SC 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HqbY+gqi4H+cewUxi4+6jNnG3+lyy3hwbH31BAWIs4Oyz8od5sFQbTdcfAyCcl5D D5OjhqU9OV81yXRZWcFM4A== 0000950123-08-002574.txt : 20080305 0000950123-08-002574.hdr.sgml : 20080305 20080305172742 ACCESSION NUMBER: 0000950123-08-002574 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20080305 DATE AS OF CHANGE: 20080305 GROUP MEMBERS: GALDERMA ACQUISTION INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: COLLAGENEX PHARMACEUTICALS INC CENTRAL INDEX KEY: 0001012270 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 521758016 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-47825 FILM NUMBER: 08668823 BUSINESS ADDRESS: STREET 1: 41 UNIVERSITY DRIVE CITY: NEWTON STATE: PA ZIP: 18940 BUSINESS PHONE: 2155797388 MAIL ADDRESS: STREET 1: 41 UNIVERSITY DRIVE CITY: NEWTON STATE: PA ZIP: 18940 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Galderma Laboratories, Inc. CENTRAL INDEX KEY: 0001428250 IRS NUMBER: 751714673 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 14501 NORTH FREEWAY CITY: FORT WORTH STATE: TX ZIP: 76177 BUSINESS PHONE: (817) 961-5000 MAIL ADDRESS: STREET 1: 14501 NORTH FREEWAY CITY: FORT WORTH STATE: TX ZIP: 76177 SC 13D 1 y50459dsc13d.htm SC 13D SC 13D

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

CollaGenex Pharmaceuticals, Inc.

(Name of Issuer)

Common Stock, Par Value $0.01 Per Share

(Title of Class of Securities)

19419B100

(CUSIP Number)

Galderma Laboratories, Inc.
14501 North Freeway
Fort Worth, Texas 76177
Attention: Quintin Cassady
Telephone: (817) 961-5000

(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)

Copy to:
Debevoise & Plimpton
919 Third Avenue
New York, New York 10022
Attention: Paul S. Bird, Esq.
Telephone: (212) 909-6000

February 25, 2008

(Date of Event which Requires Filing Statement on Schedule 13D)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box o.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

(Continued on following pages)

Schedule 13D


CUSIP No.		19419B100

NAMES OF REPORTING PERSONS

Galderma Laboratories, Inc.
S.S. or I.R.S. Identification No. of Above Person
75-1714673

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)

(a) þ

(b) o

SEC USE ONLY

SOURCE OF FUNDS (SEE INSTRUCTIONS)

WC, AF

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

SOLE VOTING POWER

NUMBER OF

-0-

SHARED VOTING POWER

BENEFICIALLY

OWNED BY

2,439,173 (2,235,294 of which are issuable upon the conversion of 190,000 shares of Series D-1 Cumulative Convertible Preferred Stock)

EACH

SOLE DISPOSITIVE POWER

REPORTING

PERSON

-0-

WITH

SHARED DISPOSITIVE POWER

2,235,294 (all of which are issuable upon the conversion of 190,000 shares of Series D-1 Cumulative Convertible Preferred Stock)

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

2,439,173 (2,235,294 of which are issuable upon the conversion of 190,000 shares of Series D-1 Cumulative Convertible Preferred Stock)

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

10.2%

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

Schedule 13D


CUSIP No.		19419B100

NAMES OF REPORTING PERSONS

Galderma Acquisition Inc.
S.S. or I.R.S. Identification No. of Above Person
26-2064404

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)

(a) þ

(b) o

SEC USE ONLY

SOURCE OF FUNDS (SEE INSTRUCTIONS)

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

SOLE VOTING POWER

NUMBER OF

-0-

SHARED VOTING POWER

BENEFICIALLY

OWNED BY

2,439,173 (2,235,294 of which are issuable upon the conversion of 190,000 shares of Series D-1 Cumulative Convertible Preferred Stock)

EACH

SOLE DISPOSITIVE POWER

REPORTING

PERSON

-0-

WITH

SHARED DISPOSITIVE POWER

2,235,294 (all of which are issuable upon the conversion of 190,000 shares of Series D-1 Cumulative Convertible Preferred Stock)

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

2,439,173 (2,235,294 of which are issuable upon the conversion of 190,000 shares of Series D-1 Cumulative Convertible Preferred Stock)

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

10.2%

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

TABLE OF CONTENTS


	Item 1. Security and Issuer
	Item 2. Identity and Background
	Item 3. Source and Amount of Funds or Other Consideration
	Item 4. Purpose of Transaction
	Item 5. Interest in Securities of the Issuer
	Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
	Item 7. Material to Be Filed as Exhibits
SIGNATURE
EX-4.2: PREFERRED STOCK PURCHASE AND VOTING AGREEMENT
EX-99.1: JOINT FILING AGREEMENT

Item 1. Security and Issuer

This statement relates to the Common Stock, par value $0.01 per share (“Common Stock”), and the Series D-1 Cumulative Preferred Stock, par value $0.01 per share (the “Series D-1 Preferred Stock”), of CollaGenex Pharmaceuticals, Inc., a Delaware corporation, (the “Issuer”). The address of the principal executive office of the Issuer is 41 University Drive, Newtown, Pennsylvania 18904.

Item 2. Identity and Background

(a), (b), (c) and (f) This Statement is being filed by (i) Galderma Laboratories, Inc., a Delaware corporation (“Galderma US”) and (ii) Galderma Acquisition Inc., a Delaware corporation and wholly owned subsidiary of Galderma US (“Purchaser” and, together with Galderma US, the “Reporting Persons”).

