TIME OF THE CLOSING, ALL WAITING
PERIODS, IF ANY, UNDER THE HSR ACT APPLICABLE TO THE ACQUISITION OF SUCH SHARES
HEREUNDER AND THE LICENSE AGREEMENT SHALL HAVE EXPIRED OR BEEN TERMINATED AND NO
PRELIMINARY OR PERMANENT INJUNCTION OR OTHER ORDER BY ANY COURT OF COMPETENT
JURISDICTION PROHIBITING OR OTHERWISE RESTRAINING SUCH ACQUISITION SHALL BE IN
EFFECT.
6.2.2
EXECUTION AND DELIVERY OF THE STOCK AGREEMENTS AND THE LICENSE
AGREEMENT. AN AUTHORIZED SIGNATORY OF THE PURCHASER SHALL HAVE EXECUTED AND
DELIVERED TO THE COMPANY THE AGREEMENT, THE LICENSE AGREEMENT AND THE RIGHTS
AGREEMENT.
6.2.3
REPRESENTATIONS AND WARRANTIES TRUE. THE REPRESENTATIONS AND
WARRANTIES MADE BY THE PURCHASER 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 DATE WITH THE SAME FORCE AND EFFECT AS IF THEY HAD BEEN
MADE ON AND AS OF THE CLOSING DATE, EXCEPT FOR (I) THOSE REPRESENTATIONS AND
WARRANTIES THAT ARE MADE AS OF SPECIFIC DATE OR AS OF THE DATE OF THIS
AGREEMENT, 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. THE PURCHASER SHALL HAVE
DELIVERED TO THE COMPANY A CERTIFICATE TO SUCH EFFECT, EXECUTED BY THE CHIEF
EXECUTIVE OFFICER OF THE PURCHASER AND DATED AS OF THE CLOSING DATE.
6.2.4
NO VIOLATION. NO STATUTE, RULE, REGULATION, ORDER, OR
INTERPRETATION SHALL HAVE BEEN ENACTED, ENTERED OR DEEMED APPLICABLE BY ANY
DOMESTIC OR FOREIGN GOVERNMENT OR GOVERNMENTAL OR ADMINISTRATIVE AGENCY OR COURT
WHICH WOULD MAKE THE TRANSACTIONS CONTEMPLATED BY THE STOCK AGREEMENTS ILLEGAL.
6.2.5
COMPLIANCE. THE PURCHASER WILL HAVE MATERIALLY PERFORMED AND
COMPLIED WITH EACH OF ITS AGREEMENTS AND OBLIGATIONS CONTAINED IN THIS AGREEMENT
ON OR PRIOR TO THE CLOSING.
6.2.6
DELIVERIES OF THE PURCHASER. AT THE TIME OF THE CLOSING, THE
PURCHASER SHALL DELIVER TO THE COMPANY:
(I)
PAYMENT IN FULL OF THE AGGREGATE PURCHASE PRICE, AND
(II)
A COPY OF THOSE PORTIONS OF THE RESOLUTIONS OF THE PURCHASER
BOARD OF DIRECTORS AUTHORIZING THE PURCHASE BY THE PURCHASER OF THE SHARES AND
THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, CERTIFIED BY THE
SECRETARY OF THE PURCHASER.
16
SECTION 7
TERMINATION
7.1
TERMINATION. THIS AGREEMENT MAY BE TERMINATED
PRIOR TO THE CLOSING DATE:
(I)
BY THE MUTUAL WRITTEN CONSENT OF THE PURCHASER AND THE COMPANY;
(II)
BY THE COMPANY IF (A) THE PURCHASER HAS BREACHED ANY
REPRESENTATION, WARRANTY OR AGREEMENT CONTAINED IN THIS AGREEMENT IN ANY
MATERIAL RESPECT SUCH THAT THE CONDITIONS TO CLOSING IN SECTION 6.2.3 OR
SECTION 6.2.5 WOULD NOT BE SATISFIED, AND SUCH BREACH REMAINS UNCURED FOR THIRTY
(30) DAYS AFTER WRITTEN NOTICE TO THE PURCHASER OF SUCH BREACH, OR (B) THE
CLOSING SHALL NOT HAVE OCCURRED ON OR BEFORE DECEMBER 31, 2004 (PROVIDED THAT
THE RIGHT TO TERMINATE THIS AGREEMENT UNDER THIS SECTION 7.1(II)(B) SHALL NOT BE
AVAILABLE TO THE