OR PROVOKED,
OR ANY OTHER MATERIAL FACT THAT WOULD PRECLUDE THE ISSUANCE OF PATENTS WITH
RESPECT TO SUCH APPLICATIONS.
(16)
THE CONDUCT OF THE BUSINESS OF THE COMPANY AND
EACH OF ITS SUBSIDIARIES IS IN COMPLIANCE IN ALL RESPECTS WITH APPLICABLE LAWS,
RULES AND REGULATIONS OF GOVERNMENTAL AND REGULATORY BODIES, EXCEPT WHERE THE
FAILURE TO BE IN COMPLIANCE WOULD NOT INDIVIDUALLY OR IN THE AGGREGATE HAVE A
MATERIAL ADVERSE EFFECT.
(17)
THE COMPANY IS NOT, AND DOES NOT INTEND TO
CONDUCT ITS BUSINESS IN A MANNER IN WHICH IT WOULD BECOME, AN "INVESTMENT
COMPANY" AS DEFINED IN SECTION 3(A) OF THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED.
(18)
ALL OFFERS AND SALES OF THE COMPANY'S CAPITAL
STOCK PRIOR TO THE DATE HEREOF WERE AT ALL RELEVANT TIMES REGISTERED PURSUANT TO
THE SECURITIES ACT OR EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND WERE DULY REGISTERED WITH OR THE SUBJECT OF AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS, EXCEPT WHERE THE FAILURE TO DO SO WOULD NOT
INDIVIDUALLY OR IN THE AGGREGATE REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
(19)
THE COMPANY HAS FILED WITH THE NASDAQ GLOBAL
MARKET A NOTIFICATION OF LISTING OF ADDITIONAL SHARES WITH RESPECT TO THE
INVESTOR SHARES WITHIN THE TIME PERIOD REQUIRED BY THE RULES OF THE NASDAQ
GLOBAL MARKET AND THE INVESTOR SHARES HAVE BEEN APPROVED FOR LISTING ON THE
NASDAQ GLOBAL MARKET.
(20)
TO THE EXTENT THAT THE COMPANY OR ANY OTHER
PERSON ACTING ON ITS BEHALF HAS PROVIDED THE INVESTOR OR ITS AGENTS OR COUNSEL
WITH ANY INFORMATION THAT THE COMPANY BELIEVES CONSTITUTES MATERIAL, NON-PUBLIC
INFORMATION, ANY SUCH MATERIAL, NON-PUBLIC INFORMATION WILL BE DISCLOSED BY THE
COMPANY WITHIN 48 HOURS OF THE CLOSING.
5.
CONDITIONS.
(A)
THE OBLIGATION OF EACH INVESTOR TO PURCHASE AND ACQUIRE THE
INVESTOR SHARES HEREUNDER SHALL BE SUBJECT TO THE CONDITIONS THAT:
(1)
ALL REPRESENTATIONS AND WARRANTIES AND
OTHER STATEMENTS OF THE COMPANY SHALL BE TRUE AND CORRECT AS OF AND ON EACH OF
THE DATE OF THIS AGREEMENT AND THE DATE OF THE CLOSING;
(2)
THE COMPANY SHALL HAVE PERFORMED ALL OF ITS
OBLIGATIONS HEREUNDER THERETOFORE TO BE PERFORMED;
(3)
THE PROSPECTUS SHALL HAVE BEEN FILED WITH
THE COMMISSION PURSUANT TO RULE 424(B) UNDER THE SECURITIES ACT WITHIN THE
APPLICABLE TIME PERIOD PRESCRIBED FOR SUCH FILING, NO STOP ORDER SUSPENDING THE
EFFECTIVENESS OF THE REGISTRATION STATEMENT OR ANY PART THEREOF SHALL HAVE BEEN
ISSUED AND NO PROCEEDING FOR THAT PURPOSE SHALL HAVE BEEN INITIATED OR
THREATENED BY THE COMMISSION, AND THE INVESTOR SHALL HAVE RECEIVED THE
PROSPECTUS IN ACCORDANCE WITH THE FEDERAL SECURITIES LAWS;
(4)
THE COMPANY SHALL HAVE EXECUTED AND
DELIVERED THAT CERTAIN FUNDING AND ROYALTY AGREEMENT, BY AND BETWEEN THE COMPANY
AND DEERFIELD ED CORPORATION ("ED"), OF EVEN DATE HEREWITH (THE "FUNDING AND
ROYALTY AGREEMENT"); AND
(5)
THE COMPANY SHALL HAVE SHALL HAVE EXECUTED
AND DELIVERED THAT CERTAIN OPTION AND PUT AGREEMENT, BY AND BETWEEN THE COMPANY
ED AND THE INVESTORS,