the Pozen Financial Statements reflected and continued to reflect, in each case as of the date filed, appropriate reserves under U.S. GAAP for contingent liabilities relating to pending or anticipated litigation and other contingent obligations of Pozen and the Pozen Subsidiaries.

(j)             Absence of Certain Changes . From the date of the most recent Pozen Annual Financial Statements to the date of this Agreement, (i) no result, fact, change, effect, event, circumstance, occurrence or development has occurred or arisen which has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Pozen and (ii) Pozen and each of the Pozen Subsidiaries has conducted its business in all material respects in the ordinary course of business consistent with past practice.

(k)            Compliance with Laws . Since December 31, 2012, the business of Pozen and of each of the Pozen Subsidiaries has been and is currently being conducted in material compliance with all applicable Laws, Orders and Regulatory Guidelines and policies and neither Pozen nor any Pozen Subsidiary has received any written notice of any alleged material non-compliance or violation of any such Laws, Orders or Regulatory Guidelines. Neither Pozen nor any of the Pozen Subsidiaries has taken or committed to take any action which would cause Pozen or any of the Pozen Subsidiaries to be in violation of the United States Foreign Corrupt Practices Act or any applicable Laws of similar effect, and, to the knowledge of Pozen, no such action has been taken by any Person acting on behalf of Pozen or any of the Pozen Subsidiaries.

(l)             Litigation . Section 3.1(l) of the Pozen Disclosure Letter sets forth a list of all Proceedings to which Pozen is a party. Except as set forth on Section 3.1(l) of the Pozen Disclosure Letter, there is no Proceeding against or involving Pozen or any of the Pozen Subsidiaries (whether in progress, pending or, to the knowledge of Pozen, threatened) that, if adversely determined, would reasonably be expected to have a Material Adverse Effect on Pozen or would prevent or significantly impede or materially delay the completion of the Merger or the Arrangement and, to the knowledge of Pozen, no event or circumstance has occurred which would reasonably be expected to give rise to any such Proceeding. Neither Pozen nor any of the Pozen Subsidiaries nor any of their respective properties or assets is subject to any outstanding Order that would reasonably be expected to prevent or significantly impede or materially delay the completion of the Merger or the Arrangement or have a Material Adverse Effect on Pozen.

(m)           Real Property . Section 3.1(m) of the Pozen Disclosure Letter contains (a) a list of all leases and subleases pursuant to which Pozen or any Pozen Subsidiary currently leases real property as tenant (the “ Pozen   Real Property Leases ”) and (b) a list of all real property owned by Pozen or any Pozen Subsidiary (“ Pozen Owned Real Property ”). Each Pozen Real Property Lease is a valid leasehold, sublease interest or comparable right, and Pozen or one of the Pozen Subsidiaries holds good, valid and marketable beneficial and legal title to the Pozen Owned Real Property. There is no pending or, to the knowledge of Pozen, threatened condemnation or expropriation proceedings with respect to any Pozen Owned Real Property. There are no outstanding options or rights of first refusal to purchase any Pozen Owned Real Property (or any portion thereof or interest therein). Except for Permitted Liens, there are no Liens registered against any Pozen Owned Real Property.

(n)            Contracts .

(i)            Except as set forth in Section 3.1(n) of the Pozen Disclosure Letter, as of the date of this Agreement, none of Pozen or any of the Pozen Subsidiaries is a party to or bound by any of the following types of Contract (other than a Pozen Employment Agreement or Pozen Plan) (each of the following types of Contracts, an “ Pozen Material Contract ”):

(A)          any Contract entered into outside of the ordinary course of business which is both (i) reasonably expected to involve the payment or receipt in 2015 or any subsequent year of an amount in excess of $500,000, and (ii) not terminable by Pozen or any of the Pozen Subsidiaries on three (3) months’ notice or less;

(B)           any credit agreement, loan agreement, indenture, note, mortgage, security agreement, loan commitment or other Contract relating to the indebtedness of Pozen or any Pozen Subsidiary in an amount in excess of $500,000;
 
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(C)           any Contract granting to any Person a right of first refusal or option to purchase or acquire any assets of Pozen or any Pozen Subsidiary valued at an amount in excess of $500,000;

(D)           any real property lease, rental or occupancy agreement under which Pozen or any Pozen Subsidiary continues to have obligations or rights;

(E)           any Contract pursuant to which Pozen or any Pozen Subsidiary (i) is granted or obtains or agrees to obtain any right or license to use any material Intellectual Property (excluding commercially available software   where the failure to obtain or hold such license would not have a Material Adverse Effect on Pozen), (ii) is restricted in its right to use or register any material Intellectual Property owned by Pozen or any of the Pozen Subsidiaries, or (iii) grants, or agrees to grant, to any other Person any right or license to use, obtain, enforce or register any material Intellectual Property owned by Pozen or any of the Pozen Subsidiaries, including any license agreements, option agreements and covenants not to sue;

(F)           except for any non-solicit obligations, any Contract that obligates Pozen or any Pozen Subsidiary or its Affiliates not to compete with another Person, requires Pozen or any Pozen Subsidiary to acquire or sell any product, asset or service exclusively from or to any other Person, or otherwise contractually restricts Pozen or any Pozen Subsidiary or its Affiliates from acquiring any material product, asset or service from any other Person, or providing products, assets or services to any other Person, or developing or distributing any product to any Person or in any geographic location;

(G)           any Contract entered into since December 31, 2012: (i) relating to the merger, consolidation, reorganization, liquidation, dissolution or any similar extraordinary transaction with respect to Pozen or any Pozen Subsidiary, (ii) relating to a material acquisition or disposition by Pozen or any Pozen Subsidiary, (iii) relating to the acquisition, issuance or transfer of any securities of Pozen or any Pozen Subsidiary, or (iv) relating to any partnership, strategic alliance or joint venture agreement; and

(H)           except for Contracts entered into in the ordinary course of business with any employee, director or officer of Pozen or any Pozen Subsidiary, any Contract with any stockholder of Pozen or any Pozen Subsidiary entered into since December 31, 2012.

(ii)           True, correct and complete copies of each Pozen Material Contract in effect on the date hereof that has not been part of the Pozen Public Disclosure Record have been provided or otherwise made available to Parent and Tribute.

(iii)          Except as would not reasonably be expected to have a Material Adverse Effect on Pozen, none of Pozen, the Pozen Subsidiaries or, to the knowledge of Pozen, any of the other parties thereto is in breach or violation of or in default under, or committed or failed to perform any act which would result in a default under (in each case, with or without notice or lapse of time or both), any Pozen Material Contract in any material respect, and none of Pozen or any of the Pozen Subsidiaries has received or given any notice of default under any Pozen Material Contract which remains uncured. To the knowledge of Pozen, there exists no state of facts which, after notice or lapse of time or both, would constitute a default under or breach or violation of any Pozen Material Contract or the inability of a party to any Pozen Material Contract to perform its obligations thereunder where, in any such case, such default, breach, violation or non-performance has had or would reasonably be expected to have a Material Adverse Effect on Pozen or that would reasonably be expected to prevent or significantly impede or materially delay the completion of the Merger and the Arrangement. To the knowledge of Pozen, no Person has challenged in writing the validity or enforceability of any Pozen Material Contract.

(iv)          There are no shareholders or stockholders agreements, registration rights agreements, voting trusts, proxies or similar agreements, arrangements or commitments, to which Pozen or any of the Pozen Subsidiaries is a party or, to the knowledge of Pozen, with respect to any shares or other equity interests of Pozen or any of the Pozen Subsidiaries or any other Contract relating to disposition, voting or dividends with respect to any shares or other equity securities of Pozen or any of the Pozen Subsidiaries.

(v)           As of the date of this Agreement, neither Pozen nor any of the Pozen Subsidiaries has received written notice of the termination of, or intent to terminate or otherwise fail to materially perform, any Pozen Material Contract.

(o)            Taxes .

(i)            Pozen and each of its Subsidiaries has duly and timely made or prepared all material Tax Returns required to be made or prepared by it, has duly and timely filed all material Tax Returns required to be filed by it with the appropriate Governmental Authority and has completely and correctly reported all income and all other amounts or information required to be reported thereon. Pozen has provided Parent and Tribute copies of its U.S. federal income Tax Return and each other material income Tax Return for taxable years ending 2013, 2012 and 2011. The U.S. federal income Tax Return and each other material income Tax Return filed by Pozen and each of its Subsidiaries for the taxable year ending 2014 shall be made available to Tribute upon filing of such Tax Return with the appropriate Governmental Authority. All material Tax Returns provided or otherwise made available to Parent and Tribute are true, complete and correct copies of such Tax Returns.
 
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(ii)           Pozen and each of the Pozen Subsidiaries has: (A) duly and timely paid all material Taxes due and payable by it other than those that are being contested in good faith pursuant to applicable Laws and in respect of which adequate reserves have been established in accordance with U.S. GAAP in the Pozen Interim Financial Statements; (B) duly and timely withheld all material Taxes and other amounts required by applicable Laws to be withheld by it and has duly and timely remitted to the appropriate Governmental Authority such Taxes and other amounts required by applicable Laws to be remitted by it; and (C) duly and timely collected all material amounts on account of employment, sales or transfer taxes, including goods and services, harmonized, sales, value added and federal, provincial, state or territorial sales taxes, required by applicable Laws to be collected by it and has duly and timely remitted to the appropriate Governmental Authority any such amounts required by applicable Laws to be remitted by it.

(iii)          No audit, action, investigation, deficiency, litigation, proposed adjustment or other Proceeding exists or has been asserted or, to the knowledge of Pozen, threatened with respect to Taxes or Tax Returns of Pozen or any of its Subsidiaries, and neither Pozen nor any of its Subsidiaries is a party to any Proceeding for assessment, reassessment, or collection of Taxes and no such Proceeding has been asserted or, to the knowledge of Pozen, threatened against Pozen or any of its Subsidiaries or any of their respective assets, and there are no matters of dispute or matters under discussion with any Governmental Authority relating to Taxes assessed by any Governmental Authority against Pozen or any of its Subsidiaries or relating to Tax Returns or any other matters which could result in claims for Taxes or additional Taxes. Neither Pozen nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any use of an improper method of accounting for a taxable period ending on or prior to the Closing Date.

(iv)          There are no currently effective or pending material elections, agreements, or waivers extending the limitation period or providing for an extension of time with respect to the assessment or reassessment of any Taxes, the filing of any Tax Return, or the payment of any Taxes by Pozen or any of its Subsidiaries.

(v)           Neither Pozen nor any of its Subsidiaries has made, prepared and/or filed any elections, designations, or similar filings relating to Taxes or entered into any agreement or other arrangement in respect of Taxes or Tax Returns that has effect for any period ending after the Closing Date.

(vi)          To the knowledge of Pozen (including management employees knowledgeable about Tax matters), there are no Liens for Taxes on the property or assets of Pozen or any of its Subsidiaries, except for Permitted Liens.

(vii)         All transactions between Pozen and any of its Subsidiaries, on the one hand, and Pozen or another such Subsidiary, on the other hand, have been effected at the values and on the terms that would have been agreed by unrelated parties acting at arm’s length.

(viii)        Section 3.1(o) of the Pozen Disclosure Letter contains a list of all jurisdictions in which Pozen or any of its Subsidiaries has filed, or is required to file, a Tax Return.

(ix)           Neither Pozen nor any of its Subsidiaries (1) is subject to liability for Taxes of any other Person or (2) has entered into any agreement with, or provided any undertaking to, any Person pursuant to which it has assumed liability for the payment of income Taxes owing by such Person where the sole purpose of such agreements or undertakings is the assumption of such liability.

(x)           Except as set forth on Section 3.1(o) of the Pozen Disclosure Letter, no private letter rulings or similar agreements or rulings have been entered into or issued by any Governmental Authority with respect to Pozen or any of the Pozen Subsidiaries.

(xi)           The charges, accruals, and reserves for Taxes reflected on the Pozen Interim Financial Statements (whether or not due and whether or not shown on any Tax Return, but excluding any provision for deferred income taxes) are adequate under U.S. GAAP to cover Taxes with respect to Pozen and each of its Subsidiaries accruing through the date hereof.

(xii)          None of Pozen or any of its Subsidiaries has been a “distributing corporation” or a “controlled corporation” in any distribution intended to be governed by Section 355(a)(1) of the Code.

(xiii)         Neither Pozen nor any of its Subsidiaries is or has been a party to any “listed transaction,” as defined in Section 6707A(c)(2) of the Code and Reg. §1.6011-4(b)(2).

(xiv)        The transactions contemplated under this Agreement will not accelerate the recognition of taxable income by Pozen or any of its Subsidiaries.

(p)            Employment Agreements and Collective Agreements . Except as set forth on Section 3.1(p) of the Pozen Disclosure Letter, none of Pozen or any of the Pozen Subsidiaries is a party to or bound or governed by (or currently negotiating in connection with entering into), or subject to, or has any liability with respect to:
 
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(i)            any employment, retention or change of control agreement with, or any written or oral agreement, commitment, obligation, arrangement, plan or understanding providing for any retention, bonus, severance, change of control, retirement or termination payments to any current or, to the extent any liability remains outstanding, former director, officer or employee of Pozen or any of the Pozen Subsidiaries (each, an “ Pozen Employment Agreement ”) in excess of $250,000;

(ii)           any collective bargaining or union agreements or other Contract with a labor union, labor organization or employee association, or any actual or, to the knowledge of Pozen, threatened application for certification, recognition or bargaining rights in respect of Pozen or any of the Pozen Subsidiaries, or any Proceeding seeking to compel Pozen or any of the Pozen Subsidiaries to bargain with any labor organization as to wages or conditions of employment;

(iii)          any organized labor dispute, work stoppage or slowdown, strike or lock-out relating to or involving any employees of Pozen or any of the Pozen Subsidiaries; or

(iv)          any actual or, to the knowledge of Pozen, threatened grievance, claim or other Proceeding arising out of or in connection with any labor or employment matter by Pozen or any of the Pozen Subsidiaries or the termination thereof except as would not be expected to have a Material Adverse Effect on Pozen.

True, complete and correct copies of the agreements, arrangements, plans and understandings referred to in paragraphs (i) and (ii) of this Section 3.1(p) have been provided or otherwise made available to Pozen. Except as would not be expected to have a Material Adverse Effect on Pozen, each of Pozen and the Pozen Subsidiaries is in material compliance with all applicable Laws (domestic and foreign), Orders, Contracts and Pozen material policies relating to employment, employment practices, wages, hours and terms and conditions of employment.

(q)            Pension and Employee Benefits .

(i)            Section 3.1(q)(i) of the Pozen Disclosure Letter sets forth a true, complete and correct list of each Pozen Plan.

(ii)           With respect to each Pozen Plan, Pozen has provided or otherwise made available to Parent and Tribute (A) a true and complete copy of each Pozen Plan, including any amendments thereto and all material supporting documents; (B) latest annual report, if any; (C) copies of all material communications received in the last three (3) years with applicable Governmental Authorities; (D) each trust or other funding arrangement; (E) each summary plan description (if applicable); and (F) where applicable, the most recent financial statements and actuarial or other valuation reports prepared with respect thereto.

(iii)          The consummation of the transactions contemplated by this Agreement will not, either alone or in combination with another event, (A) entitle any current or former employee, director, officer, independent contractor or other service provider of Pozen or any Pozen Subsidiary to termination or severance pay (or a material increase thereof), (B) accelerate the time of funding (through a grantor trust or otherwise), payment or vesting, or increase the amount of compensation or benefit due any such employee, director, officer, independent contractor or other service provider of Pozen or any Pozen Subsidiary, or (C) cause amounts payable under the Pozen Plans or Pozen Employment Agreements to fail to be deductible for U.S. federal income tax purposes by virtue of Section 280G of the Code. No employee or individual consultant or independent contractor has a contractual entitlement to a gross-up or additional payment by reason of the tax, penalties or interest required by Section 409A or 4999 of the Code being imposed upon such person.

(iv)          Each Pozen Plan has been established, registered, qualified, funded, invested, maintained, operated and administered in all material respects in accordance with its terms and applicable Law (including Section 409A of the Code). There are no pending or, to the knowledge of Pozen, threatened actions, suits, disputes or claims by or on behalf of any Pozen Plan, by any employee or beneficiary covered under any such Pozen Plan, as applicable, or otherwise involving any such Pozen Plan (other than routine claims for benefits).

(v)           No Pozen Plan provides welfare or post-retirement benefits, including, without limitation, death or medical benefits (whether or not insured), beyond retirement or termination of service to employees or former employees or to the beneficiaries or dependents of such employees, other than coverage mandated solely by applicable Law or at the expense of the participant or the participant’s beneficiary.

(vi)          Neither Pozen, any Pozen Subsidiary or any of their ERISA Affiliates, contributes to or has any liability under, or in the past six (6) years sponsored, contributed to or had liability under (A) a plan subject to Section 412 of the Code or Title IV or Section 302 of ERISA, (B) any “multiemployer plan” as defined in Sections 3(37)(A) or 4001(a)(3) of ERISA, (C) any plan that is subject to Section 413(c) of the Code or Sections 4063, 4064 or 4066 of ERISA or (D) any multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA.

(vii)         Each Pozen Plan that is intended to be qualified under Section 401(a) of the Code has obtained a current favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and, to the knowledge of Pozen, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Pozen Plan.
 
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(viii)        All contributions, premiums or Taxes required to be made or paid by Pozen or any of its Subsidiaries, as the case may be, under or in connection with the Pozen Plans have been made in a timely fashion in accordance with Laws and the terms of the applicable Pozen Plan.

(ix)           Pozen and each Pozen Subsidiary has, for purposes of each Pozen Plan, correctly classified all individuals performing services for either or both of them as common law employees, independent contractors or agents, as applicable.

(x)            None of Pozen, any of its Subsidiaries or any other persons with respect to whom Pozen or any Pozen Subsidiary would have an obligation to indemnify has engaged in a prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) that could result in a material liability to Pozen or any Pozen Subsidiary.

(r)            Intellectual Property .

(i)            Section 3.1(r)(i) of the Pozen Disclosure Letter sets forth a correct and complete list of all (A) Patents, and (B) Trademark registrations and applications and material unregistered Trademarks (C) Copyright registrations and applications, and (D) material Software, in each case which is owned by, or exclusively licensed to, Pozen or any of the Pozen Subsidiaries in any jurisdiction in the world (collectively, the “ Pozen Intellectual Property ”), indicating, for each item of Pozen Intellectual Property, the owner, registration or application number (as applicable) and the applicable filing jurisdiction. Pozen or one of the Pozen Subsidiaries is the sole and exclusive beneficial and, with respect to applications and registrations (including Patents), record owner or exclusive licensee of the record owner of each item of the Pozen Intellectual Property set forth in Section 3.1(r)(i) of the Pozen Disclosure Letter, and, except as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Pozen, to the knowledge of Pozen, all such Intellectual Property is subsisting, valid, and enforceable.

(ii)           To the knowledge of Pozen and except as set forth in Section 3.1(r)(i) of the Pozen Disclosure Letter, Pozen or one of the Pozen Subsidiaries owns, free and clear of all Liens (other than Permitted Liens), or has a valid right to use, all Intellectual Property (A) that covers the products or product candidates presently sold or under development in the conduct of the business of Pozen or one of the Pozen Subsidiaries and (B) used or held for use in, or necessary to conduct, the business and operations of Pozen and the Pozen Subsidiaries as presently conducted.

(iii)          Except as set forth in Section 3.1(r)(i) of the Pozen Disclosure Letter, there are no Orders, writs, injunctions or decrees to which Pozen or any of the Pozen Subsidiaries is subject with respect to any Intellectual Property material to the conduct of the business of Pozen and the Pozen Subsidiaries as presently conducted that is owned by Pozen or any of the Pozen Subsidiaries, nor, to the knowledge of Pozen, any such Orders, writs, injunctions or decrees with respect to such Intellectual Property used or held for use by Pozen or any of the Pozen Subsidiaries.

(iv)          To the knowledge of Pozen, there is no valid basis for a claim of infringement, misappropriation or other violation of material Intellectual Property rights against Pozen or any of the Pozen Subsidiaries in respect of the conduct of their businesses as currently conducted.

(v)           Except as set forth in Section 3.1(r)(i) of the Pozen Disclosure Letter, to the knowledge of Pozen, no Person is infringing, misappropriating or otherwise violating any material Intellectual Property owned, used or held for use by Pozen or any of the Pozen Subsidiaries in the conduct of the business of Pozen and the Pozen Subsidiaries as presently conducted, and no such claims have been asserted or threatened against any Person by Pozen or the Pozen Subsidiaries or, to the knowledge of Pozen, any other Person, in the past six (6) years.

(vi)          Except as set forth in Section 3.1(r)(i) of the Pozen Disclosure Letter, to the knowledge of Pozen, there has been no claim asserted or threatened, or Proceedings of any kind pending or in progress, challenging the scope, validity or enforceability of any material Pozen Intellectual Property applications or registrations (including Patents) owned by or licensed to Pozen or any of the Pozen Subsidiaries.

(s)            Regulatory Matters .

(i)            Since December 31, 2012, the businesses of each of Pozen and the Pozen Subsidiaries, and to the knowledge of Pozen, its third party suppliers and contractors, have been and are being conducted in material compliance with all Laws governing the quality, identity, strength, purity, safety, efficacy, investigation, development, record keeping, reporting, testing, development, manufacturing, processing, packaging, labeling, storage, transportation, importation, exportation and distribution of pharmaceutical drugs, including without limitation, to the extent applicable, (A) the Federal Food, Drug, and Cosmetic Act of 1938, 21 U.S.C. § 301 et seq. (the “ FDCA ”); (B) the Public Health Service Act of 1944; (C) Canada’s Food and Drugs Act R.S.C. , 1985, c. F-27 as am. (the “ CFDA ”); the Canadian Food and Drug Regulations (C.R.C. c. 870 as am.); the Canadian Medical Device Regulations (SOR/98-282 as am.); (D) United States federal Medicare and Medicaid statutes and related state or local statutes or regulations; (E) United States federal or state criminal or civil Laws (including the federal Anti-Kickback Statute (42 U.S.C. §1320a-7(b))), Stark Law (42 U.S.C. §1395nn), False Claims Act (31 U.S.C. §3729, et seq.), the Physician Payments Sunshine Act, the Prescription Drug Marketing Act of 1987, the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act, and any comparable state, provincial or local Laws (“ HIPAA ”); (F) the Canadian Patent Act (R.S.C. 1985 c. P-4 as am.) and Patented Medicine (Notice of Compliance) Regulations (SOR/93-133 as am.), the Patented Medicine Regulations, 1994 (SOR/94-688) and the guidelines of the Patent Medicines Pricing Review Board (the “ PMPRB ”); (G) the Orphan Drug Act of 1983, 96 Stat. 2049; (H) the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010; (I) state or provincial licensing, disclosure, billing, labeling, storage, testing, distribution, sales, marketing and reporting requirements for pharmaceutical products and medical devices; (J) any applicable privacy laws including, without limitation, the Personal Information Protection and Electronic Documents Act (Canada) (“ PIPEDA ”) and the Personal Health Information Protection Act (Ontario) (“ PHIPA ”); (K) all Laws similar to the foregoing in all other jurisdictions; and (L) all binding rules and regulations issued under such Laws.
 
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(ii)           Each of Pozen and the Pozen Subsidiaries holds all material Regulatory Authorizations necessary for the lawful operation of their businesses and the import, testing, manufacturing, handling, storage, transportation, sale, distribution, marketing, promotion, or export, as applicable, of each of their products, including without limitation notices of compliance, drug establishment licenses, medical device establishment licenses and medical device licenses. All such material Regulatory Authorizations are valid and in full force and effect or in the process of being obtained in the ordinary course of business. Since December 31, 2012, there has not occurred any violation of, default (with or without notice or lapse of time or both) under, or event giving to others any right of termination, amendment or cancellation of, with or without notice or lapse of time or both, any Regulatory Authorization, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Pozen. Pozen and each of the Pozen Subsidiaries are in material compliance with the terms of all Regulatory Authorizations, and no event has occurred that, to the knowledge of Pozen, would reasonably be expected to result in the suspension, revocation, cancellation, non-renewal or adverse modification of any Regulatory Authorization.

(iii)          All pre-clinical and clinical investigations conducted or sponsored by Pozen or any of the Pozen Subsidiaries have been, since December 31, 2012, and are being conducted in compliance in all material respects with all applicable Laws and Regulatory Guidelines administered or issued by the applicable Regulatory Authorities, including where applicable (A) FDA standards for conducting non-clinical laboratory studies contained in Title 21 part 58 of the Code of Federal Regulations, (B) FDA standards for the design, conduct, performance, monitoring, auditing, recording, analysis, reporting of serious adverse reactions, and reporting of clinical trials contained in Title 21 parts 50, 54, 56, 312, 314 and 320 of the Code of Federal Regulations, (C) Division 5 of the Food and Drug Regulations regarding Drugs for Clinical Trials Involving Human Subjects, Part 3 of the Medical Device Regulations (SOR/98-282as am.) and (D) the federal, state and provincial Laws and Regulatory Guidelines restricting the collection, use and disclosure of individually identifiable health information and personal information, including without limitation PHIPA and PIPEDA. Neither Pozen nor any of the Pozen Subsidiaries has received any written notice, correspondence or other communication from any Regulatory Authority, including the FDA, Health Canada, any Institutional Review Board, Research Ethics Board or any other Regulatory Authority since December 31, 2012, initiating or requiring, and are not aware of any facts which are reasonably likely to cause, the termination, suspension or materially adverse modification of any pre-clinical or clinical trial conducted or sponsored by Pozen or the Pozen Subsidiaries.

(iv)          All material reports, documents, claims, permits, applications, accreditations and notices required to be filed, maintained or furnished to the FDA, Health Canada, PMPRB or any other Regulatory Authority by Pozen and its Subsidiaries have been so filed, maintained or furnished. All such reports, documents, claims, permits, applications, and notices were complete and accurate in all material respects on the date filed (or were corrected in or supplemented by a subsequent filing) such that no liability exists with respect to such filing. Neither Pozen nor any Pozen Subsidiary, nor, to the knowledge of Pozen, any officer, employee, agent or distributor of Pozen or any of its Subsidiaries, has made an untrue statement of a material fact or a fraudulent statement to the FDA, Health Canada, PMPRB or any other Regulatory Authority, failed to disclose a material fact required to be disclosed to the FDA, Health Canada, PMPRB or any other Regulatory Authority, or, to the knowledge of Pozen, committed an act, made a statement or failed to make a statement that, at the time such disclosure was made, would reasonably be expected to provide a basis for the FDA to invoke its policy respecting “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities,” set forth in 56 Fed. Reg. 46191 (September 10, 1991) or any other Regulatory Authority to invoke any similar policy. Neither Pozen nor any of its Subsidiaries is the subject of any pending or threatened investigation by the FDA, Health Canada, or any other Regulatory Authority pursuant to such policies.

(v)           Neither Pozen nor any of the Pozen Subsidiaries has received any written information from the FDA, Health Canada or any other Regulatory Authority that would reasonably be expected to lead to the denial of any application for marketing approval currently pending before the FDA, Health Canada or such other Regulatory Authority.

(vi)          Neither Pozen nor any of Pozen Subsidiaries has received any warning letters from the FDA, Health Canada, or any other Regulatory Authority regarding inappropriate advertising or marketing of any of its products or any written notice of any actual or potential violation of Laws with respect to the advertising or marketing of any of its products. Each product of Pozen or its Subsidiaries is labeled, packaged, advertised and marketed as necessary to enable its sale to be lawful in the United States including compliance with FDA and Federal Drug Regulations.
 
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(vii)         Pozen and the Pozen Subsidiaries (A) are not a party to and do not have any obligations under any settlement agreement entered into with any Regulatory Authority and (B) since December 31, 2012, have not been the subject of any Regulatory Authority or medical reimbursement investigation other than routine audits and reviews, in any case that would, individually or in the aggregate, be expected to have a Material Adverse Effect on Pozen.

(viii)        Neither Pozen nor any of the Pozen Subsidiaries, nor, to the knowledge of Pozen, any officer, employee, agent or distributor of Pozen or any of the Pozen Subsidiaries, has been convicted of any crime or engaged in any conduct for which debarment is mandated by 21 U.S.C. § 335a(a) or any similar Law or authorized by 21 U.S.C. § 335a(b) or any similar Law, nor has any such person been so disbarred. Neither Pozen nor any of its Subsidiaries, nor, to the knowledge of Pozen, any officer, employee, agent or distributor of Pozen or any of its Subsidiaries, has been convicted of any crime or engaged in any conduct for which such Person could be excluded from participating in the United States federal health care programs under Section 1128 of the Social Security Act of 1935, as amended, or any similar Law or program or has been excluded from participation in such programs. Neither Pozen nor any of its Subsidiaries nor, to its knowledge, any officer, employee, agent or distributor of Pozen or any of the Pozen Subsidiaries is subject to an investigation or proceeding by any Regulatory Authority that could result in suspension, exclusion, or debarment, and there are no facts that could give rise to such suspension, exclusion or debarment.

(ix)           Each product or product candidate currently under development or being sold by Pozen or any of the Pozen Subsidiaries and which is subject to the CFDA, FDCA or any Law or Regulatory Guidelines in any foreign jurisdiction that is or has been developed, manufactured, tested, distributed and/or marketed by or on behalf of Pozen or any of the Pozen Subsidiaries (each a “ Pozen Product ”) is being or has been developed, imported, tested, manufactured, handled, stored, transported, sold, distributed, marketed, promoted or exported in material compliance with all applicable requirements under the CFDA, FDCA or any other applicable state, provincial and similar Laws, Regulations and Regulatory Guidelines, including those relating to investigational use, special access, pre-market clearance or marketing approval, good manufacturing practices, good clinical practices, good laboratory practices, labeling, advertising, record keeping, filing of reports, protection of human subjects, humane care and use of laboratory animals, Law or Regulatory Guidelines governing the practice of pharmacy, data integrity and security, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Pozen. To Pozen’s knowledge, no employee of Pozen or a Pozen Subsidiary responsible for management of the import, testing, manufacturing, handling, storage, transportation, sale, distribution, marketing, promotion or export of the Pozen Products has been sanctioned by a Governmental Authority for non-compliance with applicable Laws or Regulatory Guidelines.

(x)            (A) Neither Pozen, nor any of the Pozen Subsidiaries nor, to Pozen’s knowledge to the extent it relates to any Pozen Products, any subcontractors, contract manufacturers or other parties has, except as disclosed in the Pozen Disclosure Letter, since December 31, 2012, received any FDA Form 483, notice of adverse finding, notice of violation, untitled letter, warning letter, data integrity review or other similar correspondence or notice from the FDA, Health Canada, state, provincial or any other Regulatory Authority, and (B) there is no action or proceeding pending or, to the knowledge of Pozen, threatened, in the case of either (A) or (B): (I) contesting the pre-market clearance or approval of, the uses of, the reimbursement of or the labeling or promotion of any Pozen Product (II) contesting the compliance with Law or Regulatory Guidelines of any facility where a Pozen Product is developed, tested, manufactured, handled, stored, distributed or transported or (C) otherwise alleging any violation applicable to any Pozen Product or manufacturing process of any Law or Regulatory Guidelines by Pozen or Pozen’s Subsidiaries.

(xi)           Since December 31, 2012, Pozen and Pozen’s Subsidiaries have not either voluntarily or involuntarily initiated, conducted or issued, or caused to be initiated, conducted or issued, any recall, field notification, field correction, market withdrawal or replacement, warning, “dear doctor” letter, investigator notice, safety alert or other notice or action relating to an alleged lack of safety, lack of efficacy, adulteration, misbranding or lack of regulatory compliance of any Pozen Product. Pozen and Pozen’s Subsidiaries are not aware of any facts which are reasonably likely to cause, and neither Pozen nor any of the Pozen Subsidiaries has received any written notice that the FDA, Health Canada or any other Regulatory Authority or Governmental Authority has commenced, or threatened to initiate, any action to cause (A) the seizure, recall, market withdrawal or replacement of any Pozen Product, (B) a change in the marketing classification or a material change in the labeling or advertising of any Pozen Product, or (C) a termination, suspension or injunction of the manufacture, marketing, storage or distribution of any Pozen Products. Pozen and the Pozen Subsidiaries have complied in all material respects with all recalls, market withdrawals or other corrective actions and have no obligation or liability with respect to any recall, market withdrawal or corrective action.

(xii)          Pozen and its Subsidiaries have made available to Tribute complete and accurate copies of all: (a) serious adverse event reports, periodic adverse event reports and other pharmacovigilance reports and data, (b) material communications with Regulatory Authorities, and (c) material documents and other information submitted to or received by or on behalf of Pozen or any of Pozen’s Subsidiaries with or from any Regulatory Authority, including inspection reports, warning letters and similar documents which are in Pozen’s possession or to which Pozen has contractual access rights.

(t)             Books and Records . The corporate records and minute books of Pozen and the Pozen Subsidiaries have been maintained in accordance with all applicable Laws in all material respects, and such corporate records and minute books are complete and accurate in all material respects, including, but not limited to, the fact that the minute books contain the minutes of all meetings of the boards of directors, committees of the board and stockholders and all resolutions passed by the boards of directors, committees of the boards and the stockholders, except that minutes of certain recent meetings of the Pozen Board of Directors or committees thereof have not been finalized as of the date hereof. All such corporate records and minute books of Pozen and the Pozen Subsidiaries have been provided or otherwise made available to Tribute.
 
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(u)            Fairness Opinions. The Pozen Board of Directors has received the Pozen Fairness Opinions to the effect that, subject to the assumptions, limitations, qualifications and conditions set forth therein, as of the date of each such opinion, the Merger Consideration is fair, from a financial point of view, to the Pozen Stockholders (excluding Parent and Tribute and each of their respective Affiliates). The true, correct and complete copies of the Pozen Fairness Opinions will be provided by Pozen to Parent and Tribute solely for informational purposes not later than two (2) Business Days after the date hereof.

(v)            Board of Directors Approval . The Pozen Board of Directors has unanimously determined that this Agreement and the Merger are fair to Pozen Stockholders and are in the best interests of Pozen, has unanimously approved the execution and delivery of this Agreement and the transactions contemplated by this Agreement and, subject to Section 6.2, has unanimously resolved to recommend that Pozen Stockholders vote in favor of the adoption of this Agreement. As of the date of this Agreement, each director and executive officer of Pozen intends, to the knowledge of Pozen, to vote all of the Pozen Common Shares held by him or her in favor of the adoption of this Agreement and has agreed that, unless there has been a Pozen Change of Recommendation, references to such intention may be made in the Tribute Circular and other documents relating to the Arrangement.

(w)           Environmental Matters . Except for such matters as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (i) Pozen and the Pozen Subsidiaries are now and have been in compliance with all, and have not violated any, applicable Environmental Laws; (ii) there is no Environmental Claim pending or, to the knowledge of Pozen, threatened against Pozen, any of its Subsidiaries or, to the knowledge of Pozen, against any Person whose liability for such Environmental Claims Pozen or any of its Subsidiaries has retained or assumed either contractually or by operation of law, and, to the knowledge of Pozen, there are no actions, activities, circumstances, facts, conditions, events or incidents that would reasonably be expected to give rise to such Environmental Claims; (iii) no property currently or formerly owned, leased or operated by Pozen and the Pozen Subsidiaries (including soils, groundwater, surface water, buildings or other structures), or any other location, is contaminated with any Hazardous Substance in a manner that would reasonably be expected to require remedial, investigation or clean-up activities by Pozen or any of the Pozen Subsidiaries or by any Person whose liability for such Environmental Claims Pozen or any of its Subsidiaries has or may have retained or assumed either contractually or by operation of law; (iv) neither Pozen nor any Pozen Subsidiary is subject to any order, decree, injunction or agreement with any Governmental Authority, or any indemnity or other agreement with any third party, concerning liabilities or obligations relating to any Environmental Law or otherwise relating to any Hazardous Substance; (v) each of Pozen and the Pozen Subsidiaries has all of the environmental Permits necessary for the conduct and operation of its business as now being conducted, and all such environmental Permits are in good standing; and (vi) Pozen has delivered or otherwise made available copies of any Phase I or II environmental site assessments (or similar reports), or material documents relating to any alleged or actual non-compliance with applicable Environmental Laws by Pozen and the Pozen Subsidiaries, in each case received or commissioned by Pozen since December 31, 2008.

(x)            Insurance . Section 3.1(x) of the Pozen Disclosure Letter contains an accurate and complete list as of the date of this Agreement of all policies of fire, liability, workmen’s compensation and other forms of insurance owned by Pozen or any Pozen Subsidiary. All current insurance policies and contracts of Pozen and the Pozen Subsidiaries are in full force and effect and are valid and enforceable, and all premiums due thereunder have been paid. None of Pozen nor any of the Pozen Subsidiaries has received written notice of cancellation or termination with respect to any material insurance policies or contracts (other than in connection with normal renewals of any such insurance policies or contracts) nor, to the knowledge of Pozen, have any claims been denied under any current insurance policies, and, to the knowledge of Pozen, no threat has been made to cancel any insurance policy or contract of Pozen or any Pozen Subsidiary as of the date of this Agreement, or to deny any claim under current insurance policies or contract.

(y)            Stockholder Approval . The only vote of the stockholders of Pozen required to adopt this Agreement and approve the Merger is the Pozen Stockholder Approval. No other vote of the stockholders of Pozen is required by Law, the constituent documents of Pozen or otherwise to adopt this Agreement and approve the Merger.

(z)            Brokers and Finders . Neither Pozen nor any of its Subsidiaries has used any broker or finder in connection with the transactions contemplated hereby, except that Pozen has engaged the Pozen Financial Advisors as its financial advisors, and no other broker, finder or investment banker is entitled to any fee or commission from Pozen or any of its Subsidiaries in connection with the transactions contemplated hereby, and no other Person is or may become entitled to receive any fee or other amount from Pozen or any of its Subsidiaries in connection with the transactions contemplated hereby. A true and correct copy of the engagement letter with each of Pozen’s Financial Advisors in connection with the transactions contemplated hereby has been provided or otherwise made available to Parent and Tribute and has not been subsequently amended, waived or supplemented.

(aa)          United States Investment Company Act of 1940 . Neither Pozen nor any of its Subsidiaries is, or will be as of the closing date of the Merger, an “investment company,” as such term is defined under the United States Investment Company Act of 1940, as amended, registered or required to be registered under such Act.
 
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(bb)          Relevant Competition Laws . Pozen is a “WTO investor” as defined in the Investment Canada Act (Canada).

(cc)          No Other Representations and Warranties . Except for the representations and warranties made by Pozen in this Section 3.1, neither Pozen nor any other Person makes any express or implied representation or warranty with respect to Pozen or any of its Subsidiaries or their respective businesses, assets, operations, liabilities, condition (financial or otherwise) or prospects, and Pozen hereby disclaims any such other representations or warranties. In particular, without limiting the foregoing disclaimer, except for the representations and warranties made by Pozen in this Section 3.1, neither Pozen nor any other Person makes or has made any representation or warranty to Parent, Tribute or any of their respective Representatives with respect to (i) any financial projection, forecast, estimate, budget or prospective information relating to Pozen, any of the Pozen Subsidiaries or their respective businesses or operations or (ii) any oral or written information furnished or made available to Parent, Tribute or any of their respective Representatives in the course of their due diligence investigation of Pozen, the negotiation of this Agreement or the consummation of the transactions contemplated by this Agreement, including the accuracy, completeness or currency thereof, and neither Pozen nor any other Person will have any liability to Parent, Tribute or any other Person in respect of such information, including any subsequent use of such information, except in the case of fraud. Notwithstanding anything contained in this Agreement to the contrary, Pozen acknowledges and agrees that none of Parent, Tribute or any other Person has made or is making any representations or warranties whatsoever, express or implied, beyond those expressly made by Tribute and Parent in Sections 3.2 and 3.3, respectively, including any implied representation or warranty as to the accuracy or completeness of any information regarding Parent or Tribute furnished or made available to Pozen, or any of its Representatives.

3.2           Representations and Warranties of Tribute

Except as disclosed in the applicable section or subsection of the Tribute Disclosure Letter (it being agreed that disclosure of any item in any section or subsection of the Tribute Disclosure Letter shall be deemed disclosure with respect to any other section or subsection of the Tribute Disclosure Letter only to the extent the relevance of such item to such other section or subsection is reasonably apparent on its face) or the Tribute Public Disclosure Record (other than any disclosure contained under the captions “Risk Factors” or “Forward Looking Statements” or similar captions and any other disclosure contained therein that is predictive, cautionary or forward-looking in nature), Tribute represents and warrants to and in favor of Parent and Pozen as follows and acknowledges that Parent and Pozen are relying upon such representations and warranties in entering into this Agreement:

(a)            Organization and Qualification . Tribute has been duly amalgamated, validly exists and is in good standing under the Laws of its jurisdiction of organization and has the requisite corporate and legal power and capacity to own its assets as now owned and to carry on its business as it is now being carried on. Each of the Tribute Subsidiaries is a corporation or other entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of incorporation, organization or formation and has the requisite corporate, legal or other power and authority to own its assets as now owned and to carry on its business as it is now being carried on. Tribute and each of the Tribute Subsidiaries is duly qualified to carry on business in each jurisdiction in which the nature or character of the respective properties and assets owned, leased or operated by it, or the nature of its business or activities, makes such qualification necessary, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect on Tribute. Tribute has provided to Parent and Pozen true, complete and correct copies of the constituent documents of each of Tribute and Tribute’s Subsidiaries, in each case as amended.

(b)            Authority Relative to this Agreement . Tribute has the requisite corporate power, authority and capacity to enter into this Agreement and (subject to obtaining the Tribute Shareholder Approval and the Required Regulatory Approvals, all as contemplated in this Agreement) to perform its obligations hereunder and to complete the transactions contemplated by this Agreement. The execution and delivery of this Agreement and the completion by Tribute of the transactions contemplated by this Agreement have been duly authorized by the Tribute Board of Directors and no other corporate proceedings on the part of Tribute are necessary to authorize the execution and delivery by it of this Agreement or, subject to obtaining the Tribute Shareholder Approval as contemplated in this Agreement, the completion by Tribute of the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by Tribute and constitutes a legal, valid and binding obligation of Tribute enforceable against Tribute in accordance with its terms, subject to bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and other Laws relating to limitations of actions or affecting the availability of equitable remedies and the enforcement of creditors’ rights generally and general principles of equity.

(c)            Required Approvals . No authorization, license, Permit, certificate, registration, consent or approval of, or filing with, or notification to, any Governmental Authority is necessary for the execution and delivery by Tribute of this Agreement, the performance by Tribute of its obligations hereunder and the completion by Tribute of the Merger or the Arrangement, other than:

(i)            the Interim Order and any filings required in order to obtain, and approvals required under, the Interim Order;

(ii)           the Final Order, and any filings required in order to obtain the Final Order;

(iii)          such filings and other actions required under applicable U.S. Securities Laws and Canadian Securities Laws and the rules and policies of NASDAQ, the TSXV and the TSX (if applicable), in each case, as are contemplated by this Agreement;
 
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(iv)          the Required Regulatory Approvals relating to Tribute; and

(v)           any other authorizations, licenses, Permits, certificates, registrations, consents, approvals and filings and notifications with respect to which the failure to obtain or make the same would not reasonably be expected to have a Material Adverse Effect on Tribute, or could not reasonably be expected to prevent or significantly impede or materially delay the completion of the Merger and the Arrangement.

(d)            No Violation . Subject to obtaining the authorizations, consents and approvals and making the filings referred to in Section 3.2(c) and the consents referred to in Section 3.2(d) of the Tribute Disclosure Letter and complying with applicable Laws and Orders, the execution and delivery by Tribute of this Agreement, the performance by Tribute of its obligations hereunder and the completion of the Merger and the Arrangement do not and will not (nor will they with the giving of notice or the lapse of time or both):

(i)            result in a contravention, breach, violation or default under any Law or Order applicable to Tribute or any of the Tribute Subsidiaries or any of its or their respective properties or assets;

(ii)           result in a contravention, conflict, violation, breach or default under the constituent documents of Tribute or any of the Tribute Subsidiaries;

(iii)          result in a contravention, breach or default under or termination of, or acceleration or permit the acceleration of the performance required by, or loss of any material benefit under, any Tribute Material Contract or material Permit to which it or any of the Tribute Subsidiaries is a party or by which it or any of the Tribute Subsidiaries is bound or to which any of its or any of the Tribute Subsidiaries’ properties or assets is subject or give to any Person any interest, benefit or right, including any right of purchase or sale, termination, payment, modification, reimbursement, penalty, cancellation or acceleration, under any such Tribute Material Contract or material Permit; or

(iv)          result in the suspension or alteration in the terms of any material Permit held by Tribute or any of the Tribute Subsidiaries or in the creation of any Lien upon any of their properties or assets;

except, in the case of each of clauses (i), (iii) and (iv) above, as would not reasonably be expected to have a Material Adverse Effect on Tribute or that would reasonably be expected to prevent or significantly impede or materially delay the completion of the Merger and the Arrangement.

(e)            Capitalization of Tribute . The authorized capital of Tribute consists of an unlimited number of Tribute Common Shares and unlimited number of preferred shares. As at the close of business on June 5, 2015, there are (i) 116,145,575 Tribute Common Shares issued and outstanding, all of which have been duly authorized and validly issued and are fully paid and non-assessable and no preferred shares outstanding, and (ii) 8,470,956 Tribute Options outstanding under the Tribute Stock Option Plan providing for the issuance of 8,470,956 Tribute Common Shares upon the exercise thereof and (iii) 32,273,441 Tribute Common Shares reserved for issuance pursuant to the Tribute Warrants and Tribute Compensation Options. None of such Tribute Common Shares, Tribute Options, Tribute Warrants or Tribute Compensation Options is owned by Tribute or any Subsidiary of Tribute. There is no outstanding contractual obligation of Tribute or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Tribute Common Shares. Except for the Tribute Options, the Tribute Warrants and the Tribute Compensation Options, Tribute has no outstanding agreement, subscription, warrant, option, conversion or exchange privilege right, arrangement or commitment (nor has it granted any right or privilege (contingent or otherwise) capable of becoming an agreement, subscription, warrant, option, conversion or exchange privilege, right, arrangement or commitment) obligating it to issue or sell any Tribute Common Shares or other securities of Tribute, including any security or obligation of any kind convertible into or exchangeable or exercisable for any Tribute Common Shares or other security of Tribute. Except for the Tribute Options, the Tribute Warrants and the Tribute Compensation Options, neither Tribute nor any of Tribute’s Subsidiaries has outstanding any stock appreciation right, phantom equity, restricted share unit, deferred share unit or similar right, agreement, arrangement or commitment based on the book value, Tribute Common Share price, income or any other attribute of or related to Tribute or any of its Subsidiaries. The Tribute Common Shares are listed on the TSXV and the OTCQX International and, except for such listings, no securities of Tribute or any of Tribute’s Subsidiaries are listed on any other stock or securities exchange or market or registered under any securities Laws. There are no outstanding bonds, debentures or other evidences of indebtedness of Tribute or any of Tribute’s Subsidiaries having the right to vote (or that are convertible into or exchangeable or exercisable for securities having the right to vote) with the holders of Tribute Common Shares on any matter. Section 3.2(e) of the Tribute Disclosure Letter sets out a true, complete and correct list of all Tribute Options, Tribute Warrants and Tribute Compensation Options, the names of the holders of Tribute Options, Tribute Warrants and Tribute Compensation Options, whether each such holder is a current director of Tribute or current employee of Tribute or any of its Subsidiaries and the grant date and the exercise price for such Tribute Options, Tribute Warrants and Tribute Compensation Options. A true, correct and complete copy of the Tribute Stock Option Plan has been provided or otherwise made available to Pozen.

(f)             Tribute Subsidiaries . Section 3.2(f) of the Tribute Disclosure Letter sets forth a true, complete and correct list of each of the Tribute Subsidiaries, its jurisdiction and form of organization. Tribute or a Tribute Subsidiary is the sole registered and beneficial owner of all of the outstanding shares in the capital of or outstanding shares of capital stock or other ownership, equity or voting interests of the Tribute Subsidiaries free and clear of any Liens (other than Permitted Liens), all such shares are validly issued, fully paid and non-assessable, and no other Person has any option, right, entitlement, understanding or commitment (contingent or otherwise) regarding the right to acquire any such share or interest in any of the Tribute Subsidiaries and no Tribute Subsidiary has any outstanding option, warrant, conversion or exchange privilege or other right, agreement, arrangement or commitment obligating any such entity to issue or sell any share or ownership, equity or voting interest of such entity or security or obligation of any kind convertible into or exchangeable or exercisable for any shares or ownership, equity or voting interests of any such entity. Neither Tribute nor any of the Tribute Subsidiaries own any interest or investment (whether equity or debt) in any other Person, other than a Tribute Subsidiary, which interest or investment is material to Tribute and the Tribute Subsidiaries, taken as a whole.
 
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(g)            Securities Laws Matters .

(i)            Tribute is a “reporting issuer” within the meaning of applicable Canadian Securities Laws in the provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and not on the list of reporting issuers in default under applicable Canadian Securities Laws in any such jurisdiction. No securities commission or similar regulatory authority has issued any order preventing or suspending trading of any securities of Tribute.

(ii)           Tribute is in compliance in all material respects with applicable Canadian Securities Laws, U.S. Securities Law and the requirements of TSXV and the OTCQX International for continued listing of the Tribute Common Shares thereon. Except for the transactions contemplated by this Agreement, Tribute has not taken any action designed to terminate, or likely to have the effect of causing Tribute to cease to be a reporting issuer or which could lead to the de-listing of such shares from the facilities of the TSXV or the OTCQX International.

(iii)          Trading in the Tribute Common Shares on the TSXV is not currently halted or suspended. No delisting, suspension of trading or cease trading order with respect to any securities of Tribute is pending or, to the knowledge of Tribute, threatened. To the knowledge of Tribute, as of the date of this Agreement, no inquiry, review or investigation (formal or informal) of Tribute by any securities commission, the TSXV or any similar regulatory authority under applicable Canadian Securities Laws, U.S. Securities Laws or the policies of the TSXV is in effect or ongoing or expected to be implemented or undertaken.

(iv)          Except as set forth above in this Section 3.2(g), neither Tribute nor any of its Subsidiaries is subject to continuous disclosure or other public reporting requirements under any securities Laws.

(v)           Since December 31, 2012, Tribute has timely filed all forms, reports, statements and documents, including financial statements and management’s discussion and analysis required to be filed by Tribute under applicable Canadian Securities Laws, U.S. Securities Law and the rules and policies of TSXV and the OTCQX International. The documents in the Tribute Public Disclosure Record, as at the respective dates filed, were in compliance in all material respects with applicable Canadian Securities Laws, U.S. Securities Law and, where applicable, the rules and policies of TSXV and the OTCQX International.

(vi)          None of the documents in the Tribute Public Disclosure Record, as of their respective dates (and, if amended or superseded by a filing prior to the date hereof, then on the date of such filing), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Tribute has not filed any confidential material change reports which remain confidential as at the date hereof.

(h)            Financial Statements .

(i)            The Tribute Financial Statements have been prepared in accordance with U.S. GAAP applied on a basis consistent with those of previous periods and in accordance with applicable Laws, except as otherwise stated in the notes to such statements or in the auditor’s report thereon and subject, in the case of the Tribute Interim Financial Statements, to normal year-end audit adjustments, which are not material to Tribute and the Tribute Subsidiaries, taken as a whole, individually or in the aggregate, and may omit notes which are not material and are not required by applicable Laws or U.S. GAAP. The Tribute Financial Statements present fairly, in all material respects, the consolidated balance sheets and consolidated statements of operations, consolidated statements of stockholders’ equity and consolidated statements of cash flows of Tribute and the Tribute Subsidiaries as of the respective dates thereof and for the respective periods set forth therein. There are no outstanding loans made by Tribute or any of the Tribute Subsidiaries to any director or officer of Tribute. All of such documents in the Tribute Public Disclosure Record (including any financial statements included or incorporated by reference therein), as of their respective dates (and as of the date of any amendment to the respective document in the Tribute Public Disclosure Record), complied as to form in all material respects with the applicable requirements of the Canadian Securities Laws and U.S. Securities Laws, as applicable.

(ii)           Tribute has designed such disclosure controls and procedures, or caused them to be designed under the supervision of its Chief Executive Officer and Chief Financial Officer, to provide reasonable assurance that material information relating to Tribute is made known to its Chief Executive Officer and Chief Financial Officer by others within Tribute and the Tribute Subsidiaries.
 
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(iii)          Tribute has designed such internal controls over financial reporting, or caused them to be designed under the supervision of the Chief Executive Officer and Chief Financial Officer of Tribute, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. GAAP and applicable Canadian Securities Laws. To the knowledge of Tribute, since December 31, 2012: (A) except as set forth on Section 3.2(h)(iii) of the Tribute Disclosure Letter, there have been no significant deficiencies in the design or operation of, or material weaknesses in, the internal controls over financial reporting of Tribute that are reasonably likely to adversely affect Tribute’s ability to record, process, summarize and report financial information, and (B) there is and has been no fraud, whether or not material, involving management or any other employees who have a significant role in the internal control over financial reporting of Tribute. To the knowledge of Tribute, since December 31, 2012, Tribute has received no (x) written complaints from any source regarding accounting, internal accounting controls or auditing matters or (y) written reports from employees of Tribute regarding questionable accounting or auditing matters.

(i)             No Undisclosed Liabilities . Tribute and the Tribute Subsidiaries have no liability or obligation of any nature (whether accrued, absolute, contingent or otherwise) that would be required to be disclosed on a balance sheet (or the footnotes thereto) prepared in accordance with U.S. GAAP, other than (i) liabilities and obligations disclosed in the Tribute Public Disclosure Record, (ii) liabilities and obligations incurred in the ordinary course of business (other than those specifically disclosed in the Tribute Public Disclosure Record) that would not reasonably be expected to be material to Tribute and its Subsidiaries, taken as a whole (other than those disclosed in the Tribute Public Disclosure Record), (iii) liabilities under Contracts (other than any such liability resulting from a breach or default thereunder) and (iv) liabilities and obligations incurred in connection with this Agreement and the transactions contemplated by this Agreement. Without limiting anything set forth herein, the Tribute Financial Statements reflected and continued to reflect, in each case as of the date filed, appropriate reserves under U.S. GAAP for contingent liabilities relating to pending or anticipated litigation and other contingent obligations of Tribute and the Tribute Subsidiaries.

(j)             Absence of Certain Changes . From the date of the most recent Tribute Annual Financial Statements to the date of this Agreement, (i) no result, fact, change, effect, event, circumstance, occurrence or development has occurred or arisen which has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Tribute and (ii) Tribute and each of the Tribute Subsidiaries has conducted its business in all material respects in the ordinary course of business consistent with past practice.

(k)            Compliance with Laws . Since December 31, 2012, the business of Tribute and of each of the Tribute Subsidiaries has been and is currently being conducted in material compliance with all applicable Laws, Orders, Regulatory Guidelines and policies and neither Tribute nor any Tribute Subsidiary has received any written notice of any alleged material non-compliance or violation of any such Laws, Orders or Regulatory Guidelines. Neither Tribute nor any of the Tribute Subsidiaries has taken or committed to take any action which would cause Tribute or any of the Tribute Subsidiaries to be in violation of the United States Foreign Corrupt Practices Act, the Corruption of Foreign Public Officials Act (Canada) or any applicable Laws of similar effect, and, to the knowledge of Tribute, no such action has been taken by any Person acting on behalf of Tribute or any of the Tribute Subsidiaries.

(l)             Litigation . Section 3.2(l) of the Tribute Disclosure Letter sets forth a list of all Proceedings to which Tribute is a party. Except as set forth on Section 3.2(l) of the Tribute Disclosure Letter, there is no Proceeding against or involving Tribute or any of the Tribute Subsidiaries (whether in progress, pending or, to the knowledge of Tribute, threatened) that, if adversely determined, would reasonably be expected to have a Material Adverse Effect on Tribute or would prevent or significantly impede or materially delay the completion of the Merger and Arrangement and, to the knowledge of Tribute, no event or circumstance has occurred which would reasonably be expected to give rise to any such Proceeding. Neither Tribute nor any of the Tribute Subsidiaries nor any of their respective properties or assets is subject to any outstanding Order that would reasonably be expected to prevent or significantly impede or materially delay the completion of the Merger and the Arrangement or have a Material Adverse Effect on Tribute.

(m)           Real Property . Section 3.2(m) of the Tribute Disclosure Letter contains (a) a list of all leases and subleases pursuant to which Tribute or any Tribute Subsidiary currently leases real property as tenant (the “ Tribute   Real Property Leases ”) and (b) a list of all real property owned by Tribute or any Tribute Subsidiary (“ Tribute Owned Real Property ”). Each Tribute Real Property Lease is a valid leasehold, sublease interest or comparable right, and Tribute or one of the Tribute Subsidiaries holds good, valid and marketable beneficial and legal title to the Tribute Owned Real Property. There is no pending or, to the knowledge of Tribute, threatened condemnation or expropriation proceedings with respect to any Tribute Owned Real Property. There are no outstanding options or rights of first refusal to purchase any Tribute Owned Real Property (or any portion thereof or interest therein). Except for Permitted Liens, there are no Liens registered against any Tribute Owned Real Property.

(n)            Contracts .

(i)            Except as set forth in Section 3.2(n) of the Tribute Disclosure Letter, as of the date of this Agreement, none of Tribute or any of the Tribute Subsidiaries is a party to or bound by any of the following types of Contract (other than a Tribute Employment Agreement or a Tribute Plan) (each of the following types of Contracts, a “ Tribute Material Contract ”):
 
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(A)          any Contract entered into outside of the ordinary course of business which is both (i) reasonably expected to involve the payment or receipt in 2015 or any subsequent year of an amount in excess of $500,000, and (ii) not terminable by Tribute or any of the Tribute Subsidiaries on three (3) months’ notice or less;

(B)           any credit agreement, loan agreement, indenture, note, mortgage, security agreement, loan commitment or other Contract relating to the indebtedness of Tribute or any Tribute Subsidiary in an amount in excess of $500,000;

(C)           any Contract granting to any Person a right of first refusal or option to purchase or acquire any assets of Tribute or any Tribute Subsidiary valued at an amount in excess of $500,000;

(D)          any real property lease, rental or occupancy agreement under which Tribute or any Tribute Subsidiary continues to have obligations or rights;

(E)           any Contract pursuant to which Tribute or any Tribute Subsidiary (i) is granted or obtains or agrees to obtain any right or license to use any material Intellectual Property (excluding commercially available software where the failure to obtain or hold such license would not have a Material Adverse Effect on Tribute), (ii) is restricted in its right to use or register any material Intellectual Property owned by Tribute or any of the Tribute Subsidiaries, or (iii) grants, or agrees to grant, to any other Person any right or license to use, obtain, enforce or register any material Intellectual Property owned by Tribute or any of the Tribute Subsidiaries, including any license agreements, option agreements and covenants not to sue;

(F)           except for any non-solicit obligations, any Contract that obligates Tribute or any Tribute Subsidiary or its Affiliates not to compete with another Person, requires Tribute or any Tribute Subsidiary to acquire or sell any product, asset or service exclusively from or to any other Person, or otherwise contractually restricts Tribute or any Tribute Subsidiary or its Affiliates from acquiring any material product, asset or service from any other Person, or providing products, assets or services to any other Person, or developing or distributing any product to any Person or in any geographic location;

(G)           any Contract entered into since December 31, 2012: (i) relating to the merger, consolidation, reorganization, liquidation, dissolution or any similar extraordinary transaction with respect to Tribute or any Tribute Subsidiary, (ii) relating to a material acquisition or disposition by Tribute or any Tribute Subsidiary, (iii) relating to the acquisition, issuance or transfer of any securities (other than employment agreements and the Tribute Stock Option Plan) of Tribute or any Tribute Subsidiary, or (iv) relating to any partnership, strategic alliance or joint venture agreement; and

(H)          except for any Contracts entered into in the ordinary course of business with any employee, director or officer of Tribute or any Tribute Subsidiary or any Contract with any stockholder of Tribute or any Tribute Subsidiary entered into since December 31, 2012.

(ii)           True, correct and complete copies of each Tribute Material Contract in effect on the date hereof that has not been part of the Tribute Public Disclosure Record have been provided or otherwise made available to Parent and Pozen.

