REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
(E)
THE CONSENTS LISTED ON SCHEDULE 7.1(E) OF
THE COMPANY DISCLOSURE LETTER SHALL HAVE BEEN OBTAINED AND DELIVERED TO
PURCHASER.
(F)
THE PARTIES SHALL HAVE RECEIVED ALL
APPROVALS AND ACTIONS OF OR BY ALL GOVERNMENTAL AUTHORITIES WHICH ARE NECESSARY
TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION AGREEMENTS, WHICH
ARE EITHER SPECIFIED IN SCHEDULE 3.4 OF THE COMPANY DISCLOSURE LETTER OR
OTHERWISE REQUIRED TO BE OBTAINED PRIOR TO THE CLOSING BY APPLICABLE
REQUIREMENTS OF LAWS OR WHICH ARE NECESSARY TO PREVENT A MATERIAL ADVERSE
EFFECT.
(G)
THE CERTIFICATE OF INCORPORATION SHALL HAVE
BEEN AMENDED TO INCREASE THE AUTHORIZED COMMON STOCK FROM 98,500,000 SHARES TO
250,000,000 SHARES.
(H)
A PERIOD OF AT LEAST TEN (10) DAYS SHALL
HAVE ELAPSED SINCE THE MAILING BY THE COMPANY OF THE COMPANY STOCKHOLDER NOTICE
AND THE ISSUANCE BY THE COMPANY OF THE NASDAQ ANNOUNCEMENT, IN EACH CASE, IN
ACCORDANCE WITH SECTION 5.5.
(I)
THE SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION OF THE NOTE SHALL HAVE BEEN APPROVED FOR LISTING ON NASDAQ, SUBJECT
ONLY TO OFFICIAL NOTICE OF ISSUANCE.
(J)
THE COMPANY SHALL HAVE ENTERED INTO THE
NOTE, THE ASSIGNMENT AGREEMENT, THE SECURITY AGREEMENT, THE REGISTRATION RIGHTS
AGREEMENT AND THE CELECOXIB LICENSE AGREEMENT.
ARTICLE 8
CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY TO CLOSE
8.1
CONDITIONS TO CLOSING.
THE OBLIGATION OF
THE COMPANY TO ENTER INTO AND COMPLETE THE CLOSING ARE SUBJECT TO THE
FULFILLMENT ON OR PRIOR TO THE CLOSING DATE OF THE FOLLOWING CONDITIONS, ANY ONE
OR MORE OF WHICH MAY BE WAIVED BY THE COMPANY:
(A)
THE REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER CONTAINED IN THIS AGREEMENT SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS ON AND AS OF THE CLOSING DATE WITH THE SAME FORCE AND EFFECT AS THOUGH
MADE ON AND AS OF THE CLOSING DATE (EXCEPT THAT REPRESENTATIONS AND WARRANTIES
MADE AS OF A SPECIFIC DATE SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON
SUCH DATE); THE PURCHASER SHALL HAVE PERFORMED AND COMPLIED WITH IN ALL MATERIAL
RESPECTS ALL COVENANTS AND AGREEMENTS REQUIRED BY THIS AGREEMENT TO BE PERFORMED
OR COMPLIED WITH BY IT ON OR PRIOR TO THE CLOSING DATE; AND THE PURCHASER SHALL
HAVE DELIVERED TO THE COMPANY A CERTIFICATE, DATED THE DATE OF THE CLOSING DATE
AND SIGNED BY AN EXECUTIVE OFFICER OF THE PURCHASER, TO THE FOREGOING EFFECT.
*CONFIDENTIAL TREATMENT REQUESTED
44
(B)
NO ACTION SHALL BE PENDING OR THREATENED BY
ANY GOVERNMENTAL AUTHORITY OR ANY OTHER PARTY AGAINST THE COMPANY OR ANY OF ITS
DIRECTORS OR THE PURCHASER, WHICH ACTION IS REASONABLY LIKELY TO (I) RESTRAIN OR
PROHIBIT THE CONSUMMATION OF ANY OF THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION AGREEMENTS OR (II) RESULT IN DAMAGES THAT ALONE OR TOGETHER WITH THE
COSTS AND EXPENSES OF DEFENDING SUCH ACTION ARE MATERIAL IN RELATION TO THE
COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE.
(C)
NO REQUIREMENT OF LAW OR ORDER SHALL HAVE
BEEN ENACTED, ENTERED, PROMULGATED OR ENFORCED BY ANY