CORRECT AS OF SUCH DATE, AND
(II) WHERE THE FAILURE TO BE TRUE AND CORRECT, INDIVIDUALLY OR IN THE AGGREGATE,
HAS NOT HAD AND COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT ON THE ABILITY OF THE INVESTOR TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT).
6.2
COVENANTS.
ALL COVENANTS, AGREEMENTS AND CONDITIONS CONTAINED IN
THIS AGREEMENT TO BE PERFORMED BY THE INVESTOR ON OR PRIOR TO THE CLOSING DATE
SHALL HAVE BEEN PERFORMED OR COMPLIED WITH IN ALL MATERIAL RESPECTS.
6.3
COLLABORATION AND LICENSE AGREEMENT.
THE MOU, OR IF LATER ENTERED
INTO THE COLLABORATION AND LICENSE AGREEMENT, SHALL BE IN FULL FORCE AND EFFECT.
6.4
INVESTOR RIGHTS AGREEMENT.
THE INVESTOR RIGHTS AGREEMENT SHALL BE
IN FULL FORCE AND EFFECT.
7.
Mutual Conditions to Closing.The obligations of each of the
Investor and the Company to consummate the Closing is subject to the fulfillment
as of the Closing Date of the following conditions:
7.1
HSR ACT AND OTHER QUALIFICATIONS.
THE FILINGS REQUIRED UNDER THE
HSR ACT SHALL HAVE BEEN MADE AND THE REQUIRED WAITING PERIOD SHALL HAVE ELAPSED
AS OF THE CLOSING DATE, AND ALL OTHER AUTHORIZATIONS, CONSENTS, WAIVERS,
PERMITS, APPROVALS, QUALIFICATIONS AND REGISTRATIONS TO BE OBTAINED OR EFFECTED
WITH ANY GOVERNMENTAL AUTHORITY, INCLUDING, WITHOUT LIMITATION, NECESSARY BLUE
SKY LAW PERMITS AND QUALIFICATIONS REQUIRED BY ANY STATE, FOR THE OFFER AND SALE
TO THE INVESTOR OF THE SHARES SHALL HAVE BEEN DULY OBTAINED AND EFFECTIVE AS OF
THE CLOSING DATE.
7.2
ABSENCE OF LITIGATION.
THERE SHALL BE NO LAW OR INJUNCTION,
ACTION, SUIT, PROCEEDING OR INVESTIGATION PENDING OR CURRENTLY THREATENED IN
WRITING AGAINST THE COMPANY OR THE INVESTOR WHICH QUESTIONS THE VALIDITY OF THIS
AGREEMENT, THE INVESTOR RIGHTS AGREEMENT, THE MOU (OR, IF LATER ENTERED INTO,
THE COLLABORATION AND LICENSE AGREEMENT) OR THE RIGHT OF THE COMPANY OR THE
INVESTOR TO ENTER INTO THIS AGREEMENT, THE INVESTOR RIGHTS AGREEMENT OR THE MOU
(OR, IF ENTERED INTO, THE COLLABORATION AND LICENSE AGREEMENT) OR TO CONSUMMATE
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR WHICH PROHIBITS OR RESTRAINS
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
8.
ADDITIONAL COVENANTS AND AGREEMENTS.
8.1
MARKET LISTING.
THE COMPANY SHALL USE COMMERCIALLY REASONABLE
EFFORTS TO MAINTAIN THE LISTING AND TRADING OF THE COMMON STOCK ON THE NASDAQ
GLOBAL MARKET.
THE COMPANY SHALL USE ITS BEST EFFORTS TO EFFECT THE LISTING OF
THE SHARES ON THE NASDAQ GLOBAL
15
MARKET, INCLUDING SUBMITTING A NOTICE OF LISTING OF ADDITIONAL SHARES WITH
RESPECT TO THE SHARES TO THE NASDAQ STOCK MARKET, INC. NO LATER THAN 15 CALENDAR
DAYS PRIOR TO THE CLOSING DATE.
8.2
SHARE LEGEND REMOVAL.
THE LEGEND SET FORTH IN SECTION 4.6 HEREOF
SHALL BE REMOVED FROM THE CERTIFICATE(S) EVIDENCING THE SHARES AND THE COMPANY
SHALL, OR SHALL CAUSE ITS TRANSFER AGENT TO, ISSUE, NO LATER THAN FIVE BUSINESS
DAYS FROM RECEIPT OF A REQUEST FROM THE INVESTOR PURSUANT TO THIS SECTION 8.2, A
CERTIFICATE OR CERTIFICATES EVIDENCING ALL OR A PORTION OF THE SHARES, AS
REQUESTED BY THE INVESTOR, WITHOUT SUCH LEGEND