(iii)          Except as would not reasonably be expected to have a Material Adverse Effect on Tribute, none of Tribute, the Tribute Subsidiaries or, to the knowledge of Tribute, any of the other parties thereto is in breach or violation of or in default under, or committed or failed to perform any act which would result in a default under (in each case, with or without notice or lapse of time or both), any Tribute Material Contract in any material respect, and none of Tribute or any of the Tribute Subsidiaries has received or given any notice of default under any Tribute Material Contract which remains uncured. To the knowledge of Tribute, there exists no state of facts which, after notice or lapse of time or both, would constitute a default under or breach or violation of any Tribute Material Contract or the inability of a party to any Tribute Material Contract to perform its obligations thereunder where, in any such case, such default, breach, violation or non-performance has had or would reasonably be expected to have a Material Adverse Effect on Tribute or that would reasonably be expected to prevent or significantly impede or materially delay the completion of the Merger and the Arrangement. To the knowledge of Tribute, no Person has challenged in writing the validity or enforceability of any Tribute Material Contract.

(iv)          There are no shareholders or stockholders agreements, registration rights agreements (other than the Form F-3 Resale Registration Statement filed with the SEC via EDGAR on August 1, 2014), voting trusts, proxies or similar agreements, arrangements or commitments, to which Tribute or any of the Tribute Subsidiaries is a party or, to the knowledge of Tribute, with respect to any shares or other equity interests of Tribute or any of the Tribute Subsidiaries or any other Contract relating to disposition, voting or dividends with respect to any shares or other equity securities of Tribute or any of the Tribute Subsidiaries.

(v)           As of the date of this Agreement, neither Tribute nor any of the Tribute Subsidiaries has received written notice of the termination of, or intent to terminate or otherwise fail to materially perform, any Tribute Material Contract.

(o)            Taxes .

(i)            Tribute and each of its Subsidiaries has duly and timely made or prepared all material Tax Returns required to be made or prepared by it, has duly and timely filed all material Tax Returns required to be filed by it with the appropriate Governmental Authority and has completely and correctly reported all income and all other amounts or information required to be reported thereon. Tribute has provided Parent and Pozen copies of its Canadian federal income Tax Return and each other material income Tax Return for taxable years ending 2013, 2012 and 2011. The Canadian federal income Tax Return and each other material income Tax Return filed by Tribute and each of its Subsidiaries for the taxable year ending 2014 shall be made available to Parent and Pozen upon filing of such Tax Return with the appropriate Governmental Authority. All material Tax Returns provided or otherwise made available to Parent and Pozen are true, complete and correct copies of such Tax Returns.
 
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(ii)           Tribute and each of the Tribute Subsidiaries has: (A) duly and timely paid all material Taxes due and payable by it other than those that are being contested in good faith pursuant to applicable Laws and in respect of which adequate reserves have been established in accordance with U.S. GAAP in the Tribute Interim Financial Statements; (B) duly and timely withheld all material Taxes and other amounts required by applicable Laws to be withheld by it and has duly and timely remitted to the appropriate Governmental Authority such Taxes and other amounts required by applicable Laws to be remitted by it; and (C) duly and timely collected all material amounts on account of employment, sales or transfer taxes, including goods and services, harmonized, sales, value added and federal, provincial, state or territorial sales taxes, required by applicable Laws to be collected by it and has duly and timely remitted to the appropriate Governmental Authority any such amounts required by applicable Laws to be remitted by it.

(iii)          No audit, action, investigation, deficiency, litigation, proposed adjustment or other Proceeding exists or has been asserted or, to the knowledge of Tribute, threatened with respect to Taxes or Tax Returns of Tribute or any of its Subsidiaries, and neither Tribute nor any of its Subsidiaries is a party to any Proceeding for assessment, reassessment, or collection of Taxes and no such Proceeding has been asserted or, to the knowledge of Tribute, threatened against Tribute or any of its Subsidiaries or any of their respective assets, and there are no matters of dispute or matters under discussion with any Governmental Authority relating to Taxes assessed by any Governmental Authority against Tribute or any of its Subsidiaries or relating to Tax Returns or any other matters which could result in claims for Taxes or additional Taxes. Neither Tribute nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any use of an improper method of accounting for a taxable period ending on or prior to the Closing Date.

(iv)          There are no currently effective or pending material elections, agreements, or waivers extending the limitation period or providing for an extension of time with respect to the assessment or reassessment of any Taxes, the filing of any Tax Return, or the payment of any Taxes by Tribute or any of its Subsidiaries.

(v)           Neither Tribute nor any of its Subsidiaries has made, prepared and/or filed any elections, designations, or similar filings relating to Taxes or entered into any agreement or other arrangement in respect of Taxes or Tax Returns that has effect for any period ending after the Closing Date.

(vi)          To the knowledge of Tribute (including management employees knowledgeable about Tribute Tax matters), there are no Liens for Taxes on the property or assets of Tribute or any of its Subsidiaries, except for Permitted Liens.

(vii)         All transactions between Tribute and any of its Subsidiaries, on the one hand, and Tribute or another such Subsidiary, on the other hand, have been effected at the values and on the terms that would have been agreed by unrelated parties acting at arm’s length.

(viii)        Section 3.2(o) of the Tribute Disclosure Letter contains a list of all jurisdictions in which Tribute or any of its Subsidiaries has filed, or is required to file, a Tax Return.

(ix)           Except as set forth on Section 3.2(o) of the Tribute Disclosure Letter, neither Tribute nor any of its Subsidiaries (1) is subject to liability for Taxes of any other Person or (2) has entered into any agreement with, or provided any undertaking to, any Person pursuant to which it has assumed liability for the payment of income Taxes owing by such Person where the sole purpose of such agreements or undertakings is the assumption of such liability.

(x)           No private letter rulings or similar agreements or rulings have been entered into or issued by any Governmental Authority with respect to Tribute or any of the Tribute Subsidiaries pertaining to Taxes.

(xi)          The charges, accruals, and reserves for Taxes reflected on the Tribute Interim Financial Statements (whether or not due and whether or not shown on any Tax Return, but excluding any provision for deferred income Taxes) are adequate under U.S. GAAP to cover Taxes with respect to Tribute and each of its Subsidiaries accruing through the date hereof.

(xii)          The transactions contemplated under this Agreement will not accelerate the recognition of taxable income by Tribute or any of its Subsidiaries.

(p)            Employment Agreements and Collective Agreements . Except as set forth on Section 3.2(p) of the Tribute Disclosure Letter, none of Tribute or any of the Tribute Subsidiaries is a party to or bound or governed by (or currently negotiating in connection with entering into), or subject to, or has any liability with respect to:
 
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(i)            any employment, retention or change of control agreement with, or any written or oral agreement, commitment, obligation, arrangement, plan or understanding providing for any retention, bonus, severance, change of control, retirement or termination payments to any current or, to the extent any liability remains outstanding, former director, officer or employee of Tribute or any of the Tribute Subsidiaries (each, a “ Tribute Employment Agreement ”) in excess of $250,000;

(ii)           any collective bargaining or union agreements or other Contract with a labor union, labor organization or employee association, or any actual or, to the knowledge of Tribute, threatened application for certification, recognition or bargaining rights in respect of Tribute or any of the Tribute Subsidiaries, or any Proceeding seeking to compel Tribute or any of the Tribute Subsidiaries to bargain with any labor organization as to wages or conditions of employment;

(iii)          any organized labor dispute, work stoppage or slowdown, strike or lock-out relating to or involving any employees of Tribute or any of the Tribute Subsidiaries; or

(iv)          any actual or, to the knowledge of Tribute, threatened grievance, claim or other Proceeding arising out of or in connection with any labor or employment matter by Tribute or any of the Tribute Subsidiaries or the termination thereof except as would not be expected to have a Material Adverse Effect on Tribute.

True, complete and correct copies of the agreements, arrangements, plans and understandings referred to in paragraphs (i) and (ii) of this Section 3.2(p) have been provided or otherwise made available to Pozen. Except as would not be expected to have a Material Adverse Effect on Tribute, each of Tribute and the Tribute Subsidiaries is in material compliance with all applicable Laws (domestic and foreign), Orders, Contracts and Tribute material policies relating to employment, employment practices, wages, hours and terms and conditions of employment.

(q)            Pension and Employee Benefits .

(i)            Section 3.2(q)(i) of the Tribute Disclosure Letter sets forth a true, complete and correct list of each Tribute Plan.

(ii)           With respect to each Tribute Plan, Tribute has provided or otherwise made available to Parent and Pozen (A) a true and complete copy of each Tribute Plan, including any amendments thereto and all material supporting documents; (B) latest annual report, if any; (C) copies of all material communications received in the last three (3) years with applicable Governmental Authorities; (D) each trust or other funding arrangement; (E) each summary plan description (if applicable); and (F) where applicable, the most recent financial statements and actuarial or other valuation reports prepared with respect thereto.

(iii)          Except as set forth in Section 3.2(q)(iii) of the Disclosure Letter or as contemplated herein, the consummation of the transactions contemplated by this Agreement will not, either alone or in combination with another event, (A) entitle any current or former employee, director, officer, independent contractor or other service provider of Tribute or any Tribute Subsidiary to termination or severance pay (or a material increase thereof), or (B) accelerate the time of funding (through a grantor trust or otherwise), payment or vesting, or increase the amount of compensation or benefit due any such employee, director, officer, independent contractor or other service provider of Tribute or any Tribute Subsidiary.

(iv)          There are no pending or, to the knowledge of Tribute, threatened actions, suits, disputes or claims by or on behalf of any Tribute Plan, by any employee or beneficiary covered under any such Tribute Plan, as applicable, or otherwise involving any such Tribute Plan (other than routine claims for benefits).

(v)           No Tribute Plan provides welfare or post-retirement benefits, including, without limitation, death or medical benefits (whether or not insured), beyond retirement or termination of service to employees or former employees or to the beneficiaries or dependents of such employees, other than coverage mandated solely by applicable Law or at the expense of the participant or the participant’s beneficiary.

(vi)          None of Tribute, any Tribute Subsidiary or any of their ERISA Affiliates sponsors, contributes to or has any liability under, or in the past six (6) years sponsored, contributed to or had liability under (A) a plan subject to Title IV or Section 302 of ERISA, (B) any “multiemployer plan” as defined in Sections 3(37)(A) or 4001(a)(3) of ERISA, (C) any plan that is subject to Sections 4063, 4064 or 4066 of ERISA or (D) any multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA.

(vii)         All contributions, premiums or Taxes required to be made or paid by Tribute or any of its Subsidiaries, as the case may be, under or in connection with the Tribute Plans have been made in a timely fashion in accordance with Laws and the terms of the applicable Tribute Plan.

(viii)        Tribute and each Tribute Subsidiary has, for purposes of each Tribute Plan, correctly classified all individuals performing services for either or both of them as common law employees, independent contractors or agents, as applicable.
 
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(ix)           None of Tribute, any of its Subsidiaries or to the knowledge of Tribute, any other persons with respect to whom Tribute or any Tribute Subsidiary would have an obligation to indemnify has engaged in a prohibited transaction (within the meaning of Section 406 of ERISA) that could result in a material liability to Tribute or any Tribute Subsidiary.

(r)             Intellectual Property .

(i)            Section 3.2(r)(i) of the Tribute Disclosure Letter sets forth a correct and complete list of all (A) Patents, (B) Trademark registrations and applications and material unregistered Trademarks, (C) Copyright registrations and applications, and (D) material Software, in each case which is owned by, or exclusively licensed to, Tribute or any of the Tribute Subsidiaries in any jurisdiction in the world (collectively, the “ Tribute Intellectual Property ”), indicating, for each item of Tribute Intellectual Property, the owner, registration or application number (as applicable) and the applicable filing jurisdiction. Tribute or one of the Tribute Subsidiaries is the sole and exclusive beneficial and, with respect to applications and registrations (including Patents), record owner or exclusive licensee of the record owner of each item of the Tribute Intellectual Property set forth in Section 3.2(r)(i) of the Tribute Disclosure Letter, and, except as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Tribute, to the knowledge of Tribute, all such Intellectual Property is subsisting, valid, and enforceable.

(ii)           To the knowledge of Tribute and except as set forth in Section 3.2(r)(ii) of the Tribute Disclosure Letter,   Tribute or one of the Tribute Subsidiaries owns, free and clear of all Liens (other than Permitted Liens), or has a valid right to use, all Intellectual Property (A) related to the products or product candidates presently sold or under development in the conduct of the business of Tribute or one of the Tribute Subsidiaries and (B) used or held for use in, or necessary to conduct, the business and operations of Tribute and the Tribute Subsidiaries as presently conducted.

(iii)          Except as set forth in Section 3.2(r)(iii) of the Tribute Disclosure Letter, there are no Orders, writs, injunctions or decrees to which Tribute or any of the Tribute Subsidiaries is subject with respect to any Intellectual Property material to the conduct of the business of Tribute and the Tribute Subsidiaries as presently conducted that is owned by Tribute or any of the Tribute Subsidiaries, nor, to the knowledge of Tribute, any such Orders, writs, injunctions or decrees with respect to such Intellectual Property used or held for use by Tribute or any of the Tribute Subsidiaries.

(iv)          To the knowledge of Tribute, there is no valid basis for a claim of infringement, misappropriation or other violation of material Intellectual Property rights against Tribute or any of the Tribute Subsidiaries in respect of the conduct of their businesses as currently conducted.

(v)           Except as set forth in Section 3.2(r)(v) of the Tribute Disclosure Letter, to the knowledge of Tribute, no Person is infringing, misappropriating or otherwise violating any material Intellectual Property owned, used or held for use by Tribute or any of the Tribute Subsidiaries in the conduct of the business of Tribute and the Tribute Subsidiaries as presently conducted, and no such claims have been asserted or threatened against any Person by Tribute or the Tribute Subsidiaries or, to the knowledge of Tribute, any other Person, in the past six (6) years.

(vi)          Except as set forth in Section 3.2(r)(vi) of the Tribute Disclosure Letter, to the knowledge of Tribute, there has been no claim asserted or threatened, or Proceedings of any kind pending or in progress, challenging the scope, validity or enforceability of any material Tribute Intellectual Property applications or registrations (including Patents) owned by or licensed to Tribute or any of the Tribute Subsidiaries.

(s)            Regulatory Matters .

(i)            Since December 31, 2012, the businesses of each of Tribute and the Tribute Subsidiaries and to the knowledge of Tribute, its third party suppliers and contractors, have been and are being conducted in material compliance with all Laws governing the quality, identity, strength, purity, safety, efficacy, investigation, development, record keeping, reporting, testing, development, manufacturing, processing, packaging, labeling, storage, transportation, importation, exportation and distribution of pharmaceutical drugs, including without limitation, to the extent applicable, (A) the FDCA; (B) the Public Health Service Act of 1944; (C) the CFDA; the Canadian Food and Drug Regulations (C.R.C. c. 870 as am.); the Canadian Medical Device Regulations (SOR/98-282 as am.); (D) United States federal Medicare and Medicaid statutes and related state or local statutes or regulations; (E) United States federal or state criminal or civil Laws (including the federal Anti-Kickback Statute (42 U.S.C. §1320a-7(b))), Stark Law (42 U.S.C. §1395nn), False Claims Act (31 U.S.C. §3729, et seq.), the Physician Payments Sunshine Act, the Prescription Drug Marketing Act of 1987, HIPAA; (F) the Canadian Patent Act (R.S.C. 1985 c. P-4 as am.) and Patented Medicine (Notice of Compliance) Regulations (SOR/93-133 as am.), the Patented Medicine Regulations, 1994 (SOR/94-688) and the guidelines of the PMPRB; (G) the Orphan Drug Act of 1983, 96 Stat. 2049; (H) the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010; (I) state or provincial licensing, disclosure, billing, labeling, storage, testing, distribution, sales, marketing and reporting requirements for pharmaceutical products and medical devices; (J) any applicable privacy laws including, without limitation, PIPEDA and PHIPA; (K) all Laws similar to the foregoing in all other jurisdictions; and (L) all binding rules and regulations issued under such Laws.
 
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(ii)           Except where Tribute is currently distributing a Tribute Product through a valid transition service agreement as disclosed in Section 3.2(s)(ii) of the Tribute Disclosure Letter, each of Tribute and the Tribute Subsidiaries holds all material Regulatory Authorizations necessary for the lawful operation of their businesses and the import, testing, manufacturing, handling, storage, transportation, sale, distribution, marketing, promotion, or export, as applicable, of each of their products, including without limitation notices of compliance, drug establishment licenses, medical device establishment licenses and medical device licenses. All such material Regulatory Authorizations are valid and in full force and effect or in the process of being obtained in the ordinary course of business. Since December 31, 2012, there has not occurred any violation of, default (with or without notice or lapse of time or both) under, or event giving to others any right of termination, amendment or cancellation of, with or without notice or lapse of time or both, any Regulatory Authorization, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Tribute. Tribute and each of the Tribute Subsidiaries are in material compliance with the terms of all Regulatory Authorizations, and no event has occurred that, to the knowledge of Tribute, would reasonably be expected to result in the suspension, revocation, cancellation, non-renewal or adverse modification of any Regulatory Authorization.

(iii)          All pre-clinical and clinical investigations conducted or sponsored by Tribute or any of the Tribute Subsidiaries have been, since December 31, 2012, and are being conducted in compliance in all material respects with all applicable Laws and Regulatory Guidelines administered or issued by the applicable Regulatory Authorities, including where applicable (A) FDA standards for conducting non-clinical laboratory studies contained in Title 21 part 58 of the Code of Federal Regulations, (B) FDA standards for the design, conduct, performance, monitoring, auditing, recording, analysis, reporting of serious adverse reactions, and reporting of clinical trials contained in Title 21 parts 50, 54, 56, 312, 314 and 320 of the Code of Federal Regulations, (C) Division 5 of the Food and Drug Regulations regarding Drugs for Clinical Trials Involving Human Subjects, Part 3 of the Medical Device Regulations (SOR/98-282 as am.), and (D) the federal, state and provincial Laws and Regulatory Guidelines restricting the collection, use and disclosure of individually identifiable health information and personal information, including without limitation PHIPA and PIPEDA. Neither Tribute nor any of the Tribute Subsidiaries has received any written notice, correspondence or other communication from any Regulatory Authority, including the FDA, Health Canada, any Institutional Review Board, Research Ethics Board or any other Regulatory Authority since December 31, 2012, initiating or requiring, and are not aware of any facts which are reasonably likely to cause, the termination, suspension or materially adverse modification of any pre-clinical or clinical trial conducted or sponsored by Tribute or the Tribute Subsidiaries.

(iv)          All material reports, documents, claims, permits, applications, accreditations and notices required to be filed, maintained or furnished to the FDA, Health Canada, PMPRB or any other Regulatory Authority by Tribute and its Subsidiaries have been so filed, maintained or furnished. All such reports, documents, claims, permits, applications, and notices were complete and accurate in all material respects on the date filed (or were corrected in or supplemented by a subsequent filing) such that no liability exists with respect to such filing. Neither Tribute nor any Tribute Subsidiary, nor, to the knowledge of Tribute, any officer, employee, agent or distributor of Tribute or any of its Subsidiaries, has made an untrue statement of a material fact or a fraudulent statement to the FDA, Health Canada, PMPRB or any other Regulatory Authority, failed to disclose a material fact required to be disclosed to the FDA, Health Canada, PMPRB or any other Regulatory Authority, or, to the knowledge of Tribute, committed an act, made a statement or failed to make a statement that, at the time such disclosure was made, would reasonably be expected to provide a basis for the FDA to invoke its policy respecting “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities,” set forth in 56 Fed. Reg. 46191 (September 10, 1991) or any other Regulatory Authority to invoke any similar policy. Neither Tribute nor any of its Subsidiaries is to the knowledge of Tribute the subject of any pending or threatened investigation by the FDA, Health Canada, or any other Regulatory Authority pursuant to such policies.

(v)           Neither Tribute nor any of the Tribute Subsidiaries has received any written information from the FDA, Health Canada or any other Regulatory Authority that would reasonably be expected to lead to the denial of any application for marketing approval currently pending before the FDA, Health Canada or such other Regulatory Authority.

(vi)          Neither Tribute nor any of Tribute Subsidiaries has received any warning letters from the FDA, Health Canada, or any other Regulatory Authority regarding inappropriate advertising or marketing of any of its products or any written notice of any actual or potential violation of Laws with respect to the advertising or marketing of any of its products. Each product of Tribute or its Subsidiaries is labeled, packaged, advertised and marketed as necessary to enable its sale to be lawful in Canada including compliance with FDA and Federal Drug Regulations.

(vii)         Tribute and the Tribute Subsidiaries (A) are not a party to and do not have any obligations under any settlement agreement entered into with any Regulatory Authority and (B) since December 31, 2012, have not been the subject of any Regulatory Authority or medical reimbursement investigation other than routine audits and reviews, in any case that would, individually or in the aggregate, be expected to have a Material Adverse Effect on Tribute.

(viii)        Neither Tribute nor any of the Tribute Subsidiaries, nor, to the knowledge of Tribute, any officer, employee, agent or distributor of Tribute or any of the Tribute Subsidiaries, has been convicted of any crime or engaged in any conduct for which debarment is mandated by 21 U.S.C. § 335a(a) or any similar Law or authorized by 21 U.S.C. § 335a(b) or any similar Law, nor has any such person been so disbarred. Neither Tribute nor any of its Subsidiaries, nor, to the knowledge of Tribute, any officer, employee, agent or distributor of Tribute or any of its Subsidiaries, has been convicted of any crime or engaged in any conduct for which such Person could be excluded from participating in the United States federal health care programs under Section 1128 of the Social Security Act of 1935, as amended, or any similar Law or program or has been excluded from participation in such programs. Neither Tribute nor any of its Subsidiaries nor, to its knowledge, any officer, employee, agent or distributor of Tribute or any of the Tribute Subsidiaries is subject to an investigation or proceeding by any Regulatory Authority that could result in suspension, exclusion, or debarment, and there are no facts that could give rise to such suspension, exclusion or debarment.
 
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(ix)           Each product or product candidate currently under development or being sold by Tribute or any of the Tribute Subsidiaries and which is subject to the CFDA, FDCA or any Law or Regulatory Guidelines in any foreign jurisdiction that is or has been developed, manufactured, tested, distributed and/or marketed by or on behalf of Tribute or any of the Tribute Subsidiaries (each a “ Tribute Product ”) is being or has been developed, imported, tested, manufactured, handled, stored, transported, sold, distributed, marketed, promoted or exported in material compliance with all applicable requirements under the CFDA, FDCA or any other applicable state, provincial and similar Laws, Regulations and Regulatory Guidelines, including those relating to investigational use, special access, pre-market clearance or marketing approval, good manufacturing practices, good clinical practices, good laboratory practices, labeling, advertising, record keeping, filing of reports, protection of human subjects, humane care and use of laboratory animals, Law or Regulatory Guidelines governing the practice of pharmacy, data integrity and security, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Tribute. To Tribute’s knowledge, no employee of Tribute or a Tribute Subsidiary responsible for management of the import, testing, manufacturing, handling, storage, transportation, sale, distribution, marketing, promotion or export of the Tribute Products has been sanctioned by a Governmental Authority for non-compliance with applicable Laws or Regulatory Guidelines.

(x)           (A) Neither Tribute, nor any of the Tribute Subsidiaries nor, to Tribute’s knowledge to the extent it relates to any Tribute Products, any subcontractors, contract manufacturers or other parties has, since December 31, 2012, received any FDA Form 483, notice of adverse finding, notice of violation, untitled letter, warning letter, data integrity review or other similar correspondence or notice from the FDA, Health Canada, state, provincial or any other Regulatory Authority, and (B) there is no action or proceeding pending or, to the knowledge of Tribute, threatened, in the case of either (A) or (B): (I) contesting the pre-market clearance or approval of, the uses of, the reimbursement of or the labeling or promotion of any Tribute Product (II) contesting the compliance with Law or Regulatory Guidelines of any facility where a Tribute Product is developed, tested, manufactured, handled, stored, distributed or transported or (C) otherwise alleging any violation applicable to any Tribute Product or manufacturing process of any Law or Regulatory Guidelines by Tribute or Tribute’s Subsidiaries.

(xi)           Since December 31, 2012, Tribute and Tribute’s Subsidiaries have not either voluntarily or involuntarily initiated, conducted or issued, or caused to be initiated, conducted or issued, any recall, field notification, field correction, market withdrawal or replacement, warning, “dear doctor” letter, investigator notice, safety alert or other notice or action relating to an alleged lack of safety, lack of efficacy, adulteration, misbranding or lack of regulatory compliance of any Tribute Product. Tribute and Tribute’s Subsidiaries are not aware of any facts which are reasonably likely to cause, and neither Tribute nor any of the Tribute Subsidiaries has received any written notice that the FDA, Health Canada or any other Regulatory Authority or Governmental Authority has commenced, or threatened to initiate, any action to cause (A) the seizure, recall, market withdrawal or replacement of any Tribute Product, (B) a change in the marketing classification or a material change in the labeling or advertising of any Tribute Product, or (C) a termination, suspension or injunction of the manufacture, marketing, storage or distribution of any Tribute Products. Tribute and the Tribute Subsidiaries have complied in all material respects with all recalls, market withdrawals or other corrective actions and have no obligation or liability with respect to any recall, market withdrawal or corrective action.

(xii)          Tribute and its Subsidiaries have made available to Pozen complete and accurate copies of all: (a) serious adverse event reports, periodic adverse event reports and other pharmacovigilance reports and data, (b) material communications with Regulatory Authorities, and (c) material documents and other information submitted to or received by or on behalf of Tribute or any of Tribute’s Subsidiaries with or from any Regulatory Authority, including inspection reports, warning letters and similar documents which are in Tribute’s possession or to which Tribute has contractual access rights.

(t)             Books and Records . The corporate records and minute books of Tribute and the Tribute Subsidiaries have been maintained in accordance with all applicable Laws in all material respects, and such corporate records and minute books are complete and accurate in all material respects, including, but not limited to, the fact that the minute books contain the minutes of all meetings of the boards of directors, committees of the board and stockholders and all resolutions passed by the boards of directors, committees of the boards and the stockholders, except that minutes of certain recent meetings of the Tribute Board of Directors or committees thereof have not been finalized as of the date hereof. All such corporate records and minute books of Tribute and the Tribute Subsidiaries have been provided or otherwise made available to Pozen.

(u)            Fairness Opinion. The Tribute Board of Directors has received the Tribute Fairness Opinion to the effect that, subject to the assumptions, limitations, qualifications and conditions set forth therein, as of the date of such opinion, the Arrangement Consideration is fair, from a financial point of view, to the Tribute Shareholders (excluding Parent, Pozen and their respective Affiliates). A true, correct and complete copy of the Tribute Fairness Opinion will be provided by Tribute to Parent and Pozen solely for informational purposes not later than two (2) Business Days after the date hereof.

(v)            Board of Directors Approval . The Tribute Board of Directors has unanimously determined that this Agreement and the Arrangement are fair to Tribute Shareholders and are in the best interests of Tribute, has unanimously approved the execution and delivery of this Agreement and the transactions contemplated by this Agreement and, subject to Section 6.4, has unanimously resolved to recommend that Tribute Shareholders vote in favor of the Tribute Shareholder Resolution. As of the date of this Agreement, each director and executive officer of Tribute intends, to the knowledge of Tribute, to vote all of the Tribute Common Shares held by him or her in favor of the Tribute Shareholder Resolution and has agreed that, unless there has been a Tribute Change of Recommendation, references to such intention may be made in the Pozen Proxy Statement and other documents relating to the Merger.
 
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(w)            Environmental Matters . Except for such matters as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (i) Tribute and the Tribute Subsidiaries are now and have been in compliance with all, and have not violated any, applicable Environmental Laws; (ii) there is no Environmental Claim pending or, to the knowledge of Tribute, threatened against Tribute, any of its Subsidiaries or, to the knowledge of Tribute, against any Person whose liability for such Environmental Claims Tribute or any of its Subsidiaries has retained or assumed either contractually or by operation of law, and, to the knowledge of Tribute, there are no actions, activities, circumstances, facts, conditions, events or incidents that would reasonably be expected to give rise to such Environmental Claims; (iii) to the knowledge of Tribute, no property currently or formerly owned, leased or operated by Tribute and the Tribute Subsidiaries (including soils, groundwater, surface water, buildings or other structures), or any other location, is contaminated with any Hazardous Substance in a manner that would reasonably be expected to require remedial, investigation or clean-up activities by Tribute or any of the Tribute Subsidiaries or by any Person whose liability for such Environmental Claims Tribute or any of its Subsidiaries has or may have retained or assumed either contractually or by operation of law; (iv) neither Tribute nor any Tribute Subsidiary is subject to any order, decree, injunction or agreement with any Governmental Authority, or any indemnity or other agreement with any third party, concerning liabilities or obligations relating to any Environmental Law or otherwise relating to any Hazardous Substance; (v) each of Tribute and the Tribute Subsidiaries has all of the environmental Permits necessary for the conduct and operation of its business as now being conducted, and all such environmental Permits are in good standing; and (vi) Tribute has delivered or otherwise made available copies of any Phase I or II environmental site assessments (or similar reports), or material documents relating to any alleged or actual non-compliance with applicable Environmental Laws by Tribute and the Tribute Subsidiaries, in each case received or commissioned by Tribute since December 31, 2008.

(x)            Insurance . Section 3.2(x) of the Tribute Disclosure Letter contains an accurate and complete list as of the date of this Agreement of all policies of fire, liability, workmen’s compensation and other forms of insurance owned by Tribute or any Tribute Subsidiary. All current insurance policies and contracts of Tribute and the Tribute Subsidiaries are in full force and effect and are valid and enforceable, and all premiums due thereunder have been paid. None of Tribute nor any of the Tribute Subsidiaries has received written notice of cancellation or termination with respect to any material insurance policies or contracts (other than in connection with normal renewals of any such insurance policies or contracts) nor, to the knowledge of Tribute, have any claims been denied under any current insurance policies, and, to the knowledge of Tribute, no threat has been made to cancel any insurance policy or contract of Tribute or any Tribute Subsidiary as of the date of this Agreement, or to deny any claim under current insurance policies or contract.

(y)            Tribute Shareholder Approval . The only vote of the Tribute Shareholders required to approve the Arrangement is the Tribute Shareholder Resolution. No other vote of the Tribute Shareholders is required by Law, the constituent documents of Tribute or otherwise to adopt this Agreement and approve the Arrangement.

(z)            Brokers and Finders . Neither Tribute nor any of the Tribute Subsidiaries has used any broker or finder in connection with the transactions contemplated hereby, except that Tribute has engaged the Tribute Financial Advisors as its financial advisors, and no other broker, finder or investment banker is entitled to any fee or commission from Tribute or any of the Tribute Subsidiaries in connection with the transactions contemplated hereby, and no other Person is or may become entitled to receive any fee or other amount from Tribute or any of the Tribute Subsidiaries in connection with the transactions contemplated hereby. A true and correct copy of the engagement letter with the Tribute Financial Advisors in connection with the transactions contemplated hereby has been provided or otherwise made available to Parent and Pozen and has not been subsequently amended, waived or supplemented.

(aa)          United States Investment Company Act of 1940 . Neither Tribute nor any of its Subsidiaries is, or will be as of the closing date of the Arrangement, an “investment company,” as such term is defined under the United States Investment Company Act of 1940, as amended, registered or required to be registered under such Act.

(bb)          No Other Representations and Warranties . Except for the representations and warranties made by Tribute in this Section 3.2, neither Tribute nor any other Person makes any express or implied representation or warranty with respect to Tribute or any of the Tribute Subsidiaries or their respective businesses, assets, operations, liabilities, condition (financial or otherwise) or prospects, and Tribute hereby disclaims any such other representations or warranties. In particular, without limiting the foregoing disclaimer, except for the representations and warranties made by Tribute in this Section 3.2, neither Tribute nor any other Person makes or has made any representation or warranty to Parent, Pozen or any of their respective Representatives with respect to (i) any financial projection, forecast, estimate, budget or prospective information relating to Tribute, any of the Tribute Subsidiaries or their respective businesses or operations or (ii) any oral or written information furnished or made available to Parent, Pozen or any of their respective Representatives in the course of their due diligence investigation of Tribute, the negotiation of this Agreement or the consummation of the transactions contemplated by this Agreement, including the accuracy, completeness or currency thereof, and neither Tribute nor any other Person will have any liability to Parent, Pozen or any other Person in respect of such information, including any subsequent use of such information, except in the case of fraud. Notwithstanding anything contained in this Agreement to the contrary, Tribute acknowledges and agrees that none of Parent, Pozen or any other Person has made or is making any representations or warranties whatsoever, express or implied, beyond those expressly made by Pozen and Parent in Sections 3.1 and 3.3, respectively, including any implied representation or warranty as to the accuracy or completeness of any information regarding Parent or Pozen furnished or made available to Tribute, or any of its Representatives.
 
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3.3           Representations and Warranties of Parent

Except as disclosed in the applicable section or subsection of the Parent Disclosure Letter (it being agreed that disclosure of any item in any section or subsection of the Parent Disclosure Letter shall be deemed disclosure with respect to any other section or subsection of the Parent Disclosure Letter only to the extent the relevance of such item to such other section or subsection is reasonably apparent on its face), Parent represents and warrants to and in favor of Pozen and Tribute as follows and acknowledges that Pozen and Tribute are relying upon such representations and warranties in entering into this Agreement:

(a)            Organization and Qualification . Parent has been duly incorporated and validly exists under the Laws of its jurisdiction of incorporation and has the requisite corporate and legal power and capacity to own its assets as now owned and to carry on its business as it is now being carried on. Each of the Parent Material Subsidiaries is a corporation or other entity duly organized, validly existing and, where relevant, in good standing under the Laws of its jurisdiction of incorporation, organization or formation and has the requisite corporate, legal or other power and authority to own its assets as now owned and to carry on its business as it is now being carried on. Parent and each of the Parent Material Subsidiaries is duly qualified to carry on business in each jurisdiction in which the nature or character of the respective properties and assets, owned, leased or operated by it, or the nature of its business or activities, makes such qualification necessary, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect on Parent and the Parent Material Subsidiaries, taken as a whole. Parent has provided or otherwise made available to Pozen and Tribute true, complete and correct copies of the memorandum and articles of association or other constituent documents of each of Parent, Can Merger Sub and US Merger Sub, in each case, as amended.

(b)            Authority Relative to this Agreement. Each Parent Party has the requisite corporate power, authority and capacity to enter into this Agreement and (subject to obtaining the Required Regulatory Approvals, all as contemplated in this Agreement) to perform its obligations hereunder and to complete the transactions contemplated by this Agreement. The execution and delivery of this Agreement and the completion by each Parent Party of the transactions contemplated by this Agreement have been duly authorized by its respective board of directors and no other corporate proceedings on the part of any Parent Party are necessary to authorize the execution and delivery by it of this Agreement or the completion by any Parent Party of the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by each Parent Party and constitutes a legal, valid and binding obligation of each Parent Party enforceable against such Parent Party in accordance with its terms, subject to bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and other Laws relating to limitations of actions or affecting the availability of equitable remedies and the enforcement of creditors’ rights generally and general principles of equity.

(c)            Required Approvals . No authorization, license, Permit, certificate, registration, consent or approval of, or filing with, or notification to, any Governmental Authority is necessary for the execution and delivery by the Parent Parties of this Agreement, the performance by any Parent Party of its obligations hereunder and the completion by the Parent Parties of the Merger and the Arrangement, other than:

(i)            the Interim Order and any filings required in order to obtain, and approvals required under, the Interim Order;

(ii)           the Final Order, and any filings required in order to obtain the Final Order;

(iii)          such filings and other actions required under applicable Canadian Securities Laws, U.S. Securities Laws or other applicable Laws, and the rules and policies of the TSXV, the TSX and NASDAQ, in each case, as are contemplated by this Agreement;

(iv)          the Required Regulatory Approvals relating to the Parent Parties; and

(v)           any other authorizations, licenses, Permits, certificates, registrations, consents, approvals and filings and notifications with respect to which the failure to obtain or make the same would not reasonably be expected to have a Material Adverse Effect on Parent, or could not reasonably be expected to prevent or significantly impede or materially delay the completion of the Merger or the Arrangement.

(d)            No Violation . Subject to obtaining the authorizations, consents and approvals and making the filings referred to in Section 3.3(c) and complying with applicable Laws and Orders, the execution and delivery by each Parent Party of this Agreement, the performance by such Parent Party of its obligations hereunder and the completion of the Merger and the Arrangement do not and will not (nor will they with the giving of notice or the lapse of time or both):
 
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(i)            result in a contravention, breach, violation or default under any Law or Order applicable to Parent or any of the Parent Material Subsidiaries or any of its or their respective properties or assets;

(ii)           result in a contravention, conflict, violation, breach or default under the memorandum and articles of association or other constituent documents of Parent or any of the Parent Material Subsidiaries;

(iii)          result in a contravention, breach or default under or termination of, or acceleration or permit the acceleration of the performance required by, or loss of any benefit under, any material Contract or material Permit to which it or any of the Parent Material Subsidiaries is a party or by which it or any of the Parent Subsidiaries is bound or to which any of its or any of the Parent Subsidiaries’ properties or assets is subject or give to any Person any interest, benefit or right, including any right of purchase or sale, termination, payment, modification, reimbursement, penalty, cancellation or acceleration, under any such material Contract or material Permit; or

(iv)          result in the suspension or alteration in the terms of any material Permit held by Parent or any of the Parent Material Subsidiaries or in the creation of any Lien upon any of their properties or assets;

except, in the case of each of clauses (i), (iii) and (iv) above, as would not reasonably be expected to have a Material Adverse Effect on Parent.

(e)            Capitalization of Parent . As of the date of this Agreement, the authorized capital of Parent consists of 1,000,000,000 Parent Shares. All of the issued and outstanding ordinary shares of Parent have been duly authorized and validly issued and are fully paid and non-assessable. Except as contemplated by the Merger, the Arrangement and this Agreement, as of the date of this Agreement, there are no outstanding agreements, subscriptions, warrants, options, rights or commitments (nor has Parent granted any other right or privilege capable of becoming an agreement, subscription, warrant, option, right or commitment) obligating Parent to issue or sell any ordinary shares or other securities of Parent, including any security or obligation of any kind convertible into or exchangeable or exercisable for any ordinary shares or other security of Parent.

(f)            Capitalization of US Merger Sub . As of the date of this Agreement, the authorized capital of US Merger Sub consists of one hundred (100) shares of common stock, $0.001 par value per share. All of the issued and outstanding ordinary shares of US Merger Sub have been duly authorized and validly issued and are fully paid and non-assessable. Except contemplated by the Merger, the Arrangement and this Agreement, as of the date of this Agreement there are no outstanding agreements, subscriptions, warrants, options, rights or commitments (nor has US Merger Sub granted any other right or privilege capable of becoming an agreement, subscription, warrant, option, right or commitment) obligating US Merger Sub to issue or sell any ordinary shares or other securities of US Merger Sub, including any security or obligation of any kind convertible into or exchangeable or exercisable for any ordinary shares or other security of US Merger Sub.

(g)            Capitalization of Can Merger Sub . As of the date of this Agreement, the authorized capital of Can Merger Sub consists of an unlimited of common shares and an unlimited number of preferred shares issuable in series. All of the issued and outstanding common shares of Can Merger Sub have been duly authorized and validly issued and are fully paid and non-assessable. As of the date of this Agreement, other than as contemplated by this Agreement there are no outstanding agreements, subscriptions, warrants, options, rights or commitments (nor has Can Merger Sub granted any other right or privilege capable of becoming an agreement, subscription, warrant, option, right or commitment) obligating Can Merger Sub to issue or sell any ordinary shares or other securities of Can Merger Sub, including any security or obligation of any kind convertible into or exchangeable or exercisable for any shares or other security of Can Merger Sub.

(h)            Parent Material Subsidiaries . Parent or a wholly owned Parent Subsidiary is the sole registered and beneficial owner of all of the outstanding shares in the capital of or outstanding shares of capital stock or other ownership, equity or voting interests of the Parent Subsidiaries free and clear of any Liens (other than Permitted Liens), and no other Person has any option, right, entitlement, understanding or commitment (contingent or otherwise) regarding the right to acquire any such share or interest in any of the Parent Subsidiaries and no outstanding option, warrant, conversion or exchange privilege or other right, agreement, arrangement or commitment obligating any such entity to issue or sell any share or ownership, equity or voting interest of such entity or security or obligation of any kind convertible into or exchangeable or exercisable for any shares or ownership, equity or voting interests of any such entity. Neither Parent nor any of the Parent Material Subsidiaries own any interest or investment (whether equity or debt) in any other Person, other than a Parent Material Subsidiary, which interest or investment is material to Parent and its Subsidiaries, taken as a whole.

(i)            No Undisclosed Liabilities . Parent and the Parent Subsidiaries have no liability or obligation of any nature (whether accrued, absolute, contingent or otherwise) that would be required to be disclosed on a balance sheet (or the footnotes thereto) prepared in accordance with U.S. GAAP, other than (i) liabilities and obligations disclosed in the Parent Public Disclosure Record, (ii) liabilities and obligations incurred in the ordinary course of business (other than those specifically disclosed in the Parent Public Disclosure Record) that would not reasonably be expected to be material to Parent and its Subsidiaries, taken as a whole (other than those disclosed in the Parent Public Disclosure Record), (iii) liabilities under Contracts (other than any such liability resulting from a breach or default thereunder) and (iv) liabilities and obligations incurred in connection with this Agreement and the transactions contemplated by this Agreement.
 
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(j)            Absence of Certain Changes . From the date of formation to the date of this Agreement, (i) no result, fact, change, effect, event, circumstance, occurrence or development has occurred or arisen which has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent and (ii) Parent and each of the Parent Material Subsidiaries has conducted its business in all material respects in the ordinary course of business.

(k)            Compliance with Laws . Since inception, the business of Parent and of each of the Parent Material Subsidiaries and, to the knowledge of Parent, each other Parent Subsidiary, has been and is currently being conducted in material compliance with all applicable Laws, Orders and Regulatory Guidelines and neither Parent nor any Parent Material Subsidiary nor, to the knowledge of Parent, any other Parent Subsidiary, has received any written notice of any alleged material non-compliance or violation of any such Laws, Orders or Regulatory Guidelines, except where any failure of compliance would not reasonably be expected to have a Material Adverse Effect on Parent.

(l)            Litigation . There is no Proceeding against or involving Parent or any of the Parent Material Subsidiaries (whether in progress, pending or, to the knowledge of Parent, threatened) that, if adversely determined, would have a Material Adverse Effect on Parent or would prevent or significantly impede or materially delay the completion of the Merger or the Arrangement and, to the knowledge of Parent, no event or circumstance has occurred which would reasonably be expected to give rise to any such Proceeding. Neither Parent nor any of the Parent Material Subsidiaries nor any of their respective properties or assets is subject to any outstanding Order that would reasonably be expected to (i) prevent or significantly impede or materially delay the completion of the Merger or the Arrangement or (ii) have a Material Adverse Effect on Parent.

(m)            Board of Directors Approval . The Parent, US Merger Sub and Can Merger Sub Boards of Directors have unanimously determined that the Merger and the Arrangement are in the best interests of Parent, US Merger Sub and Can Merger Sub, respectively, and have unanimously approved the execution and delivery of this Agreement and the entering into of the transactions contemplated by this Agreement.

(n)            Required Vote . The only vote of Parent, US Merger Sub and Can Merger Sub required to adopt this Agreement and approve the Merger and the Arrangement is the approval of the Boards of Directors of Parent, US Merger Sub and Can Merger Sub, respectively. No other vote of the stockholders of Parent is required by Law, the constituent documents of Parent or otherwise to adopt this Agreement and approve the Merger or the Arrangement.

(o)            Brokers and Finders . Neither Parent nor any of its Subsidiaries has used any broker or finder in connection with the transactions contemplated hereby, and no other broker, finder or investment banker is entitled to any fee or commission from Parent or any of its Subsidiaries in connection with the transactions contemplated hereby, and no other Person is or may become entitled to receive any fee or other amount from Parent or any of its Subsidiaries in connection with the transactions contemplated hereby.

(p)            Parent Shares Fully Paid and Non-assessable. Upon their due issuance in accordance with the terms of this Agreement and the Merger or Arrangement, as applicable, the Parent Shares issued as Merger Consideration and Arrangement Consideration shall be fully paid and non-assessable ordinary shares in the capital of Parent.

(q)            Relevant Competition Laws . Parent is a “WTO investor” as defined in the Investment Canada Act (Canada).

(r)            No Other Representations and Warranties . Except for the representations and warranties made by Parent in this Section 3.3, neither Parent nor any other Person makes any express or implied representation or warranty with respect to Parent or any Parent Material Subsidiary or their respective businesses, assets, operations, liabilities, condition (financial or otherwise) or prospects, and Parent hereby disclaims any such other representations or warranties. In particular, without limiting the foregoing disclaimer, except for the representations and warranties made by Parent in this Section 3.3, neither Parent nor any other Person makes or has made any representation or warranty to Pozen, Tribute or any of their respective Representatives, with respect to (i) any financial projection, forecast, estimate, budget or prospective information relating to Parent, any Parent Material Subsidiary or their respective businesses or operations or (ii) any oral or written information furnished or made available to Pozen, Tribute or any of their respective Representatives in the course of their due diligence investigation of Parent, the negotiation of this Agreement or the consummation of the transactions contemplated by this Agreement, including the accuracy, completeness or currency thereof, and neither Parent nor any other Person will have any liability to Pozen, Tribute or any other Person in respect of such information, including any subsequent use of such information, except in the case of fraud. Notwithstanding anything contained in this Agreement to the contrary, Parent acknowledges and agrees that none of Pozen, Tribute or any other Person has made or is making any representations or warranties whatsoever, express or implied, beyond those expressly made by Pozen and Tribute in Sections 3.1 and 3.2, respectively, including any implied representation or warranty as to the accuracy or completeness of any information regarding Pozen and Tribute furnished or made available to Parent or US Merger Sub, or any of their respective Representatives.
 
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3.4           Survival of Representations and Warranties

The representations and warranties of the Parties contained in this Agreement will not survive the completion of the Merger or the Arrangement and will expire and be terminated on the earlier of (i) the time that both the Merger Effective Time and the Arrangement Effective Time have occurred and, (ii) subject to the obligation to make any payment hereunder pursuant to Section 7.2, the date on which this Agreement is terminated in accordance with its terms. This Section 3.4 will not limit any covenant or agreement of any of the Parties, which, by its terms, contemplates performance after the Closing or the date on which this Agreement is terminated, as the case may be.

ARTICLE 4

COVENANTS REGARDING THE CONDUCT OF BUSINESS

4.1           Covenants of Pozen

Except as disclosed in Section 4.1 of the Pozen Disclosure Letter, Pozen covenants to and agrees with Tribute that, until the earlier of the Closing and the time that this Agreement is terminated in accordance with its terms, unless Tribute otherwise consents in writing (to the extent that such consent is permitted by applicable Law), which consent shall not be unreasonably withheld, conditioned or delayed (except in the case of clauses (c)(i) and (xix) below, for which Tribute’s consent may be withheld, conditioned or delayed in its sole discretion), or expressly permitted or specifically contemplated by this Agreement or the Plan of Arrangement or as is required by applicable Law or Order:

(a)           the respective businesses of Pozen and the Pozen Subsidiaries will be conducted, their respective facilities will be maintained and Pozen and the Pozen Subsidiaries will continue to operate their respective businesses only in the ordinary course of business in an effort to preserve the value thereof;

(b)           Pozen will use its commercially reasonable efforts to maintain and preserve intact its and the Pozen Subsidiaries’ respective business organizations, taken as a whole, material assets, material Permits, material properties, material rights, goodwill and material business relationships and keep available the services of its and the Pozen Subsidiaries’ respective officers and employees as a group;

(c)           Pozen will not, and will cause the Pozen Subsidiaries not to, directly or indirectly:

(i)            alter or amend its charter, by-laws or other constituent documents;

(ii)           declare, set aside or pay any dividend on or make any distribution or payment or return of capital in respect of the Pozen Common Shares (whether in cash or property);

(iii)          split, divide, consolidate, combine or reclassify the Pozen Common Shares or any other securities of Pozen;

(iv)          issue, grant, sell or pledge or authorize or agree to issue, grant, sell or pledge any Pozen Common Shares or other securities of Pozen or the Pozen Subsidiaries (including options or any equity-based or equity-linked awards such as restricted or deferred share units or phantom share plans) which are convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, Pozen Common Shares, other than the issuance or sale of Pozen Common Shares pursuant to (A) the exercise of Pozen Options outstanding on the date hereof, or (B) the terms of employee or director equity awards, including any awards issued under the Pozen Share Plan and outstanding on the date hereof;

(v)           except as contemplated by this Agreement or as required by applicable Law or the terms of any Pozen Plan in effect as of the date hereof (A) grant any increases in the compensation or benefits of any of its directors, individual independent contractors, executive officers, employees or consultants, except for increases in the compensation of employees in the ordinary course of business whose annual base salary is less than $250,000; or (B) grant or increase any severance, change in control, termination or similar compensation or benefits payable to any director, individual independent contractor, officer or employee, (C) promote any employee who is an officer to a position more senior than such employee’s position as of the date of this Agreement, or promote a non-officer employee to an officer position, (D) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, any compensation (including bonuses) or benefits under any Pozen Plan or Pozen Employment Agreement; (E) enter into, terminate or materially amend any Pozen Plan, any plan, program, agreement, or arrangement that would constitute a Pozen Plan if in effect on the date hereof); (F) hire any person to be employed by or a consultant of Pozen or any of the Pozen Subsidiaries other than the hiring of employees or consultants in the ordinary course of business, where such employee or consultant has total annual compensation (base salary and target cash incentive opportunity) not in excess of $250,000; (G) terminate any person in connection with any mass reduction, reduction in force or corporate restructuring and (H) loan or advance any money to any employee, director or individual independent contractor of Pozen or any of the Pozen Subsidiaries (other than advances in the ordinary course of business) or forgive any loans to any such employee, director or individual independent contractor;
 
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(vi)          redeem, purchase or otherwise acquire any outstanding Pozen Common Shares or other securities convertible into or exchangeable or exercisable for Pozen Common Shares, other than (A) in transactions between two or more wholly-owned Pozen Subsidiaries or between Pozen and a wholly-owned Pozen Subsidiary, or (B) pursuant to the terms of employee or director equity awards, including any awards issued under the Pozen Share Plan;

(vii)         amend the terms of any securities of Pozen or the Pozen Subsidiaries;

(viii)        adopt a plan of liquidation or resolution providing for the liquidation or dissolution of Pozen or any of the Pozen Subsidiaries;

(ix)           subject to the terms of Section 6.1 and Section 6.2, reorganize, consolidate or merge with any other Person;

(x)           make any changes to any of its material accounting policies, principles, methods, practices or procedures (including by adopting any material new accounting policies, principles, methods, practices or procedures), except as required by applicable Laws or U.S. GAAP;

(xi)          except for sales, leases or licenses entered into in the ordinary course of business or as contemplated hereby or in connection with any transactions contemplated hereby, and except for Permitted Liens, sell, lease or license, voluntarily pledge or otherwise dispose of any assets or properties of Pozen (including the shares or other equity securities of any Pozen Subsidiary) or of any of the Pozen Subsidiaries having a value greater than $500,000 in the aggregate;

(xii)          abandon, allow to lapse or fail to maintain any Intellectual Property that is owned by or exclusively licensed to Pozen or any Pozen Subsidiary and that is material to Pozen and the Pozen Subsidiaries taken as a whole;

(xiii)         (A) acquire (by merger, consolidation, arrangement or acquisition of shares or other equity securities or interests or assets or otherwise) any corporation, partnership, association or other business organization or division thereof or any property or asset constituting a business (but excluding properties or assets acquired in the ordinary course of business), or (B) make any investment in any Person that is not Pozen or a Pozen Subsidiary, by the purchase of securities or contribution of capital or otherwise, that has a value (in the case of clauses (A) and (B)) greater than $500,000 in the aggregate;

(xiv)        incur any indebtedness for borrowed money in excess of $500,000 in the aggregate;

(xv)         enter into any hedging, derivative or swap transaction or Contract in respect thereof, except for any such transaction or Contract entered into in the ordinary course of business and not for speculative purposes;

(xvi)        assume, guarantee or otherwise as an accommodation become responsible for the indebtedness for borrowed money of any other Person (other than Pozen or any Pozen Subsidiary);

(xvii)       make any loans or advances to any other Person (other than Pozen or any Pozen Subsidiary), except for extensions of credit in the ordinary course of business;

(xviii)      voluntarily waive, release, assign, settle or compromise any material claim or Proceeding where such waivers, releases, assignments, settlements or compromises exceed $500,000 individually or in any case would entail the imposition of any material non-monetary damages against Pozen or any Pozen Subsidiary;

(xix)         negotiate or enter into any collective bargaining agreement, collective agreement or other contract with any labor organization or union or other employee association;

(xx)          settle or compromise any action, claim or other Proceeding brought by any present, former or purported holder of its securities in connection with the Merger or the other transactions contemplated by this Agreement;

(xxi)         enter into any material new line of business, enterprise or other activity, which excludes, for the avoidance of doubt, the development or acquisition (subject to the terms hereof) of pharmaceutical or similar products or product candidates (including the expansion of the usage or potential usage of any existing pharmaceutical or similar products or product candidates);

(xxii)        expend or commit to expend any amounts that would constitute capital expenditures pursuant to U.S. GAAP as applied by Pozen, where such expenditures or commitments exceed $500,000 in the aggregate;

(xxiii)       other than in the ordinary course of business, (A) enter into any Contract that would, if entered into prior to the date hereof, be a Pozen Material Contract, or (B) materially modify, materially amend or terminate any Pozen Material Contract or waive, release or assign any material rights or claims thereunder;
 
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(xxiv)       except as required by applicable Law or U.S. GAAP, make, change, revoke or rescind any material election relating to Taxes; make or change any material method of Tax accounting; make any material amendment with respect to any Tax Return; or settle or otherwise finally resolve any controversy relating to a material amount of Taxes; and

(xxv)        agree to do any of the foregoing.

(d)           Pozen will promptly notify Tribute in writing of the occurrence of any event which would have a Material Adverse Effect with respect to Pozen.

(e)           Pozen will cooperate with Tribute and Parent to facilitate the preparation and filing of the Tribute Circular in accordance with Canadian Securities Laws on a timely basis.

Nothing in this Section 4.1 shall give Parent, Tribute or any of their respective Subsidiaries the right to control, directly or indirectly, the operations or the business of Pozen or any of its Subsidiaries at any time prior to the Closing.

4.2           Covenants of Tribute

Except as disclosed in Section 4.2 of the Tribute Disclosure Letter, Tribute covenants to and agrees with Pozen that, until the earlier of the Closing and the time that this Agreement is terminated in accordance with its terms, unless Pozen otherwise consents in writing (to the extent that such consent is permitted by applicable Law), which consent shall not be unreasonably withheld, conditioned or delayed (except in the case of clauses (c)(i) and (xix) below, for which Pozen’s consent may be withheld, conditioned or delayed in its sole discretion), or expressly permitted or specifically contemplated by this Agreement or as is required by applicable Law or Order:

(a)           the respective businesses of Tribute and the Tribute Subsidiaries will be conducted, their respective facilities will be maintained and Tribute and its Subsidiaries will continue to operate their respective businesses only in the ordinary course of business in an effort to preserve the value thereof;

(b)           Tribute will use its commercially reasonable efforts to maintain and preserve intact its and the Tribute Subsidiaries’ respective business organizations, taken as a whole, material assets, material Permits, material properties, material rights, goodwill and material business relationships and keep available the services of its and the Tribute Subsidiaries’ respective officers and employees as a group;

(c)           Tribute will not, and will cause the Tribute Subsidiaries not to, directly or indirectly:

(i)            alter or amend its charter, by-laws or other constituent documents;

(ii)           declare, set aside or pay any dividend on or make any distribution or payment or return of capital in respect of the Tribute Common Shares (whether in cash or property);

(iii)          split, divide, consolidate, combine or reclassify the Tribute Common Shares or any other securities of Tribute;

(iv)          except as set forth in Section 4.2(c)(iv) of the Tribute Disclosure Letter, issue, grant, sell or pledge or authorize or agree to issue, grant, sell or pledge any Tribute Common Shares or other securities of Tribute or the Tribute Subsidiaries (including options or any equity-based or equity-linked awards such as restricted or deferred share units or phantom share plans) which are convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, Tribute Common Shares, other than the issuance or sale of Tribute Common Shares pursuant to (A) the exercise of Tribute Options, Tribute Warrants or Tribute Compensation Options outstanding on the date hereof, or issuable pursuant to such securities outstanding on the date hereof, or (B) the terms of employee or director equity awards, including any awards issued under the Tribute Stock Option Plan and outstanding on the date hereof;

(v)           except as contemplated by this Agreement or as required by applicable Law or the terms of any Tribute Plan in effect as of the date hereof (A) grant any increases in the compensation or benefits of any of its directors, individual independent contractors, executive officers, employees or consultants, except for increases in the compensation of employees in the ordinary course of business whose annual base salary is less than $250,000; or (B) grant or increase any severance, change in control, termination or similar compensation or benefits payable to any director, individual independent contractor, officer or employee, (C) promote any employee who is an officer to a position more senior than such employee’s position as of the date of this Agreement, or promote a non-officer employee to an officer position, (D) accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, any compensation (including bonuses) or benefits under any Tribute Plan or Tribute Employment Agreement; (E) enter into, terminate or materially amend any Tribute Plan, any plan, program, agreement, or arrangement that would constitute a Tribute Plan if in effect on the date hereof); (F) hire any person to be employed by or a consultant of Tribute or any of the Tribute Subsidiaries other than the hiring of employees or consultants in the ordinary course of business, where such employee or consultant has total annual compensation (base salary and target cash incentive opportunity) not in excess of $250,000; (G) terminate any person in connection with any mass reduction, reduction in force or corporate restructuring and (H) loan or advance any money to any employee, director or individual independent contractor of Tribute or any of the Tribute Subsidiaries (other than advances in the ordinary course of business) or forgive any loans to any such employee, director or individual independent contractor;
 
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(vi)          redeem, purchase or otherwise acquire any outstanding Tribute Common Shares or other securities convertible into or exchangeable or exercisable for Tribute Common Shares, other than (A) in transactions between two or more wholly-owned Tribute Subsidiaries or between Tribute and a wholly-owned Tribute Subsidiary, or (B) pursuant to the terms of employee or director equity awards, including any awards issued under the Tribute Stock Option Plan;

(vii)         amend the terms of any securities of Tribute or the Tribute Subsidiaries;

(viii)        adopt a plan of liquidation or resolution providing for the liquidation or dissolution of Tribute or any of the Tribute Subsidiaries;

(ix)           except as set forth in Section 4.2(c)(ix) of the Tribute Disclosure Letter, reorganize, amalgamate, consolidate or merge with any other Person;

(x)           make any changes to any of its material accounting policies, principles, methods, practices or procedures (including by adopting any material new accounting policies, principles, methods, practices or procedures), except as required by applicable Laws or U.S. GAAP;

(xi)          except for sales, leases or licenses entered into in the ordinary course of business or as contemplated hereby or in connection with any transactions contemplated hereby, and except for Permitted Liens, sell, lease or license, voluntarily pledge or otherwise dispose of any assets or properties of Tribute (including the shares or other equity securities of any Tribute Subsidiary) or of any of the Tribute Subsidiaries having a value greater than $500,000 in the aggregate;

(xii)         abandon, allow to lapse or fail to maintain any Intellectual Property that is owned by or exclusively licensed to Tribute or any Tribute Subsidiary and that is material to Tribute and the Tribute Subsidiaries taken as a whole;

(xiii)         except as set forth in Section 4.2(c)(xiii) of the Tribute Disclosure Letter, (A) acquire (by merger, amalgamation, consolidation, arrangement or acquisition of shares or other equity securities or interests or assets or otherwise) any corporation, partnership, association or other business organization or division thereof or any property or asset constituting a business (but excluding properties or assets acquired in the ordinary course of business), or (B) make any investment in any Person that is not Tribute or a Tribute Subsidiary, by the purchase of securities or contribution of capital or otherwise, that has a value (in the case of clauses (A) and (B)) greater than $500,000 in the aggregate;

(xiv)        incur any indebtedness for borrowed money in excess of $500,000 in the aggregate;

(xv)         enter into any hedging, derivative or swap transaction or Contract in respect thereof, except for any such transaction or Contract entered into in the ordinary course of business and not for speculative purposes;

(xvi)        assume, guarantee or otherwise as an accommodation become responsible for the indebtedness for borrowed money of any other Person (other than Tribute or any Tribute Subsidiary);

(xvii)       make any loans or advances to any other Person (other than Tribute or any Tribute Subsidiary), except for extensions of credit in the ordinary course of business;

(xviii)      voluntarily waive, release, assign, settle or compromise any material claim or Proceeding where such waivers, releases, assignments, settlements or compromises exceed $500,000 individually or in any case would entail the imposition of any material non-monetary damages against Tribute or any Tribute Subsidiary;

(xix)         negotiate or enter into any collective bargaining agreement, collective agreement or other contract with any labor organization or union or other employee association;

(xx)          settle or compromise any action, claim or other Proceeding brought by any present, former or purported holder of its securities in connection with the Arrangement or the other transactions contemplated by this Agreement other than in respect of Tribute Dissenting Shareholders;

(xxi)         enter into any material new line of business, enterprise or other activity, which excludes, for the avoidance of doubt, the development or acquisition (subject to the terms hereof) of pharmaceutical or similar products or product candidates (including the expansion of the usage or potential usage of any existing pharmaceutical or similar products or product candidates);

(xxii)        expend or commit to expend any amounts that would constitute capital expenditures pursuant to U.S. GAAP as applied by Tribute, where such expenditures or commitments exceed $500,000 in the aggregate;
 
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(xxiii)       other than in the ordinary course of business, (A) enter into any Contract that would, if entered into prior to the date hereof, be a Tribute Material Contract, or (B) materially modify, materially amend or terminate any Tribute Material Contract or waive, release or assign any material rights or claims thereunder;

(xxiv)       except as required by applicable Law or U.S. GAAP, make, change, revoke or rescind any material election relating to Taxes; make or change any material method of Tax accounting; make any material amendment with respect to any Tax Return; or settle or otherwise finally resolve any controversy relating to a material amount of Taxes;

(xxv)        other than in the ordinary course of business, submit any material information to or enter into any material discussions with or respond to any enquiry from any Regulatory Authority with respect to any product offered by Tribute or its Subsidiaries; and

(xxvi)       agree to do any of the foregoing.

