FAILURE TO SO QUALIFY WOULD REASONABLY BE EXPECTED TO
HAVE, INDIVIDUALLY OR IN THE AGGREGATE, A MATERIAL ADVERSE EFFECT.
(B)
ALL THE OUTSTANDING SHARES OF CAPITAL STOCK OF EACH SUBSIDIARY ARE
VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE, AND ARE OWNED BY THE COMPANY FREE
AND CLEAR OF ANY ENCUMBRANCES, OTHER THAN RESTRICTIONS UNDER SECURITIES LAWS.
(C)
THERE ARE NO OPTIONS, WARRANTS, CONVERTIBLE SECURITIES, OR OTHER
RIGHTS, AGREEMENT, ARRANGEMENTS OR COMMITMENTS OF ANY CHARACTER RELATING TO THE
CAPITAL STOCK OF ANY SUBSIDIARY.
(D)
NO SUBSIDIARY IS A MEMBER OF (NOR IS ANY PART OF ITS BUSINESS
CONDUCTED THROUGH) ANY PARTNERSHIP, NOR IS IT A PARTICIPANT IN ANY JOINT VENTURE
OR SIMILAR ARRANGEMENT.
(E)
THERE ARE NO VOTING TRUST, STOCKHOLDER AGREEMENTS, PROXIES OR
OTHER AGREEMENTS OR UNDERSTANDINGS IN EFFECT WITH RESPECT TO THE VOTING OR
TRANSFER OF ANY SHARES OF CAPITAL STOCK OF OR ANY OTHER INTERESTS IN ANY
SUBSIDIARY.
3.4
AUTHORIZATION.
ALL CORPORATE ACTION ON THE PART OF THE COMPANY
NECESSARY FOR THE AUTHORIZATION, EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
INVESTOR RIGHTS AGREEMENT, THE MOU AND THE COLLABORATION AND LICENSE AGREEMENT,
THE PERFORMANCE OF ALL OBLIGATIONS OF THE COMPANY HEREUNDER AND THEREUNDER AND
THE AUTHORIZATION, ISSUANCE AND DELIVERY OF THE SHARES TO BE SOLD HEREUNDER,
INCLUDING THE APPROVAL BY THE COMPANY'S BOARD OF DIRECTORS, HAS BEEN TAKEN OR
WILL BE TAKEN PRIOR TO THE CLOSING.
THIS AGREEMENT, THE INVESTOR RIGHTS
AGREEMENT AND THE MOU HAVE BEEN DULY EXECUTED AND DELIVERED BY THE COMPANY AND
CONSTITUTE, AND UPON EXECUTION AND DELIVERY THEREOF, THE COLLABORATION AND
LICENSE AGREEMENT WILL CONSTITUTE, VALID AND LEGALLY BINDING OBLIGATIONS OF THE
COMPANY, ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH THEIR RESPECTIVE
TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, FRAUDULENT TRANSFER, REORGANIZATION, MORATORIUM OR OTHER LAWS OF
GENERAL APPLICATION RELATING TO OR AFFECTING ENFORCEMENT OF CREDITORS RIGHTS AND
SUBJECT TO GENERAL EQUITY PRINCIPLES.
5
3.5
NO CONFLICT.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT, THE INVESTOR RIGHTS AGREEMENT, THE MOU AND THE COLLABORATION AND
LICENSE AGREEMENT AND COMPLIANCE WITH THE PROVISIONS HEREOF AND THEREOF BY THE
COMPANY, WILL NOT:
(A)
VIOLATE ANY PROVISION OF LAW, STATUTE, ORDINANCE, RULE OR
REGULATION OR ANY RULING, WRIT, INJUNCTION, ORDER, JUDGMENT OR DECREE OF ANY
COURT, ADMINISTRATIVE AGENCY OR OTHER GOVERNMENTAL BODY, THE VIOLATION OF WHICH
COULD REASONABLY BE EXPECTED TO HAVE, INDIVIDUALLY OR IN THE AGGREGATE, A
MATERIAL ADVERSE EFFECT;
(B)
CONFLICT WITH OR RESULT IN ANY BREACH OF ANY OF THE TERMS,
CONDITIONS OR PROVISIONS OF, OR CONSTITUTE (WITH DUE NOTICE OR LAPSE OF TIME, OR
BOTH) A DEFAULT (OR GIVE RISE TO ANY RIGHT OF TERMINATION, CANCELLATION OR
ACCELERATION) UNDER (I) ANY AGREEMENT, DOCUMENT, INSTRUMENT, CONTRACT,
UNDERSTANDING, ARRANGEMENT, NOTE, INDENTURE, MORTGAGE OR LEASE TO WHICH THE
COMPANY OR ANY IF ITS SUBSIDIARIES IS A PARTY OR UNDER WHICH THE COMPANY, ANY OF
ITS SUBSIDIARIES OR ANY OF ITS OR THEIR RESPECTIVE ASSETS IS BOUND OR AFFECTED,
EXCEPT FOR ANY SUCH CONFLICTS, BREACHES, DEFAULTS, TERMINATIONS, CANCELLATIONS
OR ACCELERATIONS THAT COULD NOT REASONABLY