Common use of Closing Conditions of Buyer Clause in Contracts

Closing Conditions of Buyer. The obligations of Buyer to consummate the Contemplated Transactions shall be subject to the fulfillment, at or prior to the Closing, of the following conditions: 4.2.1 the representations and warranties of Seller made in this Agreement shall be true and correct both when made and as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct as of such specified date, except where the failure to be so true and correct (without giving effect to any limitation or qualification as to “materiality” or Material Adverse Effect set forth herein) would not have a Material Adverse Effect; 4.2.2 Seller shall have complied in all material respects with all covenants and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing; 4.2.3 there shall not be pending or, to the Knowledge of Seller, threatened any Proceeding by or against Seller seeking to permit or delay the consummation of the Contemplated Transactions; [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. 4.2.4 there shall not have occurred any Material Adverse Effect; 4.2.5 Seller shall have delivered to Buyer: .1 recordable assignments of all registered Patents, Trademarks and Copyrights included in the Acquired Assets, each in form and substance reasonably acceptable to Buyer, executed by Seller; .2 all regulatory filing packages and pre-clinical and clinical data, including Phase I and Phase II data, clinical reports, and other safety data collected by Seller; .3 such other xxxxx, xxxx(s) of sale, assignments, certificates of title, transfer Tax documents and other instruments of transfer and conveyance as may reasonably be requested by Buyer, each in form and substance reasonably satisfactory to Buyer, executed by Seller; .4 copies of all requisite resolutions or actions of Seller’s board of directors approving the execution and delivery of this Agreement and the consummation of the Contemplated Transactions in accordance with all applicable Legal Requirements and Seller’s Governing Documents; .5 evidence of releases of all Encumbrances on the Acquired Assets, except for the Permitted Encumbrance;

Closing Conditions of Buyer. The obligations obligation of Buyer to consummate the Contemplated Transactions transactions contemplated by this Agreement shall be subject to and conditioned upon the fulfillmentsatisfaction, or waiver by Buyer, at or prior to the Closing, before Closing of each of the following conditions: 4.2.1 (a) All of the covenants and agreements contained in this Agreement to be complied with and performed by Seller on or before the Closing shall have been complied with and performed in all material respects, and Seller shall not be in material breach of any such covenant or agreement and shall have delivered on the Closing Date to Buyer all of the documents and instruments that are required to be delivered by it on the Closing Date. (b) All representations and warranties of Seller contained in or made in pursuant to this Agreement or any other instrument or agreement to be delivered in connection herewith shall be true true, correct and correct both when complete in all material respects as of the Closing Date as if made at and as of the Closing Date, or in the case of representations and warranties that are made as of a specified date, such representations and warranties shall be true and correct as of such specified date, except where the failure to be so true and correct . (without giving effect to any limitation or qualification as to “materiality” or Material Adverse Effect set forth hereinc) would not have a Material Adverse Effect; 4.2.2 Seller The Stockholder Approval shall have complied in all material respects with all covenants and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing; 4.2.3 there shall not be pending or, to the Knowledge of Seller, threatened any Proceeding by or against Seller seeking to permit or delay the consummation of the Contemplated Transactions; [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDEDbeen obtained. 4.2.4 there shall not have occurred any Material Adverse Effect; 4.2.5 (d) Seller shall have delivered to Buyer: .1 recordable assignments of all registered PatentsBuyer a certificate, Trademarks and Copyrights included in dated the Acquired Assets, each in form and substance reasonably acceptable to BuyerClosing Date, executed by Seller;a responsible officer of Seller certifying to the satisfaction of the conditions specified in Sections 12.2 (a), (b) and (c) hereof. .2 all regulatory filing packages and pre-clinical and clinical data, including Phase I and Phase II data, clinical reports, and other safety data collected by Seller; .3 such other xxxxx, xxxx(s(e) of sale, assignments, certificates of title, transfer Tax documents and other instruments of transfer and conveyance as may reasonably be requested by Buyer, each in form and substance reasonably satisfactory Seller shall have delivered to Buyer, executed by Seller; .4 Buyer copies of all requisite necessary corporate resolutions of Seller authorizing the execution, delivery and performance by Seller of this Agreement, and consummation of the transactions contemplated hereby, certified to be true, correct, complete, unchanged and in full force and effect on the Closing Date by the Secretary or actions an Assistant Secretary of Seller’s board . (f) No order of directors approving any court or administrative agency of competent jurisdiction shall be in effect as of the execution and delivery of this Agreement and Closing Date which restrains or prohibits the consummation of the Contemplated Transactions in accordance with all applicable Legal Requirements and Seller’s Governing Documents;transactions contemplated by this Agreement. .5 evidence (g) Seller shall have delivered to Buyer a copy of releases of all Encumbrances on the Acquired Assets, except for the Permitted Encumbrance;Fairness Opinion.