(d)           Tribute will promptly notify Pozen in writing of the occurrence of any event which would have a Material Adverse Effect with respect to Tribute.

(e)           Tribute will cooperate with Parent and Pozen to facilitate the preparation and filing of the Form S-4 with the SEC and the Pozen Proxy Statement on a timely basis.

(f)           Tribute shall use its reasonable commercial efforts to obtain an Optionholder Election Form (as defined in the Plan of Arrangement) from each holder of Tribute Options prior to the application by Tribute for the Final Order.

Nothing in this Section 4.2 shall give Parent, Pozen or any of their respective Subsidiaries the right to control, directly or indirectly, the operations or the business of Tribute or any of its Subsidiaries at any time prior to the Closing.

4.3           Covenants of Parent

Parent covenants and agrees that, until the earlier of the Closing and the time that this Agreement is terminated in accordance with its terms, unless Pozen and Tribute otherwise consent in writing (to the extent that such consent is permitted by applicable Law), which consent shall not be unreasonably withheld, conditioned or delayed, or as is otherwise disclosed in Section 4.3 of the Parent Disclosure Letter, or expressly permitted or specifically contemplated by this Agreement or as is otherwise required by applicable Law or Order:

(a)           the respective businesses of Parent and the Parent Material Subsidiaries will be conducted, their respective facilities will be maintained and Parent and the Parent Material Subsidiaries will continue to operate their respective businesses only in the ordinary course of business;

(b)           Parent will use its commercially reasonable efforts to maintain and preserve intact its and its Subsidiaries’ respective business organizations, taken as a whole, material assets, material Permits, material properties, material rights, goodwill and material business relationships and keep available the services of its and its Subsidiaries’ respective officers and material employees as a group;

(c)           Parent will not and will not permit the Parent Material Subsidiaries to, directly or indirectly:

(i)            alter or amend its memorandum and articles of association or other constituent documents in a manner adverse to the Pozen Stockholders or Tribute Shareholders or inconsistent with this Agreement;

(ii)           declare, set aside or pay any dividend on or make any distribution or payment or return of capital in respect of any of its equity securities, except, in the case of wholly-owned Parent Subsidiaries, for dividends payable to Parent or among wholly-owned Subsidiaries of Parent;

(iii)          split, divide, consolidate, combine or reclassify the Parent Shares;

(iv)          amend the material terms of any equity securities of Parent;

(v)           adopt a plan of liquidation or resolution providing for the liquidation or dissolution of Parent; or

(vi)          agree to do any of the foregoing.

(d)           Parent will promptly notify Pozen and Tribute in writing of the occurrence of any event which would have a Material Adverse Effect with respect to Parent or Parent Material Subsidiaries.

(e)           Parent will register the Parent Shares pursuant to Section 12(b) of the 1934 Exchange Act.
 
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(f)            Parent will cooperate with Pozen to prepare and file the Form S-4 with the SEC and with Tribute to prepare and file the Tribute Circular.

Nothing in this Section 4.3 shall give Pozen, Tribute or any of their respective Subsidiaries the right to control, directly or indirectly, the operations or the business of Parent or any of its Subsidiaries at any time prior to the Closing.

ARTICLE 5

ADDITIONAL COVENANTS

5.1           Access to Information; Cooperation

(a)           Subject to compliance with applicable Laws and Orders and the terms of any existing Contracts, each Party shall, and shall cause its respective wholly-owned Subsidiaries to, afford to the other Parties and their respective Representatives, until the earlier of the Closing or the termination of this Agreement in accordance with its terms, continuing access to the other parties’ virtual data rooms, and reasonable access, during normal business hours and upon reasonable notice, to its businesses, properties, books and records and such other data and information as a Party may reasonably request, as well as to the other Party’s and its Subsidiaries’ personnel, subject, however, to such access not unreasonably interfering with the ordinary conduct of its businesses. Notwithstanding the foregoing, if the terms of any Law, Order or Contract shall limit a Party’s right to access the information pursuant to this Section 5.1, the other Party shall use its commercially reasonable efforts to (i) obtain any consents from a third party to provide such access or information or (ii) develop an alternative to providing such access or information to a Party so as to address such lack of access or information in a manner reasonably acceptable to the receiving Party. Notwithstanding anything herein to the contrary, the foregoing shall not require any disclosure that would reasonably be expected, as a result of such disclosure, to have the effect of causing the waiver of any privilege (including the attorney-client and work product privileges). Without limiting the generality of the provisions of the Non-Disclosure Agreement, each of the Parties acknowledges that all information provided to it under this Section 5.1, or otherwise pursuant to this Agreement or in connection with the transactions contemplated by this Agreement, is subject to the Non-Disclosure Agreement, which will remain in full force and effect notwithstanding any other provision of this Agreement or any termination of this Agreement. If any provision of this Agreement otherwise conflicts or is inconsistent with any provision of the Non-Disclosure Agreement, the provisions of this Agreement will supersede those of the Non-Disclosure Agreement but only to the extent of the conflict or inconsistency and all other provisions of the Non-Disclosure Agreement will remain in full force and effect.

(b)           Prior to Closing, each Party shall provide reasonable cooperation and shall cause its respective wholly-owned Subsidiaries and its and their representatives, including management, officers, employees, directors, legal, non-legal and accounting advisors and auditors to provide reasonable cooperation to Parent in consummating the Parent Financing, including:

(i)            promptly furnishing Parent and the financing sources with the Required Information, which shall be Compliant, and with such other information and documentation required under applicable “know your customer” and anti-money laundering rules and regulations;

(ii)           promptly furnishing Parent with financial and other pertinent information regarding each Party and each of their respective Subsidiaries as may be reasonably requested in writing by Parent and that is reasonably available to each Party, as applicable, including all financial statements and financial and other data of the type required by Regulation S-X and Regulation S-K under the 1933 Securities Act for registered offerings of debt securities, and of the type and form customarily included in offering documents used in private placements under Rule 144A of the 1933 Securities Act (including pro forma financial information), and other documents required to satisfy any customary negative assurance opinion to consummate the Parent Financing at Closing, including all information and data necessary to satisfy any conditions set forth in any commitment letter in respect of the Parent Financing;

(iii)          using reasonable best efforts to obtain accountants’ comfort letters and legal opinions at the expense of and as reasonably requested by Parent;

(iv)          reasonably cooperating with Parent’s legal counsel in connection with any legal opinion that such legal counsel may be required to deliver in connection with the Parent Financing; and

(v)           taking all corporate or other actions, subject to the occurrence of the Closing, reasonably necessary to permit the consummation of the Parent Financing and to permit the proceeds thereof to be made available to Parent, including assisting in the preparation of and executing one or more credit agreements (or amendments thereto), pledge and security documents (or amendments thereto), guarantees, indentures, purchase agreements, currency or interest hedging agreements and other definitive documentation, certificates, representation letters, authorization letters and related deliverables relating to the Parent Financing, arranging for payoff letters and lien and guarantee releases with respect to existing indebtedness and reasonably facilitating the provision of guarantees, the grant (and perfection) of a security interest in collateral and the provision of related lender protections.
 
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5.2           Consents and Approvals

(a)           Subject to the terms and conditions of this Agreement (including Section 5.2(e)), each Party shall, and shall cause its wholly-owned Subsidiaries to, use commercially reasonable efforts to take, or cause to be taken, all actions, and do, or cause to be done, and to assist and cooperate with the other Party in doing, all things required or reasonably necessary to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, including:

(i)            as promptly as practicable, obtain from any Governmental Authority all waivers, consents, clearances and approvals, including the Required Regulatory Approvals, required or reasonably necessary to consummate the transactions contemplated by this Agreement;

(ii)           as promptly as practicable, make all filings and submissions that are required or reasonably necessary to consummate the transactions contemplated by this Agreement and thereafter make any other required or appropriate submissions including, without limiting the foregoing, all filings and submissions required in connection with the Required Regulatory Approvals; and

(iii)          as promptly as practicable, take reasonable actions to provide notice to any third party, or obtain from any third party any waivers, consents and approvals, required or reasonably necessary to consummate the transactions contemplated by this Agreement; provided , however , that, notwithstanding anything in this Agreement to the contrary, in no event shall Tribute and Pozen or any of their respective Subsidiaries be required to pay, prior to the Closing, any fee, penalty or other consideration to any third party for any waiver, consent or approval required in connection with the consummation of the transactions contemplated by this Agreement. In no event shall the receipt of any such third party waiver, consent or approval (other than the Required Regulatory Approvals) be a condition to any Party’s obligations hereunder.

(b)           Subject to the terms and conditions hereof, including Section 5.2(e), each of the Parties agrees, and shall cause each of their respective Subsidiaries, to cooperate and to use commercially reasonable efforts to (i) provide such notices and obtain such waivers, consents, clearances and approvals as are required or reasonably necessary to consummate the transactions contemplated by this Agreement under the HSR Act, the Competition Act and any other federal, provincial, state or foreign Law designed to prohibit, restrict or regulate actions relating to monopolization or restraint of trade or foreign investment (collectively, “ Relevant Competition Laws ”), and (ii) respond to any requests of any Governmental Authority for information or documentary material under any Relevant Competition Law, and to contest and resist any action, including any legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement under any Relevant Competition Law. Pozen, Parent and Tribute shall consult and cooperate with one another, and consider in good faith the views of one another, regarding the form and content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions or proposals made or submitted by or on behalf of any Party in connection with proceedings under or relating to any Relevant Competition Law prior to their submission.

(c)           Each of Parent, Pozen and Tribute shall, other than in respect of routine correspondence and dealings with NASDAQ and the TSXV regarding the transactions contemplated by this Agreement: (i) promptly advise each other of any written or oral substantive communication (including substantive communications received by their respective Subsidiaries) from any Governmental Authority or third party from whom a waiver, consent or approval is required or reasonably necessary to consummate the transactions contemplated by this Agreement; (ii) not participate in any meeting or substantive discussion with any Governmental Authority in respect of any filing, investigation or inquiry concerning this Agreement or the transactions contemplated by this Agreement, unless it consults with the other Party in advance and, unless prohibited by such Governmental Authority, gives the other Party the opportunity to attend; and (iii) promptly furnish the other Party with copies of all substantive correspondence, filings and written communications between them and their Subsidiaries and Representatives, on the one hand, and any Governmental Authority or its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement, except that materials may be redacted as necessary to address reasonable privilege, competitively sensitive information or confidentiality concerns.

(d)           Each Party will provide as promptly as practicable such information and documentary material as may reasonably be requested by a Governmental Authority following any such filing or notification.

(e)           In furtherance and not in limitation of the other covenants contained in this Section 5.2, but subject to the last sentence of this Section 5.2(e), each of Tribute and Pozen agrees to take, or cause to be taken (including by its respective Subsidiaries), any and all steps and to make, or cause to be made (including by its respective Subsidiaries), any and all undertakings necessary to resolve any objections that a Governmental Authority may assert under any Relevant Competition Law with respect to the Arrangement or the Merger, and to avoid or eliminate each and every impediment under any Relevant Competition Law that may be asserted by any Governmental Authority with respect to the Arrangement and the Merger, in each case, so as to enable the Arrangement Effective Time and the Merger Effective Time to occur as promptly as practicable and in any event no later than the Outside Date, including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any businesses, assets, equity interests, product lines or properties of Tribute or Pozen (or any of their respective Subsidiaries) or any equity interest in any Joint Venture held by Tribute or Pozen (or any of their respective Subsidiaries), (ii) creating, terminating, or divesting relationships, ventures, contractual rights or obligations of Tribute or Pozen or their respective Subsidiaries and (iii) otherwise taking or committing to take any action that would limit Pozen’s or Tribute’s freedom of action with respect to, or its ability to retain or hold, directly or indirectly, any businesses, assets, equity interests, product lines or properties of Tribute or Pozen (including any of their respective Subsidiaries), in each case as may be required in order to obtain all waivers, consents, clearances or approvals required directly or indirectly under any Relevant Competition Law or to avoid the commencement of any action by a Governmental Authority to prohibit the Arrangement or the Merger under any Relevant Competition Law, or to avoid the entry of, or to effect the dissolution of, any Order in any Proceeding seeking to prohibit the Arrangement or the Merger or delay the Arrangement Effective Time or the Merger Effective Time beyond the Outside Date. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall require, or be deemed to require, Tribute or Pozen (or any of their Subsidiaries) to take any action, agree to take any action or consent to the taking of any action (including with respect to selling, holding separate or otherwise disposing of any business or assets or conducting its (or their Subsidiaries) business in any specified manner) if doing so would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on either Tribute or Pozen, as applicable, (any such action that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, a “ Restraint ”).
 
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5.3           Covenants of Pozen Regarding the Arrangement and the Merger

Subject to the terms and conditions of this Agreement (including Section 5.2), Pozen shall and shall cause each of the Pozen Subsidiaries to, perform all obligations required to be performed by it under this Agreement, cooperate with Parent and Tribute in connection therewith, and use commercially reasonable efforts to do such other acts and things as may be necessary or desirable in order to complete the transactions contemplated by this Agreement including:

(a)           subject to Section 9.5 and Section 6.2, publicly announcing the entering into of this Agreement, the support of the Pozen Board of Directors of the Merger and the Arrangement and the Pozen Recommendation;

(b)           using commercially reasonable efforts to defend all lawsuits or other legal, regulatory or other Proceedings against or relating to Pozen or the Pozen Subsidiaries challenging or affecting this Agreement or the completion of the Arrangement and the Merger; and

(c)           subject to Section 6.2, taking all necessary actions to give effect to the Arrangement and the Merger.

5.4           Covenants of Tribute Regarding the Arrangement and the Merger

Subject to the terms and conditions of this Agreement (including Section 5.2), Tribute shall and shall cause each of the Tribute Subsidiaries to, perform all obligations required to be performed by it under this Agreement, cooperate with Parent and Pozen in connection therewith, and use commercially reasonable efforts to do such other acts and things as may be necessary or desirable in order to complete the transactions contemplated by this Agreement including:

(a)           subject to Section 9.5 and the terms of Section 6.4, publicly announcing the entering into of this Agreement, the support of the Tribute Board of Directors of the Arrangement and the Merger and the Tribute Recommendation;

(b)           using commercially reasonable efforts to defend all lawsuits or other legal, regulatory or other Proceedings against or relating to Tribute or its Subsidiaries challenging or affecting this Agreement or the completion of the Arrangement or the Merger; and

(c)           subject to Section 6.4, forthwith carrying out the terms of the Interim Order and Final Order, taking all necessary actions to give effect to the transactions contemplated by this Agreement, the Arrangement and the Merger.

5.5           Covenants of Parent Regarding the Arrangement and the Merger

Subject to the terms and conditions of this Agreement (including Section 5.2), Parent shall, and shall cause each of the Parent Subsidiaries to, perform all obligations required to be performed by Parent under this Agreement, cooperate with Pozen and Tribute in connection therewith, and use commercially reasonable efforts to do such other acts and things as may be necessary or desirable in order to complete the Arrangement, the Merger and the other transactions contemplated by this Agreement including:

(a)           subject to Section 9.5, publicly announcing the entering into of this Agreement and the support of the Parent Board of Directors of the Arrangement and the Merger;

(b)           using commercially reasonable efforts to defend all lawsuits or other legal, regulatory or other Proceedings against Parent or its Subsidiaries challenging or affecting this Agreement or the completion of the Arrangement or the Merger; and

(c)           taking all necessary actions and causing its Subsidiaries to take all necessary actions to give effect to the Arrangement and the Merger, including providing the Merger Exchange Agent and the Arrangement Exchange Agent with sufficient consideration to complete the Arrangement and the Merger as provided herein, including without limitation procuring that the Parent Shares issued pursuant to the Merger and Arrangement are fully paid and non-assessable.
 
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5.6           Indemnification and Insurance

(a)           Each of Tribute, Pozen and their respective Subsidiaries agrees that all rights to indemnification or exculpation now existing in favor of the present and former directors and officers of Tribute, Pozen and their respective Subsidiaries (each such present or former director or officer of Tribute, Pozen or their respective Subsidiaries being referred to as an “ Indemnified Party ” and such Persons collectively being referred to as the “ Indemnified Parties ”) as provided in the constituent documents of Tribute, Pozen or any of their respective Subsidiaries or any Contract by which Tribute, Pozen or any of their respective Subsidiaries is bound and which is in effect as of the date hereof, will survive the completion of the Merger and the Arrangement and continue in full force and effect and without modification, with respect to actions or omissions of the Indemnified Parties occurring prior to the Closing.

(b)           Without limiting the foregoing, from and after the Merger Effective Time for not less than six (6) years from the Closing Date, each of Parent, US Surviving Company and Tribute shall, jointly and severally, to the fullest extent permitted under applicable Law, indemnify, defend and hold harmless each Indemnified Party against any costs or expenses (including advancing reasonable attorneys’ fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by applicable Law, subject to the indemnifying or advancing party’s receipt of an unsecured undertaking by or on behalf of the Indemnified Party to repay such funds if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Party is not entitled to indemnification hereunder), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any Proceeding arising out of, relating to or in connection with any action or omission occurring or alleged to have occurred on or prior to the Closing Date, whether asserted or claimed before or after the Merger Effective Time, in connection with or as a result of such Indemnified Party serving as an officer or director of Tribute, Pozen or any of their respective Subsidiaries.

(c)           Parent shall, or shall cause its Subsidiaries to, maintain in effect, without any reduction in scope or coverage for six (6) years from the Closing Date, customary policies of directors’ and officers’ liability insurance providing protection no less favorable to the protection provided by the policies maintained by Tribute, Pozen or any of their respective Subsidiaries that are in effect immediately prior to the Closing Date and providing protection in respect of claims arising from facts or events which occurred on or prior to the Closing Date; provided , however , that Parent may, prior to the Closing Date, purchase pre-paid non-cancellable run-off directors’ and officers’ liability insurance on terms substantially similar to the directors’ and officers’ liability policies currently maintained by Tribute, Pozen or any of their respective Subsidiaries, but providing coverage for a period of six (6) years from the Closing Date with respect to claims arising from or related to facts or events which occurred on or prior to the Closing Date; provided , further , however , that in no event shall Parent be required to spend premiums for any of the insurance referenced in this Section 5.6(c) to the extent it would exceed three hundred percent (300%) of Tribute, Pozen or any of their respective Subsidiaries’ current annual premium for directors’ and officers’ liability insurance, in which case Parent shall purchase the maximum amount of insurance available up to the foregoing premium limit.

(d)           If Tribute, Pozen or any of their respective Subsidiaries or any of their successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, Parent shall ensure that any such successor or assign assumes all of the obligations set forth in this Section 5.6.

(e)           The obligations of Parent and its Subsidiaries under this Section 5.6 shall survive the consummation of the Arrangement and the Merger and shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.6 applies, without the written consent of such affected Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this Section 5.6 applies and their respective heirs, executors, administrators and other legal representatives shall be third party beneficiaries of this Section 5.6, each of whom may enforce the provisions of this Section 5.6). Parent shall pay all expenses, including reasonable attorneys’ fees, that may be incurred by any Indemnified Party in connection with their enforcement of their rights provided in this Section 5.6; provided that such Indemnified Party prevails in such enforcement action.

(f)           The provisions of this Section 5.6 are intended to be in addition to the rights otherwise available to the current and former officers and directors of Tribute, Pozen or any of their respective Subsidiaries by law, charter, statute, by-law or agreement.

5.7           Rule 16b-3 Actions

Prior to the Closing, Tribute, Parent and Pozen shall take all such steps as may be required to cause (a) any dispositions of Pozen Common Shares (including derivative securities with respect to Pozen Common Shares) resulting from the Merger and the other transactions contemplated by this Agreement by each individual who will be subject to the reporting requirements of Section 16(a) of the 1934 Exchange Act with respect to Pozen immediately prior to the Merger Effective Time to be exempt under Rule 16b-3 promulgated under the 1934 Exchange Act and (b) any acquisitions of Parent Shares (including derivative securities with respect to Parent Shares) resulting from the Merger and the other transactions contemplated by this Agreement, by each individual who may become or is reasonably expected to become subject to the reporting requirements of Section 16(a) of the 1934 Exchange Act with respect to Parent, to be exempt under Rule 16b-3 promulgated under the 1934 Exchange Act.
 
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5.8           Stock Exchange Listings

(a)           Parent, Pozen and Tribute shall use all commercially reasonable efforts to cause the Parent Shares issued as Merger Consideration or Arrangement Consideration to be (i) approved for listing on NASDAQ, subject only to official notice of issuance and (ii) conditionally approved for listing on the TSX, subject only to the satisfaction of the customary listing conditions of the TSX, prior to the Arrangement Effective Time and the Merger Effective Time.

(b)           Each of the Parties agrees to cooperate with each other in taking, or causing to be taken, all actions necessary to delist the Pozen Common Shares from the NASDAQ and the Tribute Common Shares from the TSXV and OTCQX International and to cause Tribute to cease to be a reporting issuer in each jurisdiction in Canada in which it is a reporting issuer and terminate the registration of the Pozen Common Shares under the 1934 Exchange Act; provided , that such delisting and termination shall not be effective until after the Merger Effective Time.

5.9           Takeover Statutes

If any anti-takeover statute or similar statute or regulation is or may become applicable to the transactions contemplated by this Agreement, each of the Parties and its respective Affiliates shall (i) grant such approvals and take all such actions as are legally permissible so that the transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated hereby and (ii) otherwise act to eliminate or minimize the effects of any such statute or regulation on the Merger, the Arrangement and the other transactions contemplated by this Agreement.

5.10        Employee Matters

(a)           At or prior to Closing, Parent shall approve an omnibus equity incentive plan for officers, directors, employees and consultants of Parent.

(b)           Parent shall, or shall cause the US Surviving Company and Tribute to, maintain for the twelve (12) months after the closing the Pozen Severance Plan (“ Pozen Severance Plan ”) and maintain the current severance practice of Tribute (“ Tribute Severance Plan ”) for the benefit of all affected individuals who are employees of Pozen, Tribute or each of their respective Subsidiaries at the Merger Effective Time (the “ Assumed Employees ”). In the event that an Assumed Employee’s employment is terminated after and within twelve (12) months of the Merger Effective Time, the Assumed Employee shall be entitled to the severance benefits under the Pozen Severance Plan or the Tribute Severance Plan, as applicable.

5.11        Insurance

From the date hereof until the Closing Date, Pozen and Tribute shall each use commercially reasonable efforts to procure that any renewal of the current insurance policies and contracts of Pozen, Tribute and their respective Subsidiaries in effect on the date hereof shall permit cancellation thereof at any time without penalty, including by requesting its insurers to include such a provision in any such renewed policies and contracts. At Tribute’s request, Pozen shall reasonably cooperate with Tribute in good faith and take such actions as Tribute may reasonably request to purchase, at Tribute’s cost and expense and effective as of the Closing, “tail” insurance coverage to the product liabilities insurance of Pozen and its Subsidiaries, for the period specified by Tribute and on such other terms and conditions as Tribute may direct. At Pozen’s request, Tribute shall reasonably cooperate with Pozen in good faith and take such actions as Pozen may reasonably request to purchase, at Pozen’s cost and expense and effective as of the Closing, “tail” insurance coverage to the product liabilities insurance of Tribute and its Subsidiaries, for the period specified by Pozen and on such other terms and conditions as Pozen may direct. Notwithstanding anything contained herein to the contrary, the binding or otherwise obtaining of any such “tail” insurance coverage shall not be a condition to Closing.

5.12        Creation of Distributable Reserves

(a)           Unless Pozen and Tribute otherwise agree,

(i)           Pozen shall use all reasonable efforts to submit to the vote of the Pozen Stockholders at the Pozen Meeting a resolution (the “ Pozen Distributable Reserves Resolution ”) to approve the creation of distributable reserves of Parent by (A) the reduction of the share premium of Parent to allow the creation of distributable reserves of Parent resulting from the transactions contemplated by this Agreement; and (B) by any other means; and

(ii)           Tribute shall use all reasonable efforts to submit to the vote of the Tribute Shareholders at the Tribute Meeting a resolution (the “ Tribute Distributable Reserves Resolution ”) to approve the creation of distributable reserves of Parent by (A) the reduction of share premium of Parent to allow the creation of distributable reserves of Parent resulting from the transactions contemplated by this Agreement; and (B) by any other means;
 
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(the creation of distributable reserves in Parent by any of the means described in this Section 5.12(a) is referred to as the “ Parent Distributable Reserves Proposals ”).

(b)           The Parties agree that none of the approval of the Pozen Distributable Reserves Resolution, the approval of the Tribute Distributable Reserves Resolution or the implementation of the Parent Distributable Reserves Proposals shall be a condition to the Parties’ obligation to effect the Arrangement or the Merger.

(c)           Subject to approval of the Pozen Distributable Reserves Resolution by the Pozen Shareholders and the Tribute Distributable Reserves Resolution by the Tribute Shareholders:

(i)            Pozen and Parent shall, prior to Closing, pursuant to Section 84 of the Irish Companies Act 2014, procure the passing of a resolution of the then shareholders of Parent providing for the reduction of share capital of Parent in order to allow an application to be made under Section 85 of the Irish Companies Act 2014   to the Irish High Court to allow for the Parent Distributable Reserves Proposal (the “ Irish High Court Application ”); and

(ii)           Pozen and Parent shall as promptly as reasonably practicable following the Closing, prepare and file an application to the Irish High Court for an order pursuant to the Irish Companies Act 2014, as applicable, approving the Parent Distributable Reserves Proposals.

5.13        Certain Parent Shareholder Resolutions

Prior to Closing, Pozen and Parent shall procure the passing of resolutions of the shareholders of Parent providing for:

(a)           the re-registration of Parent as a public limited company under Irish law;

(b)           the adoption of revised memorandum and articles of association of Parent, which shall as far as is practicable be consistent with Pozen’s existing organizational documents;

(c)           to the extent necessary or possible, the acquisition of the ordinary shares of Parent denominated in euro;

(d)           to the extent required, the ability to purchase its own shares and reissue of treasury shares; and

(e)           the approval of any other matters as are deemed necessary or expedient in connection with giving effect to the transactions contemplated by, or ancillary to, this Agreement.

5.14        Parent Board of Directors

The Parties hereby intend that the Board of Directors of Parent at the Closing and at the closing of the Parent Financing shall be comprised of nine (9) members, consisting of the Chief Executive Officer of Parent, five (5) directors appointed by Pozen, two (2) directors appointed by Tribute (one of which must be qualify as an independent director under applicable SEC and stock exchange rules and regulations) and one (1) director appointed in accordance with the terms of the Parent Financing.

ARTICLE 6

ACQUISITION PROPOSALS

6.1           Pozen Non-Solicitation

(a)           Subject to Section 6.2, until the earlier of the Closing or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, Pozen shall not, and Pozen shall cause its Subsidiaries and direct each of its and their respective Representatives not to, directly or indirectly through any other Person:

(i)            initiate, solicit, knowingly facilitate or knowingly encourage (including by way of furnishing or affording access to information), or take any other action that would be reasonably expected to promote, directly or indirectly, any inquiries or the making of any proposal or offer with respect to a Pozen Acquisition Proposal or potential Pozen Acquisition Proposal;

(ii)           participate or engage in any discussions or negotiations regarding, or provide any information with respect to, or otherwise cooperate in any way with, or assist or participate in, knowingly encourage or otherwise knowingly facilitate, any effort or attempt by any other Person (other than Tribute and its Affiliates) to make or complete a Pozen Acquisition Proposal;

(iii)          effect any Pozen Change of Recommendation;

(iv)          approve, recommend or remain neutral with respect to, or publicly propose to approve, recommend or remain neutral with respect to any Pozen Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to a Pozen Acquisition Proposal until the fifth (5 th ) Business Day after such Pozen Acquisition Proposal has been publicly announced shall not constitute a violation of this Section 6.1(a)); or
 
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(v)           accept or enter into, or publicly propose to accept or enter into, any Pozen Acquisition Agreement.

(b)           Pozen shall, and shall cause the Pozen Subsidiaries and each of its and their respective Representatives to, immediately upon execution of this Agreement cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with or involving any Person (other than Tribute and its Affiliates) conducted heretofore by Pozen or the Pozen Subsidiaries, or any of its or their respective Representatives, with respect to any Pozen Acquisition Proposal or which could reasonably be expected to lead to a Pozen Acquisition Proposal and, in connection therewith, Pozen will immediately discontinue access by any Person (other than Tribute and its Affiliates) to any data room (virtual or otherwise) established by Pozen or its Representatives for such purpose. Except to the extent that the Pozen Board of Directors determines, after consultation with its outside legal counsel, that the failure to release the relevant third party would be reasonably likely to be inconsistent with the fiduciary duties of the Pozen Board of Directors under applicable Law, Pozen agrees not to release any third party (other than Tribute and its Affiliates) from any “standstill” agreement to which it is a party (it being acknowledged and agreed that the automatic termination of any “standstill” or similar provision of any agreement as the result of the entering into or an announcement of this Agreement pursuant to the express terms of any such agreement shall not itself be a violation of this Section 6.1(b)). Within ten (10) Business Days from the date hereof, Pozen shall request the return or destruction of all confidential non-public information provided to any third parties who have entered into a confidentiality agreement with Pozen since December 31, 2013 relating to any potential Pozen Acquisition Proposal and shall use commercially reasonable efforts to ensure that such requests are honored in accordance with the terms of such confidentiality agreements.

(c)           Pozen shall promptly (and in any event within twenty-four (24) hours of receipt) notify Tribute, at first orally and then in writing, of any proposal, inquiry, offer or request relating to or constituting a Pozen Acquisition Proposal, or which could reasonably be expected to lead to a Pozen Acquisition Proposal, in each case, received on or after the date hereof, of which Pozen, any of the Pozen Subsidiaries or any of their respective Representatives is or becomes aware, or any request received by Pozen or any of the Pozen Subsidiaries or any of their respective Representatives for non-public information relating to Pozen or any of the Pozen Subsidiaries in connection with a potential or actual Pozen Acquisition Proposal or for access to the properties, books and records or a list of securityholders of Pozen or any of the Pozen Subsidiaries in connection with a potential or actual Pozen Acquisition Proposal. Such notice shall include the identity of the Person making such Pozen Acquisition Proposal or proposal, inquiry, offer or request and a description of the material terms and conditions of such Pozen Acquisition Proposal or proposal, inquiry, offer or request, including a copy of any written materials submitted to Pozen, any of the Pozen Subsidiaries or their Representatives. Following the initial notification by Pozen to Tribute in respect of any Pozen Acquisition Proposal (or proposal, inquiry, offer or request in respect thereof) pursuant to the terms of the immediately preceding sentence, Pozen will keep Tribute promptly and fully informed of the status, including any change to the material terms and conditions, of any such Pozen Acquisition Proposal, proposal, inquiry, offer or request (for the avoidance of doubt, following such initial notification pursuant to the immediately preceding sentence, the terms of this sentence shall control in respect of such Pozen Acquisition Proposal, proposal, inquiry, offer or request).

(d)           Notwithstanding Section 6.1(a) or any other provision of this Agreement to the contrary, following receipt by Pozen of any proposal, inquiry, offer or request (or any amendment thereto) that is not a Pozen Acquisition Proposal but which Pozen reasonably believes could lead to a Pozen Acquisition Proposal, Pozen may respond to the proponent to advise it that Pozen can only enter into discussions or negotiations with a party in accordance with this Agreement.

(e)           Notwithstanding Section 6.1(a) or any other provision of this Agreement to the contrary, if after the date hereof and before the receipt of the Pozen Stockholder Approval, Pozen or any of the Pozen Subsidiaries, or any of its or their respective Representatives, receives a written Pozen Acquisition Proposal (including, an amendment, change or modification to a Pozen Acquisition Proposal made prior to the date hereof) that was not solicited after the date hereof in contravention of this Section 6.1, Pozen and its Representatives may:

(i)            contact the Person making such Pozen Acquisition Proposal and its Representatives solely for the purpose of clarifying the terms and conditions of such Pozen Acquisition Proposal and the likelihood of its consummation, so as to determine whether such Pozen Acquisition Proposal is, or could reasonably be expected to lead to, a Pozen Superior Proposal; and

(ii)           if the Pozen Board of Directors determines in good faith, after consultation with its outside legal counsel and financial advisors, that such Pozen Acquisition Proposal is, or could reasonably be expected to lead to, a Pozen Superior Proposal and that the failure to take relevant action would conflict with its fiduciary duties:

(A)          furnish information with respect to Pozen and the Pozen Subsidiaries to the Person making such Pozen Acquisition Proposal and its Representatives; provided that (I) Pozen first enters into a confidentiality agreement with such Person that is no less favorable (including with respect to any “standstill” and similar provisions) to Pozen than the Non-Disclosure Agreement, and sends a copy of such agreement to Tribute promptly following its execution, and (II) Pozen contemporaneously provides to Tribute any non-public information concerning Pozen and its Subsidiaries that is provided to such Person which was not previously provided to Tribute or its Representatives; and
 
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(B)           engage in discussions and negotiations with respect to a Pozen Acquisition Proposal with the Person making such Pozen Acquisition Proposal and its Representatives.

6.2           Pozen Change of Recommendation

(a)           Notwithstanding Section 6.1(a) or any other provision of this Agreement to the contrary, the Pozen Board of Directors may, at any time after the date of this Agreement and prior to the receipt of the Pozen Stockholder Approval, (1) effect a Pozen Change of Recommendation due to the occurrence of a Pozen Intervening Event, or (2) following receipt of a bona fide, unsolicited, written Pozen Acquisition Proposal that the Pozen Board of Directors determines in good faith, after consultation with Pozen’s outside legal and financial advisors, is a Pozen Superior Proposal, (A) effect a Pozen Change of Recommendation, and/or (B) accept, approve or enter into any Pozen Acquisition Agreement, in each case with respect to clauses (1) and (2), if and only if:

(i)            with respect to Section 6.2(a)(2) above, such Pozen Acquisition Proposal did not result from a breach of Section 6.1 and Pozen has complied with the other terms of this Section 6.2;

(ii)           the Pozen Board of Directors has determined in good faith, after consultation with its outside legal counsel and financial advisors, that the failure to take the action specified in Section 6.2(a)(1) or Section 6.2(a)(2), as applicable, would be reasonably likely to be inconsistent with its fiduciary duties to the Pozen Stockholders under applicable Laws;

(iii)          Pozen has (A) delivered a Pozen Change of Recommendation Notice to Tribute and (B) in the case of Section 6.2(a)(2) and provided Tribute with a copy of the document(s) containing such Pozen Acquisition Proposal; and

(iv)          solely in the case of the taking of the actions referred to in Section 6.2(a), Pozen has previously or concurrently will have terminated this Agreement pursuant to and in accordance with Section 7.1(c)(i).

(b)           The Pozen Board of Directors shall reaffirm the Pozen Recommendation by news release as soon as reasonably practicable after (i) the Pozen Board of Directors determines that a Pozen Acquisition Proposal which has been publicly announced or made is not a Pozen Superior Proposal; or (ii) the Pozen Board of Directors determines that a Pozen Acquisition Proposal which previously constituted a Pozen Superior Proposal would cease to be a Pozen Superior Proposal when assessed against this Agreement and the Merger and the Arrangement. Tribute shall be given a reasonable opportunity to review and comment on the form and content of any such news release. Such news release shall state that the Pozen Board of Directors has determined that the applicable Pozen Acquisition Proposal is not a Pozen Superior Proposal.

(c)           Nothing contained in this Section 6.2 or elsewhere in this Agreement shall prohibit Pozen or the Pozen Board of Directors from:

(i)            (A) disclosing to the Pozen Stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or (B) making any disclosure to the Pozen Stockholders, if the Pozen Board of Directors has reasonably determined in good faith, after consultation with Pozen’s outside legal counsel, that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties to the Pozen Stockholders under applicable Law; provided that this Section 6.2(c)(i) shall not permit the Pozen Board of Directors to make a Pozen Change of Recommendation, except to the extent permitted by this Section 6.2 (other than this Section 6.2(c)(i)); or

(ii)           calling and/or holding a meeting of the Pozen Stockholders requisitioned by the Pozen Stockholders in accordance with the DGCL or taking any other action with respect to a Pozen Acquisition Proposal to the extent ordered or otherwise mandated by a court of competent jurisdiction in accordance with applicable Laws; provided that, subject to the other terms set forth in this Section 6.2, any proxy statement or other document required in connection with such meeting recommends that the Pozen Stockholders vote against any proposed resolution in favor of or necessary to complete such Pozen Acquisition Proposal.

(d)           Pozen shall ensure that each of its Subsidiaries, and each of its and their respective Representatives, is aware of the provisions of Section 6.1 and this Section 6.2 and Pozen shall be responsible for any breach of Section 6.1 or this Section 6.2 by such Persons.

6.3           Tribute Non-Solicitation

(a)           Subject to Section 6.4, until the earlier of the Closing or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, Tribute shall not, and Tribute shall cause its Subsidiaries and direct each of its and their respective Representatives not to, directly or indirectly through any other Person:

(i)            initiate, solicit, knowingly facilitate or knowingly encourage (including by way of furnishing or affording access to information), or take any other action that would be reasonably expected to promote, directly or indirectly, any inquiries or the making of any proposal or offer with respect to a Tribute Acquisition Proposal or potential Tribute Acquisition Proposal;
 
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(ii)           participate or engage in any discussions or negotiations regarding, or provide any information with respect to, or otherwise cooperate in any way with, or assist or participate in, knowingly encourage or otherwise knowingly facilitate, any effort or attempt by any other Person (other than Pozen and its Affiliates) to make or complete a Tribute Acquisition Proposal;

(iii)          effect any Tribute Change of Recommendation;

(iv)          approve, recommend or remain neutral with respect to, or publicly propose to approve, recommend or remain neutral with respect to any Tribute Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to a Tribute Acquisition Proposal until the fifth (5 th ) Business Day after such Tribute Acquisition Proposal has been publicly announced shall not constitute a violation of this Section 6.3(a)); or

(v)           accept or enter into, or publicly propose to accept or enter into, any Tribute Acquisition Agreement.

(b)           Tribute shall, and shall cause the Tribute Subsidiaries and each of its and their respective Representatives to, immediately upon execution of this Agreement cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with or involving any Person (other than Pozen and its Affiliates) conducted heretofore by Tribute or the Tribute Subsidiaries, or any of its or their respective Representatives, with respect to any Tribute Acquisition Proposal or which could reasonably be expected to lead to a Tribute Acquisition Proposal and, in connection therewith, Tribute will immediately discontinue access by any Person (other than Pozen and its Affiliates) to any data room (virtual or otherwise) established by Tribute or its Representatives for such purpose. Except to the extent that the Tribute Board of Directors determines, after consultation with its outside legal counsel, that the failure to release the relevant third party would be reasonably likely to be inconsistent with the fiduciary duties of the Tribute Board of Directors under applicable Law, Tribute agrees not to release any third party (other than Pozen and its Affiliates) from any “standstill” agreement to which it is a party (it being acknowledged and agreed that the automatic termination of any “standstill” or similar provision of any agreement as the result of the entering into or an announcement of this Agreement pursuant to the express terms of any such agreement shall not itself be a violation of this Section 6.3(b)). Within ten (10) Business Days from the date hereof, Tribute shall request the return or destruction of all confidential non-public information provided to any third parties who have entered into a confidentiality agreement with Tribute since December 31, 2013 relating to any potential Tribute Acquisition Proposal and shall use commercially reasonable efforts to ensure that such requests are honored in accordance with the terms of such confidentiality agreements.

(c)           Tribute shall promptly (and in any event within twenty-four (24) hours of receipt) notify Pozen, at first orally and then in writing, of any proposal, inquiry, offer or request relating to or constituting a Tribute Acquisition Proposal, or which could reasonably be expected to lead to a Tribute Acquisition Proposal, in each case, received on or after the date hereof, of which Tribute, any of the Tribute Subsidiaries or any of their respective Representatives is or becomes aware, or any request received by Tribute or any of the Tribute Subsidiaries or any of their respective Representatives for non-public information relating to Tribute or any of its Subsidiaries in connection with a potential or actual Tribute Acquisition Proposal or for access to the properties, books and records or a list of security holders of Tribute or any of the Tribute Subsidiaries in connection with a potential or actual Tribute Acquisition Proposal. Such notice shall include the identity of the Person making such Tribute Acquisition Proposal or proposal, inquiry, offer or request and a description of the material terms and conditions of such Tribute Acquisition Proposal or proposal, inquiry, offer or request including a copy of any written materials submitted to Tribute, any of the Tribute Subsidiaries or their Representatives. Following the initial notification by Tribute to Pozen in respect of any Tribute Acquisition Proposal (or proposal, inquiry, offer or request in respect thereof) pursuant to the terms of the immediately preceding sentence, Tribute will keep Pozen promptly and fully informed of the status, including any change to the material terms and conditions, of any such Tribute Acquisition Proposal, proposal, inquiry, offer or request (for the avoidance of doubt, following such initial notification pursuant to the immediately preceding sentence, the terms of this sentence shall control in respect of such Tribute Acquisition Proposal, proposal, inquiry, offer or request).

(d)           Notwithstanding Section 6.3(a) or any other provision of this Agreement to the contrary, following receipt by Tribute of any proposal, inquiry, offer or request (or any amendment thereto) that is not a Tribute Acquisition Proposal but which Tribute reasonably believes could lead to a Tribute Acquisition Proposal, Tribute may respond to the proponent to advise it that Tribute can only enter into discussions or negotiations with a party in accordance with this Agreement.

(e)           Notwithstanding Section 6.3(a) or any other provision of this Agreement to the contrary, if after the date hereof and before the receipt of the Tribute Shareholder Approval, Tribute or any of its Subsidiaries, or any of its or their respective Representatives, receives a written Tribute Acquisition Proposal (including, an amendment, change or modification to a Tribute Acquisition Proposal made prior to the date hereof) that was not solicited after the date hereof in contravention of this Section 6.3, Tribute and its Representatives may:

(i)            contact the Person making such Tribute Acquisition Proposal and its Representatives solely for the purpose of clarifying the terms and conditions of such Tribute Acquisition Proposal and the likelihood of its consummation, so as to determine whether such Tribute Acquisition Proposal is, or could reasonably be expected to lead to, a Tribute Superior Proposal; and
 
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(ii)           if the Tribute Board of Directors determines in good faith, after consultation with its outside legal counsel and financial advisors, that such Tribute Acquisition Proposal is, or could reasonably be expected to lead to, a Tribute Superior Proposal and that the failure to take relevant action would conflict with its fiduciary duties:

(A)          furnish information with respect to Tribute and the Tribute Subsidiaries to the Person making such Tribute Acquisition Proposal and its Representatives; provided that (I) Tribute first enters into a confidentiality agreement with such Person that is no less favorable (including with respect to any “standstill” and similar provisions) to Tribute than the Non-Disclosure Agreement, and sends a copy of such agreement to Pozen promptly following its execution, and (II) Tribute contemporaneously provides to Pozen any non-public information concerning Tribute and the Tribute Subsidiaries that is provided to such Person which was not previously provided to Pozen or its Representatives; and

(B)           engage in discussions and negotiations with respect to a Tribute Acquisition Proposal with the Person making such Tribute Acquisition Proposal and its Representatives.

6.4           Tribute Change of Recommendation

(a)           Notwithstanding Section 6.3(a) or any other provision of this Agreement to the contrary, the Tribute Board of Directors may, at any time after the date of this Agreement and prior to the receipt of the Tribute Shareholder Approval, (1) effect a Tribute Change of Recommendation due to the occurrence of a Tribute Intervening Event, or (2) following receipt of a bona fide, unsolicited, written Tribute Acquisition Proposal that the Tribute Board of Directors determines in good faith, after consultation with Tribute’s outside legal and financial advisors, is a Tribute Superior Proposal, (A) effect a Tribute Change of Recommendation, and/or (B) accept, approve or enter into any Tribute Acquisition Agreement, in each case with respect to clauses (1) and (2), if and only if:

(i)            with respect to Section 6.4(a)(2) above, such Tribute Acquisition Proposal did not result from a breach of Section 6.3 and Tribute has complied with the other terms of this Section 6.4;

(ii)           the Tribute Board of Directors has determined in good faith, after consultation with its outside legal counsel and financial advisors, that the failure to take the action specified in Section 6.4(a)(1) or Section 6.4(a)(2), as applicable, would be reasonably likely to be inconsistent with its fiduciary duties to Tribute under applicable Laws;

(iii)          Tribute has (A) delivered a Tribute Change of Recommendation Notice to Pozen and (B) in the case of Section 6.4(a)(2) provided Pozen with a copy of the document(s) containing such Tribute Acquisition Proposal; and

(iv)          solely in the case of the taking of the actions referred to in Section 6.4(a), Tribute has previously or concurrently will have terminated this Agreement pursuant to and in accordance with Section 7.1(d)(i).

(b)           The Tribute Board of Directors shall reaffirm the Tribute Recommendation by news release as soon as reasonably practicable after (i) the Tribute Board of Directors determines that a Tribute Acquisition Proposal which has been publicly announced or made is not a Tribute Superior Proposal; or (ii) the Tribute Board of Directors determines that a Tribute Acquisition Proposal which previously constituted a Tribute Superior Proposal would cease to be a Tribute Superior Proposal when assessed against this Agreement and the Merger and the Arrangement. Pozen shall be given a reasonable opportunity to review and comment on the form and content of such news release. Such news release shall state that the Tribute Board of Directors has determined that the applicable Tribute Acquisition Proposal is not a Tribute Superior Proposal.

(c)           Nothing contained in this Section 6.4 or elsewhere in this Agreement shall prohibit Tribute or the Tribute Board of Directors from:

(i)            (A) disclosing to the Tribute Shareholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or (B) making any disclosure to the Tribute Shareholders, if the Tribute Board of Directors has reasonably determined in good faith, after consultation with Tribute’s outside legal counsel, that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties to the Tribute Shareholders under applicable Law; provided that this Section 6.4(c)(i) shall not permit the Tribute Board of Directors to make a Tribute Change of Recommendation, except to the extent permitted by this Section 6.4 (other than this Section 6.4(c)(i)); or

(ii)           calling and/or holding a meeting of the Tribute Shareholders requisitioned by the Tribute Shareholders in accordance with applicable law or taking any other action with respect to a Tribute Acquisition Proposal to the extent ordered or otherwise mandated by a court of competent jurisdiction in accordance with applicable Laws; provided that, subject to the other terms set forth in this Section 6.4, any proxy statement or other document required in connection with such meeting recommends that the Tribute Shareholders vote against any proposed resolution in favor of or necessary to complete such Tribute Acquisition Proposal.

(d)           Tribute shall ensure that each of its Subsidiaries, and each of its and their respective Representatives, is aware of the provisions of Section 6.3 and this Section 6.4 and Tribute shall be responsible for any breach of Section 6.1 or this Section 6.4 by such Persons.
 
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ARTICLE 7

TERMINATION

7.1           Termination

(a)           This Agreement may be terminated at any time prior to the Closing by mutual written consent of Pozen and Tribute.

(b)           This Agreement may be terminated by either Tribute or Pozen at any time prior to the Closing:

(i)            if the Closing does not occur on or before the Outside Date; provided , however , that the right to terminate this Agreement under this Section 7.1(b)(i) shall not be available to a Party if the failure of that Party or its Affiliate to fulfill any of its obligations or breach of any of its agreements or covenants under this Agreement has been a principal cause of, or resulted in, the failure of the Closing to occur by the Outside Date;

(ii)           if the Pozen Stockholder Approval is not obtained at the Pozen Meeting or any adjournment or postponement thereof;

(iii)          if the Arrangement Resolution is not approved by the Tribute Shareholders in accordance with applicable Laws and the Interim Order at the Tribute Meeting or any adjournment or postponement thereof;

(iv)          if the Parent Financing has not been consummated prior to Closing; or

(v)           if there shall be passed any Law that makes consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited or if any Governmental Authority of competent jurisdiction shall have issued an Order or taken any other action enjoining or otherwise prohibiting the Merger or Arrangement, and such Order or other action is or shall have become final and non-appealable.

(c)           This Agreement may be terminated by Pozen at any time prior to the Closing if any of the following have occurred:

(i)            Tribute shall have effected a Tribute Change of Recommendation;

(ii)           subject to Pozen complying with the terms of Sections 6.1 and 6.2 and paying the Pozen Termination Fee to Tribute in accordance with Section 7.2, to concurrently enter into a Pozen Acquisition Agreement that constitutes a Pozen Superior Proposal;

(iii)          Tribute breaches any of its representations, warranties, covenants or agreements contained in this Agreement, which breach would cause any of the conditions set forth in Section 8.2 not to be satisfied and which breach is not cured on or prior to (or by its nature or timing cannot be cured by) the earlier of (A) thirty (30) days following the delivery of written notice to Tribute from Pozen of such breach and (B) three (3) Business Days prior to the Outside Date; provided , however , that, if Tribute does not effect the Closing when required pursuant to the terms set forth in Section 2.2, the cure period referred to in the immediately preceding clause (A) shall be three (3) Business Days and not thirty (30) days as referred to therein;

(iv)          subject to Pozen paying the Reduced Pozen Termination Fee to Tribute in accordance with Section 7.3, there shall have occurred, after the date of this Agreement but on or before the Closing Date, a change in applicable U.S. federal Tax Law (whether or not such change in Law is yet effective), or official interpretation thereof as set forth in published guidance by the U.S. Treasury Department or the IRS (other than News Releases) (whether or not such change in official interpretation is yet effective), or the passing of a bill that would implement such a change by the United States House of Representatives and the United States Senate and for which the time period for the President of the United States to sign or veto such bills has not yet elapsed, in any such case, that, as a result of consummating the transactions contemplated by this Agreement once effective, in the opinion of nationally recognized U.S. tax counsel, would have a Material Adverse Effect on Pozen pursuant to clause (i) of the definition of “Material Adverse Effect” (without regard to the exclusion in clause (f) of the definition of “Material Adverse Effect”); or

(v)           a Material Adverse Effect on Tribute shall have occurred since the date of this Agreement.

(d)           This Agreement may be terminated by Tribute at any time prior to the Closing if any of the following shall have occurred:

(i)            Pozen shall have effected a Pozen Change of Recommendation;

(ii)           subject to Tribute complying with the terms of Sections 6.3 and 6.4 and paying the Tribute Termination Fee to Pozen in accordance with Section 7.2, to concurrently enter into a Tribute Acquisition Agreement that constitutes a Tribute Superior Proposal;
 
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(iii)          Pozen breaches any of its representations, warranties, covenants or agreements contained in this Agreement, which breach would cause any of the conditions set forth in Section 8.3 not to be satisfied and which breach is not cured on or prior to (or by its nature or timing cannot be cured by) the earlier of (A) thirty (30) days following the delivery of written notice to Pozen from Tribute of such breach and (B) three (3) Business Days prior to the Outside Date; provided , however , that, if Pozen does not effect the Closing when required pursuant to the terms set forth in Section 2.2, the cure period referred to in the immediately preceding clause (A) shall be three (3) Business Days and not thirty (30) days as referred to therein;

(iv)          there shall have occurred, after the date of this Agreement but on or before the Closing Date, a change in applicable U.S. federal Tax Law (whether or not such change in Law is yet effective), or official interpretation thereof as set forth in published guidance by the U.S. Treasury Department or the IRS (other than News Releases) (whether or not such change in official interpretation is yet effective), or the passing of a bill that would implement such a change by the United States House of Representatives and the United States Senate and for which the time period for the President of the United States to sign or veto such bills has not yet elapsed, in any such case, that, as a result of consummating the transactions contemplated by this Agreement once effective, in the opinion of nationally recognized U.S. tax counsel, would have a Material Adverse Effect on Pozen pursuant to clause (i) of the definition of “Material Adverse Effect” (without regard to the exclusion in clause (f) of the definition of “Material Adverse Effect”);

(v)           DLA Piper LLP (US), special tax advisor to Pozen, is unable to deliver the opinion contemplated in Section 8.1(l); solely for reasons other than   (i) a change in applicable U.S. federal Tax Law (whether or not such change in Law is yet effective), or official interpretation thereof as set forth in published guidance by the U.S. Treasury Department or the IRS (other than News Releases) (whether or not such change in official interpretation is yet effective), or the passing of a bill that would implement such a change by the United States House of Representatives and the United States Senate and for which the time period for the President of the United States to sign or veto such bills has not yet elapsed, in any such case, that, as a result of consummating the transactions contemplated by this Agreement once effective, in the opinion of nationally recognized U.S. tax counsel, would have a Material Adverse Effect on Pozen pursuant to clause (i) of the definition of “Material Adverse Effect” (without regard to the exclusion in clause (f) of the definition of “Material Adverse Effect”); or (ii) a misrepresentation contained in or breach of any representation or warranty of Tribute or a breach of any covenant of Tribute which affects the determination of compliance with Section 7874 of the Code (or any other U.S. Tax law), existing regulations promulgated thereunder, and official interpretation thereof as set forth in published guidance, such that following the Closing Date the Parent shall not be treated as a domestic corporation for U.S. federal income tax purposes; or

(vi)          a Material Adverse Effect on Pozen shall have occurred since the date of this Agreement.

7.2           Termination Fee

(a)           If a Pozen Termination Fee Event occurs, Pozen shall pay to Tribute a termination fee of $3,500,000 (the “ Pozen Termination Fee ”) by wire transfer in immediately available funds to an account specified by Tribute. If a Tribute Termination Fee Event occurs, Tribute shall pay to Pozen a termination fee of $3,500,000 (the “ Tribute Termination Fee ”) by wire transfer in immediately available funds to an account specified by Pozen. The Pozen Termination Fee shall be payable at the time specified in Section 7.2(b). The Tribute Termination Fee shall be payable at the time specified in Section 7.2(c).

(b)           “ Pozen Termination Fee Event ” means:

(i)            the termination of this Agreement by Pozen pursuant to Section 7.1(c)(ii), in which case the Pozen Termination Fee shall be paid by Pozen concurrent with the Pozen Termination Fee Event;

(ii)           the termination of this Agreement by Tribute pursuant to Section 7.1(d)(i) or 7.1(d)(v), in which case the Pozen Termination Fee shall be paid by Pozen within two (2) Business Days of the Pozen Termination Fee Event; or

(iii)          the termination of this Agreement by either Tribute or Pozen pursuant to Section 7.1(b)(i) or Section 7.1(b)(ii) or by Tribute pursuant to Section 7.1(d)(iii) (solely as it relates to Section 6.1), if, in any of the foregoing cases, (x) prior to such termination, a Pozen Acquisition Proposal shall have been made public or proposed publicly to Pozen or Pozen Stockholders and has not been publicly withdrawn prior to the Pozen Meeting and (y) within twelve (12) months following such termination, Pozen or one or more of Pozen’s Subsidiaries shall have executed a Pozen Acquisition Agreement and the transactions thereby are at any time subsequently consummated in respect of such Pozen Acquisition Proposal, in which cases the Pozen Termination Fee shall be paid by Pozen on the date of consummation of such transaction; provided that, for purposes of this Section 7.2(b)(iii), the term “Pozen Acquisition Proposal” shall have the meaning assigned to such term in Section 1.1, except that all references to “twenty percent (20%)” therein shall be deemed to be references to “fifty percent (50%).”

(c)           “ Tribute Termination Fee Event ” means:

(i)            the termination of this Agreement by Tribute pursuant to Section 7.1(d)(ii), in which case the Tribute Termination Fee shall be paid by Tribute concurrent with the Tribute Termination Fee Event;
 
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(ii)           the termination of this Agreement by Pozen pursuant to Section 7.1(c)(i), in which case the Tribute Termination Fee shall be paid by Tribute within two (2) Business Days of the Tribute Termination Fee Event; or

(iii)          the termination of this Agreement by either Tribute or Pozen pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii) or by Pozen pursuant to Section 7.1(c)(iii) (solely as it relates to Section 6.3), if, in any of the foregoing cases, (x) prior to such termination, a Tribute Acquisition Proposal shall have been made public or proposed publicly to Tribute or Tribute Shareholders and has not been publicly withdrawn prior to the Tribute Meeting and (y) within twelve (12) months following such termination, Tribute or one or more of Tribute’s Subsidiaries shall have executed a Tribute Acquisition Agreement and the transactions thereby are at any time subsequently consummated in respect of such Tribute Acquisition Proposal, in which cases the Tribute Termination Fee shall be paid by Tribute on the date of consummation of such transaction; provided that, for purposes of this Section 7.2(c)(iii), the term “Tribute Acquisition Proposal” shall have the meaning assigned to such term in Section 1.1, except that all references to “twenty percent (20%)” therein shall be deemed to be references to “fifty percent (50%).”

(d)           Each Party acknowledges that the payment of the Termination Fee pursuant to this Section 7.2 represents a payment of liquidated damages which are a genuine pre-estimate of the damages which Tribute or Pozen, as applicable, will suffer or incur as a result of the event giving rise to such payment and are not penalties. Pozen and Tribute irrevocably waive any right that it may have to raise as a defense that any such liquidated damages are excessive or punitive. The Parties agree that the payment of the Termination Fee pursuant to this Section 7.2 in the manner provided herein is the sole and exclusive remedy of Tribute or Pozen, as applicable, in respect of the event giving rise to such payment; provided , however , that nothing contained in this Section 7.2, and no payment of the Termination Fee, shall relieve or have the effect of relieving a Party in any way from liability for damages incurred or suffered by the other Party as a result of an intentional or willful breach of this Agreement.

(e)           Notwithstanding any other provision in this Agreement, in no event shall either Party be required to pay the Termination Fee more than once.

7.3           Reduced Termination Fee

(a)           If a Reduced Pozen Termination Fee Event occurs, Pozen shall pay to Tribute a termination fee of $1,750,000 (the “ Reduced Pozen Termination Fee ”) by wire transfer in immediately available funds to an account specified by Tribute. The Reduced Pozen Termination Fee shall be payable at the time specified in Section 7.3(b).

