Common use of Nasdaq Matters Clause in Contracts

Nasdaq Matters. (a) The Company shall take all action required and shall make all submissions that are reasonably necessary to obtain written confirmation reasonably satisfactory to the GAP Purchasers from the Nasdaq that the approval of a majority of the Company's stockholders, present in person or proxy at a properly convened meeting of the Company's stockholders ("Stockholder Approval") to the issuance of the shares of Series D Preferred Stock to the GAP Purchasers is not required under the applicable Nasdaq rules and regulations in order to satisfy the Nasdaq Escrow Approval Condition. If the Company cannot obtain such written confirmation by January 31, 2001, it shall take all action required by the Nasdaq and applicable California law (including the actions referred to in Section 8.7(b)) to obtain Stockholder Approval for the issuance to the GAP Purchasers of the portion of the shares of Series D Preferred Stock that constitute the amount of shares of Series D Preferred Stock (determined assuming conversion of all of the shares of Series D Preferred Stock) in excess of 19.9% of the outstanding shares of the Common Stock on the date hereof (the "Applicable Stockholder Approval"). The Board of Directors shall recommend that the Company's stockholders vote in favor of the Applicable Stockholder Approval. (b) If required pursuant to Section 8.7(a) of this Agreement, promptly after November 30, 2001, the Company will prepare and file with the Commission a proxy statement to be distributed to the Company's stockholders in connection with the solicitation of votes in favor of the Applicable Stockholder Approval, including any amendments or supplements thereto (the "Proxy Statement"). The Company will use all reasonable commercial efforts to have or cause the Proxy Statement to be cleared by the Commission as promptly as practicable. The Company agrees to provide the Purchasers and their respective counsel with any written comments the Company or its counsel may receive from the Commission with respect to the Proxy Statement promptly after the receipt of such comments. The Company will use all reasonable commercial efforts to cause the Proxy Statement (i) not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading and (ii) to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder. Following clearance by the Commission of the Proxy Statement, the Company shall promptly distribute the Proxy Statement to its stockholders and call and arrange for a special meeting of stockholders and take such other actions as are required or necessary in order to obtain the Applicable Stockholder Approval as promptly as practicable.

Nasdaq Matters. The parties acknowledge that, as of the date of this Agreement, a request has been made to Nasdaq concerning a determination of the necessity of obtaining approval of the stockholders of TriPath to issue the Shares and the Warrant Agreements ("TriPath Stockholder Approval"), and that certain proposals, described in more detail in Sections 4(a) and 4(b) hereof, have been made to Nasdaq. Upon receipt of a final determination letter from Nasdaq regarding the necessity of stockholder approval (the "Determination Letter"), the following shall occur, as applicable: (a) The Company shall take all action if Nasdaq indicates in the Determination Letter that no TriPath Stockholder Approval will be required and shall make all submissions that are reasonably necessary if the Purchaser agrees to obtain written confirmation reasonably satisfactory voting restrictions substantially as set forth in Section 10.4 (the "Voting Restrictions"), then, to the GAP Purchasers from extent that counsel to both TriPath and the Nasdaq Purchaser determine that the approval Voting Restrictions will not violate applicable law, the Voting Restrictions shall apply to the Purchaser; (b) if Nasdaq indicates in the Determination Letter that no TriPath Stockholder Approval will be required only if the Purchaser acquires Warrants to purchase Nonvoting Preferred Stock in lieu of a majority of Common Stock (and will be required if the Company's stockholdersPurchaser acquires Warrants to purchase Common Stock with the Voting Restrictions), present in person or proxy at a properly convened meeting of then, to the Company's stockholders ("Stockholder Approval") extent that counsel to both TriPath and the Purchaser determine that the issuance of the Nonvoting Preferred Stock will not violate applicable law, the Purchaser shall acquire Warrants to purchase Nonvoting Preferred Stock in lieu Warrants to purchase Common Stock, and all references herein to the Warrants shall refer to Warrants to purchase Nonvoting Preferred Stock. "Nonvoting Preferred Stock" shall mean preferred stock of TriPath designated by the Board of Directors of TriPath out of authorized "blank check" preferred stock which shall (i) convert into shares of Series D Common Stock at a rate of 1,000 shares of Common Stock for each share of Nonvoting Preferred Stock (ii) be nonvoting until converted into shares of Common Stock, (iii) convert automatically upon a transfer of such shares to an unaffiliated third party (and not be convertible prior to such time), (iv) rank pari passu with the Common Stock with respect to dividends and liquidation preference (which shall be defined to include any merger or similar transaction or tender offer by TriPath or with its approval), (v) provide for a class vote in the event of any amendment to TriPath's charter or bylaws that affects the Nonvoting Preferred Stock adversely in a manner different than the Common Stock and (v) contain such other terms as may be mutually agreed between the parties. In the event that TriPath issues Warrants to purchase Nonvoting Preferred Stock to the GAP Purchasers is not required under the applicable Nasdaq rules and regulations in order to satisfy the Nasdaq Escrow Approval Condition. If the Company cannot obtain such written confirmation by January 31, 2001, it shall take all action required by the Nasdaq and applicable California law (including the actions referred to in Section 8.7(b)) to obtain Stockholder Approval for the issuance to the GAP Purchasers of the portion of the shares of Series D Preferred Stock that constitute the amount of shares of Series D Preferred Stock (determined assuming conversion of all of the shares of Series D Preferred Stock) in excess of 19.9% of the outstanding shares of the Common Stock on the date hereof (the "Applicable Stockholder Approval"). The Board of Directors shall recommend that the Company's stockholders vote in favor of the Applicable Stockholder Approval. (b) If required Purchaser pursuant to this Section 8.7(a) of this Agreement4(b), promptly after November 30, 2001, the Company will prepare then share amounts and file with the Commission a proxy statement to be distributed to the Company's stockholders in connection with the solicitation of votes in favor of the Applicable Stockholder Approval, including any amendments or supplements thereto (the "Proxy Statement"). The Company will use all reasonable commercial efforts to have or cause the Proxy Statement to be cleared by the Commission as promptly as practicable. The Company agrees to provide the Purchasers and their respective counsel with any written comments the Company or its counsel may receive from the Commission exercise prices per share set forth herein with respect to the Proxy Statement promptly after Warrants shall be appropriately adjusted, as applicable, to reflect the receipt of such comments. The Company will use all reasonable commercial efforts to cause the Proxy Statement (i) not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light conversion ratio of the circumstances under which they are made, not misleading and (ii) to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder. Following clearance by the Commission of the Proxy Statement, the Company shall promptly distribute the Proxy Statement to its stockholders and call and arrange for a special meeting of stockholders and take such other actions as are required or necessary in order to obtain the Applicable Stockholder Approval as promptly as practicable.Nonvoting Preferred Stock;

