CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY WILL PREVENT JANSSEN'S ABILITY TO
TERMINATE THE JANSSEN AGREEMENT UNDER SECTION 13.2 THEREOF), OR ACCELERATE THE
PERFORMANCE PROVIDED BY, IN ANY RESPECT, ANY PROVISION OF THE JANSSEN AGREEMENT;
PROVIDED, HOWEVER, THAT, IN THE CASE OF CLAUSE (I)(B) OR CLAUSE (II), SUCH
CONTRAVENTION, CONFLICT, BREACH, VIOLATION, DEFAULT OR ACCELERATION WOULD
REASONABLY BE EXPECTED TO RESULT, INDIVIDUALLY OR IN THE AGGREGATE, IN AN
ADVERSE EFFECT.
3
Information redacted pursuant to a confidential treatment request.
An
unredacted version
of this exhibit has been filed separately with the Commission.
(K)
THE ISSUE AND SALE OF THE NOTES, THE EXECUTION AND DELIVERY BY THE
COMPANY OF THE TRANSACTION DOCUMENTS AND THE PERFORMANCE BY THE COMPANY OF ITS
OBLIGATIONS AND THE CONSUMMATION BY IT OF ANY OF THE TRANSACTIONS CONTEMPLATED
HEREUNDER AND THEREUNDER, DO NOT REQUIRE ANY CONSENT, APPROVAL, LICENSE, ORDER,
AUTHORIZATION OR DECLARATION FROM, NOTICE TO, ACTION OR REGISTRATION BY OR
FILING WITH ANY GOVERNMENTAL AUTHORITY OR ANY PERSON, EXCEPT FOR (I) THE FILING
OF PROPER FINANCING STATEMENTS UNDER THE UCC PURSUANT TO THE SECURITY AGREEMENT
AS DESCRIBED IN CLAUSE (I) ABOVE, (II) THE FILING OF A CURRENT REPORT ON
FORM 8-K WITH THE SECURITIES AND EXCHANGE COMMISSION AND (III) THE JANSSEN
CONSENT.
THE COMPANY HAS OBTAINED PRIOR TO ITS EXECUTION AND DELIVERY OF THIS
AGREEMENT THE CONSENT OF JANSSEN REQUIRED UNDER SECTION 15.2 OF THE JANSSEN
AGREEMENT WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION
DOCUMENTS (THE "JANSSEN CONSENT"), WHICH CONSENT IS IN FULL FORCE AND EFFECT.
(L)
THE HISTORICAL CONSOLIDATED FINANCIAL STATEMENTS (INCLUDING THE
RELATED NOTES AND SUPPORTING SCHEDULES) INCLUDED OR INCORPORATED BY REFERENCE IN
THE EXCHANGE ACT REPORTS PRESENT FAIRLY IN ALL MATERIAL RESPECTS THE FINANCIAL
CONDITION, RESULTS OF OPERATIONS AND CASH FLOWS OF THE COMPANY AND ITS
CONSOLIDATED SUBSIDIARIES PURPORTED TO BE SHOWN THEREBY, AT THE DATES AND FOR
THE PERIODS INDICATED, AND HAVE BEEN PREPARED IN CONFORMITY WITH GAAP APPLIED ON
A CONSISTENT BASIS THROUGHOUT THE PERIODS INVOLVED.
(M)
THE COMPANY IS THE EXCLUSIVE OWNER OF THE ENTIRE RIGHT, TITLE
(LEGAL AND EQUITABLE) AND INTEREST IN AND TO THE PLEDGED INTEREST, FREE AND
CLEAR OF ALL LIENS.
(N)
INTELLECTUAL PROPERTY.
(I)
THE COMPANY HAS THE RIGHT, WHETHER BY OWNERSHIP OR LICENSE, TO
GRANT JANSSEN THE RIGHTS AND LICENSES TO THE COMPANY INTELLECTUAL PROPERTY
RIGHTS DESCRIBED IN THE JANSSEN AGREEMENT, INCLUDING THE VERTEX PATENT RIGHTS,
THE VERTEX KNOW-HOW, AND THE COMPANY'S RIGHTS UNDER JOINT PATENT RIGHTS (AS SUCH
TERMS ARE DEFINED IN THE JANSSEN AGREEMENT), EXCEPT WHERE THE FAILURE TO HAVE
SUCH RIGHT TO LICENSE WOULD NOT REASONABLY BE EXPECTED TO HAVE, INDIVIDUALLY OR
IN THE AGGREGATE, AN ADVERSE EFFECT AND TO THE KNOWLEDGE OF THE COMPANY, JANSSEN
HAS FULL RIGHT AND INTEREST IN THE JANSSEN INTELLECTUAL PROPERTY RIGHTS
DESCRIBED IN THE JANSSEN AGREEMENT, INCLUDING THE JANSSEN PATENT RIGHTS, THE
JANSSEN KNOW-HOW (AS SUCH TERMS ARE DEFINED IN THE JANSSEN AGREEMENT), AND
JANSSEN'S RIGHTS UNDER JOINT PATENT RIGHTS, FREE AND CLEAR OF ALL LIENS, EXCEPT
WHERE THE FAILURE TO HAVE FULL