(b)           “ Reduced   Pozen Termination Fee Event ” means the termination of this Agreement by Pozen pursuant to Section 7.1(c)(iv), in which case the Reduced Pozen Termination Fee shall be paid by Pozen to Tribute within two (2) Business Days of the Pozen Termination Fee Event.

(c)           Notwithstanding any other provision in this Agreement, in no event shall either Party be required to pay the Reduced Termination Fee more than once.

7.4           Effect of Termination

The Party desiring to terminate this Agreement pursuant to this Article 7 (other than pursuant to Section 7.1(a)) shall deliver written notice of such termination to each other Party. If this Agreement is terminated pursuant to and in accordance with this Article 7 (including payment of the Termination Fee, if applicable), it will become void and of no further force and effect, with no liability on the part of any Party to any other Party, except that (a) nothing shall relieve any Party of any liability or obligations arising from any intentional or willful breach by any Party of any of its covenants and agreements contained in this Agreement, and (b) the terms set forth in last paragraph of Section 7.2, Section 7.3, this Section 7.3 and Article 9 (and any related definitions contained in any such Sections or Article), as well as the Non-Disclosure Agreement, shall survive any termination of this Agreement.

ARTICLE 8

CONDITIONS PRECEDENT

8.1           Mutual Conditions Precedent

The respective obligations of the Parties to complete the Arrangement and the Merger are subject to the satisfaction, or mutual waiver by Pozen and Tribute, on or before the Closing Date, of each of the following conditions, each of which is for the mutual benefit of the Parties and which may be waived, in whole or in part, by Pozen and Tribute at any time:

(a)           the Arrangement Resolution shall have been approved by the Tribute Shareholders at the Tribute Meeting in accordance with the Interim Order and applicable Laws, including, if applicable, on a “majority of the minority” basis;

(b)           the Pozen Stockholder Approval shall have been obtained at the Pozen Meeting in accordance with applicable Laws;
 
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(c)           each of the Interim Order and Final Order shall have been obtained on terms consistent with this Agreement and in form and substance satisfactory to each of Tribute and Pozen, each acting reasonably, and shall not have been set aside or modified in any manner unacceptable to either Tribute or Pozen, each acting reasonably, on appeal or otherwise;

(d)           the Form S-4 shall have been declared effective and no stop order suspending the effectiveness of the Form S-4 shall be in effect;

(e)           the Parent Shares to be issued as Merger Consideration and the Arrangement Consideration shall have been approved for listing on NASDAQ, subject only to official notice of issuance and (ii) conditionally approved for listing on the TSX, subject only to the satisfaction of the customary listing conditions of the TSX;

(f)            the conditions to closing shall have been met or waived with respect to the Parent Financing;

(g)           the only condition precedent to the respective obligations of the Parties to consummate the Merger which remains unsatisfied pursuant to the terms of this Agreement, shall be the filing of the Certificate of Merger. The only condition precedent to the respective obligations of the Parties to consummate the Arrangement which remains unsatisfied pursuant to the terms of the this Agreement, shall be the filing of the Articles of Arrangement;

(h)           the Required Regulatory Approvals shall have been obtained or concluded and shall be in full force and effect and any waiting or suspensory periods related to the Required Regulatory Approvals shall have expired or been terminated, in each case, without the imposition of any Restraint;

(i)            (i) no Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law or Order (whether temporary, preliminary or permanent), in any case which is in effect and which prevents or prohibits consummation of the Merger and the Arrangement or any of the other transactions contemplated in this Agreement and (ii) no Governmental Authority shall have instituted any Proceeding (which remains outstanding at what would otherwise be the Closing Date) before any Governmental Authority of competent jurisdiction seeking to enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement;

(j)            there has been no change in applicable Law (whether or not such change in Law is yet effective) with respect to Section 7874 of the Code (or any other U.S. tax law), or official interpretation thereof as set forth in published guidance by the IRS (other than IRS News Releases) (whether or not such change in official interpretation is yet effective), and no bill that would implement such a change has been passed in identical (or substantially identical such that a conference committee is not required prior to submission of such legislation for approval or veto by the President of the United States) form by both the United States House of Representatives and the United States Senate and for which the time period for the President of the United States to sign or veto such bill has not yet elapsed, in each case, that, once effective, in the opinion of nationally recognized U.S. tax counsel, would cause Parent to be treated as a United States domestic corporation for United States federal income tax purposes;

(k)           following the Merger and the Arrangement, Parent should not be taxed as a U.S. resident corporation;

(l)            Pozen shall have received from DLA Piper LLP (US), special tax advisor to Pozen, an opinion addressed to Pozen and Parent dated as of the Closing Date to the effect that Section 7874 of the Code (or any other U.S. Tax law), existing regulations promulgated thereunder, and official interpretation thereof as set forth in published guidance should not apply so as to cause Parent to be treated as a domestic corporation for U.S. federal income tax purposes from and after the Closing Date, provided that such opinion shall only take into account the Law in effect as of the Closing Date and, there shall have been no change in applicable Law (whether or not such change in Law is yet effective) with respect to Section 7874 of the Code (or any other U.S. Tax Law), or official interpretation thereof as set forth in published guidance by the IRS (other than News Releases) (whether or not such change in official interpretation is yet effective), and there shall have been no bills that would implement such a change passed by the United States House of Representatives and the United States Senate and for which the time period for the President of the United States to sign or veto such bills has not yet elapsed, in each case, that, once effective, in the opinion of nationally recognized U.S. tax counsel, would cause Parent to be treated as a United States domestic corporation for U.S. federal income tax purposes. In rendering such opinion, DLA Piper LLP (US) will be entitled to receive and rely upon certificates containing representations, warranties, and covenants of officers of Pozen, Tribute, and Parent, reasonably satisfactory in form and substance to such counsel and reasonably necessary to the giving of such opinion; and

(m)          the issuance of the Parent Shares to Tribute Shareholders in exchange for their Tribute Common Shares and the issuance of Parent Options to Tribute Optionholders in exchange for their Tribute Options, all pursuant to the Arrangement, shall be exempt from the registration requirements of the 1933 Securities Act pursuant to Section 3(a)(10) thereof and shall be exempt or qualified under all applicable U.S. state securities laws, and such securities will not be subject to restrictions on transfer under the 1933 Securities Act and applicable state securities laws except such as may be imposed by Rule 144 under the 1933 Securities Act with respect to certain “affiliates” (as such term is defined in Rule 405 under the 1933 Securities Act) of Can Merger Sub.
 
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8.2           Additional Conditions Precedent to the Obligations of Pozen

The obligation of Pozen to complete the Merger shall be subject to the satisfaction, or waiver by Pozen, on or before the Closing Date, of each of the following conditions, each of which is for the exclusive benefit of Pozen and which may be waived by Pozen at any time, in whole or in part, in its sole discretion and without prejudice to any other rights that Pozen may have:

(a)           Tribute shall have complied in all material respects with its obligations, covenants and agreements in this Agreement to be performed and complied with on or before the Closing Date;

(b)           (i) the representations and warranties of Tribute in the first and third sentences of Section 3.2(e) shall be true and correct in all respects, as of the date of this Agreement and as of the Closing Date, as if made on such date (except for such representations and warranties which refer to or are made as of another specified date, in which case such representations and warranties shall have been true and correct as of that date), except for breaches of representations and warranties which are de minimis in the aggregate; (ii) the representations and warranties of Tribute set forth in Sections 3.2(a), 3.2(b), the first sentence of 3.2(v), 3.2(y), 3.2(z) and 3.2(bb) shall be true and correct in all material respects, as of the date of this Agreement and as of the Closing Date, as if made on such date (except for such representations and warranties which refer to or are made as of another specified date, in which case such representations and warranties shall have been true and correct as of that date); and (iii) the representations and warranties of Tribute set forth in Section 3.2 (other than those referenced in clause (i) or (ii) above) shall be true and correct (disregarding for this purpose all materiality or Material Adverse Effect qualifications contained therein) as of the date of this Agreement and as of the Closing Date, as if made on and as of such date (except for such representations and warranties which refer to or are made as of another specified date, in which case such representations and warranties shall have been true and correct as of that date), except for breaches of representations and warranties which have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to Tribute;

(c)           since the date of this Agreement, no Material Adverse Effect with respect to Tribute shall have occurred and be continuing;

(d)           Pozen shall have received a certificate of Tribute signed by a senior officer of Tribute for and on behalf of Tribute and dated the Closing Date certifying that the conditions set out in Section 8.1 and Section 8.3 have been satisfied;

(e)           Tribute shall not have received duly exercised rights of dissent (which notices have not been withdrawn prior to the Closing Time) from Tribute Shareholders holding greater than one percent (1%) of the Tribute Common Shares; and

(f)            Pozen shall have received the Pozen Fairness Opinions.

8.3           Additional Conditions Precedent to the Obligations of Tribute

The obligation of Tribute to complete the Arrangement shall be subject to the satisfaction, or waiver by Tribute, on or before the Closing Date, of each of the following conditions, each of which is for the exclusive benefit of Tribute and which may be waived by Tribute at any time, in whole or in part, in its sole discretion and without prejudice to any other rights that Tribute may have:

(a)           Pozen shall have complied in all material respects with its obligations, covenants and agreements in this Agreement to be performed and complied with on or before the Closing Date;

(b)           (i) the representations and warranties of Pozen in the first, second, fourth, fifth, sixth and seventh sentences of Section 3.1(e) shall be true and correct in all respects, as of the date of this Agreement and as of the Closing Date, as if made on such date (except for such representations and warranties which refer to or are made as of another specified date, in which case such representations and warranties shall have been true and correct as of that date), except for breaches of representations and warranties which are de minimis in the aggregate; (ii) the representations and warranties of Pozen in Sections 3.1(a), 3.1(b), the first sentence of 3.1(v), 3.1(y), 3.1(z) and 3.1(bb) shall be true and correct in all material respects, as of the date of this Agreement and as of the Closing Date, as if made on such date (except for such representations and warranties which refer to or are made as of another specified date, in which case such representations and warranties shall have been true and correct as of that date); and (iii) the representations and warranties of Pozen set forth in Section 3.1 (other than those referenced in clause (i) or (ii) above) shall be true and correct (disregarding for this purpose all materiality or Material Adverse Effect qualifications contained therein) as of the date of this Agreement and as of the Closing Date, as if made on and as of such date (except for such representations and warranties which refer to or are made as of another specified date, in which case such representations and warranties shall have been true and correct as of that date), except for breaches of representations and warranties which have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to Pozen;

(c)           since the date of this Agreement, no Material Adverse Effect with respect to Pozen or the Parent shall have occurred and be continuing;

(d)           Tribute shall have received a certificate of Pozen signed by a senior officer of Pozen for and on behalf of Pozen and dated the Closing Date certifying that the conditions set out in Section 8.1 and 8.2 have been satisfied;
 
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(e)           Tribute shall have received a certificate of Parent and Can Merger Sub signed by their respective senior officers for and on behalf of Parent and Can Merger Sub, as applicable dated the Arrangement Effective Date certifying that the conditions set out in Section 8.1 have been satisfied;

(f)           Tribute shall have received the Tribute Fairness Opinion;

(g)           Tribute shall have received certified copies of resolutions duly passed by the board of directors of the Parent (acting for itself and on behalf of Can Merger Sub) approving this Agreement and the completion of the transactions contemplated hereby; and

(h)           Can Merger Sub or the Parent will have deposited, or caused to be deposited with the Arrangement Exchange Agent, sufficient funds (including share certificates) to effect payment in full of the aggregate consideration payable by Can Merger Sub under the Plan of Arrangement.

8.4           Notice Provisions

Each Party will give prompt notice to the other of the occurrence, or failure to occur, at any time from the date hereof until the Merger Effective Time and the Arrangement Effective Time, of any event or state of facts which occurrence or failure would, or would be reasonably likely to:

(a)           cause any of the representations or warranties of such Party contained herein to be untrue or inaccurate between the date hereof and the Merger Effective Time or the Arrangement Effective Time such that the condition set forth in Section 8.2(b) or Section 8.3(b) would fail to be satisfied; or

(b)           result in the failure to comply with or satisfy any covenant or agreement to be complied with or satisfied by such Party hereunder prior to the Merger Effective Time or the Arrangement Effective Time such that the condition set forth in Section 8.2(a) or Section 8.3(a) would fail to be satisfied.

ARTICLE 9

GENERAL

9.1           Notices

Any demand, notice or other communication to be given in connection with this Agreement must be given in writing and will be given by personal delivery or by facsimile or electronic transmission, addressed to the recipient as follows:

(a) if to Tribute:

Tribute Pharmaceuticals Canada Inc.
151 Steeles Avenue East
Milton, Ontario, Canada L9T 1Y1
Attention: Robert Harris, President and Chief Executive Officer
Facsimile No.: 519 434-4382
E-mail: rob.harris@tributepharma.com

with a copy (which will not constitute notice) to:

Fogler, Rubinoff LLP
77 King Street West, Suite 3000
Toronto, Ontario M5K 1G8

Attention: Eric R. Roblin
Facsimile No.: +1.416.941.8852
E-mail: eroblin@foglers.com

(b) if to Parent:

Aguono Limited
c/o POZEN Inc.
1414 Raleigh Road, Suite 400
Chapel Hill, North Carolina 27517

Attention: Adrian Adams, Chief Executive Officer
 
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Facsimile No.: (919) 490-5552
E-mail: aadams@pozen.com

with a copy (which will not constitute notice) to:

DLA Piper LLP (US)
51 John F. Kennedy Parkway, Suite 120
Short Hills, New Jersey 07078-2704

Attention: Andrew Gilbert
Facsimile No.: (973) 520-2573
E-mail: andrew.gilbert@dlapiper.com

(c) if to Ltd2:

Trafwell Limited
c/o POZEN Inc.
1414 Raleigh Road, Suite 400
Chapel Hill, North Carolina 27517

Attention: Adrian Adams, Chief Executive Officer
Facsimile No.: (919) 490-5552
E-mail: aadams@pozen.com

with a copy (which will not constitute notice) to:

DLA Piper LLP (US)
51 John F. Kennedy Parkway, Suite 120
Short Hills, New Jersey 07078-2704

Attention: Andrew Gilbert
Facsimile No.: (973) 520-2573
E-mail: andrew.gilbert@dlapiper.com

(d) if to US Merger Sub:

ARLZ US Acquisition Corp.
c/o POZEN Inc.
1414 Raleigh Road, Suite 400
Chapel Hill, North Carolina 27517

Attention: Adrian Adams, Chief Executive Officer
Facsimile No.: (919) 490-5552
E-mail: aadams@pozen.com

with a copy (which will not constitute notice) to:

DLA Piper LLP (US)
51 John F. Kennedy Parkway, Suite 120
Short Hills, New Jersey 07078-2704

Attention: Andrew Gilbert
Facsimile No.: (973) 520-2573
E-mail: andrew.gilbert@dlapiper.com

(e) if to Can Merger Sub:

ARLZ CA Acquisition Corp.
c/o POZEN Inc.
1414 Raleigh Road, Suite 400
Chapel Hill, North Carolina 27517
 
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Attention: Adrian Adams, Chief Executive Officer
Facsimile No.: (919) 490-5552
E-mail: aadams@pozen.com

with a copy (which will not constitute notice) to:

DLA Piper (Canada) LLP
Suite 6000, 1 First Canadian Place
PO Box 367, 100 King St W
Toronto, Ontario M5X 1E2
Attention: Andrew Lord
Facsimile No.: 416-369-5207
E-mail: andrew.lord@dlapiper.com

(f) if to Pozen:

POZEN Inc.
1414 Raleigh Road, Suite 400
Chapel Hill, North Carolina 27517
Attention: Adrian Adams, Chief Executive Officer
Facsimile No.: (919) 490-5552
E-mail: aadams@pozen.com

with copies (which will not constitute notice) to:

DLA Piper LLP (US)
51 John F. Kennedy Parkway, Suite 120
Short Hills, New Jersey 07078-2704
Attention: Andrew Gilbert
Facsimile No.: (973) 520-2573
E-mail: andrew.gilbert@dlapiper.com

or to such other street address, individual or electronic communication number or address as may be designated by written notice given by either Party to the other in any manner stated in this Section 9.1. Any demand, notice or other communication or facsimile, given by personal delivery will be conclusively deemed to have been given on the day of actual delivery thereof and, if given by electronic communication, on the day of transmittal thereof if given during the normal business hours of the recipient and on the Business Day during which such normal business hours next occur if not given during such hours on any day.

9.2           Expenses

Except as otherwise specified herein and except in respect of any filing fees associated with any filings made pursuant to Relevant Competition Laws, which fees shall be split evenly between Pozen and Tribute, each Party will pay its respective legal and accounting costs and expenses incurred in connection with the preparation, execution and delivery of this Agreement and all documents and instruments executed pursuant to this Agreement and any other costs and expenses whatsoever and howsoever incurred, and will indemnify and save harmless the others from and against any claim for any broker’s, finder’s or placement fee or commission alleged to have been incurred as a result of any action by it in connection with the transactions hereunder.

9.3           No Assignment

Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by any Party without the prior written consent of the other Parties.

9.4           Benefit of Agreement

Subject to Section 9.8, this Agreement will inure solely to the benefit of and be binding upon each Party hereto.

9.5           Public Announcements

(a)           Pozen and Tribute shall publicly announce the Arrangement and the Merger by way of joint press release promptly following the execution of this Agreement, the text and timing of such announcement to be approved by the other Party in advance, acting reasonably.

(b)           No Party shall issue any press release or otherwise make any written public statement with respect to the Merger or this Agreement without the consent of the other Parties (which consent shall not be unreasonably withheld, conditioned or delayed).
 
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(c)           Pozen shall not make any filing with any Governmental Authority with respect to the transactions contemplated by this Agreement without prior consultation with Tribute, and Tribute shall not make any filing with any Governmental Authority with respect to the transactions contemplated by this Agreement without prior consultation with Pozen.

The provisions of Section 9.5(b) and Section 9.5(c) shall be subject to each Party’s overriding obligation to make any disclosure or filing required under applicable Laws or applicable stock exchange rules, and the Party making the disclosure shall use commercially reasonable efforts to give prior oral or written notice to the other Party and reasonable opportunity for the other Party to review or comment on the disclosure or filing (other than with respect to confidential information contained in such disclosure or filing) and, if such prior notice is not possible, to give notice immediately following the making of any such disclosure or filing. Notwithstanding anything contained herein to the contrary, except as otherwise expressly required pursuant to this Agreement (other than this Section 9.5), neither Tribute nor Pozen shall have any obligation to obtain the consent of or consult with the other Party prior to any press release, public statement, disclosure or filing with regard to any Pozen Acquisition Proposal, Tribute Acquisition Proposal, Pozen Change of Recommendation or Tribute Change of Recommendation or in connection with any dispute (including initiation of litigation or similar proceedings) between the Parties.

9.6           Governing Law; Attornment; Service of Process; Waiver of Jury

(a)           This Agreement, and any dispute arising out of, relating to, or in connection with this Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware of any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware, except that the approval and effectiveness of the Arrangement shall be governed by the OBCA. Each of the Parties (i) consents to submit itself to the personal jurisdiction of the Court of Chancery of the State of Delaware (the “ Chancery Court ”) or, if, but only if, the Chancery Court lacks subject matter jurisdiction, any federal court located in the State of Delaware with respect to any dispute arising out of, relating to or in connection with this Agreement or any transaction contemplated hereby, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (iii) agrees that it will not bring any action arising out of, relating to or in connection with this Agreement or any transaction contemplated by this Agreement, in any court other than any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in the Chancery Court or, if, but only if, the Chancery Court lacks subject matter jurisdiction, in any federal court located in the State of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

(b)           Each Party hereby agrees that any service of process, summons, notice or document by registered mail addressed to such Person at its address set forth in Section 9.1 shall be effective service of process for any suit, action or proceeding relating to any dispute arising out of this Agreement or the transactions contemplated by this Agreement.

(c)           EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

9.7           Entire Agreement

This Agreement, together with the Non-Disclosure Agreement, and any documents delivered hereunder, constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, both written and oral, among the Parties, with respect to the subject matter thereof.

9.8           Third Party Beneficiaries

Except as provided in Section 5.6, this Agreement shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns.

9.9           Amendment

This Agreement may, at any time and from time to time but not later than the Closing, be amended by written agreement of the Parties hereto without, subject to applicable Laws, further notice to or authorization on the part of the Pozen Stockholders.

9.10         Waiver and Modifications

Any Party may (a) waive, in whole or in part, any inaccuracy of, or consent to the modification of, any representation or warranty made to it hereunder or in any document to be delivered pursuant hereto, (b) extend the time for the performance of any of the obligations or acts of the other Parties, (c) waive or consent to the modification of any of the covenants herein contained for its benefit or waive or consent to the modification of any of the obligations of the other Parties hereto or (d) waive the fulfillment of any condition to its own obligations contained herein. No waiver or consent to the modifications of any of the provisions of this Agreement will be effective or binding unless made in writing and signed by the Party or Parties purporting to give the same and, unless otherwise provided, will be limited to the specific breach or condition waived. The rights and remedies of the Parties hereunder are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at Law or in equity or otherwise. No single or partial exercise by a Party of any right or remedy precludes or otherwise affects any further exercise of such right or remedy or the exercise of any other right or remedy to which that Party may be entitled. No waiver or partial waiver of any nature, in any one or more instances, will be deemed or construed a continued waiver of any condition or breach of any other term, representation or warranty in this Agreement.
 
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9.11         Severability

Upon such determination that any provision is illegal, invalid or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the Arrangement and Merger be consummated as originally contemplated to the fullest extent possible.

9.12         Further Assurances

Subject to the provisions of this Agreement, the Parties will, from time to time, do all acts and things and execute and deliver all such further documents and instruments, as the other Parties may, either before or after the Closing, reasonably require to effectively carry out or perfect the full intent and meaning of this Agreement.

9.13         Injunctive Relief

(a)           Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached for which money damages would not be an adequate remedy at Law or otherwise. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement and this right shall include the right of the parties to cause the transactions contemplated by this Agreement to be consummated on the terms set forth in this Agreement, in each case without posting a bond or undertaking, this being in addition to any other remedy to which they are entitled at Law or in equity or pursuant to this Agreement. Each of the parties hereto hereby waives any defenses in any action for specific performance, including the defense that a remedy at Law would be adequate.

(b)           Notwithstanding the parties’ rights to specific performance or injunctive relief or both pursuant to Section 9.13(a), each party may pursue any other remedy available to it at Law or in equity, including monetary damages; provided that it is understood and agreed that claims for monetary damages following termination of this Agreement shall be limited to those arising from or relating to any intentional or willful breach of this Agreement prior to such termination.

9.14         No Recourse

Without limiting any other provision in this Agreement, this Agreement may be enforced only against, and any claims or causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement, may be made only against the Parties hereto.

9.15         Counterparts

This Agreement may be executed and delivered in any number of counterparts (including by facsimile or electronic transmission), each of which will be deemed to be an original and all of which taken together will be deemed to constitute one and the same instrument, and each Party may enter into this Agreement by executing a counterpart and delivering it to the other Party (by personal delivery, facsimile, electronic transmission or otherwise).

[The remainder of this page is left intentionally blank—Signature page follows]
 
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IN WITNESS WHEREOF the Parties have executed this Agreement as of the date first written above.

 
TRIBUTE PHARMACEUTICALS CANADA INC.
     
 
By:
/s/ Scott Langille
   
Name: Scott Langille
   
Title: Chief Financial Officer
     
 
AGUONO LIMITED
     
 
By:
/s/ William L. Hodges
   
Name: William L. Hodges
   
Title: Director
     
 
TRAFWELL LIMITED
     
 
By:
/s/ William L. Hodges
   
Name: William L. Hodges
   
Title: Director
     
 
ARLZ US ACQUISITION CORP.
     
 
By:
/s/ Adrian Adams
   
Name: Adrian Adams
   
Title: President
     
 
ARLZ CA ACQUISITION CORP.
     
 
By:
/s/ Andrew Koven
   
Name: Andrew Koven
   
Title: President
     
 
POZEN INC.
     
 
By:
/s/ Adrian Adams
   
Name: Adrian Adams
   
Title: Chief Executive Officer
 
SCHEDULE I—REQUIRED REGULATORY APPROVALS

1. The applicable waiting period under the HSR Act with respect to the Merger shall have expired or been terminated

2. Competition Act (Canada) – Advanced Ruling Certificate (to the extent required under applicable Law in respect of the transactions contemplated by this Agreement (including the Arrangement and the Merger))

3. Investment Canada Act (Canada) - post-closing filing notice

4. the Interim Order and the Final Order

5. the conditional approval of the Toronto Stock Exchange

6. the conditional acceptance of the TSX Venture Exchange

7. Nasdaq listing approval of Parent Shares including those issuable as Merger Consideration and Arrangement Consideration and underlying any of the Parent Options, Tribute Warrants and Tribute Compensation Options issued in connection with the Arrangement
 
SCHEDULE II — PLAN OF ARRANGEMENT

FORM OF PLAN OF ARRANGEMENT UNDER SECTION 182 OF THE BUSINESS CORPORATIONS ACT (ONTARIO)
 
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SCHEDULE III — FORM OF ARRANGEMENT RESOLUTION
 
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SCHEDULE IV — FORM OF VOTING AGREEMENT
 
 
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Exhibit 10.1
 
FACILITY AGREEMENT

FACILITY AGREEMENT (this “ Agreement ”), dated as of June 8, 2015, between Borrower (hereinafter defined), POZEN Inc., a Delaware corporation (“ Pozen ”), Tribute Pharmaceuticals Canada Inc., an Ontario corporation (“ Tribute ”, and together with Borrower, Parent (hereinafter defined), to the extent that Irish Finco (hereinafter defined) is substituted for Parent as the Borrower and Pozen, each a “ Credit Party ” and collectively, the “ Credit Parties ”), and the lenders set forth on the signature page of this Agreement (together with their successors and assigns, the “ Lenders ” and, together with the Borrower, the “ Parties ”).

W I T N E S S E T H:

WHEREAS, the Borrower wishes to borrow from the Lenders up to Two Hundred Seventy Five Million Dollars ($275,000,000) for the purpose described in Section 2.1;

WHEREAS, pursuant to the Arrangement Agreement (defined below) Pozen and Tribute shall become wholly owned subsidiaries of Parent:

WHEREAS, Pozen, Tribute and each other Subsidiary of Parent shall guaranty the Obligations (defined below); and

WHEREAS, the Lenders desire to make loans to the Borrower for the purposes set forth in Section 2.1.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the Parties hereto agree as follows:

ARTICLE 1

DEFINITIONS

Section 1.1           General Definitions. Wherever used in this Agreement, the Exhibits or the Schedules attached hereto, unless the context otherwise requires, the following terms have the following meanings:

“ Acquisition Loans ” shall have the meaning provided therefor in Section 2.3.

“ Acquisition Notes ” means the Secured Notes issued to the Lenders evidencing the Acquisition Loans in the form attached hereto as Exhibit A-2.

“ Adjusted EBITDA ” means, with respect to Parent for any Test Period, Parent’s EBITDA plus (i) to the extent deducted in determining Consolidated Net Income for such Test Period, (A) fees and expenses directly incurred or paid in connection with (x) the transactions contemplated by this Agreement, (y) any Permitted Acquisition and (z) to the extent permitted hereunder, issuances or incurrence of Indebtedness, issuances of equity interests or refinancing transactions and modifications of instruments of Indebtedness, (B) any non-recurring charges, costs, fees and expenses directly incurred or paid directly as a result of discontinued operations (other than such charges, costs, fees and expenses to the extent constituting losses arising from such discontinued operations), (C) restructuring charges or reserves, including write-downs and write-offs, including any one-time costs incurred in connection with Permitted Acquisitions and costs related to the closure, consolidation and integration of facilities, information technology infrastructure and legal entities, and severance and retention bonuses as reasonably approved by the Required Lenders, (D) the amount of cost savings and synergies projected by Parent in good faith to be realized as a result of a Permitted Acquisition, in each case within the four consecutive fiscal quarters following the consummation of a Permitted Acquisition (or following the consummation of the squeeze-out merger in the case of a Permitted Acquisition structured as a two-step transaction), as the case may be, calculated as though such cost savings and synergies had been realized on the first day of the Test Period and net of the amount of actual benefits received during such period from the Permitted Acquisition; provided that (1) no cost savings or synergies shall be added pursuant to this clause (D) to the extent duplicative of any expenses or charges otherwise added to Adjusted EBITDA, whether through a pro forma adjustment or otherwise, for such period, (2) subject to the last paragraph of Section 5.1, a duly completed certificate signed by an authorized officer of Parent shall be delivered to the Lenders, specifying such cost savings and synergies in reasonable detail and certifying that such cost savings and synergies are reasonably expected and factually supportable in the good faith judgment of Parent, and (3) the cost savings or synergies pursuant to this clause (D) shall not exceed the amount of such expected costs savings or synergies publicly disclosed by Parent or the public successor (if applicable) in any filings with the SEC with respect to such Permitted Acquisition, minus (ii) to the extent included in Consolidated Net Income for such Person for such Test Period, any non-recurring income or gains directly as a result of discontinued operations.
 
“ Affiliate ” shall have the meaning provided therefor in the Notes.

“ Agreement Date ” means the date of this Agreement.

“ Applicable Laws ” means all statutes, rules and regulations of Governmental Authorities in the United States or elsewhere applicable to the Borrower and its Subsidiaries.

“ Arrangement Agreement ” means that certain Agreement and Plan of Merger and Arrangement dated as of June 8, 2015 among Parent, Pozen, Tribute, Trafwell Limited, ARLZ US Acquisition Corp. and ARLZ CA Acquisition Corp.

“ Authorizations ” has the meaning set forth in Section 3.1(r).

“ Borrower ” means Parent, or if the conditions in Section 6.16 have occurred, Irish Finco.

“ Business Day ” means a day on which banks are required to be open for business in The City of New York.

“ Canadian Security Documents ” means the Security Agreement to be entered into between Tribute, all other Canadian Subsidiaries and the Lenders, substantially in the form of Exhibit B attached hereto, with such changes reasonably acceptable to Lenders, and all instruments, documents and agreements executed and delivered in connection therewith required to perfect Liens on the assets of Tribute.

“ Code ” means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations promulgated thereunder.
 
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“ Collateral ” shall have the meaning provided therefor in the Security Documents.

“ Commission ” means the United States Securities and Exchange Commission.

“ Common Shares ” shall mean the ordinary shares, nominal value $0.001, of Parent.

“ Common Share Equivalents ” means any securities of Parent which would entitle the holder thereof to acquire at any time Common Shares, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares or other securities that entitle the holder to receive, directly or indirectly, Common Shares.

“ Consolidated Net Income ” means, with respect to Parent for any Test Period, net income (or loss) for Parent and its Subsidiaries for such Test Period, determined on a consolidated basis in accordance with GAAP (after deduction for minority interests); provided that, in making such determination, there shall be excluded (i) the net income of any other Person that is not a Subsidiary of Parent (or is accounted for by Parent by the equity method of accounting) except to the extent of actual payment of cash dividends or distributions by such Person to Parent or one of its Subsidiaries during such Test Period, (ii) the net income (or loss) of any other Person acquired by, or merged with, such Person or any of its Subsidiaries for any period prior to the date of such acquisition or merger, and (iii) the net income of any Subsidiary of Parent to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such net income is not at the time permitted by operation of the terms of its charter, certificate of incorporation or formation or other constituent document or any agreement or instrument or Applicable Laws.

“ Conversion Failure ” shall have the meaning provided therefor in the Conversion Notes.

“ Conversion Notes ” means the Senior Secured Convertible Notes issued to the Lenders evidencing the Initial Loans in the form attached hereto as Exhibit A-1.

“ Conversion Shares ” shall have the meaning provided therefor in the Conversion Notes.

“ Default ” means any event which, at the giving of notice, lapse of time or fulfillment of any other applicable condition (or any combination of the foregoing), would constitute an Event of Default.

“ Disbursement Condition ” means Parent shall have authorized and reserved for issuance a number of Common Shares sufficient to cover all shares issuable on conversion of the Conversion Notes (computed without regard to any limitations on the number of shares that may be issued on exercise).

“ Dollars ” and the “ $ ” sign mean the lawful currency of the United States of America.

“ EBITDA ” means, with respect to Parent for any Test Period, Consolidated Net Income for such Person for such Test Period plus (i) to the extent deducted in determining Consolidated Net Income for such Person for such Test Period, (A) interest expense, (B) provision for taxes paid or accrued, (C) depreciation and amortization, (D) non-cash expenses related to stock based compensation, (E) extraordinary non-cash expenses or losses incurred other than in the ordinary course of business, (F) any unrealized losses in respect of any interest rate hedge agreements, and (G) adjustments relating to purchase price allocation accounting, minus (ii) to the extent included in Consolidated Net Income for such Person for such Test Period, (A) interest income (to the extent not netted against interest expense in the calculation of interest expense), (B) income tax credits and refunds (to the extent not netted from tax expenses), (C) extraordinary non-cash income or gains realized other than in the ordinary course of business, and (D) any unrealized income or gains in respect of any interest rate hedge agreements (to the extent not included in clause (i)(F)) above or netted against interest expense in the calculation of interest expense).
 
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“ Employment Agreement ” means each of the Employment Agreements dated as of May 31, 2015 between Pozen and each of Adrian Adams and Andrew Koven.

“ Equity Agreement ” means the Share Subscription Agreement dated as of June 8, 2015 among Lenders, Parent, Trafwell Limited and the other Persons party thereto.

“ Equity Investment ” means the investment by Lenders or their Affiliates and other Persons in the Common Shares pursuant to the Equity Agreement.

“ Event of Default ” has the meaning given to it in Section 5.4.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, including the rules and regulations promulgated thereunder.

“ Excluded Taxes ” means with respect to any Lender, (a) income Taxes imposed on (or measured by) such Lender’s net income, franchise Taxes and branch profit Taxes, in each case imposed by the United States of America, or by the jurisdiction (or any political subdivision thereof) under the laws of which such Lender is organized or incorporated or in which the applicable lending office of such Lender is located, (b) Other Connection Taxes, (c) Other Taxes that arise with respect to the onward transfer of the Conversion Shares by a Lender or (d) any U.S. federal withholding Taxes imposed under FATCA due to such Lender’s non-compliance with Section 2.6(e).

“ Excluded Transaction ” means any of the following transactions:

The entering into any collaborative arrangement, licensing, joint venture, partnership, royalty agreement or similar agreements or other research, development, manufacturing or other commercial exploitation arrangements relating to Parent or any Subsidiary’s Intellectual Property or other assets ( provided , that Parent has a reasonable basis for believing that the downstream economics potentially to be received by Parent and its Subsidiaries in connection with such collaborative arrangement, licensing, joint venture, partnership, royalty agreement or similar agreements or other research, development, manufacturing or other commercial exploitation arrangements relating to the IP, when combined with the potential downstream economics of rights in the IP retained by Parent and its Subsidiaries are adequate to enable Borrower to timely satisfy all obligations of the Borrower and its Subsidiaries under this Agreement), including, without limitation, but subject to the conditions set forth above, (1) any grant to any entity engaged in, or owned by an entity engaged in, the pharmaceutical or biotechnology industry of a license or option to obtain a license to any of Parent’s or any Subsidiary’s Intellectual Property or other assets, provided that Parent or a Subsidiary (and not any third party or any of Parent’s equity holders) directly receives from such entity all consideration paid or payable by such entity in consideration of such grant, which consideration may, but need not, include (without limitation) upfront, milestone, royalty and profit-sharing payments, (2) any grant of a license or option to obtain a license to any entity that intends to research, develop, commercialize or manufacture products or services covered by such Intellectual Property or other assets whether directly or through Parent, any Subsidiary or another entity, and (3) any arrangement or transfers of assets for the manufacture, research, promotion and development of Parent’s or any Subsidiary’s products and clinical trial management, and data analysis and similar activities in support of Parent’s or any Subsidiary’s development programs.
 
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“ FATCA ” means 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 intergovernmental agreements with respect thereto, any current or future regulations or official interpretations thereof, and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

“ Final Payment ” means such amount as may be necessary to repay the outstanding principal amount of the Notes and any other Obligations owing by the Borrower to the Lenders pursuant to the Loan Documents.

“ GAAP ” means generally accepted accounting principles consistently applied as set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession).

“ Governmental Authority ” means any government, quasi-governmental agency, governmental department, ministry, cabinet, commission, board, bureau, agency, court, tribunal, regulatory authority, instrumentality, judicial, legislative, fiscal, or administrative or public body or entity, whether domestic or foreign, federal, state or local, having jurisdiction over the matter or matters and Person or Persons in question.

“ Guaranty ” means the guaranty of the Obligations to be executed by each Guarantor in favor of Lenders substantially in the form of Exhibit C attached hereto, with such changes reasonably acceptable to Lenders.

“ Guarantor ” means Parent, if it is not the Borrower, each Subsidiary of Parent and each other Person that executes a Guaranty.

“ Indebtedness ” means the following:

(i)            all indebtedness for borrowed money;

(ii)           the deferred purchase price of assets or services (other than payables) which in accordance with GAAP would be shown to be a liability (or on the liability side of a balance sheet);

(iii)          all guarantees of Indebtedness;
 
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(iv)          all letters of credit issued or acceptance facilities established for the account of Parent and any of its Subsidiaries, including without duplication, all drafts drawn thereunder;

(v)           all capitalized lease obligations;

(vi)          all indebtedness of another Person secured by any Lien on any property of Parent or its Subsidiaries, whether or not such indebtedness has been assumed or is recourse (with the amount thereof, in the case of any such indebtedness that has not been assumed by Parent or its Subsidiaries, being measured as the lower of (x) fair market value of such property and (y) the amount of the indebtedness secured); and

(vii)         indebtedness created or arising under any conditional sale or title retention agreement.

“ Indemnified Person ” has the meaning given to it in Section 6.11.

“ Indemnified Taxes ” means all Taxes including Other Taxes, other than Excluded Taxes.

“ Indemnity ” has the meaning given to it in Section 6.11.

“ Initial Funding Date ” shall have the meaning set forth in Section 2.2.

“ Initial Loans ” means the Loans made available by the Lenders to the Borrower pursuant to Section 2.2 in the aggregate principal amount of Seventy Five Million Dollars ($75,000,000) or, as the context may require, the principal amount thereof from time to time outstanding.

“ Interest Rate ” means 2.5% per annum with respect to the Initial Loans and 12.5% per annum with respect to the Acquisition Loans.

“ IP ” and “ Intellectual Property ” have the meaning given to it in Section 3.1(n).

“ IRS ” means the United States Internal Revenue Service.

“ Irish Finco ” means Stamridge Limited a limited liability company incorporated under the laws of the Republic of Ireland with company registration number 561897 being a wholly owned indirect Subsidiary of the Parent.

“ Irish Security Document ” means that certain Irish law debenture dated the date of the Initial Funding Date among the Borrower, the other companies from time to time party thereto and Lenders, substantially in the form of Exhibit D attached hereto, with such changes reasonably acceptable to Lenders.

“ Lien ” means any lien, pledge, preferential arrangement, mortgage, security interest, deed of trust, charge, assignment, hypothecation, title retention, or other encumbrance on or with respect to property or interest in property having the practical effect of constituting a security interest, in each case with respect to the payment of any obligation with, or from the proceeds of, any asset or revenue of any kind.
 
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“ Loans ” means the Initial Loans and the Acquisition Loans.

“ Loan Documents ” means this Agreement, the Notes, the Guaranties, the Pledge Agreement, the Security Documents, the Registration Rights Agreement, and any other document or instrument delivered in connection with any of the foregoing and dated the Agreement Date or subsequent thereto, whether or not specifically mentioned herein or therein.

“ Loss ” has the meaning given to it in Section 6.11.

“ Major Transaction ” has the meaning set forth in the Conversion Notes.

“ Material Adverse Effect ” means a material adverse effect on (a) the business, operations, condition (financial or otherwise), or assets of Parent or any of its Subsidiaries, (b) the validity or enforceability of any provision of any Loan Document, (c) the ability of Parent or any of its Subsidiaries to timely perform the Obligations or (d) the rights and remedies of the Lenders under any Loan Document; provided, however, any adverse effect that results directly or indirectly from general economic, business, financial or market conditions shall not be deemed to be a Material Adverse Effect.

“ Material Contract ” means any contract of any Credit Party that has been filed or was required to have been filed as an exhibit to the SEC Reports pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K.

“ Notes ” means the Conversion Notes and the Acquisition Notes.

“ Obligations ” means all obligations and liabilities (monetary or otherwise) of Parent, Borrower and their Subsidiaries arising under or in connection with this Agreement and the other Loan Documents.

“ Organizational Documents ” means the Certificate of Incorporation, Bylaws, memorandum and articles of association or similar documents, each as amended to date, of Parent or any of its Subsidiaries, as the context may require.

“ Other Connection Taxes ” means with respect to any Lender, Taxes imposed as a result of a present or former connection between such Lender and the jurisdiction imposing such Tax (except a connection arising from such Lender having executed, delivered or performed its obligations under the Loan Documents).

“ Other Taxes ” means any and all present or future stamp or documentary taxes or any other excise or property taxes, duties, other charges or similar levies, and all liabilities with respect thereto, together with any interest, additions to tax or penalties applicable thereto (including by reason of any delay in payment) arising from any payment made hereunder or from the execution, delivery, registration or enforcement of, or otherwise with respect to, any Loan Document or the delivery to a Lender of the Conversion Shares, except any such Taxes imposed with respect to an assignment (other than an assignment made in connection with the exercise of remedies following an Event of Default).
 
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“ Parent ” means Aguono Limited a private limited company incorporated under the laws of the Republic of Ireland with company registration number 561617.

“ Permitted Acquisition ” means any transaction or series of related transaction by which Parent or any of its Subsidiaries acquires all or substantially all of the assets of a Person or going business, division, or line of business or product or acquires equity interests of any Person having at least a majority of combined voting power of the then outstanding equity interests of such Person; provided ,

(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 Authorizations;

(iii)          Borrower shall have taken, or caused to be taken, as of the date such Person becomes a Subsidiary of Parent, each of the actions set forth in Section 5.1(ix);

(iv)          Subject to the last paragraph of Section 5.1, Borrower shall have delivered to Lenders at least ten (10) Business Days prior to such proposed acquisition, an executed term sheet and/or commitment letter (setting forth in reasonable detail the terms and conditions of such acquisition) and, at the request of any Lender, such other information and documents that any Lender may request, including, without limitation, executed counterparts of the respective agreements, instruments or other documents pursuant to which such acquisition is to be consummated, to the extent available (including, without limitation, any related management, non-compete, employment, option or other material agreements), any schedules to such agreements, instruments or other documents and all other material ancillary agreements, instruments or other documents to be executed or delivered in connection therewith;

(v)           any Person or assets or division acquired in accordance herewith shall be in same business or lines of business in which Parent and/or its Subsidiaries are engaged as of the Initial Funding Date or a business or line of business complimentary thereto;

(vi)          the acquisition shall have been approved by the board of directors or other governing body of the Person acquired or the Person from whom such assets or division is acquired; and

(vii)         the Adjusted EBITDA of Parent for the Test Period determined as of the date of the definitive documentation for such transaction or transactions on a pro forma basis as if such Permitted Acquisition had occurred at the beginning of such Test Period is greater than Adjusted EBITDA of Parent for such Test Period without giving such pro forma effect.
 
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“ Permitted Indebtedness ” means:

(i)            The Obligations;

(ii)           Indebtedness in respect of netting services, overdraft protections and other similar and customary services in connection with deposit accounts;

(iii)          Performance bonds, surety bonds and similar instruments incurred in the ordinary course of business;

(iv)          Guarantees with respect to any Permitted Indebtedness;

(v)           Indebtedness in respect of purchase money financing, capital lease obligations and equipment financing facilities covering existing and newly‑acquired equipment, including for the acquisition, installation, qualification and validation of such equipment up to the aggregate amount, together with Indebtedness permitted by clause (vi) below, not in excess of $5,000,000 outstanding at any time;

(vi)          Indebtedness acquired pursuant to or incurred in connection with a Permitted Acquisition up to the aggregate amount, together with Indebtedness permitted by clause (v) above, not in excess of $5,000,000 outstanding at any time; provided that such Indebtedness has a rate of interest no greater than the market rate of interest for comparable Indebtedness and a maturity which is not less than 180 days after the latest maturity date of the Loans;

(vii)         Unsecured Indebtedness up to an aggregate principal amount of $300,000,000 subordinated to the Obligations by written agreement in form and substance acceptable to Lenders, which has an interest rate no greater than the market rate of interest for comparable Indebtedness and a maturity which is not less than 180 days after the latest maturity date of the Loans; and

(viii)        Unsecured convertible Indebtedness up to an aggregate principal amount of $300,000,000 subordinated to the Obligations by written agreement in form and substance acceptable to Lenders, which has a rate of interest no greater than the market rate of interest for comparable Indebtedness and a maturity which is not less than 180 days after the latest maturity date of the Loans.

“ Permitted Liens ” means:

(i)            Liens in favor of the Lenders;

(ii)           Statutory Liens created by operation of applicable law;

(iii)          Liens arising in the ordinary course of business and securing obligations not in excess of the aggregate sum of $1,000,000 that are not more than 60 days past due or are being contested in good faith by appropriate proceedings diligently pursued;
 
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(iv)          Liens for taxes, assessments or governmental charges or levies not past due and payable or that are being contested in good faith by appropriate proceedings;

(v)           Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default;

(vi)          Liens in favor of financial institutions arising in connection with any Credit Party’s or any of its Subsidiaries’ accounts maintained in the ordinary course held at such institutions to secure standard fees for services charged by, but not financing made available by, such institutions;

(vii)         Pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation;

(viii)        Easements, rights of way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially interfere with the conduct of the business of the applicable Person;

(ix)          Liens of a collection bank arising under Section 4-210 of the Uniform Commercial Code (or equivalent in foreign jurisdictions) on items in the course of collection; and

(x)           Liens securing Indebtedness pursuant to clause (v) of the definition of Permitted Indebtedness.

“ Person ” means and includes any natural person, individual, partnership, joint venture, corporation, trust, limited liability company, limited company, joint stock company, unincorporated organization, government entity or any political subdivision or agency thereof, or any other entity.

“ Pledge Agreement ” means the Pledge Agreement to be entered into as of the Initial Funding Date by the entity which holds the equity interests in Pozen and Tribute in favor of Lenders, substantially in the form of Exhibit E attached hereto, with such changes reasonably acceptable to Lenders.

“ Principal Trading Markets ” means the Trading Markets on which the Common Shares are listed on and quoted for trading, which, as of the date of this Agreement, shall be the NASDAQ Global Market and the Toronto Stock Exchange.

“ Register ” has the meaning set forth in Section 1.4 (b).

“ Registration Rights Agreement ” means the Registration Rights Agreement dated as of the Agreement Date between Lenders and Parent.
 
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“ Registration Statement ” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale by the Lenders of the Registrable Securities (as defined in the Registration Rights Agreement).

“ Required Lenders ” means, at any time, Lenders holding Loans representing more than 50% of the sum of the Loans outstanding.

“ Restricted Lender ” means the initial Lenders party to this Agreement and their Affiliates and any assignee of any interest in a Note that notifies the Borrower in writing that it wishes to be deemed a Restricted Lender.

“ Rule 144 ” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

“ SEC Reports ” shall have the meaning set forth in Section 5.1(v).

“ Securities ” means the Conversion Notes and the Conversion Shares.

“ Securities Act ” means the Securities Act of 1933, as amended, including the rules and regulations promulgated thereunder.

“ Security Agreement ” means that certain Security Agreement to be entered into as of the Initial Funding Date among Pozen, all other U.S. Subsidiaries of Parent, the other grantors from time to time party thereto and Lenders, substantially in the form of Exhibit F attached hereto, with such changes reasonably acceptable to Lenders.

“ Security Documents ” means the Security Agreement, the Irish Security Documents, the Canadian Security Documents and all other instruments, documents and agreements executed or delivered in connection therewith required to perfect Liens on the assets of Borrower and Guarantors.

“ Subsidiary or Subsidiaries ” means, as to any Person, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned or controlled by such Person, or one or more of the Subsidiaries of the Person, or a combination thereof and a subsidiary within the meaning of Section 7 of the Companies Act 2014 of Ireland.

“ Tax Affiliate ” means (a) Parent and its Subsidiaries and (b) any Affiliate of the Parent with which Parent files or is required to file consolidated, combined or unitary tax returns.

“ Taxes ” means all present or future taxes, levies, imposts, stamp or other duties, deductions, charges or withholdings and all liabilities with respect thereto, (including by reason of any delay in payment).

“ Test Period ” means, at any date of determination, the period of four consecutive fiscal quarters of Parent then ended for which financial statements have been filed with the SEC.
 
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“ Trading Market ” means whichever of the New York Stock Exchange, the NYSE Alternext (formerly the American Stock Exchange), the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market, the Toronto Stock Exchange or the OTC Bulletin Board on which the Common Shares are listed or quoted for trading on the date in question.

“ Transactions ” shall mean the transactions contemplated by the Arrangement Agreement and the Equity Agreement, including, but not limited to the Equity Investment.

Section 1.2           Interpretation. In this Agreement, unless the context otherwise requires, all words and personal pronouns relating thereto shall be read and construed as the number and gender of the party or parties requires and the verb shall be read and construed as agreeing with the required word and pronoun; the division of this Agreement into Articles and Sections and the use of headings and captions is for convenience of reference only and shall not modify or affect the interpretation or construction of this Agreement or any of its provisions; the words “herein,” “hereof,” “hereunder,” “hereinafter” and “hereto” and words of similar import refer to this Agreement as a whole and not to any particular Article or Section hereof; the words “include,” “including,” and derivations thereof shall be deemed to have the phrase “without limitation” attached thereto unless otherwise expressly stated; references to a specified Article, Exhibit, Section or Schedule shall be construed as a reference to that specified Article, Exhibit, Section or Schedule of this Agreement; and any reference to any of the Loan Documents means such document as the same shall be amended, supplemented or modified and from time to time in effect.

Section 1.3           Business Day Adjustment. If the day by which any payment or other performance is due to be made is not a Business Day, that payment or performance shall be made by the next succeeding Business Day.

Section 1.4           Registration.

(a)         The Borrower shall record on its books and records the amount of the Loans, the interest rate applicable, all payments of principal and interest thereon and the principal balance thereof from time to time outstanding.

(b)         The Borrower shall establish and maintain at its address referred to in Section 6.1, a record of ownership (the “ Register ”) in which the Borrower agrees to register by book entry the interests (including any rights to receive payment hereunder) of each Lender in the Loan, and any assignment of any such interest, and (ii) accounts in the Register in accordance with its usual practice in which it shall record (1) the names and addresses of the Lenders (and any change thereto pursuant to this Agreement), (2) the amount of the Loan and each funding of any participation therein, (3) the amount of any principal or interest due and payable or paid, and (4) any other payment received by the Lenders from the Borrower and its application to the Loan.

(c)         Notwithstanding anything to the contrary contained in this Agreement, the Loans (including any Notes evidencing the Loans) are a registered obligation, the right, title and interest of the Lenders and their assignees in and to the Loans shall be transferable only upon notation of such transfer in the Register and no assignment thereof shall be effective until recorded therein. This Section 1.4 shall be construed so that the Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code.
 
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(d)         The Borrower and the Lenders shall treat each Person whose name is recorded in the Register as a Lender for all purposes of this Agreement. Information contained in the Register with respect to any Lender shall be available for access by the Borrower or such Lender at any reasonable time and from time to time upon reasonable prior notice.

ARTICLE 2

AGREEMENT FOR THE LOAN

Section 2.1           Use of Proceeds. The proceeds of the Initial Loan shall be used for working capital and general corporate purposes and the proceeds of the Acquisition Loans shall be used solely to fund Permitted Acquisitions.

Section 2.2           Initial Loans. Subject to the conditions set forth in Section 4.1 and this Section 2.2, the Lenders shall disburse Initial Loans in the amount of $75,000,000 to the Borrower on a date (“ Initial Funding Date ”) not less than three (3) Business Days following the satisfaction of the conditions set forth in Section 4.1. Lenders shall fulfill the Initial Loans in accordance with their respective allocations set forth on Schedule 1 hereto. In the event the conditions to the Initial Loan have not been satisfied by January 31, 2016, the Lenders shall not have any further obligations under this Agreement.

Section 2.3           Acquisition Loans . Subject to the conditions set forth in Section 4.2 at any time and from time to time after the Initial Funding Date and prior to January 31, 2017; upon not less than three (3) Business Days’ written request (“ Acquisition Loan Request ”) by Borrower to Lenders, Borrower shall make additional advances to Borrower (each an “ Acquisition Loan ” and collectively the “ Acquisition Loans ”) up to the aggregate sum of $200,000,000 for the payment of the purchase price of any Permitted Acquisition. Lenders shall fulfill the Acquisition Loans in accordance with their respective allocations set forth on Schedule 1 hereto.

Section 2.4           Payment .

(a)         Borrower shall repay the outstanding principal amount of the Initial Loans, together with all accrued and unpaid interest thereon on the sixth anniversary of the Initial Funding Date. Borrower shall repay the outstanding principal amount of each Acquisition Loan, together with all accrued and unpaid interest thereon on the sixth anniversary of the funding of each such Acquisition Loan. Except as specifically provided herein, the Conversion Notes shall not be prepayable. The Acquisition Notes shall be prepayable at any time following the end of the sixth month after the funding date of the applicable Acquisition Loan and prior to the maturity of such Acquisition Loan (provided that any Acquisition Loan incurred to refinance Indebtedness incurred before the Initial Funding Date with respect to a Permitted Acquisition may be prepaid at any time prior to maturity) at 101% of the outstanding principal amount of such Acquisition Loan, plus all accrued and unpaid interest on such Acquisition Loan prepaid.
 
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(b)         Lenders shall have the right to convert all or any part of the principal amount of their Conversion Notes into Common Shares in accordance with the terms of the Conversion Notes. Upon the Share Delivery Date (as defined in the Conversion Notes) Borrower shall pay to Lenders all accrued and unpaid interest on the principal amount of the Conversion Notes converted into Common Shares.

Section 2.5           Payments. All payments by the Borrower under any of the Loan Documents shall be made without setoff or counterclaim. Payments of any amounts due to the Lenders under this Agreement shall be made in Dollars in immediately available funds prior to 11:00 a.m. New York City time on such date that any such payment is due, at such bank or places as the Lenders shall from time to time designate in writing at least five (5) Business Days prior to the date such payment is due. The Borrower shall pay all and any costs (administrative or otherwise) imposed by banks, clearing houses, or any other financial institution, in connection with making any payments under any of the Loan Documents, except for any costs imposed by the Lenders’ banking institutions.

Section 2.6           Taxes.

(a)         Any and all payments hereunder or under any other Loan Document shall be made, in accordance with this Section 2.6, free and clear of and without deduction for any and all present or future Taxes except as required by applicable law. If Borrower (or another applicable Credit Party) shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any other Loan Document and such Taxes are Indemnified Taxes, (i) the sum payable hereunder or thereunder shall be increased by as much as shall be necessary so that after making all required deductions (including deductions for Indemnified Taxes applicable to additional sums payable under this Section 2.6(a)), each Lender shall receive an amount equal to the sum it would have received had no such deductions been made (any and all such additional amounts payable shall hereafter be referred to as the “ Additional Amounts ”), (ii) Borrower shall make such deductions, and (iii) Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law. Within thirty (30) days after the date of any payment of such Taxes, Borrower shall furnish to the applicable Lender the original or a certified copy of a receipt evidencing payment thereof or other evidence of such payment reasonably satisfactory to such Lender.

(b)         Borrower agrees to pay and authorizes each Lender to pay in its name (but without duplication), all Other Taxes. Within 30 days after the date of any payment of Other Taxes, Borrower shall furnish to the applicable Lender the original or a certified copy of a receipt evidencing payment thereof or other evidence of such payment reasonably satisfactory to such Lender.
 
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(c)         Without duplication of Section 2.6(a) or Section 2.6(b), Borrower shall reimburse and indemnify, within ten (10) days after receipt of demand therefor, each Lender for all Indemnified Taxes (including all Indemnified Taxes imposed on amounts payable under this Section 2.6(c)) paid by such Lender, whether or not such Indemnified Taxes were correctly or legally asserted. A certificate of the applicable Lender(s) setting forth the amounts to be paid thereunder and delivered to Borrower shall be conclusive, absent manifest error.

(d)         If any Party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.6 (including by the payment of Additional Amounts), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (d) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (d), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (d) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party 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 paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(e)         If a payment made to a Lender under any Loan Document would be subject to withholding Tax under FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA, such Lender shall deliver to the Borrower or its designated agent at such time or times reasonably requested by the Borrower or its designated agent such U.S. tax forms and such additional documentation reasonably requested by the Borrower or its agent as may be necessary for the Borrower or its agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.

Section 2.7           Fee and Costs . Notwithstanding anything to the contrary contained in the Equity Agreement, the Credit Parties (excluding Tribute prior to the closing of the transactions contemplated by the Arrangement Agreement), jointly and severally agree to reimburse the Lenders for reasonable, documented expenses for attorneys, accountants and other professional advisors, and other out-of-pocket expenses incurred by Lenders in connection with their due diligence, negotiation and documentation of the transactions contemplated by the Loan Documents and all amendments and modifications thereto, whether or not consummated; provided that Credit Parties’ obligation to reimburse Lenders for such fees and expenses in connection with the negotiation, documentation and closing of this Agreement and the other Loan Documents shall not exceed the aggregate amount of $300,000. At Lender’s election, such reimbursed amounts may be deducted from the Initial Loans.
 
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Section 2.8           Interest. The outstanding principal amount of the Loans shall bear interest at the Interest Rate (calculated on the basis of the actual number of days elapsed in each month). Interest shall be paid quarterly in arrears commencing on October 1, 2015 and on the first Business Day of each January, April, July and October thereafter (each, an “ Interest Payment Date ”).

Section 2.9           Interest on Late Payments. Without limiting the remedies available to the Lenders under the Loan Documents or otherwise, to the maximum extent permitted by applicable law, if the Borrower fails to make a required payment of principal or interest with respect to the Loan when due or to timely comply with Section 5.1(v) of this Agreement (regardless of any cure period provided in Section 5.4(b) of this Agreement), the Borrower shall pay interest, in respect of such principal and interest at the rate per annum equal to the Interest Rate plus ten percent (10%) for so long as such payment remains outstanding or such covenant is not timely cured. Such interest shall be payable on demand.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES

Section 3.1           Representations and Warranties of the Borrower. Each Credit Party represents and warrants to the Lenders that, except as set forth in a Schedule to this Agreement:

(a)         Each Credit Party and each of its Subsidiaries are conducting their business in compliance with their Organizational Documents, which are in full force and effect.

(b)         No Default or Event of Default has occurred.

(c)         Each Credit Party and each of its Subsidiaries (i) are capable of paying their debts as they fall due, have not admitted their inability to pay their debts as they fall due, (ii) are not bankrupt or insolvent or deemed to be bankrupt or insolvent under applicable and (iii) have not taken action, and no such action has been taken by a third party, for any Credit Parties’ or any of its Subsidiaries’ winding up, dissolution, or liquidation, examinership or similar executory or judicial proceeding or for the appointment of a liquidator, custodian, receiver, trustee, administrator, examinership or other similar officer for any Credit Party or any of its Subsidiaries or any or all of their assets or revenues.

(d)         Except as disclosed on Schedule 3.1(d), which Liens shall be terminated on or prior to the Initial Funding Date, no Lien exists on any Credit Parties’ or any of its Subsidiaries’ assets, except for Permitted Liens.
 
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(e)         The obligation of the Borrower to make any payment under this Agreement (together with all charges in connection therewith) is absolute and unconditional.

(f)          Except as disclosed on Schedule 3.1(f), which Indebtedness will be repaid on or prior to the Initial Funding Date, no Indebtedness of any Credit Party or any of its Subsidiaries exists other than Permitted Indebtedness.

(g)         Irish Finco is validly existing as a limited liability company incorporated under the laws of the Republic of Ireland. Parent is validly existing as a private limited company organized under the laws of the Republic of Ireland. Pozen is validly existing as a corporation in good standing under the laws of the State of Delaware. Tribute is validly existing as a corporation in good standing under the laws of the Province of Ontario. Each Credit Party and each of its Subsidiaries have full power and authority to own their properties, conduct their business and enter into the Loan Documents and to consummate the transactions contemplated under the Loan Documents, and are duly qualified to do business as a foreign entity and are in good standing in each jurisdiction where the failure to be so qualified could reasonably be expected to result in a Material Adverse Effect.