Nasdaq Matters. (a) The Company shall take all action required and shall make all submissions that are reasonably necessary to obtain written confirmation reasonably satisfactory to the GAP Purchasers from the Nasdaq that the approval of a majority of the Company's stockholders, present in person or proxy at a properly convened meeting of the Company's stockholders ("Stockholder ApprovalSTOCKHOLDER APPROVAL") to the issuance of the shares of Series D Preferred Stock to the GAP Purchasers is not required under the applicable Nasdaq rules and regulations in order to satisfy the Nasdaq Escrow Approval Condition. If the Company cannot obtain such written confirmation by January 31, 2001, it shall take all action required by the Nasdaq and applicable California law (including the actions referred to in Section 8.7(b)) to obtain Stockholder Approval for the issuance to the GAP Purchasers of the portion of the shares of Series D Preferred Stock that constitute the amount of shares of Series D Preferred Stock (determined assuming conversion of all of the shares of Series D Preferred Stock) in excess of 19.9% of the outstanding shares of the Common Stock on the date hereof (the "Applicable Stockholder ApprovalAPPLICABLE STOCKHOLDER APPROVAL"). The Board of Directors shall recommend that the Company's stockholders vote in favor of the Applicable Stockholder Approval. (b) If required pursuant to Section 8.7(a) of this Agreement, promptly after November 30, 2001, the Company will prepare and file with the Commission a proxy statement to be distributed to the Company's stockholders in connection with the solicitation of votes in favor of the Applicable Stockholder Approval, including any amendments or supplements thereto (the "Proxy StatementPROXY STATEMENT"). The Company will use all reasonable commercial efforts to have or cause the Proxy Statement to be cleared by the Commission as promptly as practicable. The Company agrees to provide the Purchasers and their respective counsel with any written comments the Company or its counsel may receive from the Commission with respect to the Proxy Statement promptly after the receipt of such comments. The Company will use all reasonable commercial efforts to cause the Proxy Statement (i) not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading and (ii) to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder. Following clearance by the Commission of the Proxy Statement, the Company shall promptly distribute the Proxy Statement to its stockholders and call and arrange for a special meeting of stockholders and take such other actions as are required or necessary in order to obtain the Applicable Stockholder Approval as promptly as practicable.