Galderma US is the United States holding company of Galderma Pharma S.A. (“Galderma International”), a fully integrated speciality pharmaceutical company dedicated exclusively to the field of dermatology. Galderma International has a presence in 65 countries with over 1000 sales representatives and is committed to improving the health of skin with an extensive line of products that treat a range of dermatological conditions including: acne, rosacea, fungal nail infections, psoriasis & steroid-responsive dermatoses, pigmentary disorders, medical solutions for skin senescence and skin cancer. To date, Purchaser has not engaged in any activities other than the activities incidental to its formation and the execution of the Merger Agreement (as defined below), as described in Item 4.

The address of the principle executive and business office of each of the Reporting Persons is 14501 North Freeway, Fort Worth, Texas, 76177. The telephone number is (817) 961-5000.

The name, present principal occupation or employment, and the name and principal business of any corporation or other organization in which such employment is conducted, of each of the respective directors and executive officers of the Reporting Persons are set forth on Schedule I hereto. Except as otherwise specified on Schedule I, the business address for each of the persons listed on Schedule I is c/o Galderma Laboratories, Inc., 14501 North Freeway, Fort Worth, Texas, 76177. Except as otherwise specified on Schedule I, all directors and executive officers of each of the Reporting Persons are citizens of the United States.

Galderma International directly owns 100% of the voting securities Galderma US. Galderma International is a joint venture between Nestlé S.A. and L’Oréal S.A., each of which owns 50% of the outstanding voting securities of Galderma International.

(d) and (e) During the last five years, neither of the Reporting Persons nor any of the persons listed in Schedule I has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which he, she or it was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting activities subject to, federal or state securities laws or finding any violation of such laws.

This Item 2 is qualified in its entirety by reference to Schedule I hereto, which is incorporated herein by reference.

Item 3. Source and Amount of Funds or Other Consideration

Each Reporting Person may be deemed to have acquired beneficial ownership of 2,439,173 shares of Common Stock (2,235,294 of which are issuable upon the conversion of 190,000 shares of Series D-1 Preferred Stock) pursuant to the Preferred Stockholder Agreement (as defined below) and certain irrevocable proxies to vote shares of Common Stock and shares of Series D-1 Preferred Stock granted thereunder.

Neither Reporting Person expended any funds in connection with the execution of the Preferred Stockholder Agreement. The Preferred Stockholder Agreement is described in more detail below.

Item 4. Purpose of Transaction

Merger Agreement

On February 25, 2008, the Issuer, Galderma US and Purchaser entered into an Agreement and Plan of Merger (the “Merger Agreement”). Pursuant to the Merger Agreement, (i) Purchaser will commence a tender offer (the “Offer”) to purchase all of the outstanding shares (the “Shares”) of Common Stock at a price of $16.60 per Share, net to the seller in cash without interest (the “Offer Price”) and (ii) following the consummation of the Offer, Purchaser will be merged with an into the Issuer (the “Merger”), with the Issuer as the surviving corporation, all upon the terms and subject to the conditions set forth in the Merger Agreement. In the Merger, each remaining Share will be converted into the right to receive an amount in cash equal to the Offer Price and each outstanding share (the “Series D-1 Shares”) of Series D-1 Preferred Stock will be converted into the right to receive an amount of cash equal to the product of the number of shares of Common Stock into which such Series D-1 Share is convertible multiplied by the Offer Price, all upon the terms and subject to the conditions set forth in the Merger Agreement.

The description of the Merger Agreement in this Statement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 4.1 hereto and is incorporated herein by reference.

Preferred Stock Purchase and Voting Agreement

On February 25, 2008, as an essential condition and inducement to the willingness of Galderma US and Purchaser to enter into the Merger Agreement, Galderma US and Purchaser entered into a Preferred Stock Purchase and Voting Agreement (the “Preferred Stockholder Agreement”) with OCM Principal Opportunities Fund L.P. (the “Oaktree Fund”), Cutchogue Point AP, LLC (“Cutchogue”), Robert J. Easton (“Easton”), and Pebblebrook Partners Ltd. (“Pebblebrook”, and together with the Oaktree Fund, Cutchogue, and Easton, the “Preferred Stockholders”).

Pursuant to the Preferred Stockholder Agreement, each Preferred Stockholder (a) has agreed to (i) sell all Series D-1 Shares beneficially owned by such Preferred Stockholder to

Purchaser concurrently with the closing of the Offer and (ii) vote its Series D-1 Shares and any other shares of capital stock of the Issuer owned by such Preferred Stockholder (the “Voting Shares”) against certain actions, transactions or agreements that compete with or would interfere, impede or otherwise frustrate the transactions contemplated by the Merger Agreement, and (b) has granted specified representatives of Galderma US an irrevocable proxy to vote and exercise voting and related rights with respect to the Voting Shares in accordance with the terms of the voting agreement set forth in the Preferred Stockholder Agreement.

The Preferred Stockholders will receive for each Series D-1 Share an amount in cash equal to the product of the number of shares of Common Stock into which such Series D-1 Share is convertible multiplied by the Offer Price.

Holders of a majority of the Series D-1 Preferred Stock have the right to terminate the Purchase and Voting Agreement upon the occurrence of specified events, including (a) any modification or amendment of the Merger Agreement that is adverse to the Preferred Stockholders in any material respect, including a reduction in the Offer Price, (b) any waiver by the Issuer of any obligation of Galderma US under the Merger Agreement, which waiver is adverse to the Preferred Stockholders in any material respect or (c) the occurrence of a Company Adverse Recommendation Change (as such term is defined in the Merger Agreement), provided that, in the case of clauses (a) and (b), the Preferred Stockholders holding a majority of the Series D-1 Preferred Stock have not consented in writing to such modification, amendment or waiver. The Preferred Stockholder Agreement terminates automatically upon the termination of the Merger Agreement.