(h)         There is not pending or, to the knowledge of any Credit Party, threatened, any action, suit, investigation, hearings or other proceeding before any Governmental Authority (a) to which any Credit Party or any of its Subsidiaries is a party or (b) which has as the subject thereof any assets owned by any Credit Party or any of its Subsidiaries, except, as would not reasonably be expected to have a Material Adverse Effect. There are no current or, to the knowledge of any Credit Party, pending, legal, governmental or regulatory enforcement actions, suits or other proceedings to which any Credit Party or any of its Subsidiaries or any of their assets is subject, except, as would not reasonably be expected to have a Material Adverse Effect.

(i)          Each Credit Party has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by each of the Loan Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder. Each Credit Parties’ execution and delivery of each of the Loan Documents to which it is a party and the consummation by it of the transactions contemplated hereby and thereby (including, but not limited to, the sale and delivery of the Notes and the reservation for issuance and the subsequent issuance of the Conversion Shares upon exercise of the Conversion Notes) have been duly authorized by all necessary action on the part each Credit Party, and no further action is required by any Credit Party, its directors or its stockholders in connection therewith other than in connection with the Required Approvals (as defined below). Each of the Loan Documents to which it is a party has been (or upon delivery will have been) duly executed by each Credit Party and each of its Subsidiaries and is, or when delivered by each Credit Party and each of its Subsidiaries a party thereto, in accordance with the terms hereof, will constitute the legal, valid and binding obligation of such Credit Party and its Subsidiaries party thereto enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, examinership, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application. The execution, delivery and performance of the Loan Documents by the Credit Parties and their Subsidiaries and the consummation of the transactions therein contemplated (including, but not limited to, the delivery of the Conversion Notes and the reservation for issuance and subsequent issuance of the Conversion Shares) will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Lien (other than pursuant to the Loan Documents) upon any assets of any Credit Party or any of its Subsidiaries pursuant to, any agreement to which any Credit Party or any of its Subsidiaries is a party or by which any Credit Party or any of its Subsidiaries are bound or to which any of the assets of any Credit Party or any of its Subsidiaries is subject, (B) result in any violation of or conflict with the provisions of the Organizational Documents or (C) result in the violation of any Applicable Law or (D) result in the violation of any judgment, order, rule, regulation or decree of any Governmental Authority. No consent, approval, authorization or order of, or registration or filing with any Governmental Authority is required for the execution, delivery and performance of any of the Loan Documents or for the consummation by any Credit Party and any of its Subsidiaries of the transactions contemplated thereby except for such registrations and filings in connection with (i) the filing with the Commission of one or more Registration Statements in accordance with the requirements of the Registration Rights Agreement, (ii) filings required by applicable state securities laws, (iii) the filing of a Notice of Sale of Securities on Form D with the Commission under Regulation D of the Securities Act, (iv) the filing of any requisite notices and/or application(s) to the Principal Trading Markets for the issuance and sale of the Securities and the listing of the Conversion Shares for trading or quotation, as the case may be, thereon in the time and manner required thereby, (v) filings contemplated by the Security Documents and (vi) those that are required to be obtained in connection with the Transactions or that have been made or obtained prior to the Initial Funding Date (the “ Required Approvals ”).
 
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(j)          As of their respective filing dates, or to the extent corrected by a subsequent restatement, the SEC Reports filed by any Credit Party comply in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder, and none of the SEC Reports, when filed, will contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. No Credit Party has ever been an issuer subject to Rule 144(i) under the Securities Act. Each of the Material Contracts to which any Credit Party is a party or to which the property or assets of any Credit Party are subject will be filed as an exhibit to the SEC Reports.
 
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(k)         Other than the actions required under the Registration Rights Agreement with respect to the Registration Statement or with respect to the Transactions, no Authorization is required for (i) the execution and delivery of this Agreement, the other Loan Documents, or (ii) the consummation of the transactions contemplated hereby and thereby.

(l)          Each Credit Party and each of its Subsidiaries holds, and is operating in good standing (where applicable) and in compliance in all material respects with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders of any Governmental Authority (collectively, “ Necessary Documents ”) required for the conduct of its business and all Necessary Documents are valid and in full force and effect; and neither any Credit Party nor any of its Subsidiaries has received written notice of any revocation or modification of any of the Necessary Documents and neither any Credit Party nor any of its Subsidiaries has any reason to believe that any of the Necessary Documents will not be renewed in the ordinary course of business, and each Credit Party and each of its Subsidiaries are in compliance in all material respects with all applicable federal, state, local and foreign laws, regulations, orders and decrees applicable to the conduct of its business.

(m)        Each Credit Party and each of its Subsidiaries have good and marketable title to all of their assets free and clear of all Liens except Permitted Liens. The property held under lease by each Credit Party and each of its Subsidiaries is held under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of any Credit Party or any of its Subsidiaries.

(n)         Except as set forth on Schedule 3.1(n), each Credit Party and each of its Subsidiaries own or have the right to use pursuant to a valid and enforceable written license, implied license or other legally enforceable right, all of the Intellectual Property (as defined below) that is necessary for the conduct of their business as currently conducted and the manufacture, importation and sale of products being developed by such Credit Party or any of its Subsidiaries (the “ IP ”). The IP that is registered with or issued by a Governmental Authority is valid and enforceable; there is no outstanding, pending, or threatened action, suit, other proceeding or claim by any third person challenging or contesting the validity, scope, use, ownership, enforceability, or other rights of any Credit Party or any of its Subsidiaries in or to any IP and neither any Credit Party nor any of its Subsidiaries has received any written notice regarding, any such action, suit, or other proceeding. Neither any Credit Party nor any of its Subsidiaries has infringed or misappropriated any material rights of others. There is no pending or threatened action, suit, other proceeding or claim by others that any Credit Party or any of its Subsidiaries infringes upon, violates or uses the Intellectual Property rights of others without authorization, and neither any Credit Party nor any of its Subsidiaries has received any written notice regarding, any such action, suit, other proceeding or claim. Except as set forth on Schedule 3.1(n), neither any Credit Party nor any of its Subsidiaries is a party to or bound by any options, licenses, or agreements with respect to IP other than licenses for computer software acquired in the ordinary course of business. The term “ Intellectual Property ” as used herein means (i) all patents, patent applications, patent disclosures and inventions (whether patentable or unpatentable and whether or not reduced to practice), (ii) all trademarks, service marks, trade dress, trade names, slogans, logos, and corporate names and Internet domain names, together with all of the goodwill associated with each of the foregoing, (iii) copyrights, copyrightable works, and licenses, (iv) registrations and applications for registration for any of the foregoing, (v) computer software (including but not limited to source code and object code), data, databases, and documentation thereof, (vi) trade secrets and other confidential information, (vii) other intellectual property, and (viii) copies and tangible embodiments of the foregoing (in whatever form and medium).
 
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(o)         Neither any Credit Party nor any of its Subsidiaries is in violation of the Organizational Documents, or in breach of or otherwise in default under, and no event has occurred which, with notice or lapse of time or both, would constitute such breach or other default in the performance of any agreement or condition contained in any agreement under which it may be bound, or to which any of its assets is subject.

(p)         All federal, state, local and foreign income and franchise and other material Tax returns, reports and statements (collectively, the “ Tax Returns ”) required to be filed by any Tax Affiliates have been filed with the appropriate Governmental Authorities, all such Tax Returns are true and correct in all material respects, and all Taxes, assessments and other governmental charges and impositions reflected therein and all other material Taxes, assessments and other governmental charges otherwise due and payable have been paid prior to the date on which any liability may be added thereto for non-payment thereof except for those contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are maintained on the books of the appropriate Tax Affiliate in accordance with GAAP or other applicable accounting principles, standards and procedures that such Tax Affiliate uses to compile its financial statements. As of the Agreement Date, no Tax Return is under audit or examination by any Governmental Authority, and no Tax Affiliate has received written notice from any Governmental Authority of any audit or examination or any assertion of any material claim for Taxes. No Credit Party may be a party to any transaction which it is aware or ought reasonably to be aware requires a notification by that Credit Party under Chapter 3 of Part 33 of the Taxes Consolidation Act, 1997 of Ireland (Mandatory disclosure of certain transactions) and no Credit Party may enter into any tax arrangements which it is aware or ought reasonably to be aware constitutes a “tax avoidance transaction” for the purposes of Chapter 2 of Part 33 of the Taxes Consolidation Act, 1997 of Ireland without the prior written consent of the Lenders (acting reasonably).
 
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(q)         Other than as set forth in Schedule 3.1(q) neither any Credit Party nor any of its Subsidiaries has granted rights to market or sell its products or services to any other Person, and are not bound by any agreement that affects the exclusive right of any Credit Party or any of its Subsidiaries to develop, license, market or sell its products or services, in each case including rights relating to products under development by any Credit Party or any of its Subsidiaries.

(r)          Each Credit Party and each of its Subsidiaries: (A) at all times has complied in all materials respects with all Applicable Laws; (B) has not received any warning letter or other correspondence or notice from any Governmental Authority alleging or asserting material noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto reasonably required in connection with the business of any Credit Party or any of its Subsidiaries by any Applicable Laws (together, the “ Authorizations ”); (C) possesses and complies with the Authorizations, which are valid and in full force and effect; (D) has not received written notice that any Governmental Authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorization and has no knowledge that any Governmental Authority is considering such action; (E) has filed, obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as reasonably required by any Applicable Laws or Authorizations.

(s)         Each of Pozen and Tribute maintains or, in the case of Parent, as of the Initial Funding Date will maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
 
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(t)         (i) To the knowledge of each Credit Party, no “prohibited transaction” as defined under Section 406 of ERISA or Section 4975 of the Code that is not exempt under ERISA Section 408 or Section 4975 of the Code, under any applicable regulations and published interpretations thereunder or under any applicable prohibited transaction, individual or class exemption issued by the Department of Labor, has occurred with respect to any Employee Benefit Plan, except for such transactions as would not have a Material Adverse Effect, (ii) at no time within the last seven (7) years has any Credit Party or any ERISA Affiliate maintained, sponsored, participated in, contributed to or has or had any liability or obligation in respect of any Employee Benefit Plan subject to Section 302 of ERISA, Title IV of ERISA, or Section 412 of the Code or any “multiemployer plan” as defined in Section 3(37) of ERISA or any multiple employer plan for which any Credit Party or any ERISA Affiliate has incurred or could incur liability under Section 4063 or 4064 of ERISA, (iii) no Employee Benefit Plan represents any current or future liability for retiree health, life insurance, or other retiree welfare benefits except as may be required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or similar state law, (iv) each Employee Benefit Plan is and has been operated in compliance with its terms and all applicable laws, including but not limited to ERISA and the Code, except for such failures to comply that would not have a Material Adverse Effect, (v) no event has occurred (including a “reportable event” as such term is defined in Section 4043 of ERISA) and no condition exists that would subject any Credit Party or any ERISA Affiliate to any tax, fine, lien, penalty or liability imposed by ERISA, the Code or other applicable law, except for any such tax, fine, lien, penalty or liability that would not, individually or in the aggregate, have a Material Adverse Effect, (vi) no Credit Party maintains any Foreign Benefit Plan, (vii) no Credit Party has any obligations under any collective bargaining agreement. As used in this clause (t), “Employee Benefit Plan” means any material “employee benefit plan” within the meaning of Section 3(3) of ERISA, and all stock purchase, stock option, stock‑based severance, employment, change‑in‑control, medical, disability, fringe benefit, bonus, incentive, deferred compensation, employee loan and all other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA, under which (A) any current or former employee, director or independent contractor of any Credit Party or any of its Subsidiaries has any present or future right to benefits and which are contributed to, sponsored by or maintained by any Credit Party or any of its respective Subsidiaries or (B) no Credit Party nor any of its Subsidiaries has had or has any present or future obligation or liability on behalf of any such employee, director or independent contractor; “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended; “ ERISA Affiliate ” means any member of any Credit Party’s controlled group as defined in Code Section 414 (b), (c), (m) or (o); and “ Foreign Benefit Plan ” means any Employee Benefit Plan mandated by a government other than the United States of America is subject to the laws or a jurisdiction outside of the United States.
 
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(u)         Each Credit Party’s Subsidiaries are set forth in Schedule 3.1(u).

(v)         All of the issued and outstanding shares of capital stock of each Credit Party are duly authorized and validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state and foreign securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing; the Conversion Notes and Conversion Shares have been duly authorized and, and the Conversion Shares, when issued and delivered in accordance with the terms of the Conversion Notes will have been validly issued and will be fully paid. Parent has reserved from its duly authorized capital stock a sufficient number of Common Shares to issue the Conversion Shares, free and clear of all encumbrances and restrictions, except for restrictions on transfer set forth in the Loan Documents or imposed by applicable securities laws and except for those created by the Lenders. Assuming the accuracy of the representations and warranties of the Lender in this Agreement, the Securities will be issued in compliance with all applicable federal and state securities laws. Parent shall, so long as any of the Conversion Notes are outstanding, take all action necessary to reserve and keep available out of its authorized and unissued capital stock, solely for the purpose of effecting the conversion of the Conversion Notes, the number of Common Shares issuable upon such conversion and/or exercise (without taking into account any limitations on the conversion of the Conversion Notes as set forth therein). There are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of any Common Shares pursuant to Parent’s Organizational Documents or any agreement to which Parent or any of its Subsidiaries is a party or by which Parent or any of its Subsidiaries is bound and all of the foregoing rights have been fully waived in respect of the issuance of the Notes and the Conversion Shares. Upon completion of the Transactions, Parent’s outstanding shares of capital stock, options and warrants as set forth in Schedule 3.1(v) to this Agreement is accurate, and there are no other (i) except as set forth in such Schedule, options issuable or issued under Parent’s option plans, or (ii) any other options, warrants, agreements, contracts or other rights in existence to purchase or acquire from Parent or any Subsidiary of Parent any shares of the capital stock of Parent or any Subsidiary of Parent.
 
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(w)        The issuance of the Notes and the Conversion Shares will not obligate Parent to issue Common Shares or other securities to any Person (other than the Lenders) and will not result in a right of any holder of Parent securities to adjust the exercise, conversion, exchange or reset price or other right under any of such securities. There are no stockholders’ agreements, voting agreements or other similar agreements with respect to the Borrower’s capital stock to which Parent is a party or, to Parent’s knowledge, between or among any of Parent’s stockholders.

(x)         Assuming the accuracy of the representations and warranties of the Lenders set forth in Section 3.3 of this Agreement, no registration under the Securities Act is required for the offer and sale of the Securities and the Acquisition Notes by the Borrower or the Parent, as applicable, to the Lenders under the Loan Documents. The issuance and sale of the Securities and the Acquisition Notes hereunder complies and will comply in all material respect with and does not and will not contravene the rules and regulations of the Principal Trading Markets.

(y)         Neither Parent nor Borrower are, and immediately after issuance of any Notes will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. Parent and Borrower shall conduct their business in a manner so that it will not become subject to the Investment Company Act of 1940, as amended.

(z)         Other than the Lenders or pursuant to the Transactions, no Person has any right to cause Parent to effect the registration under the Securities Act of any securities of Parent other than those securities which are currently registered on an effective registration statement on file with the Commission.

(aa)       From and after the Initial Funding Date, Parent’s Common Shares shall be registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and Parent shall not have taken any action designed to terminate the registration of the Common Shares under the Exchange Act nor shall Parent have received any notification that the Commission is contemplating terminating such registration. From and after the Initial Funding Date, Parent will be in compliance with all listing and maintenance requirements of the Principal Trading Markets.

(bb)      Neither Parent nor, to Parent’s knowledge, any person acting on behalf of Parent, has offered or sold any of the Securities by any form of general solicitation or general advertising.
 
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(cc)       Each Credit Party is in compliance in all material respects with all of the provisions of the Sarbanes-Oxley Act of 2002 which are applicable to it. Each Credit Party other than Parent and Borrower has, and as of the Initial Funding Date Parent shall have established disclosure controls and procedures (as such term is defined in Rule 13a-15(e) and 15d-15(e) under the Exchange Act) for it and designed such disclosure controls and procedures to ensure that information required to be disclosed by it in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms. Each Credit Party’s other than Borrower’s and Parent’s certifying officers have, and as of the Initial Funding Date Parent’s certifying officers shall have evaluated the effectiveness of the its disclosure controls and procedures as of the end of the period covered by its most recently filed periodic report under the Exchange Act (such date, the “ Evaluation Date ”). Each Credit Party presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in Parent’s internal control over financial reporting (as such term is defined in the Exchange Act) that have materially affected, or are reasonably likely to materially affect, its internal controls over financial reporting.

(dd)      In the case of a Credit Party incorporated in Ireland, for the purposes of The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings (the “ Regulation ”), its centre of main interest (as that term is used in Article 3(1) of the Regulation) is situated in Ireland and it does not have an establishment (as that term is used in Article 2(h) of the Regulation) outside of Ireland.

(ee)       The entry into by a Credit Party of the Transactions and the Loan Documents and the performance of its obligations thereunder will not breach the provisions of section 82 of the Companies Act 2014 of Ireland.

Section 3.2           Acknowledgment. Each Credit Party acknowledges that it has made the representations and warranties referred to in Section 3.1 with the intention of persuading the Lenders to enter into the Loan Documents and that the Lenders have entered into the Loan Documents on the basis of, and in full reliance on, each of such representations and warranties, each of which shall survive the execution of this Agreement until the Obligations are paid in full and each representation or warranty related to the Conversion Shares shall be deemed to be continuously made at all times until the Obligations are paid in full.

Section 3.3           Representations and Warranties of the Lenders. Each Lender, severally and not jointly, represents and warrants to Borrower and Parent as of the Agreement Date that:
 
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(a)         Such Lender is duly organized and validly existing under the laws of the jurisdiction of its formation.

(b)         Each Loan Document to which it is a party has been duly authorized, executed and delivered by such Lender and constitutes the valid and legally binding obligation of such Lender, enforceable in accordance with its terms, except as such enforceability may be limited by (i) applicable insolvency, bankruptcy, reorganization, moratorium or other similar laws affecting creditors’ rights generally, and (ii) applicable equitable principles (whether considered in a proceeding at law or in equity).

(c)         Such Lender has full power and authority to make the Loans and to enter into and perform its other obligations under each of the Loan Documents and carry out the other transactions contemplated thereby.

(d)         Each of the Conversion Notes and Conversion Shares to be received by such Lender hereunder will be acquired for such Lender’s own account, and not with a view to the resale or distribution of any part thereof in violation of the Securities Act, except pursuant to sales registered or exempted under the Securities Act, and such Lender has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the Securities Act without prejudice, however, to such Lender’s right at all times to sell or otherwise dispose of all or any part of such Securities in compliance with applicable federal and state securities laws. Nothing contained herein shall be deemed a representation or warranty by such Lender to hold the Securities for any period of time and such Lender 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.

(e)         Such Lender can bear the economic risk and complete loss of its investment in the Securities and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment contemplated hereby.

(f)          Such Lender understands that the Securities are characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they are being acquired from Parent in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances.

(g)         Such Lender is an “accredited investor” as such term is defined in Regulation D promulgated under the Securities Act.

ARTICLE 4

CONDITIONS OF DISBURSEMENT OF LOANS

Section 4.1           Conditions to the Disbursement of Loans. The obligation of the Lenders to make the Initial Loans shall be subject to the fulfillment of the following conditions:
 
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(a)         The Lenders shall have received sufficient copies of each Loan Document originally executed and delivered by each Credit Party and its Subsidiaries party thereto for each Lender;

(b)         The Lenders shall have received (i) sufficient copies of each Organization Document executed and delivered by each Credit Party and its Subsidiaries, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, for each Lender, each dated the Initial Funding Date or a recent date prior thereto; (ii) signature and incumbency certificates of the officers of such Person executing the Loan Documents to which it is a party; (iii) resolutions of the board of directors or other governing body of each Credit Party and its Subsidiaries approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party or by which it or its assets may be bound , certified as of the Initial Funding Date by an authorized officer as being in full force and effect without modification or amendment; (iv) a good standing certificate (or appropriate comparable confirmation in the relevant jurisdiction) from the applicable Governmental Authority of each Credit Party and each of its Subsidiary’s jurisdiction of incorporation, organization or formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, and (v) such other documents as Lenders may reasonably request;

(c)         Each Credit Party and each of its Subsidiaries shall have obtained all Authorizations and all consents of other Persons, in each case that are necessary or advisable in connection with the transactions contemplated by the Arrangement Agreement, Loan Documents and the Equity Agreement and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Lenders. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Arrangement Agreement, Loan Documents or the Equity Agreement or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired;

(d)         Lenders shall have received evidence of the compliance by Parent and its Subsidiaries of their obligations under the Security Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements or equivalent foreign filings, originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein and a duly executed authorization to pre-file UCC-1 financing statements or foreign equivalents), together with other documents as may be necessary to perfect the security interests purported to be created by the Security Documents;

(e)         Lenders shall have received opinions of counsel with respect to the creation and perfection of the security interests in favor of Lenders in such Collateral and such other matters governed by the laws of each jurisdiction in which Parent or any Subsidiary or any Collateral is located as Lenders may reasonably request, in each case in form and substance reasonably satisfactory to Lenders;
 
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(f)          Lenders shall have received a certificate from Parent and each Subsidiary’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to the Security Documents is in full force and effect, together with endorsements naming the Lenders as additional insured and loss payee thereunder;

(g)         Lenders shall have received originally executed copies of the favorable written opinions of counsel for Parent and its Subsidiaries as to such matters as Lenders may reasonably request and otherwise in form and substance reasonably satisfactory to Lenders;

(h)         No Default or Event of Default shall have occurred;

(i)          All of the representations and warranties set forth in Section 3.1 shall be true and correct as if made on the Initial Funding Date;

(j)          The Disbursement Condition shall have been satisfied;

(k)         The Common Shares shall have been listed on the Trading Market;

(l)          All conditions precedent to the Transactions set forth in the Equity Agreement and Arrangement Agreement shall have been satisfied and the Transactions shall have been completed;

(m)        No Material Adverse Effect shall have occurred; and

(n)         Each of the Employment Agreements shall have been executed and shall be in full force and effect.

(o)           The Indebtedness of Tribute to SWK Funding LLC and any Indebtedness incurred by Tribute to fund the acquisition referred to in Schedule 3.1(f) (unless provided by Lenders or their Affiliates) shall be repaid in full out of the proceeds of the Initial Loans and Acquisition Loans on the Initial Funding Date (or shall have been otherwise repaid) and all Liens securing such Indebtedness released.

Section 4.2           Condition to the Disbursement of Acquisition Loans. The obligation of the Lenders to make an Acquisition Loan shall be subject to the fulfillment of the following conditions:

(a)           Lenders shall have received an Acquisition Loan Request and a certification by an authorized officer of Borrower that the proposed acquisition is a Permitted Acquisition;

(b)           Lenders shall have received Acquisition Notes executed by Borrower in the aggregate principal amount of the Acquisition Loan;
 
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(c)           All conditions precedent to the closing of the Permitted Acquisition shall have been satisfied except for the funding of the purchase price with the proceeds of such Acquisition Loan;

(d)           No Default or Event of Default shall have occurred or would be created by such Permitted Acquisition and

(e)           All of the representations and warranties in Section 3.1 shall be true and correct as if made on the date of funding of each such Acquisition Loan.

ARTICLE 5

PARTICULAR COVENANTS AND EVENTS OF DEFAULT

Section 5.1           Affirmative Covenants. Unless the Required Lenders shall otherwise agree:

(i)            Parent shall and shall cause its Subsidiaries to maintain their existence and qualify and remain qualified to do their business as currently conducted, except for any merger or dissolution of a Subsidiary in accordance with Section 5.2(i) or where the failure to maintain such qualification would not reasonably be expected to have a Material Adverse Effect.

(ii)            Parent shall and shall cause its Subsidiaries to comply in all material respects with all Applicable Laws.

(iii)           Parent shall obtain and shall cause its Subsidiaries to make and keep in full force and effect all Authorizations.

(iv)           Parent shall promptly notify the Lenders of the occurrence of (i) any Default or Event of Default and (ii) any claims, litigation, arbitration, mediation or administrative or regulatory proceedings that are instituted or threatened against Parent or any of its Subsidiaries concurrently with any public disclosure of any such event, and (iii) each event which, at the giving of notice, lapse of time, determination of materiality or fulfillment of any other applicable condition (or any combination of the foregoing), would constitute an event of default (however described) under any Loan Document.

(v)           Each Credit Party will timely file with the SEC (subject to appropriate extensions made under Rule 12b-25 of the Exchange Act) any annual reports, quarterly reports and other periodic reports required to be filed pursuant to Section 13 or 15(d) of the Exchange Act (“ SEC Reports ”).

(vi)          Parent shall, so long as any of the Conversion Notes are outstanding, take all action necessary to reserve and keep available out of its authorized and unissued capital stock, solely for the purpose of effecting the conversion of the Conversion Notes, the number of Common Shares issuable upon such conversion (without taking into account any limitations on the conversion of the Notes as set forth therein).

(vii)         For so long as a Lender owns Notes or Common Shares, upon the request of such Lender Borrower shall furnish any information reasonably requested by such Lender (and not generally available by reference to Parent’s publicly available SEC filings) to confirm whether or not Borrower is a passive foreign investment company (“ PFIC ”) under the Code; provided, however, that Parent shall not be obligated to furnish any information that it has not already publicly disclosed. In addition, for each taxable year of Borrower during any portion of which the Notes are outstanding or any Lender holds Common Shares, Borrower shall make due inquiry of its tax advisors on an annual basis regarding its status as a PFIC and, if Borrower’s tax advisors determine that Borrower became a PFIC for any such taxable year, shall notify each Lender in writing, of the determination that Borrower has become a PFIC for such taxable year by no later than 75 days following the close of such taxable year. With respect to (a) any taxable year in respect of which Borrower was determined to be a PFIC and (b) each subsequent taxable year during any part of which the Notes are outstanding or any Lender holds Common Shares, the Borrower shall promptly provide each Lender with all information that is required by a United States person holding Common Shares in order to make a valid election to treat the Borrower as a “qualified electing fund” for the purposes of the Code, including a “PFIC Annual Information Statement” as described in Treasury Regulation section 1.1295-(1)(g)(1) (or any successor Treasury Regulation) and all representations and statements required by such Statement, and will take any other steps necessary to facilitate such election. The Borrower understands and agrees that time is of the essence in complying with the foregoing deadlines, and that any failure by the Borrower to so comply will be materially adverse to each Lender. Each Lender shall promptly respond to any written inquiry from the Borrower requesting the Lender to inform the Borrower whether it owns any Common Shares.
 
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(viii)        In the event that any Person becomes a Subsidiary of Parent, Parent shall (a) concurrently with such Person becoming a Subsidiary cause such Subsidiary to become a Guarantor hereunder and a Grantor under the Security Agreement, and (b) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, and certificates as are necessary to grant and to perfect a first priority Lien in favor of Lenders in any assets owned by such Person and in all equity interests of Parent in such Subsidiary.

(ix)           Parent shall, in respect of itself and each Subsidiary incorporated in Ireland: (a) deliver to the Lenders at such times as those reports are prepared in order to comply with the then current statutory or auditing requirements (as applicable either to the trustees of any relevant schemes or to Parent), actuarial reports in relation to all pension schemes mentioned in all pension schemes operated by or maintained for the benefit of such entities and/or any of their employees; (b) promptly notify the Lenders of any material change in the rate of contributions to any pension schemes operated by or maintained for the benefit of such entities and/or any of their employees paid or recommended to be paid (whether by the scheme actuary or otherwise) or required (by law or otherwise); (c) ensure that no action is taken or omission is made by an such entity in relation to any defined benefit pension scheme which has or is reasonably likely to have a Material Adverse Effect; and (d) promptly notify the Lenders of any obligation on the trustees of any occupational pension scheme to which the Pension Act, 1990 of Ireland applies to submit to the Pensions Board established under that Act a funding proposal under section 49 of the Pensions Act, 1990 of Ireland.

(x)            Borrower shall comply in all respects with Section 82 of the Companies Act 2014 of Ireland and any equivalent legislation in other jurisdictions including, without limitation, in relation to the execution of the Loan Documents, the entry into of the Transactions and the payment of amounts due under this Agreement.

Notwithstanding anything set forth in the definition of Permitted Acquisition or elsewhere in this Agreement to the contrary, if any notice or information required to be furnished contains material non-public information (any such notice or information, a “ Public Notice ”), the Borrower, instead of delivering such Public Notice to all the Lenders shall promptly deliver such Public Notice to each Lender that is not a Restricted Lender and promptly notify each Restricted Lender in writing or orally that Borrower desires to deliver to such Restricted Lender a Public Notice. Within five Business Days of receipt of such notification the Restricted Lender may either (i) refuse the delivery of such Public Notice, in which case Borrower’s obligations with respect to such Public Notice and such Restricted Lender shall be deemed satisfied, or (ii) enter into good faith negotiations with the Parent to agree the time period within which the Borrower will make the material non-public information contained in such Pubic Notice publicly available by including such information in a filing with the SEC. If Borrower and such Restricted Lender agree on such time period, the Borrower shall promptly deliver to such Restricted Lender such Public Notice and shall cause Parent to include the applicable material non-public information in a public filing with the SEC within such agreed to time period. The failure to agree on such time period will be deemed to satisfy Borrower’s obligations with respect to such Public Notice and such Restricted Lender.
 
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Section 5.2           Negative Covenants. Unless the Required Lenders shall otherwise agree:

(i)            Parent shall not and shall not permit any Subsidiary to (a) liquidate, or be wound up provided that a Subsidiary may merge into Parent or any other Subsidiary, or (b) enter into any merger, consolidation or reorganization, unless (x) Parent or a Subsidiary is the surviving corporation or, (y) subject to Section 5.3 and the terms of the Notes, if the survivor is a Person other than Parent or a Subsidiary, such Person assumes the Obligations of Borrower under this Agreement and the other Loan Documents. Parent shall not establish any Subsidiary unless such Subsidiary executes and delivers to the Lenders, a Guaranty and the Security Documents in form acceptable to the Lenders and takes all steps necessary to create and perfect a first priority Lien in favor of Lenders on all of its assets and Parent takes all steps necessary to create and perfect a first priority Lien in favor of Lenders in all equity interests in such Subsidiary;

(ii)           Parent shall not and shall not permit any Subsidiary to (i) enter into any partnership, joint venture, syndicate, pool, profit-sharing or royalty agreement or other combination, or engage in any transaction with an Affiliate (other than a Subsidiary), whereby its income or profits are or might be, shared with another Person (other than a Subsidiary), (ii) enter into any management contract or similar agreement whereby a substantial part of its business is managed by another Person; or (iii) make any cash dividend or distribute, or permit the dividend or distribution of, any of its assets, including its intangibles, to any of its shareholders in such capacity or its Affiliates (other than a Subsidiary) (except for distributions in which Lenders participate pursuant to the provisions of the Notes); provided, however, that Parent or any Subsidiary may enter into Excluded Transactions;

(iii)          Parent shall not and shall not permit any Subsidiary to (a) create, incur or suffer any Lien upon any of its assets, except Permitted Liens, or (b) assign, sell, transfer or otherwise dispose of, any Loan Document or its rights and obligations thereunder;
 
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(iv)          Parent shall not and shall not permit any Subsidiary to create, incur, assume, guarantee or be liable with respect to any Indebtedness, except for Permitted Indebtedness;

(v)           Parent shall not and shall not permit any Subsidiary to acquire any assets (a) (other than Permitted Acquisitions (after disregarding, solely for purposes of this Section 5.2(v), the requirements set forth in clause (vii) of the definition of Permitted Acquisition) and (b) other than assets acquired in the ordinary course of business, directly or indirectly, in one or more related transactions, for a consideration, in cash or other property (valued at its fair market value) not greater than $1,000,000;

(vi)         Parent shall not and shall not permit any Subsidiary to sell or otherwise transfer the products being developed or sold by Parent or any Subsidiary or any material assets associated therewith, other than in Excluded Transactions; and

(vii)        Parent shall not issue any equity securities (i) senior to its Common Shares or (ii) convertible or exercisable for equity securities senior to its Common Shares.

Section 5.3           Major Transaction. The Borrower shall give the Lenders notice of a Major Transaction at least thirty (30) days prior to the consummation thereof but in any event not later than five (5) business days following the first public announcement thereof. Each Lender, within the Major Transaction Conversion Period (as defined in the Conversion Note), in the exercise of its sole discretion, may deliver a notice to the Borrower (the “ Put Notice ”) that either or both of the Conversion Notes and Acquisition Notes shall be due and payable in cash (collectively, the “ Major Transaction Payment ”). If any of the Lenders deliver a Put Notice, then simultaneously with consummation of such Major Transaction, the Borrower shall make such Major Transaction Payment to each such Lender. The Borrower shall not consummate any Major Transaction without complying with the provisions of this Section 5.3.

Section 5.4           General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “ Event of Default ”), the Required Lenders, by written notice to the Borrower (an “ Acceleration Notice ”), may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:

(a)         The Borrower shall have failed to make payment of (i) principal when due, or (ii) interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due date.
 
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(b)         (i) Any Credit Party shall have failed to comply with the due observance or performance of any covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents and such default is not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice from the Lenders of such default, or (B) actual knowledge of any Credit Party of such default.

(c)         Any representation or warranty made by any Credit Party or any of its Subsidiaries in any Loan Document shall be incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.

(d)         (i) Any Credit Party or any of its Subsidiaries shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debts, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, liquidator, assignee, trustee, sequestrator, examiner (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, liquidator, assignee, trustee, sequestrator, examiner (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five (45) days; (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.

(e)         One or more judgments against any Credit Party or any Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
 
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(f)          Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.

(g)         Any Authorization necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.

(h)         There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.

(i)          The validity of any Loan Document shall be contested by any Credit Party or any Subsidiary, or any Applicable Law shall purport to render any material provision of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party of the Obligations.

(j)          The Common Shares of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 of the Exchange Act.

(k)         The occurrence of a Conversion Failure.

Section 5.5           Automatic Acceleration on Dissolution or Bankruptcy. Notwithstanding any other provisions of this Agreement, if an Event of Default under Section 5.4(d) shall occur, the principal of the Notes (together with any other amounts accrued or payable under this Agreement) shall thereupon become immediately due and payable without any presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrower.

Section 5.6           Recovery of Amounts Due . If any amount payable hereunder is not paid as and when due, the Borrower hereby authorizes the Lenders to proceed, to the fullest extent permitted by applicable law, without prior notice, by right of set-off, banker’s lien or counterclaim, against any moneys or other assets of any Credit Party to the full extent of all amounts payable to the Lenders.

ARTICLE 6

MISCELLANEOUS

Section 6.1           Notices . Any notices required or permitted to be given under the terms hereof shall be sent by certified or registered mail (return receipt requested) or delivered personally or by courier (including a recognized overnight delivery service) or by facsimile or by electronic mail and shall be effective five (5) days after being placed in the mail, if mailed by regular United States mail, or upon receipt, if delivered personally or by courier (including a recognized overnight delivery service) or by facsimile, or when received by electronic mail in each case addressed to a party. The addresses for such communications shall be:
 
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If to Credit Parties:

Aguono Limited
c/o POZEN Inc.
1414 Raleigh Road, Suite 400

Chapel Hill, North Carolina
Fax: (919) 490-5552
E-mail: aadams@pozen.com
Attention: Adrian Adams

With a copy to:

DLA Piper LLP (US)
51 John F. Kennedy Parkway
Short Hills, New Jersey 07078-2704
Fax: (973) 520-2573
Email: Andrew.gilbert@dlapiper.com
Attn: Andrew Gilbert

With a copy (which shall not constitute notice) to:

Tribute
Tribute Pharmaceuticals Canada, Inc.

151 Steeles Ave. East
Milton, Ontario, Canada L9T1Y1
Fax: (519) 434-4382
Email: rob.harris@tributepharma.com
Attn: Robert Harris, President and Chief Executive Officer

If to the Lenders:

Deerfield Management Company, L.P.
780 Third Avenue, 37 th Floor
New York, NY 10017
Fax: (212) 599-3075
Email: dclark@deerfield.com
Attn: David J. Clark

With a copy to:

Katten Muchin Rosenman LLP
 
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575 Madison Avenue
New York, New York 10022
Fax: (212) 940-8776
Email: mark.fisher@kattenlaw.com
Attn: Mark I. Fisher, Esq.

Section 6.2           Waiver of Notice. Whenever any notice is required to be given to the Lenders or the Borrower under any of the Loan Documents, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.

Section 6.3           Reimbursement of Legal and Other Expenses. If any amount owing to the Lenders under any Loan Document shall be collected through enforcement of this Agreement, any Loan Document or restructuring of the Loan in the nature of a work-out, settlement, negotiation, or any process of law, or shall be placed in the hands of third Persons for collection, the Borrower shall pay (in addition to all monies then due in respect of the Loan or otherwise payable under any Loan Document) all reasonable and documented external attorneys’ and other fees and out-of-pocket expenses incurred in respect of such collection.

Section 6.4           Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such State. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the State of Delaware. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of Delaware for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. The parties hereby waive all rights to a trial by jury.

Section 6.5           Successors and Assigns. This Agreement shall bind and inure to the respective successors and assigns of the Parties, except that (a) a Credit Party may not assign or otherwise transfer all or any part of its rights under the Loan Documents without the prior written consent of the Required Lenders, and (b) a Lender may assign its Notes upon three (3) days prior notice to Borrower. Upon a Lender’s assignment of a Note such Lender shall provide notice of the transfer to Borrower for recordation in the Register pursuant to Section 1.4. Upon receipt of a notice of a transfer of an interest in a Note, Borrower shall record the identity of the transferee and other relevant information in the Register and the transferee shall (to the extent of the interests transferred to such transferee) have all the rights and obligations of, and shall be deemed, a Lender hereunder.
 
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Section 6.6           Entire Agreement. The Loan Documents contain the entire understanding of the Parties with respect to the matters covered thereby and supersede any and all other written and oral communications, negotiations, commitments and writings with respect thereto. The provisions of this Agreement may be waived, modified, supplemented or amended only by an instrument in writing signed by the authorized officer of each Party.

Section 6.7           Severability. If any provision of this Agreement shall be invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 6.8           Counterparts. This Agreement may be executed in several counterparts, and by each Party on separate counterparts, each of which and any photocopies and facsimile copies thereof shall be deemed an original, but all of which together shall constitute one and the same agreement.

Section 6.9           Survival .

(a)         This Agreement and all agreements, representations and warranties made in the Loan Documents, and in any document, certificate or statement delivered pursuant thereto or in connection therewith shall be considered to have been relied upon by the other Parties and shall survive the execution and delivery of this Agreement and the making of the Loan hereunder regardless of any investigation made by any such other Party or on its behalf, and shall continue in force until all amounts payable under the Loan Documents shall have been fully paid in accordance with the provisions thereof, and the Lenders shall not be deemed to have waived, by reason of making the Loans, any Event of Default that may arise by reason of such representation or warranty proving to have been false or misleading, notwithstanding that the Lenders may have had notice or knowledge of any such Event of Default or may have had notice or knowledge that such representation or warranty was false or misleading at the time the Loans were made.

(b)         The obligations of the Borrower under Sections 1.4 and 2.6 and the obligations of the Borrower and the Lenders under this Article 6 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, or the termination of this Agreement or any provision hereof.

(c)         Notwithstanding anything in this Agreement to the contrary, in the event that the Arrangement Agreement is terminated prior to completion of the transactions contemplated thereby, Tribute shall be released from all of its obligations under this Agreement and this Agreement shall terminate as to Tribute.
 
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Section 6.10         No Waiver. Neither the failure of, nor any delay on the part of, any Party in exercising any right, power or privilege hereunder, or under any agreement, document or instrument mentioned herein, shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege hereunder, or under any agreement, document or instrument mentioned herein, preclude other or further exercise thereof or the exercise of any other right, power or privilege; nor shall any waiver of any right, power, privilege or default hereunder, or under any agreement, document or instrument mentioned herein, constitute a waiver of any other right, power, privilege or default or constitute a waiver of any default of the same or of any other term or provision. No course of dealing and no delay in exercising, or omission to exercise, any right, power or remedy accruing to the Lenders upon any default under this Agreement, or any other agreement shall impair any such right, power or remedy or be construed to be a waiver thereof or an acquiescence therein; nor shall the action of the Lenders in respect of any such default, or any acquiescence by it therein, affect or impair any right, power or remedy of the Lenders in respect of any other default. All rights and remedies herein provided are cumulative and not exclusive of any rights or remedies otherwise provided by law.

Section 6.11         Indemnity .

(a)         Each Credit Party (excluding Tribute prior to the closing of the transactions contemplated by the Arrangement Agreement) shall, at all times, indemnify and hold each Lender harmless (the “ Indemnity ”) and each of their respective directors, partners, officers, employees, agents, counsel and advisors (each, an “ Indemnified Person ”) in connection with any losses, claims (including the reasonable attorneys’ fees incurred in defending against such claims), damages, liabilities, penalties, or other expenses arising out of, or relating to, the Loan Documents, the extension of credit hereunder or the Loans or the use or intended use of the Loans, which an Indemnified Person may incur or to which an Indemnified Person may become subject (each, a “ Loss ”). The Indemnity shall not apply to the extent that a court or arbitral tribunal of competent jurisdiction issues a final judgment that such Loss resulted from the gross negligence or willful misconduct of the Indemnified Person. The Indemnity is independent of and in addition to any other agreement of any Credit Party under any Loan Document to pay any amount to the Lenders, and any exclusion of any obligation to pay any amount under this subsection shall not affect the requirement to pay such amount under any other section hereof or under any other agreement. This Section 6.11 shall not apply with respect to Taxes (which are governed by Section 2.6) other than any Taxes that represent losses, claims or damages arising from any non-Tax claim.

(b)         Promptly after receipt by an Indemnified Person under this Section 6.11 of notice of the commencement of any action (including any governmental action), such Indemnified Person shall, if a Loss in respect thereof is to be made against the indemnifying person under this Section 6.11, deliver to Borrower a written notice of the commencement thereof, and Borrower shall have the right to participate in, and, to the extent Borrower so desires, to assume control of the defense thereof with counsel mutually satisfactory to Borrower and the Indemnified Person, as the case may be.

(c)         An Indemnified Person shall have the right to retain its own counsel with the documented reasonable fees and out-of-pocket expenses to be paid by the indemnifying person, if, in the reasonable opinion of counsel for the Indemnified Person, the representation by such counsel of the Indemnified Person and Borrower would be inappropriate due to actual or potential differing interests between such Indemnified Person and any other party represented by such counsel in such proceeding. Credit Parties shall pay for only one separate legal counsel for the Indemnified Persons. The failure of an Indemnified Person to deliver written notice to the Borrower within a reasonable time of the commencement of any such action shall not relieve Credit Parties of any liability to the Indemnified Person under this Section 6.11, except to the extent that Credit Parties are actually prejudiced in its ability to defend such action. The indemnification required by this Section 6.11 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as such expense, loss, damage or liability is incurred and is due and payable.
 
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Section 6.12         No Usury. The Loan Documents are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of acceleration or otherwise, shall the amount paid or agreed to be paid to the Lenders for the Loan exceed the maximum amount permissible under applicable law. If from any circumstance whatsoever fulfillment of any provision hereof, at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by law, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity, and if from any such circumstance the Lenders shall ever receive anything which might be deemed interest under applicable law, that would exceed the highest lawful rate, such amount that would be deemed excessive interest shall be applied to the reduction of the principal amount owing on account of the Loans, or if such deemed excessive interest exceeds the unpaid balance of principal of the Loans, such deemed excess shall be refunded to the Borrower. All sums paid or agreed to be paid to the Lenders for the Loan shall, to the extent permitted by applicable law, be deemed to be amortized, prorated, allocated and spread throughout the full term of the Loans until payment in full so that the deemed rate of interest on account of the Loans is uniform throughout the term thereof. The terms and provisions of this Section shall control and supersede every other provision of this Agreement and the Notes.

Section 6.13         Several Obligations. The obligations of the Lenders under the Loan Documents shall be several and not joint.

Section 6.14         Further Assurances. Each Credit Party covenants and agrees to take all necessary action to consummate the transactions contemplated by this Agreement and to fulfill all requirements to the Initial Loans set forth in Section 4.1, including the execution and delivery of the Conversion Notes, contemporaneous with the closing of the Transactions. From time to time, the Borrower shall perform any and all acts and execute and deliver to the Lenders such additional documents as may be necessary or as requested by the Lenders to carry out the purposes of any Loan Document or any or to preserve and protect the Lenders’ rights as contemplated therein.

Section 6.15         Judgment Currency . To the extent permitted by applicable law, the obligations of any Credit Party in respect of any amount due under this Agreement shall, notwithstanding any payment in any other currency (the “ Other Currency ”) (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the currency in which it is due (the “ Agreed Currency ”) that Lenders may purchase with the sum paid in the Other Currency (after any premium and costs of exchange) on the Business Day immediately after the day on which Lender receives the payment. If the amount in the Agreed Currency that may be so purchased for any reason falls short of the amount originally due, the Credit Parties shall pay all additional amounts, in the Agreed Currency, as may be necessary to compensate for the shortfall. Any obligation of a Credit Party not discharged by that payment shall, to the extent permitted by applicable law, be due as a separate and independent obligation and, until discharged as provided in this Section 6.15 , continue in full force and effect.
 
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Section 6.16         Amendment and Novation Further Assurances . The Lenders agree to cooperate with the Credit Parties and take such action as the Borrower may reasonably request to effect prior to the completion of the Transactions, an amendment and novation of the Loan Documents and an assumption of any Initial Loans, Acquisition Loans, Acquisition Notes and Conversion Notes then in issue such that:

(i)            the Irish Finco becomes the issuer of the Conversion Notes and the Acquisition Notes and the Borrower hereunder, in each case fully guaranteed by, inter alia, the Parent;

(ii)           the Acquisition Notes and the Conversion Notes (when assumed by, or issued or re-issued, as applicable, by Irish Finco), are in a form capable of being listed on a recognised stock exchange for the purposes of Section 64 of the Irish Taxes Consolidation Act 1997;

(iii)          the Conversion Notes as so amended and novated will include provision for the Conversion Notes to be physically settled for Ordinary Shares of the Parent or cash settled in an equivalent value amount at the election of the Parent following an exchange election by the Lenders; and

(iv)          the Parent shall guarantee the exchange issuance obligations of the Irish Finco referred to in clause (iii) above.

Provided that:

(a)         any such amendment, novation and assumption shall preserve the affirmative and negative covenants of the Credit Parties and the economic benefit for the Lenders of the provisions of this Agreement and the Acquisition Notes and Conversion Notes as contemplated by this Agreement on the date hereof.

(b)         the legal rights of the holders of the Acquisition Notes and Conversion Notes (when assumed by, or issued or re-issued, as applicable, by Irish Finco) shall be equivalent to those provided to the Lenders hereunder.

(c)         a stock exchange which is a recognised stock exchange for the purposes of Section 64 of the Irish Taxes Consolidation Act 1997 shall have confirmed that it will admit the Acquisition Notes and Conversion Notes (when assumed by, or issued or re-issued, as applicable, by Irish Finco) to listing.
 
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(d)         Parent and Irish Finco shall have confirmed in writing to the Lenders that, following such amendment, novation and assumption, and assuming the admission of the Conversion Notes and the Acquisition Notes to listing, payments to the Lenders under the Conversion Notes and the Acquisition Notes will not be subject to Irish withholding tax.

The costs and expenses of such amendment and novation, including all costs incurred by the Lenders in connection therewith, shall be the joint and several obligation of the Credit Parties, regardless of whether an amendment and novation occurs and shall be in addition to the obligation of the Credit Parties pursuant to Section 2.7. The provisions of this Section 6.15 are without prejudice to the obligations of the Credit Parties under Section 2.6.

Such amendment and novation shall be on terms reasonably acceptable to Lenders.

Should the amendment and novation of the Loan Documents and the listing of the Conversion Notes and the Acquisition Notes not be consummated as described above, the Loan Documents shall continue in full force and effect .

[SIGNATURE PAGE FOLLOWS]
 
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IN WITNESS WHEREOF, the Lenders and the Credit Parties have caused this Agreement to be duly executed as of the 8th day of June, 2015.

CREDIT PARTIES:

AGUONO LIMITED
 
     
By:
/s/ William L. Hodges  
Name:
William L. Hodges  
Title:
Director  
     
POZEN INC.
 
     
By:
/s/ Adrian Adams  
Name:
Adrian Adams  
Title:
Chief Executive Officer  
     
TRIBUTE PHARMACEUTICALS CANADA INC.
     
By:
/s/ Scott Langille  
Name:
Scott Langille  
Title:
Chief Financial Officer  
     
LENDERS:
 
     
DEERFIELD PRIVATE DESIGN FUND III, L.P.
By: Deerfield Mgmt III, L.P., General Partner
By: J.E. Flynn Capital III, LLC, General Partner
     
By:
/s/ David J. Clark  
Name: David J. Clark
Title: Authorized Signatory
     
DEERFIELD INTERNATIONAL MASTER FUND, L.P.
By: Deerfield Mgmt, L.P., General Partner
By: J.E. Flynn Capital, LLC, General Partner
     
By:
/s/ David J. Clark  
Name: David J. Clark
Title: Authorized Signatory
 
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DEERFIELD PARTNERS, L.P.
By: Deerfield Mgmt, L.P., General Partner
By: J.E. Flynn Capital, LLC, General Partner
     
By:
/s/ David J. Clark  
Name: David J. Clark
Title: Authorized Signatory
 
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SCHEDULE 1

LENDER
 
ALLOCATION OF LOANS,
PREPAYMENTS*
Deerfield Private Design Fund III, L.P.
50 %
Deerfield International Master Fund, L.P.
28 %
Deerfield Partners, L.P.
22 %

* Lenders may, from time to time reallocate the percentages among themselves without the consent of Credit Parties.
 
Exhibit A-1

THIS NOTE MAY BE ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR U.S. FEDERAL INCOME TAX PURPOSES. THE AMOUNT OF OID SHALL BE MUTUALLY DETERMINED BY THE ORIGINAL HOLDER AND THE COMPANY IN GOOD FAITH AND IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF SECTIONS 1271 THROUGH 1275 OF THE U.S. INTERNAL REVENUE CODE. THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE AND YIELD TO MATURITY WITH RESPECT TO THIS NOTE MAY BE OBTAINED BY WRITING TO THE BORROWER AT THE FOLLOWING ADDRESS: [____________________________: ATTN: [____________], CHIEF FINANCIAL OFFICER, FAX NUMBER: (___) ___-____; ELECTRONIC MAIL: ____________@_________.COM.

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER SAID ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SAID ACT INCLUDING, WITHOUT LIMITATION, PURSUANT TO RULES 144 OR 144A UNDER SAID ACT OR PURSUANT TO A PRIVATE SALE EFFECTED UNDER APPLICABLE FORMAL OR INFORMAL SEC INTERPRETATION OR GUIDANCE, SUCH AS A SO-CALLED “4(1) AND A HALF” SALE.

THE SALE, TRANSFER OR ASSIGNMENT OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN REGISTRATION RIGHTS AGREEMENT DATED AS OF JUNE 8, 2015, AS AMENDED FROM TIME TO TIME, AMONG THE COMPANY AND CERTAIN HOLDERS OF ITS OUTSTANDING SECURITIES. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY.

SENIOR SECURED CONVERTIBLE NOTE

Issuance Date: ________, 2015
Principal: U.S. $___________

FOR VALUE RECEIVED,    AGUONO LIMITED (company number 561617)   a private limited company incorporated in the Republic of Ireland (the “ Company ”), hereby promises to pay to [ ], or its registered assigns (the “ Holder ”) the principal amount of _______________________($________)   (the “ Principal ”) pursuant to, and in accordance with, the terms of that certain Facility Agreement, dated as of June 8, 2015, by and among the Company and the Lenders party thereto (together with all exhibits and schedules thereto and as may be amended, restated, modified and supplemented from time to time, the “ Facility Agreement ”). The Company hereby promises to pay accrued and unpaid Interest (as defined below) and premium, if any, on the Principal on the dates, at the rates and in the manner provided for in the Facility Agreement. This Senior Secured Convertible Note (including all Senior Secured Convertible Notes issued in exchange, transfer or replacement hereof, and as any of the foregoing may be amended, restated, supplemented or otherwise modified from time to time, this “ Note ”) is one of the Senior Secured Convertible Notes issued pursuant to the Facility Agreement (collectively, including all Senior Secured Convertible Notes issued in exchange, transfer or replacement thereof, and as any of the foregoing may be amended, restated, supplemented or otherwise modified from time to time, the “ Notes ”). All capitalized terms used and not otherwise defined herein shall have the respective meanings set forth in the Facility Agreement.
 
This Note is subject to mandatory prepayment on the terms specified in the Facility Agreement. Except as expressly provided in the Facility Agreement, the Company has no right, but under certain circumstances may have an obligation, to make payments of Principal prior to the sixth anniversary of the Issuance Date. At any time an Event of Default exists, the Principal of this Note, together with all accrued and unpaid Interest and any applicable premium due, if any, may be declared, or shall otherwise become, due and payable in the manner, at the price and with the effect provided in the Facility Agreement.

1.              Definitions.

(a)              Certain Defined Terms . For purposes of this Note, the following terms shall have the following meanings:

(i)              “ Affiliate ” means any person or entity that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a person or entity, as such terms are used in and construed under Rule 144 under the Securities Act. With respect to a Holder, any investment fund or managed account that is managed on a discretionary basis by the same investment manager as such Holder will be deemed to be an Affiliate of such Holder. As used in this definition of “Affiliate,” the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or partnership or other ownership interest, by contract, or otherwise.

(ii)              “ Capital Stock ” means, for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that entity, but for the avoidance of doubt, excluding any debt securities convertible into such stock.

(iii)              “ Common Equity ” of any Person means Capital Stock of such Person that is generally entitled (a) to vote, in the election of directors of such person or (b) if such Person is not a corporation, to vote or otherwise participate in the election of the governing body, partners, managers or others that will control the management or policies of such person.
 
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(iv)              “ Conversion Amount ” means the Principal to be converted, redeemed or otherwise with respect to which this determination is being made.

(v)              “ Conversion Price ” means, as of any Conversion Date or other date of determination, $9.54 per Share, subject to adjustment as provided herein and subject to appropriate adjustment to reflect any subdivision of outstanding Ordinary Shares (by any stock split, share or stock dividend, recapitalization or otherwise) or combination of outstanding Ordinary Shares (by consolidation, combination, reverse stock split or otherwise), repayment or reduction of capital or other event giving rise to an adjustment of the nominal amount of such Ordinary Shares hereafter.

(vi)              “ Dollars ” or “ $ ” means United States Dollars.

(vii)              “ Eligible Market ” means the NASDAQ Global Market, the NASDAQ Global Select Market, the New York Stock Exchange, the NYSE Alternext, the Toronto Stock Exchange, or the Nasdaq Capital Market.

(viii)              “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

(ix)              “ Interest ” means any interest (including any default interest) accrued on the Principal pursuant to the terms of this Note and the Facility Agreement.

(x)              “ Issuance Date ” means _____, 2015, regardless of any exchange or replacement hereof.

(xi)              “ Major Transaction ” means any of the following events:

(A)              a consolidation, merger, exchange of shares, recapitalization, reorganization, business combination or other similar event, (1) following which the holders of Ordinary Shares immediately preceding such consolidation, merger, exchange, recapitalization, reorganization, combination or event either (a) no longer hold at least 50% of the Ordinary Shares or (b) no longer have the ability to elect at least 50% of the members of the board of directors of the Company or (2) as a result of which Ordinary Shares shall be converted into or re-designated as (or the Ordinary Shares become entitled to receive) the same or a different number of shares of the same or another class or classes of stock or securities of the Company or another entity (other than to the extent the Ordinary Shares are changed or exchanged solely to reflect a change in the Company’s jurisdiction of incorporation); or

(B)              the sale or transfer (other than to a wholly owned subsidiary of the Company) of (i) all or substantially all of the assets of the Company or (ii) assets of the Company for a purchase price equal to more than 50% of the Enterprise Value (as defined below) of the Company. For purposes of this clause (B), “ Enterprise Value ” shall mean (I) the product of (x) the number of issued Ordinary Shares (excluding treasury shares) on the date the Company delivers the Major Transaction Notice (as defined below in Section 3(b)) multiplied by (y) the per share closing price of the Ordinary Shares on such date plus (II) the amount of the Company’s debt as shown on the latest financial statements filed with the SEC (the “ Current Financial Statements ”) less (III) the amount of cash and cash equivalents of the Company as shown on the Current Financial Statements; or
 
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(C)              a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company, files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner” as defined in Rule 13d-3 under the Exchange Act of the Company’s Common Equity representing more than 50% of the voting power of the Company’s Common Equity;

provided, however , that a transaction or transactions described above shall not constitute a Major Transaction, if at least 90% of the consideration received or to be received by the holders of Ordinary Shares, excluding cash payments for fractional shares, in connection with such transaction or transactions, consists of freely tradable, unrestricted common shares, ordinary shares or ADRs (“Equity Shares”) of a Qualified Issuer (as defined below) that are listed on an Eligible Market or will be so listed when issued or exchanged in connection with such transaction or transactions and if as a result of such transaction or transactions the obligations of the Company under the Notes and the Facility Agreement are assumed by such Qualified Issuer, and such notes thereafter become convertible at any time and from time to time, pursuant to the terms hereof, into such Equity Shares, including with such appropriate revisions to the Conversion Price and to Schedule I hereto to reflect the conversion ratio to be received by holders of Ordinary Shares in such transaction as shall be reasonably satisfactory to the Holder. An issuer is a Qualified Issuer if, as of the 5 th Trading Date prior to the announcement of the foregoing transaction (1) its Market Cap (as defined below) is at least $5 billion and (2) the rating assigned to its long term debt by S&P is at least “A” or its debt has an equivalent rating on Moody’s or a comparable rating agency. Market Cap shall mean the product of the number of outstanding Equity Securities and the Volume Weighted Average Price of such securities, both determined as of the foregoing 5 th Trading Day.

(xii)              “ Major Transaction Company Shares ” shall have the meaning set forth in Section 3(a) hereof.

(xiii)              “Major Transaction Conversion Period ” means the period beginning upon receipt by the Holder of a Major Transaction Notice (as defined below) and ending (1) in the case of a Successor Major Transaction (as defined below), five (5) Trading Days prior to consummation of the Major Transaction and (2) in the case of a Company Share Major Transaction (as defined below), any time until the later of (x) the six (6) year anniversary of the Funding Date and (y) the one-year anniversary of the applicable Company Share Major Transaction.

(xiv)              “ Ordinary Shares ” means the ordinary shares, nominal value $____, of the Company.

(xv)              “ Person ” means an individual, a corporation, a limited liability company, an association, a partnership, a joint venture, a joint stock company, a trust, an unincorporated organization or a government or agency or a political subdivision thereof.
 
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(xvi)              “ Principal ” means the outstanding principal amount of this Note as of any date of determination.

(xvii)              “ Principal Market ” means the Eligible Market on which the Ordinary Shares are primarily listed on and quoted for trading, which as of the Issuance Date, shall be the NASDAQ Stock Market LLC.

