AS PRESENTLY IN EFFECT, AND
UNDERSTANDS THE RESALE LIMITATIONS IMPOSED THEREBY AND BY THE SECURITIES ACT.
5.5
NO RECOMMENDATION BY REGULATORY AUTHORITIES.
THE SECURITIES
OFFERED HEREBY HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES
COMMISSION OR REGULATORY AUTHORITY.
FURTHERMORE, THE FOREGOING AUTHORITIES HAVE
NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS AGREEMENT.
ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
SECTION 6.
CONDITIONS TO COMPANY'S OBLIGATIONS AT THE CLOSING.
The Company's obligation to complete the sale and issuance of the Securities and
deliver the Securities purchased by each respective Purchaser at the Closing
shall be subject to the following conditions, unless waived by the Company:
6.1
RECEIPT OF PAYMENT.
THE COMPANY SHALL HAVE RECEIVED PAYMENT, BY
WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS, IN THE FULL AMOUNT OF THE PURCHASE
PRICE FOR THE NUMBER OF SECURITIES BEING PURCHASED BY EACH RESPECTIVE PURCHASER
AT THE CLOSING AS SET FORTH OPPOSITE SUCH PURCHASER'S NAME ON THE SCHEDULE OF
PURCHASERS ATTACHED AS EXHIBIT A.
6.2
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES MADE BY SUCH PURCHASER IN SECTION 5 HEREOF SHALL BE TRUE AND CORRECT
IN ALL MATERIAL RESPECTS WHEN MADE AND SHALL BE TRUE AND CORRECT IN ALL
MATERIALS RESPECTS ON THE CLOSING DATE.
SECTION 7.
CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE CLOSING.
Each Purchaser's obligation to accept delivery of the Securities and to pay for
the Securities shall be subject to the following conditions, to the extent not
waived by such Purchaser:
7.1
REPRESENTATIONS AND WARRANTIES CORRECT; COMPLIANCE WITH
COVENANTS.
THE REPRESENTATIONS AND WARRANTIES MADE BY THE COMPANY IN SECTION 4
HEREOF SHALL BE TRUE AND CORRECT WHEN MADE AND SHALL BE TRUE AND CORRECT ON THE
CLOSING DATE.
THE COMPANY SHALL HAVE COMPLIED WITH ALL COVENANTS REQUIRED TO
HAVE BEEN PERFORMED BY IT PRIOR TO THE CLOSING DATE.
7.2
COMPLIANCE CERTIFICATE.
EACH PURCHASER SHALL HAVE RECEIVED A
CERTIFICATE SIGNED BY AN APPROPRIATE OFFICER OF THE COMPANY CERTIFYING TO THE
FULFILLMENT OF THE CONDITIONS SET FORTH IN THIS SECTION 7.
20
7.3
OPINION OF COUNSEL.
THE PURCHASERS SHALL HAVE RECEIVED AN OPINION
OF HELLER EHRMAN WHITE & MCAULIFFE LLP, COUNSEL TO THE COMPANY, IN THE FORM
ATTACHED HERETO AS EXHIBIT E.
7.4
BOARD OF DIRECTORS.
THE MDS NOMINEE SHALL HAVE BEEN APPOINTED TO
THE COMPANY'S BOARD OF DIRECTORS, SUCH APPOINTMENT TO TAKE EFFECT ONE BUSINESS
DAY AFTER THE COMPANY'S RECEIPT OF THE PURCHASE PRICE FOR THE SECURITIES SET
FORTH OPPOSITE MDS CAPITAL'S NAME ON SCHEDULE OF PURCHASERS ATTACHED AS
EXHIBIT A.
7.5
MINIMUM PURCHASE AMOUNT.
THE COMPANY SHALL SELL AND ISSUE A
MINIMUM OF AT LEAST $15,000,000 AGGREGATE PURCHASE PRICE OF COMMON STOCK TO THE
PURCHASERS COLLECTIVELY AT THE CLOSING, OF WHICH AT LEAST 15% OF THE AGGREGATE
NUMBER OF SHARES OF COMMON STOCK SO SOLD AND ISSUED AT THE CLOSING MUST BE
PURCHASED BY BIOVAIL.
7.6
OFFICER AND DIRECTOR LOCK-UP AGREEMENT.
EACH OF THE DIRECTORS AND
EXECUTIVE OFFICERS OF THE COMPANY SHALL HAVE EXECUTED AND DELIVERED THE LOCK-UP
AGREEMENT ATTACHED AS EXHIBIT F.
7.7
VOTING