This description of the Preferred Stockholder Agreement is qualified in its entirety by reference to the Preferred Stockholder Agreement, a copy of which is filed as Exhibit 4.2 hereto and is incorporated herein by reference.

Item 5. Interest in Securities of the Issuer

The information set in Items 3 and 4 above is hereby incorporated by reference.

(a) Purchaser is a direct wholly owned subsidiary of Galderma US, and Galderma US has the power to direct the voting or disposition of the Shares owned by Purchaser. Pursuant to the Preferred Stockholder Agreement, Galderma US may be deemed to have acquired beneficial ownership of 2,439,173 Shares in the aggregate, representing approximately 10.2% of the total outstanding Shares and shares of Common Stock issuable upon conversion of Series D-1 Shares as of February 25, 2008.

To the Reporting Persons’ knowledge, none of the other persons named in Item 2 above beneficially owns, within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), any shares of Common Stock or any other shares of capital stock of the Issuer.

Except as otherwise expressly provided in the Preferred Stockholder Agreement, neither Galderma US nor Purchaser is entitled to any rights as a stockholder of the Issuer as to any shares of Common Stock subject to the Preferred Stockholder Agreement.

(b) Pursuant to the Preferred Stockholder Agreement, (i) Galderma US and the Oaktree Fund shall be deemed to have the shared power to vote or to direct the vote of 2,145,286 shares of Common Stock (2,082,353 of which are issuable upon the conversion of 177,000 Series D-1 Shares), representing approximately 9.0% of the total outstanding Shares and shares of Common Stock issuable upon conversion of Series D-1 Shares as of February 25, 2008, (ii) Galderma US and Cutchogue shall be deemed to have the shared power to vote or to direct the vote of 138,376 shares of Common Stock (117,647 of which is issuable upon the conversion of 10,000 shares of Series D-1 Shares), representing approximately .6% of the total outstanding Shares and shares of Common Stock issuable upon conversion of Series D-1 Shares as of February 25, 2008, (iii) Galderma US and Easton shall be deemed to have the shared power to vote or to direct the vote of 141,746 shares of Common Stock (23,529 of which is issuable upon the conversion of 2,000 Series D-1 Shares), representing approximately .6% of the total outstanding Shares and shares of Common Stock issuable upon conversion of Series D-1 Shares as of February 25, 2008, and (iv) Galderma Laboratories, Inc. and Pebblebrook Partners Ltd. shall be deemed to have the shared power to vote or to direct the vote of 13,765 shares of Common Stock (11,765 of which is issuable upon the conversion of 1,000 Series D-1 Shares) , representing less than .1% of the total outstanding Shares and shares of Common Stock issuable upon conversion of Series D-1 Shares as of February 25, 2008.

Galderma US expressly disclaims being part of a group with any of the parties to the Preferred Stockholder Agreement and does not have any non-public information relating to such parties that is responsive to this item 5(b). To the knowledge of Galderma US, the Oaktree Fund has filed an amendment to its Schedule 13D relating to the Preferred Stockholder Agreement.

(c) Except for the Merger Agreement and the Preferred Stockholder Agreement described in Item 4 above, no transactions in Common Stock were effected during the past 60 days by the Reporting Persons or, to the knowledge of the Reporting Persons, any of the other persons named in Item 2 above.

(d) Except as set forth in this Item 5, to the knowledge of the Reporting Persons, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds of sale of, the shares of Common Stock beneficially owned by the Reporting Persons.

(e) Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

See Item 4 above.

Item 7. Material to Be Filed as Exhibits


Exhibit 4.1		Agreement and Plan of Merger, by and among Galderma Laboratories, Inc., Galderma Acquisition Inc., and the Issuer, dated as of February 25, 2008 (filed as Exhibit 2.1 to the Issuer’s Current Report on Form 8-K, dated as of February 27, 2008, and incorporated herein by reference).


Exhibit 4.2		Preferred Stock Purchase and Voting Agreement, by and among Galderma Laboratories, Inc., Galderma Acquisition Inc., OCM Principal Opportunities Fund, L.P., Cutchogue Point AP, LLC, Robert J. Easton, and Pebblebrook Partners Ltd., dated as of February 25, 2008.

Exhibit 99.1		Joint Filing Agreement, dated March 5, 2008, between Galderma Laboratories, Inc. and Galderma Acquisition Inc., pursuant to Rule 13d-1(k)(1).

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: March 5, 2008


GALDERMA LABORATORIES, INC.
By:	/s/ Albert Draaijer
	Name:	Albert Draaijer
	Title:	President

GALDERMA ACQUISITION INC.
By:	/s/ Albert Draaijer
	Name:	Albert Draaijer
	Title:	Treasurer and Vice President

SCHEDULE I

DIRECTORS AND EXECUTIVE OFFICERS OF REPORTING PERSONS

The following tables set forth the name and present principal occupation or employment of each director and executive officer of the Reporting Persons. Unless otherwise indicated, the business address for each of the directors and executive officers listed in the following tables is 14501 North Freeway, Fort Worth, Texas, 76177. Except as otherwise specified below, all directors and executive officers of each of the Reporting Persons are citizens of the United States.

Galderma Laboratories, Inc.:


Name		Principal Occupation or Employment and Business Address

*Executive Officers*
Albert Draaijer		President of Galderma Laboratories, Inc. and Head of North American Operations of Galderma Pharma S.A.
Anne Egger		Vice President, Marketing of Galderma Laboratories, Inc.
Bill Carson		Vice President, Medical and Regulatory Affairs of Galderma Laboratories, Inc.
Ken Ferrell		Vice President, Commercial Operations Services of Galderma Laboratories, Inc.
Brant Schofield		Vice President, Finance of Galderma Laboratories, Inc.
Quintin Cassady		Secretary of Galderma Laboratories, Inc. and Vice President, General Counsel and Secretary of Galderma Laboratories, L.P.
Yon Choi		Treasurer of Galderma Laboratories, Inc.

