PROMULGATED, ENFORCED OR ISSUED BY ANY COURT OR OTHER GOVERNMENTAL
ENTITY OF COMPETENT JURISDICTION OR OTHER LEGAL RESTRAINT OR PROHIBITION SHALL
BE IN EFFECT (I) IMPOSING MATERIAL LIMITATIONS ON THE ABILITY OF PARENT TO
ACQUIRE OR HOLD OR TO EXERCISE FULL RIGHTS OF OWNERSHIP OF ANY SECURITIES OF THE
COMPANY; (II) IMPOSING MATERIAL LIMITATIONS ON THE ABILITY OF PARENT OR ITS
AFFILIATES TO COMBINE AND OPERATE THE BUSINESS AND ASSETS OF THE COMPANY;
(III) IMPOSING OTHER MATERIAL SANCTIONS, DAMAGES, OR LIABILITIES DIRECTLY
ARISING OUT OF THE MERGER ON PARENT OR ANY OF ITS OFFICERS OR DIRECTORS; OR
(IV) REQUIRING DIVESTITURE BY PARENT OF ANY SIGNIFICANT PORTION OF THE BUSINESS,
ASSETS OR PROPERTY OF THE COMPANY OR OF PARENT.
(D)
ENVIRONMENTAL CONDITIONS.
NO CONDITION
SHALL BE IN EXISTENCE AT, ABOUT OR UNDER ANY PROPERTY NOW OR PREVIOUSLY OWNED OR
OPERATED BY THE COMPANY WHICH, WITH A LAPSE OF TIME OR A GIVING OF NOTICE OR
BOTH, COULD REASONABLY BE EXPECTED TO GIVE RISE TO LIABILITY UNDER ANY
ENVIRONMENTAL LAW THAT, INDIVIDUALLY OR IN THE AGGREGATE, COULD HAVE A COMPANY
MATERIAL ADVERSE EFFECT.
(E)
DELIVERY OF CLOSING DOCUMENTS.
AT OR PRIOR
TO THE EFFECTIVE TIME, THE COMPANY SHALL HAVE DELIVERED TO PARENT ALL OF THE
FOLLOWING:
(I)
A CERTIFICATE OF THE PRESIDENT AND THE
CHIEF FINANCIAL OFFICER OF THE COMPANY, DATED AS OF THE EFFECTIVE DATE, STATING
THAT THE CONDITIONS PRECEDENT SET FORTH IN SECTIONS 6.2(A), (B) AND (C) HEREOF
HAVE BEEN SATISFIED AND SUCH RELATED ASSURANCES AS PARENT MAY REASONABLY
REQUEST; AND
(II)
A COPY OF (A) THE CERTIFICATE OF
INCORPORATION OF THE COMPANY, DATED AS OF A RECENT DATE, CERTIFIED BY THE
SECRETARY OF STATE OF THE STATE OF DELAWARE, (B) THE BYLAWS OF THE COMPANY AND
(C) THE RESOLUTIONS OF THE COMPANY BOARD AND STOCKHOLDERS AUTHORIZING THE MERGER
AND THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, CERTIFIED BY THE
SECRETARY OF THE COMPANY; AND
(III)
EACH AND ALL OF THE ANCILLARY AGREEMENTS
EXECUTED BY EACH OF THE INDIVIDUALS AS LISTED IN EXHIBIT G.
6.3.
CONDITIONS TO OBLIGATIONS OF THE COMPANY.
THE
OBLIGATION OF THE COMPANY TO EFFECT THE MERGER IS FURTHER SUBJECT TO
SATISFACTION OR WAIVER OF THE FOLLOWING CONDITIONS:
(A)
REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB SET FORTH HEREIN SHALL
BE TRUE AND CORRECT BOTH WHEN MADE AND AT AND AS OF THE EFFECTIVE DATE, AS IF
MADE AT AND AS OF SUCH TIME (EXCEPT TO THE EXTENT EXPRESSLY MADE AS OF AN
EARLIER
36
DATE, IN WHICH CASE AS OF SUCH DATE), EXCEPT WHERE THE FAILURE OF SUCH
REPRESENTATIONS AND WARRANTIES TO BE SO TRUE AND CORRECT (WITHOUT GIVING EFFECT
TO ANY LIMITATION AS TO MATERIALITY OR MATERIAL ADVERSE EFFECT SET FORTH
THEREIN) DOES NOT HAVE, AND WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE,
REASONABLY BE EXPECTED TO HAVE A PARENT MATERIAL ADVERSE EFFECT.
(B)
PERFORMANCE OF OBLIGATIONS OF PARENT.
PARENT SHALL HAVE PERFORMED IN ALL MATERIAL RESPECTS ALL OBLIGATIONS REQUIRED TO
BE PERFORMED BY IT UNDER THIS AGREEMENT AT