SALE, ASSIGNMENT, TRANSFER,
DISTRIBUTION OR OTHER DISPOSITION THEREOF OR OF A PARTICIPATION THEREIN, AND
"AFFILIATE" MEANS ANY CORPORATION OR OTHER BUSINESS ENTITY THAT CONTROLS, IS
CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH THE PURCHASER (A CORPORATION OR
OTHER ENTITY WILL BE REGARDED AS IN "CONTROL" OF ANOTHER CORPORATION OR ENTITY
IF IT (I) OWNS OR DIRECTLY OR INDIRECTLY CONTROLS AT LEAST FIFTY (50%) OF THE
OUTSTANDING SHARES OR OTHER VOTING RIGHTS OF THE OTHER CORPORATION OR ENTITY
HAVING THE RIGHT TO ELECT DIRECTORS OR SUCH LESSER PERCENTAGE THAT IS THE
MAXIMUM PERMITTED TO BE OWNED BY A FOREIGN ENTITY IN THOSE JURISDICTIONS WHERE
MAJORITY OWNERSHIP BY FOREIGN ENTITIES IS PROHIBITED, OR (II) IN THE CASE OF A
NON-CORPORATE BUSINESS ENTITY, IF IT POSSESSES, DIRECTLY OR INDIRECTLY, THE
POWER TO DIRECT OR CAUSE THE DIRECTION OF THE MANAGEMENT AND POLICIES OF THE
CORPORATION OR NON-CORPORATE BUSINESS ENTITY, AS APPLICABLE, WHETHER THROUGH THE
OWNERSHIP OR CONTROL OF VOTING SECURITIES, BY CONTRACT OR OTHERWISE).
5.4
FURTHER ASSURANCES.
AT ANY TIME OR FROM TIME TO TIME AFTER THE
CLOSING, EACH PARTY SHALL EXECUTE AND DELIVER TO THE OTHER PARTY 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 THIS AGREEMENT.
SHOULD THE PURCHASER WISH TO SELL THE
SHARES PURSUANT TO RULE 144 PROMULGATED UNDER THE SECURITIES ACT, OR UNDER ANY
OTHER AVAILABLE EXEMPTION, THE COMPANY SHALL REMOVE ANY LEGENDS ON THE SHARES
AND PROVIDE AN OPINION OF COUNSEL SHOULD THE PURCHASER REASONABLY REQUEST.
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:
8
(A)
EXECUTION AND DELIVERY.
AN AUTHORIZED SIGNATORY OF THE COMPANY
SHALL HAVE EXECUTED AND DELIVERED TO THE PURCHASER THIS AGREEMENT AND THE
RESEARCH AGREEMENT.
(B)
REPRESENTATIONS AND WARRANTIES TRUE.
THE REPRESENTATIONS AND
WARRANTIES MADE BY THE COMPANY IN THIS AGREEMENT SHALL BE TRUE AND CORRECT IN
ALL MATERIAL RESPECTS WHEN MADE, AND SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS ON THE CLOSING WITH THE SAME FORCE AND EFFECT AS IF THEY HAD BEEN MADE
ON AND AS OF THE CLOSING, EXCEPT FOR (I) THOSE REPRESENTATIONS AND WARRANTIES
THAT ARE MADE AS OF A SPECIFIC DATE (OTHER THAN THE EFFECTIVE DATE), WHICH SHALL
BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF SUCH DATE AND (II) THOSE
REPRESENTATIONS AND WARRANTIES WHICH ARE QUALIFIED BY MATERIALITY, IN WHICH CASE
EACH SUCH REPRESENTATION AND WARRANTY QUALIFIED BY MATERIALITY SHALL BE TRUE AND
CORRECT IN ALL RESPECTS AS OF THE CLOSING.
(C)
COMPLIANCE.
THE COMPANY WILL HAVE MATERIALLY PERFORMED AND
COMPLIED WITH EACH OF ITS AGREEMENTS, COVENANTS AND OBLIGATIONS CONTAINED IN
THIS AGREEMENT ON OR PRIOR TO THE