*Directors*
Humberto Antunes		Chief Executive Officer of Galderma Pharma S.A.
		Business Address: Tour Enroplaza, La Défense 4, F-92927 La Defense Cedex, France.
Pierre Libmann		Chief Financial Officer of Galderma Pharma S.A.
		Business Address: Tour Enroplaza, La Défense 4, F-92927 La Defense Cedex, France
Albert Draaijer		See information set forth above.

Galderma Acquisition Inc.:


Name		Principal Occupation or Employment and Business Address

*Executive Officers*
Humberto Antunes		See information set forth above.
Quintin Cassady		See information set forth above.
Albert Draaijer		See information set forth above.

*Directors*
Albert Draaijer		See information set forth above.
Quintin Cassady		See information set forth above.

Mr. Antunes is a citizen of Brazil; Mr. Libmann is a citizen of France; Mr. Draaijer is a citizen of the Netherlands.

EX-4.2 2 y50459dexv4w2.htm EX-4.2: PREFERRED STOCK PURCHASE AND VOTING AGREEMENT EX-4.2

Exhibit 4.2

EXECUTION VERSION

PREFERRED STOCK PURCHASE AND VOTING AGREEMENT

THIS PREFERRED STOCK PURCHASE AND VOTING AGREEMENT (this “Agreement”), dated as of February 25, 2008, is made and entered into by and among Galderma Laboratories, Inc., a Delaware corporation (“Parent”), Galderma Acquisition Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Purchaser”), and the persons listed on Schedule I hereto (collectively, the “Company Preferred Stockholders”).

WHEREAS, concurrently with the execution and delivery of this Agreement, Parent, Purchaser and CollaGenex Pharmaceuticals, Inc., a Delaware corporation (the “Company”), are entering into an Agreement and Plan of Merger, dated as of the date hereof (as it exists on the date hereof, the “Original Merger Agreement”, or as it may be amended from time to time, the “Merger Agreement”; capitalized terms used herein without definition shall have the respective meanings ascribed to them in the Merger Agreement), pursuant to which, among other things, (a) Purchaser will commence a tender offer to purchase all of the outstanding shares of common stock, par value $0.01, of the Company (“Company Common Stock”) (such offer as it may be amended from time to time as permitted by the Merger Agreement, the “Offer”), and (b) following the consummation of the Offer, Purchaser will be merged with and into the Company (the “Merger”), with the Company being the surviving corporation, all upon the terms and subject to the conditions set forth in the Merger Agreement;

WHEREAS, as of the date hereof, each Company Preferred Stockholder is the record or “beneficial holder” (as defined under Rule 13d-3 under the Exchange Act) of the number of issued and outstanding shares of Series D-1 Cumulative Convertible Preferred Stock, par value $0.01, of the Company (the “Series D-1 Preferred Stock”), set forth opposite such Company Preferred Stockholder’s name on Schedule I hereto (all such shares of Series D-1 Preferred Stock, the “Subject Shares”); and

WHEREAS, as a condition to their willingness to enter into the Merger Agreement, Parent and Purchaser have requested that each Company Preferred Stockholder enter into this Agreement, and each Company Preferred Stockholder has agreed to do so in order to induce Parent and Purchaser to enter into, and in consideration of their entering into, the Merger Agreement;

NOW, THEREFORE, in consideration of the foregoing and of the representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:

ARTICLE I

Purchase and Sale of Subject Shares

Section 1.1. Sale and Purchase of Subject Shares. Upon the terms and subject to the conditions contained herein, at the Closing (as defined below) each Company Preferred Stockholder shall sell, convey, transfer, assign and deliver to Purchaser such Company Preferred Stockholder’s Subject Shares, free and clear of all liens, pursuant to this Agreement (the “Sale”).

Section 1.2. Consideration for the Subject Shares. Upon the terms and subject to the conditions contained herein, Purchaser shall (and Parent shall cause Purchaser to) pay to each Company Preferred Stockholder an amount equal in cash to the product of the number of shares of Company Common Stock into which such Company Preferred Stockholder’s Subject Shares are convertible pursuant to and in accordance with Section A.5 of the Certificate of Designation, Preferences and Rights of the Series D-1 Cumulative Convertible Preferred Stock multiplied by the Offer Price (each such amount, the “Purchase Price”).

Section 1.3. Delivery of Subject Shares. At the Closing, each Company Preferred Stockholder shall deliver to Purchaser one or more duly issued and executed stock certificates, representing all of such Company Preferred Stockholder’s Subject Shares, together with stock powers duly executed in blank and all requisite stock transfer stamps.

Section 1.4. Delivery of Purchase Price. At the Closing, Purchaser shall (and Parent shall cause Purchaser to) deliver to each Company Preferred Stockholder the Purchase Price for such Company Preferred Stockholder’s Subject Shares in immediately available funds payable to the account designated by such Company Preferred Stockholder at least two Business Days prior to the Closing Date (as defined below).

Section 1.5. Closing. The closing of the sale and purchase of the Subject Shares (the “Closing”) shall occur at the offices of Debevoise & Plimpton LLP, 919 Third Avenue, New York, New York, on the first date that Purchaser becomes obligated, in accordance with the terms of the Merger Agreement, to pay for Shares pursuant to the Offer (the date on which the Closing occurs, the “Closing Date”).

ARTICLE II

Voting of Subject Shares.

Section 2.1. Agreement to Vote.

