INADEQUATE TO PROTECT THE INTEREST OF THE COMPANY, THAT
IN EACH CASE (IF THE SUBJECT OF ANY UNFAVORABLE DECISION, RULING OR FINDING),
INDIVIDUALLY OR IN THE AGGREGATE, WOULD HAVE OR WOULD REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE CHANGE. THERE ARE NO THIRD PARTIES WHO HAVE BEEN ABLE TO
ESTABLISH ANY MATERIAL RIGHTS TO ANY INTELLECTUAL PROPERTY, EXCEPT FOR THE
RETAINED RIGHTS OF THE OWNERS OR LICENSORS OF ANY INTELLECTUAL PROPERTY THAT IS
LICENSED TO THE COMPANY. THERE IS NO PENDING OR, TO THE COMPANY'S KNOWLEDGE,
THREATENED ACTION, SUIT, PROCEEDING OR CLAIM BY OTHERS: (A) CHALLENGING THE
VALIDITY, ENFORCEABILITY OR SCOPE OF ANY INTELLECTUAL PROPERTY OF THE COMPANY OR
(B) CHALLENGING THE COMPANY'S RIGHTS IN OR TO ANY INTELLECTUAL PROPERTY OR (C)
THAT THE COMPANY MATERIALLY INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES OR
CONFLICTS WITH ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS OF OTHERS.
THE COMPANY HAS COMPLIED IN ALL MATERIAL RESPECTS WITH THE TERMS OF EACH
AGREEMENT DESCRIBED IN THE REGISTRATION STATEMENT, DISCLOSURE PACKAGE OR
PROSPECTUS PURSUANT TO WHICH ANY INTELLECTUAL PROPERTY IS LICENSED TO THE
COMPANY, AND ALL SUCH AGREEMENTS RELATED TO PRODUCTS CURRENTLY MADE OR SOLD BY
THE COMPANY, OR TO PRODUCT CANDIDATES CURRENTLY UNDER DEVELOPMENT, ARE IN FULL
FORCE AND EFFECT. ALL PATENTS ISSUED IN THE NAME OF, OR ASSIGNED TO, THE
COMPANY, AND ALL PATENT APPLICATIONS MADE BY OR ON BEHALF OF THE COMPANY
(COLLECTIVELY, THE "COMPANY PATENTS") HAVE BEEN DULY AND PROPERLY FILED. THE
COMPANY IS NOT AWARE OF ANY MATERIAL INFORMATION THAT WAS REQUIRED TO BE
DISCLOSED TO THE UNITED STATES PATENT AND TRADEMARK OFFICE (THE "PTO") BUT THAT
WAS NOT DISCLOSED TO THE PTO WITH RESPECT TO ANY ISSUED COMPANY PATENT, OR THAT
IS REQUIRED TO BE DISCLOSED AND HAS NOT YET BEEN DISCLOSED IN ANY PENDING
APPLICATION IN THE COMPANY PATENTS AND THAT WOULD PRECLUDE THE GRANT OF A PATENT
ON SUCH APPLICATION. TO THE COMPANY'S KNOWLEDGE, THE COMPANY IS THE SOLE OWNER
OF THE COMPANY PATENTS.
13
EE.
TAXES. THE COMPANY HAS FILED ALL RETURNS (AS HEREINAFTER
DEFINED) REQUIRED TO BE FILED WITH TAXING AUTHORITIES PRIOR TO THE DATE HEREOF
OR HAS DULY OBTAINED EXTENSIONS OF TIME FOR THE FILING THEREOF. THE COMPANY HAS
PAID ALL TAXES (AS HEREINAFTER DEFINED) SHOWN AS DUE ON SUCH RETURNS THAT WERE
FILED AND HAS PAID ALL TAXES IMPOSED ON OR ASSESSED AGAINST THE COMPANY, EXCEPT
FOR SUCH EXCEPTIONS AS COULD NOT BE EXPECTED, INDIVIDUALLY OR IN THE AGGREGATE,
TO HAVE A MATERIAL ADVERSE CHANGE. THE PROVISIONS FOR TAXES PAYABLE, IF ANY,
SHOWN ON THE FINANCIAL STATEMENTS FILED WITH OR AS PART OF THE REGISTRATION
STATEMENT ARE SUFFICIENT FOR ALL ACCRUED AND UNPAID TAXES, WHETHER OR NOT
DISPUTED, AND FOR ALL PERIODS TO AND INCLUDING THE DATES OF SUCH CONSOLIDATED
FINANCIAL STATEMENTS. EXCEPT AS DISCLOSED IN WRITING TO THE PLACEMENT AGENT, (I)
NO ISSUES HAVE BEEN RAISED (AND ARE CURRENTLY PENDING) BY ANY TAXING AUTHORITY
IN CONNECTION WITH ANY OF THE RETURNS OR TAXES ASSERTED AS DUE FROM THE COMPANY,
AND (II) NO