PROCEEDING BROUGHT BY A GOVERNMENTAL ENTITY
SEEKING ANY OF THE FOREGOING BE PENDING.
7.2
Additional Conditions to the Obligations of
Buyer.
The obligation of Buyer to effect the transactions contemplated hereby
shall be subject to the satisfaction at or prior to the Closing of each of the
following conditions, any of which may be waived, in writing, exclusively by
Buyer:
(A)
REPRESENTATIONS, WARRANTIES AND COVENANTS.
THE REPRESENTATIONS AND WARRANTIES OF SELLER IN THIS AGREEMENT (INCLUDING IN
THE SELLER DISCLOSURE SCHEDULE, THE COLLATERAL AGREEMENTS, AND ANY EXHIBIT,
SCHEDULE OR CERTIFICATE DELIVERED PURSUANT HERETO) SHALL BE TRUE AND CORRECT IN
ALL RESPECTS.
SELLER SHALL HAVE PERFORMED AND COMPLIED IN ALL RESPECTS WITH ALL
COVENANTS, OBLIGATIONS, AND CONDITIONS SET FORTH IN THIS AGREEMENT (INCLUDING
THE SELLER DISCLOSURE SCHEDULE, THE COLLATERAL AGREEMENTS, AND ANY EXHIBIT,
SCHEDULE OR CERTIFICATE DELIVERED PURSUANT HERETO) THAT IS REQUIRED TO BE
PERFORMED AND COMPLIED WITH BY SELLER AS OF THE CLOSING.
(B)
CONSENTS.
ALL CONTRACT CONSENTS AND
ASSIGNMENTS DESCRIBED ON SCHEDULE 7.2(B) OF THE SELLER DISCLOSURE SCHEDULE AND
ANY OTHER CONSENTS REQUIRED TO ASSIGN TO BUYER ALL RIGHTS OF SELLER UNDER THE
ASSIGNED IN-LICENSE CONTRACTS AND THE ADDITIONAL ASSIGNED CONTRACTS (EXCLUDING
ANY SUCH CONSENTS REQUIRED TO ASSIGN CONTRACTS THAT WERE ADDED TO OR REMOVED
FROM SCHEDULE 2.1(B) OR SCHEDULE 2.1(C) BY BUYER FOLLOWING THE EXECUTION OF THIS
AGREEMENT AND PRIOR TO CLOSING, SHALL HAVE BEEN OBTAINED (WITHOUT ANY
LIMITATION, RESTRICTION, OR CONDITION NOT OTHERWISE APPLICABLE TO SELLER BEING
IMPOSED ON BUYER OR ITS OWNERSHIP OR USE OF ANY ACQUIRED ASSET).
(C)
NO SELLER MATERIAL ADVERSE EFFECT.
NO
EVENT, CIRCUMSTANCE, OR CONDITION OF ANY CHARACTER SHALL HAVE OCCURRED SINCE THE
DATE OF THIS AGREEMENT THAT HAS RESULTED OR WOULD REASONABLY BE EXPECTED TO
RESULT IN A SELLER MATERIAL ADVERSE EFFECT.
(D)
COLLATERAL AGREEMENTS; DELIVERIES.
SELLER
SHALL HAVE DELIVERED TO BUYER ORIGINALLY EXECUTED COPIES OF EACH OF THE
COLLATERAL AGREEMENTS AND SHALL HAVE DELIVERED, TRANSFERRED, AND ASSIGNED (AS
THE CASE MAY BE) ALL OF THE ACQUIRED ASSETS AS SET FORTH IN ARTICLE II HEREOF
52
(E)
RELEASE OF LIENS.
ANY AND ALL LIENS
AFFECTING ANY OF THE ACQUIRED ASSETS SHALL HAVE BEEN RELEASED (OTHER THAN
PERMITTED ENCUMBRANCES), INCLUDING ANY SUCH LIENS REFERENCED IN UCC FINANCING
STATEMENTS FILED IN CALIFORNIA THAT NAME SELLER AS THE DEBTOR.
(F)
EMPLOYEE MATTERS.
BUYER SHALL HAVE
RECEIVED (I) EVIDENCE THAT ALL EXISTING AND FORMER EMPLOYEES OF SELLER HAVE
RECEIVED OR WILL RECEIVE SIMULTANEOUSLY WITH THE CLOSING ALL AMOUNTS OWNING TO
THEM BY SELLER INCLUDING AMOUNTS PAYABLE PURSUANT TO SELLER'S EMPLOYEE BONUS
PLAN, IF ANY, (II) SIGNED RELEASES OF BUYER AND SELLER FROM AT LEAST 90% OF
SELLER'S EMPLOYEES, (III) EVIDENCE THAT ALL EXISTING AND FORMER EMPLOYEES OF
SELLER HAVE EXECUTED SELLER'S FORM OF PROPRIETARY INFORMATION, CONFIDENTIALITY
AND ASSIGNMENT AGREEMENT IN THE FORM ATTACHED AS SCHEDULE 4.11(J) OR SUCH OTHER
AGREEMENT REGARDING PROPRIETARY INFORMATION, CONFIDENTIALITY AND ASSIGNMENT OF
INVENTIONS AS IS REASONABLY SATISFACTORY TO BUYER, AND (IV) ACCEPTED OFFER
LETTERS, CONFIDENTIALITY AND PROTECTION OF INVENTION AND NON-SOLICITATION
AGREEMENTS FROM EACH OF THE IDENTIFIED EMPLOYEES (OTHER THAN