Closing Conditions of Buyer. The obligations of Buyer to consummate the Contemplated Transactions shall be subject to the fulfillmentfulfillment or Xxxxx’s waiver, at or prior to the Closing, of each of the following conditions: 4.2.1 (a) Each Seller Member shall have delivered an Assignment to Xxxxx, duly executed by such Seller Member. (b) At least three (3) Business Days before Closing, the Sellers’ Representative shall have delivered to Buyer the Estimated Statements contemplated in Section 2.04. (c) (i) The representations and warranties of the Company and the Seller made Members contained in this Agreement (considered without regard to any reference to materiality or Material Adverse Effect qualifiers set forth therein), other than the Fundamental Representations, shall be true and correct both when as of the Closing Date in all material respects, as though made on and as of the Closing Date, or in the case of except that those representations and warranties that are made which address matters only as of a specified particular date shall have been true and correct only as of such date, such representations and warranties (ii) the Fundamental Representations (considered without regard to any reference to materiality or Material Adverse Effect qualifiers set forth therein), shall be true and correct as of such specified datethe Closing Date in all respects, as though made on and as of the Closing Date, except where the failure to be so for any de minimis inaccuracies and except for those Fundamental Representations which address matters only as of a particular date shall have been true and correct (without giving effect to any limitation or qualification only as to “materiality” or Material Adverse Effect set forth herein) would not have a Material Adverse Effectof such date; 4.2.2 (d) The Company and each Seller Member shall have performed or complied in all material respects with all agreements and covenants and conditions required by this Agreement to be performed or complied with by it or him on or prior to or at the Closing; 4.2.3 there Closing and Buyer shall not be pending or, to the Knowledge have received a certificate of Seller, threatened any Proceeding by or against Seller seeking to permit or delay the consummation an officer of the Contemplated Transactions; [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENTCompany and of each Seller Member to that effect (such certificates referred to in this subsection (d) and subsection (c) above, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDEDthe “Closing Certificates”). 4.2.4 (e) Since the date of this Agreement, there shall not have occurred any event, occurrence, fact, circumstance, condition or change that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;. 4.2.5 Seller (f) Buyer shall have delivered to Buyer: .1 recordable assignments received a certificate of all registered Patents, Trademarks an officer of the Company certifying that attached thereto are true and Copyrights included in complete copies of the Acquired Assets, each in form resolutions adopted by the members and substance reasonably acceptable to Buyer, executed by Seller; .2 all regulatory filing packages and pre-clinical and clinical data, including Phase I and Phase II data, clinical reports, and other safety data collected by Seller; .3 such other xxxxx, xxxx(sboard of managers (or equivalent) of salethe Company authorizing the Company’s execution, assignments, certificates of title, transfer Tax documents delivery and other instruments of transfer and conveyance as may reasonably be requested by Buyer, each in form and substance reasonably satisfactory to Buyer, executed by Seller; .4 copies of all requisite resolutions or actions of Seller’s board of directors approving the execution and delivery performance of this Agreement and the Ancillary Documents to which it is a party and the consummation of the Contemplated Transactions Transactions, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the Transactions. (g) Xxxxx shall have received resignations of the officers and members of the board of managers (or equivalent body) of the Company. (h) Sellers’ Representative shall have delivered to Buyer a certificate of existence for the Company from the secretary of state or similar Governmental Authority of the jurisdiction under the Laws in which the Company is organized and in all jurisdictions in which the Company is qualified to do business as a foreign corporation. (i) Each Seller Member shall have delivered to Buyer a certificate pursuant to Treasury Regulations Section 1.1445-2(b) that such Seller Member is not a foreign person within the meaning of Section 1445 of the Code. (j) At or prior to the Closing, the Seller Members shall, and shall cause the Company to, extinguish any Indebtedness of the Company to third parties and shall have caused to be released all Encumbrances related to all Indebtedness upon any of the properties and assets of the Company. The Sellers’ Representative shall have delivered to Buyer customary debt payoff letters and, if applicable, lien releases, termination statements under the Uniform Commercial Code and any other applicable Laws, in recordable form, and other instruments as may be reasonably requested by Xxxxx, in each case, evidencing the extinguishment of all security interests and other Encumbrances related to the Company or any of its assets or properties; (k) Sellers’ Representative shall have delivered reasonably satisfactory evidence to Buyer that all Related Party Obligations shall have been eliminated from being a future obligation or right of any Seller Party or any of their respective Affiliates, as applicable. (l) Sellers’ Representative shall have delivered to Buyer an executed counterpart signature page to the Escrow Agreement. (m) Sellers’ Representative shall have delivered to Buyer the Third Party Consents set forth in Schedule 8.02(m). (n) Sellers’ Representative shall have delivered to Buyer the Termination and Release Agreement, validly executed and delivered by Xxxxx Xxxxxxxxxx in accordance with all applicable Legal Requirements Section 6.11 of this Agreement. (o) Sellers’ Representative shall have delivered to Buyer (a) executed resolutions of the board of managers of the Company authorizing termination of each 401(k) Plan, and Seller’s Governing Documents;(b) executed amendments to each 401(k) Plan, in accordance with Section 6.12 of this Agreement. .5 evidence of releases of all Encumbrances on (p) The Seller Members shall have delivered to Buyer such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate the Acquired Assets, except for the Permitted Encumbrance;Transactions.