(III), AND IN THE REASONABLE
JUDGMENT OF THE PARTIES, BASED UPON ADVICE OF COUNSEL, WOULD HAVE A MATERIAL
ADVERSE EFFECT WITH RESPECT TO THE INTERESTS OF THE PARTIES TO THIS AGREEMENT.
NO JUDGMENT, ORDER, INJUNCTION OR DECREE (WHETHER TEMPORARY, PRELIMINARY OR
PERMANENT) ISSUED BY ANY COURT OR AGENCY OF COMPETENT JURISDICTION OR OTHER
LEGAL RESTRAINTS OR PROHIBITION PREVENTING THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT SHALL BE IN EFFECT.
NO STATUTE, RULE,
REGULATION, ORDER, INJUNCTION OR DECREE (WHETHER TEMPORARY, PRELIMINARY OR
PERMANENT) SHALL HAVE BEEN ENACTED, ENTERED, PROMULGATED OR ENFORCED BY ANY
REGULATORY AUTHORITY THAT PROHIBITS, RESTRICTS, OR MAKES ILLEGAL THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT.
8.3
THE REGISTRATION STATEMENT, AND ANY AMENDMENT OR SUPPLEMENT THERETO, SHALL
HAVE PREVIOUSLY BECOME EFFECTIVE WITH RESPECT TO THE SHARES, AND SUCH
REGISTRATION STATEMENT SHALL BE EFFECTIVE ON OR IMMEDIATELY PRIOR TO THE CLOSING
DATE AND (I) NEITHER SELLER NOR BUYER SHALL HAVE RECEIVED NOTICE THAT THE SEC
HAS ISSUED OR INTENDS TO ISSUE A STOP ORDER WITH RESPECT TO SUCH REGISTRATION
STATEMENT OR THAT THE SEC OTHERWISE HAS SUSPENDED OR WITHDRAWN THE EFFECTIVENESS
OF SUCH REGISTRATION STATEMENT, EITHER TEMPORARILY OR PERMANENTLY, OR INTENDS OR
HAS THREATENED TO DO SO (UNLESS THE SEC'S CONCERNS HAVE BEEN ADDRESSED AND BUYER
IS REASONABLY SATISFIED THAT THE SEC NO LONGER IS CONSIDERING OR INTENDS TO TAKE
SUCH ACTION), AND (II) NO OTHER SUSPENSION OF THE USE OR WITHDRAWAL OF THE
EFFECTIVENESS OF SUCH REGISTRATION STATEMENT OR RELATED PROSPECTUS SHALL EXIST.
8.4
THE TRADING OF THE SELLER COMMON STOCK SHALL NOT HAVE BEEN SUSPENDED BY THE
SEC, THE NASDAQ GLOBAL SELECT MARKET OR THE FINRA AND THE SELLER COMMON STOCK
SHALL HAVE
6
BEEN APPROVED FOR LISTING OR QUOTATION ON AND SHALL NOT HAVE BEEN DELISTED FROM
THE NASDAQ GLOBAL SELECT MARKET.
9.
CONDITIONS PRECEDENT TO THE OBLIGATION OF SELLER TO ISSUE AND SELL THE
SHARES.
THE OBLIGATION HEREUNDER OF SELLER TO ISSUE AND SELL THE SHARES TO
BUYER INCIDENT TO CLOSING IS SUBJECT TO THE SATISFACTION, AT OR BEFORE CLOSING,
OF EACH OF THE CONDITIONS SET FORTH BELOW.
9.1
BUYER SHALL HAVE PERFORMED, SATISFIED AND COMPLIED IN ALL RESPECTS WITH ALL
COVENANTS, AGREEMENTS AND CONDITIONS REQUIRED BY THIS AGREEMENT TO BE PERFORMED,
SATISFIED OR COMPLIED WITH BY BUYER AT OR PRIOR TO CLOSING.
10.
GROSS UP RIGHTS.
10.1
IF AT ANY TIME AFTER CLOSING AND UNTIL THE EARLIER OF (A) THE FIRST DATE
UPON WHICH BUYER NO LONGER BENEFICIALLY OWNS SELLER COMMON STOCK REPRESENTING AT
LEAST 4.9% OF THE ISSUED AND OUTSTANDING SHARES OF SELLER COMMON STOCK
IMMEDIATELY PRIOR TO AN ISSUANCE CONTEMPLATED UNDER THIS SECTION 10.1, OR
(B) THE DATE OF ANY BREACH BY BUYER OF ANY OBLIGATION UNDER THIS AGREEMENT,
SELLER ISSUES OR PROPOSES TO ISSUE ANY SELLER COMMON STOCK OR ANY OR SECURITIES
CONVERTIBLE INTO SHARES OF SELLER COMMON STOCK, BUYER SHALL HAVE THE OPTION AND
RIGHT TO ACQUIRE SUCH NUMBER OF SHARES OF SELLER COMMON STOCK SO THAT
IMMEDIATELY AFTER SUCH ISSUANCE BUYER SHALL BENEFICIALLY OWN THE