PH.D., MICHAEL MCCULLAR, PH.D., KARL METTINGER, M.D., PH.D. OR GIL FINE
CEASES TO BE AN EMPLOYEE OF THE COMPANY OR ANY SUBSIDIARY;
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Notwithstanding anything to the contrary in this Agreement, no provision of this
Agreement shall be interpreted to prevent the Company from adopting a
shareholder rights plan at any time in the sole discretion of the Company.
5.6
FURTHER ASSURANCES. AT ANY TIME OR FROM TIME
TO TIME AFTER THE CLOSING, EACH PARTY SHALL EXECUTE AND DELIVER TO THE OTHER
PARTY OR PARTIES SUCH OTHER DOCUMENTS AND INSTRUMENTS, PROVIDE SUCH MATERIALS
AND INFORMATION AND TAKE SUCH OTHER ACTIONS AS EITHER PARTY MAY REASONABLY
REQUEST MORE EFFECTIVELY TO CARRY OUT THE PROVISIONS OF THE STOCK AGREEMENTS.
5.7
STOCK AGREEMENTS AND LICENSE AGREEMENT. THE
PARTIES SHALL EXECUTE THE RIGHTS AGREEMENT AND THE LICENSE AGREEMENT
SIMULTANEOUSLY WITH THIS AGREEMENT AND SUCH AGREEMENTS SHALL ONLY BECOME
EFFECTIVE UPON THE CLOSING, EXCEPT AS OTHERWISE PROVIDED THEREIN.
5.8
NASD LISTING. THE COMPANY SHALL MAKE ALL
REASONABLE EFFORTS TO COMPLY WITH ALL REQUIREMENTS OF THE NASD WITH RESPECT TO
THE ISSUANCE OF THE SHARES AND THE LISTING THEREOF ON THE NMS.
5.9
STOCK CERTIFICATE. THE COMPANY SHALL DELIVER A
STOCK CERTIFICATE REPRESENTING THE SHARES, REGISTERED IN THE NAME OF THE
PURCHASER, WITHIN THREE (3) DAYS FOLLOWING THE CLOSING.
5.10
OFFERING PROHIBITIONS. NEITHER THE COMPANY NOR ANY
PERSON ACTING ON ITS BEHALF OR AT ITS DIRECTION WILL IN THE FUTURE TAKE ANY
ACTION TO SELL, OFFER FOR SALE OR SOLICIT OFFERS TO BUY ANY SECURITIES OF THE
COMPANY THAT WOULD (I) BRING THE OFFER OR SALE OF THE SHARES AS CONTEMPLATED BY
THIS AGREEMENT WITHIN THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT IN A
MANNER THAT WOULD REQUIRE THE REGISTRATION OF THE SALE OF THE SHARES UNDER THE
SECURITIES ACT, OR (II) CAUSE THE OFFER OR SALE OF THE SHARES AS CONTEMPLATED BY
THIS AGREEMENT TO BE INTEGRATED WITH PRIOR OFFERINGS BY THE COMPANY SUCH THAT
THE COMPANY WOULD BE REQUIRED TO OBTAIN STOCKHOLDER APPROVAL PURSUANT TO THE
RULES AND REGULATIONS OF ANY EXCHANGE OR AUTOMATED QUOTATION SYSTEM ON WHICH ANY
OF THE SECURITIES OF THE COMPANY ARE LISTED OR DESIGNATED.
SECTION 6
CONDITIONS TO CLOSING
6.1
CONDITIONS TO THE PURCHASER'S OBLIGATION TO
ACQUIRE THE SHARES. THE OBLIGATION OF THE PURCHASER TO PURCHASE THE SHARES
HEREUNDER IS SUBJECT TO THE SATISFACTION, ON OR PRIOR TO THE CLOSING DATE, OF
THE FOLLOWING CONDITIONS, ANY OF WHICH MAY BE WAIVED BY THE PURCHASER, IN THE
PURCHASER'S SOLE DISCRETION, TO THE EXTENT PERMITTED BY LAW:
6.1.1
COMPLIANCE WITH HSR ACT. AT THE TIME OF THE CLOSING, ALL WAITING PERIODS,
IF ANY, UNDER THE HSR ACT APPLICABLE TO THE ISSUANCE AND SALE OF THE SHARES
HEREUNDER AND THE LICENSE AGREEMENT SHALL HAVE EXPIRED OR BEEN TERMINATED AND NO
PRELIMINARY OR PERMANENT INJUNCTION OR OTHER ORDER BY ANY COURT OF COMPETENT
JURISDICTION PROHIBITING OR OTHERWISE RESTRAINING SUCH ACQUISITION SHALL BE IN
EFFECT.
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6.1.2
EXECUTION AND DELIVERY OF THE STOCK AGREEMENTS AND LICENSE
AGREEMENT. AN AUTHORIZED SIGNATORY