(xviii)              “ Registration Failure ” means that (A) the Company fails to file with the SEC on or before the Filing Deadline (as defined in the Registration Rights Agreement) any Registration Statement required to be filed pursuant to Section 2(a) of the Registration Rights Agreement registering Conversion Shares (as defined below), (B) the Company fails to use its best efforts to obtain effectiveness with the SEC, prior to the Registration Deadline (as defined in the Registration Rights Agreement), of any Registration Statements (as defined in the Registration Rights Agreement) that are required to be filed pursuant to Section 2(a) of the Registration Rights Agreement registering Conversion Shares, or fails to keep such Registration Statement current and effective as required in Section 3 of the Registration Rights Agreement, (C) the Company fails to file any additional Registration Statements required to be filed pursuant to Section 2(a)(ii) of the Registration Rights Agreement registering Conversion Shares on or before the Additional Filing Deadline or fails to use its best efforts to cause such new Registration Statement to become effective on or before the Additional Registration Deadline, (D) the Company fails to file any amendment to any Registration Statement registering Conversion Shares, or any additional Registration Statement required to be filed pursuant to Section 3(b) of the Registration Rights Agreement registering Conversion Shares within twenty (20) days of the applicable Registration Trigger Date (as defined in the Registration Rights Agreement), or fails to use its best efforts to cause such amendment and/or new Registration Statement to become effective within forty-five (45) days of the applicable Registration Trigger Date, (E) any Registration Statement required to be filed under the Registration Rights Agreement registering Conversion Shares, after its initial effectiveness and during the Registration Period (as defined in the Registration Rights Agreement), lapses in effect or sales of any Conversion Shares constituting Registrable Securities (as defined in the Registration Rights Agreement) cannot otherwise be made thereunder (whether by reason of the Company’s failure to amend or supplement the prospectus included therein in accordance with the Registration Rights Agreement, the Company’s failure to file and to obtain effectiveness with the SEC of an additional Registration Statement registering Conversion Shares or amended Registration Statement required pursuant to Sections 2(a)(ii) or 3(b) of the Registration Rights Agreement, as applicable, or otherwise), and (F) the Company fails to provide a commercially reasonable written response to any comments to the foregoing Registration Statements submitted by the SEC within twenty (20) days of the date that such SEC comments are received by the Company.

(xix)              “ Registration Rights Agreement ” means that certain Registration Rights Agreement, dated as of June 8, 2015, by and among the Company and the Lenders party to the Facility Agreement.

(xx)              “ Required Note Holders ” means Holders of at least 50.1% of the aggregate principal amount of the Notes outstanding.
 
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(xxi)              “ SEC ” means the Securities and Exchange Commission.

(xxii)              “ Securities Act ” means the Securities Act of 1933, as amended.

(xxiii)              “ Shares ” means Ordinary Shares.

(xxiv)              “ Successor Entity ” means any Person purchasing the Company’s assets or Ordinary Shares in a Major Transaction, or any successor entity resulting from such Major Transaction.

(xxv)              “ Trading Day ” means any day on which the Ordinary Shares are traded for any period on the Principal Market.

(xxvi)              “ Volume   Weighted Average Price ” for any security as of any date means the volume weighted average sale price of such security on the Principal Market as reported by Bloomberg Financial Markets or an equivalent, reliable reporting service mutually acceptable to and hereinafter designated by the Required Note Holders and the Company (“ Bloomberg ”) or, if no volume weighted average sale price is reported for such security, then the last closing trade price of such security as reported by Bloomberg, or, if no last closing trade price is reported for such security by Bloomberg, the average of the bid prices of any market makers for such security that are listed in the over the counter market by the Financial Industry Regulatory Authority, Inc. or on the “over the counter” Bulletin Board (or any successor) or in the “pink sheets” (or any successor) by the OTC Markets Group, Inc. If the Volume Weighted Average Price cannot be calculated for such security on such date in the manner provided above, the Volume Weighted Average Price shall be the fair market value as mutually determined by the Company and the Holders of a majority in interest of the Notes being converted for which the calculation of the Volume Weighted Average Price is required in order to determine the Conversion Price of such Notes.

2.              Conversion Rights . This Note may be converted into Shares on the terms and conditions set forth in this Section 2 and, where applicable, Section 3 .

(a)              Conversion at Option of the Holder . On or after the date hereof, the Holder shall be entitled to convert all or any part of the Principal into, and the Company shall allot and issue, fully paid Shares, ranking pari passu with the fully paid Shares then in issue (the “ Conversion Shares ”) in accordance with this Section 2 and, if applicable, Section 3 , at the Conversion Rate (as defined in Section 2(b) ); provided that the Company will not be required to issue Conversion Shares with respect to a Conversion Notice with respect to less than the lesser of (i) $1,000,000 principal amount of this Note and (ii) the principal amount outstanding under this Note. The Company shall not issue any fraction of a Share upon any conversion. If the issuance would result in the issuance of a fraction of a Share, then the Company shall round such fraction of a Share up or down to the nearest whole share (with 0.5 rounded up). Notwithstanding anything herein to the contrary, the Company shall not issue to the Holder, and the Holder may not acquire, a number of Shares upon conversion of this Note or otherwise issue any Ordinary Shares pursuant hereto or the Facility Agreement to the extent that, upon such conversion, the number of Shares then beneficially owned by the Holder and its Affiliates and any other persons or entities whose beneficial ownership of Ordinary Shares would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act (including shares held by any “group” of which the Holder is a member, but excluding shares beneficially owned by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar to the limitation set forth herein) would exceed 9.985% of the total number of Ordinary Shares then issued (excluding treasury shares) (the “ 9.985% Cap ”); provided, however, that the 9.985% Cap shall only apply to the extent that Ordinary Shares are deemed to constitute an “equity securities” pursuant to Rule 13d-1(i) promulgated under the Exchange Act. For purposes hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and applicable regulations of the SEC, and the percentage held by the Holder shall be determined in a manner consistent with the provisions of Section 13(d) of the Exchange Act. Upon the written request of the Holder, the Company shall, within two (2) Trading Days, confirm orally and in writing to the Holder the number of Shares then outstanding.
 
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(b)              Conversion Rate . The number of Conversion Shares issuable upon a conversion of any portion of this Note pursuant to Section 2 shall be determined according to the following formula (the “ Conversion Rate ”):

_______Conversion Amount_______
Conversion Price

The Conversion Rate shall be subject to adjustment in connection with a Major Transaction Conversion (as defined below) in accordance with and subject to the provisions of Section 3 hereof.

(c)              Mechanics of Conversion . The conversion of this Note shall be conducted in the following manner:

(i)              Holder’s Delivery Requirements . To convert a Conversion Amount into Conversion Shares on any date (the “ Conversion Date ”), the Holder shall (A) transmit by facsimile or electronic mail (or otherwise deliver), for receipt on or prior to 5:00 p.m. New York City time on such date, a copy of an executed conversion notice in the form attached hereto as Exhibit A or, in the case of a Major Transaction Conversion for Major Transaction Company Shares (as defined below), a Major Transaction Conversion Notice (such applicable notice, the “ Conversion Notice ”) to the Company ( Attention : [ __________, __________________, Fax : (___) ___-____, Email : __________@________.com) ] , and (B) if required by Section 2(c)(vi) , surrender to a common carrier for delivery to the Company, no later than three (3) Business Days after the Conversion Date, the original Note being converted (or an indemnification undertaking in customary form with respect to this Note in the case of its loss, theft or destruction).

(ii)              Company’s Response . Upon receipt or deemed receipt by the Company of a copy of a Conversion Notice, the Company (I) shall immediately send, via facsimile or electronic mail, a confirmation of receipt of such Conversion Notice to the Holder and the Company’s designated transfer agent (the “ Transfer Agent ”), which confirmation shall constitute an instruction to the Transfer Agent to process such Conversion Notice in accordance with the terms herein and (II) on or before the second (2nd) Trading Day following the date of receipt or deemed receipt by the Company of such Conversion Notice or, in the case of Major Transaction Company Shares, within the period provided in Section 3(d) (the “ Share Delivery Date ”); (A) provided that the Transfer Agent is participating in The Depository Trust Company (“ DTC ”) Fast Automated Securities Transfer Program and provided that the Holder is eligible to receive Shares through DTC, credit such aggregate number of Conversion Shares to which the Holder shall be entitled to the Holder’s or its designee’s balance account with DTC through its Deposit Withdrawal Agent Commission system, or (B) if the foregoing shall not apply, issue and deliver to the address as specified in the Conversion Notice, a share or stock certificate (as the case may be), registered in the name of the Holder or its designee, for the number of Conversion Shares to which the Holder shall be entitled. If this Note is submitted for conversion, and the Principal represented by this Note is greater than the Principal being converted, then the Company shall, as soon as practicable and in no event later than three (3) Trading Days after receipt of this Note (the “ Note Delivery Date ”) and at its own expense, issue and deliver to the Holder a new Note representing the Principal not converted and cancel this Note. This Note and the Conversion Shares will be free-trading, and freely transferable, and will not contain a legend restricting the resale or transferability of the Conversion Shares if the Unrestricted Conditions (as defined below) are met.
 
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(iii)              Dispute Resolution . In the case of a dispute as to the determination of the Conversion Price or the arithmetic calculation of the Conversion Rate, the Company shall instruct the Transfer Agent to issue to the Holder the number of Conversion Shares that is not disputed and shall transmit an explanation of the disputed determinations or arithmetic calculations to the Holder via facsimile or electronic mail within two (2) Business Days of receipt or deemed receipt of the Holder’s Conversion Notice or other date of determination. If the Holder and the Company are unable to agree upon the determination of the Conversion Price or arithmetic calculation of the Conversion Rate within one (1) Business Day of such disputed determination or arithmetic calculation being transmitted to the Holder, then the Company shall promptly (and in any event within two (2) Business Days) submit via facsimile or electronic mail (A) the disputed determination of the Conversion Price to an independent, reputable investment banking firm agreed to by the Company and the Required Note Holders, or (B) the disputed arithmetic calculation of the Conversion Rate to the Company’s independent registered public accounting firm, as the case may be. The Company shall direct the investment bank or the accounting firm, as the case may be, to perform the determinations or calculations and notify the Company and the Holder of the results no later than two (2) Business Days from the time it receives the disputed determinations or calculations. Such investment bank’s or accounting firm’s determination or calculation, as the case may be, shall be binding upon all parties absent manifest error. Notwithstanding anything herein to the contrary, any such final determination in respect of a dispute in connection with a Major Transaction in which the Company is not the surviving parent entity, shall be made prior to consummation of such Major Transaction.

(iv)              Record Holder . The person or persons entitled to receive the Conversion Shares issuable upon a conversion of this Note shall be treated for all purposes as the legal and record holder or holders of such Shares upon delivery of the Conversion Notice via facsimile, electronic mail or otherwise in accordance with the terms hereof.
 
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(v)              Company’s Failure to Timely Convert.

(A)              Cash Damages . If within three (3) Business Days after the Company’s receipt of the facsimile or electronic mail copy of a Conversion Notice or deemed receipt of a Conversion Notice the Company shall fail to issue and deliver a certificate to the Holder for, or credit the Holder’s or its designee’s balance account with DTC with, the number of Conversion Shares (free of any restrictive legend if the Unrestricted Conditions (as defined below) are met) to which the Holder is entitled upon the Holder’s conversion of any Conversion Amount, then in addition to all other available remedies that the Holder may pursue hereunder and under the Facility Agreement, the Company shall pay additional damages to the Holder for each 30-day period (prorated for any partial period) after the Share Delivery Date such conversion is not timely effected in an amount equal to one and one-half percent (1.5%)   of, the product of (I) the number of Conversion Shares not issued to the Holder or its designee on or prior to the Share Delivery Date and to which the Holder is entitled and (II) the Volume Weighted Average Price of an Ordinary Share on the Share Delivery Date (such product is referred to herein as the “ Share Product Amount . Alternatively, subject to Section 2(c)(iii) , at the election of the Holder made in the Holder’s sole discretion, the Company shall pay to the Holder, in lieu of the additional damages referred to in the preceding sentence (but in addition to all other available remedies that the Holder may pursue hereunder and under the Facility Agreement), 105% of the amount by which (A) the Holder’s total purchase price (including brokerage commissions, if any) for the Shares purchased to make delivery in satisfaction of a sale by the Holder of the Conversion Shares to which the Holder is entitled but has not received upon a conversion exceeds (B) the net proceeds received by the Holder from the sale of the Shares to which the Holder is entitled but has not received upon such conversion. If the Company fails to pay the additional damages set forth in this Section 2(c)(v)(A) within five (5) Business Days of the date incurred, then the Holder entitled to such payments shall have the right at any time, so long as the Company continues to fail to make such payments, to require the Company, upon written notice, to immediately issue, in lieu of such cash damages, the number of Shares equal to the quotient of (X) the aggregate amount of the damages payments described herein divided by (Y) the Conversion Price in effect on such Conversion Date as specified by the Holder in the Conversion Notice.

(B)              Void Conversion Notice . If for any reason the Holder has not received all of the Conversion Shares prior to the fifteenth (15th) Business Day after the Share Delivery Date with respect to a conversion of this Note (a “ Conversion Failure ”), then the Holder, upon written notice to the Company (a “ Void Conversion Notice ”), may void its Conversion Notice with respect to, and retain or have returned, as the case may be, any portion of this Note that has not been converted pursuant to the Holder’s Conversion Notice; provided , that the voiding of the Holder’s Conversion Notice shall not affect the Company’s obligations to make any payments that have accrued prior to the date of such notice pursuant to Section 2(c)(v)(A) or otherwise.

(C)              Event of Default . A Conversion Failure shall constitute an Event of Default under the Facility Agreement and entitle the Lenders to all payments and remedies provided under the Facility Agreement upon the occurrence of an Event of Default.
 
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(vi)              Book-Entry . Notwithstanding anything to the contrary set forth herein, upon conversion or redemption of this Note in accordance with the terms hereof, the Holder shall not be required to physically surrender this Note to the Company unless all of the Principal is being converted or redeemed. The Holder and the Company shall maintain records showing the Principal converted or redeemed and the dates of such conversions or redemptions or shall use such other method, reasonably satisfactory to the Holder and the Company, so as not to require physical surrender of this Note upon any such partial conversion or redemption. Notwithstanding the foregoing, if this Note is converted or redeemed as aforesaid, the Holder may not transfer this Note unless the Holder first physically surrenders this Note to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Note of like tenor, registered as the Holder may request, representing in the aggregate the remaining Principal represented by this Note. The Holder and any assignee, by acceptance of this Note, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion or redemption of any portion of this Note, the Principal of this Note may be less than the principal amount stated on the face hereof.

(d)              Taxes . The Company shall pay any and all Other Taxes that may be payable with respect to the issuance and delivery of Conversion Shares upon the conversion of this Note.

(e)              Legends .

(i)              Restrictive Legend . The Holder understands that until such time as this Note or the Conversion Shares have been registered under the Securities Act and applicable state securities laws as contemplated by the Registration Rights Agreement or otherwise may be sold pursuant to Rule 144 under the Securities Act or an exemption from registration under the Securities Act without any restriction as to the number of securities as of a particular date that can then be immediately sold, this Note and the Conversion Shares, as applicable, may bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of the certificates for such securities):

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER SAID ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SAID ACT INCLUDING, WITHOUT LIMITATION, PURSUANT TO RULES 144 OR 144A UNDER SAID ACT OR PURSUANT TO A PRIVATE SALE EFFECTED UNDER APPLICABLE FORMAL OR INFORMAL SEC INTERPRETATION OR GUIDANCE, SUCH AS A SO-CALLED “4(1) AND A HALF” SALE.”

“THE SALE, TRANSFER OR ASSIGNMENT OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN REGISTRATION RIGHTS AGREEMENT DATED AS OF JUNE 8, 2015, AS AMENDED FROM TIME TO TIME, AMONG THE COMPANY AND CERTAIN HOLDERS OF ITS OUTSTANDING SECURITIES. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY.”
 
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(ii)              Removal of Restrictive Legends . This Note and the certificates evidencing the Conversion Shares (including any Major Transaction Company Shares), as applicable, shall not contain any legend restricting the transfer thereof (including the legend set forth above in subsection 2(e)(i)): (A) while a registration statement (including a Registration Statement, as defined in the Registration Rights Agreement) covering the sale or resale of the Conversion Shares is effective under the Securities Act, or (B) following any sale of such Note and/or Conversion Shares pursuant to Rule 144, or (C) if such Note or Conversion Shares, as the case may be, are eligible for sale under Rule 144(b)(1), (D) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the SEC) (collectively, the “ Unrestricted Conditions ”). The Company shall cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date (as defined below), or at such other time as any of the Unrestricted Conditions have been satisfied, if required by the Company’s transfer agent to effect the issuance of this Note or the Conversion Shares, as applicable, without a restrictive legend or removal of the legend hereunder. If any of the Unrestricted Conditions are met at the time of issuance of any of the Conversion Shares, then such Conversion Shares shall be issued free of all legends. The Company agrees that following the Effective Date or at such time as any of the Unrestricted Conditions are met or such legend is otherwise no longer required under this Section 2(e) , it will, no later than five (5) Trading Days following the delivery (the “ Unlegended Shares Delivery Deadline ”) by the Holder to the Company or the Transfer Agent of this Note and a certificate representing Conversion Shares, as applicable, issued with a restrictive legend (such third Trading Day, the “ Legend Removal Date ”), deliver or cause to be delivered to such Holder this Note and/or a certificate (or electronic transfer) representing such shares that is free from all restrictive and other legends. For purposes hereof, “ Effective Date ” shall mean the date that the Registration Statement that the Company is required to file pursuant to the Registration Rights Agreement has been declared effective by the SEC.

(iii)              Sale of Unlegended Shares . Holder agrees that the removal of the restrictive legend from this Note and any certificates representing securities as set forth in Section 2(e) above is predicated upon the Company’s reliance that the Holder will sell this Note or any Conversion Shares, as applicable, pursuant to either the registration requirements of the Securities Act and applicable state securities laws, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if such securities are sold pursuant to a Registration Statement, they will be sold in compliance with the plan of distribution set forth therein.

(f)              Dividend, Subdivision, Combination or Reclassification . If the Company shall, at any time or from time to time, (A) declare a dividend on the Ordinary Shares, or capitalization of profits or reserves, payable in shares of its Capital Stock (including Ordinary Shares), other than a dividend for which the Holder would be entitled to participate pursuant to Section 6, (B) subdivide the outstanding Ordinary Shares into a larger number of Ordinary Shares, (C) consolidate or combine the outstanding Ordinary Shares into a smaller number of shares of its Ordinary Shares or (D) issue any shares of its Capital Stock in a reclassification of the Ordinary Shares (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation), or (E) repay or reduce its capital or otherwise adjust the nominal value of its Shares, then in each such case, the Conversion Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification shall be adjusted so that the Holder of this Note upon conversion after such date shall be entitled to receive the aggregate number and kind of shares of its Capital Stock which, if this Note had been converted immediately prior to such date, such holder would have owned upon such conversion and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. Any such adjustment shall become effective immediately after the record date of such dividend or the effective date of such subdivision, combination or reclassification. Such adjustment shall be made successively whenever any event listed above shall occur. If a dividend on the Ordinary Shares, or capitalization of profits or reserves, payable in shares of its Capital Stock (including Ordinary Shares) is declared and such dividend is not paid, the Conversion Price shall again be adjusted to be the Conversion Price, in effect immediately prior to such record date (giving effect to all adjustments that otherwise would be required to be made pursuant to this Section 2 from and after such record date).
 
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3.              Rights Upon Major Transaction . In the event that a Major Transaction occurs, then the Holder, at its option, may (i) require the Company to repay all or a portion of the principal amount outstanding on the Holder’s Notes plus all accrued and unpaid Interest thereon, in accordance with Section 5.3 of the Facility Agreement or (ii) convert all or a portion of the principal amount outstanding in accordance with the provisions of this Section 3 (a “ Major Transaction Conversion ”) and cause the Company to pay to the Holder all accrued and unpaid Interest under this Note. The Holder shall have the right to waive its rights under this Section 3 with respect to such Major Transaction.

(a)             Major Transaction Conversion . In the event that a Major Transaction occurs, then (1) in the case of a transaction covered by the provisions of clause (A) of the definition of “Major Transaction”, in which the Ordinary Shares of the Company are converted into the right to receive cash, securities of another entity and/or other assets (a “ Successor Major Transaction ”), the Holder, at its option, may convert, in whole or in part, the outstanding principal amount under this Note into the right to receive upon consummation of the Major Transaction, the amount of cash and other assets and the number of securities or other property of the Successor Entity or other entity that the Holder would have received had such Holder converted the Major Transaction Conversion Amount (as defined below) into Base Conversion Shares and Additional Conversion Shares (as defined below and without regard to the 9.985% Cap) immediately prior to the consummation of such Major Transaction (the “ Successor Consideration ”) and (2) in the case of any other Major Transactions not covered under clause (1) above (a “ Company Share Major Transaction ”), the Holder shall have the right to convert, in whole or in part, and from time to time, the outstanding principal amount under this Note into Base Conversion Shares and Additional Conversion Shares (“ Major Transaction Company Shares ”).

(b)              Base Conversion Shares and Additional Conversion Shares . Notwithstanding anything herein to the contrary, with respect to any conversion or deemed conversion effected in connection with a Major Transaction pursuant to this Section 3 , the aggregate total number of Major Transaction Company Shares into which all or any portion of the principal amount of this Note may be converted or, the aggregate number of conversion shares to be used for calculating the Successor Consideration, as applicable, shall be calculated to be the sum of (a) the number of Ordinary Shares into which the principal amount of this Note then being converted would otherwise be converted as calculated under Section 2 hereof (such number of shares, the “ Base Conversion Shares ”), plus (b) the number of Ordinary Shares equal to the product of (x) the Additional Share Coefficient (as such term is defined and determined for each $1,000 of principal amount of this Note on Schedule I attached hereto and made a part hereof) for such Major Transaction and (y) a fraction the numerator of which is the amount of the principal amount of this Note then being converted and the denominator of which is $1,000 (such number of Ordinary Shares calculated in accordance with this clause (b), the “ Additional Conversion Shares ”).
 
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(c)              Notice; Major Transaction Conversion Election . At least thirty (30) days prior to the consummation of any Major Transaction (other than a transaction described in clause (C) of the definition of “Major Transaction”), but, in any event, within five (5) Business Days following the first to occur of (x) the date of the public announcement of such Major Transaction if such announcement is made before 4:00 p.m., New York City time, or (y) the day following the public announcement of such Major Transaction if such announcement is made on and after 4:00 p.m., New York City time, the Company shall deliver written notice thereof via (i) facsimile or electronic mail and (ii) overnight courier to the Holder (a “ Major Transaction Notice ”). At any time during the Major Transaction Conversion Period, the Holder may elect to effect a Major Transaction Conversion by delivering written notice thereof (“ Major Transaction Conversion Notice ”) to the Company, which Major Transaction Conversion Notice shall indicate the portion of the Note (the “ Major Transaction Conversion Amount ”), calculated with reference to the principal amount outstanding that the Holder is electing to treat as a Major Transaction Conversion. For the avoidance of doubt, the Holder shall be permitted to make successive conversions and send successive Major Transaction Conversion Notices in respect of a Company Share Major Transaction from time to time at any time during the Major Transaction Conversion Period; provided that the Company will not be required to issue Conversion Shares with respect to a Major Transaction Conversion Notice with respect to less than the lesser of (i) $1,000,000 principal amount of this Note and (ii) the principal amount outstanding under the Note.

(d)              Settlement of Major Transaction Conversion . Following the receipt of a Major Transaction Conversion Notice from the Holder, the Company shall not effect a Successor Major Transaction that is being treated as a Major Transaction Conversion unless at the time of the execution of the definitive documentation relating to such Major Transaction it obtains the written agreement of the Successor Entity that payment or issuance of the Successor Consideration plus accrued and unpaid interest through the date of payment, shall be made to the Holder prior to consummation of such Major Transaction and such payment or issuance, as the case may be, shall be a condition precedent to consummation of such Major Transaction. Concurrently upon closing of such Successor Major Transaction, the Company shall pay or issue, as the case may be, or shall instruct any escrow agent for the transaction to pay or issue, and will cause the Successor Entity to issue and/or pay, the applicable Successor Consideration, plus accrued and unpaid interest through the date of payment. Any Major Transaction Company Shares issuable in respect of a Company Share Major Transaction shall be issued to the Holder within three (3) Trading Days following the date of each Major Transaction Conversion Notice.
 
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(e)              Damages . Following the receipt of a Major Transaction Conversion Notice from the Holder, in the event that the Company attempts to consummate a Successor Major Transaction without obtaining the written agreement of the Successor Entity described in subsection (d) above, the Holder shall have the right to apply for an injunction in any state or federal courts sitting in the City of New York, borough of Manhattan to prevent the closing of such Major Transaction until the Successor Consideration is satisfied to the Holder in full.

Notwithstanding anything to the contrary contained herein and without derogating any obligations or rights herein, until the Holder receives its appropriate payment or securities, plus any accrued and unpaid interest under this Note, in accordance with the provisions of this Section 3 , this Note may be converted, in whole or in part, by the Holder into Shares, or in the event that such payments and/or shares have not been delivered prior to the consummation of the Successor Major Transaction in which the Company is not the surviving parent entity, Ordinary Shares (or their equivalent) of the Successor Entity at an appropriate conversion price based upon the prevailing Conversion Rate (as adjusted hereunder) at the time of such Major Transaction and price per share or conversion ratio received by holders of Ordinary Shares in the Major Transaction.

4.              Registration Failures . Upon any Registration Failure, in addition to all other available remedies that the Holder may pursue hereunder and under the Facility Agreement, the Registration Rights Agreement and this Note, the Company shall pay additional damages to the Holder for each 30-day period (prorated for any partial period) after the date of such Registration Failure in an amount in cash equal to one and one-half percent (1.5%)   of such Holder’s original principal amount of this Note on the date of such Registration Failure. Such payments shall accrue until the earlier of (i) such time as the Registration Failure has been cured and (ii) the date on which all of the Conversion Shares may be sold without restriction under Rule 144 (including, without limitation, volume restrictions and without the need for the availability of current public information under Rule 144). All such payments that accrue under this Section 4 shall be payable no later than five (5) business days following such date of accrual.

5.              Voting Rights . Except as required by law, the Holder shall have no voting rights with respect to any of the Conversion Shares until delivery of the Conversion Notice relating to the conversion of this Note upon which such Conversion Shares are issuable.

6.              Participation . The Holder, as the holder of this Note, shall be entitled to receive such dividends paid and distributions of any kind made to the holders of Ordinary Shares to the same extent as if the Holder had converted this Note into Ordinary Shares (without regard to any limitations on exercise herein or elsewhere and without regard to whether or not a sufficient number of shares are authorized and reserved to effect any such exercise and issuance) and had held such Ordinary Shares on the record date for such dividends and distributions. Payments under the preceding sentence shall be made concurrently with the dividend or distribution to the holders of Ordinary Shares.
 
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7.              Amendment; Waiver . The terms and provisions of this Note shall not be amended or waived except in a writing signed by the Company and the Required Note Holders.

8.              Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief . The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note, the Facility Agreement, at law or in equity (including a decree of specific performance and/or other injunctive relief). No remedy contained herein shall be deemed a waiver of compliance with the provisions giving rise to such remedy, and nothing herein shall limit the Holder’s right to pursue actual damages for any failure by the Company to comply with the terms of this Note. The Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies, to an injunction restraining any breach, without the necessity of showing economic loss and without any bond or other security being required.

9.              Specific Shall Not Limit General; Construction . No specific provision contained in this Note shall limit or modify any more general provision contained herein. This Note shall be deemed to be jointly drafted by the Company and all purchasers of Notes pursuant to the Facility Agreement and shall not be construed against any Person as the drafter hereof.

10.              Failure or Indulgence Not Waiver . No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege.

11.              Notices . Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance with Section 6.1 of the Facility Agreement.

12.              Restrictions on Transfer .

(a)              Registration or Exemption Required . This Note has been issued in a transaction exempt from the registration requirements of the Securities Act by virtue of Regulation D. None of the Note or the Conversion Shares may be pledged, transferred, sold, assigned, hypothecated or otherwise disposed of except pursuant to an effective registration statement or an exemption to the registration requirements of the Securities Act and applicable state laws including, without limitation, a so-called “4(1) and a half” transaction.

(b)              Assignment . Subject to Section 12(a) , the Holder may sell, transfer, assign, pledge, hypothecate or otherwise dispose of this Note, in whole or in part. Holder shall deliver a written notice to Company, substantially in the form of the Assignment attached hereto as Exhibit B , indicating the Person or Persons to whom the Note shall be assigned and the respective principal amount of the Note to be assigned to each assignee. The Company shall effect the assignment within five (5) Trading Days (the “ Transfer Delivery Period ”), and shall deliver to the assignee(s) designated by Holder a Note or Notes of like tenor and terms for the appropriate principal amount. This Note and the rights evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Holder. The provisions of this Note are intended to be for the benefit of all Holders from time to time of this Note, and shall be enforceable by any such Holder. For avoidance of doubt, in the event Holder notifies the Company that such sale or transfer is a so called “4(1) and half” transaction, the parties hereto agree that a legal opinion from outside counsel for the Holder delivered to counsel for the Company substantially in the form attached hereto as Exhibit C shall be the only requirement to satisfy an exemption from registration under the Securities Act to effectuate such “4(1) and half” transaction.
 
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13.              Obligations of the Company . For so long as any conversion rights under this Note remain capable of being exercised, the Company will (a) keep available for issue out of its authorized but unissued shares capital free from pre-emptive rights such number of Ordinary Shares as would enable the Conversion Shares to be issued in full, and (b) will not, without the consent of the Holder, make any alteration to its articles of association which could have a material adverse effect on the rights attaching to the Ordinary Shares or the rights of the Holder.

14.              Payment of Collection, Enforcement and Other Costs . If (a) this Note is placed in the hands of an attorney for collection or enforcement or is collected or enforced through any legal proceeding; or (b) an attorney is retained to represent the Holder in any bankruptcy, reorganization, receivership of the Company or other proceedings affecting Company creditors’ rights and involving a claim under this Note, then the Company shall pay the costs incurred by the Holder for such collection, enforcement or action, including reasonable attorneys’ fees and disbursements.

15.              Cancellation . After all Principal, Interest and other amounts at any time owed under, or on account of, this Note have been paid in full or converted into Shares in accordance with the terms hereof, this Note shall automatically be deemed cancelled, shall be surrendered to the Company for cancellation and shall not be reissued.

16.              Registered Note . In order to qualify as a “registered note” for purposes of the Code, transfer of this Note may be effected only by (i) surrender of this Note to the Company and the re-issuance of this Note to the transferee, or the Company’s issuance to the Holder of a new note in the same form as this Note but with the transferee denoted as the Holder, or (ii) the recording of the identity of the transferee by the Affiliate of the Holder that is maintaining a record ownership register of this Note as a non-fiduciary agent of, and on behalf of, the Company for the tax purposes set forth herein. Such Affiliate in its capacity as such agent shall notify the Company in writing immediately upon any change in such identity. Any attempted transfer in violation of the relevant provisions of this Note shall be void and of no force and effect. Until there has been a valid transfer of this Note and of all of the rights hereunder by the Holder in accordance with this Note, the Company shall deem and treat the Holder as the absolute beneficial owner and holder of this Note and of all of the rights hereunder for all purposes (including, without limitation, for the purpose of receiving all payments to be made under this Note).
 
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17.              Waiver of Notice . To the extent permitted by law, the Company hereby waives demand, notice, presentment, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note and the Facility Agreement.

18.              Governing Law . This Note shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Note and all disputes arising hereunder shall be governed by, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware and without prejudice to the applicability of Irish law to the issuance of Shares pursuant to the Note. The Company (a) agrees that any legal action or proceeding with respect to this Note or any other agreement, document, or other instrument executed in connection herewith, shall be brought exclusively in any state or federal court located within Wilmington, Delaware, (b) irrevocably waives any objections which the Company may now or hereafter have to the venue of any suit, action or proceeding arising out of or relating to this Note, or any other agreement, document, or other instrument executed in connection herewith, brought in the aforementioned courts, (c) further irrevocably waives any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum and (d) hereby consents that personal service of summons or other legal process may be made as set forth in Section 6.4 of the Facility Agreement. EACH OF THE COMPANY AND THE HOLDER (BY ACCEPTANCE HEREOF) IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT TO ENFORCE ANY PROVISION OF THIS NOTE OR ANY OTHER TRANSACTION DOCUMENT.

19.              Interpretative Matters . Unless the context otherwise requires, (a) all references to Sections or Exhibits are to Sections or Exhibits contained in or attached to this Note, (b) each accounting term not otherwise defined in this Note has the meaning assigned to it in accordance with GAAP, (c) words in the singular or plural include the singular and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter and (d) the use of the word “including” in this Note shall be by way of example rather than limitation. If a stock split, stock dividend, stock combination or other similar event occurs during any period over which an average price is being determined, then an appropriate adjustment will be made to such average to reflect such event.

20.              Execution . A facsimile, telecopy, PDF or other reproduction of this Note may be delivered by the Company, and an executed copy of this Note may be delivered by the Company by facsimile, electronic mail or other similar electronic transmission device pursuant to which the signature of or on behalf of the Company can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes. The Company hereby agrees that it shall not raise the execution of facsimile, PDF or other reproduction of this Note, or the fact that any signature was transmitted by facsimile, electronic mail or other similar electronic transmission device, as a defense to the Company’s execution of this Note. Notwithstanding the foregoing, the Company shall be required to deliver an originally executed Note to the Holder.
 
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[Signature page follows]
 
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IN WITNESS WHEREOF, the Company has caused this Note to be duly executed as of the date first set forth above.

GIVEN UNDER THE COMMON SEAL OF AGUONO LIMITED.

       
 
Director
 
     
     
       
 
Director/Secretary
 
 
Exhibit A

CONVERSION NOTICE

Reference is made to the Senior Secured Convertible Note (the “ Note ”) of Aguono Limited, a limited company incorporated in the Republic of Ireland (the “ Company ”), in the original principal amount of $[__________]. In accordance with and pursuant to the Note, the undersigned hereby elects to convert the Conversion Amount (as defined in the Note) of the Note indicated below into Ordinary Shares (the “ Ordinary Shares ”), of the Company, as of the date specified below.
 
 
Date of Conversion:                                  
       
 
Aggregate Conversion Amount to be converted at the Conversion Price (as defined in the Note):
       
     
       
 
Principal, applicable thereto, to be converted:      
       
       
Please confirm the following information:
       
 
Conversion Price:
      
       
 
Number of Ordinary Shares to be issued:
        
       
Please issue Ordinary Shares into which the Note is being converted in the following name and to the following address:
       
 
Issue to:
  
       
 
Facsimile Number:
   
       
 
E-mail Address:
   
       
 
Authorization:
       
       
   
By:
       
   
Title:
       
       
 
Dated:
          
       
 
DTC Participant Number and Name (if electronic book entry transfer):
   
 
Account Number (if electronic book entry transfer):
   

 
Exhibit B

ASSIGNMENT

(To be executed by the registered holder
desiring to transfer the Note)

FOR VALUE RECEIVED, the undersigned holder of the attached Senior Secured Convertible Note (the “ Note ”) hereby sells, assigns and transfers unto the person or persons below named the right to receive the principal amount of $__________ from Aguono Limited, a limited company incorporated in the Republic of Ireland, evidenced by the attached Note and does hereby irrevocably constitute and appoint __________ attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises.

Dated:
_______________
 
Signature
     

Fill in for new registration of Note:

   
Name
 
   
   
Address
 
   
   
Please print name and address of assignee
 
(including zip code number)
 

NOTICE

The signature to the foregoing Assignment must correspond to the name as written upon the face of the attached Note in every particular, without alteration or enlargement or any change whatsoever.
 
Exhibit C

FORM OF OPINION

______, 20__

[___________]

Re:              Aguono Limited

Dear Sir:

[___________] (“[__________]”) intends to transfer its Senior Secured Convertible Note in the principal amount of $_______ (the “Note”) of the Company to __________ (“________”) without registration under the Securities Act of 1933, as amended (the “Securities Act”). In connection herewith, we have examined such documents and issues of law as we have deemed relevant.

Based on and subject to the foregoing, we are of the opinion that the transfer of the Note by _______ to ______ may be effected without registration under the Securities Act, provided, however, that the Note to be transferred to _______ contain a legend restricting its transferability pursuant to the Securities Act and that transfer of the Note is subject to a stop order.

The foregoing opinion is furnished only to ____________ and may not be used, circulated, quoted or otherwise referred to or relied upon by you for any purposes other than the purpose for which furnished or by any other person for any purpose, without our prior written consent.

Very truly yours,
 
Schedule 1

The “ Additional Share Coefficient ” shall mean the number of additional Ordinary Shares issuable per $1,000 of principal amount of the Note upon a Major Transaction and shall be the additional share number set forth on the chart with respect to the “Share Price Result” on the “y” axis and the corresponding “Remaining Note Life” on the “x” axis; provided , however , that to the extent the actual Share Price Result (as defined below) falls between two data points on the “y” axis and/or the actual date of the Major Transaction falls between two data points on the “x” axis, the “Additional Share Coefficient” shall be determined by calculating the arithmetic mean between (i) the result obtained for the Share Price Result based on the linear interpolation between the additional share numbers corresponding to the two Share Price Result data points and (ii) the result obtained for the Remaining Note Life based on the linear interpolation between the two additional share numbers corresponding to the two Remaining Note Life data points; and provided   further , however , that in the event of any adjustment to the Conversion Price pursuant to Section 2 of this Note, the numbers of additional Ordinary Shares issuable per $1,000 of principal amount of this Note as set forth in the chart below shall be deemed adjusted pro rata with any adjustment resulting from the adjustment to the Conversion Price that would be made to the number of Ordinary Shares then convertible with respect to $1,000 of principal amount of this Note as calculated under Section 2 of this Note. For purposes of the chart below, the “Share Price Result” shall be the greater of: (i) the last sales price of Ordinary Shares on NASDAQ, or, if that is not the principal trading market for Ordinary Shares, such principal market on which Ordinary Shares are traded or listed (the “ Closing Market Price ”) immediately prior to the consummation of the Major Transaction or (ii) in the case of a Major Transaction in which holders of Ordinary Shares receive solely cash consideration in connection with such major Transaction, the cash amount payable per share of Common Stock in such Major Transaction. If the actual Share Price Result is greater than $60 per share (subject to adjustment in the same manner as the Conversion Price as provided in Section 2 of this Note), or if the actual Shares Price Result is less than $5.00 per share (subject to adjustment in the same manner as the Conversion Price as provided in Section 2 of this Note), then the Additional Share Coefficient shall be equal to the amount applicable to $60 and $5, respectively.
 
Additional Shares per $1,000 Principal

Remaining Note Life (Yrs)
   
     
6
5
4
3
2
1
X
 
Y
               
Share Price Result ($)
                 
5.00
 
43.591
37.992
31.651
24.393
16.004
6.420
0
10.00
 
55.660
51.310
46.257
40.244
32.787
22.678
0
15.00
 
31.532
28.154
24.266
19.710
14.218
7.302
0
20.00
 
20.776
18.080
15.027
11.541
7.539
3.061
0
25.00
 
14.932
12.723
10.268
7.542
4.570
1.612
0
30.00
 
11.361
9.514
7.496
5.319
3.056
1.022
0
35.00
 
9.001
7.430
5.743
3.968
2.203
0.743
0
40.00
 
7.351
5.996
4.563
3.091
1.684
0.591
0
45.00
 
6.148
4.965
3.732
2.493
1.348
0.497
0
50.00
 
5.240
4.196
3.124
2.067
1.118
0.433
0
55.00
 
4.536
3.608
2.665
1.753
0.954
0.387
0
60.00
 
3.978
3.146
2.310
1.515
0.832
0.351
0
 
Exhibit A-2

SECURED PROMISSORY NOTE

______, ____, 2015

FOR VALUE RECEIVED, Aguono Limited (company number 561617), a private limited company incorporated in the Republic of Ireland (the “ Maker ”), by means of this Secured Promissory Note (this “ Note ”), hereby unconditionally promises to pay to _______________ (the “ Payee ”), a principal amount equal to the lesser of (a) Two Hundred Million Dollars ($200,000,000) and (b) the aggregate amount of Acquisition Loans allocated to the Payee pursuant to Section 2.3 of the Facility Agreement referenced below, in lawful money of the United States of America and in immediately available funds, on the dates provided in the Facility Agreement.

This Note is an “Acquisition Note” referred to in the Facility Agreement dated as of May ___, 2015 between the Maker, the Payee and the other parties thereto (as modified and supplemented and in effect from time to time, the “ Facility Agreement ”), with respect to an Acquisition Loan made by the Payee thereunder and is secured by all Collateral pursuant to the Security Documents. Capitalized terms used herein and not expressly defined in this Note shall have the respective meanings assigned to them in the Facility Agreement.

This Note shall bear interest on the principal amount hereof pursuant to the provisions of the Facility Agreement.

The Maker shall make all payments to the Payee of interest and principal under this Note in the manner provided in and otherwise in accordance with the Facility Agreement.

If an Event of Default has occurred and is continuing, this Note may in accordance with the applicable provisions of the Facility Agreement, become immediately due and payable.

All payments of any kind due to the Payee from the Maker pursuant to this Note shall be made in the full face amount thereof. Subject to the terms of the Facility Agreement, all such payments will be free and clear of, and without deduction or withholding for, any present or future taxes. The Maker shall pay all and any costs (administrative or otherwise) imposed by the Maker’s banks, clearing houses, or any other financial institution, in connection with making any payments hereunder.

The Maker shall pay all costs of collection, including, without limitation, all reasonable, legal expenses and attorneys’ fees, paid or incurred by the Payee in collecting and enforcing this Note.

Other than those notices required to be provided by Payee to Maker under the terms of the Facility Agreement, the Maker and every endorser of this Note, or the obligations represented hereby, expressly waives presentment, protest, demand, notice of dishonor or default, and notice of any kind with respect to this Note and the Facility Agreement or the performance of the obligations under this Note and/or the Facility Agreement. No renewal or extension of this Note or the Facility Agreement, no delay in the enforcement of payment of this Note or the Facility Agreement, and no delay or omission in exercising any right or power under this Note or the Facility Agreement shall affect the liability of the Maker or any endorser of this Note.
 
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No delay or omission by the Payee in exercising any power or right hereunder shall impair such right or power or be construed to be a waiver of any default, nor shall any single or partial exercise of any power or right hereunder preclude the full exercise thereof or the exercise of any other power or right. The provisions of this Note may be waived or amended only in a writing signed by the Maker and the Payee. This Note may not be prepaid in whole or in part, except in accordance with the provisions of the Facility Agreement.

This Note, and any rights of the Payee arising out of or relating to this Note, may, at the option of the Payee, be enforced by the Payee in the courts of the United States of America located in the State of Delaware or in any other courts having jurisdiction. For the benefit of the Payee, the Maker hereby irrevocably agrees that any legal action, suit or other proceeding arising out of or relating to this Note may be brought in the courts of the State of Delaware or of the United States of America for the District of Delaware, and hereby consents that personal service of summons or other legal process may be made as set forth in Section 6.1 of the Facility Agreement, which service the Maker agrees shall be sufficient and valid. The Maker hereby waives any and all rights to demand a trial by jury in any action, suit or other proceeding arising out of or relating to this Note or the transactions contemplated by this Note.

This Note shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts made and to be performed in such State.

[Signature page follows]
 
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IN WITNESS WHEREOF, an authorized representative of the Maker has executed this Note as of the date first written above.

 
GIVEN UNDER THE COMMON SEAL OF AGUONO LIMITED
       
 
By:
      
   
Name:
 
   
Title: Director
 

            
 
Exhibit 10.2
 
REGISTRATION RIGHTS AGREEMENT

REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of June 8, 2015, by and among Aguono Limited, a private limited company incorporated in the Republic of Ireland (the “Company”), and those lenders set forth on Schedule 1 to the Facility Agreement (as defined below) (each individually, a “Lender” and together, the “Lenders”).

WHEREAS:

A. In connection with the Facility Agreement by and among the parties hereto of even date herewith (the “Facility Agreement”), the Company has agreed, upon the terms and subject to the conditions contained therein, to issue and sell to the Lenders Convertible Notes (as defined below) in the amount described in the Facility Agreement, where each of the Convertible Notes is convertible into ordinary shares, nominal value $0.001per share, of the Company (the “Common Shares”), upon the terms and conditions and subject to the limitations and conditions set forth in the Convertible Notes, all subject to the terms and conditions of the Facility Agreement; and

B. To induce the Lenders to execute and deliver the Facility Agreement, the Company has agreed to provide certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the “Securities Act”), and applicable state securities laws,

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

1. DEFINITIONS.

a. As used in this Agreement, the following terms shall have the following meanings:

(i) “Additional Filing Deadline” means, with respect to any Registration Statements that may be required pursuant to Section 2(a)(ii), (a) the first date or time that such Registrable Securities may then be included in a Registration Statement if such Registration Statement is required because the SEC shall have notified the Company in writing that certain Registrable Securities were not eligible for inclusion on a previously filed Registration Statement, or (b) if such additional Registration Statement is required for a reason other than as described in (a) above, the tenth (10 th ) day following the date on which the Company first knows, or reasonably should have known, that such additional Registration Statement is required.

(ii) “Additional Registration Deadline” means, with respect to any additional Registration Statement(s) that may be required to be filed pursuant to Section 2(a)(ii), the thirtieth (30 th ) day following (a) the first date or time that such Registrable Securities may then be included in a Registration Statement if such Registration Statement is required because the SEC shall have notified the Company in writing that certain Registrable Securities were not eligible for inclusion on a previously filed Registration Statement, or (b) if such additional Registration Statement is required for a reason other than as described in (a) above, the fortieth (40 th ) day following the date on which the Company first knows, or reasonably should have known, that such additional Registration Statement(s) is required.

(iii) “Buyer” means any Lender and any transferee or assignee who agrees to become bound by the provisions of this Agreement in accordance with Section 10 hereof.

(iv) “Convertible Notes” means the Senior Secured Convertible Notes issued by the Company pursuant to the Facility Agreement.

(v) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, and any successor statute.
 
(vi) “Filing Deadline,” shall mean the forty-fifth (45 th ) calendar day following the date of issuance of the Convertible Notes in the case of the Registration Statement required to be filed under Section 2(a)(i), and, in the case of Section 2(a)(ii) shall mean the Additional Filing Deadline.

(vii) “Person” means and includes any natural person, partnership, joint venture, corporation, trust, limited liability company, limited company, joint stock company, unincorporated organization, government entity or any political subdivision or agency thereof, or any other entity.

(viii) “Register,” “Registered,” and “Registration” refer to a registration effected by preparing and filing a Registration Statement or Statements in compliance with the Securities Act and pursuant to Rule 415 under the Securities Act or any successor rule providing for offering securities on a continuous basis, and the declaration or ordering of effectiveness of such Registration Statement by the United States Securities and Exchange Commission (the “SEC”).

(ix) “Registrable Securities,” for a given Registration, means (a) any Common Shares (the “Conversion Shares”) issued or issuable upon conversion of or otherwise pursuant to the Convertible Notes (without giving effect to any limitations on conversion set forth in the Convertible Notes), (b) any shares of capital stock issued or issuable as a dividend on or in exchange for or otherwise with respect to any of the foregoing, (c) any additional Common Shares issuable in connection with any anti-dilution provisions in the Convertible Notes and (d) any securities issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing.

(x) “Registration Deadline” shall mean (i) forty-five (45) days after the Filing Deadline in the case of the Registration Statement required under Section 2(a)(i) , and (ii) the Additional Registration Deadline in the case of a Registration Statement required under Section 2(a)(ii) .

(xi) “Registration Statement(s)” means a registration statement(s) of the Company under the Securities Act required to be filed hereunder.

2. REGISTRATION.

a. MANDATORY REGISTRATION. (i) The Company shall prepare, and on or prior to the Filing Deadline (as defined above) file with the SEC a Registration Statement (the “Mandatory Registration Statement”) on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a registration of the Registrable Securities, subject to the consent of the Buyers, which consent will not be unreasonably withheld) covering the resale of the Registrable Securities which Registration Statement, to the extent allowable under the Securities Act and the rules and regulations promulgated thereunder (including Rule 416), shall state that such Registration Statement also covers such indeterminate number of additional Common Shares as may become issuable upon conversion of or otherwise pursuant to the Convertible Notes to prevent dilution resulting from stock splits, stock dividends, stock issuances or similar transactions. The number of Common Shares initially included in such Registration Statement shall be no less than the aggregate number of Conversion Shares that are then issuable upon conversion of or otherwise pursuant to the Convertible Notes, without regard to any limitation on the Buyers’ ability to convert the Convertible Notes. The Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and subject to the approval of) the Buyers and their counsel prior to its filing or other submission.

(ii) If for any reason the SEC does not permit all of the Registrable Securities to be included in the Registration Statement filed pursuant to Section 2(a)(i) above, or for any other reason any Registrable Securities are not then included in a Registration Statement filed under this Agreement, then the Company shall prepare, and, as soon as practicable but in no event later than the Additional Filing Deadline, file with the SEC an additional Registration Statement covering the resale of all Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415.

b. PIGGY-BACK REGISTRATIONS. If at any time prior to the expiration of the Registration Period (as hereinafter defined) the Company shall determine to file with the SEC a registration statement relating to an offering for its own account or the account of others under the Securities Act of any of its securities (other than debt securities or securities being registered on Form S-4 or Form S-8 or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with stock option or other employee benefit plans), the Company shall send to each Buyer written notice of such determination and, if within fifteen (15) days after the effective date of such notice, the Buyer shall so request in writing, the Company shall include in such Registration Statement all or any part of such Buyer’s Registrable Securities the requests to be registered, except that if, in connection with any underwritten public offering for the account of the Company, the managing underwriter(s) thereof shall impose a limitation on the number of Registrable Securities which may be included in the Registration Statement because, in such underwriter(s)’ judgment, marketing or other factors dictate such limitation is necessary to facilitate public distribution, then the Company shall be obligated to include in such Registration Statement only such limited portion of the Registrable Securities with respect to which the Buyer has requested inclusion hereunder as the underwriter shall permit;
 
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PROVIDED, HOWEVER , that the Company shall not exclude any Registrable Securities unless the Company has first excluded all outstanding securities, the holders of which are not entitled by contract to inclusion of such securities in such Registration Statement or are not entitled to pro rata inclusion with the Registrable Securities; and

PROVIDED, FURTHER, HOWEVER , that, after giving effect to the immediately preceding proviso, any exclusion of Registrable Securities shall be made pro rata with holders of other securities having the contractual right to include such securities in the Registration Statement other than holders of securities entitled to inclusion of their securities in such Registration Statement by reason of demand registration rights. No right to registration of Registrable Securities under this Section 2(b) shall be construed to limit any registration required under Section 2(a) hereof. If an offering in connection with which a Buyer is entitled to registration under this Section 2(b) is an underwritten offering, then such Buyer shall, unless otherwise agreed by the Company, offer and sell such Registrable Securities in an underwritten offering using the same underwriter or underwriters and, subject to the provisions of this Agreement, on the same terms and conditions as other Common Shares included in such underwritten offering. Notwithstanding anything to the contrary set forth herein, the registration rights of the Buyer pursuant to this Section 2(b) shall only be available in the event the Company fails to timely file, obtain effectiveness or maintain effectiveness of any Registration Statement to be filed pursuant to Section 2(a) in accordance with the terms of this Agreement.

3. OBLIGATIONS OF THE COMPANY. In connection with the registration of the Registrable Securities, the Company shall have the following obligations:

a.  The Company shall prepare promptly, and file with the SEC by the Filing Deadline, a Registration Statement with respect to the number of Registrable Securities provided in Section 2(a), and thereafter use its best efforts to cause each Registration Statement relating to Registrable Securities to become effective as soon as possible after such filing, but in any event shall cause each such Registration Statement relating to Registrable Securities to become effective no later than the Registration Deadline, and shall keep the Registration Statement current and effective pursuant to Rule 415 at all times until such date as is the earlier of (i) the date on which all of the Registrable Securities for such Registration Statement have been sold and (ii) the date on which all of the Registrable Securities for such Registration Statement (in the opinion of counsel to the Buyers) may be immediately sold to the public without registration or restriction (including without limitation as to volume by each holder thereof) under the Securities Act (the “Registration Period”), which Registration Statement (including any amendments or supplements thereto and prospectuses contained therein), except for information provided by a Buyer or any transferee of a Buyer pursuant to Section 4(a), shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein not misleading.

b.  The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to each Registration Statement and the prospectus used in connection with each Registration Statement as may be necessary to keep each Registration Statement current and effective at all times during the Registration Period, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by each Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in each Registration Statement. In the event that on any Trading Day (as defined below) (the “Registration Trigger Date”) the number of shares available under the Registration Statements filed pursuant to this Agreement is insufficient to cover all of the Registrable Securities issued or issuable upon conversion of the Convertible Notes or otherwise pursuant to the Convertible Notes, including, without limitation, any additional Common Shares issued in connection with any anti-dilution provisions contained in the Convertible Notes, without giving effect to any limitations on the Buyers’ ability to convert the Convertible Notes, the Company shall amend the Registration Statements, or file a new Registration Statement (on the short form available therefore, if applicable), or both, so as to cover the total number of Registrable Securities so issued or issuable (without giving effect to any limitations on conversion contained in the Convertible Notes) as of the Registration Trigger Date as soon as practicable, but in any event within twenty (20) days after the Registration Trigger Date (based on the Conversion Price (as defined in the Convertible Notes) of the Convertible Notes, and other relevant factors on which the Company reasonably elects to rely). The Company shall use its best efforts to cause such amendment and/or new Registration Statement to become effective as soon as practicable following the filing thereof, but in any event the Company shall cause such amendment and/or new Registration Statement to become effective within forty-five (45) days of the Registration Trigger Date or as promptly as practicable in the event the Company is required to increase its authorized shares. “Trading Day” shall mean any day on which the Common Shares are traded for any period on the NASDAQ Global Market, or on the principal securities exchange or other securities market on which the Common Shares is then being traded.
 
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c.  The Company shall furnish to each Buyer and its legal counsel (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment or supplement thereto, and, in the case of a Registration Statement referred to in Section 2(a), each letter written by or on behalf of the Company to the SEC or the staff of the SEC, and each item of correspondence from the SEC or the staff of the SEC, in each case relating to such Registration Statement (other than any portion of any thereof which contains information for which the Company has sought confidential treatment), and (ii) such number of copies of a prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents as a Buyer may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Buyer. The Company will immediately notify the Buyers by facsimile of the effectiveness of each Registration Statement or any post-effective amendment. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request as soon as practicable, but no later than three (3) business days, following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.

d.  The Company shall use its best efforts to (i) register and qualify, in any jurisdiction where registration and/or qualification is required, the Registrable Securities covered by the Registration Statements under such other securities or “blue sky” laws of such jurisdictions in the United States as the Buyers shall reasonably request, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions.

e.  As promptly as practicable after becoming aware of such event, the Company shall notify each Buyer of the happening of any event, of which the Company has knowledge, as a result of which the prospectus included in any Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and use its best efforts promptly to prepare a supplement or amendment to any Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Buyer as such Buyer may reasonably request.

f.  The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of any Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Buyer who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof.
 
4
g.  The Company shall permit a single firm of counsel designated by the Buyers to review such Registration Statement and all amendments and supplements thereto (as well as all requests for acceleration or effectiveness thereof), at Buyers’ own cost, a reasonable period of time prior to their filing with the SEC (not less than five (5) business days but not more than eight (8) business days) and not file any documents in a form to which such counsel reasonably objects and will not request acceleration of such Registration Statement without prior notice to such counsel.

h.  The Company shall hold in confidence and not make any disclosure of information concerning a Buyer provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning such Buyer is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Buyer prior to making such disclosure, and allow such Buyer, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.

i.  The Company shall use its best efforts to cause all the Registrable Securities covered by each Registration Statement to be listed on each securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange, and, if listed on a national exchange, to arrange for at least two market makers to register with the Financial Industry Regulatory Authority, Inc. (“FINRA”) as such with respect to such Registrable Securities.

j. The Company shall provide a transfer agent and registrar, which may be a single entity, for the Registrable Securities not later than the effective date of the initial Registration Statement.

k.  The Company shall cooperate with each Buyer who holds Registrable Securities being offered and the managing underwriter or underwriters with respect to an applicable Registration Statement, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to such Registration Statement and enable such certificates to be in such denominations or amounts, as the case may be, as the managing underwriter or underwriters, if any, or the Buyer may reasonably request and registered in such names as the managing underwriter or underwriters, if any, or the Buyer may request, and, within three (3) business days after a Registration Statement which includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and shall cause legal counsel selected by the Company to deliver, to the transfer agent for the Registrable Securities (with copies to each Buyer) an appropriate instruction and an opinion of such counsel in the form required by the transfer agent in order to issue the Registrable Securities free of restrictive legends.

l.  At the request of a Buyer, the Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to a Registration Statement and any prospectus used in connection with the Registration Statement as may be necessary in order to change the plan of distribution set forth in such Registration Statement.

m.  The Company shall not, and shall not agree to, allow the holders of any securities of the Company to include any of their securities in any Registration Statement under Section 2(a) hereof or any amendment or supplement thereto under Section 3(b) hereof without the consent of the Buyers. In addition, the Company shall not offer any securities for its own account or the account of others in any Registration Statement under Section 2(a) hereof or any amendment or supplement thereto under Section 3(b) hereof without the consent of the Buyers.

n.  The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Buyers of Registrable Securities pursuant to a Registration Statement.

o.  The Company shall comply with all applicable laws related to a Registration Statement and offering and sale of securities and all applicable rules and regulations of governmental authorities in connection therewith (including, without limitation, the Securities Act and the Exchange Act and the rules and regulations promulgated by the SEC).
 
5
p.  If required by the Financial Industry Regulatory Authority, Inc. Corporate Financing Department, the Company shall promptly effect a filing with FINRA pursuant to FINRA Rule 5110 with respect to the public offering contemplated by resales of securities under the Registration Statement (an “Issuer Filing”), and pay the filing fee required by such Issuer Filing. The Company shall use commercially reasonable efforts to pursue the Issuer Filing until FINRA issues a letter confirming that it does not object to the terms of the offering contemplated by the Registration Statement.

4. OBLIGATIONS OF THE BUYER. In connection with the registration of the Registrable Securities, each Buyer shall have the following obligations:

a.  It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of a Buyer that such Buyer shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be reasonably required to effect the registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company may reasonably request. At least five (5) business days prior to the first anticipated filing date of a Registration Statement, the Company shall notify each Buyer of the information the Company requires from such Buyer. Any such information shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein not misleading.

b.  Each Buyer, by such Buyer’s acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of a Registration Statement hereunder, unless such Buyer has notified the Company in writing of the Buyer’s election to exclude all of the Buyer’s Registrable Securities from such Registration Statement.

c.  In the event of an underwritten offering pursuant to Section 2(b) in which any Registrable Securities are to be included, the Buyer agrees to enter into and perform the Buyer’s obligations under an underwriting agreement, in usual and customary form, including, without limitation, customary indemnification and contribution obligations, with the managing underwriter of such offering and take such other actions as are reasonably required in order to expedite or facilitate the disposition of the Registrable Securities, unless the Buyer has notified the Company in writing of the Buyer’s election to exclude all of the Buyer’s Registrable Securities from such Registration Statement.

d.  Each Buyer agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(e) or 3(f), the Buyer will immediately discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until the Buyer’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3(e) or 3(f) and, if so directed by the Company, the Buyer shall deliver to the Company (at the expense of the Company) or destroy (and deliver to the Company a certificate of destruction) all copies in the Buyer’s possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice.

5. REGISTRATION FAILURE. In the event of a Registration Failure (as defined in the Convertible Notes), the Buyers shall be entitled to the payments provided in the Convertible Notes and such other rights as they may have under the Facility Agreement, the Convertible Notes and hereunder.

6. EXPENSES OF REGISTRATION. All reasonable expenses, other than underwriting discounts and commissions, incurred in connection with registrations, filings or qualifications pursuant to Sections 2 and 3, including, without limitation, all registration, listing and qualification fees, printers and accounting fees, and the fees and disbursements of counsel for the Company shall be borne by the Company.