(a) From the date hereof until the termination of this Agreement in accordance with Section 6.1, except to the extent waived in writing by Parent in its sole and absolute discretion, at any meeting of the stockholders of the Company, however called, or at any

adjournment thereof, or in connection with any written consent of the stockholders of the Company or in any other circumstances upon which a vote, consent or other approval of all or some of the stockholders of the Company is sought, each Company Preferred Stockholder shall vote (or cause to be voted) such Company Preferred Stockholder’s Subject Shares and any other shares of capital stock of the Company owned, beneficially or of record, by such Company Preferred Stockholder during the term of this Agreement (such shares, together with the Subject Shares, the “Voting Shares”): (a) against any action, transaction or agreement that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or of any of the parties hereto under this Agreement; and (b) against the following actions (other than the Merger and the transactions contemplated by the Merger Agreement): (i) any extraordinary corporate transaction, such as a merger, consolidation or other business combination involving the Company or any of its Subsidiaries; (ii) any sale, lease or transfer of a material amount of assets of the Company or any of its Subsidiaries; (iii) any reorganization, recapitalization, dissolution, liquidation or winding up of the Company or any of its Subsidiaries; (iv) any change in the majority of the board of directors of the Company; (v) any change in the present capitalization of the Company or any amendment of the Company’s certificate of incorporation or by-laws; (vi) any other material change in the Company’s corporate structure or business; and (vii) any other action, transaction or proposal involving the Company or any of its Subsidiaries that is intended or would reasonably be expected to (A) prevent, nullify, impede, interfere with, frustrate, delay, postpone, discourage or otherwise materially adversely affect the Offer, the Merger, the Merger Agreement, any of the transactions contemplated by the Merger Agreement or this Agreement or the contemplated economic benefits of any of the foregoing or (B) change in any manner the voting rights of the Subject Shares. Each Company Preferred Stockholder further agrees not to commit or agree to take any action inconsistent with the foregoing.

(b) In the event that a meeting of the stockholders of the Company is held, each Company Preferred Stockholder shall, or shall cause the holder of record on any applicable record date to, appear at such meeting or otherwise cause its Voting Shares to be counted as present thereat for purposes of establishing a quorum.

(c) Each Company Preferred Stockholder shall not enter into any agreement or understanding with any Person to vote or give instructions in any manner inconsistent with the terms of this Section 2.

(d) EACH COMPANY PREFERRED STOCKHOLDER HEREBY IRREVOCABLY GRANTS TO AND APPOINTS QUINTIN CASSADY AND ALBERT DRAAIJER, IN THEIR RESPECTIVE CAPACITIES AS OFFICERS OF PARENT, AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO ANY SUCH OFFICE OF PARENT, AND EACH OF THEM INDIVIDUALLY, SUCH COMPANY PREFERRED STOCKHOLDER’S PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION), FOR AND IN THE NAME, PLACE AND STEAD OF SUCH

COMPANY PREFERRED STOCKHOLDER, TO REPRESENT, VOTE AND OTHERWISE ACT (BY VOTING AT ANY MEETING OF STOCKHOLDERS OF THE COMPANY, BY WRITTEN CONSENT IN LIEU THEREOF OR OTHERWISE) WITH RESPECT TO THE VOTING SHARES OWNED OR HELD BY SUCH COMPANY PREFERRED STOCKHOLDER REGARDING THE MATTERS REFERRED TO IN SECTION 2.1(a) HEREOF UNTIL THE TERMINATION OF THIS AGREEMENT, TO THE SAME EXTENT AND WITH THE SAME EFFECT AS SUCH COMPANY PREFERRED STOCKHOLDER MIGHT OR COULD DO UNDER APPLICABLE LAW, RULES AND REGULATIONS. THE PROXY GRANTED PURSUANT TO THIS SECTION 2.1(d) IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE. EACH COMPANY PREFERRED STOCKHOLDER WILL TAKE SUCH FURTHER ACTION AND WILL EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY. EACH COMPANY PREFERRED STOCKHOLDER HEREBY REVOKES ANY AND ALL PREVIOUS PROXIES OR POWERS OF ATTORNEY GRANTED WITH RESPECT TO ANY OF THE VOTING SHARES OWNED OR HELD BY SUCH COMPANY PREFERRED STOCKHOLDER REGARDING THE MATTERS REFERRED TO IN SECTION 2.1(a) HEREOF. THE PARTIES ACKNOWLEDGE AND AGREE THAT NEITHER PARENT, NOR ANY OF ITS SUCCESSORS, ASSIGNS, AFFILIATES, SUBSIDIARIES, EMPLOYEES, OFFICERS, DIRECTORS, STOCKHOLDERS, AGENTS OR OTHER REPRESENTATIVES, SHALL INCUR ANY LIABILITY TO ANY STOCKHOLDER IN CONNECTION WITH OR AS A RESULT OF ANY EXERCISE OF THE PROXY GRANTED TO PARENT PURSUANT TO THIS SECTION 2.1(d), OTHER THAN FOR A BREACH OF THIS SECTION 2.1(d). NOTWITHSTANDING THE FOREGOING, THIS PROXY SHALL TERMINATE UPON TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS.

ARTICLE III

Representations and Warranties of Each Company Preferred Stockholder

Each Company Preferred Stockholder hereby severally, and not jointly, represents and warrants to Parent and Purchaser (as to such Company Preferred Stockholder) as follows:

Section 3.1. Authority. Such Company Preferred Stockholder has all necessary legal capacity, power, and authority to execute and deliver this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by such Company Preferred Stockholder and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary action on the part of such Company Preferred Stockholder and, assuming the due authorization, execution, and delivery of this Agreement by Parent, Purchaser and each other

Company Preferred Stockholder, this Agreement constitutes a legal, valid, and binding obligation of such Company Preferred Stockholder, enforceable against such Company Preferred Stockholder in accordance with its terms, subject to the Bankruptcy and Equity Exception.

