DATED AS OF THE DATE HEREOF (THE "LICENSE AGREEMENT"), ARE
INCORPORATED HEREIN BY THIS REFERENCE AND MADE TO INVESTOR AS THOUGH FULLY SET
FORTH HEREIN.
3.23
REPRESENTATIONS COMPLETE.
THE REPRESENTATIONS AND WARRANTIES MADE
BY THE COMPANY IN THIS AGREEMENT, THE STATEMENTS MADE IN ANY CERTIFICATES
FURNISHED BY THE COMPANY PURSUANT TO THIS AGREEMENT, AND THE STATEMENTS MADE BY
THE COMPANY IN ANY DOCUMENTS MAILED, DELIVERED OR FURNISHED TO INVESTOR IN
CONNECTION WITH THIS AGREEMENT, TAKEN AS A WHOLE, DO NOT CONTAIN AND WILL NOT
CONTAIN, AS OF THEIR RESPECTIVE DATES AND AS OF THE CLOSING DATE, ANY UNTRUE
STATEMENT OF A MATERIAL FACT, NOR DO THEY OMIT OR WILL THEY OMIT, AS OF THEIR
RESPECTIVE DATES OR AS OF THE CLOSING DATE, TO STATE ANY MATERIAL FACT NECESSARY
IN ORDER TO MAKE THE STATEMENTS CONTAINED HEREIN OR THEREIN, IN THE LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
ARTICLE IV
COVENANTS
4.1
BEST EFFORTS.
EACH PARTY WILL USE ITS BEST EFFORTS TO SATISFY IN
A TIMELY FASHION EACH OF THE CONDITIONS TO BE SATISFIED BY IT UNDER ARTICLES VI
AND VII OF THIS AGREEMENT.
THE COMPANY SHALL USE ITS BEST EFFORTS TO COMPLY
WITH EACH OF ITS COVENANTS IN THIS AGREEMENT, THE REGISTRATION RIGHTS AGREEMENT
AND THE WARRANT, UNLESS THE USE OF BEST EFFORTS CONFLICTS WITH THE STANDARD OF
CONDUCT SET FORTH IN ANY SUCH COVENANT, IN WHICH CASE SUCH OTHER STANDARD OF
CONDUCT SHALL CONTROL.
9
4.2
FORM D; BLUE SKY LAWS.
THE COMPANY WILL TIMELY FILE A NOTICE OF
SALE OF SECURITIES ON FORM D WITH RESPECT TO THE SECURITIES, AS REQUIRED UNDER
REGULATION D.
THE COMPANY WILL, ON OR BEFORE THE CLOSING DATE, TAKE SUCH ACTION
AS IT REASONABLY DETERMINES TO BE NECESSARY TO QUALIFY THE SECURITIES FOR SALE
TO INVESTOR UNDER THIS AGREEMENT UNDER APPLICABLE SECURITIES (OR "BLUE SKY")
LAWS OF THE STATES OF THE UNITED STATES (OR TO OBTAIN AN EXEMPTION FROM SUCH
QUALIFICATION).
4.3
CONTINUED ELIGIBILITY TO USE FORM S-3.
THROUGHOUT THE
REGISTRATION PERIOD (AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT), THE
COMPANY WILL TIMELY FILE ALL REPORTS, SCHEDULES, FORMS, STATEMENTS AND OTHER
DOCUMENTS REQUIRED TO BE FILED BY IT WITH THE SEC UNDER THE REPORTING
REQUIREMENTS OF THE EXCHANGE ACT, AND THE COMPANY WILL NOT TERMINATE ITS STATUS
AS AN ISSUER REQUIRED TO FILE REPORTS UNDER THE EXCHANGE ACT EVEN IF THE
EXCHANGE ACT OR THE RULES AND REGULATIONS THEREUNDER WOULD PERMIT SUCH
TERMINATION.
THE COMPANY WILL TAKE ALL REASONABLY NECESSARY ACTION TO CONTINUE
TO MEET THE "REGISTRANT ELIGIBILITY" REQUIREMENTS SET FORTH IN THE GENERAL
INSTRUCTIONS TO FORM S-3 TO ENABLE THE REGISTRATION OF THE REGISTRABLE
SECURITIES AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT.
4.4
EXPENSES.
THE COMPANY AND INVESTOR ARE LIABLE FOR, AND WILL PAY,
ITS OWN EXPENSES INCURRED IN CONNECTION WITH THE NEGOTIATION, PREPARATION,
EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE OTHER AGREEMENTS TO BE EXECUTED
IN CONNECTION HEREWITH, INCLUDING, WITHOUT LIMITATION, ATTORNEYS' AND
CONSULTANTS' FEES AND EXPENSES.
4.5
FINANCIAL INFORMATION.
AS LONG AS INVESTOR OWNS