7. INDEMNIFICATION. In the event any Registrable Securities are included in a Registration Statement under this Agreement:
 
6
a.  The Company will indemnify, hold harmless and defend (i) each Buyer, (ii) the directors, officers, partners, managers, members, employees, agents and each Person who controls any Buyer within the meaning of the Securities Act or the Exchange Act, if any, (iii) any underwriter (as defined in the Securities Act) for each Buyer in connection with an underwritten offering pursuant to Section 2(b) hereof, and (iv) the directors, officers, partners, employees and each Person who controls any such underwriter within the meaning of the Securities Act or the Exchange Act, if any (each, an “Indemnified Person”), against any joint or several losses, claims, damages, liabilities or expenses (collectively, together with actions, proceedings or inquiries by any regulatory or self-regulatory organization, whether commenced or threatened, in respect thereof, “Claims”) to which any of them may become subject insofar as such Claims arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in a Registration Statement or the omission or alleged omission to state therein a material fact required to be stated or necessary to make the statements therein not misleading; (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus if used prior to the effective date of such Registration Statement, or contained in the final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in light of the circumstances under which the statements therein were made, not misleading; or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other law, including, without limitation, any state securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities (the matters in the foregoing clauses (i) through (iii) being, collectively, “Violations”). The Company shall reimburse the Indemnified Person, promptly as such expenses are incurred and are due and payable, for any reasonable legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 7(a) shall not apply to a Claim arising out of or based upon a Violation to the extent that such Violation occurs in reliance upon and in conformity with information furnished in writing to the Company by any Indemnified Person for use in connection with the preparation of such Registration Statement or any such amendment thereof or supplement thereto. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Person and shall survive the transfer of the Registrable Securities by the Buyer pursuant to Section 10.
 
b.  Promptly after receipt by an Indemnified Person under this Section 7 of notice of the commencement of any action (including any governmental action), such Indemnified Person shall, if a Claim in respect thereof is to be made against the Company under this Section 7, deliver to the Company a written notice of the commencement thereof, and the Company shall have the right to participate in, and, to the extent the Company so desires, to assume control of the defense thereof with counsel mutually satisfactory to the Company and the Indemnified Person, as the case may be.

PROVIDED, HOWEVER , that an Indemnified Person shall have the right to retain its own counsel with the reasonable fees and expenses to be paid by the Company, if, in the reasonable opinion of counsel for the Buyer, the representation by such counsel of the Indemnified Person and the Company would be inappropriate due to actual or potential differing interests between such Indemnified Person and any other party represented by such counsel in such proceeding. The Company shall pay for only one separate legal counsel for the Indemnified Persons, and such legal counsel shall be selected by Buyers. The failure to deliver written notice to the Company within a reasonable time of the commencement of any such action shall not relieve the Company of any liability to the Indemnified Person under this Section 7, except to the extent that the Company is actually prejudiced in its ability to defend such action. The indemnification required by this Section 7 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as such expense, loss, damage or liability is incurred and is due and payable.

c.  Each Buyer will indemnify, hold harmless and defend (i) the Company, and (ii) the directors, officers, partners, managers, members, employees, or agents of the Company, if any (each, a “Company Indemnified Person”), against any joint or several losses, claims, damages, liabilities or expenses (collectively, together with actions, proceedings or inquiries by any regulatory or self-regulatory organization, whether commenced or threatened, in respect thereof, “Indemnity Claims”) to which any of them may become subject insofar as such Claims arise out of or are based upon any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other law, including, without limitation, any state securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities, which occurs due to the inclusion by the Company in a Registration Statement of false or misleading information about a Buyer, where such information was furnished in writing to the Company by such Buyer for the purpose of inclusion in such Registration Statement. Notwithstanding anything herein to the contrary, the indemnity agreement contained in this Section 7(c) shall not apply to amounts paid in settlement of any Indemnity Claim if such settlement is effected without the prior written consent of the Buyers which consent shall not be unreasonably withheld or delayed; and provided, further, however, that a Buyer shall be liable under this Section 7(c) for only that amount of an Indemnity Claim as does not exceed the net amount of proceeds received by such Buyer as a result of the sale of Registrable Securities pursuant to such Registration Statement.
 
7
d.  Promptly after receipt by a Company Indemnified Person under this Section 7 of notice of the commencement of any action (including any governmental action), such Company Indemnified Person shall, if an Indemnity Claim in respect thereof is to be made against a Buyer under this Section 7, deliver to such Buyer a written notice of the commencement thereof, and such Buyer shall have the right to participate in, and, to the extent such Buyer so desires, to assume control of the defense thereof with counsel mutually satisfactory to such Buyer and the Company Indemnified Person, as the case may be.

8. CONTRIBUTION. To the extent any indemnification by the Company is prohibited or limited by law, the Company agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 7 to the fullest extent permitted by law, based upon a comparative fault standard.

9. REPORTS UNDER THE 1934 ACT. With a view to making available to the Buyers the benefits of Rule 144 promulgated under the Securities Act or any other similar rule or regulation of the SEC that may at any time permit the Buyers to sell securities of the Company to the public without registration the Company agrees to:

a.  make and keep public information available, as those terms are understood and defined in Rule 144;

b.  file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and

c.  so long as the Buyers own Registrable Securities, promptly upon request, furnish to the Buyers (i) a written statement by the Company that it has complied with the reporting requirements of the Securities Act and the Exchange Act as required for applicable provisions of Rule 144, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company and (iii) such other information as may be reasonably requested to permit the Buyers to sell such securities pursuant to Rule 144 without registration.

10. ASSIGNMENT OF REGISTRATION RIGHTS. The rights under this Agreement shall be automatically assignable by each Buyer to any transferee of all or any portion of the Registrable Securities if: (i) the Buyer agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company within a reasonable time after such assignment, (ii) the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of (a) the name and address of such transferee or assignee, and (b) the securities with respect to which such registration rights are being transferred or assigned, and (iii) at or before the time the Company receives the written notice contemplated by clause (ii) of this sentence, the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein. In the event that a Buyer transfers all or any portion of its Registrable Securities pursuant to this Section, the Company shall have at least ten (10) days to file any amendments or supplements necessary to keep a Registration Statement current and effective pursuant to Rule 415, and the commencement date of any Event of Default (as defined in the Convertible Notes) under the Convertible Notes caused thereby will be extended by ten (10) days.

11. AMENDMENT OF REGISTRATION RIGHTS. Provisions of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with written consent of the Company and the holders of a majority in interest of then-outstanding Registrable Securities. Any amendment or waiver effected in accordance with this Section 11 shall be binding upon each of the Buyers and the Company.

12. MISCELLANEOUS.

a.  A Person is deemed to be a holder of Registrable Securities whenever such Person owns of record or beneficially through a “street name” holder such Registrable Securities. If the Company receives conflicting instructions, notices or elections from two or more Persons with respect to the same Registrable Securities, the Company shall act upon the basis of instructions, notice or election received from the registered owner of such Registrable Securities.
 
8
b.  Any notices required or permitted to be given under the terms hereof shall be sent by certified or registered mail (return receipt requested) or delivered personally or by courier (including a recognized overnight delivery service) or by facsimile and shall be effective five days after being placed in the mail, if mailed by regular United States mail, or upon receipt, if delivered personally or by courier (including a recognized overnight delivery service) or by facsimile, in each case addressed to a party. The addresses for such communications shall be:

If to the Company:

Aguono Limited
c/o Pozen, Inc.
1414 Raleigh Road, Suite 400
Chapel Hill, NC 27517
Fax: (919) 490-5552
Attn: Adrian Adams

With copy to:

DLA Piper LLP (US)
51 John F. Kennedy Parkway, Suite 120
Short Hills, New Jersey 07098-2704
Fax: (973) 520-2573
Attn: Andrew Gilbert, Esq.

If to a Buyer:

c/o Deerfield Mgmt, L.P.
780 Third Avenue, 37 th Floor
New York, New York 10017
Fax: (646) 536-5662
Attn: David J. Clark

With a copy to:

Katten Muchin Rosenman LLP
575 Madison Avenue
New York, New York 10022
Fax: (212) 940-8776
Attn: Mark I. Fisher, Esq.
Elliot Press, Esq.

Each party shall provide notice to the other party of any change in address.

c.  Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof.

d.  Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. The parties hereby waive all rights to a trial by jury. If either party shall commence an action or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
 
9
e.  This Agreement, the Convertible Notes and the Facility Agreement (including all schedules and exhibits thereto) constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein and therein. This Agreement, the Convertible Notes and the Facility Agreement supersede all prior agreements and understandings among the parties hereto with respect to the subject matter hereof and thereof.

f.  Subject to the requirements of Section 10 hereof, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto, and the provisions of Sections 7 and 8 hereof shall inure to the benefit of, and be enforceable by, each Indemnified Person and Company Indemnified Person (as applicable).

g.  The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

h.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same agreement. This Agreement, once executed by a party, may be delivered to the other party hereto by facsimile or other electronic transmission of a copy of this Agreement bearing the signature of the party so delivering this Agreement.

i.  Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.

j.  The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyers by vitiating the intent and purpose of the transactions contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for breach of its obligations hereunder will be inadequate and agrees, in the event of a breach or threatened breach by the Company of any of the provisions hereunder, that the Buyers shall be entitled, in addition to all other available remedies in law or in equity, to an injunction or injunctions to prevent or cure breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof, without the necessity of showing economic loss and without any bond or other security being required.

k.  The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.

l.  In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof.
 
10
m.  In the event a Buyer shall sell or otherwise transfer any of such holder’s Registrable Securities, each transferee shall be allocated a pro rata portion of the number of Registrable Securities included in a Registration Statement for such transferor.

n.  There shall be no oral modifications or amendments to this Agreement. This Agreement may be modified or amended only in writing.

[Remainder of page left intentionally blank]

[Signature page follows]
 
11
IN WITNESS WHEREOF, the undersigned Buyers and the Company have caused this Registration Rights Agreement to be duly executed as of the date first written above.

COMPANY:
 
BUYERS:
     
AGUONO LIMITED
 
DEERFIELD PRIVATE DESIGN FUND III, L.P.
     
By:
/s/ William L. Hodges  
By: Deerfield Mgmt III, L.P., General Partner
Name:
William L. Hodges  
By: J.E. Flynn Capital III, LLC, General Partner
Title:
Director    
   
By:
/s/ David J. Clark
   
Name:
David J. Clark
   
Title:
Authorized Signatory
     
     
   
DEERFIELD INTERNATIONAL MASTER FUND, L.P.
     
   
By: Deerfield Mgmt, L.P., General Partner
   
By: J.E. Flynn Capital, LLC, General Partner
     
   
By:
/s/ David J. Clark
   
Name:
David J. Clark
   
Title:
Authorized Signatory
     
     
   
DEERFIELD PARTNERS, L.P.
     
   
By: Deerfield Mgmt, L.P., General Partner
   
By: J.E. Flynn Capital, LLC, General Partner
     
   
By:
/s/ David J. Clark
   
Name:
David J. Clark
   
Title:
Authorized Signatory
 
 
[Signature Page to Registration Rights Agreement]
 
 
Exhibit 10.3
 
EXECUTION COPY

SHARE SUBSCRIPTION AGREEMENT

by and among

AGUONO LIMITED,

TRIBUTE PHARMACEUTICALS CANADA INC.,

POZEN INC.,

QLT INC.

and

THE OTHER CO-INVESTORS IDENTIFIED
ON SCHEDULE I HERETO

_______________

Dated as of June 8, 2015
 
TABLE OF CONTENTS
 
  Page
 
ARTICLE I DEFINITIONS
2
       
 
1.1
Certain Definitions.
2
       
 
1.2
Terms Defined Elsewhere in this Agreement.
3
       
 
1.3
Other Definitional and Interpretive Matters.
4
       
ARTICLE II SUBSCRIPTION FOR SHARES; SUBSCRIPTION PRICE; INVESTMENT CLOSING
5
       
 
2.1
Subscription for Shares.
5
       
 
2.2
Payment of Subscription Price; Allotment of Shares.
6
       
 
2.3
Investment Closing.
6
       
 
2.4
Tribute Deliveries.
6
       
 
2.5
Pozen Deliveries.
6
       
 
2.6
Co-Investor Deliveries.
6
       
 
2.7
Company Deliveries.
7
       
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY; TRIBUTE; POZEN
7
       
 
3.1
Representations and Warranties of the Company.
7
       
 
3.2
Representations and Warranties of Pozen.
9
       
 
3.3
Representations and Warranties of Tribute.
11
       
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE CO-INVESTORS
12
       
 
4.1
Representations and Warranties of the Co-Investors.
12
       
ARTICLE V COVENANTSAND AGREEMENTS
15
       
 
5.1
Furnishing Information.
15
       
 
5.2
Filings; Commercially Reasonable Efforts; Notification.
16
       
 
5.3
NASDAQ and TSX Listing.
16
       
 
5.4
Further Assurances.
17
 
TABLE OF CONTENTS
(continued)
  Page
 
 
5.5
Advice of Changes.
17
       
 
5.6
Governance Matters.
18
       
 
5.7
Re-registration as a Public Limited Company..
18
       
 
5.8
Cooperation.
18
       
 
5.9
Equal Treatment of Purchaser and the Investors.
19
       
 
5.10
Investors’ Registration Rights.
19
       
 
5.11
Purchaser’s Registration Rights.
19
       
ARTICLE VI CONDITIONS TO INVESTMENT CLOSING
19
       
 
6.1
Mutual Conditions.
19
       
 
6.2
Co-Investor’s Conditions.
20
       
 
6.3
Company’s Conditions.
21
       
ARTICLE VII TERMINATION
21
       
 
7.1
Termination.
21
       
 
7.2
Procedure Upon Termination.
22
       
 
7.3
Effects of Termination.
23
       
ARTICLE VIII MISCELLANEOUS
23
       
 
8.1
Survival.
23
       
 
8.2
Expenses.
23
       
 
8.3
Counterparts; Effectiveness.
23
       
 
8.4
Governing Law.
24
       
 
8.5
Jurisdiction; Specific Enforcement.
24
       
 
8.6
WAIVER OF JURY TRIAL.
24
       
 
8.7
Notices.
24
       
 
8.8
Assignment; Binding Effect.
26
       
 
8.9
Severability.
27
 
ii
TABLE OF CONTENTS
(continued)
  Page
 
 
8.10
Independent Legal and Investment Advice.
27
       
 
8.11
Entire Agreement.
27
       
 
8.12
Amendments; Waivers.
27
       
 
8.13
Headings.
27
       
 
8.14
No Third-Party Beneficiaries.
28
       
 
8.15
Obligations of the Co-Investors and the Company.
28

SCHEDULE I Schedule of Co-Investors
ANNEX A Investors’ Registration Rights
ANNEX B Purchaser’s Registration Rights
 
iii
SHARE SUBSCRIPTION AGREEMENT

This SHARE SUBSCRIPTION AGREEMENT , dated June 8, 2015 (the “ Agreement ”), is by and among QLT Inc., a corporation existing under the laws of the Province of British Columbia, Canada (“ Purchaser ”), Tribute Pharmaceuticals Canada Inc., a corporation existing under the laws of the Province of Ontario, Canada (“ Tribute ”), POZEN Inc., a Delaware corporation (“ Pozen ”), Aguono Limited, a private limited company incorporated in Ireland with registered number 561617 having its registered office at 25-28 North Wall Quay, Dublin 1, Ireland (the “ Company ”) and, other than Purchaser, the Persons identified on Schedule I hereto (each an “ Investor ” and together, the “ Investors ”).

W I T N E S S E T H:

WHEREAS , Tribute and Pozen wish to enter into a business combination transaction (the “ Mergers ”), pursuant to the terms of the Merger Agreement described below;

WHEREAS , the Mergers will be effected in accordance with that certain Agreement and Plan of Merger and Arrangement, dated as of the date hereof (the “ Merger Agreement ”), by and among Tribute, Pozen, ARLZ US Acquisition Corp., a Delaware corporation (“ Merger Sub One ”), ARLZ CA Acquisition Corp., an Ontario, Canada corporation (“ Merger Sub Two ”), Trafwell Limited, a private limited company incorporated in Ireland, and the Company, pursuant to which (i) Merger Sub One will merge with and into Pozen (the “ Pozen Merger ”), with Pozen continuing as the surviving corporation of the Pozen Merger and as a wholly-owned indirect subsidiary of the Company, and (ii) Merger Sub Two will acquire the outstanding shares of Tribute (the “ Tribute Merger ” and together with the Pozen Merger, the “ Mergers ”), with Tribute continuing as a wholly-owned indirect subsidiary of the Company;

WHEREAS , prior to the effective time of the Mergers the Company shall re-register as a public limited company incorporated in Ireland and be renamed as Aralez Pharmaceuticals Ltd.;

WHEREAS , Purchaser, together with the Investors (collectively, the “ Co-Investors ”), have agreed to provide capital to the Company in support of the Mergers;

WHEREAS , in furtherance of the foregoing, the Company desires to allot and issue to the Co-Investors, and the Co-Investors desire to subscribe for, 10,416,667 ordinary shares of the Company, par value $0.001 (the “ Shares ”) for the Subscription Price (as hereinafter defined) set forth in, and in accordance with the other provisions of, this Agreement;

WHEREAS , following its subscription for its portion of the Shares, Purchaser will cause such securities to be distributed to its shareholders pursuant to a special election distribution (allowing Purchaser’s shareholders to receive such securities or cash, subject to possible proration) (the “ Distribution ”) and the Company has agreed to register such Distribution under the Securities Act and to file and obtain a receipt for the Canadian Preliminary Prospectus and the Canadian Final Prospectus (all as defined below);

WHEREAS , the Company has agreed to grant the Investors and Purchaser the registration rights provided for herein;
 
WHEREAS , prior to the effectiveness of the Mergers, the Company will re-register as a public limited company;

WHEREAS , certain terms used in this Agreement are defined in Section 1.1 ;

NOW, THEREFORE , in consideration of the premises and the mutual covenants and agreements hereinafter contained, the parties hereby agree as follows:

ARTICLE I

DEFINITIONS

1.1              Certain Definitions . Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the Merger Agreement.

In addition, for purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.1 :

“ Canadian Securities Laws ” means all applicable Canadian securities laws, rules, regulations, notices, instruments, blanket orders and policies in the Canadian Qualifying Provinces.

“ Commission ” means the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act.

“ Investor Shares ” means the number of Shares set forth opposite each Investor’s name under the heading “Shares on Schedule I hereto. For the avoidance of doubt, Investor Shares shall not include Purchaser Shares.

“ Isotope ” means InSite Vision Incorporated.

“ NASDAQ ” means the NASDAQ Global Select Market.

“ Purchaser Common Shares ” means the common shares, without par value, of Purchaser.

“ Purchaser Isotope Merger ” means the merger contemplated by the Purchaser Isotope Merger Agreement.

“ Purchaser Isotope Merger Agreement ” means that certain Agreement and Plan of Merger, dated as of the date hereof, by and among Purchaser, a newly formed, wholly-owned subsidiary of Purchaser and Isotope.

“ Purchaser Meeting ” means the meeting of the holders of the Purchaser Common Shares, and any postponement or adjournment thereof, at which the holders of the Purchaser Common Shares will be asked to vote, among other things, on the Distribution being effected by way of a reduction in paid-up capital of their Purchaser Common Shares, and/or a plan or arrangement regarding the same.
 
2
“ Purchaser Proxy Statement ” means the proxy statement of Purchaser to be furnished to the holders of the Purchaser Common Shares in connection with the Purchaser Meeting.

“ Purchaser S-4 ” means the registration statement on Form S-4 of Purchaser that, among other things, effects the registration under the Securities Act of the Purchaser Common Shares to be issued in connection with the Purchaser/Isotope Merger.

“ Purchaser Shares ” means the number of Shares set forth opposite Purchaser’s name under the heading “Shares” on Schedule I hereto. For the avoidance of doubt, Purchaser Shares shall not include Investor Shares.

“ Securities Act ” means the Securities Act of 1933, as amended, or any successor Law thereto, and the rules and regulations issued pursuant to that statute or any successor Law.

“ TSX ” means the Toronto Stock Exchange.

1.2              Terms Defined Elsewhere in this Agreement . For purposes of this Agreement, the following terms have meanings set forth in the sections indicated:

Term
Section
   
Agreement
Preamble
Canadian Commissions
Annex B
Canadian Final Prospectus
Annex B
Canadian Final Receipt
Annex B
Canadian Passport System
Annex B
Canadian Preliminary Prospectus
Annex B
Canadian Preliminary Receipt
Annex B
Canadian Prospectus
Annex B
Canadian Prospectus Expenses
Annex B
Canadian Qualifying Provinces
Annex B
Co-Investors
Recitals
Co-Investors’ Disclosure Schedule
ARTICLE IV
Company
Preamble
Confidentiality Agreements
5.1(b)
Consents
5.2(a)
Distribution
Recitals
Investment Closing
2.3
Investment Closing Date
2.3
Investors
Preamble
Investor Prospectus
Annex A
Investor Registration Expenses
Annex A
Investor Registration
Annex A
Investor Registration Statement
Annex A
Losses
1.2(f)
Mergers
Recitals

 
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Term
Section
   
Merger Agreement
Recitals
Merger Closing Conditions
6.1(d)
NewCo
Preamble
Pozen
Preamble
Pozen Merger
Recitals
Pozen SEC Documents
3.2(c)
Prospectus
Annex B
Purchaser
Preamble
register, registered, registration
Annex A
Registrable Securities
Annex A
Registration
Annex B
Registration Expenses
Annex B
Registration Statement
Annex B
Selling Expenses
Annex A
Share Price
2.1(b)
Shares
Recitals
Subscription Price
2.1(c)
Transfer Agent
2.2(b)
Tribute
Preamble
Tribute Merger
Recitals
Tribute SEC Documents
3.3(c)

1.3              Other Definitional and Interpretive Matters .

(a)              Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply:

Calculation of Time Period . When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day.

Dollars . Any reference in this Agreement to $ shall mean U.S. dollars.

Schedules and Annexes . The Schedules and Annexes to this Agreement are hereby incorporated and made a part hereof and are an integral part of this Agreement. All Schedules and Annexes annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule or Annex but not otherwise defined therein shall be defined as set forth in this Agreement.

Gender and Number . Any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa.
 
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Headings . The provision of a Table of Contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement. All references in this Agreement to any “Section” are to the corresponding Section of this Agreement unless otherwise specified.

Herein . The words such as “ herein ,” “ hereinafter ,” “ hereof ,” and “ hereunder ” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires.

Including . 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.

(b)              The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted 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 provision of this Agreement.

ARTICLE II

SUBSCRIPTION FOR SHARES; SUBSCRIPTION PRICE; INVESTMENT CLOSING

2.1              Subscription for Shares .

(a)              Subject to the terms and conditions hereof, at the Investment Closing, each Co-Investor hereby agrees to subscribe for the Shares set forth opposite such Co-Investor’s name on Schedule I hereto.

(b)              Subject to the terms and conditions hereof, at the Investment Closing, the Company will allot and issue to each Co-Investor the Shares set forth opposite such Co-Investor’s name on Schedule I hereto.

(c)              Subject to the terms and conditions hereof, at the Investment Closing, the Board of the Company will approve the allotment and issue to each Co-Investor of the Shares set forth opposite such Co-Investor’s name on Schedule I hereto, procure that the Company's register of members is written up to reflect the allotment and issue share certificates to the Co-Investors.

(d)              The aggregate amount that each Co-Investor will pay to the Company for the Shares it subscribes for hereunder shall be set forth opposite such Co-Investor’s name under the heading “Subscription Price” on Schedule I hereto (with respect to each Co-Investor, the “ Subscription Price ”).
 
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2.2              Payment of Subscription Price; Allotment of Shares .

(a)              At the Investment Closing, each Co-Investor shall pay its respective Subscription Price to the Company by wire transfer of immediately available funds into an account designated in writing by the Company not less than three Business Days prior to the Investment Closing Date.

(b)              At the Investment Closing, the Company will instruct its transfer agent (the “ Transfer Agent ”) to deliver that number of the Shares set forth opposite each Co-Investor’s name on Schedule I to such Co-Investor in certificate form, in each case registered in the name of such Co-Investor.

2.3              Investment Closing . Subject to the satisfaction or waiver of the conditions set forth in ARTICLE VI (other than conditions that by their nature are to be satisfied at the Investment Closing, but subject to the satisfaction or waiver of those conditions at such time), the consummation of the allotment and issue of the Shares provided for in Section 2.1 hereof (the “ Investment Closing ”) shall occur concurrently with and at the same location as the Closing under the Merger Agreement. The date the Investment Closing occurs is referred to as the “ Investment Closing Date ”.

2.4              Tribute Deliveries . At the Investment Closing, subject to the terms and conditions hereof, Tribute shall deliver, or cause to be delivered, to each Co-Investor:

(a)              copies of resolutions, certified by the Secretary of Tribute, as to the authorization by Tribute of this Agreement and all of the transactions contemplated hereby;

(b)              a certificate in form and substance reasonably satisfactory to each Co-Investor, dated the Investment Closing Date and signed by the Chief Executive Officer of Tribute, stating that the conditions set forth in Sections 6.2(a) and 6.2(b) hereof (as they relate to Tribute) and the conditions set forth in Sections 8.1 (as they relate to Tribute) and 8.2 of the Merger Agreement have been satisfied and/or complied with by Tribute; and

(c)              such other documents as Purchaser shall reasonably request.

2.5              Pozen Deliveries . At the Investment Closing, subject to the terms and conditions hereof, Pozen will deliver, or cause to be delivered, to each Co-Investor:

(a)              copies of resolutions, certified by the Secretary of Pozen, as to the authorization by Pozen of this Agreement and all of the transactions contemplated hereby; and

(b)              a certificate in form and substance reasonably satisfactory to each Co-Investor, dated the Investment Closing Date and signed by the Chief Executive Officer of Pozen, stating that the conditions set forth in Sections 6.2(a) and 6.2(b) hereof (as they relate to Pozen) and the conditions set forth in Sections 8.1 (as they relate to Pozen) and 8.3 of the Merger Agreement have been satisfied and/or complied with by Pozen.

2.6              Co-Investor Deliveries . At the Investment Closing, subject to the terms and conditions hereof, each Co-Investor will deliver, or cause to be delivered, to the Company:
 
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(a)              payment to the Company of such Co-Investor’s respective Subscription Price by wire transfer of immediately available funds to an account designated by the Company in writing at least three Business Days prior to the Investment Closing Date;

(b)              a cross-receipt executed by each Co-Investor and delivered to the Company certifying that it has received the Shares set forth opposite such Co-Investor’s name on Schedule I hereto as of the Investment Closing Date;

(c)              copies of resolutions, certified by an authorized signatory of such Co-Investor, as to the authorization by such Co-Investor of this Agreement and all of the transactions contemplated hereby; and

(d)              a certificate in form and substance reasonably satisfactory to the Company, dated the Investment Closing Date and signed by an authorized signatory of such Co-Investor, stating that the conditions in Sections 6.3(a) and 6.3(b) hereof have been satisfied and/or complied with by each Co-Investor.

2.7              Company Deliveries . At the Investment Closing, subject to the terms and conditions hereof, the Company shall deliver, or cause to be delivered, to each Co-Investor:

(a)              the Shares as set forth in Section 2.2(b) hereof, in certificate form, in each case registered in the name of such Co-Investor, which Shares shall be free and clear of any Liens; and

(b)              a cross-receipt, executed by the Company and delivered to each Co-Investor certifying that it has received the Subscription Price from such Co-Investor as of the Investment Closing Date.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY; TRIBUTE; POZEN

3.1              Representations and Warranties of the Company . In order to induce the Co-Investors to enter into this Agreement, the Company, Tribute and Pozen represent and warrant to each Co-Investor as follows:

(a)              Corporate Existence; Authority .

(i)              The Company is a private limited company duly incorporated and validly existing under the Laws of Ireland. The Company has the corporate power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted.

(ii)              The Company has the corporate power and authority to enter into, execute and deliver this Agreement, to perform its obligations under this Agreement, and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized and validly approved by the Board of the Company. The Board of the Company has determined that this Agreement is advisable to and is in the best interests of the Company and its shareholders and no other corporate proceedings on the part of the Company are necessary to approve this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Company and (assuming the due authorization, execution and delivery by each of the Co-Investors, Pozen and Tribute) constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and to general principles of equity).
 
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(b)              Valid Issuance . The Shares to be issued pursuant to this Agreement will, when issued, allotted and delivered in accordance with the terms of this Agreement for the consideration expressed herein, be duly and validly issued and, at the Investment Closing, all such Shares will be fully paid and free of preemptive rights, with no personal liability attaching to the ownership thereof, and will be free and clear of all Liens.

(c)              Conflicts; Consents and Approvals . Neither the execution and delivery of this Agreement by the Company nor the consummation of the transactions contemplated by this Agreement will:

(i)              conflict with, or result in a breach of, any provision of the Memorandum and Articles of Association of the Company;

(ii)              violate, or conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with the giving of notice, the passage of time or otherwise, would constitute a default) under, or entitle any party (with the giving of notice, the passage of time or otherwise) to terminate, accelerate, adversely modify or call a default under, or result in the creation of any Liens upon any of the properties or assets of the Company or any of its Subsidiaries under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, contract, undertaking, agreement, lease or other instrument or obligation to which the Company or any of its Subsidiaries is a party;

(iii)              violate any Laws applicable to the Company or any of its Subsidiaries or any of their respective properties or assets; or

(iv)              require any action or consent or approval of, or review by, other than registrations or other actions required under federal and state securities Laws and the Canadian Securities Laws as are contemplated by this Agreement or any post-closing notice filings required under applicable United States federal or state securities laws.

(d)              Private Placement . Assuming that the representations of each Co-Investor set forth in Section 4.1(c) are true and correct, the initial allotment and issuance of the Shares in conformity with the terms of this Agreement are exempt from both (i) the registration requirements of Section 5 of the Securities Act and (ii) the prospectus requirements of the Canadian Securities Laws, and neither the Company nor any authorized agent acting on its behalf will take any action hereafter that would cause the loss of such exemptions. Neither the Company nor, to the Company’s knowledge, any person acting on behalf of the Company has offered or sold any of the Shares by any form of “general solicitation” or “general advertising”, as such terms are used in Rule 502(c) of Regulation D under the Securities Act.
 
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(e)              Registration Statement and Investor Registration Statement . None of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in the Registration Statement or the Investor Registration Statement to be filed with the Commission by the Company under the Securities Act at the time the Registration Statement or Investor Registration Statement becomes effective will contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made by the Company with respect to statements made or incorporated by reference therein based on written information supplied by Purchaser expressly for inclusion or incorporation by reference in the Registration Statement or the Investors expressly for inclusion or incorporation by reference in the Investor Registration Statement). Each of the Registration Statement, except for such portions thereof that relate only to Purchaser and its Subsidiaries, and the Investor Registration Statement, except for such portions thereof that relate only to Investors, will comply as to form in all material respects with the provisions of the Securities Act.

(f)              The Company has provided Purchaser with true, correct and complete copies of the Merger Agreement and any annexes, exhibits, schedules (including disclosure schedules) thereto.

3.2              Representations and Warranties of Pozen . In order to induce the Co-Investors to enter into this Agreement, Pozen represents and warrants to each Co-Investor as follows:

(a)              Corporate Existence; Authority .

(i)              Pozen is a corporation validly existing and in good standing under the Laws of the jurisdiction of its organization. Pozen has the corporate power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted.

(ii)              Pozen has the corporate power and authority to enter into, execute and deliver this Agreement, to perform its obligations under this Agreement, and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized and validly approved by the Board of Pozen and no other corporate proceedings on the part of Pozen are necessary to approve this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Pozen and (assuming the due authorization, execution and delivery by each of the Co-Investors and Tribute) constitutes the valid and binding obligation of Pozen, enforceable against Pozen in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and to general principles of equity).
 
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(b)              Conflicts; Consents and Approvals . Neither the execution and delivery of this Agreement by Pozen nor the consummation of the transactions contemplated by this Agreement will:

(i)              conflict with, or result in a breach of, any provision of the Organizational Documents of Pozen;

(ii)              violate, or conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with the giving of notice, the passage of time or otherwise, would constitute a default) under, or entitle any party (with the giving of notice, the passage of time or otherwise) to terminate, accelerate, adversely modify or call a default under, or result in the creation of any Liens upon any of the properties or assets of Pozen or any of its Subsidiaries under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, contract, undertaking, agreement, lease or other instrument or obligation to which Pozen or any of its Subsidiaries is a party;

(iii)              violate any Laws applicable to Pozen or any of its Subsidiaries or any of their respective properties or assets; or

(iv)              require any action or consent or approval of, or review by, or registration or filing by Pozen or any of its Affiliates with, any third party or any Governmental Authority, other than registrations or other actions required under federal and state securities Laws as are contemplated by this Agreement.

(c)              SEC Filings . Pozen has timely filed or received the appropriate extension of time within which to file with the Commission all forms, reports, schedules, statements and other documents required to be filed by it since January 1, 2014 under the Exchange Act or the Securities Act (such documents, as supplemented and amended since the time of filing, collectively, the “ Pozen SEC Documents ”). The Pozen SEC Documents, including any financial statements or schedules included therein, at the time filed (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of mailing, respectively) (i) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (ii) complied in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as the case may be. The financial statements of Pozen included in the Pozen SEC Documents at the time filed complied as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect thereto, were prepared in accordance with GAAP during the periods involved (except as may be indicated in the notes thereto, auditor’s report thereon or, in the case of unaudited statements, as permitted by Form 10-Q of the Commission), and fairly present in all material respects (subject in the case of unaudited statements to normal audit adjustments and subject to restatements filed with the Commission prior to the date of this Agreement) the consolidated financial position of Pozen and its consolidated Subsidiaries as at the dates thereof and the consolidated results of their operations and cash flows for the periods then ended. No Subsidiary of Pozen is subject to the periodic reporting requirements of the Exchange Act other than as part of Pozen’s consolidated group or required to file any form, report or other document with the Commission, NASDAQ, any other stock exchange or comparable Governmental Authority.
 
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3.3              Representations and Warranties of Tribute . In order to induce the Co-Investors to enter into this Agreement, Tribute represents and warrants to each Co-Investor as follows:

(a)              Corporate Existence; Authority .

(i)              Tribute is a corporation validly existing and in good standing under the Laws of the jurisdiction of its organization. Tribute has the corporate power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted.

(ii)              Tribute has the corporate power and authority to enter into, execute and deliver this Agreement, to perform its obligations under this Agreement, and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized and validly approved by the Board of Tribute and no other corporate proceedings on the part of Tribute are necessary to approve this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Tribute and (assuming the due authorization, execution and delivery by each of the Co-Investors and Pozen) constitutes the valid and binding obligation of Tribute, enforceable against Tribute in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and to general principles of equity).

(b)              Conflicts; Consents and Approvals . Neither the execution and delivery of this Agreement by Tribute nor the consummation of the transactions contemplated by this Agreement will:

(i)              conflict with, or result in a breach of, any provision of the Organizational Documents of Tribute;

(ii)              violate, or conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with the giving of notice, the passage of time or otherwise, would constitute a default) under, or entitle any party (with the giving of notice, the passage of time or otherwise) to terminate, accelerate, adversely modify or call a default under, or result in the creation of any Liens upon any of the properties or assets of Tribute or any of its Subsidiaries under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, contract, undertaking, agreement, lease or other instrument or obligation to which Tribute or any of its Subsidiaries is a party;

(iii)              violate any Laws applicable to Tribute or any of its Subsidiaries or any of their respective properties or assets; or

(iv)              require any action or consent or approval of, or review by, or registration or filing by Tribute or any of its Affiliates with, any third party or any Governmental Authority, other than registrations or other actions required under federal and state securities Laws as are contemplated by this Agreement.
 
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(c)              SEC Filings . Tribute has timely filed or received the appropriate extension of time within which to file with the Commission all forms, reports, schedules, statements and other documents required to be filed by it since January 1, 2014 under the Exchange Act or the Securities Act (such documents, as supplemented and amended since the time of filing, collectively, the “ Tribute SEC Documents ”). The Tribute SEC Documents, including any financial statements or schedules included therein, at the time filed (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of mailing, respectively) (i) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (ii) complied in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as the case may be. The financial statements of Tribute included in the Tribute SEC Documents at the time filed complied as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect thereto, were prepared in accordance with GAAP during the periods involved (except as may be indicated in the notes thereto, auditor’s report thereon or, in the case of unaudited statements, as permitted by Form 10-Q of the Commission), and fairly present in all material respects (subject in the case of unaudited statements to normal audit adjustments and subject to restatements filed with the Commission prior to the date of this Agreement) the consolidated financial position of Tribute and its consolidated Subsidiaries as at the dates thereof and the consolidated results of their operations and cash flows for the periods then ended. No Subsidiary of Tribute is subject to the periodic reporting requirements of the Exchange Act other than as part of Tribute’s consolidated group or required to file any form, report or other document with the Commission, NASDAQ, the TSX, any other stock exchange or comparable Governmental Authority.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE CO-INVESTORS

4.1              Representations and Warranties of the Co-Investors . In order to induce the Company, Tribute and Pozen to enter into this Agreement, each Co-Investor severally for itself and not jointly with any one or more of the other Co-Investors represents and warrants to each of the Company, Tribute and Pozen as follows:

(a)              Corporate Existence; Authority; No Violation .

(i)              Co-Investor is a legal entity validly existing under the Laws of the jurisdiction of its organization. Co-Investor has the corporate power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted.

(ii)              Co-Investor has the corporate power and authority to enter into, execute and deliver this Agreement, to perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized and validly approved by all necessary corporate action on the part of Co-Investor. No other corporate proceedings on the part of Co-Investor are necessary to approve this Agreement and to consummate the subscription for the Shares set forth opposite such Co-Investor’s name on Schedule I hereto. This Agreement has been duly and validly executed and delivered by Co-Investor and (assuming the due authorization, execution and delivery by the Company, Tribute, Pozen and the other Co-Investors) constitutes the valid and binding obligation of Co-Investor, enforceable against Co-Investor in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and to general principles of equity).
 
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(b)              Conflicts; Consents and Approvals . Neither the execution and delivery of this Agreement by Co-Investor nor the consummation of the subscription of the Shares set forth opposite such Co-Investor’s name on Schedule I hereto will:

(i)              conflict with, or result in a breach of, any provision of the organizational documents of Co-Investor;

(ii)              violate any Laws applicable to Co-Investor or any of its Subsidiaries or any of their respective properties or assets; or

(iii)              require any action or consent or approval of, or review by, or registration or filing by Co-Investor or any of its Affiliates with, any third party or any Governmental Authority, other than registrations, beneficial ownership filings or other actions required under federal and state securities Laws as are contemplated by this Agreement.

(c)              Certain Securities Law Matters .

(i)              Co-Investor is acquiring its Shares as principal for its own account and, in the case of Purchaser, other than for the Distribution, not with a view to the distribution thereof within the meaning of the Securities Act and Canadian Securities Law.

(ii)              Purchaser is resident in the Province of British Columbia.

(iii)              Co-Investor understands that its Shares will not be transferable except (a) pursuant to an effective registration statement under the Securities Act or, in the case of Purchaser, a prospectus under the Canadian Securities Laws, (b) pursuant to an available exemption from, or in a transaction not subject to, the Securities Act as evidenced by receipt by the Company of a written opinion of counsel for Co-Investor reasonably satisfactory to the Company to the effect that the proposed transfer is exempt from the registration requirements of the Securities Act and relevant state securities laws, and, in the case of Purchaser, pursuant to an available exemption for prospectus requirements under Canadian Securities Laws, or (c) pursuant to Rule 144 under the Securities Act (“ Rule 144 ”) and, in the case of Purchaser, after expiry of all “hold periods” in Canada. Applicable U.S. and Canadian restrictive legends shall be placed on any certificate representing the Shares to be delivered to Co-Investor at the Investment Closing, substantially as follows:
 
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“NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933. AS AMENDED (THE “SECURITIES ACT”), AND THE RULES AND REGULATIONS IN EFFECT THEREUNDER AND ALL APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS, (B) PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE SECURITIES ACT AS EVIDENCED BY THE CORPORATION BEING FURNISHED WITH AN OPINION OF COUNSEL FOR THE HOLDER, WHICH OPINION AND COUNSEL SHALL BE REASONABLY SATISFACTORY TO THE CORPORATION, TO THE EFFECT THAT SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE REGISTRATION PROVISIONS OF THE SECURITIES ACT, OR (C) PURSUANT TO RULE 144 UNDER THE SECURITIES ACT.”

If at the time of the Investment Closing, the Company is a reporting issuer in any province or territory of Canada, then the Shares to be issued to the Purchaser will carry the following Canadian restrictive legend:

“UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE __, 2015 [ INSERT THE DATE THAT IS 4 MONTHS AND A DAY AFTER THE INVESTMENT CLOSING DATE ].”

If at the time of the Investment Closing, the Company is not a reporting issuer in any province or territory of Canada, then the Shares to be issued to the Purchaser will carry the following Canadian restrictive legend:

“UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE THE DATE THAT IS 4 MONTHS AND A DAY AFTER THE LATER OF (I) ___, 2015 [ INSERT THE INVESTMENT CLOSING DATE ], AND (II) THE DATE THE ISSUER BECAME A REPORTING ISSUER IN ANY PROVINCE OR TERRITORY OF CANADA.”

(a)              Co-Investor Status .

(i)              At the time Co-Investor was offered the Shares, it was, at the date hereof it is, either (a) “qualified institutional buyer”, as defined in Rule 144A under the Securities Act, or (b) an “accredited investor” as defined in Rule 501(a) of Regulation D.

(ii)              Co-Investor is an “accredited investor” as defined in National Instrument 45-106 - Prospectus and Registration Exemptions promulgated under applicable Canadian Securities Laws.
 
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(b)              Sufficiency of Funds .

(i)              The Investor has sufficient cash on hand or other sources of immediately available funds to enable it to make payment of the Subscription Price and consummate the transactions contemplated by this Agreement.

(ii)              The Purchaser has, and at all times during this Agreement (prior to and including the Investment Closing) shall have, sufficient cash on hand or other sources of immediately available funds to enable it to make payment of the Subscription Price and consummate the transactions contemplated by this Agreement.

(c)              No Bad Actor . No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act is applicable to the Co-Investor.

(d)              No General Solicitation . Neither the Co-Investor, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including, through a broker or finder (a) engaged in any general solicitation, or (b) published any advertisement in connection with the offer, sale or contemplated distribution of the Shares.

(e)              Exculpation Among Co-Investors . Each Co-Investor represents that it has such knowledge in financial and business affairs as to be capable of evaluating the merits and risks of its investment in the Company pursuant to this Agreement and is able to bear the economic risk of loss of its investment in the Company pursuant to this Agreement. Each Co-Investor acknowledges that it is not relying upon any Person, other than Tribute and Pozen and their officers and directors, in making its investment or decision to invest in the Company pursuant to this Agreement. Each Co-Investor agrees that none of the Co-Investors or their respective controlling Persons, officers, directors, partners, agents, or employees shall be liable to any other Co-Investor for any action taken or omitted to be taken by any of them in connection with entering into, or complying with its respective obligations under, this Agreement, including without limitation purchasing the Shares.

ARTICLE V

COVENANTS   AND AGREEMENTS

5.1              Furnishing Information .

(a)              For purposes of furthering the transactions contemplated hereby, each of the Company, Tribute and Pozen shall promptly provide Purchaser with any report, schedule or other document filed or received by it pursuant to the requirements of the federal securities laws of the United States or the Canadian Securities Laws relating to the Shares covered by this Agreement (other than reports or documents that Tribute or Pozen, as applicable, is not permitted to disclose under applicable Law).

(b)              The parties hereto hereby agree that all information received by them or their respective officers, directors, employees or representatives in connection with this Agreement and the consummation of the transactions contemplated hereby shall be governed in accordance with the respective confidentiality agreement entered into by such receiving party and any of the other parties hereto (collectively, the “ Confidentiality Agreements ”), each of which shall continue in full force and effect in accordance with its terms.
 
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5.2              Filings; Commercially Reasonable Efforts; Notification .

(a)              Upon the terms and subject to the conditions of this Agreement, each of the parties shall use its respective commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, as soon as practicable (and in any event prior to the End Date), the transactions contemplated by this Agreement, including (i) obtaining and maintaining all necessary actions or nonactions, waivers, consents, licenses, permits, authorizations, orders and approvals (collectively, “ Consents ”) from applicable Governmental Authorities and the making of all other necessary registrations and filings, (ii) obtaining all Consents from third parties that are reasonably necessary in connection with the transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments reasonably necessary to consummate any of the transactions contemplated by, and to fully carry out the purposes of, this Agreement.

(b)              Each of the Company, Tribute and Pozen shall (i) use commercially reasonable efforts to make or cause to be made such filings with applicable Governmental Authorities as are required or, in Purchaser’s reasonable view, advisable in connection with the transactions contemplated by this Agreement as soon as reasonably practicable after the date of this Agreement and (ii) cooperate in good faith with the other party in obtaining any Consents from Governmental Authorities and in connection with resolving any investigation or other inquiry of any Governmental Authority with respect such filings.

(c)              Each of the Company, Pozen and Tribute shall use commercially reasonable efforts to ensure that none of the information supplied or to be supplied by for inclusion or incorporation by reference in the Registration Statement or the Investor Registration Statement to be filed with the Commission by the Company under the Securities Act at the time the Registration Statement or Investor Registration Statement becomes effective will contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made by the Company, Pozen, Tribute or the Co-Investors with respect to statements made or incorporated by reference therein based on written information supplied by the other parties hereto expressly for inclusion or incorporation by reference in the Registration Statement or the Investors expressly for inclusion or incorporation by reference in the Investor Registration Statement).

5.3              NASDAQ and TSX Listing . The Company, Tribute and Pozen shall use commercially reasonable efforts to cause the Shares to be approved for listing on NASDAQ and conditionally approved for listing on the TSX prior to the Investment Closing, as mutually agreed by the parties, subject to official notice of issuance in respect of NASDAQ and subject to compliance with all of the customary requirements of the TSX, including receipt of all documentation required by the TSX.
 
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5.4              Further Assurances . Subject to, and not in limitation of, Section 5.2 , each of Tribute and Pozen shall use its respective commercially reasonable efforts to (i) take, or cause to be taken, all actions necessary or appropriate to consummate the transactions contemplated by this Agreement and (ii) cause the fulfillment at the earliest practicable date of all of the conditions to their respective obligations to consummate the transactions contemplated by this Agreement.

5.5              Advice of Changes .

(a)              Tribute and/or Pozen, as applicable, shall promptly advise the Co-Investors of any fact, change, event or circumstance that has had a Material Adverse Effect on Tribute and/or Pozen which Tribute and/or Pozen believes would or would be reasonably likely to give rise to a failure of the condition precedent set forth in Section 6.1(d) hereof; provided that any failure to give notice in accordance with the foregoing shall not be deemed to constitute a violation of this Section 5.5 or the failure of the condition set forth in Section 6.1(d) hereof to be satisfied, or otherwise constitute a breach of this Agreement by Tribute and/or Pozen, in each case unless the underlying breach would independently result in a failure of the condition set forth in any of Section 6.1(d) hereof to be satisfied; provided further , that that the delivery of any notice pursuant to this Section 5.5 shall not limit or otherwise affect the remedies of the Co-Investors available hereunder and no information delivered pursuant to this Section 5.5 shall affect the representations or warranties of the parties hereunder.

(b)              Tribute and/or Pozen shall promptly advise the Co-Investors of (i) any written notice or other written communication from any person alleging that the consent of such person is or may be required in connection with the transactions contemplated by this Agreement to the extent that either Tribute or Pozen believes there is a reasonable likelihood that the failure to obtain such consent would have a material impact on the timing of the consummation of the transactions contemplated by this Agreement or (ii) upon receiving any written communication from any Governmental Authority or third party whose consent or approval is required for the satisfaction of the condition to the Investment Closing set forth in Section 6.1(d) hereof that causes Tribute or Pozen to believe that there is a reasonable likelihood that any such consent or approval will not be obtained or that the receipt of any such consent or approval will be materially delayed.

(c)              Tribute and/or Pozen, as applicable, shall promptly notify the Co-Investors of any notice, written threat, announcement or commencement of a material investigation by any Governmental Authority with respect to Tribute or any of its Subsidiaries or Pozen or any of its Subsidiaries.

(d)              Each of Tribute and Pozen covenants and agrees to promptly provide Purchaser with notice and copies of any amendments to the Merger Agreement or any of the annexes, exhibits or schedules (including disclosure schedules) thereto within two (2) Business Days of any such amendment. The provisions of this Section 5.5(d) shall not in any way affect each Co-Investor’s rights to insist upon the satisfaction of the condition to closing set forth in Section 6.1(c) .
 
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5.6              Governance Matters . The Company shall take all actions as may be necessary to elect, or cause to be elected, to the Board of the Company, effective with the Investment Closing and the consummation of the subscription of the Shares set forth opposite each Co-Investor’s name on Schedule I hereto, the individual designated by Purchaser, in writing, at least five (5) Business Days prior to the Investment Closing Date.

5.7              Re-registration as a Public Limited Company . The Company shall, prior to the Investment Closing, re-register as a public limited company pursuant to Part 20 of the Irish Companies Act 2014.

5.8              Cooperation .

(a)              The Company, Tribute and Pozen each acknowledge that Purchaser is a party to the Purchaser/Isotope Merger Agreement and, in connection therewith, will be filing with the Commission the Purchaser S-4 and will be furnishing the Isotope stockholders with copies of the prospectus / proxy statement contained therein. The Company, Tribute and Pozen each hereby agrees to furnish such information as Purchaser may reasonably request for inclusion in the Purchaser S-4. Each of the Company, Tribute and Pozen hereby agrees that such information pertaining to it provided for such inclusion will be true and accurate in all material respects and will not omit any material information. Purchaser hereby agrees to provide the Company, Tribute and Pozen with copies of all proposed disclosure in the Purchaser S-4 relating to the Company, Tribute, Pozen, this Agreement and the transactions contemplated hereby, prior to its filing. Purchaser further agrees to provide each of the Company, Tribute and Pozen with a reasonable opportunity (at least two (2) Business Days) to review and comment upon such proposed disclosure and Purchaser shall consider such comments in good faith and make any changes thereto reasonably requested by the Company, Tribute or Pozen.

(b)              The Company, Tribute and Pozen each acknowledge and the Purchaser hereby agrees that the Purchaser shall not effect the Distribution until such time as the holders of Purchaser Common Shares vote at the Purchaser Meeting and the Registration Statement is on file with the SEC and declared effective and the Canadian Final Receipt has been issued. In connection therewith, Purchaser will be filing the Purchaser Proxy Statement with the Commission and the Canadian Commissions (as defined in Annex B ) and will be furnishing such document to the holders of the Purchaser Common Shares in connection with the votes to be taken at the Purchaser Meeting. The Company, Tribute and Pozen each hereby agrees to furnish such information as Purchaser may reasonably request for inclusion in the Purchaser Proxy Statement. Each of the Company, Tribute and Pozen hereby agrees that such information pertaining to it provided for such inclusion will be true and accurate in all material respects and will not omit any material information. Purchaser hereby agrees to provide the Company, Tribute and Pozen with copies of all proposed disclosure in the Purchaser Proxy Statement relating to the Company, Tribute, Pozen, this Agreement and the transactions contemplated hereby, prior to its filing. Purchaser further agrees to provide each of the Company, Tribute and Pozen with a reasonable opportunity (at least two (2) Business Days) to review and comment upon such proposed disclosure and Purchaser shall consider such comments in good faith and make any changes thereto reasonably requested by the Company, Tribute or Pozen.
 
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(c)              The Company, Tribute and Pozen each hereby agrees and acknowledges that Purchaser may be required to file reports under the Exchange Act from and after the Closing of the transactions contemplated by this Agreement, which reports may require information (including financial information) concerning the Company, Tribute and Pozen. Each of the Company, Tribute and Pozen hereby agrees to furnish such information as Purchaser may reasonably request for inclusion in such reports. Each of the Company, Tribute and Pozen hereby agrees that such information pertaining to it provided for such inclusion will be true and accurate in all material respects and will not omit any material information. Purchaser hereby agrees to provide the Company, Tribute and Pozen with copies of all proposed disclosure in the Purchaser Proxy Statement relating to the Company, Tribute, Pozen, this Agreement and the transactions contemplated hereby, prior to filing. Purchaser further agrees to provide each of the Company, Tribute and Pozen with a reasonable opportunity (at least two (2) Business Days) to review and comment upon such proposed disclosure and Purchaser shall consider such comments in good faith and make any changes thereto reasonably requested by the Company, Tribute or Pozen.

5.9              Equal Treatment of Purchaser and the Investors . No consideration shall be offered or paid to Purchaser or any Investor to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration is also offered to all of the parties hereto. For clarification purposes, this provision constitutes a separate right granted to each of Purchaser and the Investors in their own respective right by Tribute and Pozen and negotiated separately by each of them in their own respective right, and is intended for Tribute and Pozen to treat Purchaser and the Investors as a class and shall not in any way be construed as such persons acting jointly or in concert or as a group with respect to the purchase, disposition or voting of Shares or otherwise. Each Co-Investor represents that it does not have as of the date of this Agreement, and shall not have as of the Investment Closing, any verbal or written agreement, arrangement, commitment or understanding regarding voting rights attached to the Shares.

5.10              Investors’ Registration Rights . The Investors shall have the registration rights set forth on Annex A hereto. The Investor Registration Statement (as defined in such Annex A ) shall be separate and distinct from the Registration Statement (as defined in Annex B ) and shall be converted from Form S-1 to Form S-3 as soon as practicable following the time the applicable rules and regulations allow for such conversion.

5.11              Purchaser’s Registration Rights . Purchaser shall have the registration rights set forth on Annex B hereto. The Registration Statement shall be separate and distinct from the Investor Registration Statement.

ARTICLE VI

CONDITIONS TO INVESTMENT CLOSING

6.1              Mutual Conditions . The respective obligations of each Co-Investor and the Company to consummate the subscription and issuance of the Shares shall be subject to the satisfaction on or prior to the Investment Closing Date of each of the following conditions (any or all of which may be waived by a party on behalf of itself in writing, in whole or in part, to the extent permitted by applicable Law):
 
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(a)              no Law shall have been enacted or promulgated, and no action shall have been taken, by any Governmental Authority of competent jurisdiction that temporarily, preliminarily or permanently restrains, precludes, enjoins or otherwise prohibits the consummation of the transactions contemplated hereby or makes the transactions contemplated hereby illegal;

(b)              No outstanding judgment, injunction, order or decree of a competent Governmental Authority shall have been entered and shall continue to be in effect, and no Law shall have been adopted or be effective, in each case that prohibits, enjoins or makes illegal the consummation of the transactions contemplated by this Agreement;

(c)              No material amendment, modification or waiver of a material right under the Merger Agreement has occurred; and

(d)              The conditions set forth in Article VIII of the Merger Agreement (the (“ Merger Closing Conditions ”) shall have been satisfied or waived, and the Closing shall occur concurrently with the Investment Closing.

6.2              Co-Investor’s Conditions . The obligations of each Co-Investor to consummate the subscription of the Shares set forth opposite each Co-Investor’s name on Schedule I hereto shall be subject to the satisfaction on or prior to the Investment Closing Date of each of the following additional conditions (any or all of which may be waived by such Co-Investor on behalf of itself in writing, in whole or in part, to the extent permitted by applicable Law):

(a)              The respective representations and warranties of the Company, Tribute and Pozen set forth in Sections 3.1,   3.2 , and 3.3 , respectively, qualified as to materiality shall be true and correct, and those not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Investment Closing as though made at and as of the Investment Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materially shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date);

(b)              each of the Company, Tribute and Pozen shall have performed and complied in all material respects with its respective obligations and agreements required in this Agreement to be performed or complied with by it on or prior to the Investment Closing Date;

(c)              the Shares shall have been approved for listing on NASDAQ and the TSX, subject to official notice of issuances in respect of NASDAQ and subject to compliance with all of the customary requirements of the TSX, including receipt of all documentation required by the TSX;

(d)              Tribute shall have delivered, or caused to be delivered, to such Co-Investor at the Investment Closing, Tribute’s closing deliverables described in Section 2.4 ;

(e)              there shall not be pending any suit, action or proceeding by any Person seeking to restrain, preclude, enjoin or prohibit the transactions contemplated by this Agreement, which suit, action or proceeding is reasonably likely to have a material adverse effect on such Co-Investor;
 
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(f)              Pozen shall have delivered, or caused to be delivered, to such Co-Investor at the Investment Closing, Pozen’s closing deliverables described in Section 2.5 ;

(g)              the Company shall have delivered, or caused to be delivered, to such Co-Investor at the Investment Closing, the Company’s closing deliverables described in Section 2.7 ; and

(h)              Purchaser, on the one hand, and the Company, Tribute and Pozen, on the other hand, shall not have terminated the Agreement pursuant to Section 7.1(a) .

6.3              Company’s Conditions . The obligation of the Company to consummate the allotment of the Shares to each Co-Investor shall be subject to the satisfaction on or prior to the Investment Closing Date of each of the following conditions with respect to such Co-Investor (any or all of which may be waived by the Company in writing, in whole or in part, to the extent permitted by applicable Law):

(a)              the representations and warranties of such Co-Investor set forth in this Agreement qualified as to materially shall be true and correct, and those not so qualified shall be true and correct in all material respects, in each case, as of the date of this Agreement and as of the Investment Closing as though made at and as of the Investment Closing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties qualified as to materially shall be true and correct, and those not so qualified shall be true and correct in all material respects, on and as of such earlier date);

(b)              such Co-Investor shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by such Co-Investor on or prior to the Investment Closing Date; and

(c)              there shall not be pending any suit, action or proceeding by any Person seeking to restrain, preclude, enjoin or prohibit the transactions contemplated by this Agreement, which suit, action or proceeding is reasonably likely to have a material adverse effect on the Company; and

(d)              such Co-Investor shall have delivered, or caused to be delivered, to the Company at the Investment Closing such Co-Investor’s closing deliverables described in Section 2.6 .

ARTICLE VII

TERMINATION

7.1              Termination . Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Investment Closing with respect to the applicable parties as follows:
 
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(a)              by mutual written consent of the Company, Tribute and Pozen, on the one hand, and one or more Co-Investors, on the other hand, which termination shall be effective as between or among the Company, Tribute and Pozen and such Co-Investor(s);

(b)              by any of the Company, Tribute, Pozen, Purchaser or any of the Investors (but only with respect to such terminating Investor’s rights and obligations hereunder) if there shall be any Law that makes consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited, or if any judgment, injunction, order or decree of a competent Governmental Authority enjoining the Company, Tribute, Pozen, Purchaser or such Investor from consummating the transactions contemplated by this Agreement shall have been entered and such judgment, injunction, order or decree shall have become final and nonappealable; provided that the party seeking to terminate this Agreement pursuant to this Section 7.1(b) shall have used its commercially reasonable efforts to render inapplicable such Law or regulation or remove such judgment, injunction, order or decree as required by Section 5.2 ;

(c)              by any of the Company, Tribute, Pozen, Purchaser or any Investor (by only with respect to such terminating Investor’s rights and obligations hereunder) if the Investment Closing shall not have occurred on or prior to January 31, 2016 (the “ End Date ”); provided , however , that the right to terminate this Agreement under this Section 7.1(c) shall not be available to any party whose material breach of any covenant or obligation under this Agreement has been the cause of or resulted in the failure of the Investment Closing to occur on or before the End Date;

(d)              by any of the Company, Tribute, Pozen, Purchaser or any of the Investors (but only with respect to such terminating Investor’s rights and obligations hereunder) if the Merger Agreement shall have been terminated;

(e)              by Purchaser or any of the Investors (but only with respect to such terminating Investor’s rights and obligations hereunder) if there shall have been a breach by the Company, Tribute or Pozen of any of their respective representations, warranties, covenants or agreements contained in this Agreement, which breach would result in the failure of one or more of the conditions set forth in Sections 6.2(a) or 6.2(b) to be satisfied on or prior to the End Date, and such breach shall not be capable of being cured or shall not have been cured by the earlier of (i) the End Date and (ii) twenty (20) Business Days after detailed written notice thereof shall have been received by the party alleged to be in breach; or

(f)              by the Company, Tribute or Pozen, with respect to any Co-Investor, if there shall have been a breach by such Co-Investor of any of its representations, warranties, covenants or agreements contained in this Agreement, which breach would result in the failure of one or more of the conditions set forth in Sections 6.3(a) or 6.3(b) to be satisfied on or prior to the End Date, and such breach shall not be capable of being cured or shall not have been cured by the earlier of (i) the End Date and (ii) twenty (20) Business Days after detailed written notice thereof shall have been received by the party alleged to be in breach.

