16, 2009, COPIES, CERTIFIED BY AN OFFICER OF SELLER, OF SELLER'S (A) MOST
RECENT PRO FORMA BALANCE SHEET AT MARCH 31, 2009, (B) MOST RECENT PRO FORMA
PROJECTED INCOME STATEMENT AT MARCH 31, 2009, AND (C) MOST RECENT BUSINESS PLAN
(FORECASTS) FOR EACH OF THE FOUR QUARTERS ENDING ON JUNE 30, 2009, SEPTEMBER 30,
2009, DECEMBER 31, 2009, AND MARCH 31, 2010 DEVELOPED BY MANAGEMENT OF SELLER;
AND
12
(L)
ON OR PRIOR TO THE CLOSING DATE, THE PARTIES SHALL HAVE COMPLETED
AND AGREED UPON (HAVING NEGOTIATED IN GOOD FAITH PURSUANT TO SECTION 5.11) THE
LICENSE AGREEMENT AND ANY SCHEDULES OR EXHIBITS THERETO.
6.2
CONDITIONS TO SELLER'S OBLIGATION TO CONSUMMATE THE ACQUISITION.
THE OBLIGATION OF SELLER TO CONSUMMATE THE ACQUISITION IS SUBJECT TO THE
SATISFACTION OR WAIVER OF THE FOLLOWING:
(A)
SELLER SHALL HAVE RECEIVED EVERYTHING SPECIFIED IN SECTION 2.2 AND
SECTION 2.3;
(B)
THE REPRESENTATIONS AND WARRANTIES OF PURCHASER IN THIS AGREEMENT
AND THE OTHER CERTIFICATES AND DOCUMENTS CONTEMPLATED HEREBY SHALL BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS (OTHER THAN REPRESENTATIONS AND WARRANTIES THAT
ARE QUALIFIED AS TO MATERIALITY OR BY MATERIAL ADVERSE EFFECT, WHICH
REPRESENTATIONS SHALL BE TRUE AND CORRECT IN ALL RESPECTS) AS OF THE CLOSING
DATE, OTHER THAN REPRESENTATIONS AND WARRANTIES THAT SPEAK OF ANOTHER SPECIFIC
DATE OR TIME PRIOR TO THE CLOSING DATE (WHICH NEED ONLY BE TRUE AND CORRECT, TO
THE EXTENT SET FORTH ABOVE, AS OF SUCH DATE OR TIME);
(C)
PURCHASER SHALL HAVE COMPLIED IN ALL MATERIAL RESPECTS WITH ALL OF
THE COVENANTS AND OBLIGATIONS OF IT CONTAINED IN THIS AGREEMENT;
(D)
THERE SHALL NOT HAVE BEEN A MATERIAL ADVERSE EFFECT ON PURCHASER;
(E)
SELLER SHALL HAVE RECEIVED A CERTIFICATE FROM PURCHASER EXECUTED
BY AN OFFICER OF PURCHASER, DATED THE CLOSING DATE, AFFIRMING THE STATEMENTS SET
FORTH IN SECTIONS 6.2(B) - (D);
(F)
ALL NECESSARY CONSENTS OF GOVERNMENTAL AUTHORITIES REQUIRED FOR
THE CONSUMMATION OF THE ACQUISITION AND THE OTHER TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT, ALL OF WHICH ARE SET FORTH ON SCHEDULE 6.2(F), SHALL HAVE BEEN
OBTAINED;
(G)
THERE SHALL NOT BE IN EFFECT ANY LAW OF ANY GOVERNMENTAL AUTHORITY
RESTRAINING, ENJOINING, MATERIALLY DELAYING OR OTHERWISE PROHIBITING THE
CONSUMMATION OF THE ACQUISITION AND THE OTHER TRANSACTIONS CONTEMPLATED HEREBY;
AND
(H)
NO ACTION, SUIT, OR PROCEEDING BY A THIRD PARTY SHALL HAVE
COMMENCED AND NOT BEEN WITHDRAWN BEFORE ANY COURT OR QUASI-JUDICIAL OR
ADMINISTRATIVE AGENCY OF ANY U.S. OR FOREIGN JURISDICTION OR BEFORE ANY
ARBITRATOR, IN WHICH ACTION, SUIT OR PROCEEDING SUCH THIRD PARTY HAS A
REASONABLE LIKELIHOOD OF PREVAILING, AND WHEREIN AN UNFAVORABLE INJUNCTION,
JUDGMENT, ORDER, DECREE, RULING, OR CHARGE WOULD (A) PREVENT CONSUMMATION OF ANY
OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE ANCILLARY AGREEMENTS
OR (B) CAUSE ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE
ANCILLARY AGREEMENTS TO BE RESCINDED FOLLOWING CONSUMMATION THEREOF (AND NO SUCH
INJUNCTION, JUDGMENT, ORDER, DECREE, RULING, OR CHARGE SHALL BE IN EFFECT).
13
ARTICLE VII
TERMINATION
7.1
TERMINATION OF AGREEMENT.
THIS AGREEMENT MAY BE TERMINATED PRIOR
TO THE CLOSING