Section 3.2. Ownership of Subject Shares; Total Shares. Such Company Preferred Stockholder is the record or beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of, and has good title to, the Subject Shares listed beside such Company Preferred Stockholder’s name on Schedule I attached hereto, free and clear of all claims, liens, encumbrances and security interests of any nature whatsoever (including any restriction on the right to vote or otherwise transfer such Subject Shares), except as provided hereunder or pursuant to any applicable restrictions on transfer under the Securities Act. As of the date hereof, such Company Preferred Stockholder does not own, beneficially or otherwise, any Shares, Company Options or other securities of the Company other than as set forth opposite such Company Preferred Stockholder’s name in Schedule I hereto.

Section 3.3. Voting Power. Such Company Preferred Stockholder has sole voting power and sole power to issue instructions with respect to the matters set forth in this Agreement, sole power of disposition with respect to dispositions contemplated by this Agreement, and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such Company Preferred Stockholder’s Voting Shares, with no material limitations, qualifications, or restrictions on such rights, subject only to applicable securities laws and the terms of this Agreement.

Section 3.4. Consents and Approvals; No Violation. (i) Except as may be set forth in the Merger Agreement (including, without limitation, filings as may be required under applicable securities laws), no filing with, and no permit, authorization, consent, or approval of, any Governmental Authority is necessary for the execution of this Agreement by such Company Preferred Stockholder and the consummation by such Company Preferred Stockholder of the transactions contemplated by this Agreement, and (ii) none of the execution and delivery of this Agreement by such Company Preferred Stockholder, the consummation by such Company Preferred Stockholder of the transactions contemplated by this Agreement or compliance by such Company Preferred Stockholder with any of the provisions of this Agreement shall (A) conflict with or result in any breach of the organizational documents, if applicable, of such Company Preferred Stockholder, (B) result in a material violation or material breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to any third party right of termination, cancellation, amendment, or acceleration) under any of the terms, conditions, or provisions of any material note, bond, mortgage, indenture, license, contract, commitment, arrangement, understanding, agreement, or other instrument or obligation of any kind to which such Company Preferred Stockholder is a party, or (C) subject to compliance with filing requirements as may be required under applicable securities laws, violate any order, writ, injunction, decree, judgment, statute, rule, or regulation applicable to such Company Preferred Stockholder,

except in each case under clauses (A), (B) and (C), where the absence of filing or authorization, conflict, violation, breach, or default would not materially impair or materially adversely affect the ability of such Company Preferred Stockholder to perform such Company Preferred Stockholder’s obligations hereunder.

Section 3.5. No Finder’s Fees. Except as contemplated by the Merger Agreement, no broker, investment banker, financial advisor, or other person is entitled to any broker’s, finder’s, financial advisor’s, or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of such Company Preferred Stockholder.

ARTICLE IV

Representations and Warranties of Parent and Purchaser

Parent and Purchaser hereby represent and warrant to the Company Preferred Stockholders as of the date of this Agreement as follows:

Section 4.1. Organization. Each of Parent and Purchaser is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation.

Section 4.2. Corporate Authorization; Validity of Agreement; Necessary Action. Parent and Purchaser have the corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by Parent and Purchaser and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary action on the part of Parent and Purchaser, and, assuming the due authorization, execution and delivery thereof by the Company and each of the Company Preferred Stockholders, constitutes a valid and legally binding agreement of Parent and Purchaser enforceable against each of them in accordance with its terms, subject to the Bankruptcy and Equity Exception.

Section 4.3. Consents and Approvals; No Violation. (i) Except as may be set forth in the Merger Agreement (including, without limitation, filings as may be required under applicable securities laws), no filing with, and no permit, authorization, consent, or approval of, any Governmental Authority is necessary for the execution of this Agreement by each of Parent and Purchaser and the consummation by each of Parent and Purchaser of the transactions contemplated by this Agreement, and (ii) none of the execution and delivery of this Agreement by each of Parent and Purchaser, the consummation by each of Parent and Purchaser of the transactions contemplated by this Agreement or compliance by each of Parent and Purchaser with any of the provisions of this Agreement shall (A) conflict with or result in any breach of the organizational documents Parent or Purchaser, (B) result in a material violation or material breach of, or constitute (with or without notice or lapse of time, or both) a default (or give rise to any third party right of termination, cancellation,

amendment, or acceleration) under any of the terms, conditions, or provisions of any material note, bond, mortgage, indenture, license, contract, commitment, arrangement, understanding, agreement, or other instrument or obligation of any kind to which Parent or Purchaser is a party, or (C) subject to compliance with filing requirements as may be required under applicable securities laws, violate any order, writ, injunction, decree, judgment, statute, rule, or regulation applicable to Parent or Purchaser, except in each case under clauses (A), (B) or (C), where the absence of filing or authorization, conflict, violation, breach, or default would not materially impair or materially adversely effect the ability of each of Parent and Purchaser to perform its obligations hereunder.