7.2              Procedure Upon Termination . In the event of termination and abandonment by the Company, Tribute, Pozen, Purchaser or any Investor pursuant to Section 7.1 , written notice thereof specifying the provision of this Agreement pursuant to which such termination is effected, shall forthwith be given to the other parties hereto, and, solely with respect to a termination by Tribute or Pozen or all of the Co-Investors, this Agreement shall terminate, and the subscription for the Shares hereunder shall be abandoned. For the avoidance of doubt, a termination by any Co-Investor shall only terminate the rights and obligations of such Co-Investor hereunder and shall not affect the rights and obligations of the other parties hereto. The parties acknowledge that the failure by any one Co-Investor to consummate the subscription of the Shares set forth opposite such Co-Investor’s name on Schedule I hereto shall not affect or modify the obligations of the Company or the other Co-Investors to consummate the transactions contemplated hereby.
 
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7.3              Effects of Termination . In the event of any termination of this Agreement as provided in Section 7.1 by the Company, Tribute or Pozen, or all of the Co-Investors, this Agreement, except for the provisions of Section 5.1(b), this Section 7.3 and ARTICLE VIII, shall terminate and become void and have no effect, without any liability on the part of any party or its directors, officers or stockholders with respect thereto. Notwithstanding the foregoing, nothing in this Section 7.3 shall relieve any party to this Agreement of liability for fraud or any material breach of any covenant or agreement set forth in this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in any of the Confidentiality Agreements, all of which obligations shall survive termination of this Agreement in accordance with its terms.

ARTICLE VIII

MISCELLANEOUS

8.1              Survival . Notwithstanding any investigation made by any party to this Agreement, all covenants, agreements, representations and warranties made by the Company, Tribute, Pozen or the Co-Investors herein shall survive the execution of this Agreement, the delivery to the Co-Investors of the Shares and the payment therefor.

8.2              Expenses . Except as otherwise provided in this Agreement, whether or not the transactions contemplated by this Agreement are consummated, all costs and expenses incurred in connection with the negotiation and execution of this Agreement and the transactions contemplated hereby shall be paid by the party incurring or required to incur such expenses, including the Registration Expenses, Investor Registration Expenses and the Canadian Prospectus Expenses (which shall be from the account of the Company).

8.3              Counterparts; Effectiveness . This Agreement may be executed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy, electronic delivery or otherwise) to the other parties. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.
 
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8.4              Governing Law . This Agreement, and all claims or causes of action (whether at Law, in contract or in tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance hereof, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (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.

8.5              Jurisdiction; Specific Enforcement . Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware). Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the above named courts, (b) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable Law, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. To the fullest extent permitted by applicable Law, each of the parties hereto hereby consents to the service of process in accordance with Section 8.7 ; provided , however , that nothing herein shall affect the right of any party to serve legal process in any other manner permitted by Law.

8.6              WAIVER OF JURY TRIAL . EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

8.7              Notices . All notices and other communications hereunder shall be in writing and shall be deemed given (a) upon personal delivery to the party to be notified; (b) when received when sent by email or facsimile by the party to be notified, provided, however, that notice given by email or facsimile shall not be effective unless either (i) a duplicate copy of such email or fax notice is promptly given by one of the other methods described in this Section 8.7 or (ii) the receiving party delivers a written confirmation of receipt for such notice either by email or fax or any other method described in this Section 8.7 ; or (c) when delivered by a courier (with confirmation of delivery); in each case to the party to be notified at the following address:
 
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If to Purchaser, to:

QLT Inc.
887 Great Northern Way, Suite 250
Vancouver, BC V5T 4T5
Canada
Facsimile: (604) 707-7001
Attention: Geoffrey Cox, Interim Chief Executive Officer
Dori Assaly, Vice President, Legal Affairs
Email: gfcox@qltinc.com
dassaly@qltinc.com

with copies to:

Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Facsimile: (212) 310-8007
Attention: Raymond O. Gietz
Email: raymond.gietz@weil.com

If to the Company, to:

Aguono Limited
c/o POZEN Inc.
1414 Raleigh Road, Suite 400
Chapel Hill, North Carolina 27517
Facsimile: (919) 490-5552
Attention: Adrian Adams, Chief Executive Officer
Email: aadams@pozen.com

with copies to:

DLA Piper LLP (US)
51 John F. Kennedy Parkway, Suite 120
Short Hills, New Jersey 07078-2704
Facsimile: (973) 520-2573
Attention: Andrew Gilbert, Esq.
Email: andrew.gilbert@dlapiper.com

If to Pozen, to:

POZEN Inc.
1414 Raleigh Road, Suite 400
Chapel Hill, North Carolina 27517
Facsimile: (919) 490-5552
Attention: Adrian Adams, Chief Executive Officer
Email: aadams@pozen.com
 
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with copies to:

DLA Piper LLP (US)
51 John F. Kennedy Parkway, Suite 120
Short Hills, New Jersey 07078-2704
Facsimile: (973) 520-2573
Attention: Andrew Gilbert, Esq.
Email: andrew.gilbert@dlapiper.com

If to Tribute, to:

Tribute Pharmaceuticals Canada Inc.
151 Steeles Avenue East
Milton, Ontario, Canada L9T 1Y1
Facsimile: (519) 434-4382
Attention: Robert Harris, President and Chief Executive Officer
E-mail: rob.harris@tributepharma.com

with copies to:

Fogler, Rubinoff LLP
77 King Street West, Suite 3000
Toronto, Ontario M5K 1G8
Facsimile: +1-416-941-8852
Attention: Eric R. Roblin
E-mail: eroblin@foglers.com

If to an Investor, at its address set forth under its name on Schedule I hereto,

or to such other address as any party shall specify by written notice so given, and such notice shall be deemed to have been delivered as of the date so telecommunicated or personally delivered. Any party to this Agreement may notify any other party of any changes to the address or any of the other details specified in this Section 8.7 ; provided , however , that such notification shall only be effective on the date specified in such notice or five (5) Business Days after the notice is given, whichever is later. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection, refusal or inability to deliver.

8.8              Assignment; Binding Effect . Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned or delegated by any of the parties hereto without the prior written consent of the other parties; provided , however , that (i) any Co-Investor may assign any of its rights hereunder to any of its Affiliates without the prior written consent of the Company, Tribute or Pozen, but no such assignment shall relieve such Co-Investor of any of its obligations hereunder, (ii) at any time prior to the filing of the Investor Registration Statement or the Registration Statement, as applicable, any Co-Investor may reallocate, in whole or in part, the number of Shares allocated to such Co-Investor hereunder and assign its rights and obligations hereunder with respect to such reallocated Shares, to any other Co-Investor (and Schedule I will be updated accordingly), and (iii) Purchaser may assign any of its rights hereunder in connection with a merger or amalgamation of Purchaser, or the sale of all or substantially all of the assets of Purchaser and its Subsidiaries. Subject to the first sentence of this Section 8.8 , this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. Any purported assignment not permitted under this Section 8.8 shall be null and void. In addition, if Purchaser were to sell in a private transaction any of its Shares to (i) another Co-Investor or (ii) one or more persons identified on Schedule II hereto, then such purchaser shall have the rights set forth in Annex A hereto with respect to such purchased Shares.
 
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8.9              Severability . Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable.

8.10              Independent Legal and Investment Advice . Each party acknowledges that Weil, Gotshal & Manges LLP, McCullough O’Connor Irwin LLP and Greenhill & Co., LLC are advisors to the Purchaser and not any other party to this Agreement. In addition, each party to this Agreement acknowledges having had the opportunity to obtain independent legal advice and independent investment advice in connection with the execution of this Agreement and the transactions contemplated hereby, prior to the execution of this Agreement, and further, each party to this Agreement represents to the other parties that it has either sought independent legal advice and independent investment advice or has waived its right to seek such advice.

8.11              Entire Agreement . This Agreement together with the annexes, schedules and exhibits hereto and each of the Confidentiality Agreements constitute the entire agreement, and supersede all other prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof and thereof, and this Agreement is not intended to grant standing to any person other than the parties hereto.

8.12              Amendments; Waivers . At any time prior to the Effective Time, any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Company, Tribute, Pozen, Purchaser and each of the Investors; provided , however , that any amendment or waiver of any of the provisions of Annex A shall require only the signature of the Company and the affected Investor, and any amendment or waiver of Annex B shall only require the signature of the Company and Purchaser. Notwithstanding the foregoing, no failure or delay by any party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.

8.13              Headings . Headings of the Articles and Sections of this Agreement are for convenience of the parties only and shall be given no substantive or interpretive effect whatsoever. The table of contents to this Agreement is for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

8.14              No Third-Party Beneficiaries . Each of the Co-Investors, Pozen, Tribute and the Company agrees that (a) their respective representations, warranties, covenants and agreements set forth herein are solely for the benefit of the other party hereto, in accordance with and subject to the terms of this Agreement, and (b) this Agreement is not intended to, and does not, confer upon any person other than the parties hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein, with the exception of the rights and remedies of the Indemnified Parties pursuant to Annex B .
 
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8.15              Obligations of the Co-Investors and the Company . The obligations of the Co-Investors are several and not joint and the breach by any Co-Investor of its obligations hereunder shall not result in any liability being incurred by any one or more of the other Co-Investors as a result of such breach. Each of the Company, Tribute and Pozen acknowledges and agrees that should one or more Co-Investors not be ready, willing and able to subscribe for its respective Shares hereunder, any of the other Co-Investors may subscribe for such Shares in lieu of the non-performing Co-Investor.

** REMAINDER OF PAGE INTENTIONALLY LEFT BLANK**
 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first written above.

 
TRIBUTE PHARMACEUTICALS CANADA INC.
     
 
By:
/s/ Scott Langille
   
Name: Scott Langille
   
Title: Chief Financial Officer
     
 
POZEN INC.
     
 
By:
/s/ Adrian Adams
   
Name: Adrian Adams
   
Title: Chief Executive Officer
     
 
AGUONO LIMITED
     
 
By:
/s/ William L. Hodges
   
Name: William L. Hodges
   
Title: Director

[Share Subscription Agreement]
 
 

 
QLT INC.
     
 
By:
/s/ Geoffrey Cox
   
Name: Geoffrey Cox
   
Title: Interim Chief Executive Officer

[Share Subscription Agreement]
 

 
DEERFIELD PRIVATE DESIGN FUND III, L.P.
     
 
By: Deerfield Mgmt III, L.P., General Partner
 
By: J.E. Flynn Capital III, LLC, General Partner
     
 
By:
/s/ David J. Clark
   
Name: David J. Clark
   
Title: Authorized Signatory
     
 
DEERFIELD INTERNATIONAL MASTER FUND, L.P.
     
 
By: Deerfield Mgmt, L.P., General Partner
 
By: J.E. Flynn Capital, LLC, General Partner
     
 
By:
/s/ David J. Clark
   
Name: David J. Clark
   
Title: Authorized Signatory
     
 
DEERFIELD PARTNERS, L.P.
     
 
By: Deerfield Mgmt, L.P., General Partner
 
By: J.E. Flynn Capital, LLC, General Partner
     
 
By:
/s/ David J. Clark
   
Name: David J. Clark
   
Title: Authorized Signatory

[Share Subscription Agreement]
 

 
ECOR1 CAPITAL FUND, L.P.
     
 
By: EcoR1 Capital, LLC
     
 
By:
/s/ Oleg Nodelman
   
Name: Oleg Nodelman
   
Title: Managing Director
     
 
ECOR1 CAPITAL FUND QUALIFIED, L.P.
     
 
By: EcoR1 Capital, LLC
     
 
By:
/s/ Oleg Nodelman
   
Name: Oleg Nodelman
   
Title: Managing Director

[Share Subscription Agreement]
 

 
BROADFIN HEALTHCARE MASTER FUND, LTD
     
 
By:
/s/ Jason Abrams
   
Name: Jason Abrams
   
Title: Authorized Signatory

[Share Subscription Agreement]
 

 
JW PARTNERS, LP
     
 
By: JW GP, LLC, its General Partner
     
 
By:
/s/ Jason Wild
   
Name: Jason Wild
   
Title: Authorized Signatory
     
 
JW OPPORTUNITIES FUND, LLC
     
 
By: JW GP, LLC, its Manager
     
 
By:
/s/ Jason Wild
   
Name: Jason Wild
   
Title: Authorized Signatory

[Share Subscription Agreement]
 
SCHEDULE I

SCHEDULE OF CO-INVESTORS

Co-Investor - Name and Address
Shares
Subscription Price
QLT Inc.
 
250 – 887 Great Northern Way
Vancouver, B.C., Canada
 
Attn: Geoffrey Cox
Fax: (604) 707-7001
Email: gfcox@qltinc.com
6,250,000
$45,000,000
Deerfield Private Design Fund III, L.P.
 
Deerfield International Master Fund, L.P.
 
Deerfield Partners, L.P.
 
780 Third Avenue, 37th Floor
New York , New York 100017
 
Attn: David J. Clark
Fax: (212) 599-3075
Email: dclark@deerfield.com
1,736,111
 
972,222
 
763,889
 
 
$12,500,000
 
$7,000,000
 
$5,500,000
Broadfin Healthcare Master Fund, LTD
 
300 Park Avenue, 25th Floor,
New York, NY 10005
 
Attn: Jason Abrams
Fax: (212) 808-2464
Email: Jason@broadfincapital.com
208,333
$1,500,000
JW Partners, LP
 
JW Opportunities Fund, LLC
 
515 Madison Ave, 14B
New York, NY 10022
 
Attn: Jason Wild
Fax: (212) 207-4674
Email: jwild@jwfunds.com
108,333
 
30,556
$780,000
 
$220,000
EcoR1 Capital Fund Qualified, L.P.
 
EcoR1 Capital Fund, L.P.
 
409 Illinois Street
San Francisco, CA 94158
 
Attn: Oleg Nodelman
Fax: (415) 952-9412
Email: oleg@ecor1cap.com
232,639
 
114,583
$1,675,000
 
$825,000
Total:
10,416,667
$75,000,000
 
SCHEDULE II

SCHEDULE OF POTENTIAL PURCHASER TRANSFEREES

1. NONE.
 
ANNEX A

INVESTORS’ REGISTRATION RIGHTS

1.1              Certain Definitions .

(a) “ Investor Prospectus ” shall mean the prospectus (including any preliminary, final or summary prospectus) included in the Investor Registration Statement, all amendments and supplements to such prospectus and all other material incorporated by reference in such prospectus.

(b) “ Investor Registration Expenses ” shall mean any and all expenses incurred by the Company and its Subsidiaries in effecting the Investor Registration pursuant to this Agreement, including, all (a) Investor Registration and filing fees, and all other fees and expenses payable in connection with the listing of securities on any securities exchange or automated interdealer quotation system, (b) fees and expenses of compliance with any securities or “blue sky” Laws (including reasonable fees and disbursements of counsel in connection with “blue sky” qualifications of the Investor Shares), (c) expenses in connection with the preparation, printing, mailing and delivery of the Investor Registration Statement, Investor Prospectus and other documents in connection therewith and any amendments or supplements thereto, (d) printing expenses, (e) internal expenses of the Company (including, all salaries and expenses of its officers and employees performing legal or accounting duties), (f) fees and disbursements of counsel for the Company and fees and expenses for independent certified public accountants retained by the Company and (g) fees and expenses of any special experts retained by the Company in connection with such Investor Registration. Investor Registration Expenses shall not include, and the Company shall not have any obligation to pay, any out-of-pocket expenses of any Investor, including the attorneys’ fees of any such Investor.

(c) “ Investor Registration ” shall mean the registration effected by preparing and filing (a) the Investor Registration Statement in compliance with the Securities Act (and any post-effective amendments filed or required to be filed) and the declaration or ordering of effectiveness of such Investor Registration Statement, or (b) an Investor Prospectus and/or Investor Prospectus supplement in respect of the effective Investor Registration Statement.

(d) The terms “ register ,” “ registered ” and “ registration ” shall refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act and applicable rules and regulations thereunder, and the declaration or ordering of the effectiveness of such registration statement.

(e) “ Registrable Securities ” shall mean: (i) the Investor Shares and any shares of ordinary shares of the Company issued or issuable to each Investor (A) upon any distribution with respect to, any exchange for or any replacement of such Investor Shares, or (B) upon any conversion, exercise or exchange of any securities issued in connection with any such distribution, exchange or replacement; (ii) securities issued or issuable upon any stock split, stock dividend, recapitalization or similar event with respect to the foregoing; and (iii) any other security issued as a dividend or other distribution with respect to, in exchange for or in replacement of the securities referred to in the preceding clauses, except that any such Investor Shares or other securities shall cease to be Registrable Securities when (A) they have been sold to the public or (B) they may be sold by such Investor without restriction pursuant to Rule 144.
 
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(f) “ Selling Expenses ” shall mean all selling commissions and transfer taxes applicable to the sale, transfer, issuance or allotment of Registrable Securities and all fees and disbursements of counsel for Investors.

1.2              Registration Requirements . The Company shall use its commercially reasonable efforts to effect the registration of the resale of the Registrable Securities (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualification under applicable blue sky or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act) as would permit or facilitate the resale of all the Registrable Securities in the manner (including manner of sale) and in all states reasonably requested by the Investors, provided that in no event shall the Company be required to register the resale of the Investor Shares in an underwritten offering. Such commercially reasonable efforts by the Company shall include, without limitation, the following:

(a) The Company shall use commercially reasonable efforts to, as expeditiously as possible:

(i) prepare and promptly following the filing of Registration Statement on Form S-4 by the Company (in no event later than August 7, 2015), file a registration statement with the Commission pursuant to Rule 415 under the Securities Act covering resales by the Investors as selling stockholders (not underwriters) of the Investor Shares (the “ Investor Registration Statement ”). The Company shall use its commercially reasonable efforts to cause such Investor Registration Statement and other filings to be declared effective as soon as possible following its filing.

(ii) respond to all Commission comments, inquiries and requests, and shall request acceleration of effectiveness of the Investor Registration Statement at the earliest possible date. The Company shall provide the Investors reasonable opportunity to review the portions of any such Investor Registration Statement or amendment or supplement thereto containing disclosure regarding the Investors prior to filing.

(iii) prepare and file with the Commission such amendments and supplements to such Investor Registration Statement and the Investor Prospectus used in connection with such Investor Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Investor Registration Statement and notify the Investors of the filing and effectiveness of such Investor Registration Statement and any amendments or supplements.

(iv) furnish or otherwise make available to each Investor copies of a current prospectus included in the Investor Registration Statement conforming with the requirements of the Securities Act, copies of the Investor Registration Statement, any amendment or supplement thereto and any documents incorporated by reference therein and such other documents as such Investor may reasonably require in order to facilitate the disposition of Registrable Securities owned by such Investor.
 
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(v) register and qualify the securities covered by the Investor Registration Statement under the securities or “blue sky” laws of all domestic jurisdictions, to the extent required; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions.

(vi) notify each Co- Investor of the happening of any event (but not the substance or details of any such events) as a result of which the Investor Prospectus (including any supplements thereto or thereof) included in such Investor Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and use its commercially reasonable efforts to promptly update and/or correct such prospectus.

(vii) notify each Investor of the issuance by the Commission or any state securities commission or agency of any stop order suspending the effectiveness of the Investor Registration Statement or the threat or initiation of any proceedings for that purpose. The Company shall use its commercially reasonable efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible time.

(viii) if required by the NASDAQ or the principal securities exchange and/or market on which the Company ordinary shares is then listed, qualify the Registrable Securities covered by such Investor Registration Statement for listing on the NASDAQ or the principal securities exchange and/or market on which the Company ordinary shares are then listed, including the preparation and filing of any required filings with such principal market or exchange.

(b) The Company may suspend the use of any Investor Prospectus used in connection with the Investor Registration Statement only in the event, and for such period of time as, (i) such a suspension is required by the rules and regulations of the Commission or any self-regulatory organization, or (ii) it is determined in good faith by the Board of the Company that because of valid business reasons (not including the avoidance of the Company’s obligations hereunder), it is in the best interests of the Company to suspend such use, and prior to suspending such use in accordance with this clause (b) the Company provides the Investors with written notice of such suspension, which notice need not specify the nature of the event giving rise to such suspension. The Company will use commercially reasonable efforts to cause such suspension to terminate at the earliest possible date. Notwithstanding the foregoing, the use of any Investor Prospectus may be suspended by reason of clause (ii) of this subsection (b) for a period of time not to exceed (A) sixty consecutive days for any one such suspension or (B) an aggregate of ninety days during the Investor Registration Period.
 
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(c) The Company shall prepare and file with the Commission such amendments (including post-effective amendments) and supplements to the Investor Registration Statement and the Investor Prospectus used in connection with the Investor Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep the Investor Registration Statement effective at all times during the Investor Registration Period (as defined below), and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Investor Registration Statement. In the case of amendments and supplements to the Investor Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 1.2(c) ) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the Exchange Act, the Company shall have incorporated such report by reference into the Investor Registration Statement, if applicable, or shall file such amendments or supplements with the Commission on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement the Investor Registration Statement.

(d) Each Investor agrees by its acquisition of the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Sections 1.2(a)(vi) or 1.2(a)(vii) , and upon notice of any suspension under Section 1.2(b) , such Investor will forthwith discontinue disposition of such Registrable Securities under the Investor Registration Statement until such Investor’s receipt of the copies of the supplemented prospectus and/or amendment to the Investor Registration Statement contemplated by this Section 1.2 , or until it is advised in writing by the Company that the use of the applicable prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such prospectus or the Investor Registration Statement. The Company may provide appropriate stop orders to enforce the provisions of this paragraph.

(e) If requested by an Investor, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as an Investor reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the Subscription Price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering, (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment, and (iii) as soon as practicable, supplement or make amendments to the Investor Registration Statement if reasonably requested by an Investor holding any Registrable Securities.

1.3              Expenses of Investor Registration . All Investor Registration Expenses in connection with any registration, qualification or compliance with registration pursuant to this Agreement shall be borne by the Company, and all Selling Expenses of an Investor shall be borne by such Investor.
 
A-4
1.4              Investor Registration Period . In the case of the Investor Registration, the Company shall keep such registration effective from the date on which the Investor Registration Statement initially became effective until the earlier of: (i) the date on which all the Investors have completed the sales or distribution described in the Investor Registration Statement relating to the Registrable Securities registered for resale thereunder; (ii) until such Registrable Securities may be sold by the Investors without restriction pursuant to Rule 144 (or any successor thereto); or (iii) one year from the effective date of the Investor Registration Statement (the “ Investor Registration Period ”). Thereafter, the Company shall be entitled to withdraw such Investor Registration Statement and the Investors shall have no further right to offer or sell any of the Registrable Securities registered for resale thereon pursuant to the Investor Registration Statement (or any prospectus relating thereto).

1.5              Indemnification .

(a) Indemnification by the Company . The Company agrees to indemnify and hold harmless, to the fullest extent permitted by Law, (i) each Investor and its officers, directors, stockholders, employees, advisors, agents and Affiliates, (ii) each Investor’s Affiliates’ officers, directors, stockholders, employees, advisors, agents, and (iii) each Person who controls (within the meaning of the Securities Act, the Exchange Act) such Persons, against any and all claims, losses, damages, penalties, judgments, suits, costs, liabilities and expenses (or actions in respect thereof) (collectively, the “ Losses ”) arising out of or based on (A) any untrue statement (or alleged untrue statement) of a material fact contained in the Investor Registration Statement (including any Investor Prospectus) or any other document incorporated by reference therein, (B) any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not false or misleading (in the case of any Investor Prospectus, in light of the circumstances under which they were made), or (C) any violation by the Company of the Securities Act, the Exchange Act, the Canadian Securities Laws or any state securities or “blue sky” Laws applicable to the Company, and will reimburse each of the Persons listed above, for any reasonable and documented out-of-pocket legal and any other expenses reasonably incurred in connection with investigating and defending any such Losses; provided , that the Company will not be liable in any such case to the extent that any such Losses arise out of or are based on any untrue statement or omission based upon written information furnished to the Company by such Person and stated to be specifically for use in such Investor Registration Statement or Investor Prospectus.

(b) Indemnification by Investors . Each Investor agrees to indemnify and hold harmless, to the fullest extent permitted by Law, (i) the Company and its officers, directors, stockholders, employees, advisors, agents and Affiliates, (ii) each of the Company’s Affiliates’ officers, directors, stockholders, employees, advisors, agents, and (iii) each Person who controls the Company (within the meaning of the Securities Act, the Exchange Act or the Canadian Securities Laws), against any and all Losses arising out of or based on (A) any untrue statement (or alleged untrue statement) of a material fact made by such Investor contained in the Investor Registration Statement (including any Investor Prospectus) or any other document incorporated by reference therein or (B) any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements by such Investor therein not false or misleading (in the case of any Investor Prospectus, in light of the circumstances under which they were made), and will reimburse the Persons listed above for any reasonable and documented legal or any other expenses reasonably incurred in connection with investigating or defending any such Losses, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in reliance upon and in conformity with written information furnished to the Company by such Investor and stated to be specifically for use in such Investor Registration Statement or Investor Prospectus, provided , however , that the obligations of each Investor hereunder shall be limited to such Investor’s respective Subscription Price.
 
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(c) Conduct of the Indemnification Proceedings . Each Person entitled to indemnification under this Section 1.5 (the “ Indemnified Party ”) shall give notice to the Person required to provide indemnification (the “ Indemnifying Party ”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided , that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld) and the Indemnified Party may participate in such defense at such Indemnified Party’s expense (unless the Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in such action, in which case the fees and expenses of counsel shall be at the expense of the Indemnifying Party); and provided , further , that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 1.5 unless the Indemnifying Party is actually and materially prejudiced thereby. It is understood and agreed that the Indemnifying Party shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate legal counsel for all Indemnified Parties; provided , however , that where the failure to be provided separate legal counsel would be reasonably likely to result in a conflict of interest on the part of such legal counsel for all Indemnified Party, separate counsel shall be appointed for the Indemnified Parties to the extent needed to alleviate such potential conflict of interest. No Indemnifying Party, in the defense of any such claim or litigation shall, except with the prior written consent of each Indemnified Party, consent to 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 of such claim or litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnified Party may reasonably request in writing and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom.

(d) Contribution . If the indemnification provided for in this Section 1.5 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any Losses, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party, on the one hand, and the Indemnified Party, on the other, in connection with the statements or omissions (or alleged statements or omissions) which resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue (or alleged untrue) statement of a material fact or the omission (or alleged omission) to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and such parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided , however , that the obligations of each Investor shall be limited to an amount equal to the such Investor’s respective Subscription Price; and provided , further , that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) or gross negligence shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation or gross negligence.
 
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(e) Exclusivity . Subject to the limitations on each Investor’s liability set forth in Section 1.5(b) and Section 1.5(d) , the remedies provided for in this Section 1.5 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Party at Law or equity. The remedies shall remain in full force and effect regardless of any investigation made by or on behalf of an Investor or any Indemnified Party and survive the transfer of the Investor Shares by an Investor.

1.6              Survival . The indemnity and contribution agreements contained in Section 1.5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Indemnified Party or by or on behalf of the Company, and (iii) the consummation of the sale or successive resales of the Registrable Securities.
 
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1.7              Information by Investors . Each Investor shall promptly furnish to the Company such information regarding such Investor and the distribution and/or sale proposed by such Investor as the Company may from time to time reasonably request in writing in connection with any Investor Registration, qualification or compliance referred to in this Agreement, and the Company may exclude from such Investor Registration the Registrable Securities of any Investor who unreasonably fails to furnish such information within a reasonable time after receiving such request. The intended method or methods of disposition and/or sale of such securities as so provided by such purchaser shall be included without alteration in the Investor Registration Statement covering the Registrable Securities and shall not be changed without written consent of such Investor. Each Investor agrees that, other than ordinary course brokerage arrangements, in the event it enters into any arrangement with a broker dealer for the sale of any Registrable Securities through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, such Investor shall promptly deliver to the Company in writing all applicable information required in order for the Company to be able to timely file a supplement to the Investor Prospectus pursuant to Rule 424(b), or take any other action, under the Securities Act, to the extent that such supplement or other action is legally required. Such information shall include a description of (i) the name of such Investor and of the participating broker dealer(s), (ii) the number of Registrable Securities involved, (iii) the price at which such Registrable Securities were or are to be sold, and (iv) the commissions paid or to be paid or discounts or concessions allowed or to be allowed to such broker dealer(s), where applicable
 
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ANNEX B

PURCHASER’S REGISTRATION RIGHTS

1.1.              Certain Definitions .

(a) “ Canadian Commissions ” means the securities commissions or similar regulatory authorities in the Canadian Qualifying Provinces.

(b) “ Canadian Final Prospectus ” means the final prospectus of the Company and any amendments thereto, in respect of the qualification for distribution of the Purchaser Shares from the Purchaser to the holders of the Purchaser Common Shares.

(c) “ Canadian Final Receipt ” means a receipt for the Canadian Final Prospectus issued in accordance with the Canadian Passport System.

(d) “ Canadian Passport System ” means the system and procedures for the filing of prospectuses and related materials in one or more Canadian jurisdictions pursuant to applicable Canadian Securities Laws.

(e) “ Canadian Preliminary Prospectus ” means the preliminary prospectus of the Company and any amendments thereto, in respect of the qualification for distribution of the Purchaser Shares from the Purchaser to the holders of the Purchaser Common Shares.

(f) “ Canadian Preliminary Receipt ” means a receipt for the Canadian Preliminary Prospectus issued in accordance with the Canadian Passport System.

(g) “ Canadian Prospectus ” means, collectively, the Canadian Preliminary Prospectus and the Canadian Final Prospectus.

(h) “ Canadian Prospectus Expenses ” means any and all expenses incurred by the Company and its Subsidiaries in qualification of the Purchaser Shares for distribution from the Purchaser to the holders of the Purchaser Common Shares, including all (a) costs and expenses of or incidental to the preparation, filing, reproduction (including the commercial copies thereof) and printing of the Canadian Preliminary Prospectus, the Canadian Final Prospectus and any other documents in connection therewith and any amendments or supplements thereto, (b) fees and expenses of compliance with applicable Canadian Securities Laws, (c) expenses in connection with the preparation, printing, mailing and delivery of the Registration Statement, Canadian Prospectus and other documents in connection therewith and any amendments or supplements thereto, (d) internal expenses of the Company (including, all salaries and expenses of its officers and employees performing legal or accounting duties), (f) fees and disbursements of counsel for the Company and fees and expenses for independent certified public accountants retained by the Company and (g) fees and expenses of any special experts retained by the Company in connection with any of the above. Canadian Prospectus Expenses shall not include, and the Company shall not have any obligation to pay, any out-of-pocket expenses of Purchaser.
 
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(i) “ Canadian Qualifying Provinces ” means each of the provinces and/or territories in Canada in which a holder of Purchaser Common Shares is resident.

(j) “ Prospectus ” means the prospectus (including any preliminary, final or summary prospectus) included in the Registration Statement, all amendments and supplements to such prospectus and all other material incorporated by reference in such prospectus.

(k) “ Registration ” means the registration effected by preparing and filing (a) the Registration Statement in compliance with the Securities Act (and any post-effective amendments filed or required to be filed) and the declaration or ordering of effectiveness of such Registration Statement, or (b) a Prospectus and/or Prospectus supplement in respect of the effective Registration Statement.

(l) “ Registration Expenses ” means any and all expenses incurred by the Company and its Subsidiaries in effecting the Registration pursuant to this Agreement, including, all (a) Registration and filing fees, and all other fees and expenses payable in connection with the listing of securities on any securities exchange or automated interdealer quotation system, (b) fees and expenses of compliance with any securities or “blue sky” Laws (including reasonable fees and disbursements of counsel in connection with “blue sky” qualifications of the Purchaser Shares), (c) expenses in connection with the preparation, printing, mailing and delivery of the Registration Statement, Prospectus and other documents in connection therewith and any amendments or supplements thereto, (d) printing expenses, (e) internal expenses of the Company (including, all salaries and expenses of its officers and employees performing legal or accounting duties), (f) fees and disbursements of counsel for the Company and fees and expenses for independent certified public accountants retained by the Company and (g) fees and expenses of any special experts retained by the Company in connection with such Registration. Registration Expenses shall not include, and the Company shall not have any obligation to pay, any out-of-pocket expenses of Purchaser or any transfer taxes (x) applicable to the sale, transfer, issuance or allotment of the Purchaser Shares; or (y) arising in connection with the Distribution, both of which shall be borne by Purchaser.

(m) “ Registration Statement ” means the registration statement of the Company that covers the Distribution of the Purchaser Shares to the holders of the Purchaser Common Shares pursuant to the provisions of this Agreement filed with, or to be filed with, the Commission under the rules and regulations promulgated under the Securities Act, including the related Prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits, financial information and all other material incorporated by reference in such registration statement.

1.2.              Registration Requirements .
 
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(a) As promptly as practicable following the filing of a Registration Statement on Form S-4 by the Company, the Company shall (i) prepare and cause to be filed with the Commission (no later than August 7, 2015) the Registration Statement on an eligible form and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing, and (ii) prepare and caused to be filed with the Canadian Commissions on or prior to August 7, 2015 the Canadian Preliminary Prospectus, and as soon as possible thereafter prepare and caused to be filed with the Canadian Commissions the Canadian Final Prospectus for the purposes of qualifying the Purchaser Shares for distribution from the Purchaser to the holders of the Purchaser Common Shares pursuant to the Canadian Securities Laws. The Company shall use its commercially reasonable efforts to keep the Registration Statement and the Canadian Final Prospectus current and effective until the time the Distribution is completed. In addition, until the completion of the Distribution, the Company shall take all reasonably necessary steps and proceedings as may be required from time to time under the Canadian Securities Laws to qualify the Purchaser Shares for distribution to the holders of the Purchaser Common Shares in each Canadian Qualifying Province, or in the event that the Purchaser Shares have for any reason ceased to so qualify, to again qualify the Purchaser Shares for distribution. Each of Purchaser and Pozen shall furnish the Company all information concerning such person and its Affiliates, and provide such other assistance, as may be reasonably requested in connection with the preparation and filing of the Registration Statement and the Canadian Prospectus. Each of the Registration Statement and the Canadian Prospectus shall include all information reasonably requested by the Purchaser to be included therein. The Company shall promptly notify the other upon the receipt of any comments from the Commission or the Canadian Commissions or any request from the Commission or the Canadian Commissions for amendments or supplements to the Registration Statement or the Canadian Prospectus, and shall provide Purchaser with copies of all correspondence between it and its representatives, on one hand, and the Commission or the Canadian Commissions, on the other hand. The Company shall use its commercially reasonable efforts to respond as promptly as practicable to any comments from the Commission or the Canadian Commissions with respect to the Registration Statement or the Canadian Prospectus, as the case may be. Notwithstanding the foregoing, prior to filing (i) the Registration Statement (or any amendment or supplement thereto) or responding to any comments of the Commission with respect thereto, or (ii) Canadian Prospectus (or any amendment or supplement thereto) or responding to any comments of the Canadian Commissions with respect thereto, the Company shall provide Purchaser an opportunity to review and comment on such document or response (including the proposed final version of such document or response). The Company shall advise Purchaser, promptly after receipt of notice thereof, of the time of effectiveness of the Registration Statement, the issuance of any stop order relating thereto, and the Company shall use its commercially reasonable efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. In addition, the Company shall advise the Purchaser, promptly after receipt thereof, of the receipt of the Canadian Preliminary Receipt and the Canadian Final Receipt. The Company shall also take any other action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under the Securities Act, the Exchange Act, the Canadian Securities Laws, any applicable foreign or state securities or “Blue Sky” laws and the rules and regulations thereunder in connection with the transactions associated with this Agreement.
 
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(b) If, prior to the completion of the Distribution, any event occurs with respect to the Company or Pozen or any of their respective Subsidiaries, or any change occurs with respect to other information supplied by the Company or Pozen for inclusion in the Registration Statement, the Canadian Preliminary Prospectus or the Canadian Final Prospectus, which is required to be described in an amendment of, or a supplement to, the Registration Statement, the Canadian Preliminary Prospectus or the Canadian Final Prospectus, the Company shall promptly notify Purchaser of such event or Pozen shall promptly notify the Company and Purchaser of such event, as applicable, and the Company shall use commercially reasonable efforts to promptly file with (i) the Commission any necessary amendment or supplement to the Registration Statement, and (ii) with the Canadian Commissions any necessary amendment or supplement to the Canadian Preliminary Prospectus or the Canadian Final Prospectus, as the case may be, and, as required by Law and the Canadian Securities Laws, disseminate the information contained in such amendment or supplement. Nothing in this Section 1.2(b) shall limit the obligations of any party under Section 1.2(a) .

(c) If prior to the completion of the Distribution, any event occurs with respect to Purchaser or any of its Subsidiaries, or any change occurs with respect to other information supplied by Purchaser for inclusion in the Registration Statement, the Canadian Preliminary Prospectus or the Canadian Final Prospectus, which is required to be described in an amendment of, or a supplement to, the Registration Statement, the Canadian Preliminary Prospectus or the Canadian Final Prospectus, Purchaser shall promptly notify the Company of such event, and the Company shall use commercially reasonable efforts to promptly file with the (i) Commission any necessary amendment or supplement to the Registration Statement, and (ii) with the Canadian Commissions any necessary amendment or supplement to the Canadian Preliminary Prospectus or the Canadian Final Prospectus, as the case may be and, as required by Law and the Canadian Securities Laws, disseminate the information contained in such amendment or supplement. Nothing in this Section 1.2(c) shall limit the obligations of any party under Section 1.2(a) .

(d) The Company shall deliver to Purchaser, without charge, as many copies of the Prospectus and the Canadian Prospectus, and any amendment or supplement thereto, as Purchaser may reasonably request in the context of the Distribution (it being understood that the Company consents to the use of the Prospectus and the Canadian Prospectus and any amendment or supplement thereto in connection with the Distribution) and such other documents as Purchaser may reasonably request in order to facilitate the Distribution.

(e) The Company shall reasonably cooperate with Purchaser to facilitate the timely preparation and delivery of certificates, with requisite CUSIP numbers, representing the Purchaser Shares to be distributed to the holders of the Purchaser Common Shares pursuant to the Distribution and not bearing any restrictive legends.

(f) The Company will use its commercially reasonable efforts to procure the cooperation of the Company’s transfer agent in settling the distribution of the Purchaser Shares to the holders of the Purchaser Common Shares pursuant to the Distribution, including with respect to the transfer of physical security instruments into book-entry form in accordance with any procedures reasonably requested by Purchaser.
 
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1.3.              Indemnification.

(a) Indemnification by the Company . The Company agrees to indemnify and hold harmless, to the fullest extent permitted by Law, (i) Purchaser and its officers, directors, stockholders, employees, advisors, agents and Affiliates, (ii) each of Purchaser’s Affiliates’ officers, directors, stockholders, employees, advisors, agents, and (iii) each Person who controls (with the meaning of the Securities Act, the Exchange Act or the Canadian Securities Laws) such Persons, against any and all claims, losses, damages, penalties, judgments, suits, costs, liabilities and expenses (or actions in respect thereof) (collectively, the “ Losses ”) arising out of or based on (A) any untrue statement (or alleged untrue statement) of a material fact contained in the Registration Statement (including any Prospectus) or the Canadian Prospectus or any other document incorporated by reference therein, (B) any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not false or misleading (in the case of any Prospectus and the Canadian Prospectus, in light of the circumstances under which they were made), or (C) any violation by the Company of the Securities Act, the Exchange Act, the Canadian Securities Laws or any state securities or “blue sky”' Laws applicable to the Company, and will reimburse each of the Persons listed above, for any reasonable and documented out-of-pocket legal and any other expenses reasonably incurred in connection with investigating and defending any such Losses; provided, that the Company will not be liable in any such case to the extent that any such Losses arise out of or are based on any untrue statement or omission based upon written information furnished to the Company by Purchaser and stated to be specifically for use in such Registration Statement, Prospectus or the Canadian Prospectus.

(b) Indemnification by Purchaser . Purchaser agrees to indemnify and hold harmless, to the fullest extent permitted by Law, (i) the Company and its officers, directors, stockholders, employees, advisors, agents and Affiliates, (ii) each of the Company’s Affiliates’ officers, directors, stockholders, employees, advisors, agents, and (iii) each Person who controls the Company (within the meaning of the Securities Act, the Exchange Act or the Canadian Securities Laws), against any and all Losses arising out of or based on (A) any untrue statement (or alleged untrue statement) of a material fact made by Purchaser contained in any Registration Statement (including any Prospectus), the Canadian Prospectus or any other document incorporated by reference therein or (B) any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements by Purchaser therein not false or misleading (in the case of any Prospectus and the Canadian Prospectus, in light of the circumstances under which they were made), and will reimburse the Persons listed above for any reasonable and documented legal or any other expenses reasonably incurred in connection with investigating or defending any such Losses, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in reliance upon and in conformity with written information furnished to the Company by Purchaser and stated to be specifically for use in such Registration Statement, Prospectus or the Canadian Prospectus, provided , however , that the obligations of Purchaser hereunder shall be limited to the Subscription Price.
 
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(c) Conduct of the Indemnification Proceedings . Each Person entitled to indemnification under this Section 1.3 (the “ Indemnified Party ”) shall give notice to the Person required to provide indemnification (the “ Indemnifying Party ”) promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided , that counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld) and the Indemnified Party may participate in such defense at such Indemnified Party’s expense (unless the Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in such action, in which case the fees and expenses of counsel shall be at the expense of the Indemnifying Party); and provided , further , that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 1.3 unless the Indemnifying Party is actually and materially prejudiced thereby. It is understood and agreed that the Indemnifying Party shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate legal counsel for all Indemnified Parties; provided , however , that where the failure to be provided separate legal counsel would be reasonably likely to result in a conflict of interest on the part of such legal counsel for all Indemnified Party, separate counsel shall be appointed for the Indemnified Parties to the extent needed to alleviate such potential conflict of interest. No Indemnifying Party, in the defense of any such claim or litigation shall, except with the prior written consent of each Indemnified Party, consent to 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 of such claim or litigation. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnified Party may reasonably request in writing and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom.

(d) Contribution . If the indemnification provided for in this Section 1.3 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any Losses, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party, on the one hand, and the Indemnified Party, on the other, in connection with the statements or omissions (or alleged statements or omissions) which resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by reference to, among other things, whether the untrue (or alleged untrue) statement of a material fact or the omission (or alleged omission) to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and such parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided , however , that the obligations of Purchaser shall be limited to an amount equal to the Subscription Price; and provided , further , that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) or gross negligence shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation or gross negligence.
 
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(e) Exclusivity . Subject to the limitations on Purchaser’s liability set forth in Section 1.3(b) and Section 1.3(d) , the remedies provided for in this Section 1.3 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Party at Law or equity. The remedies shall remain in full force and effect regardless of any investigation made by or on behalf of Purchaser or any Indemnified Party and survive the transfer of the Shares by Purchaser.
 

 
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Exhibit 99.1
 
Filed pursuant to Rule 425 under the Securities Act of 1933, as amended,
and deemed filed pursuant to 14a-12 under the
Securities Exchange Act of 1934, as amended
Filing Person: POZEN Inc.
Subject Company: Tribute Pharmaceuticals Canada Inc.
Commission File No.: 000-31198
 
 
POZEN ANNOUNCES STRATEGIC ACQUISITION OF TRIBUTE
AND GROWTH CAPITAL COMMITMENT FROM LEADING HEALTHCARE SPONSORS

Transformative Transaction Creates Premier Specialty Pharma Company
Focused on Cardiovascular Treatments

US$350 Million Capital Commitment from Deerfield-Led Syndicate to
Fund Commercial Launch and Pursue Strategic Acquisitions and Growth Opportunities

Adrian Adams Will Lead World-Class Management Team with Record of Growth and Innovation

CHAPEL HILL, N.C. & MILTON, Ontario--( June 8, 2015 )--POZEN Inc. (“POZEN”) (NASDAQ: POZN), a pharmaceutical company committed to developing medicine that transforms lives, today announced the acquisition of Tribute Pharmaceuticals Canada Inc. (“Tribute”) ( TSXV:TRX or OTCQX: TBUFF ), a Canadian specialty pharmaceutical company, in a transaction valued at approximately US$146 million. Upon completion of the acquisition, which is expected to occur in the fourth quarter of 2015, the combined company will be named Aralez Pharmaceuticals plc (“Aralez” or the “Company”) and domiciled in Ireland. Upon closing, Aralez is expected to trade on NASDAQ and TSX.

The acquisition will create a premier specialty pharmaceutical company with a broad portfolio of commercial products and a growth plan focused on innovative products and acquisitions and the commercialization of portfolio products in the United States and Canada. The Company will also be well positioned to expand its foreign presence through potential international sales and licensing, manufacturing and product development.

Today, POZEN’s lead proprietary product is YOSPRALA™, a coordinated-delivery tablet designed to provide the cardiovascular benefit of aspirin while reducing its gastrointestinal side effects. POZEN also has two commercial pain products, VIMOVO® and Treximet ®, which are marketed by partners worldwide. Tribute’s highly complementary portfolio includes Fibricor®, Bezalip® SR and Visken®/Viskazide® for various cardiovascular indications; Cambia® and Fiorinal® and Fiorinal® C for acute migraines and tension headaches, respectively; and a range of other specialty products. Tribute also is pursuing active and ongoing business development activities.

With this foundation, and with the significant investment led by Deerfield and including QLT Inc. and other co-investors, the company intends to build a specialty pharmaceutical platform with an initial focus on the commercialization of YOSPRALA and other cardiovascular products.
 
“POZEN is focused on becoming a leading player in the North American specialty pharmaceuticals space, and we expect this transformative acquisition to enhance our offerings while providing significant benefits for all of our stakeholders,” said Adrian Adams, Chief Executive Officer of POZEN, who will lead the combined Company. “Tribute’s strong presence in Canada, along with the committed capital to fund ongoing growth opportunities, provides POZEN with the broad capabilities to execute against its objectives. I have tremendous respect for Rob Harris and what he and the entire Tribute team have built; we look forward to welcoming them to POZEN.”

Rob Harris, President and Chief Executive Officer of Tribute, said, “We are very pleased to join with POZEN and have the opportunity to leverage the expertise of its management team across the healthcare, pharmaceutical and, in particular, cardiovascular sectors. Our businesses are highly complementary and with access to additional, lower cost of capital, our ability to further expand our product portfolio increases significantly from where Tribute was prior to this transaction.”

Capital Investment

In connection with the acquisition, a syndicate of leading healthcare investors, led by Deerfield, has committed up to US$350 million in growth capital for the combined company, intended to support the anticipated commercial launch of YOSPRALA and for future acquisitions. Such financing is expected to close simultaneously with the closing of the transaction with Tribute. The proposed investment in Aralez includes:

· US$75 million of equity at a purchase price of US$7.20 per ordinary share;

· US$75 million in 2.5% Convertible Senior Secured Notes due six years from issuance with a conversion price of US$9.54 per ordinary share; and

· Up to US$200 million committed senior secured debt facility to fund future acquisitions.

“This is an ideal opportunity to invest in a team, led by Adrian Adams, that knows how to foster innovation in healthcare,” said James Flynn, Managing Partner at Deerfield. “On behalf of our other investors, we offer our full support and look forward to seeing real change in the market in the not-so-distant future.”

Mr. Adams also commented on the financing, saying, “We are delighted that Deerfield, a leading healthcare investor with a track record of support for innovative companies, is our partner in creating Aralez. With this tangible vote of confidence, Aralez will have a unique mix of capital, products and talent, enabling us to drive significant innovation and growth."
 
Compelling Strategic Rationale of the Acquisition

· World-Class Management. Adrian Adams (Chief Executive Officer) and Andrew Koven (President and Chief Business Officer) formerly led companies including Auxilium, Inspire, Sepracor and Kos.

· Broad Product Portfolio. Multiple United States and Canadian cardiovascular and pain products, in addition to products with specialist indications including dermatology, orthopedics, urology and acute care.

· Strong Financial Profile. Well-capitalized, tax-advantaged, company with ample liquidity to commercialize existing portfolio products, including YOSPRALA, and to explore additional acquisition opportunities.

· Platform for Growth. Team, corporate structure, financial profile and Irish domicile set the stage for sustained long-term growth, both organically and through acquisitions.

Transaction Terms and Structure

POZEN has formed a new company, to be named Aralez Pharmaceuticals Limited, organized under the laws of Ireland (“Aralez”). An indirect U.S. subsidiary of Aralez will merge with POZEN, with POZEN surviving as a wholly-owned subsidiary of Aralez. Similarly, an indirect Canadian subsidiary of Aralez will acquire Tribute, through a plan of arrangement, with Tribute surviving as a wholly-owned indirect subsidiary of Aralez. At closing, each share of POZEN common stock will be converted into the right to receive one Aralez ordinary share and each common share of Tribute (other than dissenting shares) will be exchanged for 0.1455 Aralez ordinary shares. As a result of the proposed transaction and before giving effect to the contemplated financing, stockholders of POZEN will own approximately 66 percent of Aralez and shareholders of Tribute would own approximately 34 percent of Aralez, in each case prior to giving effect to any exercise of any outstanding options or warrants or vesting and delivery of any restricted stock units of either company after the date hereof. As of June 5, 2015, POZEN had 32.4 million common shares outstanding and 37.5 million fully diluted shares (using treasury stock method) and Tribute had 116.1 million common shares outstanding and 133.3 million fully diluted shares (using treasury stock method). The transaction will be taxable to the POZEN stockholders and Tribute shareholders. Upon closing, it is expected that Aralez will re-register as a public limited company in Ireland and be named Aralez Pharmaceuticals plc. Aralez will apply to list its ordinary shares on NASDAQ and the TSX.

On June 2, 2015, POZEN announced the formation of POZEN Limited, a wholly-owned Irish subsidiary, to expand its geographic footprint and increase its global presence, including potential international sales, manufacturing and product development.

Leadership Team

Mr. Adams, appointed to serve as Chief Executive Officer of POZEN on June 1, 2015, will serve as Chief Executive Officer of the combined company. Mr. Adams is a highly qualified pharmaceutical executive with more than 30 years of experience in the industry and a reputation for growing organizations by excellence in commercialization and by executing on business development opportunities that deliver compelling growth and value for shareholders. He most recently served as Chief Executive Officer and President of Auxilium Pharmaceuticals Inc., a specialty pharmaceutical company, until its acquisition by Endo International plc in January 2015.
 
Prior to joining Auxilium, Mr. Adams served as Chairman and Chief Executive Officer of Neurologix, Inc., a company focused on development of multiple innovative gene therapies for disorders of the brain and central nervous system. Prior to that, Mr. Adams served as President and Chief Executive Officer of Inspire Pharmaceuticals, Inc., where he oversaw the commercialization and development of prescription pharmaceutical products and led the company through a strategic acquisition by global pharmaceutical leader Merck & Co., Inc. Before Inspire, Mr. Adams served as President and Chief Executive Officer of Sepracor Inc. Before Sepracor, Mr. Adams was President and Chief Executive Officer of Kos Pharmaceuticals, Inc. Mr. Adams has also held general management and senior international and national marketing positions at SmithKline Beecham, Novartis and ICI.

In addition, Mr. Koven will serve as President and Chief Business Officer. Mr. Koven most recently served as Chief Administrative Officer and General Counsel of Auxilium Pharmaceuticals Inc. Prior to joining Auxilium, Mr. Koven served as President and Chief Administrative Officer of Neurologix, Executive Vice President and Chief Administrative and Legal Officer of Inspire Pharmaceuticals, Inc., Executive Vice President, General Counsel and Corporate Secretary of Sepracor and Executive Vice President, General Counsel and Corporate Secretary of Kos Pharmaceuticals and General Counsel and Secretary at Lavipharm Corporation. Mr. Koven’s industry experience also includes positions in the legal department at Warner Lambert Company and as a corporate securities associate at Cahill Gordon and Reindel.

Closing and Approvals

The transaction, which has been unanimously approved by the boards of directors of each of the constituent companies, is subject to approval by the stockholders of POZEN and Tribute, the satisfaction of customary closing conditions for transactions of this nature and certain regulatory approvals.

Advisors

Guggenheim Securities, LLC acted as financial advisor to POZEN in connection with the acquisition and financing transactions. Deutsche Bank Securities Inc. also served as financial advisor to POZEN, with legal advisors DLA Piper LLP in the United States and Canada and A&L Goodbody in Ireland. Bloom Burton & Co. and KES VII Capital Inc. served as financial advisor to Tribute, with Fogler, Rubinoff LLP serving as legal counsel in Canada, Troutman Sanders LLP in the United States and Walkers in Ireland.
 
Additional Information and Where to Find It

In connection with the proposed transaction, Aralez, POZEN and Tribute will be filing documents with the SEC, including a Registration Statement on Form S-4 that will include the proxy statement/prospectus relating to the proposed transaction and an Information Circular. After the registration statement has been declared effective by the SEC, a definitive proxy statement/prospectus will be mailed to POZEN stockholders in connection with the proposed transaction. Upon receipt of an interim court order in respect of the plan of arrangement, Tribute will be mailing an Information Circular to its shareholders in connection with the proposed transaction. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE REGISTRATION STATEMENT ON FORM S-4 AND THE RELATED PRELIMINARY AND DEFINITIVE PROXY/PROSPECTUS AS WELL AS THE INFORMATION CIRCULAR WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT ARALEZ, POZEN, TRIBUTE AND THE PROPOSED TRANSACTION. Investors and security holders may obtain free copies of these documents (when they are available) and other related documents filed with the SEC at the SEC's web site at www.sec.gov . Investors and security holders will be able to obtain free copies of the Information Circular and other documents filed by Tribute on the System for Electronic Document Analysis Retrieval (“SEDAR”) website maintained by the Canadian Securities Administrators at www.sedar.com . Investors and security holders may obtain free copies of the documents filed by POZEN with the SEC on POZEN's website at www.POZEN.com under the heading "Investors" and then under the heading "SEC Filings" and free copies of the documents filed by Tribute with the SEC on Tribute's website at www.tributepharma.com under the heading "Investors" and then under the heading "SEC Filings".

POZEN and Tribute and their respective directors and executive officers may be deemed participants in the solicitation of proxies from the stockholders of POZEN and shareholders of Tribute in connection with the proposed transaction. Information regarding the special interests, if any, of these directors and executive officers in the proposed transaction will be included in the proxy statement/prospectus and Information Circular described above. Additional information regarding the directors and executive officers of POZEN and Tribute is contained in their respective Annual Reports on Form 10-K for the year ended December 31, 2014 filed with the SEC.

This communication does not constitute an offer to sell, or the solicitation of an offer to sell, or the solicitation of an offer to subscribe for or buy, any securities nor shall there be any sale, issuance or transfer of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.

All dollar amounts included herein are stated in United States dollars.

For full prescribing information refer to the individual product websites.
 
About POZEN

POZEN Inc. is a specialty pharmaceutical company that to date has historically focused on developing novel therapeutics for unmet medical needs and licensing those products to other pharmaceutical companies for commercialization. By utilizing a unique in-source model and focusing on integrated therapies, POZEN has successfully developed and obtained FDA approval of two self-invented products. Funded by these milestones/royalty streams, POZEN has created a portfolio of cost-effective, evidence-based integrated aspirin therapies designed to enable the full power of aspirin by reducing its GI damage.

POZEN’s common stock is traded under the symbol “POZN” on The NASDAQ Global Market. For more detailed company information, including copies of this and other press releases, please visit www.pozen.com .

About TRIBUTE

Tribute is a specialty pharmaceutical company with a primary focus on the acquisition, licensing, development and promotion of healthcare products in Canada and the U.S. markets.

Tribute markets Cambia® (diclofenac potassium for oral solution), Bezalip® SR (bezafibrate), Soriatane® (acitretin), NeoVisc® (1.0% sodium hyaluronate solution) Uracyst® (sodium chondroitin sulfate solution 2%), Fiorinal®, Fiorinal® C, Visken®, Viskazide® and Collatamp® G in the Canadian market. Additionally, NeoVisc® and Uracyst® are commercially available and are sold globally through various international partnerships. Tribute also has the U.S. rights to Fibricor® and its related authorized generic. In addition, it has the exclusive U.S. rights to develop and commercialize Bezalip® SR in the U.S. and has the exclusive right to sell Bilastine, a product licensed from Faes Farma for the treatment of allergic rhinitis and chronic idiopathic urticaria (hives), in Canada. The exclusive license is inclusive of prescription and non-prescription rights for Bilastine, as well as adult and pediatric presentations in Canada. This product is subject to receiving Canadian regulatory approval.

Tribute's common stock is traded on the TSXV under the symbol TRX or on the OTCQX under the symbol TBUFF. For more detailed company information, including copies of this and other press releases, please visit www.tributepharma.com .

About Deerfield Management Company

Deerfield is an investment management firm, committed to advancing healthcare through investment, information and philanthropy. For more information about Deerfield, please visit www.deerfield.com .
 
Cautionary Language Concerning Forward-Looking Statements

"Safe Harbor" Statement under the Private Securities Litigation Reform Act of 1995

This press release contains forward-looking statements under applicable securities laws, including, but not limited to, statements related to the anticipated consummation of the business combination transaction among Aralez, POZEN and Tribute and the timing and benefits thereof, the anticipated equity and debt financings and the closings thereof, the combined company's strategy, plans, objectives, expectations (financial or otherwise) and intentions, future financial results and growth potential, anticipated product portfolio, development programs and management structure, the proposed listing on the NASDAQ and TSX and other statements that are not historical facts. These forward-looking statements are based on POZEN's and Tribute’s current expectations and inherently involve significant risks and uncertainties. Actual results and the timing of events could differ materially from those anticipated in such forward looking statements as a result of these risks and uncertainties, which include, without limitation, risks related to the parties ability to complete the combination and financings on the proposed terms and schedule; the parties ability to close the capital investment on the proposed terms and schedule; the combined company meeting the listing on the NASDAQ and TSX; risk that Aralez may be taxed as a U.S. resident corporation; risks associated with business combination transactions, such as the risk that the businesses will not be integrated successfully, that such integration may be more difficult, time-consuming or costly than expected or that the expected benefits of the transaction will not occur; risks related to future opportunities and plans for the combined company, including uncertainty of the expected financial performance and results of the combined company following completion of the proposed transaction; disruption from the proposed transaction, making it more difficult to conduct business as usual or maintain relationships with customers, employees or suppliers; the calculations of, and factors that may impact the calculations of, the acquisition price in connection with the proposed merger and the allocation of such acquisition price to the net assets acquired in accordance with applicable accounting rules and methodologies; and the possibility that if the combined company does not achieve the perceived benefits of the proposed transaction as rapidly or to the extent anticipated by financial analysts or investors, the market price of the combined company's shares could decline, as well as other risks related to POZEN's and Tribute’s business, including POZEN's inability to build, acquire or contract with a sales force of sufficient scale for the commercialization of YOSPRALA™ in a timely and cost-effective manner, the parties’ failure to successfully commercialize our product candidates; costs and delays in the development and/or FDA approval of our product candidates (including YOSPRALA™), including as a result of the need to conduct additional studies or due to issues with third-party manufacturers, or the failure to obtain such approval of POZEN’s product candidates for all expected indications, including as a result of changes in regulatory standards or the regulatory environment during the development period of any of its product candidates; the inability to maintain or enter into, and the risks resulting from POZEN’s dependence upon, collaboration or contractual arrangements necessary for the development, manufacture, commercialization, marketing, sales and distribution of any products, including its dependence on AstraZeneca and Horizon for the sales and marketing of VIMOVO®, POZEN’s dependence on Patheon for the manufacture of YOSPRALA™ 81/40 and YOSPRALA™ 325/40 ; the ability of the parties to protect its intellectual property and defend its patents; regulatory obligations and oversight; and those risks detailed from time-to-time under the caption "Risk Factors" and elsewhere in POZEN's SEC filings and reports, including in its Annual Report on Form 10-K for the year ended December 31, 2014 and Form 10-Q for the quarter ended March 31, 2015 and in Tribute’s SEC filings and report, including in its Annual Report on Form 10-K for the year ended December 31, 2014 and Form 10-Q for the quarter ended March 31, 2015. POZEN and Tribute undertake no duty or obligation to update any forward-looking statements contained in this presentation as a result of new information, future events or changes in their expectations.
 
Neither TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
 
 
Contacts

POZEN Inc.
Bill Hodges, Chief Financial Officer
919-913-1030

or

Stephanie Bonestell
Manager, Investor Relations & Public Relations
919-913-1030

or

James Golden or Joe Snodgrass
Joele Frank, Wilkinson, Brimmer & Katcher
212-355-4449

or

Tribute Pharmaceuticals Canada Inc.
Scott Langille, Chief Financial Officer
905-876-3166