Nasdaq Matters. (a) The Company has, prior to the date hereof, obtained from the NASDAQ Stock Market a valid exception under NASDAQ Rule 5635(f) from NASDAQ Rules 5635(b), 5635(d) and 5640 and IM-5640 with respect to the issuance of all of the Shares and the Common Shares in accordance with all of the terms and conditions of the Transaction Documents (the “NASDAQ Exception”). Within one (1) Business Day of the date hereof, in compliance with NASDAQ Rule 5635, the Company shall take cause to be mailed to all action required of the Company’s stockholders, at the Company’s expense, a written notice, in form and shall make all submissions that are reasonably necessary to obtain written confirmation substance reasonably satisfactory to the GAP Purchasers from Purchaser (the Nasdaq “Exception Notice”), alerting such stockholders to the Company’s omission to seek the stockholder approval that would otherwise be required in connection with the transactions contemplated by this Agreement by virtue of the NASDAQ Exception, and indicating that the approval Board of a majority Directors has expressly approved the transactions contemplated by this Agreement, including the issuance of the Company's stockholdersPreferred Shares to the Purchaser, present in person or proxy at a properly convened meeting and that the audit committee of the Board of Directors has expressly approved the Company's stockholders ("Stockholder Approval") ’s request to the NASDAQ Stock Market for the NASDAQ Exception in connection therewith. The Company shall comply with all requirements of the National Association of Securities Dealers, Inc. with respect to the issuance of the shares of Series D Preferred Stock to Common Shares. Promptly following the GAP Purchasers is not required under the applicable Nasdaq rules and regulations in order to satisfy the Nasdaq Escrow Approval Condition. If Purchaser’s written request, the Company cannot obtain such written confirmation by January 31, 2001, it shall take all action required by the Nasdaq and applicable California law (necessary actions, including the actions referred to in Section 8.7(b)) to obtain Stockholder Approval for the issuance to the GAP Purchasers without limitation, complying with all requirements of the portion National Association of the shares of Series D Preferred Stock that constitute the amount of shares of Series D Preferred Stock (determined assuming conversion of all of the shares of Series D Preferred Stock) in excess of 19.9% of the outstanding shares of the Common Stock on the date hereof (the "Applicable Stockholder Approval"). The Board of Directors shall recommend that the Company's stockholders vote in favor of the Applicable Stockholder Approval. (b) If required pursuant Securities Dealers, Inc. and providing appropriate notice to Section 8.7(a) of this Agreement, promptly after November 30, 2001, the Company will prepare and file with the Commission a proxy statement to be distributed to the Company's stockholders in connection with the solicitation of votes in favor of the Applicable Stockholder Approval, including any amendments or supplements thereto (the "Proxy Statement"). The Company will use all reasonable commercial efforts to have or cause the Proxy Statement to be cleared by the Commission as promptly as practicable. The Company agrees to provide the Purchasers and their respective counsel with any written comments the Company or its counsel may receive from the Commission NASDAQ with respect to the Proxy Statement promptly after the receipt of such comments. The Company will use all reasonable commercial efforts to cause the Proxy Statement (i) not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading and (ii) to comply as to form in all material respects with the applicable provisions of the Exchange Act Preferred Shares and the rules and regulations thereunder. Following clearance by the Commission of the Proxy Statement, the Company shall promptly distribute the Proxy Statement to its stockholders and call and arrange for a special meeting of stockholders and take such other actions as are required or necessary Common Shares in order to obtain the Applicable Stockholder Approval listing of the Common Shares on the NASDAQ Stock Market as promptly soon as practicablereasonably practicable following such request. Following the Closing and for so long as the Company qualifies as a “Controlled Company” (as defined in the NASDAQ Listing Rules), the Company shall comply with such requirements of the NASDAQ Stock Market as shall permit the Company to rely on the “Controlled Company” exemption from the requirements of NASDAQ Listing Rules 5605(b), (d) and (e), including without limitation, complying with the disclosure requirements set forth in Instruction 1 to Item 407(a) of Regulation S-K of the Securities Act of 1933, as amended.

Nasdaq Matters. (a) The Company shall take all action required and shall make all submissions that are reasonably necessary to obtain written confirmation reasonably satisfactory to the GAP Purchasers from the Nasdaq that the approval of a majority of the Company's stockholders, present in person or proxy at a properly convened meeting of the Company's stockholders ("Stockholder Approval") -------------------- to the issuance of the shares of Series D Preferred Stock to the GAP Purchasers is not required under the applicable Nasdaq rules and regulations in order to satisfy the Nasdaq Escrow Approval Condition. If the Company cannot obtain such written confirmation by January 31, 2001, it shall take all action required by the Nasdaq and applicable California law (including the actions referred to in Section 8.7(b)) to obtain Stockholder Approval for the issuance to the GAP Purchasers of the portion of the shares of Series D Preferred Stock that constitute the amount of shares of Series D Preferred Stock (determined assuming conversion of all of the shares of Series D Preferred Stock) in excess of 19.9% of the outstanding shares of the Common Stock on the date hereof (the "Applicable Stockholder Approval"). The Board of Directors shall recommend that ------------------------------- the Company's stockholders vote in favor of the Applicable Stockholder Approval. (b) If required pursuant to Section 8.7(a) of this Agreement, promptly after November 30, 2001, the Company will prepare and file with the Commission a proxy statement to be distributed to the Company's stockholders in connection with the solicitation of votes in favor of the Applicable Stockholder Approval, including any amendments or supplements thereto (the "Proxy ----- Statement"). The Company will use all reasonable commercial efforts to have or --------- cause the Proxy Statement to be cleared by the Commission as promptly as practicable. The Company agrees to provide the Purchasers and their respective counsel with any written comments the Company or its counsel may receive from the Commission with respect to the Proxy Statement promptly after the receipt of such comments. The Company will use all reasonable commercial efforts to cause the Proxy Statement (i) not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading and (ii) to comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder. Following clearance by the Commission of the Proxy Statement, the Company shall promptly distribute the Proxy Statement to its stockholders and call and arrange for a special meeting of stockholders and take such other actions as are required or necessary in order to obtain the Applicable Stockholder Approval as promptly as practicable.