CONDITION OF AVANT OR ANY OF ITS AFFILIATES
RELATING OR PERTAINING TO THE PURCHASED INTEREST WITH OFFICERS OF SUCH PARTIES,
AND WITH THEIR INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS, SUBJECT TO ANY AVANT
CONFIDENTIALITY OBLIGATIONS WITH ANY THIRD PARTIES.
PRF'S VISITS TO AVANT'S
OFFICES PURSUANT TO THIS SECTION 5.11(C) SHALL OCCUR NOT MORE THAN ONE TIME PER
CALENDAR YEAR; PROVIDED, HOWEVER, THAT PRF MAY SO VISIT MORE FREQUENTLY TO THE
EXTENT THAT THERE HAS OCCURRED AN EVENT WHICH COULD REASONABLY BE EXPECTED TO
RESULT IN A MATERIAL ADVERSE EFFECT, AND PRF'S VISIT OR VISITS TO AVANT'S
OFFICES IN CONNECTION THEREWITH ARE FOR PURPOSES RELATED TO SUCH EVENT.
(D)
ALL AUDIT COSTS IN RESPECT OF A LICENSE PARTY
AUDIT OR AN AUDIT OF AVANT'S BOOKS AND RECORDS PURSUANT TO SECTION 5.11(C) SHALL
BE BORNE BY PRF, UNLESS THE RESULTS OF SUCH AUDIT, AS THE CASE MAY BE, REVEALS
THAT EITHER (I) IN ANY CALENDAR YEAR, THE ROYALTIES THAT SHOULD HAVE BEEN PAID
BY GSK TO AVANT PURSUANT TO THE GSK LICENSE AGREEMENT ARE AT LEAST FIVE PERCENT
(5%) GREATER THAN THOSE WHICH WERE ACTUALLY PAID BY GSK, OR (II) THE AMOUNTS
PAID TO PRF FOR THE PERIOD SUBJECT TO SUCH AUDIT HAVE BEEN UNDERSTATED BY MORE
THAN THE GREATER OF $20,000 OR 5% OF THE AMOUNTS DUE TO PRF PURSUANT TO THIS
AGREEMENT FOR THE PERIOD SUBJECT TO SUCH AUDIT AND AVANT WAS PRIMARILY
RESPONSIBLE FOR SUCH UNDERSTATEMENT, THEN IN EITHER CASE THE AUDIT COSTS IN
RESPECT OF SUCH AUDIT SHALL BE BORNE BY AVANT.
SECTION 5.12
NOTICE.
AVANT shall provide PRF with written notice as promptly as practicable (and in
any event within five (5) Business Days) after becoming aware of any of the
following:
(I)
THE OCCURRENCE OF A BANKRUPTCY EVENT;
(II)
ANY MATERIAL BREACH OR DEFAULT BY AVANT OF
ANY COVENANT, AGREEMENT OR OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT; OR
(III)
ANY REPRESENTATION OR WARRANTY MADE BY AVANT
IN ANY OF THE TRANSACTION DOCUMENTS OR IN ANY CERTIFICATE DELIVERED TO PRF
PURSUANT HERETO SHALL PROVE TO BE UNTRUE, INACCURATE OR INCOMPLETE IN ANY
MATERIAL RESPECT ON THE DATE AS OF WHICH MADE.
ARTICLE VI
THE CLOSING; CONDITIONS TO CLOSING AND FUNDING
SECTION 6.01
CLOSING.
Subject to the closing conditions set forth in Sections 6.02 and 6.03, the
closing of this Agreement (the "Closing") shall take place at the offices of
Goodwin Procter LLP, Boston Massachusetts, on the Closing Date.
Subject to the
additional Funding conditions set forth in
29
Sections 6.02 and 6.03, each additional Funding shall take place at the offices
of Goodwin Procter LLP, Boston Massachusetts, on the applicable Subsequent
Funding Date.
SECTION 6.02
CONDITIONS APPLICABLE TO PRF IN CLOSING.
The obligations of PRF to effect the Closing, including the requirements with
respect to one or more Fundings of the Purchase Price (as specifically
indicated) pursuant to Section 2.03(a), shall be subject to the satisfaction of
each of the following conditions, as of the Closing Date and/or each Subsequent
Funding Date, as applicable,