ARTICLE V

Covenants of Each Company Preferred Stockholder

Each Company Preferred Stockholder severally covenants and agrees as follows:

Section 5.1. Restriction on Transfer, Proxies, and Non-Interference. Except as contemplated by this Agreement or the Merger Agreement, during the period beginning from the execution and delivery by the parties of this Agreement through the earlier of (1) the Effective Time, (2) the termination of the Merger Agreement or (3) the termination of this Agreement in accordance with Section 6.1, each Company Preferred Stockholder shall not (i) directly or indirectly, offer for sale, sell, transfer, tender, pledge, encumber, assign, or otherwise dispose of (each, a “Transfer”), or enter into any contract, option, or other arrangement or understanding (including any profit sharing arrangement) with respect to the Transfer of, any or all of such Company Preferred Stockholder’s Voting Shares or any other securities of the Company or any interest therein to any Person, other than pursuant to the Merger Agreement or the Offer, (ii) grant any proxies or powers of attorney, or any other authorization or consent with respect to any or all of such Company Preferred Stockholder’s Voting Shares that could reasonably be expected to impede, interfere with or prevent the Merger, (iii) deposit any of such Company Preferred Stockholder’s Voting Shares into a voting trust or enter into a voting agreement with respect to any of such Company Preferred Stockholder’s Voting Shares, other than pursuant to this Agreement or (iv) take any action that would make any representation or warranty of such Company Preferred Stockholder contained in this Agreement untrue or incorrect in any material respect or that would reasonably be expected to have the effect of preventing or disabling or delaying such Company Preferred Stockholder from performing such Company Preferred Stockholder’s obligations under this Agreement.

Section 5.2. Stop Transfer; Changes in Voting Shares. Each Company Preferred Stockholder agrees with, and covenants to, Parent and Purchaser that (i) this Agreement and the obligations hereunder shall attach to such Company Preferred Stockholder’s Voting Shares and shall be binding upon any person or entity to which legal or beneficial ownership

shall pass, whether by operation of law or otherwise, and (ii) such Company Preferred Stockholder shall not request that the Company register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any or all of the Company Preferred Stockholder’s Voting Shares, unless such transfer is made in compliance with this Agreement.

Section 5.3. Appraisal Rights. Each Company Preferred Stockholder hereby waives any rights of appraisal or rights to dissent from the Merger that such Company Preferred Stockholder may have (including, without limitation, under Section 262 of the DGCL).

Section 5.4. Additional Securities; Certain Events.

(a) In the event any Company Preferred Stockholder becomes the record or beneficial owner of (i) any shares of Company Common Stock or any other securities of the Company, (ii) any securities which may be converted into or exchanged for such shares or other securities or (iii) any securities issued in replacement of, or as a dividend or distribution on, or otherwise in respect of, such shares or other securities (collectively, “Additional Securities”), then the terms of this Agreement shall apply to any of such Additional Securities and such Additional Securities shall be considered Voting Shares for purposes hereof. Each Company Preferred Stockholder agrees not to purchase or in any other manner acquire beneficial ownership of any Additional Securities without Parent’s prior written consent.

(b) Each Company Preferred Stockholder agrees that this Agreement and the obligations hereunder shall attach to the Voting Shares and shall be binding upon any Person to which legal or beneficial ownership of the Voting Shares shall pass, whether by operation of law or otherwise, including, without limitation, such Company Preferred Stockholder’s successors or assigns. Notwithstanding any Transfer of the Voting Shares, the transferor shall remain liable for the performance of all of the obligations of the Company Preferred Stockholder under this Agreement.

Section 5.5. Stockholder Capacity. Each Company Preferred Stockholder enters into this Agreement solely in its capacity as the record or beneficial owner of the Voting Shares. Nothing contained in this Agreement shall limit the rights and obligations of any Company Preferred Stockholder, any of its Affiliates, Representatives or any employee of any of its Affiliates in his or her capacity as a director or officer of the Company, and the agreements set forth herein shall in no way restrict any director or officer of the Company in the exercise of his or her fiduciary duties as a director or officer of the Company.

Section 5.6. Documentation and Information. Each Company Preferred Stockholder (i) consents to and authorizes the publication and disclosure by Parent and its affiliates of its identity and holding of Subject Shares and the nature of its commitments and obligations under this Agreement in any announcement or disclosure required by the SEC or

other Governmental Authority, the Offer Documents, or any other disclosure document in connection with the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement or this Agreement, and (ii) agrees promptly to give to Parent any information it may reasonably require for the preparation of any such disclosure documents. Each Company Preferred Stockholder agrees to promptly notify Parent of any required corrections with respect to any written information supplied by it specifically for use in any such disclosure document, if and to the extent that any shall have become false or misleading in any material respect.

ARTICLE VI

Termination

Section 6.1. This Agreement and the covenants and agreements set forth in this Agreement (a) shall automatically (without any further action of the parties) terminate upon the termination of the Original Merger Agreement or the Merger Agreement in accordance with its terms and (b) shall be terminable by the Company Preferred Stockholders holding a majority of the Series D-1 Preferred Stock upon (i) any modification or amendment of the Merger Agreement that is adverse to the Company Preferred Stockholders in any material respect (including, without limitation, any reduction in the Offer Price), (ii) any waiver by the Company of any obligation of Parent or Purchaser under the Original Merger Agreement or the Merger Agreement, including, without limitation, any of the Conditions of the Offer set forth in Annex A of the Original Merger Agreement or the Merger Agreement, which such waiver is adverse to the Company Preferred Stockholders in any material respect or (iii) the occurrence of a Company Adverse Recommendation Change, provided that, in the case of clauses (i) and (ii), the Company Preferred Stockholders holding a majority of the Series D-1 Preferred Stock have not consented in writing to such modification, amendment or waiver, and except that any termination of this Agreement pursuant to this Section 6.1 shall not relieve any party from liability for any breach hereof prior to such termination. If this Agreement shall be terminated pursuant to this Section 6.1, no Sale shall occur.

ARTICLE VII

Miscellanous

Section 7.1. Governing Law; Jurisdiction; Waiver of Jury Trial.

(a) This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Delaware applicable to Contracts executed in and to be performed entirely within that State, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws.

