HAVE OCCURRED WITH RESPECT TO THE PURCHASED ASSETS OR, RECOGNIZING THE
CONSTRAINTS OF SELLERS' FINANCIAL SITUATION, THE BUSINESS SINCE THE DATE OF THIS
AGREEMENT AND NO FACT OR CIRCUMSTANCE SHALL HAVE OCCURRED OR ARISEN SINCE THE
DATE OF THIS AGREEMENT THAT WOULD REASONABLY BE EXPECTED TO HAVE SUCH A MATERIAL
ADVERSE EFFECT.
(D)
IMPAIRMENT OF TITLE.
NO FACT OR CONDITION SHALL HAVE ARISEN
THAT WOULD PRECLUDE IN ANY MATERIAL RESPECT THE PURCHASER FROM TAKING TITLE IN
THE PURCHASED ASSETS.
20
(E)
WAK/PAK TECHNOLOGY ASSIGNMENT OF LICENSE.
PRIOR TO OR
CONCURRENTLY WITH THE CLOSING, PURCHASER AND XCORPOREAL SHALL HAVE NEGOTIATED
AND DELIVERED A WAK/PAK TECHNOLOGY ASSIGNMENT OF LICENSE ASSIGNING TO PURCHASER
ALL OF XCORPOREAL'S LICENSED RIGHTS TO CURRENT AND FUTURE INTELLECTUAL PROPERTY
COMPRISED OF CERTAIN U.S. PATENTS AND PATENT APPLICATIONS RELATING TO PAK
TECHNOLOGY AND WAK HD TECHNOLOGY.
(F)
SELLERS' COUNSEL OPINIONS.
THE PURCHASER SHALL HAVE RECEIVED
FROM COUNSEL TO THE SELLERS, ONE OR MORE LEGAL OPINIONS IN SUBSTANTIALLY THE
FORM OF EXHIBIT I ATTACHED HERETO, ADDRESSED TO THE PURCHASER AND DATED AS OF
THE CLOSING DATE.
(G)
SUPERSORBENT RIGHTS.
THE RESEARCH AGREEMENT SHALL HAVE BEEN
VALIDLY ASSIGNED TO PURCHASER AND THE EXCLUSIVE LICENSE FOR USE OF THE
SUPERSORBENT TECHNOLOGY IN ANY AND ALL MEDICAL APPLICATIONS, AS CONTEMPLATED BY
THE RESEARCH AGREEMENT, SHALL HAVE BEEN EXECUTED AND DELIVERED ON TERMS AND
CONDITIONS SUBSTANTIALLY AS SET FORTH IN APPENDIX C TO THE RESEARCH AGREEMENT
AND OTHERWISE ON TERMS AND CONDITIONS REASONABLY SATISFACTORY TO PURCHASER; SUCH
LICENSE SHALL BE IN THE NAME OF AND FOR THE BENEFIT OF PURCHASER OR SHALL BE IN
THE NAME OF AND FOR THE BENEFIT OF NCQI AND SHALL BE ASSIGNED TO PURCHASER AT
THE CLOSING WITH THE WRITTEN CONSENT OF TRDF.
7.3.
CONDITIONS TO OBLIGATION OF THE SELLERS.
THE OBLIGATION OF THE
SELLERS TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE
SUBJECT TO THE SATISFACTION AT OR PRIOR TO THE CLOSING OF THE FOLLOWING
ADDITIONAL CONDITIONS, UNLESS WAIVED IN WRITING BY THE SELLERS:
(A)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES OF PURCHASER SHALL BE TRUE AND CORRECT IN ALL RESPECTS (WITHOUT
GIVING EFFECT TO ANY LIMITATION AS TO "MATERIALITY" OR "MATERIAL ADVERSE EFFECT"
OR ANY SIMILAR LIMITATION SET FORTH THEREIN) AS OF THE DATE HEREOF, AND EXCEPT
TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES SPEAK AS OF AN EARLIER DATE,
AS OF THE CLOSING DATE AS THOUGH MADE ON AND AS OF THE CLOSING.
(B)
PERFORMANCE OF OBLIGATIONS OF PURCHASER.
PURCHASER SHALL HAVE
PERFORMED IN ALL MATERIAL RESPECTS ALL OBLIGATIONS REQUIRED TO BE PERFORMED BY
IT UNDER THIS AGREEMENT AT OR PRIOR TO CLOSING.
8.
COVENANTS .
8.1.
PROXY STATEMENT; STOCKHOLDER APPROVALS.
(A)
UNLESS THE AGREEMENT HAS BEEN TERMINATED IN ACCORDANCE WITH
SECTION 10.1(C), XCORPOREAL, ACTING THROUGH ITS BOARD OF DIRECTORS, SHALL,
SUBJECT TO AND IN ACCORDANCE WITH APPLICABLE LAW AND ITS CERTIFICATE OF
INCORPORATION AND BY-LAWS, PROMPTLY AND DULY CALL, GIVE NOTICE OF, CONVENE AND
HOLD AS SOON AS PRACTICABLE, A MEETING OF THE HOLDERS OF ITS STOCKHOLDERS (OR
SOLICIT THE WRITTEN