AND TO PROVIDE TO THE OTHER PARTY COPIES (EXECUTED OR CERTIFIED, AS
MAY BE APPROPRIATE) OF ALL DOCUMENTS WHICH THEY OR THEIR COUNSEL MAY REASONABLY
HAVE REQUESTED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
2.4
EFFECTS OF CLOSING.
ALL THE ACTIONS REQUIRED TO BE PERFORMED AT
CLOSING SHALL BE DEEMED TO HAVE OCCURRED SIMULTANEOUSLY, AND NONE OF SUCH
ACTIONS SHALL BE CONSIDERED PERFORMED, UNTIL AND UNLESS ALL SUCH ACTIONS HAVE
BEEN PERFORMED, OR THE REQUIREMENT THEREOF HAS BEEN VALIDLY WAIVED BY THE
RELEVANT PARTY. CLOSING SHALL NOT, IN AND OF ITSELF, CONSTITUTE A WAIVER
2
BY EITHER PARTY OF ANY OF ITS RIGHTS IN RELATION TO ANY BREACH BY THE OTHER
PARTY PRIOR TO CLOSING OF ANY REPRESENTATION OR WARRANTY OR ANY UNDERTAKING MADE
BY SUCH OTHER PARTY IN THIS AGREEMENT.
3.
Representations and Warranties of the Company.The Company hereby
represents and warrants to the Investor that the statements contained in this
Section 3 are true and correct, except as expressly set forth herein or in the
disclosure schedule delivered by the Company to the Investor dated as of the
date of this Agreement (the "Disclosure Schedule"):
3.1
ORGANIZATION, GOOD STANDING AND QUALIFICATION.
THE COMPANY IS A
CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF THE STATE OF DELAWARE.
THE COMPANY HAS ALL REQUISITE CORPORATE POWER AND
CORPORATE AUTHORITY TO OWN AND OPERATE ITS PROPERTIES AND ASSETS, TO CARRY ON
ITS BUSINESS AS NOW CONDUCTED AND AS PROPOSED TO BE CONDUCTED, TO ENTER INTO
THIS AGREEMENT, THE INVESTOR RIGHTS AGREEMENT, THE MOU AND THE COLLABORATION AND
LICENSE AGREEMENT, TO SELL THE SHARES AND TO CARRY OUT THE OTHER TRANSACTIONS
CONTEMPLATED HEREUNDER AND THEREUNDER.
THE COMPANY IS QUALIFIED TO TRANSACT
BUSINESS AND IS IN GOOD STANDING IN EACH JURISDICTION IN WHICH THE FAILURE TO
QUALIFY COULD REASONABLY BE EXPECTED TO HAVE, INDIVIDUALLY OR IN THE AGGREGATE,
A MATERIAL ADVERSE EFFECT.
FOR PURPOSES OF THIS AGREEMENT, THE TERM "MATERIAL
ADVERSE EFFECT" MEANS A MATERIAL ADVERSE EFFECT ON (I) THE BUSINESS, PROPERTIES,
TANGIBLE AND INTANGIBLE ASSETS, CONDITION (FINANCIAL OR OTHERWISE) OR RESULTS OF
OPERATIONS OF THE COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE OR (II) THE
COMPANY'S ABILITY TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, THE INVESTOR RIGHTS AGREEMENT OR THE MOU (IF LATER EXECUTED, THE
COLLABORATION AND LICENSE AGREEMENT); PROVIDED, HOWEVER, THAT NONE OF THE
FOLLOWING SHALL CONSTITUTE, OR SHALL BE CONSIDERED IN DETERMINING WHETHER THERE
HAS OCCURRED, A MATERIAL ADVERSE EFFECT: (A) CHANGES THAT ARE THE RESULT OF
GENERAL ECONOMIC OR POLITICAL FACTORS AFFECTING THE NATIONAL OR WORLD ECONOMY OR
ACTS OF WAR OR TERRORISM IN EACH CASE, EXCEPT TO THE EXTENT THE COMPANY IS, OR
COULD REASONABLY BE EXPECTED TO BE, MATERIALLY AND DISPROPORTIONATELY AFFECTED;
(B) CHANGES THAT ARE THE RESULT OF FACTORS GENERALLY AFFECTING THE INDUSTRIES OR
MARKETS IN WHICH THE COMPANY OPERATES EXCEPT TO THE EXTENT THE COMPANY IS, OR
COULD REASONABLY BE EXPECTED TO BE, MATERIALLY AND DISPROPORTIONATELY AFFECTED;
(C) ANY ADVERSE CHANGE, EFFECT OF CIRCUMSTANCE ARISING