(b) All Actions or Proceedings arising out of or relating to this Agreement shall be heard and determined in the Chancery Court of the State of Delaware, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such court (and, in the case of appeals, appropriate appellate courts therefrom) in any such Action or Proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such Action or Proceeding. The consents to jurisdiction set forth in this paragraph shall not constitute general consents to service of process in the State of Delaware and shall have no effect for any purpose except as provided in this paragraph and shall not be deemed to confer rights on any Person other than the parties hereto. The parties hereto agree that a final judgment in any such Action or Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law.

(c) Each of the parties hereto hereby irrevocably waives any and all rights to trial by jury in any legal proceeding arising out of or related to this Agreement.

Section 7.2. Specific Performance. Each Company Preferred Stockholder acknowledges and agrees that (a) the covenants, obligations and agreements of such Company Preferred Stockholder contained in this Agreement relate to special, unique and extraordinary matters, (b) Parent is and will be relying on such covenants, obligations and agreements in connection with entering into the Merger Agreement and the performance of Parent’s obligations under the Merger Agreement, and (c) a violation of any of the covenants, obligations or agreements of such Company Preferred Stockholder contained in this Agreement will cause Parent irreparable injury for which adequate remedies are not available at law. Therefore, each Company Preferred Stockholder agrees that Parent shall be entitled to an injunction, restraining order or such other equitable relief (without the requirement to post bond) as a court of competent jurisdiction may deem necessary or appropriate to restrain such Company Preferred Stockholder, as the case may be, from committing any violation of such covenants, obligations or agreements and to specifically enforce the terms of this Agreement. These injunctive remedies are cumulative and in addition to any other rights and remedies Parent may have under applicable law.

Section 7.3. Assignment; No Third Party Beneficiaries. This Agreement shall not be assignable or otherwise transferable by a party without the prior consent of the other parties, and any attempt to so assign or otherwise transfer this Agreement without such consent shall be void and of no effect; provided, however, that Parent may, in its sole discretion, assign or transfer all or any of its rights, interests and obligations under this Agreement to any direct or indirect wholly owned subsidiary of Parent, but no such assignment shall relieve Parent from its obligations under this Agreement. This Agreement shall be binding upon the respective heirs, successors, legal representatives and permitted assigns of the parties hereto. Nothing in this Agreement shall be construed as giving any Person, other than the parties hereto and their heirs, successors, legal representatives and permitted assigns, any right, remedy or claim under or in respect of this Agreement or any provision hereof; provided, however, that the Company shall be a third party beneficiary of

the obligations of the parties to this Agreement and shall be entitled to enforce those obligations as though a party hereto.

Section 7.4. Amendments, Waivers, etc. Neither this Agreement nor any term hereof may be amended other than by an instrument in writing signed by Parent, Purchaser and the Company Preferred Stockholders. No provision of this Agreement may be waived, discharged or terminated other than by an instrument in writing signed by the party against whom the enforcement of such waiver, discharge or termination is sought, except that this Agreement may be terminated as set forth in Section 6.1.

Section 7.5. Notices. All notices, requests and other communications to any party hereunder shall be in writing and shall be deemed given if delivered either personally, by facsimile transmission (with acknowledgment received), by electronic mail (with receipt confirmed) or by overnight courier (providing proof of delivery) to the parties at the following addresses:

If to the Company Preferred Stockholders: At the address set forth beside each Company Preferred Stockholder’s name listed on Schedule I.

If to Parent or Purchaser, to:

Galderma Laboratories, Inc.
c/o Galderma Laboratories, L.P.
14501 North Freeway
Fort Worth, TX 76177
Attention: Albert Draaijer, President
Facsimile: (817) 961-0035
E-mail: albert.draaijer@galderma.com

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

Galderma Laboratories, Inc.
c/o Galderma Laboratories, L.P.
14501 North Freeway
Fort Worth, TX 76177
Attention: Quintin Cassidy, General Counsel
Facsimile: (817) 961-0034
E-mail: quintin.cassady@galderma.com

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

Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attention: Paul S. Bird, Esq.
Facsimile: (212) 909-6836
E-mail: psbird@debevoise.com

or such other address, facsimile number or email address as such party may hereafter specify by notice to the other parties hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5 P.M. in the place of receipt and such day is a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

Section 7.6. Expenses. Except as otherwise provided herein, all costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses.

Section 7.7. Remedies. No failure or delay by any party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided herein shall be cumulative and not exclusive of any rights or remedies provided by law.

Section 7.8. Severability. If any term or provision of this Agreement is held to be invalid, illegal, incapable of being enforced by any rule of law, or public policy, or unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties hereto to the maximum extent possible. In any event, the invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of this Agreement, including that provision, in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the terms of this Agreement remain as originally contemplated to the fullest extent possible.

Section 7.9. Entire Agreement. This Agreement constitutes the entire agreement among the parties with respect to the subject matter of this Agreement and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter of this Agreement.

Section 7.10. Further Assurances. From time to time at the request of Parent, and without further consideration, each Company Preferred Stockholder shall execute and deliver or cause to be executed and delivered such additional documents and instruments and take all such further action as may be reasonably necessary or desirable to effect the matters contemplated by this Agreement.

Section 7.11. Section Headings. The article and section headings used in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

Section 7.12. Public Announcements. No Company Preferred Stockholder shall issue any press release or make any other public statement with respect to the transactions contemplated by this Agreement and the Merger Agreement without the prior written consent of Parent.

Section 7.13. Counterparts. This Agreement may be executed in two or more counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.

[SIGNATURE PAGES FOLLOW]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.


OCM PRINCIPAL OPPORTUNITIES FUND, L.P.


By:	Oaktree Fund GP I, L.P.
	Its: General Partner


	By:	/s/ Richard J. Goldstein

		Name: Richard J. Goldstein
		Title: Authorized Signatory

	By:	/s/ Michael Harmon

		Name: Michael Harmon
		Title: Authorized Signatory